Moreno v Parer - [2017] QCAT 223

CITATION:

Moreno v Parer [2017] QCAT 223

PARTIES:	Sandra Moreno (Applicant)
v
Rebecca Parer (Respondent)

APPLICATION NUMBER:

NDR038-17

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

28 April 2017

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

DELIVERED ON:

12 June 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Those parts of the Application for a tree dispute filed 8 March 2017 referring to claims in relation to the frangipani tree and jasmine hedge are struck out;

2. Sandra Moreno must file in the Tribunal two (2) copies and give to Rebecca Parer one (1) copy of an amended application for a tree dispute by: 4:00pm on 16 June 2017;

3. The application for miscellaneous matters filed 22 March 2017 is otherwise dismissed;

4. Until further order, proceeding NDR038-17 will travel with proceeding NDR170-15.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGEMENT FOR DEFENDANT OR RESPONDENT – where applicant commenced application for tree dispute – where applicant commenced subsequent application for tree dispute relating to different trees – where respondent asserts applicant’s second application an abuse of process

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – OTHERWISE ABUSE OF PROCESS – where applicant seeks to include claims abandoned in earlier proceedings

ENVIRONMENT AND PLANNING – TREES VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – whether land affected by trees at a particular point in time

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46(a)(ii), s 65(a), s 60, s 66
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 64(1)

AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Clout & Ors v Klein & Ors [2001] QSC 401
HM Hire Pty Ltd v National Plan and Equipment Pty Ltd and Anor [2013] QSC 274
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45

APPEARANCES:

APPLICANT:

Mr JP Mould of Counsel, directly briefed by the Applicant

RESPONDENT:

Mr R McArdle, solicitor, Shine Lawyers

REASONS FOR DECISION

Ms Moreno and Ms Parer are neighbours. They are engaged in a long running dispute regarding trees on Ms Parer’s land. Ms Moreno has filed an application for a tree dispute. She says that there are several trees on Ms Parer’s property affecting her land. Ms Moreno has commenced an earlier proceeding in the Tribunal which is part heard (the first proceeding).
Ms Parer has brought an application seeking to have this proceeding struck out asserting both an abuse of process and an Anshun estoppel. Ms Parer’s principal complaint is that Ms Moreno could, and should, have included the trees referred to in this proceeding in the first proceeding.
The issues for determination are:
a) Should the trees (or any of them), the subject of this proceeding, have been included in the first proceeding?
b) If so, what is the appropriate order in this…

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 Moreno v Parer

Details

AGLC: Moreno v Parer [2017] QCAT 223
Case: [2017] QCAT 223
Decision Date: 12 June 2017

CaseChat Overview and Summary

In the case of Moreno v Parer, Sandra Moreno, the applicant, brought a tree dispute application against Rebecca Parer, the respondent. Moreno initially filed an application on 17 November 2015, which related to trees on Parer's property. Subsequently, on 8 March 2017, Moreno filed another application concerning different trees on Parer's property. Parer contended that Moreno's second application was an abuse of process, as it included claims that had been abandoned in the earlier proceedings. The dispute came before the tribunal, which had to decide whether Moreno's second application constituted an abuse of process and, if so, whether to strike out certain claims.

The court considered whether Moreno's second application was an abuse of process and if specific claims should be struck out. The tribunal assessed the relationship between the two applications and the claims made within them. It was found that Moreno's second application was an abuse of process as it attempted to revive claims that had been previously abandoned. Furthermore, the tribunal determined that the claims relating to the frangipani tree and jasmine hedge should be struck out, as they were based on matters that had been settled or abandoned in the earlier proceedings.

The tribunal ordered that the parts of Moreno's second application referring to the frangipani tree and jasmine hedge be struck out. It directed Moreno to file an amended application by a specified date, excluding the struck-out claims. The tribunal also dismissed the miscellaneous matters application filed by Moreno on 22 March 2017. Additionally, it ruled that Moreno's proceeding would travel with Parer's proceeding until further order.

This decision highlights the importance of ensuring that applications are properly framed and that claims are not revived through subsequent proceedings without valid justification. The tribunal's order to strike out certain claims and direct Moreno to file an amended application underscores the need for procedural fairness and adherence to the rules governing civil proceedings.

Orders

Orders of the court

1. Those parts of the Application for a tree dispute filed 8 March 2017 referring to claims in relation to the frangipani tree and jasmine hedge are struck out;

2. Sandra Moreno must file in the Tribunal two (2) copies and give to Rebecca Parer one (1) copy of an amended application for a tree dispute by: 4:00pm on 16 June 2017;

3. The application for miscellaneous matters filed 22 March 2017 is otherwise dismissed;

4. Until further order, proceeding NDR038-17 will travel with proceeding NDR170-15.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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