Darragh v Davis [2017] QCAT 181

CITATION: Darragh v Davis [2017] QCAT 181 PARTIES: Peter Darragh (Applicant) v Trent Robert Davis (Respondent) APPLICATION NUMBER: REO025-16 MATTER TYPE: Other civil dispute matters HEARING DATE: 7 February 2017 HEARD AT: Brisbane DECISION OF: Senior Member Brown DELIVERED ON: 29 May 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The application to reopen the proceeding is refused. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER – where application to reopen – where matter dismissed by consent – where matter not heard or determined by the tribunal Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 48, s 136, s 138(2)(a), s 139(2), s 139(4)(a), s 139(4)(b), s 140(1), s 140(4), Schedule 3 Ramke Constructions Pty Ltd v Queensland Building Services Authority [2012] QCAT 417 APPEARANCES: APPLICANT: Peter Darragh represented himself RESPONDENT: Trent Robert Davis represented himself -- 1 of 6 -- 2 REASONS FOR DECISION [1] Mr Darragh and Mr Davis are neighbours. Growing on Mr Davis’ land are a number of trees which Mr Darragh says affect his land. Mr Darragh filed an application for a tree dispute in the Tribunal. The proceeding was listed for hearing in the Tribunal on 14 October 2016. After the hearing commenced Mr Darragh and Mr Davis reached an agreement to resolve the dispute. The Tribunal ordered, by consent, that the application for a tree dispute be dismissed.1 [2] Mr Darragh says that he agreed to resolve the matter on the basis of certain information provided by Mr Davis which Mr Darragh says he later discovered to be false. Mr Darragh applies to reopen the proceeding. Reopening a proceeding [3] A party to a proceeding may apply to the Tribunal for the proceeding to be reopened if the party considers a reopening ground exists for the party.2 [4] An application for reopening must state the reopening ground relied upon.3 Each party must be given the opportunity to make written submissions about the application.4 [5] The Tribunal may only grant an application to reopen a proceeding if it considers a reopening ground exists for the applicant5 and the ground could be effectively or conveniently dealt with by reopening the proceeding whether or not an appeal relating to the ground may also be started.6 [6] A reopening ground is defined:7 (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. [7] If the Tribunal decides that a proceeding should be reopened the Tribunal must decide the issues in the proceeding that must be heard and decided again.8 The Tribunal may confirm or amend the Tribunal’s previous final 1 Decision, 14 October 2016, NDR129-15. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 138(1). 3 Ibid, s 138(2)(a). 4 Ibid, s 139(2). 5 Ibid, s 139(4)(a). 6 Ibid, s 139(4)(b). 7 Ibid, Schedule 3. 8 QCAT Act, s 140(1). -- 2 of 6 -- 3 decision or set aside the previous final decision and substitute a new decision.9 Was the proceeding heard and decided? [8] It is not controversial that the hearing of the proceeding commenced. After the commencement of the hearing, the presiding Member adjourned to allow the parties the opportunity to discuss the possibility of resolving the dispute. [9] When the hearing resumed, the following exchange took place: Tribunal: We will resume the hearing now. The matter was stood down to allow the parties to have some discussions with the assistance of Mr Inman. Mr Darragh, were those… did anything come from those discussions? Mr Darragh: Yes we did have a good discussion and the wise and best thing to do in the current situation is wait for council to come and inspect Trent’s property and see if, what comes of that. Tribunal: In terms of this current application are you both agreeable to discontinuing these proceedings? So I would dismiss the application? Mr Darragh: For the moment yes. Tribunal: Well not for the moment, once I dismiss it that is the end of this application. Mr Darragh: Well at the end of the day it’s really down to council. Tribunal: Right Mr Darragh: Is that right? Tribunal: Well in terms of… Mr Darragh: It is council problem. Tribunal: Right Mr Darragh: Well is that right? Mr Davis: Yes, yes. Mr Darragh: It is a council problem why we are here. Tribunal: I may not be able to do much about that. At the end of the day. Mr Darragh: No, as we said it is the Sunshine Coast Council, formerly the Maroochy Shire Council, their reputation is well known. Tribunal: Right. Well as a consequence of that, that there is no point in proceeding with it, you are both agreeable to discontinuing this proceeding? And you’ll pursue it through the council? Mr Darragh: Yes. Tribunal: Alright Mr Darragh: Trent’s applied, there is a guy coming out. Mr Davis: Yep. 9 Ibid, s 140(4). -- 3 of 6 -- 4 Mr Darragh: He can’t do any more than that. Nobody can do any more than that. Tribunal: All right. Well the only order I’ll make then is that by consent the application is dismissed. That will then conclude these proceedings in the Tribunal. If any time in the future you would like to start a new application that would be a fresh application. Mr Darragh: Fresh application yep. Tribunal: The orders that have already been made in relation to the payment for Mr Inman’s time at the Tribunal, you will still have to each comply with those, you might need to follow up with the Registry about… on that payment Mr Darragh, they are saying they can’t find a record of the payment might just be taking time to work through the system. Mr Darragh: I do have a receipt. I thought I had it with me… but it’s not in here, I do have a receipt, cause I paid it down here last Friday. Tribunal: Oh if it was paid down here in Maroochydore, It might take a little while to come through then. Mr Darragh: Yeah I paid it last Friday at the… downstairs. I do have a receipt I thought I had it with me. Tribunal: Thankyou Mr Inman for coming along and thank you for your assistance you’ve obviously been able to help the parties to understand the situation. This would have been quite a complex legal issue. Mr Darragh: It is and as I said at the beginning of it, to my understanding it is a council problem and it’s got my buggered why I said I have got to take it up with you guys. Tribunal: Alright. I’ll let you decide further with the council, get the pressure on them. Thank you all for your assistance, I will make that order, that will come out to you in writing… by consent the application is dismissed and that concludes the proceedings. And thankyou Mr Inman for your assistance. [10] It is clear from the transcript that the parties reached an agreement in relation to the resolution of the dispute. It is also clear from the transcript that the parties consented to an order that the application for a tree dispute be dismissed. [11] For the reasons that follow, I find that the proceeding was not heard and decided by the Tribunal as required by s 136 of the QCAT Act. [12] What is meant by ‘heard and decided’ for the purposes of an application for reopening has been previously considered by the Tribunal. In Ramke Constructions Pty Ltd v Queensland Building Services Authority10 the Tribunal considered whether the hearing and determination of an application to dismiss a proceeding pursuant to s 48 of the QCAT Act constituted the matter having been heard and decided for the purposes of a reopening application. The Tribunal held: …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 10 [2012] QCAT 417. -- 4 of 6 -- 5 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 non- compliance 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.11 [13] I agree with this analysis and I would add the following: if a proceeding is dismissed by consent, there has been no consideration, assessment and determination of the merits of a proceeding. Section 136 of the QCAT Act requires a hearing and a decision. Both events must occur in order to enliven the reopening provisions of the QCAT Ac. [14] Consideration of what is a reopening ground supports this conclusion:12 the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not available when the proceeding was first heard and decided. [15] The reopening ground is clearly directed at circumstances in which the Tribunal has considered and made a decision based upon the evidence. The new evidence contemplated by the reopening ground definition is clearly a reference to evidence that an applicant says would have been relevant to the deliberations of the original decision maker before the matter was first decided. [16] There is no doubt that there has been a decision in the proceeding. The dismissal by consent of the application for a tree dispute is a final decision.13 There was however no hearing following which the Member considered the evidence, and deliberated, leading to the final decision. [17] Section 140 of the QCAT Act addresses the effect of a decision to reopen. If a decision is made to reopen a proceeding, there must be a fresh hearing on the merits.14 The Tribunal may confirm or amend the previous final decision or set aside the previous final decision and substitute a new decision.15 The reference in s 140 to a ‘fresh’ hearing on the merits clearly contemplates that there was a previous hearing on the merits leading to the original decision. There can be no hearing on the merits unless the parties, and the evidence relied upon by the parties, have been heard and a decision made on the merits. 11 Ramke Constructions Pty Ltd v Queensland Building Services Authority [2012] QCAT 417, 3 [14]. 12 QCAT Act, Schedule 3, definition of ‘reopening ground’. 13 Ibid, Schedule 3, definition of ‘decision’. 14 Ibid, s 140(1). 15 Ibid, s 140(4). -- 5 of 6 -- 6 Conclusion [18] The proceeding was dismissed by consent after the hearing commenced and before a decision was made on the merits. The proceeding was not heard and decided by the Tribunal. [19] The application to reopen the proceeding is refused. -- 6 of 6 --