Bailey v Sullivan [2017] QCATA 86

CITATION: Bailey v Sullivan & Anor [2017] QCATA 86 PARTIES: Albert Frederick Bailey (Appellant) v Kerry Sullivan Kathleen Mary Sullivan (Respondent) APPLICATION NUMBER: APL260-16 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM Member Hughes DELIVERED ON: 4 August 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF TRIBUNAL BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – ADMISSION OF EVIDENCE – where appeal is not and should not be attempt to reargue case – where appellant had opportunity to file material at hearing – where new evidence not sworn – where no substantial impact on case APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF TRIBUNAL BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – ADMISSION OF EVIDENCE – where engineering report did not comply with Practice Direction – where Tribunal gave opportunity for engineer to give evidence at hearing – where engineer not available – where Tribunal correctly noted that accepting engineer evidence without being orally tested would have -- 1 of 10 -- 2 denied respondents procedural fairness – where appeal is not and should not be attempt to reargue case – where no error by Tribunal APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF TRIBUNAL BELOW – PARTICULAR CASES – where legislature conferred broad discretion – where evidence capable of supporting Tribunal’s conclusions APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – where expert report and attendance costs are not rectification costs but costs of proceeding – where no error or substantial injustice Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 66(2), s 72, s 73(g) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102, s 143(3) Bailey v Sullivan [2016] QCAT 226 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 Cachia v Grech [2009] NSWCA 232 Chambers v Jobling (1986) 7 NSWLR 1 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Dearman v Dearman (1908) 7 CLR 549; [1908] HCA 84 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 House v The King (1936) 55 CLR 499; [1936] HCA 40 Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 QdR 577 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152 QUYPD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412 APPEARANCES: -- 2 of 10 -- 3 This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION Senior Member Stilgoe [1] In this appeal, the Appeal Tribunal comprised Member Hughes and me. I have had the benefit of reading Member Hughes’ reasons in draft. I agree with his reasons, his conclusions and the order he proposes. Member Hughes What is this appeal about? [2] Albert Frederick Bailey wants his neighbours Kerry Sullivan and Kathleen Mary Sullivan to remove two trees on their property that have damaged the boundary fence. [3] Following a hearing of the dispute, instead of ordering the Sullivans to remove the trees, the Tribunal ordered them to fix and replace the damaged parts of the fence and to maintain both trees.1 The Tribunal also ordered the Sullivans to pay for all repairs and maintenance.2 [4] Mr Bailey wants to appeal that decision. [5] Because this is an appeal on questions of fact, leave is required.3 In determining whether to grant leave, the Appeal Tribunal will consider established principles including whether there is a reasonably arguable case of error in the primary decision,4 whether there is a reasonable prospect that the appellant will obtain substantive relief,5 whether leave is needed to correct a substantial injustice caused by some error,6 and whether there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.7 Preliminary matters [6] Mr Bailey devoted substantial time and energy to various requests. Because these were important to him, I will address them here for completeness. Is potential non-compliance with orders a ground of appeal? 1 Bailey v Sullivan [2016] QCAT 226. 2 Ibid. 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 143(3). 4 QUYPD Pty Ltd v Marvass Pty Ltd [2009] 1 QdR 41. 5 Cachia v Grech [2009] NSWCA 232, 2. 6 QUYPD Pty Ltd v Marvass Pty Ltd [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, 577, 580. -- 3 of 10 -- 4 [7] Mr Bailey submitted that the Tribunal’s orders do not stipulate a time frame for compliance and requested that the Tribunal “revise” its orders. He queried who will repair the gate and move the posts for the cheapest price and attached a quote from Mayfair Constructions Qld Pty Ltd dated 13 January 2016. [8] The Appeal Tribunal does not have jurisdiction to amend the orders unless a ground of appeal is established. Unfortunately for Mr Bailey, this is not a ground of appeal but may raise an issue about implementing or enforcing the Tribunal’s decision. A party to a proceeding may apply to the Tribunal to renew a decision in those circumstances. [9] The Appeal Tribunal must therefore refuse Mr Bailey’s request to revise the orders to include a timeframe and contractor and dismiss this as a ground of appeal. Is the use of a party’s title a ground of appeal? [10] Mr Bailey submitted that the reference by the Tribunal to Kerry Sullivan as “Dr Sullivan” instead of “Mr Sullivan” was “disconcerting and offensive” and should not have been included. [11] The Appeal Tribunal notes that Mr Bailey referred to Kerry Sullivan as “Dr Kerry Sullivan” in his original application filed with the Tribunal.8 It was not disputed that Dr Sullivan is a qualified medical practitioner.9 [12] This is not a ground of appeal as it does not raise any error of fact or law. [13] This ground of appeal is dismissed. Can the orders be amended to extend to further trees? [14] Mr Bailey submitted that the Orders need to be “modified” to include all of the Sullivans’ offending trees as it will mean less work for him. [15] This is not a ground of appeal as it does not raise any error of fact or law. [16] Mr Bailey’s original application referred to one tree. By the time of the arborist’s inspection, Mr Bailey identified a second tree. The tree assessor’s report refers to two trees.10 The hearing proceeded on the basis of two trees. Any further trees would need to be the subject of a separate application. [17] This ground of appeal is dismissed. Can Mr Bailey rely upon new evidence to support his appeal? 8 Application for a tree dispute filed 14 May 2015, 2, Part A Respondent’s Details. 9 Transcript page 1-31, lines 31 – 33; page 1-100, lines 45; and page 1-101, line 1. 10 Tree Assessment Report of Anthony Cockram dated 18 October 2015. -- 4 of 10 -- 5 [18] Mr Bailey attached photographs dated 17 July 2016, 31 July 2016, 22 September 2016 and two undated photographs to support his appeal. These photographs are fresh evidence. [19] The Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce fresh evidence must satisfy three tests. Could the parties have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?11 [20] Mr Bailey could have taken these photographs before the hearing for tendering at the hearing. He has not explained why he did not do this. Moreover, they would not have an important impact on the result of the case as they do not differ substantially from the photographs in the Tree Assessor’s report. [21] Mr Bailey also filed these documents:  “Arborist’s Initial Statement” and “Questions To Arborist” with handwritten answers;  Letter “Kerry” to “Dear Albert” dated 7 December 2015;  Letter David Williams to Paul Scholes dated 5 February 2014;  Letter Kerry Sullivan to Bill dated 15 November 2011;  Department of Justice and Attorney-General Fact Sheet entitled ‘General Changes for trees’;  Document with handwritten notation “Part of the Amended Version”;  Document with handwritten notation “This is from evidence by Mr K Sullivan from my first complaint a few years back”;  Letter “Kerry” to “Dear Albert” dated 26 November 2015; and  Document with handwritten notation “This is evidence issued by Mr and Mrs Sullivan” dated 6 September 2012” (seven pages). [22] An application for leave to appeal is not, and should not be an attempt to reargue a party’s case at the initial hearing.12 Mr Bailey had an opportunity to file this material at the original hearing. None of these documents is attached to any sworn statements. Moreover, they do not have any substantial impact on the case. 11 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408. 12 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39. -- 5 of 10 -- 6 [23] This evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the Tribunal. Did the Tribunal err in not attaching weight to the engineering report? [24] Mr Bailey attached an “Engineering Inspection Report”13 prepared by Brian Scholes to support his appeal. [25] The Tribunal gave Mr Bailey an opportunity to file a statement by Mr Scholes attaching a report that complies with Practice Direction 4 of 2009 by 19 May 2016,14 extended to 1 June 201615 - before the hearing on 7 June 2016. Mr Bailey did not file a statement from Mr Scholes complying with the Practice Direction.16 [26] Despite this, the Tribunal still gave Mr Bailey an opportunity for Mr Scholes to give evidence at the original hearing.17 Mr Bailey said Mr Scholes was not available.18 The Tribunal correctly noted that accepting Mr Scholes’ evidence without being orally tested would have denied the Sullivans procedural fairness.19 Mr Bailey accepted this at the time: MEMBER: … importantly, we still get back to the fact that Mr Scholes is not here. MR BAILEY: Well, I agree with that. MEMBER: So it doesn’t matter that he’s signed the report, he has to actually --- MR BAILEY: I agree. Okay. MEMBER: --- be here to speak to it. MR BAILEY: Yep. I accept that. MEMBER: So what are we going to do about that? MR BAILEY: Well, I can’t do anything because he didn’t want to come. You know, or I mean, his wife told him he’s not to come so, you know, he’s not coming and that’s it.20 [27] Mr Bailey then informed the Tribunal that he wished to proceed – without engineering evidence.21 [28] As I have already commented, an application for leave to appeal is not, and should not be an attempt to reargue a party’s case at the initial 13 Report of BPS Engineering Pty Ltd dated 19 March 2016. 14 Directions dated 5 May 2016, paragraph 1. 15 Directions dated 1 June 2016, paragraph 1. 16 Transcript page 1-24, lines 5 – 12, and page 1-101, lines 24 – 44. 17 Transcript pages 1-24 to 1-30. 18 Transcript page 1-24, line 16, and page 1-29, lines 33 – 36. 19 Transcript pages 1-24 to 1-25. 20 Transcript page 1-29, lines 34 – 46, page 1-30, lines 1 – 3. 21 Transcript page 1-31, lines 5 – 10 and 41 – 44. -- 6 of 10 -- 7 hearing.22 The Appeal Tribunal notes that Mr Scholes himself is a neighbour of Mr Bailey and the Sullivans.23 He is not independent. The Tribunal did not err in not attaching weight to Mr Scholes’ report and the application for leave to appeal will proceed on the same basis. [29] This ground of appeal is dismissed. Did the Tribunal err in not ordering removal of Trees #1 and #2? [30] Mr Bailey disputed the Tribunal’s finding that Trees #1 and #2 provide shade and privacy and submitted that the trees will continue to damage his property. [31] Mr Bailey’s evidence about damage was already put before the Tribunal at the hearing and the Tribunal made findings accordingly.24 [32] The Tribunal then went on to make findings about shade, privacy and amenity: The Tribunal is satisfied that Tree #1 and Tree #2 do provide shade and privacy to Dr and Mrs Sullivan’s property, and that they contribute to the amenity of Dr and Mrs Sullivan’s land including a protection to other elements of their garden from the sun. It is for this reason that the Tribunal does not propose to order the removal of these trees, based on the current evidence.25 [33] The Tribunal’s findings about shade, privacy and amenity are findings of fact. The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.26 An appellate tribunal may only interfere if the conclusion is ‘contrary to compelling inferences’ in the case.27 [34] The Tree Assessor’s report shows that Tree #1 and Tree #2 are part of a wall of trees adjoining the properties that provides shading and privacy. The report relevantly states: [Tree #1] contributes to the landscape amenity, shade and privacy screening for the Tree Keeper’s property and dwelling. … [Tree #2] also contributes to the landscape amenity and privacy screening for the tree keeper’s property and dwelling.28 22 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39. 23 Letter A F Bailey to QCAT dated 29 September 2016. 24 Bailey v Sullivan [2016] QCAT 226, [39]. 25 Ibid, [41]. 26 Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118,125- 126. 27 Chambers v Jobling (1986) 7 NSWLR 1, 10. 28 Tree Assessment Report of Anthony Cockram dated 18 October 2015, 12. -- 7 of 10 -- 8 [35] The Tree Assessor is an expert independently appointed by the Tribunal. The Tribunal’s findings about shade, privacy and amenity were reasonably open based on that evidence and the Appeal Tribunal can find no reason to depart from those findings. [36] The Tribunal was then required to consider those findings; that is, the trees’ contribution to the amenity of the land including privacy and protection from sun, when making its orders.29 [37] The Appeal Tribunal will not interfere with the exercise of a discretion unless it can be shown that the Tribunal acted on a wrong principle, or made mistakes of fact affecting the decision, or was influenced by irrelevant matters.30 It must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion.31 [38] The Appeal Tribunal notes that the legislation specifically provides that a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.32 [39] Having found that the trees contribute to the amenity of the land, and having considered the report of the Tree Assessor recommending an alternative to removal to resolve the issue, the orders to not remove the trees were not only open, but entirely consistent with the legislation and the evidence. [40] The Appeal Tribunal finds no basis to depart from the Tribunal’s orders about the trees. [41] This ground of appeal is dismissed. Did the Tribunal err in ordering replacement of brick fencing with Colorbond? [42] Mr Bailey objected to the order requiring the Sullivans to demolish the dividing brick fence and replace it with a Colorbond fence because it will devalue his property and, he said, it should be the same structure as before. [43] The Appeal Tribunal notes the relevant extract from the Tribunal’s reasons: The section of the brick fence which has been damaged, as identified in Mr Cockram’s report, must be demolished, and replaced with colorbond fencing to match the existing colorbond fencing at the start of the driveway. This will enable the new colourbond panels to sit above the ground, and not be affected by the roots of Tree #1.33 29 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 73(g). 30 House v The King (1936) 55 CLR 499, 504. 31 Lovell v Lovell (1950) 81 CLR 513. 32 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 72. 33 Bailey v Sullivan [2016] QCAT 226, [48]. -- 8 of 10 -- 9 [44] The Tribunal may make “the orders it considers appropriate in relation to a tree affecting the neighbour’s land”34 including to “remedy, restrain or prevent serious damage to the neighbour’s land or property on the neighbour’s land”.35 [45] The use of the word “appropriate” indicates the Legislature intended to confer a broad discretion on the Tribunal to make orders in relation to trees. Living trees are not to be removed or destroyed unless the issue cannot otherwise be satisfactorily resolved.36 [46] The Tribunal had earlier decided not to order the removal of the trees because they provided shade and privacy and contributed to the amenity of the Sullivans’ property.37 Those findings were open on the evidence and in particular, the Tree Assessor’s report.38 [47] Having then decided not to order removal of the trees, the Tribunal’s orders represent a compromise to retain the trees while preventing further root damage to the replacement fence. The evidence was that part of the dividing fence already included Colorbond fencing. [48] Mr Bailey himself supported replacing the brick fence with Colorbond: MR BAILEY: The brick fence, yes. So that should be ripped down and replaced, in my view. I think Mr Devers said – and I think he’s absolutely right – is that it would be cheaper to actually replace it with a Colorbond. So, you know, that to me makes sense. It would be much more efficient if it were replaced with a Colorbond fence. If you look at the arborer’s (sic) report.39 [49] Given Mr Bailey’s own evidence and the evidence of root damage to the existing brick fence, an order to replace it with material to sit above the ground to not be affected by the roots in future and to match other parts of the fence was entirely “appropriate”. [50] The Tribunal did not make any error or fact or law. [51] This ground of appeal is dismissed. Did the Tribunal err in not ordering the Sullivans pay Mr Bailey the tree assessor’s costs? [52] Mr Bailey submitted that the rectification costs that the Tribunal ordered the Sullivans to pay should extend to his contribution to the Tree 34 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 66(2). 35 Ibid, s 66(2)(i). 36 Ibid, s 72. 37 Bailey v Sullivan [2016] QCAT 226, [41]. 38 Tree Assessment Report of Anthony Cockram dated 18 October 2015, 12. 39 Transcript page 1-23, lines 5 – 9. -- 9 of 10 -- 10 Assessor’s costs of $690.00 to prepare his report40 and attend the hearing, because they were found to be negligent. [53] This is not a ground of appeal as it does not raise any error of fact or law. Expert report and attendance costs are not rectification costs but costs of the proceeding. A party seeking costs would need to file an application for costs. [54] In filing any application for costs, the parties should be aware that costs in the Tribunal are not awarded as a matter of course. Each party must pay their own costs,41 unless the interests of justice require the Tribunal to order a party to pay the costs of another party.42 There is therefore a strong indicator against awarding costs: Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra- indication against costs orders in s. 100.43 [55] The Tribunal did not err in not including the Tree Assessor’s costs in the rectification costs. [56] This ground of appeal is dismissed. Should the Appeal Tribunal grant leave to appeal? [57] Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence.44 A clear purpose of the requirement for leave, before a party has the right to appeal, is to prevent any attempt to simply conduct a retrial on the merits of the case.45 [58] Nothing in the material or the transcript persuades the Appeal Tribunal that the findings were not open to the Tribunal. The Tribunal correctly applied the legislation and exercised its discretion in accordance with established principles. The Tribunal’s decision was entirely appropriate and the Appeal Tribunal can find no reason to come to a different view. [59] There is no question of general importance for the Appeal Tribunal to determine. There is no reasonably arguable case that the Tribunal was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused. 40 The Tribunal ordered each party contribute $500.00 towards the costs of the tree assessor on 6 August 2015 – see Directions dated 6 August 2015, paragraph 2. 41 QCAT Act, s 100. 42 Ibid, s 102. 43 Ralacom Pty Ltd v. Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412, [29]. 44 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152, [12] (Wilson J). 45 Ibid. -- 10 of 10 --