Barry-O’Neill v Masters [2018] QCAT 415

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Barry-O’Neill v Masters & Anor [2018] QCAT 415 PARTIES: DEBORAH LEA BARRY-O’NEILL (applicant) v JOHN MASTERS (first respondent) JOAN MASTERS (second respondent) APPLICATION NO: REO007-18 MATTER TYPE: Other civil dispute matters DELIVERED ON: 4 December 2018 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Brown ORDERS: Application dismissed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – procedure – reopening – where the application for reopening is filed outside time limit – where parties enter into agreement for tree removal and pruning works to be undertaken – where parties agree to dismissal of application – where terms of agreement not complied with – where applicant seeks to enforce agreement Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61(1)(b), s 61(3), s 133, s 136, s 137, s 138, s 138(1), s 138(2)(b), Schedule 3 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 92(b), Schedule Bielby v Beilby & McGrath [2010] QCAT 649 Ramke Constructions Pty Ltd v Queensland Building Services Authority [2012] QCAT 417 REPRESENTATION: Applicant: Self-represented Respondent: Self-represented -- 1 of 5 -- 2 APPEARANCES: 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 [1] On 5 January 2018 the tribunal dismissed the application for a tree dispute filed by Ms Barry-O’Neill. Ms Barry-O’Neill seeks to reopen the proceeding. Reopening a proceeding – the statutory framework [2] A party to a proceeding, that has been heard and decided by the tribunal, may apply to the tribunal for the proceeding to be reopened if the party considers a reopening ground exists for the party.1 [3] 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.2 [4] A reopening application must be made within the period and in the way stated in the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (QCAT rules).3 An application under s 138 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) for a proceeding to be reopened must be made within 28 days after the relevant day.4 ‘Relevant day’ means the day a party to the proceeding is given written reasons for a decision (if written reasons are requested by the party), or otherwise the day the party is given notice of the decision.5 The decision in NDR064-16 [5] A dispute arose between the applicant and the respondents in relation to a number of trees on the respondents’ land. The matter proceeded in the tribunal in the usual way. The tribunal appointed an assessor to undertake an assessment of the trees the subject of the dispute.6 [6] The assessor provided a report to the tribunal (the report).7 The parties subsequently signed an agreement giving effect to the recommendations contained in the report. The agreement provided for the removal of one tree and pruning works in respect of a number of other trees. The removal of the tree was required to be carried out within sixty days of the date of the agreement. The period within which the removal of the 1 QCAT Act, s 136, s 138(1). 2 Ibid, Schedule 3. 3 Ibid, s 138(2)(b). 4 QCAT Rules, r 92(b). 5 Ibid, Schedule. 6 Directions dated 24 March 2017. 7 Tree Assessment Report of Roxanne Taylor dated 18 April 2017. -- 2 of 5 -- 3 tree was to be carried out was amended by the respondents to eight months from the date of the agreement. The pruning works were required to be carried out within sixty days from the date of the agreement. The respondents were responsible for the cost of the removal of the tree and the pruning works. [7] The tribunal made directions proposing the dismissal of the application for a tree dispute on the basis that the parties had signed an agreement resolving the dispute, unless a party objected in writing by 22 December 2017.8 In the absence of either party objecting to the proposed dismissal order, the tribunal dismissed the application.9 The reopening application [8] The reopening application was filed on 17 April 2018, beyond the time limit prescribed by the QCAT rules. The tribunal may extend a time limit fixed by the QCAT Act or QCAT rules.10 The tribunal cannot extend a time limit or waive compliance with a procedural requirement if to do so would cause prejudice or detriment to another party, not capable of being remedied by an order for damages or costs.11 [9] The grounds of the reopening application are not entirely clear, however it seems reasonably apparent that the respondents have not complied with their obligations under the agreement relating to the pruning of overhanging branches. The applicant says that she has: … grave doubts the trees will be trimmed by the agreed extended date therefore I seek further assistance from QCAT until the matter has been resolved.12 [10] It is unclear what is meant by the ‘agreed extended date’. It could be a reference to the eight month period for the tree removal to be undertaken pursuant to the terms of the agreement although this seems doubtful as there is an obvious difference between a tree being ‘trimmed’ and a tree being removed. [11] The respondents’ submissions make it clear that the pruning works and the tree removal have not been undertaken as a result of various issues which it is unnecessary to expand upon in these reasons. The submissions refer to the possibility of the tree pruning works being undertaken toward the end of 2019 or some time thereafter.13 The respondents say that the tree will be removed four months after the pruning is completed. [12] In reply, the applicant says that the tree works must be performed by a qualified arborist and not by the respondents as they propose. The applicant says that she is seeking to have the agreement enforced, for the tree works to be carried out within sixty days and for future pruning works to be carried out as recommended in the report by the tribunal appointed assessor. 8 Directions dated 15 December 2017. 9 Decision dated 5 January 2018. 10 QCAT Act, s 61(1)(b). 11 Ibid, s 61(3). 12 Application for reopening, correction, renewal or amendment filed 17 April 2018, Part C. 13 Respondents’ submissions filed 5 September 2018. -- 3 of 5 -- 4 Consideration [13] Section 136 of the QCAT Act provides that the provisions of the Act in relation to reopening apply to a proceeding that has been ‘heard and decided’ by the tribunal. A ‘hearing’ of a proceeding includes a compulsory conference if the person presiding over the conference decides the proceeding under s 72(1)(b).14 Other than in that circumstance, the reference to “hearing” or a matter being “heard” in the reopening provisions is not extended.15 [14] In Ramke Constructions Pty Ltd v Queensland Building Services Authority the tribunal held: In my opinion, for a proceeding to have been heard and decided by the tribunal it is necessary (unless the parties are agreed as to the order the Tribunal should make) for there to be a hearing of the proceeding rather than a hearing of some other matter connected with it. Usually in a hearing of the proceeding, the merits of the proceeding would be considered and assessed by the Tribunal, although this might not happen for example if the applicant does not appear and the Tribunal is satisfied that the application is no longer being pursued. But when a proceeding is dismissed or struck out for noncompliance nothing of this nature happens. Instead, all that is considered is whether it is just to dismiss or strike out for the non-compliance in all the circumstances of the case. On such a dismissal or strike out the proceeding is not heard, nor is a decision made as to the success or failure of the proceeding whether on its merits or otherwise. Therefore the proceeding is not “heard and decided” and the reopening regime does not apply to the decision to dismiss or strike out.16 [15] I respectfully agree with the reasoning in Ramke Constructions which has direct application in the present circumstances. In this case, the proceeding was not ‘heard and decided by the tribunal’. Rather, the parties entered into an agreement for the certain works to be performed in relation to the trees. The agreement provided that, upon both parties executing the agreement, the parties consented to an order dismissing the application for a tree dispute.17 [16] The decision of the tribunal dismissing the application for a tree dispute was made in accordance with the agreement entered into between the parties. As the matter was never ‘heard and decided’ by the tribunal, the reopening provisions in the QCAT Act are not engaged. [17] Nor can the applicant avail herself of s 133 of the QCAT Act. Where it is not possible for the tribunal’s final decision to be complied with or there are problems with interpreting, implementing or enforcing the tribunal’s final decision in a proceeding, a party to the proceeding may apply to the tribunal for a renewal of the final decision.18 [18] The final decision in this case was the dismissal of the application for a tree dispute. It cannot be suggested that it is not possible for the decision to be complied with nor is there any problem interpreting, implementing or enforcing the decision. The 14 QCAT Act, s 137. 15 Bielby v Beilby & McGrath [2010] QCAT 649. 16 [2012] QCAT 417, [14]. 17 Agreement dated 27 April 2017, clause [12]. 18 QCAT Act, s 133. -- 4 of 5 -- 5 decision is clear and unequivocal. There is no ground upon which the decision may be renewed. [19] In light of the conclusions I have reached in relation to reopening the proceeding and renewing the final decision it is unnecessary for me to further address the applicant’s failure to file the application within the time stated in the QCAT rules. Conclusion [20] The parties entered into an agreement for tree works to be carried out. Enforcement of the agreement is a matter for the applicant however any enforcement action must be pursued somewhere other than in the Tribunal. [21] The application for reopening is dismissed. -- 5 of 5 --