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- Unreported Judgment
Moreno v Parer  QCAT 223
Other minor civil dispute matters
28 April 2017
Senior Member Brown
12 June 2017
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;  HCA 27
Clout & Ors v Klein & Ors  QSC 401
HM Hire Pty Ltd v National Plan and Equipment Pty Ltd and Anor  QSC 274
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589;  HCA 45
Mr JP Mould of Counsel, directly briefed by the Applicant
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:
- Should the trees (or any of them), the subject of this proceeding, have been included in the first proceeding?
- If so, what is the appropriate order in this proceeding?
The tree dispute
- The dispute between the parties is a long and acrimonious one.
- Ms Moreno commenced the first proceeding in November 2015. The first proceeding was part heard in November 2016 and further part heard in March 2017. The further hearing of the first proceeding has been stayed pending the outcome of Magistrates Court proceedings that may have some bearing on the evidence in the first proceeding and the issues in dispute.
- This proceeding was commenced after the hearing of the first proceeding in March 2017.
Should the trees (or any of them) have been included in the first proceeding?
- At the hearing of the first proceeding, and with the assistance of the parties’ legal representatives, the presiding Member identified the issues in dispute by reference to the relevant trees:
- Obstruction of sunlight to the roof of Ms Moreno’s dwelling interfering with solar panels;
- Obstruction of a view from Ms Moreno’s dwelling;
- Risk to persons or property on Ms Moreno’s land posed by falling branches from a gum tree and silky oak;
- Risk of damage to Ms Moreno’s property posed by the roots of bamboo;
- Risk of damage to Ms Moreno’s property posed by leaf litter caused by bamboo;
- Interference with the use and enjoyment of Ms Moreno’s land as a result of gum tree branches banging on the roof of her dwelling;
- Obstruction of sunlight to windows of Ms Moreno’s dwelling and other outside areas caused by bamboo, lilly pillies and a tuckeroo;
- It is not clear from the transcript of the first proceeding which trees were being referred to in respect of issues (a) and (b) referred to, however reference to the experts’ joint reports provides some clarification.
- Two experts’ conclaves were convened in the first proceeding. The first conclave was attended by Ms Moreno’s lighting expert and Ms Parer’s arborist and lighting expert. The second conclave was attended by Ms Moreno’s arborist and Ms Parer’s arborist. Two joint reports were produced and are in evidence in the first proceeding.
- In the first joint report, the trees the subject of the dispute, and the complaints regarding the trees, are identified as:
- Bamboo – obstruction of sunlight and leaf drop;
- Lilly pillies and tuckeroo running in line with bamboo – future obstruction of views, future obstruction of sunlight;
- Gum tree – leaf drop, obstruction of sunlight, risk of damage to persons or property, staining of tiles;
- Silky oak – obstruction of sunlight, leaf drop.
- In the second joint report, the trees are identified as:
- Bamboo – leaf drop, obstruction of sunlight;
- Lilly pillies and tuckeroo – potential to obstruct sunlight and views;
- Gum tree – leaf drop, obstruction of sunlight, risk of damage to persons or property;
- Silky oak tree – leaf drop, obstruction of sunlight.
- The complaints by Ms Moreno relating to the trees in this proceeding are identified in the Application for a tree dispute as follows:
- Mock orange hedge. The hedge comprises nine trees, is 10 metres long, 1 metre wide and 3.5 metres high. At the time of the hearing in November 2016, Ms Moreno says the hedge was 2 metres high. Ms Moreno says that it is likely within the next twelve months that the hedge will cause severe obstruction of sunlight, impacting the efficiency of Ms Moreno’s solar energy system. She also says that the trees deposit excessive leaf litter into the gutters of her dwelling;
- Jasmine hedge. The hedge is described as line of mature jasmine trees, measuring approximately 6.5 metres in height and 13 metres in length. At the time of the hearing in November 2016, Ms Moreno says the hedge was 2 metres high. Ms Moreno says that the hedge is causing a severe obstruction of a view from her dwelling and is likely, within the next twelve months, to severely obstruct sunlight impacting the efficiency of her solar energy system. Ms Moreno also says that the jasmine hedge is likely within the next twelve months to shade windows of her dwelling;
- Lily Pillies (rear boundary). These trees are located on the northern boundary of Ms Parer’s property and are between 3.5 metres and 4.5 metres in height. At the time of the hearing in November 2016, Ms Moreno says the trees were 2.5 metres high. Ms Moreno says that the trees are causing a severe obstruction of a view from her dwelling;
- Magnolia. Ms Moreno complains of four trees. Two trees (magnolias 1) are contained within the mock orange hedge and are 2 metres high and 1 metre wide. Ms Moreno makes the same complaints of the magnolias 1 as those made regarding the mock oranges. Two trees (magnolias 2) are said to be 3.5 metres high and are situated at the northern end of the boundary of Ms Parer’s property. Ms Moreno says that in November 2016, the trees were 3 metres high. Ms Moreno says that the magnolias 2 are likely, within the next twelve months, to severely obstruct sunlight to the windows of her dwelling.
- Black wattle. The height of this tree is not identified by Ms Moreno in the application however at the hearing of the strike out application she indicated that the tree is 12 metres to 15 metres tall. In November 2016, Ms Moreno says that the tree was 10 metres to 15 metres high. The impact of the tree is said to be a severe obstruction of sunlight to the solar energy system on Ms Moreno’s dwelling;
- Bush cherry. This tree is the same height as magnolias 2, is in the same location as magnolia 2 and has the same impact upon Ms Moreno’s land as magnolia 2. Ms Moreno says that at November 2016, the tree was 3 metres high;
- Frangipani. This tree is 6.5 metres high. In November 2016 Ms Moreno says the tree was 5 metres high. Ms Moreno says the tree causes a severe obstruction of sunlight impacting upon her solar energy system and deposits excessive leaf litter into the gutters of her dwelling.
- Ms Moreno says that she did not include the trees in the previous proceeding because the trees did not then affect her land and now, as a result of growth, affect her land. There was a suggestion by Ms Moreno’s counsel at the hearing of the strike out application that Ms Parer had ceased or reduced maintaining some or all of the trees since November 2016 thus giving rise to the present complaints regarding the impact the trees have on Ms Moreno’s land. There is no evidence from either Ms Moreno or Ms Parer relating to this assertion. Even if there was, it would not generally be appropriate for factual findings to be made in an interlocutory application in circumstances where, as I suspect would be likely here, those facts are disputed.
- Ms Parer says that Ms Moreno should have brought all the claims for trees on Ms Parer’s land in the first proceeding and failed to do so. She says that this proceeding is vexatious and an abuse of process on the basis that it relates to the same substantive subject matter as the first proceeding, and that an Anshun estoppel arises.
- Ms Moreno says that an Anshun estoppel does not arise because she could not reasonably have been expected to bring the claim at the time the first proceeding was commenced. She says that she unsuccessfully sought to include the frangipani tree and jasmine trees in the first, as yet unfinalised, proceeding and that the claim in this proceeding relates to different trees and different issues.
- A party may be estopped from raising a claim which it could have litigated in previous proceedings if it was unreasonable for the claim not to have been so litigated. An Anshun estoppel does not arise where, as here, the first proceeding has not been heard and decided.
- Trees are living, growing organisms. A tree that at a point in time does not affect a neighbour’s land may, at another future point in time, affect the land as a result of, for example, growth or a change in the health and vitality of the tree. Similarly, a tree that is not likely to affect a neighbour’s land in the ensuing 12 months may, at a subsequent point in time, be likely to affect the land in the next 12 months.
- If a proceeding for a tree dispute progresses for a sufficient period in the tribunal, it is entirely possible that a tree not affecting a neighbour’s land at the time the application is filed (and thus not included in the proceeding), may begin to affect the neighbour’s land after the filing of the application. In such a circumstance, should the neighbour file a further application or apply to amend their original application to include the ‘new’ tree/s? I would observe that there is nothing in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (ND Act) that prevents a neighbour from commencing more than one application for a tree dispute.
- Before considering this issue further, I will deal with the frangipani tree and the jasmine hedge. Ms Moreno says that she sought to raise the frangipani tree and the jasmine hedge in the first proceeding. She says this was objected to ‘and found in the Respondent’s favour …’. It is not entirely clear what Ms Moreno is referring to in her submission. At the hearing of the first proceeding in November 2016, Ms Moreno’s counsel advised the Tribunal that Ms Moreno abandoned any claim in relation to what was described as a lilly pilly/jasmine hedge. The frangipani tree was also raised at the hearing although the transcript makes no mention of any claim about that tree being abandoned. It is clear however from the transcript, and Ms Moreno’s submissions in the strike out application, that Ms Moreno sought to include in the first proceeding claims regarding the frangipani tree and the jasmine hedge and that those claims were not pursued by her. The transcript reveals that there was not, as Ms Moreno submits, a finding in Ms Parer’s favour regarding the frangipani tree and the jasmine hedge.
- Having abandoned the claims relating to the frangipani and jasmine hedge in the first proceeding, Ms Moreno now seeks to include these trees in this proceeding. It is difficult to reconcile Ms Moreno’s submissions that the trees the subject of this proceeding were not affecting her land in November 2016 with her attempts to include the frangipani tree and the jasmine hedge in the first proceeding. Presumably the frangipani tree and jasmine hedge were, at least in Ms Moreno’s view, affecting her land at the time of the hearing of the first proceeding.
- Is the attempt by Ms Moreno to include in this proceeding the claims relating to the frangipani and the jasmine hedge an abuse of process? Abuse of process principles may be invoked to prevent attempts to litigate that which should have been litigated in earlier proceedings as well as attempts to re-litigate that which has already been determined. What is required is a value judgement to be made as to the proper conduct of the litigation. In my view, Ms Moreno should not be permitted to prosecute the claims in relation to the jasmine hedge and frangipani tree. Whilst Ms Moreno is not attempting to re-litigate issues already heard and decided, she is seeking to resurrect claims abandoned by her in the first proceeding. The appropriate time for those claims to be pursued was prior to or at the hearing in November 2016. The abandonment of the claims, in my view, represents an acknowledgment by Ms Moreno that the claims about the trees had been made very late in the proceeding, had not been the subject of expert consideration and reporting and had not been included in the experts’ joint report. It seems to me that the abandonment of the claims relating to the trees involved more than a little pragmatism on Ms Moreno’s part, with the very real prospect of the claims being rejected or orders being made requiring, perhaps, a further experts’ conclave. Costs would have loomed large in such an event. Ms Moreno should not now be permitted to pursue those abandoned claims in this proceeding. To permit the claims to proceed would be an abuse of process.
- As to the balance of the trees, Ms Parer says that the requirements of s 65(a) of the ND Act have not been complied with and that the Tribunal cannot therefore make an order pursuant to s 66 to address what Ms Moreno says is the impact of the trees on her land. For the following reasons, I do not accept this submission.
- The Tribunal may make an order under s 66 if it is satisfied that, among other things, the neighbour has made a reasonable effort to reach agreement with the tree-keeper. Section 65(a) of the NDA does not require a neighbour to make such an effort before filing an application for a tree dispute. That effort must however be made before a final decision in a proceeding. The Tribunal, through its processes including ordering that the parties attend a compulsory conference, ensures that parties make an effort to reach a resolution of a tree dispute without the necessity of a hearing. The tree keeper and the neighbour are encouraged to resolve a dispute informally. The neighbour may however apply to the Tribunal for resolution of the dispute. There will no doubt be an opportunity for the parties to attempt to resolve the issues in dispute before a hearing and final decision in this proceeding.
- Ms Parer says that Ms Moreno should have applied to amend her application in the first proceeding to include the trees. If the trees, the subject of this proceeding, were not affecting Ms Moreno’s land at November 2016, and it was not anticipated that the trees would in the ensuing 12 months affect the land, there would have been no basis for an application to include the trees in the first proceeding. In making this observation I should say that I have some reservations about what Ms Moreno says is the growth of the trees since November 2016. The extent of that growth, in a period of 6 months, is said in some instances to be three metres. Whilst this might seem a surprising submission, in the absence of any evidence one way or the other, no findings can be made about the extent of the tree growth. Suffice it to say that the growth asserted by Ms Moreno would, if established on the evidence, impact upon whether a tree might not affect land at a point in time and yet affect land at a later point in time.
- In circumstances where, as here, it is asserted that a tree does not affect a neighbour’s land at the time an application for a tree dispute relating to another tree or trees is filed, there is nothing preventing a neighbour from filing a further application once it is asserted that the tree has begun to affect the neighbour’s land. Of course, the preferable course of action is for all relevant trees to be included in an application however this will not always be possible. Circumstances will vary widely from case to case.
- The Tribunal may strike out or dismiss a proceeding if the Tribunal considers the proceeding, or part of a proceeding, to be frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process. The discretion to summarily dismiss a claim and thereby deprive a party of the right to seek final relief should be exercised sparingly and only in those cases where a claim is so clearly untenable that it cannot succeed. In circumstances where it is asserted that a proceeding is an abuse of process, the power to dismiss or strike out a proceeding should only be exercised with great caution.
- There is clearly a factual dispute about the impact of the trees upon Ms Moreno’s land. The claim by Ms Moreno is not so clearly untenable that it cannot succeed. Whilst I have expressed some reservations regarding what Ms Moreno has to say about the growth of the trees since the first proceeding was heard, I do not consider this proceeding to be an abuse of process or otherwise liable to be dismissed or struck out. Subject to what I have said about the frangipani tree and jasmine hedge, Ms Moreno was entitled to commence this proceeding in respect of trees alleged to affect her land that she says were not affecting her land in November 2016.
- The Tribunal may, at any time in a proceeding, make an order requiring that a relevant document be amended. The power to order an amendment found in s 64 QCAT Act includes striking out all or part of a relevant document. The exercise of the discretion to strike out requires a consideration of the following factors: ensuring that relevant documents filed in the Tribunal disclose a reasonable cause of action or defence, do not prejudice or delay the fair trial of the proceeding, are not unnecessary or scandalous, frivolous or vexatious or otherwise an abuse of process.
- I have found that Ms Moreno should not be permitted to pursue the claims relating to the frangipani tree or the jasmine hedge. It is appropriate that those parts of the application referring to the frangipani tree and the jasmine hedge are struck out and I order accordingly. The Tribunal is not a pleadings jurisdiction and the references to the frangipani tree and jasmine hedge are spread throughout the application form and attachments. Accordingly, rather than referring in the order to the specific parts of the application relating to the frangipani tree and the jasmine hedge, Ms Moreno will be required to file an amended application removing any claims relating to the frangipani tree and the jasmine hedge.
- Given the commonality and overlap of issues between this proceeding and the first proceeding it is appropriate that this proceeding travel with NDR170-15, at least until the conclusion of the compulsory conference to be held in the first proceeding. It is appropriate that a compulsory conference be held in this proceeding at the same time as the compulsory conference in NDR170-15. If the issues in dispute cannot be resolved, further directions may be made including the filing of expert evidence and the convening of an experts’ conclave.
- I order as follows:
- 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;
- 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;
- The application for miscellaneous matters filed 22 March 2017 is otherwise dismissed;
- Until further order, proceeding NDR038-17 will travel with proceeding NDR170-15.
Mock orange hedge; Jasmine hedge; Lilly Pillies (rear boundary); Magnolia; Black wattle; Bush cherry; Frangipani; and see Applicant’s amended submissions filed 12 May 2017 at .
Lily Pillies (eastern boundary); Bamboo; Tuckeroo; Gum tree; Silky oak; and see Applicant’s amended submissions.
T1-23, line 40.
T1-24, line 10.
T1-24, line 46.
T1-25, line 20.
T1-26, line 5 and T1-38, line 20.
T1-28, line 22.
T1-29, line 10.
Joint report, Chris Thompson, Aleksander Velde, Adam Tom, 26 August 2016.
Joint report, Adam Tom, Jason-Jay Fletcher, 2 November 2016.
Applicant’s submissions, 12(a).
Oral submissions by Ms Moreno at hearing on 28 April 2017.
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, 602.
Clout & Ors v Klein & Ors  QSC 401.
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46(a)(ii), ‘When is land affected by a tree’.
Applicant’s submissions, .
T2-73, line 43.
AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.
HM Hire Pty Ltd v National Plan and Equipment Pty Ltd and Anor  QSC 274.
ND Act, s 65(a).
Ibid, s 60(1).
ND Act, s 60(2)(b).
Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 47(1) and (2).
QCAT Act, s 64(1).
Ibid, s 64(1).
- Published Case Name:
Moreno v Parer
- Shortened Case Name:
Moreno v Parer
 QCAT 223
Senior Member Brown
12 Jun 2017