Hastings v Thompson[2017] QCAT 182

REASON FOR DECISION

The Parties

1. [1]
   The Applicants in this matter are Kenneth and Lynette Hastings.  They are the owners and occupants of 25 Bishop Street, Belgian Gardens, Townsville.

2. [2]
   The Respondent nominated in the application was Paul James Thompson who resides at the property next door to the Applicants.

Joinder of another party.

3. [3]
   The Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”) provides that the Tribunal may make an order joining a person as a party to a proceeding on the application of a person or on the Tribunal's own initiative.

4. [4]
   The joining of another party to proceedings may only be done if the Tribunal considers that the person should be bound by, or have the benefit of a decision of the Tribunal in the proceeding; or the person's interest may be affected by the proceeding.  The Tribunal also has the discretion to join a person as a party to the proceeding if the Tribunal considers it desirable for that person to be joined.^[1]

5. [5]
   In 2012, the Applicants filed an application^[2] (“the first application”) in the Tribunal pursuant to the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (“the Neighbourhood Disputes Act”).  Their complaint related to several trees and shrubs growing within the neighbouring property which impacted upon their use and enjoyment of their land.

6. [6]
   In the first application, a decision was made to join Christine Vivienne Schnider as a party to the proceedings.  This step was taken because Ms Schnider told the Tribunal that she is the registered owner of the property and she resided at the property with her de facto partner, Paul Thompson.  It was the Tribunal’s view that Christine Schnider’s interest may be affected by the proceedings.  Because of that reason, the Tribunal considers that it was desirable for her to be joined as a party.

7. [7]
   In 2016, the Applicants filed another application in relation to the neighbourhood dispute between the parties (“the second application”).  The only Respondent nominated was Paul Thompson.  The Tribunal still holds the view that Christine Schnider’s interest may be affected by the proceedings.  She should be joined as a party to the second application.

2012 application

8. [8]
   The facts relating to the first application should be briefly revisited to provide a backdrop to this dispute.  That application related to a complaint that several trees and shrubs were growing within the neighbouring property which impacted upon the Applicants’ use and enjoyment of their land.  

9. [9]
   The Applicants told the Tribunal that the Respondents did not trim the branches of the trees and shrubs which are growing along the common boundary.  For more than five (5) years they have been trying to avoid damage to their property by asking the Respondents to trim back the trees.  Only once have the Respondents trimmed the trees, and that was several years previously.  

10. [10]
    The Applicants had themselves undertaken trimming of the trees on three (3) previous occasions, at their own expense.  This was undertaken because the trees were a nuisance and had caused substantial ongoing and unreasonable interference with the use and enjoyment of their land.  Tree litter from the trees had fallen within their property.  At some point, Mrs Hastings raked up the tree litter within her yard and dumped it into the Respondents’ property.  This did not in any way improve the relationship between the parties.      

11. [11]
    The Respondents told the Tribunal that since approximately 2009 there has been a dispute between the parties in relation to trees located on their mutual boundary.  The Respondents also said that the trees and shrubs were not causing serious damage, and nor was there any substantial ongoing or unreasonable interference with the Applicants’ property.  They claimed that the volume of tree material alleged to be falling in the Applicants’ property was not unreasonable, or unexpected, given the maturity of the trees located in the area of the suburb where the parties live. 

12. [12]
    The Respondents wanted the application to be dismissed.  They also wanted the liberty to attend to the trimming of the trees when it was necessary. 

13. [13]
    In giving its ex tempore reasons on 7 March 2013, the Tribunal decided that the Respondents’ trees and shrubs were causing an ongoing and unreasonable interference with the Applicants’ use and enjoyment of their land.  Orders were made for the Respondents to take certain steps with regards to the trees and shrubs.  In general terms, the orders were – 

14. [14]
    The Tribunal also directed that –

1. The Respondents shall be responsible for any costs associated with all work carried out to destroy or cut the trees and shrubs within the Respondents’ property as prescribed in Orders 2 to 6.

2. The Applicants will allow the Respondents or any other person or persons acting under the direction of the Respondents to carry out the work as prescribed in Orders 2 to 6 to enter onto the Applicants’ property for a reasonable time to carry such work. 

The making of the 2013 Orders – Statutory framework

15. [15]
    The objects of the Neighbour Disputes Act^[3] are to provide rules about each neighbour’s responsibilities for dividing fences and trees, so that neighbours are generally able to resolve issues about fences and trees without a dispute arising. 

16. [16]
    A further object of the Neighbour Disputes Act is to facilitate the resolution of any dispute that arises between neighbours about dividing fences, and in this particular case, about the trees.  A dividing fence is a fence on the common boundary of the adjoining lands.  There appears to be no dispute between the parties that there is a common dividing fence between the two properties. 

17. [17]
    The meaning of a tree is described as any woody perennial plant, any plant resembling a tree in form of size, a vine, or a plant described under the regulation to be a tree.^[4]  A tree also includes a bare trunk, a stump rooted in the ground, and a dead tree.^[5]  When making the Orders on 7 March 2013, the Tribunal was satisfied that all the trees referred to in the dispute were trees as provided for by the legislation.  

18. [18]
    Land is affected by a tree if the branches from the tree are overhanging the neighbouring land, or the tree has caused or is causing, or is likely to cause in the next 12 months serious injury to a person on the land, or serious damage to the land or property on the land, or substantial ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.^[6] 

19. [19]
    In this matter, there was no evidence of any serious injury to a person on the land, and nor is there any evidence of serious damage to the land or property on the Applicants’ land.  The real issue discussed was the substantial or ongoing and unreasonable interference with the Applicants’ use and enjoyment of their property. 

20. [20]
    The Neighbour Disputes Act also provides for who was a tree keeper.  Christine Schnider is the registered owner of the property and has been joined as a party to these proceedings.  The Tribunal is satisfied that both she and Paul Thompson are the tree keepers. 

21. [21]
    A tree keeper is responsible for cutting and removing any branches of a tree or trees that overhang the neighbour’s land.^[7]  Therefore, the Respondents are responsible for removing or cutting the branches that hang over the dividing fence into the Applicants’ property.  There may be more than one tree keeper,^[8] so the responsibilities and liabilities of the tree keeper for the tree or trees under the legislation is shared equally between both Respondents.   

22. [22]
    The Tribunal has the discretion to make orders if it is satisfied that the neighbour has made a reasonable effort to reach an agreement with the tree keeper, and the neighbour has taken all reasonable steps to resolve the issue under any relevant local law, local government scheme, or local government administrative process, to the extent that the issues relating to the land being affected because of the branches from the tree overhang the boundary.^[9]   

23. [23]
    In determining the outcome of the application, the general matters considered were the location of the trees in relation to the boundary of the land on which the tree is situated, and any premises, fence, or other structures affected by the location of the tree or trees. 

24. [24]
    The trees involved in this dispute are not protected species, nor do they hold any significance with regards to the cultural heritage of the area, or any significance of any heritage nature of the area.  Nor is there any evidence to suggest that the trees make up the local ecosystem, or that they are part of the biodiversity of the area. 

25. [25]
    The Tribunal’s decision in 2013 was to make the Orders as outlined in paragraph [13].  The legislation provides for a time limit for the duration of those Orders.  That time period is 10 years after the day on which the order was made, unless the order expressly provides otherwise.^[10]

2016 application

26. [26]
    In 2016, the Applicants filed another application in relation to the neighbourhood dispute between them and the Respondents (“the second application”). 

27. [27]
    In the second application, the Applicants complained that the Respondents have ignored the original Orders made by the Tribunal on 7 March 2013. 

28. [28]
    The Tribunal was told by the Applicants that since those original Orders were made^[11] –

• They wrote to the Respondents on 2 December 2013 as the shrubs should have been trimmed every six months from the making of the Orders.
• On 11 December 2013, they applied to the Magistrates court to enforce the Orders.  The matter was listed in the Magistrates Court for 23 January 2014.
• They were informed by the Magistrates Court that the Magistrates Court could not enforce the Orders because the Orders did not relate to a monetary matter.^[12]
• On a number of occasions, they contacted the Respondents regarding the trimming of the trees, in particular on 22 April 2014, 2 November 2014, 7 May 2015, 7 November 2015 and 11 April 2016.  On each of those occasions there was always no reply from the Respondents and no trimming was undertaken.
• The gum trees are now well above the height of the Applicants’ house and branches from the trees are hitting their roof.  They engaged a plumber, who checked their roof and cut some of the branches back to stop them hitting the roof.  This was undertaken at the Applicants’ own expense.
• The Respondents are ignoring the Tribunal’s Orders.

29. [29]
    The Applicants would like the 2013 Orders renewed.  They also seek an additional Order that if the Respondents fail to undertake the work as required in the Orders, then the Applicants’ may engage a contractor to undertake the work as the Respondents’ expense.

30. [30]
    The Applicants provided to the Tribunal photographs showing branches from trees growing within the Respondents’ property protruding well into the Applicants’ property.  A photo said to have been taken on 10 June 2016 shows the branches of those trees coming into contact with the Applicants’ dwelling.  These had to be trimmed away by the Applicants. 

31. [31]
    In their response to the application, the Respondents did not deny that they had failed to abide by the Tribunal’s Orders made on 7 March 2013.  There seems to be two reasons which they rely upon for not abiding by the Orders made.  The first reason is a financial one.  They say that they can only afford to undertake the tree maintenance when they are employed.  The Respondents are not employed and receive Centrelink benefits.^[13]  The second reason relates to the Applicants’ security lights which shine towards their premises.  They said – 

“Once we are employed and the light issue is taken care of the tree trimming will be done, the only exception to this was if it were an emergency and threatening the Hastings building.  Currently the trees ARE NOT threatening the Hastings building”.^[14]    

32. [32]
    The issue relating to the Applicants’ system of security lighting was discussed during the original hearing in March 2013.  There was a recommendation made by the author of the tree report that the Applicants relocate the motion sensor security lights to ceiling height on the lower level of the Applicants’ dwelling.  The relocation of the lights would go some way towards resolving the dispute.^[15]

33. [33]
    The Tribunal has been told by the Applicants that they have angled down the lights so that do not shine towards the Respondents’ premises.  The Applicants also told the Tribunal that the lights were motion sensor lights which are frequently activated by the movement of branches from the Respondents’ trees which have grown close to their dwelling.    

34. [34]
    However, notwithstanding the position adopted by the Respondents with regard to what they say is an annoying light, they have never sought relief through mediation, consultation of litigation to alleviate their concerns about the light.  The Tribunal’s view is that this is just an excuse held onto by the Respondents for not complying with the 2013 Orders.   

35. [35]
    The Respondents also wrote to the Tribunal and said^[16] –

“We are reasonable people & would like to come to a happy agreement.  We are very willing to trim mentioned trees & scrub of the fence line.  We used to do so, on a regular basis.  That was prior to first courtcase & since last courtcase.  This was done by Sun City Treeloppers (Tree Men).  That was still never good enough!

The height of trees should be dismissed!  With neighbours like that, I whant (sic) all the coverage I can get, to their side.  It also blocks the light out that shines into my sons bedroom!  It gives us privacy! 

Belgian Gardens is a leafy suburb & should stay like that.  Also trees are living things & should not be killed.  The last Judge agreed with that.  We will pull the trees out by the pool & cut the rest of trees & shrub to fenceline immediately.  Should this case be dismissed, it will happen sooner!

The Arborist said the the (sic) trees where (sic) healthy & should not be destroyed!

The trees must stay!  We also have 3 kids that would be most disturbed if they where (sic) chopped down.  That a neighbour whants (sic) them gone is most disturbing & unsettling!  We also don’t whant (sic) them to get a treelopper of their own!

Depending on the outcome we may move.  This may be financial factor out of a few (no work etc.)  The stress is cause (sic) over a few trees.  There “front” door, is around the back ….

No branches are hitting their (sic) house & there is no gutters on that side of their house.

As much as they hate the trees, we love them.

The trees/shrubs have been at this height for a very, very long time prior to there (sic) complains (sic).  (at least 25-30 years.)

Eg. The Frangipani trees are around 55 yo. & are fully grown.

Townsville is in a declared drought state for many years.  Combined with the very high watering restrictions all the trees/shrub have grown a small amount only.

Previously the judge showed concern over the light position.  To this current day nothing has been done to rectify this”.

Enforcement of Tribunal Orders

36. [36]
    The effect of a decision of the Tribunal is binding on all parties to the proceeding^[17] and it takes effect when it is made^[18]; or if the decision states a later date or time when the decision is to take effect, the later date or time.^[19]  In regard to the 2013 Orders, they were to take effect immediately.

37. [37]
    There are provisions within the QCAT Act relating to the enforcement of the Orders made by the Tribunal’s monetary and non-monetary decisions.^[20]  For a final decision of the Tribunal in a proceeding relating to a non-monetary decision, a party may enforce that final decision by filing in the registry of a relevant court.  The QCAT Act provides that for a decision, other than a monetary decision, the relevant court is the Supreme Court.^[21] 

Renewal of Orders

38. [38]
    If it is not possible for the Tribunal’s final decision in a proceeding to be complied with; or there are problems with interpreting, implementing or enforcing the Tribunal’s final decision in a proceeding, a party may apply to the Tribunal for a renewal of the final decision.^[22] 

39. [39]
    The Tribunal then has the discretion to make the same final decision it made when the proceeding was originally decided; or make any other appropriate final decision that it could have made under the QCAT Act or an enabling Act^[23] when the proceeding was originally decided.^[24]  These provisions enable the Tribunal to procedurally renew its decision and govern the procedure by which the Tribunal may remake or vary orders that have already been made.  For the Tribunal to renew the decisions, it should only do so if the change will give effect to the original decision maker’s apparent intention when making the Orders that were made. 

40. [40]
    Consideration must be given to any renewal in the context that it was not possible for the Tribunal's final decision in a proceeding to be complied with; or there were problems with interpreting, implementing or enforcing the Orders.  If satisfied that any of those conditions are met, then the application for renewal should be granted.^[25] 

41. [41]
    In this case, the Respondents are unhappy and disgruntled with the 2013 Orders.  They have resisted all approaches made by the Applicants to rectify the nuisance that the trees and shrubs have caused.  Consequently, the Applicants have experienced difficulty in enforcing the Tribunal’s Orders.  Having regard to those points, the Tribunal is satisfied that the Orders should be renewed, with some amendments.

Conclusion

42. [42]
    There has been a lapse of over four (4) years since the first Orders were made by the Tribunal with respect to the neighbourhood dispute between the parties, and it has been nearly a decade since the dispute about the trees started.

43. [43]
    Since that time, the Respondents have made every effort to resist their responsibilities in relation to the trees and shrubs, and they have made no effort to comply with the Tribunal’s Orders made on 7 March 2013. 

44. [44]
    The Applicants have made endeavours to enforce the Orders, however they commenced proceedings in the wrong jurisdiction.^[26]  A fresh application has been filed in the Tribunal seeking relief from the nuisance caused by the Respondents’ trees. 

45. [45]
    Having regard to the all the circumstances of this matter, the Tribunal exercises its discretion to renew the original Orders made on 7 March 2013.  Those Orders are outlined later in this decision at paragraph [61].     

Costs

46. [46]
    The starting point relating to any consideration relating to costs is that each party must bear their own costs.^[27]  However, the Tribunal has the discretion to require a party to pay all, or a part of the costs of another party, if the Tribunal considers that it is in the interests of justice for that order to be made.^[28]

47. [47]
    Before it exercises that discretion, the Tribunal is required to consider several factors.  Those factors to be considered include whether a party to a proceeding had acted in a way that unnecessarily disadvantages another party,^[29] the nature and complexity of the dispute,^[30] the relative strengths of the claims of each of the parties^[31] and the financial circumstances of the parties involved.  If a decision is made by the Tribunal to award costs, the amount must be fixed, if possible.^[32]   

48. [48]
    There is a well known principle that costs are not awarded as punishment to an unsuccessful party, but are awarded to indemnify the successful party against the expenses they incur because of the legal proceedings.^[33]  As already outlined, the starting position under the QCAT Act is the presumption that each party must bear its own costs.^[34] 

49. [49]
    That presumption was discussed in McEwen v Barker Builders Pty Ltd^[35] where it was observed that – 

[17]  The language of s 100 plainly indicates that the legislature has turned its face against awards of costs in this Tribunal. The question that will usually arise in each case in which costs are sought is, then, whether circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ have arisen; and, whether or not they point to a costs award in a sufficiently compelling way to overcome the statutory hurdle.

50. [50]
    The issue of costs was revisited in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2),^[36] where it was observed that –

[4]  The starting point concerning costs in QCAT is that each party must bear its own……This presumption may, however, be displaced if the Tribunal considers it in the interests of justice to order a party to pay all or part of the costs of another party…….The phrase “in the interests of justice” is not defined in the Act but is to be construed according to its ordinary and plain meaning, which obviously confers a broad discretionary power on the decision-maker.^[37]

[5]  In determining whether it is in the interests of justice to award costs against another party the Tribunal may have regard to the nature and complexity of the dispute; the relative strengths of the claims made by each of the parties; and, whether a party has acted in a way that unnecessarily disadvantages another party.

51. [51]
    If the Tribunal does depart from the presumption as outlined above, considerations must be given to a number of points when exercising that discretion.^[38] 

52. [52]
    In Ascot v Nursing & Midwifery Board of Australia^[39] the Tribunal observed that it has the discretion to make a costs order if the Tribunal considers the interests of justice require it to do so.

[9]  The public policy intent of the provisions in the QCAT Act is plain. The tribunal was established as a no costs jurisdiction. That may be departed from where the interests of justice require it. The considerations identified in s 102(3) are not grounds for awarding costs. They are factors that may be taken into account in determining whether, in a particular case, the interests of justice require the tribunal to make a costs order.

53. [53]
    The issue of costs and the expression ‘in the interest of justice’ was again revisited by the Tribunal in Warren v Queensland Law Society Incorporated (No 2)^[40] where it was observed that –

[11]  It has previously been said in this Tribunal that the provisions of the QCAT Act about costs, mentioned above, require that when considering an application for costs the Tribunal should ask itself whether the circumstances relevant to the discretion inherent in the phrase in s 102(1) ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs in s 100.^[41]

54. [54]
    In addition to considering the phrase ‘in the interest of justice’ according to its ordinary and plain meaning, the phrase generally refers to the source of fairness and equity used when the Tribunal exercises its discretion to make a decision in a particular situation.  It is a very subjective phrase and its interpretation will vary depending upon the circumstances, facts and the parties involved in the proceedings.^[42]

Consideration of the section 102(3) factors

Whether a party acted in a way to disadvantage the other party^[43]

55. [55]
    The Applicants commenced proceedings in 2012.  On 7 March 2013, the Tribunal made Orders in favour of the Applicants.  Largely, the Respondents have declined to abide by the Orders which prompted the Applicants to seek enforcement by the Magistrates Court. 

56. [56]
    The QCAT Act does not allow the Magistrates Court to enforce a non-monetary decision of the Tribunal.  The Applicants have sought to renew the original decision.  The Tribunal is satisfied that the Respondents’ conduct in these proceedings disadvantaged the Applicants.

The nature and complexity of the dispute^[44]

57. [57]
    Neither of the parties suggest that the facts and circumstances and the nature of the dispute was complex.  The Tribunal is of the same view and this was not a factor considered.

The relative strengths of the claims made^[45]

58. [58]
    The Applicants argue that what strengthens their application for costs was the Respondents not abiding from the Orders, meaning that they had to return to the Tribunal to renew the Orders.  The Tribunal is satisfied that the Applicants case is a strong one.

The financial circumstances of the parties^[46]

59. [59]
    Both parties have both informed the Tribunal of their financial positions.  The Applicants are in receipt of aged pensions.  The Respondents are both unemployed and receive Centrelink benefits.  It appears that neither party has a financial advantage over the other. 

60. [60]
    Taking into consideration the reluctance of the Respondents to abide by the Tribunals Orders, thus necessitating in a new application being filed by the Applicants, the Tribunal considers that there are sufficiently compelling grounds to depart from the legislative presumption.  The Applicants should be compensated for the costs incurred for the filing of the second application, fixed at $35.60.  

ORDERS

61. [61]
    The Orders of the Tribunal are –