Evans v McNamara [2013] QDC 2

DISTRICT COURT OF QUEENSLAND CITATION: Peter Evans and Karen Evans v Leanne McNamara [2013] QDC 2 PARTIES: PETER EVANS AND KAREN EVANS (Applicants) AND LEANNE MCNAMARA (Respondent) FILE NO/S: 4377/2012 PROCEEDING: Application DELIVERED ON: 14 January 2013 JUDGE: Samios DCJ ORDER: 1. Order as per the draft. SOLICITORS: Conaradie EH for Applicant Respondent represented herself.. [1] The matter before me today demonstrates how unfortunate it can be for members of the community to become involved in a dispute, particularly when it ends up before the Courts. That is because not only are costs issues relevant but the strain and stress of the litigation can have an adverse effect on parties to the dispute. [2] Judge Noud made orders on behalf of the applicants restraining the respondent from removing, damaging or otherwise interfering with vegetation growing on from a lot situated at 127 Fleming Road, Hemmant. The injunction was until 4.30 p.m. today, the 14th January 2013. The application came back on before me today. The applicant's represented by Mr Conradie and the respondent appeared representing herself. [3] The dispute has had an unfortunate passage through the Courts and including the Queensland Civil and Administrative Tribunal. Not doing justice to defining the dispute briefly, if I may, it is alleged by the applicants that the respondent is returning to the applicants' property, which adjoins the respondent's property, -- 1 of 4 -- debris which belongs to the respondent, including dog and horse faeces. [4] The respondent denies she is doing anything of the kind. She says she is merely returning to the applicants' property the vegetation that is overhanging her property and which she has every legal right to return to the applicants' property. [5] The allegation that the debris has included dog faeces and horse faeces, the respondent says is something that has recently been alleged. Nevertheless, it is supported by evidence and, although denied by the respondent, remains an issue that would need to be resolved by a Judge hearing a case when all the witnesses gave evidence and any relevant documents were tendered. That cannot be done on a hearing before me today. [6] However, the unfortunate passage that I referred to earlier is that it came before Judge Everson sitting in the District Court. He considered that he did not have jurisdiction. He suggested the matter be issued in the Planning and Environment Court. As he was a Judge of that Court, he then issued injunctions in that Court. [7] The matter then came before Judge Searles sitting in the Planning and Environment Court. He considered that the Planning and Environment Court did not have jurisdiction to hear the application and he vacated Judge Everson's injunction and adjourned the matter to the Registry in order for the parties to make submissions as to grounds to have the application transferred to an appropriate Court. [8] The applicants have not applied to Judge Searles for any order transferring the matter to this Court. I infer they elected to bring the matter before Judge Noud, having considered it unnecessary to make any further application to Judge Searles. However, Mr Conradie tells me today, and I accept this, that he will notify Judge Searles' Associate of the steps taken by the applicants. [9] I mention QCAT. The dispute has been before QCAT and a mediation agreement entered into but it is said by the respondent that has been not complied with. The dispute, as I have said, seems to have now broadened to other issues that were not -- 2 of 4 -- before QCAT and not resolved by the mediation agreement. [10] I have come to the view that on balance of convenience the status quo should be preserved in that the respondent should not be at liberty to return to the applicants any material while this dispute remains unresolved. The timetable provided for in the draft orders I propose to make will allow for the defining of the issues between the parties and notwithstanding the respondent, understandably, does not want to be involved in the processes that are involved in litigation, the steps I propose will allow her to make a counterclaim. [11] It appears to me extending the injunction until further order of the Court will not only preserve the status quo between the parties, it will hopefully allow the peace to be kept between these neighbours until the matter's resolved. Of course, when resolved, the peace should also be kept because there are sanctions for those who do not keep the peace. [12] Now, it seems to me the respondent may also benefit by these orders in being able to maintain an allegation, amongst any other allegations she's advised, that the applicants have planted trees in breach of their lawful obligations. There is a dispute about the effect of the tree preservation order. Hopefully, that will be defined in the documents to be exchanged between the parties and by those documents I mean the claim and statement of claim and the defence and counterclaim, if any, and the reply. [13] The draft orders also intend there to be a mediation. The respondent has told me there has already been one but, as I have said, it does not appear to me to have extended to the issues that are alive still between the parties. I intend to reserve the question of costs. That can be resolved presumably when the dispute is resolved by the Court. That is, if the applicants, for example, were to fail ultimately getting relief then the argument would be that the respondent should have her costs of the proceedings before me and before Judge Noud. [14] It may be that there are other considerations in relation to costs. I do not know what orders were actually made as to costs before Judge Searles. Costs were -- 3 of 4 -- reserved by Judge Everson. Applications may have to be made to the Planning and Environment Court about those costs at a later date. Therefore, there will be an order as per the draft initialled by me and left with the papers. [15] Is there anything further, Mr Conradie or Ms McNamara? The following exchange took place between the Applicant, Respondent and His Honour. MR CONRADIE: No, your Honour, thank you. HIS HONOUR: Ms McNamara, anything else? RESPONDENT: No, thank you, your Honour. HIS HONOUR: Yes, thank you. -- 4 of 4 --