QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Gilmour & Anor v Wise & Anor [2020] QCAT 77
PARTIES: DANE COLIN GILMOUR
(first applicant)VICTORIA EMILY GILMOUR
(second applicant)
v
DAVID WISE
(first respondent)SUSAN MARIA WISE
(second respondent)
APPLICATION NO/S:
NDR108-19
MATTER TYPE:
Other civil dispute matters
DELIVERED ON:
13 March 2020
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Senior Member Brown
ORDERS:
Application for a tree dispute filed 24 July 2019 dismissed.
CATCHWORDS: ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where a tree growing on respondents’ land – where applicants allege the tree causes serious injury, damage and substantial leaf litter – where applicants re-agitate a previously decided matter by consent orders – where applicants have failed to comply with the consent orders – where applicants fail to provide reasons for their non-compliance - where application is res judicata and or an abuse of process – where application should be dismissed
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 61
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4(c), s 47, s 84(1), s 84(2), s 84(3), s 164
Vexatious Proceedings Act 2005 (Qld), schAon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201
Barker v The Queen (1983) 153 CLR 338
Barrow v Bankside Members Agency Limited [1996] 1 WLR 257
Blair v Curran (1939) 62 CLR 464
Effem Foods Pty Limited v Trawl Industries of Australia Pty Limited [1993] FCA 342
Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326
Johnson v Gore Wood and Co [2002] 2 AC 1
Oceanic Sunline Special Shipping Company Inc v Fay [1988] HCA 32
Owen v Menzies (2013) 2 Qd R 327
Stokes (by a tutor) v McCourt [2013] NSWSC 1014
Stubberfield v Lippiatt [2006] QSC 281UBS AG v Scott Francis Tyne as trustee of the Argot Trust (2018) 92 ALJR
REPRESENTATION:
Applicant:
Self-represented
Respondent:
Self-represented
APPEARANCES:
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
The Gilmours and the Wises reside on adjoining properties. On the Wises’ land is a tree the Gilmours say affects their land. The Gilmours want the tree removed. The Gilmours have filed an application for a tree dispute.[1]
[1]Application for a tree dispute filed 24 July 2019.
At a directions hearing on 17 October 2019 the tribunal directed the parties to file and exchange submissions ‘on whether the tribunal has jurisdiction to determine the current application’.[2]
[2]Directions dated 17 October 2019, Direction 5.
With great respect, I am of the view that the issue falling for consideration is not the jurisdiction of the tribunal in respect of the present dispute. There cannot be any doubt that the dispute between the parties is one in relation to which the tribunal has jurisdiction under the…
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- AGLC
- Gilmour v Wise [2020] QCAT 77
- Case
- [2020] QCAT 77
- Decision Date
CaseChat Overview and Summary
The Gilmours argued that the previous decision did not consider the safety and liability of the tree. However, the court noted that the previous decision was a final decision and there was no hearing and determination on the merits. The matter was resolved at a compulsory conference at an early stage of the proceedings and before the parties had filed their statements of evidence. The Gilmours did not dispute that the previous decision was a final decision and there was no submission by either party to the contrary. Additionally, the court found that the Gilmours had not complied with the consent orders. The Wises nominated a panel of arborists in accordance with the orders, but the Gilmours elected to perform certain pruning works on the tree themselves. The Gilmours commenced these proceedings almost two and a half years after the consent orders were made and having made no attempt to comply with the orders. The tribunal may dismiss a proceeding if it considers it to be vexatious, frivolous or misconceived, lacking in substance or an abuse of process. The court held that the Gilmours’ application was vexatious and an abuse of process, as it was an attempt to re-litigate issues which had already been determined in previous proceedings.
Orders
Orders of the court
Application for a tree dispute filed 24 July 2019 dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In reply the Gilmours say that these proceedings ‘look purely at the safety and liability of keeping a 40m high environmental weed known for losing limbs in extreme weather in a residential area.’[9][9]Respondents’ submissions filed 27 November 2019.Consideration It cannot be disputed that the decision of the tribunal made by consent following the compulsory conference in the first proceedings was a final decision.[10] The orders explicitly state that the decision is in full and final satisfaction of the application. There is no submission by either party to the contrary. Having said this, there was no hearing and determination on the merits. The matter resolved at a compulsory conference at an early stage of the proceedings and before the parties had filed their statements of evidence. [10]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) ss 84(1)-(3). The submissions by the Gilmours are curiously silent on the issue of the compliance by the parties with the consent orders. It appears to be uncontentious, and the Gilmours do not submit otherwise, that the Wises nominated a panel of arborists in accordance with the orders. It appears at that point, compliance with the consent orders ended. Rather than nominating an arborist from the panel to undertake an assessment of the tree, and for reasons unexplained by them, the Gilmours elected to perform certain pruning works on the tree themselves. Almost two and a half years after the consent orders were made and having made no attempt to comply with the orders, the Gilmours commenced these proceedings. The tribunal may, if it considers a proceeding to be vexatious, frivolous or misconceived, lacking in substance or an abuse of process, dismiss the proceeding.[11] The term ‘vexatious’ is not defined in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). [11]Ibid s 47. In a judicial context ‘vexatious’ has been held to mean productive of serious and unjustified trouble and harassment.[12] In another context, a vexatious proceeding is one that is an abuse of process.[13] In Stubberfield v Lippiatt,[14] Philippides J (as Her Honour then was) held:What amounts to an abuse of process is insusceptible of a formulation comprising closed categories. It includes proceedings which are shown to be frivolous, vexatious or harassing or to be manifestly groundless or clearly give rise to no cause of action and extends to proceedings that are seriously and unfairly burdensome, prejudicial or damaging or productive of serious and unjustified trouble and harassment.[12]Oceanic Sunline Special Shipping Company Inc v Fay [1988] HCA 32.[13]Vexatious Proceedings Act 2005 (Qld) sch.[14][2006] QSC 281, [20]. An attempt to re-litigate issues which have already been determined in previous proceedings where the principles of res judicata or issue estoppel are applicable may be an abuse of process.[15] [15]Stokes (by a tutor) v McCourt [2013] NSWSC 1014. The term ‘abuse of process’ is not defined in the QCAT Act. The term has its acquired legal meaning.[16] [16]Barker v The Queen (1983) 153 CLR 338.