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- Unreported Judgment
Grant v Livingstone QCAT 287
Grant v Livingstone  QCAT 287
Anne Therese Grant
Robert Henry Grant
Albert Thomas Livingstone
Other civil dispute matters
On the papers
Senior Member Brown
8 August 2016
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – CASE MANAGEMENT – GENERALLY – where application for tree dispute – where applicants failed to comply with directions without any adequate explanation – where respondents filed application to dismiss – where application filed by applicants without intention to diligently prosecute the proceeding
Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 3, s 47, s 48
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
- Mr and Mrs Grant have filed an application for a tree dispute. They complain about a number of trees situated on Mr and Mrs Livingstones’ land. The Grants say that the trees obstruct their view. The Livingstones have applied to dismiss the Grants’ application on the basis that they have not been served with a copy of the application for a tree dispute.
- The present proceeding is not the first occasion this dispute has been before the Tribunal. The Grants commenced a proceeding in the Tribunal in 2013, which was dismissed in July 2014. The Grants sought to appeal the decision of the Tribunal. The appeal was dismissed in April 2015.
- The Grants filed the present application for a tree dispute in March 2016. On 21 April 2016, Mrs Grant advised the Tribunal that she and Mr Grant were overseas “not to return in the near future but later in 2016”. Mrs Grant advised that the Livingstones had placed their property on the market for sale, and that they had engaged in negotiations with the Grants regarding the trees “only because they did (not) (want) a QCAT order on a property they were trying to sell – not because they were good neighbours”.
- Directions were made on 27 April 2016 requiring the Grants to, among other things, establish that the application had been served upon the Livingstones and file in the Tribunal copies of photographs of the views the Grants had from their dwelling when they took possession of the land. The matter was listed for a directions hearing on 16 June 2016.
- On 4 May 2016, the Grants forwarded an email to the Tribunal in which they raised concerns that the directions made 27 April 2016 had not been received by them until 4 May 2016. In referring to the earlier communication to the Tribunal, the Grants advised that: “The whole intention of lodging the application and not serving it was in case negotiations once again became stalled with no agreement”. The Grants complained these negotiations had been “jeopardised by this preemptive (sic) action by QCAT itself”. Presumably the actions complained of by the Grants was the issuing of the directions on 27 April 2016.
- The Grants refer to the actions of the Tribunal as “unconscionable”. They refer to the fact that Mrs Grant will not be returning to Australia “most likely” in August and that Mr Grant will not be returning to Australia until December 2016 although there is reference to Mr Grant returning to Australia for 4 weeks in September. The Grants say that “it is totally impossible for us to comply with any of the directions even if we had wished to”. (emphasis added)
- The Grants requested the Tribunal “withdraw the directions and leave the notice on foot as it was before the QCAT direction to move this”.
- On 18 May 2016, the Livingstones filed an application to dismiss the Grants’ application for a tree dispute. 10 June 2016 the Grants filed an application to adjourn the directions hearing listed for 16 June 2016. On 14 June 2016 that application was refused. The Grants failed to attend the directions hearing on 16 June 2016. Directions were made requiring the Grants to file submissions in response to the application to dismiss. The Grants were, again, directed to provide to the Tribunal evidence of service of the application for a tree dispute on the Livingstones. The Grants were directed to do this by not later than 30 June 2016.
- In their submissions, the Grants say that the application for a tree dispute was never served on the Livingstones. They say that the application was actioned by the Tribunal of its own volition without any reference to them even after having received the communication from Mrs Grant on 21 April 2016.
- The Grants say that:
Trees grow and it is inevitable we will face this same situation once again, which is why we left the application and did not withdraw. It was then that QCAT acted by activating the application with these most unfortunate results.
- The Grants say that all of their evidence is in Australia and how they were supposed to retrieve this is not known to them. They say that the electronic storage unit used to store their evidence suffered a failure recently, that the data will need to be retrieved and that “this may take some time”.
- Finally, in relation to the directions that the Grants file photographic evidence of the view they claim has been obstructed, the Grants refer to the previous proceeding in the Tribunal and say that this is evidence which QCAT has.
- It appears that not only have the Grants not served the application for a tree dispute as directed by the Tribunal, they evince no intention to do so.
- The approach taken by the Grants to the application for a tree dispute could be described as somewhat cavalier. The claim by the Grants that the conduct of the Tribunal has been “unconscionable” and has “jeopardised” negotiations with the Livingstones is an extraordinary one.
- The Grants concede that the application for a tree dispute was one commenced not with a view to being prosecuted diligently but rather to be enlivened if the Livingstones did not negotiate with the Grants or, even if negotiations were successful, that at some future (unspecified) point in time the Grants might consider it appropriate to enliven the application because, as they submit, “(t)rees grow and it is inevitable we will face this same situation once again…”.
- The Grants complain that they were given very little time to respond to the Tribunal’s directions made 27 April 2016 yet refer to being unable to comply even if they wished to. As I have observed the Grants do not indicate any willingness to comply with the direction made by the Tribunal to serve the application for a tree dispute.
- In relation to the submissions by the Grants that they had little time to respond to the Tribunal’s directions even if they wished to, the desire of a party to comply with directions is immaterial. If directions are made the Tribunal expects those directions to be complied with. The submission by the Grants appears to be reflective of a certain view the Grants take to the processes of the Tribunal and their obligations to the Tribunal as parties in a proceeding.
- It is clear that the Grants filed the application knowing that they would be out of the country for an extended period of time. It must be have been known to the Grants that (as they now in fact say) their ability to diligently prosecute the claim would be hampered quite apart from any issues they have subsequently experienced with the electronic storage of documents and other information.
- Mr and Mrs Livingstone have not been served with the application for a tree dispute. This is despite directions by the Tribunal on 27 April 2016 and 16 June 2016 requiring the service of the application. The only explanation offered by the Grants for their failure to serve the application is a direct criticism of the Tribunal for making directions progressing the proceeding.
- The Tribunal must act in a way that is accessible, fair, just, economical, informal and quick. Effective case management is a necessary tool utilised by the Tribunal to achieve these objects. Targeted directions require the parties to a proceeding to act in a manner which ensures that the objects of the QCAT Act and the Tribunal’s functions are achieved.
- It is not appropriate for a proceeding to be commenced and then placed in abeyance to be enlivened only when a party is dissatisfied with the outcome of negotiations or when a particular state of affairs exists. Once a proceeding is commenced in the Tribunal it must be prosecuted by an applicant diligently and in accordance with directions made from time to time.
- In persistently failing to serve the application for a tree dispute upon Mr and Mrs Livingstone, the Grants have failed to comply with the directions made by the Tribunal. They have provided no reasonable excuse for failing to comply with the directions made. I make no specific finding as to whether the application filed by the Grants is an abuse of process although their submission that the application was filed, not with a view to being prosecuted diligently but rather as it suited them, raises serious questions as to their motivation in commencing the proceeding.
- The appropriate order is that the application for a tree dispute is dismissed.
- The Grants may commence a further application for a tree dispute however they will require the leave of the president or the deputy president to do so. Accordingly, the dismissal of their application does not deprive the Grants of the opportunity to pursue an application for a tree dispute if and when they are in a position to diligently prosecute the proceeding and comply with directions made by the Tribunal.
 Email Anne Grant to QCAT, 21 April 2016.
 Applicants’ submissions, 27 June 2016.
 Respondents email to QCAT, 30 June 2016.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 3(b).
 Ibid, s 48(1)(a).
 Ibid, s 47(1)(c).
 QCAT Act, s 49
- Published Case Name:
Grant v Livingstone
- Shortened Case Name:
Grant v Livingstone
 QCAT 287
Senior Member Brown
08 Aug 2016