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QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Gilmour & Anor v Wise & Anor  QCAT 77
DANE COLIN GILMOUR
VICTORIA EMILY GILMOUR
SUSAN MARIA WISE
Other civil dispute matters
13 March 2020
On the papers
Senior Member Brown
Application for a tree dispute filed 24 July 2019 dismissed.
ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where a tree growing on respondents’ land – where applicants allege the tree causes serious injury, damage and substantial leaf litter – where applicants re-agitate a previously decided matter by consent orders – where applicants have failed to comply with the consent orders – where applicants fail to provide reasons for their non-compliance - where application is res judicata and or an abuse of process – where application should be dismissed
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 61
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4(c), s 47, s 84(1), s 84(2), s 84(3), s 164
Vexatious Proceedings Act 2005 (Qld), sch
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201
Barker v The Queen (1983) 153 CLR 338
Barrow v Bankside Members Agency Limited  1 WLR 257
Blair v Curran (1939) 62 CLR 464
Effem Foods Pty Limited v Trawl Industries of Australia Pty Limited  FCA 342
Erujin Pty Ltd v Western Australian Planning Commission  WASC 326
Johnson v Gore Wood and Co  2 AC 1
Oceanic Sunline Special Shipping Company Inc v Fay  HCA 32
Owen v Menzies (2013) 2 Qd R 327
Stokes (by a tutor) v McCourt  NSWSC 1014
Stubberfield v Lippiatt  QSC 281
UBS AG v Scott Francis Tyne as trustee of the Argot Trust (2018) 92 ALJR
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- The Gilmours and the Wises reside on adjoining properties. On the Wises’ land is a tree the Gilmours say affects their land. The Gilmours want the tree removed. The Gilmours have filed an application for a tree dispute.
- At a directions hearing on 17 October 2019 the tribunal directed the parties to file and exchange submissions ‘on whether the tribunal has jurisdiction to determine the current application’.
- With great respect, I am of the view that the issue falling for consideration is not the jurisdiction of the tribunal in respect of the present dispute. There cannot be any doubt that the dispute between the parties is one in relation to which the tribunal has jurisdiction under the provisions of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the ND Act’). The Gilmours say that a tree on the Wises’ property affects their land. The various allegations made by the Gilmours about the tree engages s 61 of the ND Act. What I must determine is whether the proceedings by the Gilmours are unjustifiable on the grounds that they are res judicata or an abuse of process.
- It is appropriate to contextualise the matter by reference to the history of the dispute between the parties.
- In 2016 the Gilmours filed an application for a tree dispute (‘the first proceedings’). The Gilmours complained about two trees on the Wises’ land, one of which is the subject of these proceedings.
- In the first proceedings, the Gilmours made a number of complaints about the trees including:
- (a)The risk of injury to persons caused by falling tree branches likely to occur within the ensuing 12 months;
- (b)The risk of damage to property caused by falling tree branches likely to occur within the ensuing 12 months;
- (c)Leaf litter including leaves and bark being deposited in the Gilmours’ swimming pool causing, among other things, damage to a pool vacuum; and
- (d)Damage caused by tree roots to the fence line between the Gilmours’ property and the Wises’ property.
- Following a compulsory conference on 9 February 2017 the parties reached a resolution of the dispute and the tribunal made a final decision by consent. The final decision set out a number of steps required to be taken by the parties to address the issues raised by the Gilmours.
- In summary, the orders made by the tribunal:
- Required the Gilmours to choose an arborist from a panel nominated by the Wises;
- Required the Wises to permit an inspection by the arborist and if recommended, pruning of the Cadhagi tree closest to the boundary between the Gilmours’ property and the Wises’ property by the arborist (or a tree lopper if the arborist is not prepared to undertake the recommended pruning work);
- Entitled the Gilmours to engage an arborist every three years to undertake the required inspection and pruning works referred to above; and
- Required the Gilmours to pay the costs of the arborist and the tree lopper.
- Later in these reasons I will address what transpired between the parties after the orders were made.
- On 24 July 2019 the Gilmours commenced these proceedings. The complaints by the Gilmours are limited to a single Cadaghi tree on the Wises’ land. It is apparent from the originating application filed in the first proceedings that the Cadaghi tree the Gilmours complain about is the tree the subject of the consent orders.
- In these proceedings, the Gilmours say:
- (a)The tree has caused serious injury;
- (b)The tree has caused serious damage; and
- (c)The tree creates substantial leaf litter.
- In relation to the claim that the tree has caused serious injury the Gilmours say a number of things. They say that one of their children stood on a pointy seed dropped by the tree causing the child ‘substantial pain’. They say that their mental health has suffered as a result of seeing their property ‘covered in rubbish’. They also say that the time spent cleaning up leaf litter and debris caused by the tree imposes a physical burden upon them which has taken a ‘toll on (their) bodies’.
- In relation to the claim that the tree has caused serious damage, the Gilmours principally complain about leaf litter and debris which they say leave a sticky residue on outdoor furniture and outdoor surfaces. They refer to the need for their swimming pool to be ‘constantly serviced’ as a result of leaf litter and debris and refer to various other issues associated with the swimming pool. The Gilmours also complain about the need to regularly clean their gutters and tree debris on and around their childrens’ playhouse. The Gilmours also complain about the tree roots causing damage to the dividing fence between their property and the Wises’ property and damage to the swimming pool retaining wall which, the Gilmours say, may be attributable to the tree.
- The Wises say a number of things in response to the Gilmours’ application, most relevantly:
- (a)The dispute between the parties was resolved by the consent orders made in the first proceedings;
- (b)The Gilmours elected not to comply with the consent orders;
- (c)Rather than comply with the consent orders, the Gilmours undertook the removal of several lower tree branches without the assistance of an arborist or tree lopper; and
- (d)The tribunal does not have jurisdiction to hear and decide the dispute as the matter was finally resolved in the first proceedings.
- In reply the Gilmours say that these proceedings ‘look purely at the safety and liability of keeping a 40m high environmental weed known for losing limbs in extreme weather in a residential area.’
- It cannot be disputed that the decision of the tribunal made by consent following the compulsory conference in the first proceedings was a final decision. The orders explicitly state that the decision is in full and final satisfaction of the application. There is no submission by either party to the contrary. Having said this, there was no hearing and determination on the merits. The matter resolved at a compulsory conference at an early stage of the proceedings and before the parties had filed their statements of evidence.
- The submissions by the Gilmours are curiously silent on the issue of the compliance by the parties with the consent orders. It appears to be uncontentious, and the Gilmours do not submit otherwise, that the Wises nominated a panel of arborists in accordance with the orders. It appears at that point, compliance with the consent orders ended. Rather than nominating an arborist from the panel to undertake an assessment of the tree, and for reasons unexplained by them, the Gilmours elected to perform certain pruning works on the tree themselves.
- Almost two and a half years after the consent orders were made and having made no attempt to comply with the orders, the Gilmours commenced these proceedings.
- The tribunal may, if it considers a proceeding to be vexatious, frivolous or misconceived, lacking in substance or an abuse of process, dismiss the proceeding. The term ‘vexatious’ is not defined in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
What amounts to an abuse of process is insusceptible of a formulation comprising closed categories. It includes proceedings which are shown to be frivolous, vexatious or harassing or to be manifestly groundless or clearly give rise to no cause of action and extends to proceedings that are seriously and unfairly burdensome, prejudicial or damaging or productive of serious and unjustified trouble and harassment.
- An attempt to re-litigate issues which have already been determined in previous proceedings where the principles of res judicata or issue estoppel are applicable may be an abuse of process.
- The term ‘abuse of process’ is not defined in the QCAT Act. The term has its acquired legal meaning.
- The inherent jurisdiction of superior courts to permanently stay proceedings as an abuse of process is enlivened where the use of the court’s procedures occasions unjustifiable oppression to a party, or the use serves to bring the administration of justice into disrepute. Proceedings may also be stayed as an abuse of process where there is a multiplicity of proceedings relating to the same subject matter or where there is re-litigation of a previously determined claim.
- In Johnson v Gore Wood and Co (‘Johnson’), Lord Bingham of Cornhill said:
The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole.
- In an earlier decision, Lord Bingham held:
The rule in Henderson v. Henderson (1843) 3 Hare 100 is very well known. It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is directed.
- The making of a consent order for judgement may support a finding of abuse of process although in a particular case it may be difficult to identify what issues were determined by the judgement. The Supreme Court of Western Australia stated in Erujin Pty Ltd v Western Australian Planning Commission (‘Erujin’):
…. A consent judgment by a court of record will support a plea of res judicata: Chamberlain v Deputy Commissioner of Taxation  HCA 21; (1988) 164 CLR 502, 508. A consent judgment may also found an issue estoppel. The fact that the judgment was obtained by consent is no bar to a claim that an issue estoppel arises out of the judgment so long as one can ascertain what are the issues which have necessarily been determined and disposed of by the judgment: In re South American and Mexican Company; Ex parte Bank of England  1 Ch 37, 50; Isaacs v The Ocean Accident and Guarantee Corporation Ltd & Winslett  SR (NSW) 69, 75; Makhoul v Barnes (1995) 60 FCR 572 at 582.
The concept of abuse of process offers wider protection against attempted re-litigation than either res judicata or issue estoppel. Even where there is no strict estoppel, an attempt to re-litigate a matter that has been disposed of by earlier proceedings may be an abuse of process: Walton v Gardiner  HCA 77; (1993) 177 CLR 378, 393; Coffey v Secretary, Department of Social Security  FCA 375; (1999) 86 FCR 434 ; Spalla v St George Motor Finance Ltd (No 6)  FCA 1699  - . So long as the issue of law or fact which has been determined in the earlier judgment can be identified, the court and the parties may be protected against an abuse of process by way of attempted re-litigation of the issue already judicially determined.
- In Blair v Curran it was stated by Dixon J:
A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
- Lord Bingham’s reference in Johnson to efficiency and economy has particular resonance in this tribunal in which matters must be dealt with in a way that is accessible, fair, just, economical, informal and quick. The tribunal must also ensure that proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice.
- The complaints by the Gilmours in these proceedings are almost entirely the same complaints raised in the earlier proceedings albeit now expressed somewhat more emotively and colourfully. The only additional matter raised by the Gilmours relates to what they say is possible damage to a pool retaining wall although I would observe that this allegation is, at its highest, speculation on the part of the Gilmours.
- In the first proceedings the Gilmours complained about the potential for injury to persons caused by the tree. They now say such injury has occurred. However the manifestation of these earlier fears appears to be limited to one of their children stepping on a seed pod, mental anguish they have suffered at observing the effects of leaf litter and debris from the tree, and the physical effects of cleaning up that leaf litter and debris. These submissions are, in my view, less than compelling.
- Furthermore, I am satisfied that the Gilmours took no steps to comply with the consent orders. As I have observed, the Gilmours conspicuously fail to address why they failed to comply with the consent orders. It seems to me unlikely that, in the time since the consent orders were made, neither the tree nor the issues regarding the tree complained of by the Gilmours have changed in any significant way. The explanation by the Gilmours that their application in the first proceedings was focussed upon the amount of waste produced by the tree rather than issues concerning the risk of the tree occasioning injury to persons or damage to property is unconvincing. Firstly, the application in the first proceedings was not confined to complaints about leaf litter and debris. Secondly, the Gilmours relied upon the following grounds in support of their application in the first proceedings:
- (a)High risk of personal injury to children playing in cubby house;
- (b)Risk of damage to cubby house;
- (c)Risk of damage to pool/pool house;
- (d)Tree is an environmental weed;
- (e)One tree already fallen in respondents’ land;
- (f)Two trees present; one not that healthy; over cubby house; and
- (g)Fence line damaged by tree root system.
- The Gilmours were, in the first proceedings, clearly concerned about the risk of injury to their children and damage to property on their land, the very same matters raised in these proceedings. The attempt by the Gilmours to characterise the first proceedings as being confined to complaints about leaf litter and tree debris is not supported by the matters they referred to, and relied upon, in their application.
- The non-compliance by the Gilmours with the consent orders is unexplained, and not consistent with the claims they now make. If in fact the tree poses as great a hazard as they assert, one wonders why they did not take steps to reduce the risk posed by the tree and which compliance with the consent orders would have addressed.
- I am not persuaded that the complaints by the Gilmours in these proceedings are materially different to the complaints made in the first proceedings. I am satisfied that the issues determined and disposed of by the consent orders are the same issues as the Gilmours seek to agitate in these proceedings. It matters not that the final decision of the tribunal in the first proceedings was by consent. The QCAT Act draws no distinction between final decisions made by consent or following a hearing and determination on the merits.
- The Gilmours brought the first proceedings resulting in the consent orders. Having failed to comply with those orders, they now bring these proceedings agitating the same issues. There must be finality in litigation. It would be unacceptably oppressive to require the Wises to respond to these proceedings when the parties agreed to a resolution which the Gilmours have made no attempt to comply with.
- I am satisfied that the dispute, the subject of these proceedings, is res judicata having been finally determined by the consent orders in the first proceedings. If I am wrong about this, then I am satisfied that the proceedings are an abuse of process.
- The application for a tree dispute should be dismissed and I order accordingly.
 Application for a tree dispute filed 24 July 2019.
 Directions dated 17 October 2019, Direction 5.
 The principle that a cause of action may not be re-litigated once it has been determined on the merits.
 Application for a tree dispute filed 22 November 2016 in NDR189-16.
 Application for a tree dispute filed 24 July 2019.
 Respondents’ submissions filed 27 November 2019.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) ss 84(1)-(3).
 Ibid s 47.
 Oceanic Sunline Special Shipping Company Inc v Fay  HCA 32.
 Vexatious Proceedings Act 2005 (Qld) sch.
  QSC 281, .
 Stokes (by a tutor) v McCourt  NSWSC 1014.
 Barker v The Queen (1983) 153 CLR 338.
 UBS AG v Scott Francis Tyne as trustee of the Argot Trust (2018) 92 ALJR; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
 Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201.
 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
  2 AC 1, 31.
 Barrow v Bankside Members Agency Limited  1 WLR 257.
 Erujin Pty Ltd v Western Australian Planning Commission  WASC 326
 Effem Foods Pty Limited v Trawl Industries of Australia Pty Limited  FCA 342.
  WASC 326, .
 Ibid .
 Erujin Pty Ltd v Western Australian Planning Commission  WASC 326.
 See QCAT Act s 164; Owen v Menzies (2013) 2 Qd R 327.
 (1939) 62 CLR 464, 531-532.
 Johnson v Gore Wood and Co  2 AC 1.
 QCAT Act s 3.
 Ibid s 4(c).
- Published Case Name:
Dane Colin Gilmour & Anor v David Wise & Anor
- Shortened Case Name:
Gilmour & Anor v Wise & Anor
 QCAT 77
Senior Member Brown
13 Mar 2020