Kuhnemann v Ollier
[2014] QCATA 224
•20 August 2014
| CITATION: | Kuhnemann v Ollier & Anor [2014] QCATA 224 |
| PARTIES: | Helen Kuhnemann (Applicant/Appellant) |
| v | |
| Robert Ollier Lynette Glubb (Respondents) |
| APPLICATION NUMBER: | APL266-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 20 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – NEIGHBOURHOOD DISPUTES – TREES – COSTS – EXPERTS CONCLAVE – where expert failed to attend conclave – where party later advised intention not to rely on expert – where costs incurred in expert attendance – where order for costs of expert attendance – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 100, 102, 142(3)(a)(ii) Practice Direction 4 of 2009 Pickering v McArthur [2005] QCA 294 |
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
Mr Ollier and Ms Glubb have a camphor laurel tree in their yard. Ms Kuhnemann lives next door. Ms Kuhnemann filed an application under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) for orders that the tree be removed and that Mr Ollier and Ms Glubb pay her $20,000 compensation for damage to her home.
The tree assessor appointed by the tribunal inspected the tree and Ms Kuhnemann’s home. He suggested that an engineer’s report was necessary to determine whether the tree was causing damage to Ms Kuhnemann’s home.
The tribunal ordered the parties file and serve engineer’s reports. Ms Kuhnemann filed her engineer’s report on 24 July 2013. Mr Ollier and Ms Glubb filed their engineer’s report on 21 August 2013.
Practice Direction 4 of 2009 states that experts must attend a conclave, chaired by a member of the tribunal, to identify and clarify areas of agreement, areas of disagreement and the reasons for any disagreement. On 19 November 2013, the tribunal sent the parties a notice that an expert conclave was listed for 17 February 2014.
Ms Kuhnemann’s expert did not attend the conclave. Mr Ollier and Ms Glubb applied for an order that Ms Kuhnemann pay their experts’ costs of attending the conclave. On 27 May 2014, the tribunal ordered that Ms Kuhnemann pay Mr Ollier and Ms Glubb $873.00 as the costs of the expert’s attendance.
Ms Kuhnemann wants to appeal that decision. She says the learned Member did not see, or refer to, her email of 28 February 2014 in which she advised she would not be using her expert. She says that the learned Member erred in finding that she unnecessarily disadvantaged Mr Ollier and Ms Glubb because her decision not to use her expert actually advantaged them by reducing her claim. Ms Kuhnemann also makes lengthy submissions about the substantive issue. It is not readily apparent how these submissions relate to the application to appeal.
Because this is an appeal from a decision of the tribunal that is not a final decision in the proceeding, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act s 142(3)(a)(ii).
[2]Pickering v McArthur [2005] QCA 294 at [3].
The Appeal Tribunal will not interfere with a Member’s exercise of discretion unless it can be shown that the Member acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters[3].
[3]House v The King (1936) 55 CLR 499 at 504.
The learned Member started his consideration of the costs issue from the default position that each party should bear their own costs of the proceeding[4]. He noted that the tribunal can order costs if it is in the interests of justice to do so. He further noted that, in deciding whether to order costs, the tribunal may consider whether a part is acting in a way that unnecessarily disadvantages another party to the proceeding[5].
[4]QCAT Act s 100.
[5]QCAT Act s 102(3)(a).
Mr Ollier and Ms Glubb’s expert attended the conclave. Ms Kuhnemann’s expert did not attend the conclave. Ms Kuhnemann did not notify either the tribunal or Mr Ollier and Ms Glubb that her expert was not attending the conclave. It is no answer for Ms Kuhnemann to say that she notified the tribunal on 28 February 2014 – after the conclave. It is no answer to say that she could not afford the expert – that decision could have been communicated before the conclave. It is no answer to say that she has benefited Mr Ollier and Ms Glubb – they had already incurred the cost of their expert’s attendance.
I can find no error in the learned Member’s exercise of his discretion. He did not act upon a wrong principle. There was no mistake of fact. He was not influenced by irrelevant matters. Leave to appeal should be refused.
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