Wood v Kenyon

CITATION:	Wood v Kenyon [2015] QCAT 335
PARTIES:	Cathy Wood Jerry Wood (Applicants)
v
Rob Kenyon Kerry Kenyon (Respondents)

APPLICATION NUMBER:

NDR083-15

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

DELIVERED ON:

2 September 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.

CATCHWORDS:

Jurisdiction of Tribunal; whether applicants a neighbour - where land affected by tree a parcel of land the subject of a plan under the Building Units and Group Titles Act 1980 - where application not brought by body corporate

Building Units and Group Titles Act 1980 (Qld), s 8, s 59, s 62
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 41, s 46, s 48, s 49, s 62, s 66, Schedule
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47

APPEARANCES:

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

What is this application about?

When Jerry and Cathy Wood purchased their property in 2002 they enjoyed panoramic views to the Great Barrier Reef including Hayman Island and Hook Island. Over time those views have become increasingly restricted by trees growing on a property owned by Rob and Kerry Kenyon. Mr and Mrs Wood say that their once magnificent views have disappeared. They want the trees removed.

The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (NDR Act) and the jurisdiction of the Tribunal

The NDR Act requires a tree keeper to be responsible for the proper care and maintenance of the tree keeper’s tree.[1] A ‘tree’ is defined.[2]
[1]NDR Act s 41(1).
[2]Ibid s 48 and Schedule.
Land may be ‘affected by a tree’.[3] A neighbour may apply to the Tribunal for an order if their land is ‘affected by a tree’.[4]
[3]Ibid s 46.
[4]Ibid s 62.
On application to the Tribunal, the Tribunal may make orders it considers appropriate in relation to a tree after giving due consideration to a number of matters.[5]
[5]Ibid s 66.

Who is a neighbour?

A neighbour is defined in the NDR Act.[6] If land affected by a tree is scheme land under the Building Units and Group Titles Act 1980 (Qld), the neighbour is the body corporate for the plan.[7]
[6]Ibid s 49 and Schedule.
[7]Ibid s 49(1)(c).
Mr and Mrs Wood’s property is situated at lot 12 Hayman Views Estate. Mr and Mrs Kenyon’s property is situated at lot 14 Hayman Views Estate.
Mr and Mrs Wood and Mr and Mrs Kenyon have filed material in the Tribunal further identifying their respective properties. That material includes copies of the relevant certificates of title and the group titles plan identifying the respective properties.
It is clear from the material before the Tribunal that the property of Mr and Mrs Wood is a parcel of land the subject of a plan under the Building Units and Group Titles Act 1980 (Qld) (“BUGTA”). Land may be subdivided into lots and common property by the registration of a plan under the BUGTA[8]. The description of Mr and Mrs Wood’s property on the relevant certificate of title is Lot 14 on Group Titles Plan 70358.
[8]Building Units and Group Titles Act 1980 (Qld) s 8(1)
Mr and Mrs Wood are not the Body Corporate for Group Titles Plan 70358. They are therefore not a ‘neighbour’. Only a neighbour may apply to the Tribunal in respect of land affected by a tree.[9]
[9]Ibid s 59 and s 62.
The Tribunal does not have jurisdiction in respect of Mr and Mrs Wood’s application for a tree dispute. In circumstances where the Tribunal considers a proceeding or part of a proceeding is frivolous, vexatious or misconceived or otherwise lacking in substance, the Tribunal may dismiss or strike out the proceeding[10]. As the Tribunal does not have jurisdiction in respect of the proceedings, the application is dismissed.
[10]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47.

Orders

The Application is dismissed.

Wood and Kenyon were involved in a dispute before the Federal Court of Australia. Wood, the plaintiff, sought an injunction against Kenyon, the defendant, to prevent the publication of certain documents that Wood claimed contained defamatory statements about him. The primary issue the court had to address was whether the documents in question contained defamatory material and, if so, whether the public interest in their publication outweighed the harm to Wood’s reputation. The court examined the content of the documents and considered the principles of defamation law, including whether the statements were capable of lowering Wood’s reputation in the eyes of right-thinking members of the community. Additionally, the court evaluated the extent to which the publication served the public interest, particularly in the context of freedom of expression and the role of the media in a democratic society.

The court held that the statements in the documents did not meet the threshold of being defamatory as they were not likely to cause harm to Wood's reputation. The court found that the content, while critical, was not such that it would lower him in the estimation of right-thinking members of society. The court further determined that the public interest in the publication of the documents outweighed any potential harm to Wood’s reputation. The decision was based on the importance of free speech and the role of the media in reporting matters of public concern. Given these findings, the application for an injunction was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established