Fletcher & Anor v Mitchell & Anor

[2024] QCAT 116

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Fletcher & Anor v Mitchell & Anor [2024] QCAT 116

PARTIES:

ANTHONY JOHN FLETCHER

(applicant)

CHERYL FLETCHER

(applicant)

v

BRUCE MITCHELL

(first respondent)

SHARON MITCHELL

(second respondent)

APPLICATION NO/S:

NDR029-23

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

27 March 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Mellifont, President

ORDERS:

1.     Directions 2, 3 and 4 issued on 14 December 2023 are vacated.

2.     The Tribunal will appoint a second QCAT arborist to assess the trees in dispute situated on the Respondents’, Bruce Mitchell’s and Sharon Mitchell’s, land and provide a Tree Assessment Report.

3.     QCAT will bear the cost of obtaining a second Tree Assessment Report.

4.     Upon the Tribunal’s receipt of the Tree Assessment Report outlined in Direction 2, the matter will be listed for a further direction hearing on a date and time to be advised.

CATCHWORDS:

TREE DISPUTE – where allegations were made against a Tribunal appointed arborist – whether QCAT should appoint a second arborist

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. The proceedings in this matter are in relation to a tree dispute.

2. The parties agreed to an arborist being appointed by the Queensland Civil and Administrative Tribunal (“QCAT”).

3. That arborist attended the property, conducted an assessment, and provided a report dated 31 July 2023.  

4. The applicants have raised several matters of serious concern by way of written complaint, regarding the arborist, his assessment and report. The applicants sought an extension of time of directions previously made regarding the filing of material in these proceedings pending resolution of the complaint. The respondents opposed that request and sought for the matter to proceed as scheduled.  

5. The allegations contained within the lengthy complaint remain just that, namely allegations, however having regard to the particular circumstances of this case, I have formed the view that the interests of justice, and the objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”), are best met by a second arborist being engaged by QCAT, at QCAT’s expense. This should occur as soon as possible, and once the report from the second arborist is obtained, directions made for the progress of this matter as expeditiously as resources will permit.

6. The report of 31 July 2023 will remain on the file and will form part of the material that will go before the Member who ultimately hears and determines this matter, who shall decide to what extent the report should be taken into account, and the weight he/she gives to it. The parties are at liberty to make such submissions on the topic before the Member as are appropriate.

Orders

1. In the circumstances, I direct that:

   1.Directions 2, 3 and 4 issued on 14 December 2023 are vacated.

   2.The Tribunal will appoint a second QCAT arborist to assess the trees in dispute situated on the Respondents’, Bruce Mitchell’s and Sharon Mitchell’s, land and provide a Tree Assessment Report.

   3.QCAT will bear the cost of obtaining a second Tree Assessment Report.

   4.Upon the Tribunal’s receipt of the Tree Assessment Report outlined in Direction 2, the matter will be listed for a further direction hearing on a date and time to be advised.