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.

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

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.
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 2014[1] nor complied with the direction to give Ms Hall 7 days notice in writing for Ms Hall to allow access…

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 Burgess v Hall

Details

AGLC: Burgess v Hall [2014] QCAT 360
Case: [2014] QCAT 360
Decision Date

CaseChat Overview and Summary

In Burgess v Hall, Sarah Burgess sought various orders in relation to an ironbark tree located on Diana Hall’s property near the common boundary with Burgess’ property. Burgess sought orders to remove the tree and its roots or to prune the tree’s branches and roots at Hall’s cost. Hall responded by filing an application seeking to dismiss Burgess’ application on multiple grounds, including untimeliness and the lack of a response from the Tribunal to her submissions and correspondence. Hall also claimed that Burgess had not complied with Tribunal directions and that any reports were the result of trespass and therefore unreliable.

The court considered the legal issues regarding whether the application could be dismissed without a hearing due to non-compliance with directions and whether this caused an unnecessary disadvantage to Hall. The court noted that dismissing an application without a hearing was a serious matter that would deprive Burgess of an opportunity for an independent determination of her claims. The court found that some of Hall’s arguments indicated a lack of familiarity with the Tribunal’s processes. The court also found that the non-compliance with directions did not clearly demonstrate an unnecessary disadvantage to Hall that could not be remedied.

The court ultimately decided that the application to dismiss Burgess’ application should be dismissed. The court ordered that the application to dismiss remain listed for a hearing and that both parties provide copies of relevant documents to each other by a specified date. The court also extended the time for Hall to file and serve any arborist report she wished to rely upon.

Orders