Evans v North & Anor [2021] QCAT 332

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Evans v North & Anor [2021] QCAT 332 PARTIES: JOHN CHRISTIAN RANDALL EVANS (applicant) v DEBORAH ANNE DE LACY NORTH STEPHEN JAMES MCCORMICK (respondents) APPLICATION NO/S: NDR100-20 MATTER TYPE: Other civil dispute matters DELIVERED ON: 14 September 2021 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Brown ORDERS: The application to reopen the proceedings is refused. CATCHWORDS: ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where the applicant filed a tree dispute application against the respondent – where the applicant contends that the tree obstructs their view – whether the tribunal may make orders in relation to the obstruction of a view. PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – OTHER MATTERS – where the applicant filed a tree dispute application against the respondent – where the applicant was not the neighbour – where tribunal initiated an application for summary dismissal – where submissions were not referred to by the Tribunal member - where the matter was subsequently dismissed – where a complaint was filed – whether the complaint could be taken as an application to reopen the matter – whether there was a ground for reopening the matter. Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 66(3)(a), s 66(3)(b)(ii) -- 1 of 5 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 49(3), s 121(4), 138(1), sch 3 (definition of ‘reopening ground’) Bose v Weir [2020] QCATA 7 Nichol v Campbell [2016] QCATA 204 Vecchio v Papavasiliou [2015] QCAT 70 This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION This proceeding has had an unfortunate history in the tribunal. Sadly, this decision will not change that. In July 2020 Mr Evans filed an application for a tree dispute. Unfortunately, Mr Evans is not the owner of the land affected by the trees. The owner of the land is Mr Evans’s wife, Muriel Evans. In the application, Mr Evans complained about trees and a fence located on adjoining land owned by Mr McCormack and Ms North. The principal complaint by Mr Evans is that the trees and fence obstruct the views from the property at which he resides. Quite evidently, the tribunal has no jurisdiction in respect of the complaints about the fence. It may also be that the tribunal has no jurisdiction in respect of the complaints regarding the trees, at least insofar as those complaints relate to the obstruction of a view. It seems that Mrs Evans purchased vacant land and then constructed a dwelling upon it. The tribunal may make orders in relation to a tree as may be appropriate to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of land. Where that interference is said to be an obstruction of a view, the obstruction must be a severe obstruction of a view, from a dwelling on the neighbour’s land, that existed when the neighbour took possession of the land.1 It is well settled that for a neighbour to establish the jurisdictional fact required by s 66(3)(b)(ii) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), the dwelling must exist on the land at the time the neighbour took possession of the land.2 If there was no dwelling on the land when the neighbour took possession, then there was no view from a dwelling existing at the time of possession that can now be obstructed. If Mr and Mrs Evans built their house after they purchased the land, then their claim in respect of an obstruction of views caused by the trees must fail. They may otherwise seek to establish that their land is affected by trees on the respondents’ land but that is not an issue before the Tribunal for determination at this time. The relevant history of the proceedings is as follows. The application for a tree dispute, when filed, named only Ms North as respondent. After the application was filed, the tribunal made the usual directions for the filing of a response and for the 1 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 66(3)(b)(ii). The tree must also rise at least 2.5 metres above the ground: s 66(3)(a). 2 See for example: Bose v Weir [2020] QCATA 7, Nichol v Campbell [2016] QCATA 204, Vecchio v Papavasiliou [2015] QCAT 70. -- 2 of 5 -- 3 filing, by Mr Evans, of title searches of the applicant’s and respondent’s properties. Mr Evans was also required to file a copy of the registered plan of the respondent’s property on which Mr Evans was required to identify the location of the trees the subject of the dispute. It became apparent, after Mr Evans filed the documents referred to, that the applicant’s property was in fact owned by Mrs Evans and that Mr McCormack was also a registered owner of the respondent’s property. At this point, somewhat curiously, the tribunal directed that Mr McCormack be joined as a respondent and that Mr Evans file submissions and evidence addressing his standing to bring the proceedings. I observe that this appears curious for a number of reasons. Firstly, the matter had been listed for a directions hearing two days after the directions were made by the tribunal. At a directions hearing the tribunal could have quite readily clarified the issue of the correct naming of the parties. Secondly, it was clear that Mrs Evans was the owner of the property. Thirdly, it was obvious from the application for a tree dispute that Mr and Mrs Evans resided at the property, there being numerous references by Mr Evans in the application to ‘my wife.’ At a directions hearing, subject to the parties right to make submissions, the tribunal could simply have joined Mrs Evans as an applicant and removed Mr Evans as an applicant. This did not occur leading to the series of unfortunate events to which I will now refer. In response to the tribunal’s directions, Mr Evans filed a statutory declaration by Mrs Evans in which she stated that she wished to be joined as an applicant. Despite this, the tribunal dismissed the application for a tree dispute on 17 February 2021. No reasons were given by the tribunal for dismissing the proceeding despite the requirement to do so.3 Eventually reasons were provided by the learned member it would seem as a result of a complaint by Mr and Mrs Evans (the complaint). In his reasons4 the learned member observed that the proceedings had been dismissed as a result of a registry error, that error being advice by the registry to the tribunal that Mr Evans had not complied with the directions to which I have earlier referred, regarding his standing to bring the proceedings. The learned member observed that Mr Evans was entitled to apply to reopen the proceedings and made directions for the parties to file submissions addressing why the complaint should not be taken by the tribunal as an application to reopen the proceedings. With due respect to the learned member, it is difficult to understand the reasons. Firstly, the learned member made no directions for the parties to file submissions in accordance with the reasons. Certainly, the reasons refer to the parties being called upon to make submissions however no directions or orders were made to give effect to the reasons. Secondly, the complaint by Mr and Mrs Evans was not a document filed in the proceedings and did not form part of the record of proceedings. It is unclear whether a copy of the complaint was ever provided to the respondents. How the complaint could be considered an application to reopen the proceedings is not at all clear. Thirdly, it is difficult to apprehend why the learned member considered there to be a reopening ground. It is to the issue of a reopening ground that I now turn. 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 121(4) (‘QCAT Act’). 4 Evans v North & Anor (QCAT unreported). -- 3 of 5 -- 4 In response to the reasons which were sent to the parties, the respondents said: 3. Our understanding is that to object to the decision to dismiss the case made on 17th February 2021 that John Evans had to submit a "Form 43 - Application for Reopening, Correction, Renewal or Amendment" within 28 days of the decision and this does not appear to have been. We have not seen any evidence that it has. Once again, he had the opportunity. He's had plenty of time to investigate what his next step should be if the decision went against him for example and certainly had a month to make sure that he submitted the correct form. Simply asking why the case was dismissed is not sufficient and not due process once again. Notwithstanding any error confusion about when John Evans sent the stat dec from the registered owner, we didn't see a copy within the timeframe. More importantly, it was his error of not submitting the initial documentation correctly or making sure that it was corrected in the months leading up to the hearing and now he has made a further error in not submitting the correct form to reopen the proceeding on time. Also, as this was so crucial, why did he not follow up and ensure that you had received the stat dec. We have found that you have usually acknowledged receipt of documents and his was obviously not acknowledged. He failed to follow up on this which he had ample time to do. We do not see that he should be given any further leeway as by not following the due process and apparent lack of diligence, this has extended and delayed the proceedings for us greatly adding to our stress. 4. Additionally, according to Section 61 of QCAT Act 2009, "The tribunal can not extend or shorten a time limit or waive compliance with another procedural requirement if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding". We submit that reopening the proceedings would definitely cause us detriment to my husband and myself from a mental health perspective. It is a reasonable expectation of ours that John Evans should have, at several stages in this process, ensured that he followed correct procedure and applied due diligence. His failure to do so has already caused us increased stress and anxiety by this process being delayed as a result. He seems to have failed to follow due process now by not submitting the documents correctly in the first place or correcting them prior to the hearing, by not confirming that the tribunal had received the stat dec and now by not apparently submitting the Form 43 by the due date. Therefore, we request that he is given no further leeway. We see no reason for him to be given the option to reopen the proceedings when the ball was in his court and the procedures to be followed are very clearly spelled out and should have provided no obstacle to an educated, professional person used to dealing with legalities. Where a proceeding has been heard and decided, the tribunal may reopen the proceeding if the tribunal considers that a reopening ground exists.5 A reopening ground means: (a) the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or (b) the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.6 5 QCAT Act, s 138(1). 6 QCAT Act, sch 3 (definition of ‘reopening ground’). -- 4 of 5 -- 5 There are a number of things to be said about the two reopening grounds and these proceedings. The decision by the learned member dismissing the application for a tree dispute was made on the papers. When a proceeding is decided on the papers there is no ‘hearing’. Parties cannot appear or attend a hearing. The first reopening ground therefore has no application. As to the second reopening ground, there is no significant new evidence in the present case. In the reasons for decision the learned member observed that the submissions and evidence filed by Mr and Mrs Evans ‘may well have produced a different result.’ This was not however ‘new evidence’. It was simply an acknowledgement by the learned member that he had not had reference to the submissions by Mr and Mrs Evans when deciding to dismiss the proceedings. Accordingly, I find that there is no reopening ground and therefore no basis upon which the proceedings may be reopened. The application to reopen the proceedings is refused. As I have earlier observed the circumstances leading to the dismissal of the application for a tree dispute are unfortunate. It is open to Mr Evans to file an application for leave to appeal or appeal in respect of the decision dismissing the application for a tree dispute. Alternatively, Mrs Evans may wish to file a further application for a tree dispute. If such further proceedings by Mrs Evans were considered to be of the same kind and relating to the same matter as the earlier proceedings, the President or the Deputy President may nevertheless give leave for such further proceedings to be started if the interests of justice require such leave.7 7 QCAT Act, s 49(3). -- 5 of 5 --