Brogan & Anor v Heywood & Anor [2021] QCATA 139

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Brogan & Anor v Heywood & Anor [2021] QCATA 139 PARTIES: WAYNE WALTER BROGAN ANNABEL MARY BRITTAIN (applicants) v WENDY HEYWOOD JOHANNES JACOBUS VENTER (respondents) APPLICATION NO/S: APL278-20 MATTER TYPE: Appeals DELIVERED ON: 4 November 2021 HEARING DATE: 8 September 2021 HEARD AT: Brisbane DECISION OF: Senior Member Brown ORDERS: 1. The application for leave to adduce fresh evidence is refused. 2. The application for leave to appeal is refused. 3. The appeal is dismissed. CATCHWORDS: APPEAL AND NEW TRIAL - PROCEDURE - QUEENSLAND - POWERS OF COURT - FURTHER EVIDENCE – where applicants asserted denial of procedural fairness on the basis that the proceedings were determined on the papers – where applicants sought to adduce fresh evidence – consideration of whether to permit fresh evidence – whether findings of the tribunal were available on the evidence Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 66(2). Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(1) s 147(2), s 147(3). Cachia v Grech [2009] NSWCA 232 Ericson v Queensland Building Services Authority [2013] QCA 391. Heywood & Anor v Brogan & Anor [2020] QCAT 308. Pickering & Anor v McArthur [2010] QCA 341 at [22]. QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 -- 1 of 10 -- 2 REASONS FOR DECISION [1] In these reasons I will refer to Mr Brogan and Ms Brittain as ‘the applicants’ and Ms Heywood and Mr Venter as ‘the respondents’. [2] Growing on the applicants’ land is a terminalia catappa (the tree). The tree is known by other names including Tropical almond, Beach almond and Indian almond. The respondents commenced proceedings in the tribunal claiming that their land was affected by the tree. The tribunal ordered the removal of the tree.1 The applicants have appealed the decision. Appeals – the statutory framework [3] A party to a proceeding may appeal to the appeal tribunal against a decision of the tribunal.2 An appeal on a question of law is as of right. If an appeal involves a question of fact or mixed law and fact, leave is required.3 [4] In deciding an appeal on a question of law the appeal tribunal may: confirm or amend the original decision; set aside the decision and substitute its own decision; set aside the decision and remit the matter to the tribunal for reconsideration.4 The tribunal may set aside the decision and substitute its own decision only if, in deciding the question of law, the appeal is determined entirely in the applicant’s favour.5 [5] In deciding an appeal on a question of fact or mixed law and fact, subject to leave to appeal being granted, the appeal must be decided by way of rehearing.6 In deciding the appeal, 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.7 [6] The relevant principles regarding the granting of leave to appeal are well established.8 Is there a reasonably arguable case of error in the primary decision;9 is there a reasonable prospect that the applicant will obtain substantive relief;10 is leave 1 Heywood & Anor v Brogan & Anor [2020] QCAT 308. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(1). 3 Ibid, s 142(3)(b). 4 Ibid, s 146. 5 Ericson v Queensland Building Services Authority [2013] QCA 391. 6 Op cit 2, s 147(2). 7 Ibid, s 147(3). 8 See, eg, Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219. 9 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 10 Cachia v Grech [2009] NSWCA 232, [13]. APPEARANCES & REPRESENTATION: Applicant: Self represented. Respondent: Self represented. -- 2 of 10 -- 3 necessary to correct a substantial injustice to the applicant caused by some error;11 is there a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.12 The decision below [7] The learned adjudicator found: (a) The tree in question is an Indian-Almond tree or terminalia catappa;13 (b) The respondents’ land was affected by the tree situated on the applicants’ land;14 (c) The tree had caused damage to the roof of a building on the respondents’ land. This was referred to in the reasons as the ‘tree litter damage’;15 (d) There is a risk that the tree will fail. This was referred to in the reasons as ‘tree failure risk’;16 (e) The tree presents a serious risk of injury to person or serious damage to the respondents’ land or neighbouring property;17 (f) The tree litter damage represented a substantial, ongoing and unreasonable interference with the use and enjoyment of the respondents’ land;18 (g) The flat roof design of the respondents’ house had contributed to the tree litter damage.19 The grounds of appeal [8] In the application for leave to appeal or appeal, the applicants rely upon a single ground of appeal. They say they were denied the opportunity to present expert and photographic evidence to the tribunal. [9] In their appeal submissions, and at the hearing of the appeal, the applicants articulated further grounds of appeal: (a) The learned adjudicator erred in accepting the evidence of the respondents’ arborist; (b) There was no evidence of serious damage or serious injury caused by the tree; (c) The learned adjudicator failed to consider the evidence that the roof of the respondent’s home was corroded and that this was not caused by the tree; (d) The learned adjudicator erred in finding that the leaf litter constituted a substantial, ongoing and unreasonable interference with the use and enjoyment of the respondents’ land; 11 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 12 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. 13 Reasons for decision at [1]. 14 Ibid, at [15](b). 15 Ibid, at [29](a). 16 Ibid, at [29](b). 17 Ibid, at [40], [41]. 18 Ibid, at [41](c). 19 Reasons at [58]. -- 3 of 10 -- 4 (e) The learned adjudicator failed to consider the evidence of the applicants disputing the findings by the respondents’ arborist; (f) The learned adjudicator erred in failing to find that the tree was a mangrove and therefore protected; (g) The learned adjudicator failed to consider pruning the tree as an option in the final orders. [10] At the hearing the respondents’ did not object to the applicants’ further grounds of appeal and were given the opportunity to make submissions to the tribunal. I therefore propose to consider the expanded grounds of appeal. Application to adduce fresh evidence [11] The applicants apply to adduce four pieces of fresh evidence: a report by an arborist David Calder,20 a statement by Reg Denman,21 a statement by Errol Wiles, 22 and a statement by Jenny Carlyle.23 [12] The relevant considerations in respect of an application to adduce fresh evidence in an appeal are well established. Further evidence may be admitted where: (a) The fresh evidence could not have been obtained with reasonable diligence for use at the original hearing; (b) The fresh evidence would have had an important influence on the result of the case; and (c) The fresh evidence is credible.24 [13] An applicant seeking to rely upon fresh evidence must satisfy all of the aforesaid criteria. [14] Before addressing the application to rely upon fresh evidence it is appropriate to first briefly outline the progress of the proceedings below. [15] Early in the proceedings, and in accordance with the relevant practice direction, the tribunal directed that the parties contribute toward the tribunal’s costs of engaging a tree assessor to undertake an assessment of the tree and provide a written report of the assessor’s findings and recommendations. The applicants declined to comply with the direction on the basis that they were financially unable to do so. The tribunal subsequently made directions providing the respondents the opportunity to pay the entire cost of the appointment of the assessor or alternatively obtain a report from an expert. The respondents chose to do the latter. [16] Following a compulsory conference in March 2020, which both parties attended, directions were made for the parties to file any further evidence and for the matter to be listed for a hearing in Cairns on a date to be advised. Importantly, the directions stated that evidence would not be permitted to be led at the hearing if it was not contained in a statement of evidence. It should be noted that the respondents had by 20 Applicants’ appeal book at page 19. 21 Ibid at page 36. 22 Ibid at page 16. 23 Ibid at page 29. 24 Pickering & Anor v McArthur [2010] QCA 341 at [22]. -- 4 of 10 -- 5 this time filed their statements of evidence including the report of an expert arborist, Mr John Madderom. [17] The applicants were directed to file their further evidence by 16 March 2020. They filed no further evidence. [18] On 11 March 2020, the tribunal registry notified the parties by email that the matter had been listed for hearing in Cairns on 29 May 2020. It was at or about this time that the COVID-19 pandemic struck, impacting the operation of the tribunal. [19] On 15 April 2020, the tribunal directed the parties to file submissions addressing whether the proceedings could be determined on the papers and, if an oral hearing was required, why an oral hearing was required and whether the hearing could be conducted by remote conferencing. The respondents submitted that the matter be determined on the papers. The applicants’ response was in the following terms: I respectfully request that the hearing at the Cairns Courthouse on the 29th May 2020 be postponed or cancelled due to the COVID 19 crisis and low priority of the case. [20] The applicants’ submissions failed to address the tribunal directions in any meaningful way. [21] The tribunal made further directions on 8 May 2020 that unless a party advised the tribunal in writing by 15 May 2020 that an oral hearing was required, the matter would be determined on the papers and the tribunal hearing on 29 May 2020 would be vacated. Neither party advised the tribunal that they required an oral hearing. [22] On 19 May 2020, the tribunal vacated the hearing on 29 May 2020 and directed that the matter be determined on the papers. The final decision of the tribunal was delivered on 10 August 2020. [23] I turn now to the fresh evidence the applicants seek to adduce. Report – David Calder [24] I accept that the evidence of Mr Calder is credible. The report identifies that he is a consulting arborist. I have no reason to question Mr Calder’s qualifications. [25] When asked at the hearing of the appeal why the report of Mr Calder was not obtained before the matter was originally decided, Mr Brogan’s response was that the decision below was not the outcome the applicants were expecting. Implicit in this submission is an acknowledgement by the applicants that they had made no attempt to obtain the report before the matter was decided. Indeed, the report indicates that the applicants did not request the report until some 4 months after the appeal was filed. The only thing that need be said about this submission is that it is entirely inconsistent with the applicants’ written submissions regarding their expectation that the evidence could have been given at an oral hearing. [26] The report could, with reasonable diligence, have been obtained by the applicants before the matter was first heard and decided. [27] The application to rely upon the report of Mr Calder is refused. Statement of evidence of Reg Denman [28] I have reservations regarding the evidence of Mr Denman. The statement does not appear to have been signed although the document has a hand printed name. The -- 5 of 10 -- 6 statement is not dated. The evidence purports to address issues relevant to the construction of the respondents’ dwelling , in particular the roof. There is no evidence as to Mr Denman’s qualifications to give opinion evidence relating to building design and construction. I am therefore not persuaded that the evidence is credible. [29] Even if the evidence were credible. no satisfactory explanation is offered by the applicants as to why the evidence could not have been obtained before the matter was first heard and decided. [30] The application to rely upon the evidence of Mr Denman is refused. Statement of Errol Wiles [31] The statement of Mr Wiles is not signed although his name is typed at the bottom of the first page. Mr Wiles’s statement addresses a number of issues including the species of tree the subject of the dispute, the health and vitality of the tree and Mr Wiles’s opinion about the design and construction of the respondents’ dwelling. [32] Mr Wiles says in his statement that he holds no formal qualifications. His evidence insofar as it goes to expressions of opinion about the tree and the respondents’ dwelling, is of little, if any, weight. [33] Again, the applicants’ offer no satisfactory explanation why the evidence could not have been obtained before the matter was first heard and decided. [34] The application to rely upon the evidence of Mr Wiles is refused. Statement of Jenny Carlyle [35] Ms Carlyle’s statement is signed and dated and I am prepared to accept that the evidence is credible. Ms Carlyle’s evidence is, essentially, that the tree is an important part of the landscape and the local ecosystem. Having said this, there is no evidence that Ms Carlyle has any formal qualifications, and her evidence is really an expression of her opinion as to why she finds the tree attractive. The evidence of Ms Carlyle is not compelling. [36] More importantly, there is no explanation offered by the applicants as to why the evidence could not have been obtained before the matter was first heard and decided. It clearly could have been. [37] The application to rely upon the evidence of Ms Carlyle is refused. The grounds of appeal - consideration [38] The first ground of appeal is that the applicants were denied the opportunity to present expert and photographic evidence to the tribunal. [39] In their appeal submissions the applicants say that they had intended to rely upon the fresh evidence, to which I have earlier referred, at the hearing originally scheduled to proceed on 29 May 2020 in Cairns. When the hearing date was vacated and the tribunal directed that the matter be determined on the papers, the applicants say they were denied the opportunity to present the evidence. This ground of appeal is essentially one of a denial of procedural fairness. This is a question of law. [40] There are a number of things to say about this ground of appeal. [41] Firstly, there is nothing to suggest that the applicants took any steps to obtain the evidence they say they were denied the opportunity to rely upon despite the directions -- 6 of 10 -- 7 made following the compulsory conference in March 2020. As the directions made clear, evidence not contained in the statement of a witness would not be permitted at the hearing. It should therefore have been patently clear to the applicants that unless they took steps to obtain further witness statements, any evidence would not be permitted. [42] Secondly, the parties were given the opportunity to make submissions to the tribunal about whether the matter should proceed to an oral hearing or a determination on the papers. As I have observed, the applicants’ submissions were non-responsive to the directions. [43] Thirdly, the parties were given a final opportunity to notify the tribunal that they required an oral hearing, failing which, the matter would be determined on the papers. Neither party requested an oral hearing. [44] The applicants cannot now complain that they were not given the opportunity to present evidence and have an oral hearing in circumstances where they took no steps to advance and protect their interests. This ground of appeal is without substance. [45] The second ground of appeal is that there was no evidence of serious damage or serious injury caused by the tree. Implicit in this ground of appeal is the assertion that the learned adjudicator erred in making a finding to this effect. This ground of appeal raises a question of fact. [46] The learned adjudicator observed: …for an order to be made under s 66 (of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011) there must be: (a) a risk of serious injury to any person (because the order must be to ‘prevent’ the serious injury); or (b) the existence of, or risk of: (i) serious damage to the Applicants’ land or property on the land; or (ii) a substantial, ongoing and unreasonable interference with the use and enjoyment of the Applicants’ land (because the order must be to ‘remedy, restrain or prevent’ the damage or interference). [47] The learned adjudicator found that there was compelling evidence of damage to the respondents’ dwelling as a result of tree litter being deposited on the roof.25 The learned adjudicator made this finding relying upon the evidence of both the respondents and the arborist, Mr Madderom.26 [48] The learned adjudicator found that the tree presented a serious risk of injury to person or serious damage to the respondents’ land or neighbouring property.27 This finding was made in reliance upon the evidence of Mr Madderom contained in a report dated 8 December 2019 (the second expert report). [49] As referred to earlier in these reasons, the respondents obtained the report of Mr Madderom after the applicants refused to comply with the direction to contribute to 25 Reasons at [30]. 26 Reasons at [29] to [31]. 27 Reasons at [40]. -- 7 of 10 -- 8 the tribunal’s costs of engaging an assessor. Mr Madderom’s evidence was the only expert evidence in the proceeding. There was an earlier report of Mr Madderom also in evidence (the first expert report).28 [50] Mr Madderom inspected the tree on two occasions, the first time on 12 January 2019 and the second time on 5 December 2019. In the first expert report, Mr Madderom opined that the risk of the tree blowing over was low. Mr Madderom recommended removal of the tree ‘due to the risk of property damage via flooding and other issues….’.29 The first expert report did not make clear the precise nature of the ‘flooding and other issues’. In the second expert report, Mr Madderom opined that the tree was taller than was typical for the species with a very large canopy and a large ‘inclusion’ at the base. This was a reference to a junction at the tree’s base, such that the tree essentially had two trunks. Mr Madderom opined that the inclusion would fail with the result that the two trunk structures would have a great impact on surrounding properties. Mr Madderom recommended complete removal of the tree. He considered the possibility of reducing the height of the tree by 50% however concluded that such a measure was neither desirable nor recommended. [51] The evidence before the learned adjudicator was that the tree was some 20 metres tall with a canopy extending in excess of 10 metres over neighbouring properties.30 The evidence of Mr Madderom in the second expert report was that the tree was within fall distance of buildings and pedestrians. The respondents’ evidence was that the tree branches extended over approximately one third of the roof of their house. [52] The tribunal may make an appropriate order in relation to a tree to prevent serious injury to a person or to remedy, restrain or prevent serious damage to the neighbour’s land or any property on the neighbour’s land. It was open on the evidence before the learned adjudicator to find that the tree posed a risk of causing serious injury to persons or serious damage to the respondents’ land or property on the land. There was no error by the learned adjudicator. [53] The applicants say that the learned adjudicator failed to consider the evidence that the roof of the respondent’s home was corroded and that this was not caused by the tree. This raises a question of fact. The learned adjudicator referred to the evidence that, as a result of the accumulation of leaf litter, the roof sheeting had been cleaned and resealed to treat rust and to prevent water getting into the ceiling of the dwelling. The learned adjudicator accepted that the flat roof design of the respondents’ home had contributed to the tree litter damage.31 In reaching this conclusion the learned adjudicator considered the evidence about the cause of the roof corrosion. This ground of appeal is without substance. [54] The applicants say that the learned adjudicator erred in finding that the leaf litter constituted a substantial, ongoing and unreasonable interference in the use and enjoyment of the respondents’ land. This ground of appeal raises a question of fact. The learned adjudicator referred to the evidence regarding the leaf litter and its effects on the respondents’ property. The learned adjudicator observed that the existence of tree litter was not disputed and referred to the evidence of Mr Brogan that he 28 Report dated 24 January 2019. 29 Ibid at page 4. 30 Second expert report. 31 Reasons at [58]. -- 8 of 10 -- 9 sympathised with the problem. The learned adjudicator referred to the evidence of Mr Madderom that the beach almond tree was well known for heavy leaf litter falls throughout the year resulting in high maintenance. The learned adjudicator referred to the evidence of the respondents as to the extent and effects of the leaf litter caused by the tree.32 The finding by the learned adjudicator regarding the leaf litter were open on the evidence. In any event it seems reasonably clear that the basis of the final order for the removal of the tree was not the adverse effects of the leaf litter but the risks posed to persons and the respondents’ land and property by the likelihood of the failure of the tree. This ground of appeal is not made out. [55] The applicants say that the learned adjudicator failed to consider their evidence disputing the findings by the respondents’ arborist. Implicit in this argument is the assertion of error on the basis that the learned adjudicator accepted the evidence of Mr Madderom over the evidence of the applicants. This raises a question of fact. Central to this submission is the assertion that the evidence of Mr Madderom was unreliable on the basis of inconsistencies between the first expert report and the second expert report. This inconsistency related to the risk of failure of the tree. The learned adjudicator addressed the apparent inconsistency in the following passage from the reasons: [37] I have considered the inconsistency between the earlier Tree Condition Report and the later Tree Assessment Report and memorandum, in that the risk of failure was assessed as low in the Tree Condition Report but was emphasised as a concern in the Tree Assessment Report and Memorandum. [38] However, no other expert evidence was adduced by either party to confirm or contradict that of Mr Madderom. Mr Brogan refused to contribute to the cost of an independent tree assessor for financial reasons. The Respondents did not object to this Proceeding being determined on the papers. There is nothing to indicate that Mr Madderom’s later evidence as to the risk of failure should be treated as anything other than a re-assessment of the risk of failure as a result of the passage of time. [56] The applicants refer to the evidence of Mr Madderom as ‘biased’ and ‘exaggerated’. As the learned adjudicator noted, the applicants were given every opportunity to adduce their own expert evidence about the tree. They did not do so. The learned adjudicator considered the applicants’ evidence as to the risk posed by the tree. She accepted the evidence of Mr Madderom. The learned adjudicator was entitled to do so. There was no error. [57] The applicants say that the learned adjudicator erred in failing to find that the tree was a mangrove and therefore protected. This raises a question of fact. There was no evidence before the tribunal below that the tree was a mangrove or that the tree was protected by a relevant local law or state law. The learned adjudicator addressed the applicants’ submission about the species of tree in the following passage: 33 … the Applicant has provided an email dated 17 July 2018 from Emma Finney at the Cairns Regional Council to Mike Heywood to the effect that work on the tree would not require its consent or authorisation, but rather requires self assessment … 32 Reasons at [29(a)]. 33 Reasons [49(b) and (d)]. -- 9 of 10 -- 10 the Respondents contend in the response to Question 35 that the tree is a mangrove and totally protected. This seems unlikely given the position of the Cairns Regional Council. Terminalia catappa does not appear from a search of the Nature Conservation Wildlife Regulation 2006 (Qld) to be protected nor does it appear to be so under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). [58] The evidence before the Tribunal was that the tree was a terminalia catappa, not a mangrove. There was no error by the learned adjudicator. [59] The applicants say that the learned adjudicator failed to consider pruning the tree as an option in the final orders. The learned adjudicator considered the evidence about pruning the tree, observing: as to the impact of pruning the tree, in the Tree Condition Report, Mr Madderom states that although it is an option, it is not preferred as the position is difficult to develop a lower shape, and that pruning would require regular maintenance and monitoring. In the Tree Assessment Report, Mr Madderom states that reducing the size of the tree by 50% is an option, but not a desirable or recommended option. … I take into account the repeated recommendations by Mr Madderom that the tree be removed, because of his concerns about the stability of the tree, and that pruning the tree back is not a preferred option. [60] The learned adjudicator found that the tree presented a serious risk of injury to persons or serious damage to the respondents’ land or neighbouring property.34 It is clear from the passages from the reasons to which I have referred that the learned adjudicator did consider the option of an order that the tree be pruned in order to address the risks posed by the tree. The learned adjudicator considered, and accepted, the evidence of Mr Madderom that the recommended course of action was to remove the tree. [61] There was no error by the learned adjudicator. Conclusion [62] The applicants have failed to establish error in the decision below. Leave to appeal is refused and the appeal dismissed. 34 Reasons [40]. -- 10 of 10 --