Leonhart v Molyneux [2026] QCATA 8

[3] The application for leave to appeal or appeal was lodged on 17 August 2023. The appellant asserts the extant fence is not a sufficient dividing fence and the member's determination it is sufficient was an error. This is based on the following grounds:

(a) The member did not consider the issues of privacy or safety in deciding whether the fence was sufficient;

(b) The existing fence is ineffective in restraining pets from escaping from the subject properties;

(c) There is a high demand and propensity for Colourbond fences in the area and residents of the area are replacing wire fences with Colourbond fences. There is an obvious majority of Colourbond fencing despite inconsistent fencing styles in the area (and uniform fencing is rare in any area);

(d) The extant fence is rusted, buckled, decaying and bowing from external pressures, and has sharp edges which pose risk of injury to the adjoining owners, and it is incapable of being maintained by the owners;

(e) The member erred in finding there was no basis to make the orders sought.

[4] The appellant seeks orders that the dismissal be set aside, and that the fence be removed and replaced with a Colourbond fence, with the parties to equally bear the costs of removal and construction.

[5] The respondent filed no submissions in the proceeding below or in the appeal proceeding.

[6] The appellant filed an Application for miscellaneous matters on 23 November 2023 seeking to adduce further evidence: additional photographs of the existing fence, and a copy of a Queensland Police Service ('QPS') report concerning an unauthorised entry onto the appellant's property by a third party climbing over the fence.

[7] A party to a proceeding may appeal to the Appeal Tribunal against a decision of the Tribunal in the proceeding.[2] Leave is required if the appeal involves a question of fact or mixed law and fact.[3] The principles to be applied in considering whether leave to appeal should be granted are:

(a) Is there a reasonably arguable case of error in the primary decision?[4]

(b) Is there a reasonable prospect that the applicant will obtain substantive relief?[5]

(c) Is leave necessary to correct a substantial injustice to the applicant caused by some error?[6]

(d) Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[7]

[8] If leave to appeal is granted, in deciding the appeal on a question of law the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and remit the matter to the Tribunal for reconsideration.[8] The Appeal Tribunal may set aside the decision and substitute its own decision only if this results in the disposition of the appeal entirely in the appellant's favour.[9] An appeal on a question of fact or mixed law and fact must be conducted by way of rehearing.[10] The Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and remit the matter to the tribunal for reconsideration.[11]

[9] The member's decision that the fence was a sufficient fence was a determination of fact. Leave is required to appeal.

Photographs demonstrating privacy issue and tarp

[10] The appellant submits the additional photographs demonstrate the lack of privacy afforded the appellant by the extant fence and the installation of a tarp covering to ensure some degree of privacy.

[11] The appellant submits the privacy-related evidence should be allowed because it was obtained with reasonable diligence for use at the hearing but the member disregarded it; it is considerably relevant to the issue of privacy; and it is credible. The evidence of the tarp covering should be allowed because it was unavailable at the time of the hearing as it had not been installed; it is extremely relevant to the issue of privacy; the issue of privacy would have necessarily influenced the decision; and it is credible.

[12] Admitting this evidence would make no difference to the decision to be made as the member did in fact acknowledge the lack of privacy in the original decision. She afforded the concern less weight in her decision about the sufficiency of the fence because privacy could be obtained by other methods that did not require the replacement of the fence.

[14] This report concerns an incident of trespassing on the appellant's property over the fence. The appellant asserts it should be admitted because

(a) the member did not inquire about the safety issue during the hearing;

(b) the appellant believed the evidence already tendered would be sufficient to ventilate his position on the safety issue;

(c) it is considerably relevant in determining the effectiveness of the fence at deterring trespassers;

(d) it is highly likely the report would have influenced the member's decision;

(e) it is credible (a formal police report).

[15] As to the member not enquiring about the issue: in a civil proceeding it is not the Tribunal's role to investigate facts absent the instigation of the parties. Parties must run their own cases in the Tribunal. If the appellant wished to ventilate the issue of safety he ought to have tendered submissions and evidence about that during the original proceeding.

[16] The issue of safety was mentioned in the submissions in the original application, about an unsecured two-metre gate panel. Apart from the mention that the panel was a safety concern, no further detail was provided. At the hearing the issue of people trespassing by jumping over the fence was not mentioned.

[17] If evidence would have been available at the time of the original hearing, given due diligence of the party seeking to admit it, there is no miscarriage of justice for it not to be considered.[12] The QPS report states the incident occurred on 28 July 2019. The hearing was on 11 July 2023 - the report would have been available to the appellants at the hearing had they exercised due diligence.

[18] The report shows one incident in four years of the appellant living on the property. Given that, analogously, the member placed little weight on one incident of a dog escaping over the fence in that time, it stands to reason that one incident of intrusion over it would be afforded the same limited weight.

[20] These include photographs of the fence compared to the size of the appellant's dogs and of the fence at close proximity. The appellant seeks to admit these on the bases

(a) the close-up photographs depict the true state of rusting and corrosion of the fence;

(b) the close-up photographs were not tendered because the appellant believed the member would identify the extent of the rust based on the photographs earlier submitted;

(c) the close-up photographs were obtained with reasonable diligence for use at the hearing;

(d) the photographs of the dogs are considerably relevant to the issue of the fence's effectiveness at restraining the dogs;

(e) the photographs of the dogs were 'unjustly suppressed' during the hearing;

(f) (concerning both sets of photographs) it is significantly likely the member's decision would have been different had she relied on these photographs in the first instance.

[21] The photographs of the dogs would have made no evidence to the member's decision. She decided the possibility of their escape was a lesser factor based on there being only a single instance of escape in four years. Since it was acknowledged there was one incident, the member was obviously aware of the dogs' ability to escape. This was not a case of ignorance or lack of awareness but an assignment of weight - the importance of that factor in connection with the other factors that led to the sufficiency decision. It was not an error that could be amended by additional evidence.

[22] The close-up photographs do provide additional information about the condition of the fence. The photographs originally provided to the Tribunal were not colour photographs. Rust is much more evident in the photographs the appellant seeks to admit. In her reasons the member asserted the fence did not currently require replacement, but that it eventually would; and that it looked 'pretty sturdy' in her view. However, in coming to that view the member accepted oral evidence that the fence was rusty in part, and that the evidence showed it was rusty. Admission of photographs showing the rust would not have made a difference to the member's determination and show nothing that was not acknowledged in the making of the decision.

Was it open to the member to find the fence was a sufficient fence?

[24] A Tribunal member may only order the replacement of a fence if the extant fence is insufficient.[13] Section 13 defines sufficient dividing fence:

(1) A dividing fence is a sufficient dividing fence if -

(a) for adjoining land consisting of 2 parcels of residential land, the dividing fence -

(i) is between a minimum of 0.5m and a maximum of 1.8m in height; and

(ii) consists substantially of prescribed material; or

(b) for adjoining land consisting of 2 parcels of pastoral land, the dividing fence is sufficient to restrain livestock of the type grazing on each of the parcels of land; or

(c) in any case -

(i) the adjoining owners agree the dividing fence is a sufficient dividing fence; or

(ii) QCAT decides the dividing fence is a sufficient dividing fence.

(2) For this chapter, the existence of a fence, other than a dividing fence, on adjoining land must not be taken into account in deciding whether there is a sufficient dividing fence.

(3) In this section -

prescribed material, for a dividing fence, means any of the following materials unless the material does not comply with a requirement under a relevant local law -

(a) wood, including timber palings and lattice panels;

(b) chain wire;

(c) metal panels or rods;

(d) bricks;

(e) rendered cement;

(f) concrete blocks;

(g) hedge or other vegetative barrier;

(h) other material of which a dividing fence is ordinarily constructed.

[25] The member decided the fence was sufficient because:

(a) It is one metre high;

(b) It is made of wire;

(c) It runs from the appellant's garage to the end of the property;

(d) It has lasted at least four years, since the appellant's occupation of the property;

(e) There is no consistency in the fences in the area and therefore no reason to prioritise a Colourbond fence on the basis of consistency;

(f) It requires minimal maintenance;

(g) Privacy is a concern, but a lesser concern, as this can be obtained in other ways such as by the planting of shrubs.

[26] Conversely, the appellant submitted, in parts it is rusty and needs replacing. The respondent submitted during the hearing that the fence was sufficient. Based on this and on photographs provided by the appellant the member decided the fence was in sturdy condition and would not require replacement for the time being.

[27] Both parties raised concerns about the movement of their dogs around and over the fence. The member did not assign these concerns weight because there had only been one incident where the appellant's dog had jumped over the fence in four years and this did not in her view detract from the fence's sufficiency.

[28] It is not an appellable error to prefer one version of the facts to another or to weigh a party's submissions with more or less weight than the party thinks it ought to receive. If a factual finding has rational support on the evidence, even if another rational view is available this is not a ground for appeal. A decision cannot be called erroneous simply because one rational explanation has been preferred to another.[14] Indeed, to choose between multiple competing rational arguments is an essential part of a Tribunal member's role.

[29] In Azzopardi v Tasman UEB Industries Ltd[15] the Tribunal stated:

If there is evidence, or if there are available inferences which compete for the judge's acceptance, no error of law occurs simply because the judge prefers one version of evidence to another or one set of inferences to another. This is his function. ... Even if the evidence is strongly one way the Appeal Court may not intervene simply because it reaches a different conclusion....[16]

[30] The Appeal Tribunal will not readily interfere with findings of fact of the tribunal at first instance, unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony', or they are 'glaringly improbable' or 'contrary to compelling inferences'.[17]

[31] I find it was open to the member to make the findings she made at the time. Her findings were supported by the documentary evidence (concerning the fence's objective qualities) or by her consideration of that evidence.

[32] The appellant submits the fence had been in place for at least four years. It was open to the member to find maintenance needs were minimal given there was no evidence on file about prior maintenance and the fence had stood for at least that period.

[33] It was open to the member to find the parties' concerns about privacy lacked weight in circumstances where privacy could be achieved another way than by the replacement of the fence; and that the concerns about the dogs escaping were minimal in circumstances where the appellant's dog had only jumped over the fence once in four years.

[34] I find there is not a reasonably arguable case of error in the primary decision.

[1] QCAT may decide under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 13(1)(c)(ii) ('the Act') that a dividing fence is a sufficient dividing fence.

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(1) ('QCAT Act').

[4] QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41.

[5] Cachia v Grech [2009] NSWCA 232 [13].

[6] QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41.

[7] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580.

[9] Ericson v Queensland Building Services Authority [2013] QCA 391.

[12] Queensland Vedic Cultural Centre Pty Ltd v Lal [2022] QCATA 50 [31] citing Mickelberg v R [1989] HCA 35; (1989) 167 CLR 259, Toohey and Gaudron JJ [24].

[13] Egan v North Goonyella Bodycorp Two [2021] QCAT 110 [7].

[14] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 125-126; JM v QFG and KG [1998] QCA 228 at 20; Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 at 479.

[15] (1985) 4 NSWLR 139.

[17] Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22 [43]. Followed in Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2018] QCA 104.