Barnes v McKinlay - [2020] QCAT 185

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Barnes & Anor v McKinlay & Anor [2020] QCAT 185

PARTIES:

ROBIN BARNES

(first applicant)

AVRIL FALLAT
(second applicant)

v

IAN MCKINLAY

(first respondent)

MARY MCKINLAY

(second respondent)

APPLICATION NO/S:

RWL002-19

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

19 May 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Kent

ORDERS:

1.    The application for renewal is granted.

2.    The consent order of 6 December 2018 is varied to read that Ian McKinlay and Mary McKinlay will arrange the following works be performed by an appropriately qualified and insured arborist, to be selected as the lower of two (2) quotes; such quotes to be provided to Robin Barnes and Avril Fallat; and such arborist to have the minimum qualifications of Australian Qualifications Framework Level 3:

(a)     To trim and maintain the trees the subject of this dispute (i.e. the trees identified by number in Mr Inman’s report dated 26 September 2019 as numbers 3, 4, 5, 6, 8, 9, 10, 11, 13, 14, 15, 17, 18 and 20) to a maximum height of five (5) metres or to a height closest to five (5) metres that complies with the requirements of Australian Standard 4373 – 2007 Pruning of Amenity Trees;

(b)     All works will be carried out at the cost of Robin Barnes and Avril Fallat paying 50% of total cost and the applicants in RWL 001-19, Rowan Carr and Felicity Carr, the other 50% of the total cost;

(c)     The first trimming and maintenance of the trees is to occur within 90 days of the date of this decision; and

(d)     Any further trimming and maintenance required to achieve the maximum tree height of five (5) metres or to the height closest to five (5) metres that complies with the requirements of Australian Standard 4373 – 2007 Pruning of Amenity Trees will occur at such intervals as recommended by the arborist engaged under this order up until the date 12 months from the decision date.

3.    Ian McKinlay and Mary McKinlay will allow the arborist reasonable access to the property to perform the works upon Robin Barnes and Avril Fallat giving them 14 days written notice.

4.     All works are to comply with the requirements of the Australian Standard 4373 – 2007 Pruning of Amenity Trees.

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 – renewal – where problem in implementing or enforcing orders – where Tribunal can only make the same final decision or any other appropriate decision ‘when the proceeding was originally decided’

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 133, s 134, Schedule 3

Bielby v Beilby & McGrath [2010] QCAT 649
Tasmanian Seafoods Pty Ltd v Chief Executive, Department of Primary Industries & Fisheries [2010]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barnes v McKinlay

Details

AGLC: Barnes v McKinlay [2020] QCAT 185
Case: [2020] QCAT 185
Decision Date: 19 May 2020

CaseChat Overview and Summary

In Barnes v McKinlay, the Queensland Civil and Administrative Tribunal (QCAT) dealt with an application to renew and vary a consent order concerning the pruning of certain trees. The dispute originated from a consent order made on 6 December 2018, which required the respondents to arrange for the trimming and maintenance of specified trees to a height of five metres. The applicant sought to renew and vary this order to ensure its terms were more clearly defined and to address potential difficulties in complying with the original order.

The central legal issues revolved around the scope of QCAT’s authority to vary consent orders and the extent to which the Tribunal could refine the terms of the order to facilitate compliance and implementation without altering the essence of the parties' agreement. Specifically, the court had to determine whether the order could be modified to better align with the Australian Standard 4373 – 2007 for the Pruning of Amenity Trees, particularly where strict adherence to the specified height of five metres might be unfeasible.

QCAT held that the Tribunal's power to vary consent orders was constrained by the statutory framework, which permitted only the making of the same final decision or any other appropriate final decision that could have been made when the proceeding was originally decided. The court found that the proposed variations did not alter the fundamental agreement reached by the parties but rather clarified and facilitated compliance with the original consent order. Consequently, the Tribunal was empowered to amend the order to reflect the arborist’s report and ensure the trees were trimmed in accordance with the Australian Standard, thereby achieving the practical implementation of the consent order.

The court granted the application for renewal and varied the consent order to specify that the trees would be trimmed to a maximum height of five metres or to a height closest to five metres that complies with the requirements of Australian Standard 4373 – 2007. The variation also included provisions for cost-sharing between the parties, timelines for the works, and compliance with the relevant Australian Standard.

Orders

Orders of the court

1. The application for renewal is granted.

2. The consent order of 6 December 2018 is varied to read that Ian McKinlay and Mary McKinlay will arrange the following works be performed by an appropriately qualified and insured arborist, to be selected as the lower of two (2) quotes; such quotes to be provided to Robin Barnes and Avril Fallat; and such arborist to have the minimum qualifications of Australian Qualifications Framework Level 3:

(a) To trim and maintain the trees the subject of this dispute (i.e. the trees identified by number in Mr Inman’s report dated 26 September 2019 as numbers 3, 4, 5, 6, 8, 9, 10, 11, 13, 14, 15, 17, 18 and 20) to a maximum height of five (5) metres or to a height closest to five (5) metres that complies with the requirements of Australian Standard 4373 – 2007 Pruning of Amenity Trees;

(b) All works will be carried out at the cost of Robin Barnes and Avril Fallat paying 50% of total cost and the applicants in RWL 001-19, Rowan Carr and Felicity Carr, the other 50% of the total cost;

(d) Any further trimming and maintenance required to achieve the maximum tree height of five (5) metres or to the height closest to five (5) metres that complies with the requirements of Australian Standard 4373 – 2007 Pruning of Amenity Trees will occur at such intervals as recommended by the arborist engaged under this order up until the date 12 months from the decision date.

3. Ian McKinlay and Mary McKinlay will allow the arborist reasonable access to the property to perform the works upon Robin Barnes and Avril Fallat giving them 14 days written notice.

4. All works are to comply with the requirements of the Australian Standard 4373 – 2007 Pruning of Amenity Trees.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Again, in the words of Member Hughes from Wood v Kenyon[4]: Rather, the Tribunal is limited to making the same final decision or any appropriate final decision that it could have made when the proceeding was originally decided (my emphasis).[5] ‘Decision’ means an order made or direction given by the Tribunal.[6] ‘Final decision’ means the Tribunal’s decision that finally decides the matters the subject of the proceeding.[7][4][2020] QCAT 119 [15][16].[5]See Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 134(1).[6]Ibid, Schedule 3 (definition of ‘decision’).[7]Ibid, Schedule 3 (definition of ‘final decision’). In the current proceeding the application was decided by agreement and consent at a direction hearing of the tribunal on 6 December 2018. It was not decided on the merits and the final decision that was made at the directions hearing was a consent order. Therefore based on s 134(2) of the QCAT Act the Tribunal may only make the same decision it made when the proceeding was originally decided or any other appropriate final decision it could have made acting under this Act or an enabling Act when the proceeding was originally decided.Identification As outlined above, on the material available to the parties at the time of the consent orders being agreed to, the trees the subject of the dispute were readily identifiable. However, to aid the ease of compliance and implementation and for the sake of absolute clarity it is desirable to describe the trees in the terms used in the arborist’s report. This is not introducing new untested evidence into the proceedings, rather simply a method of moving the matter forward towards achieving the resolution the parties agreed to on 6 December 2018; implementing the orders. I am satisfied that the arborist’s report, ordered by Senior Member Brown, can properly be regarded in these proceedings for this purpose.First Issue: Height as Compliant with Standards The next issue is that there seems to be some difficulty in guaranteeing that some of the trees the subject of the orders can trimmed to exactly five metres. The parties’ second issue with compliance with the orders is the potential conflict between Order 1 for pruning (described as trimming and maintenance) to five metres and compliance with the Australian Standard 4373 – 2007 for the Pruning of Amenity Trees referred to in Consent Order 3. The two issues raised do not obscure the essence of what parties agreed to on 6 December 2018. The parties agreed to pruning of the trees described in the dispute and although this pruning was given a specific height of five metres, they also agreed to this being done to the relevant Australian Standard. It follows that if the Australian Standard 4373 – 2007 for the Pruning of Amenity Trees means that five metres cannot be guaranteed (for a particular tree or species) then a change of wording of the consent order to an approximation thereof that complies with the Standard does not in essence change what the parties have consented to. The kind of clarification outlined above would seem to answer any such difficulty.Costs of Implementation

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Barnes & Anor v McKinlay & Anor [2020] QCAT 185
PARTIES:	ROBIN BARNES (first applicant) AVRIL FALLAT (second applicant)
v
IAN MCKINLAY (first respondent) MARY MCKINLAY (second respondent)
APPLICATION NO/S:	RWL002-19
MATTER TYPE:	Other civil dispute matters
DELIVERED ON:	19 May 2020
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Kent
ORDERS:	1. The application for renewal is granted. 2. The consent order of 6 December 2018 is varied to read that Ian McKinlay and Mary McKinlay will arrange the following works be performed by an appropriately qualified and insured arborist, to be selected as the lower of two (2) quotes; such quotes to be provided to Robin Barnes and Avril Fallat; and such arborist to have the minimum qualifications of Australian Qualifications Framework Level 3: (a) To trim and maintain the trees the subject of this dispute (i.e. the trees identified by number in Mr Inman’s report dated 26 September 2019 as numbers 3, 4, 5, 6, 8, 9, 10, 11, 13, 14, 15, 17, 18 and 20) to a maximum height of five (5) metres or to a height closest to five (5) metres that complies with the requirements of Australian Standard 4373 – 2007 Pruning of Amenity Trees; (b) All works will be carried out at the cost of Robin Barnes and Avril Fallat paying 50% of total cost and the applicants in RWL 001-19, Rowan Carr and Felicity Carr, the other 50% of the total cost; (c) The first trimming and maintenance of the trees is to occur within 90 days of the date of this decision; and (d) Any further trimming and maintenance required to achieve the maximum tree height of five (5) metres or to the height closest to five (5) metres that complies with the requirements of Australian Standard 4373 – 2007 Pruning of Amenity Trees will occur at such intervals as recommended by the arborist engaged under this order up until the date 12 months from the decision date. 3. Ian McKinlay and Mary McKinlay will allow the arborist reasonable access to the property to perform the works upon Robin Barnes and Avril Fallat giving them 14 days written notice. *4. All works are to comply with the requirements of the Australian Standard 4373 – 2007 Pruning of Amenity Trees.*
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 – renewal – where problem in implementing or enforcing orders – where Tribunal can only make the same final decision or any other appropriate decision ‘when the proceeding was originally decided’ Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 133, s 134, Schedule 3 Bielby v Beilby & McGrath [2010] QCAT 649 Tasmanian Seafoods Pty Ltd v Chief Executive, Department of Primary Industries & Fisheries [2010]…