Blackshaw & Anor v Campbell
[2019] ACAT 41
•12 April 2019
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BLACKSHAW & ANOR v CAMPBELL (Civil Dispute) [2019] ACAT 41
XD 1362/2015
Catchwords: CIVIL DISPUTE – claim in common law nuisance – trees overhanging neighbour’s property – root invasion of neighbour’s property including pipes – unreasonable encroachment of trees on neighbour’s property – respondent ordered on 16 September 2016 to remove trees – application to set aside orders by reason of new information – consideration of power to set aside an order under section 56(c)(iii) of the ACT Civil and Administrative Tribunal Act 2008 – consideration of “extraordinary circumstances” – no new information provided – application an abuse of process – application dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 32, 48, 56, 82
Cases cited:Blackshaw & Evans v Campbell (No 2) [2016] ACAT 108
Campbellv Blackshaw & Evans [2017] ACAT 64
Campbellv Blackshaw & Evans [2017] ACAT 95
CampbellvBlackshaw [2019] ACTCA 1
CampbellvBlackshaw [2018] ACTSC 39
Elliott v The Queen; Blessington v The Queen [2007] HCA 51
Commonwealth Bank of Australia v Quade [1991] HCA 61
Craig v The State of South Australia [1995] HCA 58
Smith v J&C Whyte Family Trust & Anor [2016] ACAT 132
Legal Practitioner v Council of the Law Society of the ACT (No 2) [2014] ACTSC 352
Macleod v Australian Securities and Investments Commission [2002] HCA 37
Re Refugee Review Tribunal: Ex parte Aala [2000] HCA 57
Tribunal: Presidential Member G McCarthy
Date of Orders: 12 April 2019
Date of Reasons for Decision: 12 April 2019
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 1362/2015
BETWEEN:
ADAM SCOTT BLACKSHAW
First Applicant
ROBYN JANE EVANS
Second Applicant
AND:
MARYANNE CAMPBELL
Respondent
TRIBUNAL: Presidential Member G McCarthy
DATE:12 April 2019
ORDER
The Tribunal orders that:
The application for interim or other orders dated 13 March 2019 is dismissed.
………………………………..
Presidential Member G McCarthy
REASONS FOR DECISION
By application dated 3 December 2015, the applicants brought a claim in common law nuisance against the respondent. By way of remedy, they sought an order that the respondent remove nine cypress trees planted on the respondent’s land close to the common boundary between the applicants’ and the respondent’s respective properties.
On 16 September 2016, I made the following seven orders in this proceeding:
1.Within 28 days, the respondent remove all of the nine (9) evergreen trees growing on the respondent’s property located on or adjacent to the boundary between the respondent’s property and the applicants’ property as depicted on a survey sketch dated 13 May 2014 prepared by Peter Mayberry, registered surveyor.
2.The respondent must give the applicants three (3) days’ advice by email of the intended commencement of the work referred to in order 1.
3.The applicants and the respondent must ensure that any contractors, their servants and agents who are engaged by the respondent to remove the trees referred to in order 1 have access to their respective properties at any time between Monday and Friday inclusive between the hours of 8am and 5pm for the purpose of removing the trees.
4.All amounts payable for removal of the trees in accordance with order 1 are to be paid by the respondent.
5.In the event that the respondent does not remove the trees within 28 days in accordance with order 1, the applicants may engage contractors to remove the trees at a cost not exceeding $10,000.
6.If order 5 applies and the applicants engage contractors to remove the trees, the applicants and the respondent must ensure that those contractors, their servants and agents have access to their respective properties at any time between Monday and Friday inclusive between the hours of 8am and 5pm for the purpose of removing the trees.
7.If order 5 applies and contractors remove the trees under contract with the applicants, the respondent must pay the applicants the amount stated on the contractors’ tax invoice or invoices as payable for the work done within 28 days of the applicants giving the respondent a copy of the invoice or invoices.
I published reasons for my decision.[1]
[1] Blackshaw & Evans v Campbell (No 2) [2016] ACAT 108
On 30 October 2016, the respondent appealed from my decision. She asserted 11 errors of law and fact.
On 30 August 2017, the Appeal Tribunal ordered that the appeal be dismissed and published reasons for its decision.[2]
[2] Campbell v Blackshaw & Evans [2017] ACAT 64
On 2 November 2017, the respondent applied to the Supreme Court for leave to appeal from the Appeal Tribunal’s decision and for an extension of time in which to bring its application for leave to appeal. The application for the extension of time was necessary because the application for leave to appeal was filed 40 days out of time.
On 2 March 2018, the Supreme Court, per Mossop J, dismissed the respondent’s application for leave to appeal, including the application for an extension of time in which to appeal, and published reasons for its decision.[3]
[3] Campbell v Blackshaw [2018] ACTSC 39. Mossop J also dismissed an application for leave to appeal from a different decision of the Appeal Tribunal, Campbell v Blackshaw & Evans [2017] ACAT 95, where the Appeal Tribunal confirmed a decision of the Tribunal regarding resolution of a fencing dispute between the applicants and the respondent, save for a minor correction regarding repayment of money
The respondent appealed from the decision of Mossop J to the Court of Appeal. On 14 February 2019, the Court of Appeal dismissed the appeal and published reasons for its decision.[4]
[4] CampbellvBlackshaw [2019] ACTCA 1
The effect of the Appeal Tribunal, the Supreme Court and the Court of Appeal each in turn dismissing the respondent’s applications is that the orders I made on 16 September 2016 are no longer under appeal and became operative as at 14 February 2019. Mr Christensen, solicitor for the respondent, agreed. In particular, with the appeal process exhausted and there being no suggestion of the respondent seeking leave to appeal to the High Court, the respondent was required, within 28 days from the Court of Appeal dismissing the respondent’s appeal, to remove the trees.
The 28 day period expired on 13 March 2019. The respondent did not comply with the order. Instead, on that day, the respondent filed an application for leave to reopen this proceeding on the basis that “new information is now available” and, if leave were granted, for the orders I made on 16 September 2016 to be set aside. The hearing of the application on 4 April 2019 was for the purpose of deciding whether the respondent should be given leave to reopen the proceeding.
The grounds for the application, signed by the respondent’s solicitor and set out verbatim, were as follows:
The original application was based on flooding allegedly caused by the Respondent’s tree roots entering the storm water pipes serving the relevant properties.
The grounds for this application is that new information is now avaialble that was not aviable to the Tribunal deciding the matter:
(a) the Tribunal did not consider that the storm water pipes in question were in fact owned by Icon water, so that any entry of roots into then could not be a tresspass on the applicant’s land;
(b) that the flooding in question was caused by an illegal tie into the storm water pipes made by the Applicants
(c) in any event, no flooding has occurred for past 4 years, and on that basis the Tribunal could not now be sastisifed that the flooding was likley to recurr
(d) Icon Water intends to renew the strom water infrastructure in the suburb of Lyneham in the near future, which would be a permanent solution that would prevent future flooding.
(e) that if the nuisance relasting to the flooding did not occur, the Tribunal may well have made a different decsion in relation to the nuisance caused by overhanging trees.
The Respondnet will proivde evidence of the above at the hearing of thisd application
The Supreme Court, in heairng the appeal from this decision indicated it was open to the Responmdet to seek to re-open these proceedngs with new information. [errors in original]
The starting point is to identify the Tribunal’s power to re-open the proceeding. The Tribunal is a subordinate body. Any order it makes must be derived from a legislative power to make it.[5] Jurisdiction must not be lightly assumed. Close attention must be given to what the Tribunal is empowered to do under statute, and any conditions that must be met in order for there to be a valid exercise of power.
[5] Macleod v Australian Securities and Investments Commission [2002] HCA 37 at [44] and [61]; Craig v The State of South Australia [1995] HCA 58 at [14]-[15]; Re Refugee Review Tribunal: Ex parte Aala [2000] HCA 57 at [163]
Mr Christensen submitted that I should give the respondent leave to reopen the proceeding for the purpose of setting aside my earlier orders pursuant to section 56(c)(iii) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act). Section 56 states:
56Other actions by tribunal
The tribunal may, by order—
(a) hear an application jointly with another application that arises from the same or similar facts; or
(b) make other orders with the consent of the parties to the application or as the tribunal considers necessary or convenient; or
Example
an order dismissing a proceeding with the consent of the parties to the proceeding
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(c) amend or set aside a tribunal order if—
(i)the order was made after hearing an application in the absence of a party; or
Note A party may apply to the tribunal under this provision if the tribunal makes an order under s 44 after hearing an application in the absence of a party.
(ii)the order is in error in relation to an amount or the name or address of a party, and the tribunal proposes to amend or set aside the order only to correct the error; or
(iii)extraordinary circumstances make it appropriate to amend or set aside the order; or
(d) take any other action in relation to an application—
(i)that the tribunal considers appropriate; and
(ii)that is consistent with this Act or an authorising law.
Examples
1an order dismissing a proceeding on the withdrawal of the applicant
2an order dismissing a proceeding for want of prosecution
Note 1 The tribunal must observe natural justice and procedural fairness (see s 7).
Note 2 A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s104).
I enquired of Mr Christensen about the meaning or ambit of the words “extraordinary circumstances” in section 56(c)(iii). He submitted that I should give the words their ordinary meaning, as defined in the dictionary. He did not take me to any dictionary definition, but I note that “extraordinary” is defined in the Macquarie Dictionary. The relevant parts of that definition are as follows:
1. beyond what is ordinary; out of the regular or established order; extraordinary power; extraordinary expenses.
2. exceptional in character, amount, extent, degree, etc; unusual; remarkable: extraordinary weather; extraordinary weight; extraordinary speed; an extraordinary person; an extraordinary book.[6]
[6] Macquarie Dictionary (Pan McMillan, 5th edition, 2009)
Mr Christensen did not take me to any decision that has considered the meaning of “extraordinary circumstances” in section 56, nor any authority that might have assisted in understanding the ambit of the words.
I also enquired as to whether the words contemplated a test that was less stringent, more stringent or similar to the different formulations of the test, enunciated in many judicial decisions, as to when a court may reopen a proceeding. Mr Christensen submitted that a less stringent test should be applied, and that section 56 should be understood as giving the Tribunal a broader power to reopen than applies in courts because the Tribunal is a “people’s tribunal.” He submitted that if, by reference to new information or new evidence, I was persuaded that there is some doubt about the correctness of the decision I made on 16 September 2016, I should reopen the proceeding so that the respondent can “have the issue ventilated”.
Referring to the grounds for the application, Mr Christensen agreed that the “cornerstone of the case” to reopen hinged on the existence of an (alleged) illegal plumbing tie into the stormwater pipes on the applicants’ land which, he said, is the cause of the flooding on the applicants’ land. Put another way, the illegal tie — not tree roots — he said, is the cause of the flooding.
Mr Twigg, solicitor for the applicants, submitted that there are no “extraordinary circumstances” in this case that should permit the respondent to reopen the proceeding. He submitted that the alleged ‘new information’ about the (alleged) illegal tie is not new information, and the respondent has known about it since at least June 2016.
On the question of the sufficiency of the information, new or otherwise, Mr Twigg submitted that — even if admitted and considered — the evidence about the illegal tie would not have produced an “opposite verdict”. In this respect, Mr Twigg relied upon the High Court’s decision in Commonwealth Bank of Australia v Quade (Quade), where the Court said:
In cases where all that is involved is the discovery by the unsuccessful party of fresh evidence, Orr v. Holmes and Wollongong Corporation v. Cowan establish that the reconciliation of "the demands of justice" and the "policy" that there be an end to litigation at least prima facie (or "generally") – see McDonald v. McDonald [1965] HCA 45; (1965) 113 CLR 529, at pp 532-533 – dictate that the successful party should be deprived of the verdict in his favour only if the unsuccessful party persuades the appellate court that there was no lack of reasonable diligence on his part and that it is reasonably clear that the fresh evidence would have produced an opposite verdict. Such a stringent rule in that ordinary class of case is supported by considerations of both justice and public interest. Considerations of justice support it in that it would be unfair to the successful party if he were to be deprived of a verdict obtained after a trial on the merits and be subjected to the expense, inconvenience and uncertainty of a further trial merely because some relevant evidence had, without fault on his part, been unavailable to the unsuccessful party at the time of the trial. Considerations of public interest support it in that it is desirable in the public interest that there be finality in litigation in other than the truly exceptional case. If all that was necessary to procure the setting aside of a regularly obtained verdict was that the unsuccessful party show that fresh evidence which might have affected the outcome of the trial has become available after the trial, the verdicts of the courts would be of a provisional character only, being subject to the discovery of further relevant evidence.[7] (emphasis added).
[7] Commonwealth Bank of Australia v Quade [1991] HCA 61 at [6]
In circumstances where Mr Christensen submitted that the illegal plumbing tie only raised “doubt” about the correctness of my decision on 16 September 2016, I enquired of him (referring to Quade) as to why doubt was a sufficient basis to reopen the proceeding. Mr Christensen submitted that the principles laid down in Quade only concern court proceedings, and are not applicable to tribunals whose processes are to be conducted informally. He could not refer me to any authority to support his submission.
Consideration
In Legal Practitioner v Council of the Law Society of the ACT (No 2) (Legal Practitioner),[8] the ACT Supreme Court, per Murrell CJ, considered the circumstances in which the Tribunal may reopen a proceeding and set aside an order. In particular, Her Honour considered section 56(c)(iii) of the ACAT Act. The decision is binding on the Tribunal and contrary to many of the submissions made on behalf of the respondent.
[8] Legal Practitioner v Council of the Law Society of the ACT (No 2) [2014] ACTSC 352
First, by reference to the Court’s decision in Legal Practitioner, I am not persuaded that the Tribunal should apply a broader test than that set down in Quade when determining whether fresh evidence is sufficient to permit an unsuccessful party to reopen a proceeding. As Her Honour observed:
139.[T]he tribunal is designed to function very [much] like an inferior court, and a similar level of protection is provided by way of appeal processes. Under s 61, an order of the tribunal is “made” when it is pronounced or “entered”, and it “takes effect” on the day that it is made. In contrast to the scenario that was considered in Chandler (where the only appeal was available was on a point of law), under s 79(3) of the ACAT Act, a party to an original application may appeal the decision on a question of fact or law. …
140.The court-like appeal and review structure applying to the tribunal suggests that, like a court, the principal of finality may have some application to the orders made by the tribunal. As noted in Burrell, that principle serves to protect parties from attempts to re-agitate what has already been decided and provides an incentive to all participants in the adversarial process to “get it right the first time”. Where adequate appeal and review processes apply, there is limited opportunity for conflict between the principle of finality and the entitlement to procedural fairness.
141.The combination of finality and adequate appeal and review processes supports the two key objects and principles behind the ACAT Act: first, ensuring the quick and simple resolution of matters and, second, ensuring fairness.
Murrell CJ also commented on the operation of section 56 and whether the circumstances in that case were “extraordinary” for the purposes of section 56(c)(iii) of the ACAT Act. Her Honour said:
142.Importantly, s 56 of the ACAT Act refers to the tribunal having the power to set aside an order in only three circumstances: the order was made ex parte, a limited “slip rule” applies, or “extraordinary circumstances make it appropriate to amend or set aside the order”. In the context that a comprehensive appeal and review process is available, s 56 should be read as providing the only circumstances in which an order can be set aside.
…
145.It is unnecessary to consider the scope of “extraordinary circumstances”. When an error on the part of any original tribunal is identified to that tribunal, it may accept that it has erred. It would often be more efficient for the original tribunal to reopen the case and re-decide the matter. The frequency with which such a scenario may occur suggests that the circumstances in the present case were not “extraordinary”.
146.The nature of the review and appeal processes in the ACAT Act also informs a consideration of whether the circumstances under consideration constitute “extraordinary circumstances” that make it “appropriate” to set aside an order.
147.Not only were the circumstances in the present case far from “extraordinary”, they were not circumstances which indicated that it was “appropriate” to reopen the proceedings. If, in such circumstances, original tribunals reopened their proceedings as a matter of course, then appeal and review processes would be thrown into chaos.
Regarding the circumstances in which a court can ‘reopen’ a proceeding, in Elliott v The Queen; Blessington v The Queen, the High Court said:
It is well settled that a superior court of record such as the Supreme Court has a power to "reopen" a proceeding until judgment in the case in question has been drawn up, passed and entered. But by what criteria is that authority to be exercised?
It is here that guidance is provided by remarks of Mason CJ in Autodesk Inc v Dyason (No 2). His Honour gave examples from jurisdictions in this country (including the New South Wales Court of Appeal) and the United Kingdom where the power to reopen had been exercised on grounds not limited to denial of a fair hearing, but went on:
“What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases”.[9] [footnotes omitted]
[9] Elliott v The Queen; Blessington v The Queen [2007] HCA 51 at [31]-[32]
Referring to the facts in Legal Practitioner, the Supreme Court acknowledged “the undoubted greater efficiency associated with the original tribunal reopening the proceedings to correct acknowledged error”,[10] but still found that the original tribunal did not have power to do so because “the frequency with which such a scenario may occur suggests that the circumstances in the present case were not ‘extraordinary’.”[11]
[10] Legal Practitioner v Council of the Law Society of the ACT (No 2) [2014] ACTSC 352 at [148]
[11] Legal Practitioner v Council of the Law Society of the ACT (No 2) [2014] ACTSC 352 at [145]
It can be seen from Legal Practitioner that an original tribunal’s power to set aside an order because of “extraordinary circumstances” — and of a kind that make it “appropriate” to do so — imposes a test that is different, and in my view more stringent, than applies in courts. It is not enough to point to a misapprehension of the facts or the law, irrespective of to whom the misapprehension should be attributed or whether it is agreed. The legislative pathway to correct error or bring forward new information is to apply to the Appeal Tribunal. I refer in particular to the Appeal Tribunal’s power to hear an application as a “new application” under section 82(a) of the ACAT Act, meaning the Appeal Tribunal can ‘start afresh’ if it considers it appropriate to do so.
It follows that I do not have jurisdiction under section 56(c)(iii) of the ACAT Act to reopen the original proceeding for the purpose of setting aside the orders that were made on 16 September 2016. For new information to become available is not an “extraordinary circumstance”, nor does it make it “appropriate” to reopen a proceeding. Following Legal Practitioner, it is an issue for the Appeal Tribunal to consider when deciding under section 82 whether to “deal with” the appeal as a new application or as a review of the original decision.
Even if I had jurisdiction to reopen the proceeding, I would have declined to do so.
Regarding ground (a) of the application, as the Supreme Court and the Court of Appeal noted,[12] nobody asked me to consider that the “stormwater pipes in question” were owned by Icon Water, and the respondent did not raise the question on her appeal to the Appeal Tribunal. Also, I am not persuaded that Icon Water’s (alleged) ownership of the pipes is “new information”. Ownership of the pipes is information that the respondent could have readily ascertained from the beginning. Ground (a) should be more accurately described as a new argument that occurred to the respondent after the event. Even if I had jurisdiction, I see no basis upon which the respondent should be given leave, three years after the applicants’ initiating application was decided, to raise this issue, particularly where the respondent raised it in the Court of Appeal but could provide no authority in support of the proposition that if the pipes are owned by Icon Water, the applicants were precluded from bringing their action in nuisance.[13]
[12] Campbell v Blackshaw [2018] ACTSC 39 at [32]; Campbell v Blackshaw [2019] ACTCA 1 at [32]
[13] Campbell v Blackshaw [2019] ACTCA 1 at [33]
Regarding ground (b), the (alleged) illegal tie into the stormwater pipes is not “new information”. The respondent knew about the tie before I heard the matter on 4 August 2016. It was pointed out to her in a letter to her dated 17 June 2016 from Mark Stephenson of Capital Locating Service. The respondent tendered the letter as evidence in her case before me, and I referred to it in paragraph 37 of my decision.
If a submission was to be made about the alleged illegal tie, it could and should have been put in the proceeding before me or the Appeal Tribunal. There is no suggestion that that occurred. I reject the proposition that the respondent, on notice of the issue from the beginning, can now raise it three years after the event.
Mr Christensen acknowledged that the respondent was aware of the alleged illegal tie prior to the hearing before me but submitted that she did not appreciate the significance of it until she received a report dated 10 April 2017 from Mr Foster, a licensed plumber, who states that the installation of the tie was “badly performed” and that “after conducting many drain surveys, it is obvious to me that roots were not the cause of the blockage.”[14]
[14] Report dated 10 April 2017 by Phillip Foster
There were many difficulties with this submission. First, Mr Christensen properly acknowledged that Mr Foster’s report is based solely upon his consideration of the video footage of a drain survey conducted on 14 June 2016. That footage was not “new information”. I referred to it in my decision, and noted that it “suggests the main is presently clear”.[15] Second, nowhere in his report does Mr Foster say that the (alleged) illegal tie is the cause of the blockage, and indeed the concept is a nonsense: a tie permits water to flow rather than preventing it. Poor installation of a tie might permit entry of roots, but the roots remain the cause of the blockage. Third, as the Supreme Court noted, “while the Appeal Tribunal took nine months to deliver its decision, the [respondent] did not seek to reopen its appeal during that period to put on further evidence about the current state of the drains.”[16] In my view, that statement applies equally to any further opinion evidence drawn from the video footage.
[15] Blackshaw & Evans v Campbell (No 2) [2016] ACAT 108 at [37] and [42]
[16] Campbell v Blackshaw [2018] ACTSC 39 at [39(b)]
Regarding ground (c), the respondent did not seek to tender any evidence about the absence of flooding over the past 4 years, nor am I my persuaded that such evidence would be relevant. The question was whether the trees were a nuisance based on the evidence presented at hearing. In any event, the new information upon which the respondent sought to rely included reports dated 2018[17] that refer to the existence of flooding and damp in buildings on the respondent’s property.
[17] Report dated 24 May 2018 from Pierre Dragh Consulting Engineers Pty Ltd; report dated 8 May 2018 from Jim's Building Inspections
Regarding ground (d), Mr Christensen did not produce any evidence about Icon Water’s intentions regarding replacement of the stormwater infrastructure in the suburb of Lyneham, or (if there is any such evidence) when this would occur or whether it would include replacement of the pipes that were the subject of evidence in this proceeding. Ground (d) was entirely without substance.
Regarding ground (e), there was no rational basis for why I might have made a different decision in relation to the applicants’ claim in nuisance if satisfied on fresh evidence that the nuisance relating to the flooding “did not occur”. Again, as the Supreme Court noted, my orders that the trees be removed were also based on the existence of a nuisance by reason of the encroachment of the trees upon the applicants’ property. This was a separate and alternative ground for the granting of relief.[18] To reduce it to a practical level, there is no connection between my finding in nuisance caused by root structure interfering with pipes underground and my finding in nuisance caused by the encroachment of the trees above ground, particularly dangerous branches overhanging the respondent’s land, prevention of the applicants from being able to repave their driveway and overshadowing of their house and garden.
[18] Campbell v Blackshaw [2018] ACTSC 39 at [39(d)]
Lest there be any doubt, my decision to dismiss the respondent’s application does not mean or imply that the respondent now has a further 28 days within which to comply with order 1. In my view, the respondent’s tactic from the beginning has been one of avoidance and delay. At every opportunity, she has applied for adjournments, sometimes successfully. In many cases, the applications for an adjournment were brought on the day that an application was listed for hearing, or a few days before.[19]
[19] Blackshaw & Evans v Campbell (No 2) [2016] ACAT 108 at [3]-[8]; Campbell v Blackshaw& Evans [2017] ACAT 64 at [18]-[32]
It occurred again in relation to this application, which was listed for hearing on 27 March 2019. The day before, Mr Christensen advised by email that he would not be available because he was “in a 3 days matter in the Magistrates Court”. The Tribunal’s enquiry as to when he became aware that he would be appearing in the matter in the Magistrates Court was not answered.
I am satisfied that this application was another attempt by the respondent to resist the course of justice. If the respondent had any serious wish to retain responsibility for the manner in which the trees are to be removed, this application would have been brought well before the final day on which the respondent was required to remove the trees.
Where the time period for the respondent to remove the trees has now passed, it follows that the applicants may now engage contractors to remove the trees at a cost not exceeding $10,000, as set out in my orders 5 and 6 made on 16 September 2016, and the respondent must pay the applicants the amount payable for that work in accordance with order 7.
Quite properly, Mr Christensen did not apply for a stay of any of the orders made on 16 September 2016. If he had done so, I would have refused such an application. In response to my enquiry about the respondent’s non-compliance with order 1, Mr Christensen agreed that the applicants have their remedies under orders 5, 6 and 7.
Whether the applicants choose to give the respondent further time to remove the trees by her own means and at her own cost, per orders 1 and 4, is a matter for them.
Costs
The applicants sought an order that the respondent pay their costs of the application. They relied on sections 48(2)(b) and (c) of the ACAT Act as giving power to award costs. Those sections provide:
(b) if the tribunal considers that a party to an application caused unreasonable delay or obstruction before or while the tribunal was dealing with the application—the tribunal may order the party to pay the reasonable costs of the other party arising from the delay or obstruction; or
(c) subject to section 49, if a party to the application contravenes an order of the tribunal—the tribunal may order the party to pay the costs or part of the costs of the application to the other party
The applicants relied upon a decision of the Tribunal in Smith v J&C Whyte Family Trust & Anor (Smith),[20] where I made orders arising from the second respondent’s obstruction of Mr Smith’s claim and contravention of orders regarding filing and service of witness statements. Mr Twigg relied in particular upon my observations in Smith where I said that a party is expected to participate in tribunal proceedings in a manner that promotes the objects in sections 6(b) and (c) of the ACAT Act and may be ordered to pay another party’s costs if it does not do so.
[20] Smith v J&C Whyte Family Trust & Anor [2016] ACAT 132 at [116]-[160]
Smith is not applicable. The orders for costs arose from the second respondent’s conduct in response to Mr Smith’s primary application, in particular its obstruction of the Tribunal’s determination of that application and its contravention of orders regarding filing and service of witness statements in that application. Mr Twigg could not point me to any obstruction or contravention in relation to the respondent’s interim application to reopen this proceeding, nor could I identify such conduct.
Mr Twigg submitted that the Tribunal should construe section 48(2)(b) and (c) of the ACAT Act as applying to the “overall proceeding”, pointing to the respondent’s general tactic of obstruction and delay.
I am not persuaded that section 48(2)(b) or (c) of the ACAT Act can be so broadly read. Section 48(2)(b) is directed at delay or obstruction “before or while the Tribunal was dealing with the application” (emphasis added). In my view, the Tribunal must therefore consider the question of costs by reference to the application in question, not the proceeding generally, and whether there has been obstruction or delay in the Tribunal’s ability to deal with it. No “unreasonable” delay or obstruction has occurred. Save for a delay of one week, consequent upon Mr Christensen’s unavailability, the respondent’s application was promptly heard. I accept that the application was brought in order to obstruct implementation of the orders I made three years ago, but that does not mean that the respondent has done anything to delay or obstruct the Tribunal from dealing with her application to set aside those orders. It follows that section 48(2)(b) has no application this case.
Section 48(2)(c) is not relevant. Mr Twigg could not point me to any order made in relation to this application that the respondent contravened.
Nevertheless, I have sympathy with the applicants’ position. This application should never have been made. It is devoid of any merit at all. I am satisfied that it was made solely for an improper purpose, namely to delay implementation of the orders I made on 16 September 2016 and in that way (where all appeal processes have been exhausted) to frustrate the administration of justice. I will dismiss it under section 32(1)(c) of the ACAT Act as an abuse of process.
At present, under section 48(2)(d) of the ACAT Act, the Tribunal’s power to order costs where an application is dismissed or struck out under section 32 of the ACAT Act is available only in relation to applications for review of a decision under the Heritage Act 2004, the Planning and Development Act 2007 or the Tree Protection Act 2005.
In my view, this case illustrates why the legislature should consider amending section 48 to permit costs to be awarded against an unsuccessful party where an application or part of an application of any kind is dismissed or struck out under section 32(2) of the ACAT Act.
………………………………..
Presidential Member G C McCarthy
HEARING DETAILS
FILE NUMBER: | XD 1362/2015 |
PARTIES, APPLICANTS: | Adam Blackshaw & Robyn Evans |
PARTIES, RESPONDENT: | Maryanne Campbell |
COUNSEL APPEARING, APPLICANTS | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANTS | Sneddon Hall & Gallop |
SOLICITORS FOR RESPONDENT | Peter Christensen, Solicitor |
TRIBUNAL MEMBER: | Presidential Member G McCarthy |
DATE OF HEARING: | 4 April 2019 |
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