Lowe v Smithies - [2022] QCATA 99

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Lowe & Anor v Smithies & Ors [2022] QCATA 99

PARTIES:

ALISON JILL LOWE
NATHAN EDWARD LOWE

(appellants)

v

LEANNE MARGRET SMITHIES
NEIL SMITHIES
RITA DANIELA BONOMO
ANTONIO BONOMO

(respondents)

APPLICATION NO/S:

APL365-20

ORIGINATING APPLICATION NO/S:

NDR129-19
NDR116-19

MATTER TYPE:

Appeals

DELIVERED ON:

5 July 2022

HEARING DATE:

3 May 2022

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1. Leave to appeal is refused.

2. The appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ERROR OF LAW – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where tribunal found trees on appellants affected respondents’ land – whether evidence supported finding of substantial, ongoing and unreasonable interference – where tribunal did not consider evidence of arborist filed by appellants – whether tribunal erred in not considering such evidence – whether experts qualified to give evidence - whether Tribunal failed to give appellants evidence appropriate weight –

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(1), s 142(1), s 142(3)(b), s 146, s 147

Cachia v Grech [2009] NSWCA 232

Ericson v Queensland Building Services Authority [2013] QCA 391
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Pickering & Anor v McArthur [2010] QCA 341
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41;
Rintoul v State of Queensland & Ors [2018] QCA 20

Smithies & Anor v Lowe & Anor [2020] QCAT 437

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Mr and Mrs Lowe (the appellants) appeal a decision of the Tribunal requiring them to undertake works on trees located on their land.
The appellants have a property adjoining properties owned by Mr and Mrs Smithies’ and Mr and Mrs Bonomos’ (collectively referred to in these reasons as the respondents). There are a number of trees situated on the appellants’ land. The respondents say that the trees affect their land. The parties could not resolve the issues in dispute and the respondents commenced proceedings in the Tribunal. The Tribunal ordered that the appellants undertake work in respect of the trees. The appellants have appealed the decision.
Appeal proceedings in the Tribunal
An appeal to the Appeal Tribunal on a question of law is as of right.[1] An appeal on a question of fact or mixed law and fact requires the leave of the Appeal Tribunal.[2]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 142(1).
[2]Ibid, s 142(3)(b).
In deciding an appeal on a question of law only, the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and return the matter to the tribunal (either as originally constituted or differently constituted) for reconsideration.[3]
[3]Ibid, s 146.
Subject to leave to appeal being granted,…

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 Lowe v Smithies

Details

AGLC: Lowe v Smithies [2022] QCATA 99
Case: [2022] QCATA 99
Decision Date: 5 July 2022

CaseChat Overview and Summary

Lowe v Smithies is a case concerning a dispute between neighbours over the effect of trees on the appellants' land on the respondents' enjoyment of their land. The Queensland Civil and Administrative Tribunal (QCAT) had previously ruled in favour of the respondents, ordering the appellants to lower the height of the trees on their property and maintain them annually. The appellants sought to appeal this decision, arguing various grounds, including that the tribunal erred in its consideration of the evidence of the arborists. The Court of Appeal was tasked with determining whether the tribunal's decision contained errors of law and whether it should interfere with the tribunal's findings of fact.

The Court of Appeal found that the tribunal did not err in its consideration of the arborists' evidence. The tribunal was entitled to accept the evidence of the respondents' arborists and reject that of the appellants' arborist, who was not qualified to give expert evidence. The tribunal also did not err in failing to give the appellants' evidence appropriate weight, as it was not credible. The Court of Appeal further found that the tribunal's reasons for decision did not contain any errors of fact, unsubstantiated assumptions, misquoted comments, or complaints. The tribunal's final orders were consistent with other recent decisions, and the appellants had failed to establish that relevant changes since the arborists prepared their reports were not taken into consideration.

The Court of Appeal refused leave to appeal and dismissed the appeal. The Court found that the appellants had ample opportunity to obtain the evidence they now sought to adduce but failed to do so. The evidence was not credible, and it was not possible to speculate on how it might have influenced the outcome below. The Court also found that the tribunal's decision did not contain any errors of law that would warrant interference with its findings of fact. The tribunal was entitled to reject the evidence of the appellants' arborist and accept that of the respondents' arborists. The Court of Appeal's decision was that the appeal should be dismissed, and the tribunal's orders should stand.

Orders

Orders of the court

1. Leave to appeal is refused.

2. The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

If an appeal involves a question of law, unless the determination of the error of law decides the matter in its entirety in the appellant’s favour, the proceeding must be returned to the tribunal for reconsideration.[6] [6]Ericson v Queensland Building Services Authority [2013] QCA 391.The decision under appeal Relevant to the present appeal, the learned member found as follows:(a)A number of lemon myrtle trees and a liquidamber tree (the trees) were situated on the appellants’ land;(b)The trees affected the respondents’ land by causing a substantial, ongoing and unreasonable interference with the respondents’ use and enjoyment of their land by causing a severe obstruction of sunlight to windows and roof of the respondents’ homes; (c)In respect of the claim by the Smithies, the lemon scented myrtles caused a severe obstruction of a view that existed when the Smithies first took possession of the land; (d)The height of the trees should be lowered; (e)The height of the trees was to be reduced uniformly along the fence line between the appellants’ and the respondents’ properties to a height of approximately 500mm above the height of the fence line between the appellants’ and the Smithies’ properties with the result that the height of the trees would be approximately 700mm above the height of the fence line between the appellants’ and the Bonomos’ properties; (f)The height of the trees was to be thereafter maintained on an annual basis by a level 3 qualified arborist; (g)The appellants were to pay the costs of the tree works including the annual maintenance costs. The grounds of appeal The grounds of appeal, though expressed in a somewhat diffuse way, may be understood as follows:(a)The Tribunal erred in accepting the evidence of the respondents’ arborists on the basis that they lacked appropriate qualifications;(b)The Tribunal failed to consider the evidence of the appellants’ or, if it did, failed to give such evidence appropriate weight;(c)The Tribunal failed to consider the evidence of the appellants’ arborist;(d)The reasons for decision contain various errors of fact, unsubstantiated assumptions, misquoted comments, and complaints;(e)The final orders are inconsistent with other recent Tribunal decisions;(f)Relevant changes since the arborists prepared their reports were not taken into consideration.ConsiderationPreliminary issue – application by the appellants to adduce fresh evidence. The appellants have applied for leave to adduce fresh evidence in the form of a report by an arborist. The appellants sought to rely upon evidence from an arborist, Daniel Oaten, in the proceedings below. The evidence of Mr Oaten will be considered as is relevant as part of the substantive appeal. The application to rely upon fresh evidence relates to additional evidence which the appellants are yet to obtain. The matters to be considered in deciding an application to rely upon fresh evidence in appeal proceedings are:(a)Had the party acted diligently, could the evidence have been obtained at time of the first hearing?(b)Is the evidence credible?(c)Would the evidence be likely to have had an important influence on the outcome of the proceedings?[7][7]Pickering & Anor v McArthur [2010] QCA 341, [22].

Ratio Decidendi

Legal Principle Established

The grounds of appeal, though expressed in a somewhat diffuse way, may be understood as follows:(a)The Tribunal erred in accepting the evidence of the respondents’ arborists on the basis that they lacked appropriate qualifications;(b)The Tribunal failed to consider the evidence of the appellants’ or, if it did, failed to give such evidence appropriate weight;(c)The Tribunal failed to consider the evidence of the appellants’ arborist;(d)The reasons for decision contain various errors of fact, unsubstantiated assumptions, misquoted comments, and complaints;(e)The final orders are inconsistent with other recent Tribunal decisions;(f)Relevant changes since the arborists prepared their reports were not taken into consideration.ConsiderationPreliminary issue – application by the appellants to adduce fresh evidence. The appellants have applied for leave to adduce fresh evidence in the form of a report by an arborist. The appellants sought to rely upon evidence from an arborist, Daniel Oaten, in the proceedings below. The evidence of Mr Oaten will be considered as is relevant as part of the substantive appeal. The application to rely upon fresh evidence relates to additional evidence which the appellants are yet to obtain. The matters to be considered in deciding an application to rely upon fresh evidence in appeal proceedings are:(a)Had the party acted diligently, could the evidence have been obtained at time of the first hearing?(b)Is the evidence credible?(c)Would the evidence be likely to have had an important influence on the outcome of the proceedings?[7][7]Pickering & Anor v McArthur [2010] QCA 341, [22]. Clearly, the appellants’ had ample opportunity prior to the hearing below to obtain a report of the nature they now seek to adduce. They failed to comply with Tribunal directions to contribute to the costs of engaging an assessor. They were aware, or should have been aware, of the consequences of failing to comply with the directions. The appellants could have applied for leave to rely upon their own expert evidence. Directions made by the Tribunal on 19 December 2019 clearly permitted the Tribunal to allow further expert evidence. The appellants took no steps to advance their interests by obtaining the further expert evidence they now seek to adduce. As to whether the evidence is credible, the fact that the report has not yet been obtained precludes any consideration of its merits. It is also not possible to speculate on how the evidence might have influenced the outcome below. The appellants have failed to establish any basis upon which leave to adduce fresh evidence should be given. The application to adduce fresh evidence is refused. The grounds of appeal. I will first address the ground of appeal relating to the evidence of the appellants’ arborist. As I have noted earlier, this evidence was obtained prior to the hearing below and is separate and distinct from the proposed further evidence the appellants have, unsuccessfully, sought to adduce.