Brogan v Heywood - [2021] QCATA 139

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:	Brogan & Anor v Heywood & Anor [2021] QCATA 139
PARTIES:	WAYNE WALTER BROGAN ANNABEL MARY BRITTAIN
(applicants)
v
WENDY HEYWOOD JOHANNES JACOBUS VENTER
(respondents)
APPLICATION NO/S:	APL278-20
MATTER TYPE:	Appeals
DELIVERED ON:	4 November 2021
HEARING DATE:	8 September 2021
HEARD AT:	Brisbane
DECISION OF:	Senior Member Brown
ORDERS:	1. The application for leave to adduce fresh evidence is refused. 2. The application for leave to appeal is refused. 3. The appeal is dismissed.
CATCHWORDS:	APPEAL AND NEW TRIAL - PROCEDURE - QUEENSLAND - POWERS OF COURT - FURTHER EVIDENCE – where applicants asserted denial of procedural fairness on the basis that the proceedings were determined on the papers – where applicants sought to adduce fresh evidence – consideration of whether to permit fresh evidence – whether findings of the tribunal were available on the evidence Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 66(2). Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(1) s 147(2), s 147(3). Cachia v Grech [2009] NSWCA 232 Ericson v Queensland Building Services Authority [2013] QCA 391. Heywood & Anor v Brogan & Anor [2020] QCAT 308. Pickering & Anor v McArthur [2010] QCA 341 at [22]. QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
APPEARANCES & REPRESENTATION:
Applicant:	Self represented.
Respondent:	Self represented.

REASONS FOR DECISION

In these reasons I will refer to Mr Brogan and Ms Brittain as ‘the applicants’ and Ms Heywood and Mr Venter as ‘the respondents’.
Growing on the applicants’ land is a terminalia catappa (the tree). The tree is known by other names including Tropical almond, Beach almond and Indian almond. The respondents commenced proceedings in the tribunal claiming that their land was affected by the tree. The tribunal ordered the removal of the tree.[1] The applicants have appealed the decision.
[1]Heywood & Anor v Brogan & Anor [2020] QCAT 308.
Appeals – the statutory framework
A party to a proceeding may appeal to the appeal tribunal against a decision of the tribunal.[2] An appeal on a question of law is as of right. If an appeal involves a question of fact or mixed law and fact, leave is required.[3]
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(1).
[3]Ibid, s 142(3)(b).
In deciding an appeal on a question of law the appeal tribunal may: confirm or amend the original decision; set aside the decision and substitute its own decision; set aside the decision and remit the matter to the tribunal for reconsideration.[4] The tribunal may set aside the decision and substitute its own decision only if, in deciding the question of law, the appeal is determined entirely in the applicant’s favour.[5]
[4]Ibid, s 146.
[5]Ericson v Queensland Building Services Authority [2013] QCA 391.
In deciding an appeal on a question of fact or mixed law and fact, subject to leave to appeal being granted, the appeal must be decided by way of rehearing.[6] In…

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 Brogan v Heywood

Details

AGLC: Brogan v Heywood [2021] QCATA 139
Case: [2021] QCATA 139
Decision Date: 4 November 2021

CaseChat Overview and Summary

Brogan v Heywood is a Queensland case involving a dispute between neighbours regarding a tree on the applicants' land that allegedly affected the respondents' property. The applicants sought to appeal against the tribunal's decision, claiming procedural unfairness and errors in the tribunal's findings. The applicants also sought to introduce fresh evidence in support of their appeal. The central legal issues in the case were whether the applicants could introduce fresh evidence in support of their appeal and if the tribunal's decision contained any errors warranting an appeal.

The court found that the applicants had not satisfied the criteria for admitting fresh evidence, as they had not demonstrated that the evidence could not have been obtained with reasonable diligence or that it would have significantly influenced the outcome of the case. Furthermore, the applicants had not taken steps to obtain the evidence despite clear directions from the tribunal. Regarding the grounds of appeal, the court found that the applicants' claims of procedural unfairness were unfounded, as they had not requested an oral hearing when given the opportunity. The court also found that the tribunal's findings were supported by evidence and that there were no grounds for the appeal to proceed.

In conclusion, the court refused the applicants' application to adduce fresh evidence and dismissed the appeal. The tribunal's decision stood, and the applicants were not granted leave to appeal. The case highlights the importance of adhering to tribunal directions and the need for applicants to demonstrate that fresh evidence meets specific criteria before it can be considered in an appeal.

Orders

Orders of the court

1. The application for leave to adduce fresh evidence is refused.

2. The application for leave to appeal is refused.

3. The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

At the hearing the respondents’ did not object to the applicants’ further grounds of appeal and were given the opportunity to make submissions to the tribunal. I therefore propose to consider the expanded grounds of appeal. Application to adduce fresh evidence The applicants apply to adduce four pieces of fresh evidence: a report by an arborist David Calder,[20] a statement by Reg Denman,[21] a statement by Errol Wiles, [22] and a statement by Jenny Carlyle.[23][20]Applicants’ appeal book at page 19.[21]Ibid at page 36.[22]Ibid at page 16.[23]Ibid at page 29. The relevant considerations in respect of an application to adduce fresh evidence in an appeal are well established. Further evidence may be admitted where: (a)The fresh evidence could not have been obtained with reasonable diligence for use at the original hearing;(b)The fresh evidence would have had an important influence on the result of the case; and(c)The fresh evidence is credible.[24][24]Pickering & Anor v McArthur [2010] QCA 341 at [22]. An applicant seeking to rely upon fresh evidence must satisfy all of the aforesaid criteria. Before addressing the application to rely upon fresh evidence it is appropriate to first briefly outline the progress of the proceedings below. Early in the proceedings, and in accordance with the relevant practice direction, the tribunal directed that the parties contribute toward the tribunal’s costs of engaging a tree assessor to undertake an assessment of the tree and provide a written report of the assessor’s findings and recommendations. The applicants declined to comply with the direction on the basis that they were financially unable to do so. The tribunal subsequently made directions providing the respondents the opportunity to pay the entire cost of the appointment of the assessor or alternatively obtain a report from an expert. The respondents chose to do the latter. Following a compulsory conference in March 2020, which both parties attended, directions were made for the parties to file any further evidence and for the matter to be listed for a hearing in Cairns on a date to be advised. Importantly, the directions stated that evidence would not be permitted to be led at the hearing if it was not contained in a statement of evidence. It should be noted that the respondents had by this time filed their statements of evidence including the report of an expert arborist, Mr John Madderom. The applicants were directed to file their further evidence by 16 March 2020. They filed no further evidence. On 11 March 2020, the tribunal registry notified the parties by email that the matter had been listed for hearing in Cairns on 29 May 2020. It was at or about this time that the COVID-19 pandemic struck, impacting the operation of the tribunal. On 15 April 2020, the tribunal directed the parties to file submissions addressing whether the proceedings could be determined on the papers and, if an oral hearing was required, why an oral hearing was required and whether the hearing could be conducted by remote conferencing. The respondents submitted that the matter be determined on the papers. The applicants’ response was in the following terms:I respectfully request that the hearing at the Cairns Courthouse on the 29th May 2020 be postponed or cancelled due to the COVID 19 crisis and low priority of the case.

Decision

Reasons for decision

The relevant principles regarding the granting of leave to appeal are well established.[8] Is there a reasonably arguable case of error in the primary decision;[9] is there a reasonable prospect that the applicant will obtain substantive relief;[10] is leave necessary to correct a substantial injustice to the applicant caused by some error;[11] is there a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.[12][8]See, eg, Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219.[9]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.[10]Cachia v Grech [2009] NSWCA 232, [13].[11]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.[12]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, 578, 580.The decision below The learned adjudicator found:(a)The tree in question is an Indian-Almond tree or terminalia catappa;[13](b)The respondents’ land was affected by the tree situated on the applicants’ land;[14](c)The tree had caused damage to the roof of a building on the respondents’ land. This was referred to in the reasons as the ‘tree litter damage’;[15](d)There is a risk that the tree will fail. This was referred to in the reasons as ‘tree failure risk’;[16](e)The tree presents a serious risk of injury to person or serious damage to the respondents’ land or neighbouring property;[17](f)The tree litter damage represented a substantial, ongoing and unreasonable interference with the use and enjoyment of the respondents’ land;[18](g)The flat roof design of the respondents’ house had contributed to the tree litter damage.[19][13]Reasons for decision at [1].[14]Ibid, at [15](b).[15]Ibid, at [29](a).[16]Ibid, at [29](b).[17]Ibid, at [40], [41].[18]Ibid, at [41](c).[19]Reasons at [58].The grounds of appeal In the application for leave to appeal or appeal, the applicants rely upon a single ground of appeal. They say they were denied the opportunity to present expert and photographic evidence to the tribunal. In their appeal submissions, and at the hearing of the appeal, the applicants articulated further grounds of appeal:(a)The learned adjudicator erred in accepting the evidence of the respondents’ arborist;(b)There was no evidence of serious damage or serious injury caused by the tree;(c)The learned adjudicator failed to consider the evidence that the roof of the respondent’s home was corroded and that this was not caused by the tree;(d)The learned adjudicator erred in finding that the leaf litter constituted a substantial, ongoing and unreasonable interference with the use and enjoyment of the respondents’ land;(e)The learned adjudicator failed to consider the evidence of the applicants disputing the findings by the respondents’ arborist;(f)The learned adjudicator erred in failing to find that the tree was a mangrove and therefore protected;(g)The learned adjudicator failed to consider pruning the tree as an option in the final orders.

Ratio Decidendi

Legal Principle Established

The application to rely upon the evidence of Ms Carlyle is refused. The grounds of appeal - consideration The first ground of appeal is that the applicants were denied the opportunity to present expert and photographic evidence to the tribunal. In their appeal submissions the applicants say that they had intended to rely upon the fresh evidence, to which I have earlier referred, at the hearing originally scheduled to proceed on 29 May 2020 in Cairns. When the hearing date was vacated and the tribunal directed that the matter be determined on the papers, the applicants say they were denied the opportunity to present the evidence. This ground of appeal is essentially one of a denial of procedural fairness. This is a question of law. There are a number of things to say about this ground of appeal. Firstly, there is nothing to suggest that the applicants took any steps to obtain the evidence they say they were denied the opportunity to rely upon despite the directions made following the compulsory conference in March 2020. As the directions made clear, evidence not contained in the statement of a witness would not be permitted at the hearing. It should therefore have been patently clear to the applicants that unless they took steps to obtain further witness statements, any evidence would not be permitted. Secondly, the parties were given the opportunity to make submissions to the tribunal about whether the matter should proceed to an oral hearing or a determination on the papers. As I have observed, the applicants’ submissions were non-responsive to the directions. Thirdly, the parties were given a final opportunity to notify the tribunal that they required an oral hearing, failing which, the matter would be determined on the papers. Neither party requested an oral hearing. The applicants cannot now complain that they were not given the opportunity to present evidence and have an oral hearing in circumstances where they took no steps to advance and protect their interests. This ground of appeal is without substance. The second ground of appeal is that there was no evidence of serious damage or serious injury caused by the tree. Implicit in this ground of appeal is the assertion that the learned adjudicator erred in making a finding to this effect. This ground of appeal raises a question of fact. The learned adjudicator observed: …for an order to be made under s 66 (of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011) there must be:(a) a risk of serious injury to any person (because the order must be to ‘prevent’ the serious injury); or (b) the existence of, or risk of: (i) serious damage to the Applicants’ land or property on the land; or (ii) a substantial, ongoing and unreasonable interference with the use and enjoyment of the Applicants’ land (because the order must be to ‘remedy, restrain or prevent’ the damage or interference). The learned adjudicator found that there was compelling evidence of damage to the respondents’ dwelling as a result of tree litter being deposited on the roof.[25] The learned adjudicator made this finding relying upon the evidence of both the respondents and the arborist, Mr Madderom.[26] [25]Reasons at [30].[26]Reasons at [29] to [31].