Burgess v Hall [2014] QCAT 360

CITATION: Burgess v Hall [2014] QCAT 360 PARTIES: Sarah Burgess (Applicant) v Diana Hall (Respondent) APPLICATION NUMBER: NDR196-13 MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Deane DELIVERED ON: 28 July 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for miscellaneous matters filed 30 May 2014 is dismissed. 2. The time for compliance by Diana Hall with direction 2 of the Directions dated 8 May 2014 is extended until 4:00pm on 15 August 2014. 3. Diana Hall must give to Sarah Burgess one (1) copy of her submissions filed on 5 March 2014, by 4:00pm on 15 August 2014. 4. Sarah Burgess must give to Diana Hall one (1) copy of any documents filed by her in these proceedings upon which she intends to rely other than: a) the application filed 13 September 2013; b) affidavit of service received by the Tribunal on 1 October 2013; c) report prepared by TPZ Project Arborists, by 4:00pm 15 August 2014. 5. No party will be entitled to rely upon any evidence at the hearing that has not been filed in the Tribunal and a copy provided to the other party without justifying to the Tribunal the need to do so. -- 1 of 4 -- 2 6. The application remains listed for Hearing in Southport at 9:30am on 12 September 2014. CATCHWORDS: TREE DISPUTE – APPLICATION TO STRIKE OUT – whether failure to comply with directions entitles dismissal – no disadvantage shown Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] Ms Hall has an ironbark tree in her yard situated near the common boundary with Ms Burgess’ property. Ms Burgess applied for various orders in relation to the tree including orders to remove the tree and roots or prune the branches and roots of the tree at Ms Hall’s cost. [2] Ms Hall has filed a Miscellaneous Matters application seeking orders to dismiss the proceeding on the grounds set out in a letter to the Tribunal dated 29 May 2014. Those grounds are that: a) Ms Burgess’ application is ‘unfactual, untrue and extremely misleading’; b) Ms Hall has not received a response from the Tribunal in relation to her submissions filed on 5 March 2014 or her email to the registry on 7 May 2014; c) Ms Hall received the Tribunal’s Amended directions dated 6 March 2014 on or about 16 May 2014 being a date after the date directed for her compliance with a direction to file an arborist’s report; d) Ms Burgess has not complied with the Tribunal’s directions dated 6 March 2014 to give to Ms Hall a copy of an arborist’s report by 4.00pm on 3 April 20141 nor complied with the direction to give Ms Hall 7 days notice in writing for Ms Hall to allow access to her property to enable Ms Burgess’ arborist to inspect the tree;2 e) Any report is the result of trespass to her land; f) Any report is unreliable; g) Ms Burgess’ application has not proceeded and ‘is a waste of time, energy and resources’. 1 Direction no 3. 2 Direction no 4. -- 2 of 4 -- 3 [3] Ms Hall also seeks an order that Ms Burgess produce ‘all documents filed with QCAT including documents filed 30 March 2014 by Sara Burgess’ on the grounds that Ms Hall contends that the only document received is the application filed 13 September 2013. [4] Ms Burgess submits that the matter should be permitted to proceed to a hearing set down for 12 September 2014 and that documents have been provided to Ms Hall at least some of which have been sent by registered mail which have been ‘opened and then taped up and returned to sender stating no person at the address by that name’. [5] I am not satisfied that there are sufficient grounds to dismiss the application. [6] It is a very serious matter for the Tribunal to dismiss an application for determination of a dispute without allowing a hearing of the application to take place. Dismissal without a hearing taking place would deprive Ms Burgess of the opportunity to have an independent body make a determination about her claims. A case must be clearly made out to support a dismissal prior to a final hearing. [7] Some of the grounds relied upon indicate that Ms Hall is not familiar with the processes of this Tribunal. Many of the matters raised are matters that will ordinarily be considered by the Tribunal at the final hearing: a) The truth or otherwise of the matters set out in the application. b) The weight to be given to the arborist’s report. On its face it is not clear whether the report was prepared by a visit to Ms Burgess’ property or whether the arborist accessed Ms Hall’s property. c) The submissions filed by Ms Hall on 5 March 2014. [8] In apparent response to Ms Hall’s email correspondence with the registry of 7 May 2014 the Tribunal has provided to Ms Hall copies of the following under cover of a letter dated 10 June 2014: a) Affidavit of service received 1 October 2013; b) report prepared by TPZ Project Arborists received 16 May 2014; c) Decision issued by the Tribunal on 5 June 2014; d) Directions issued by the Tribunal on 10 June 2014; e) Notice of Hearing. [9] The Tribunal may dismiss a proceeding where an applicant causes unnecessary disadvantage to another party by not complying with a Tribunal order without reasonable excuse.3 The Tribunal must consider the extent to which the party causing disadvantage is familiar with its practices; the capacity of the party causing disadvantage to act on the 3 QCAT Act s 48(1)(a) and s 48(2)(a). -- 3 of 4 -- 4 tribunal’s orders and directions and whether the party is acting deliberately.4 [10] The evidence about non-compliance with the Tribunal’s directions is unclear. In compliance with the direction the Tribunal received an emailed copy of the arborist’s report on 31 March 2014. That email also informed the Tribunal that a copy had been provided to Ms Hall. [11] On 7 May 2014 Ms Hall indicated to the Tribunal that she had not received the report. [12] On 8 May 2014 Ms Burgess informed the Tribunal that she had deposited a copy of the report under Ms Hall’s door. It is unclear whether this was done on or before 31 March 2014. On 30 May 2014 Ms Burgess informed the Tribunal that a further copy of the report had been sent to Ms Hall. [13] Even if I accept that there was noncompliance with the direction because the report was provided to Ms Hall later than the date the direction stipulated then it is not clear what disadvantage is claimed to have been suffered by Ms Hall which could not be remedied by extending the time for Ms Hall to file and serve any arborist report she wishes to rely upon. [14] From a review of the file it appears that Ms Hall’s submissions of 5 March 2014 have not been provided to Ms Burgess. A party to a proceeding is entitled to know the case being made against them. It is appropriate to direct Ms Hall to provide a copy to Ms Burgess and failing which Ms Hall ought not be entitled to rely upon the submissions at the hearing. [15] Similarly it is appropriate to ensure that any documents Ms Burgess intends to rely upon are provided to Ms Hall. 4 Ibid s 48(3). -- 4 of 4 --