Wiseman v RPD Qld Pty Ltd
[2018] QCATA 58
•27 April 2018
CITATION: | Wiseman & Anor v RPD Qld Pty Ltd [2018] QCATA 58 |
PARTIES: | Robin Wiseman |
| v | |
| RPD Qld Pty Ltd (Respondent) | |
APPLICATION NUMBER: | APL114-17 |
MATTER TYPE: | Appeals |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Paratz |
DELIVERED ON: | 27 April 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The following material is not to be relied upon in the Appeal Hearing, and is struck out: (a) From the Applicants’ Application for leave to appeal or appeal, filed 13 April 2017: (i) The last two paragraphs of Part C Grounds of Appeal; and (ii) Attachment 2; (b) From the Applicants’ Appeal Book filed 14 July 2017: (i) Pages 1 to 9; (ii) Pages 10 to 26; (iii) Page 31 - The last two paragraphs of Part C Grounds of Appeal; (iii) Page 31 – Attachment 2; (iv) Pages 32 and 33; (v) Page 40 – The last two paragraphs of Part C Grounds of Appeal; (vi) Page 40 – Attachment 2; (vii) Pages 41 and 42; and (viii) Pages 43 and 44; (c) From the Applicants’ response to the written submission of the Respondent, filed 25 August 2017: (i) Paragraph b (2); and (ii) Photo 1. 2. The Application for leave to appeal and appeal is to be heard on the papers, without an oral hearing, pursuant to Direction 4 given on 20 September 2017, unless an oral hearing is requested by either party within seven (7) days of this decision. |
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – HEARING OF APPEAL – PROOF AND EVIDENCE – where the applicant sought to adduce new evidence on the hearing of an appeal – where the admission of new evidence was refused – where the material which constituted, or referred to, new evidence, was struck out |
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
Ms Wiseman and Mr Matthews (‘the neighbours’) are the owners of a property at 119 Adelaide Street East, Clayfield. They were the applicants in an application as to five Harpulia Pendula trees located on the adjoining property at 123 Adelaide Street East, Clayfield, owned by RPD Qld Pty Ltd (‘the tree-keeper’).
The Tribunal made an order on 9 March 2017 requiring the trees to be reduced in height to 6.5 metres from the ground level of each tree within 28 days of the order, and annually thereafter.
The neighbours filed an application for leave to appeal, or appeal, in the Tribunal on 13 April 2017.
In the Application for leave to appeal, or appeal, the neighbours sought leave to submit new evidence from Mr Glenn Walton, an arborist from Brisbane Tree Experts.
Directions were given by the Tribunal on 24 April 2017 for the filing of submissions by the parties as to the admission of new evidence, and submissions were subsequently received from the neighbours and the tree-keeper.
A Direction was given by the Tribunal on 12 June 2017 as follows:
The application to file new evidence will be determined by the Appeal Tribunal on the papers without an oral hearing not before 4:00pm on
7 July 2017.
The Tribunal made an order on 11 July 2017 that the application to file new evidence was refused.
The Tribunal subsequently made Directions at a Directions Hearing on 20 September 2017 as to submissions as to the material to be relied on in the hearing, and determination of the material to be struck out, as follows:
1. RPD Qld Pty Ltd A.C.N. 087696080 shall file in the Tribunal one (1) copy and give to Robin Wiseman and Peter Matthews one (1) copy of a list of Robin Wiseman and Peter Matthews material that it objects to on the basis that it is new evidence, by:
4:00 pm on 29 September 2017
2. Robin Wiseman and Peter Matthews shall file in the Tribunal one (1) copy and give to RPD Qld Pty Ltd CAN 087696080 one (1) copy of their submissions in response, setting out any material in the list that they argue is not new evidence, and why that material should not be struck out, by:
4:00pm on 13 October 2017
3. The Tribunal will determine on the papers, without an oral hearing, the material to be struck out on the grounds that it is new evidence, not before 4:00pm on 13 October 2017.
The list from the tree-keeper, and the submissions in response by the neighbours, were filed as directed.
These are the reasons in relation to the striking-out of material.
The list filed by the tree-keepers
The list filed by the tree-keepers on 29 September 2017 was as follows:
5. For the purposes of hearing and determining of the Application for leave to appeal and Appeal, the Respondent objects to the Applicants’ reliance upon all material relating to the Application to file new evidence, all new evidence included in the Applicants’ Appeal Book material, and all new evidence included within or attached to the Applicants’ written submissions, summarised as follows:
Applicants’ Application for leave to file new evidence, filed 13 April 2017
(1) All material relating to the Application for leave to file new evidence, including attachment 2 to the application for leave to appeal and to file new evidence, filed 13 April 2017, and the parties’ subsequent written submissions.
Applicants’ Appeal Book, filed 14 July 2017
(2) Pages 1 to 10 - the Respondent’s written submissions concerning the Application for leave to file new evidence.
(3) Pages 10 to 26 inclusive - the Applicants' written submissions concerning the Application for leave to file new evidence.
(4) Part of page 31 - section entitled “Additional evidence that was unavailable when the matter was heard”.
(5) Pages 32 and 33 – attachments containing new evidence.
(6) Part of page 40 - section entitled “Additional evidence that was unavailable when the matter was heard”.
(7) Pages 41 to 44 inclusive – attachments containing new evidence.
Applicants’ Written Submissions In Reply to the Written Submissions of RPD QLD PTY LTD, filed 25 August 2017
(8) The whole of paragraph b)1.
(9) The whole of paragraph b)2.
(10) Photo 1 on page 3.
(11) Diagram 1 on page 4.
Submissions by the neighbours in response as to material to be struck-out
The neighbours submit that ‘all the material provided is required for clarification of the issues’.[1]
[1]They submit as to new evidence in their submissions dated 25 August that:[2]
4. The first 2 paragraphs on the last submission sent in August 2017 labelled (a) and (b) do not include any new evidence, they are simply a statement of facts that would be available to anyone on review of the Transcript from hearing NDR131/2105 which has been submitted to QCAT at their request as part of the appeal; and
5. The hand drawn diagram attached to the August submission is very necessary to clarify the slope on which the trees are planted, as it illustrates that there is an error in the 6.5 metre ruling. The respondent cut 5 of the 6 trees below 6.5 metre from their bases.
[2]
Discussion
The Order of the Tribunal made on 11 July 2017 refused the admission of new evidence on the Appeal Hearing. The material to be considered on the appeal must therefore only be the evidence that was before the Tribunal at first instance.
The purpose of these Reasons is to identify what parts of the material filed before the Appeal Tribunal serve to introduce new evidence, and to strike them out.
Neighbours’ application for leave to appeal or appeal, filed 13 April 2017
The last two paragraphs of ‘Part C Grounds of Appeal’ which are headed ‘Additional evidence that was unavailable when the matter was heard Attachment 2’ solely relate to new evidence. Those two paragraphs and Attachment 2 must therefore be struck out.
Neighbours’ Appeal Book filed 14 July 2017
The written submission of the tree-keeper concerning the application to lead additional evidence at pages 1-9 of the Applicants Appeal Book is solely directed to the issue of new evidence, and therefore is not relevant to the issues to be considered by the Appeal Tribunal, and must be struck out for consideration on the appeal.
The request to file new evidence by the neighbours at pages 10-26 of the Applicants Appeal Book is solely directed to the issue of new evidence, and therefore is not relevant to the issues to be considered by the Appeal Tribunal, and must be struck out for consideration on the appeal.
The last two paragraphs of ‘Part C Grounds of Appeal’ which are headed ‘Additional evidence that was unavailable when the matter was heard Attachment 2’, appear at page 31 of the Applicants Appeal Book, and solely relate to new evidence, as referred to above. Those parts of page 31 referring being the last two paragraphs and Attachment 2 must therefore be struck out.
The report of Brisbane Tree Experts which appears at pages 32 of the Applicants Appeal Book, and the attached sheet of photographs with comments which appear at page 33, is the new evidence referred to in the Application for leave to appeal or appeal, so pages 32 and 33 must therefore be struck out.
The same material that appears at page 31(which is discussed above) re-appears at page 40. Therefore the last two paragraphs of ‘Part C Grounds of Appeal’ which are headed ‘Additional evidence that was unavailable when the matter was heard Attachment 2’, which appear at page 40 of the Applicants Appeal Book must therefore be also struck out.
The same material that appears at pages 32 and 33 (which is discussed above) re-appears at pages 41 and 42. Therefore, pages 41 and 42 must be also struck out.
Photographs appear at pages 43 and 44 that apparently were not put before the Tribunal at first instance, and have been attached to the application for leave to appeal or appeal. These are new evidence and must be struck out.
Neighbours response, filed 25 August 2017, to the written submission of
the tree-keeper
The submissions of the neighbours in paragraph (b) 1 discuss the effect of the actual Order made by the Tribunal (that the five trees are to be reduced in height to 6.5 metres from the ground level of each tree, initially and on an annual basis), and submit that it does not properly reflect the intent of the Reasons.
It is open to the Appeal Tribunal to confirm or amend the decision of the Tribunal, or set aside the decision and substitute its own decision, or to return the matter to the Tribunal for reconsideration.
Whether the Orders of the Tribunal properly reflect the intent of its reasons is a valid matter for consideration by the Appeal Tribunal in deciding whether to amend the decision, or to take one of the other courses open to it. The submissions in paragraph b (1) are appropriate and are not to be struck out.
The submissions of the neighbours in paragraph (b) 2 (which refers to Photo 1) raise evidence as to, and comments on, the growth rate of Harpulia trees. This is evidence that was not put before the Tribunal.
Paragraph b (2) and Photo 1 do constitute new evidence, and are to be struck out.
Diagram 1 on page 4 shows the slope of the land, and the tennis court fence, and is related to the submissions of the neighbours in paragraph b(1) as to whether the Order made by the Tribunal properly reflects the intent of the Reasons.
Diagram 1 on page 4 is therefore also a valid matter for consideration by the Appeal Tribunal and is not to be struck out.
I make orders striking out the material in accordance with the discussion above.
The application for leave to appeal and appeal is now to be heard on the papers, without an oral hearing, pursuant to Direction 4 given on 20 September 2017, unless an oral hearing is requested by either party within seven (7) days of this decision.
Submission in response of Robin Wiseman and Peter Matthews filed
13 October 2017, [1].
Submission in response of Robin Wiseman and Peter Matthews filed
13 October 2017, [4]-[5].
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