Pirrone & Anor v Barnett & Anor
[2018] QCAT 397
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Pirrone & Anor v Barnett & Anor[2018] QCAT 397
- Add to List
Pirrone & Anor v Barnett & Anor[2018] QCAT 397
Pirrone & Anor v Barnett & Anor[2018] QCAT 397
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Pirrone & Anor v Barnett & Anor [2018] QCAT 397 |
PARTIES: | MARIO PIRRONE (first applicant)
NICOLA JULIE PIRRONE (second respondent) |
| v |
| CHRIS BARNETT (first respondent)
|
APPLICATION NO/S: | NDR182-16; MCDO752-18 (Brisbane) |
MATTER TYPE: | Other civil dispute matters -costs |
DELIVERED ON: | 16 November 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Kent |
ORDERS: | Each party to bear their own costs in the proceedings |
CATCHWORDS: | DIVIDING FENCE – RETAINING WALL – JURISDICTION OF QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – TREE DISPUTE COSTS Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 29, s 47, s 100, s 102, s 106, s 121, s 122 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 7, s 11, s 12, s 15, s 20, s 21, s 31, s 46, s 65 Armstrong v Kawana Island Retirement Village [2014] QCAT 51 Ascot v Nursing and Midwifery Board of Australia [2010] QCAT 364 Amies v Lerve [2014] QCATA 61 Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General & Ors [2016] QCA 96 Coral Homes Queensland Pty Ltd t/as Coral Homes Pty Ltd v Queensland Building Services Authority (now the Queensland Building and Construction Commission) [2014] QCAT 093 McGee v The Queensland Building and Construction Commission & Anor [2018] QCATA 124 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412 Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212 Stuart v Queensland Building and Construction Commission [2017] QCA 115 White v Barclay & Anor [2012] QCAT 655 |
APPEARANCES: |
|
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
Background
- [1]The proceedings of the minor civil dispute MCDO752-18 was consolidated with NDR182-16 by direction of the Tribunal on 17 July 2018.
- [2]The applicants and the respondents are adjoining neighbours. Part of the fence dividing their properties is alleged to be in disrepair. This application regarding the dividing fence came about as a result of the initial NDR182-16 application including a number of issues that, in part, addressed the condition of part of the boundary fence in the tree dispute application. As a result of a directions hearing on 24 May 2018, the applicant was advised that he may wish to consider to lodging a separate fence dispute with the Tribunal. It is this aspect of the amalgamated proceedings that I deal with now.
- [3]The original fence was constructed in 1990 and from evidence it appears that it was approximately 1m high along the common boundary at that time.
- [4]In 2007, it appears that after discussions the neighbours were unable to reach an agreement. The respondents replaced a number of fence posts along the length or at the rear of the joint boundary and these were replaced with a timber paling fence. In material filed by the respondents they stated that they used galvanised steel fence posts to avoid the fence being compromised by material decay and increased the height to 1.5m to afford greater privacy. The respondents alleged that the length of fence replaced was 1.8m and that it is still in reasonable repair.
- [5]The length of the remaining timber fence was alleged to be 13.6m. The applicant now seeks to replace the remaining 13.6m section of fence. With regard to the fence that is in the remaining 13.6m, it would appear it is in disrepair being some 28 years old.
- [6]It is clear from the material that no notice to fence was given under s 31 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the Act).
- [7]
- [8]The tribunal is a creature of statute, established by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) “the QCAT Act” and is one of limited jurisdiction. Orders made by a tribunal of limited jurisdiction without power are not just an irregularity but a nullity.
- [9]On the basis of a lack of jurisdiction the matter dealing with the dividing fence was dismissed.
- [10]With regard to the tree dispute the tribunal reminded all parties of the tribunal’s jurisdiction with regard to tree disputes. It was evident from the material and submissions that the applicants wished to not only have the issue of whether or not the tree/s were causing substantial or serious damage to their property but they also specifically wished to have the issues of the retaining wall, landscaping on the respondents’ property, the swimming pool on the respondents’ property and the overland flow of water onto the applicants property, all dealt with together as part of one dispute. It was reiterated that given the jurisdiction of the tribunal not all of these matters were within the ambit of the tribunal. The tribunal directed the parties to the relevant law i.e. Applicants must show that the neighbours trees are causing serious damage to the land or property on the land therefore bringing the claim within section 46(a) (ii) (B) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the Act).
- [11]Therefore the tribunal’s jurisdiction is only enlivened where land is effected by a tree/s. The tribunal if satisfied of the relevant evidence can only make orders in relation to land effected by the tree/s. The tribunal could therefore not make a large number of the orders being sought by the applicants.[2] Evidence that relates to water overflow and other things unrelated to trees cannot be dealt with by the tribunal.
- [12]Issues that relate to who is responsible for the retaining wall ,excessive overland flow of water and/or any issues caused by landscaping and/or a swimming pool or garden bed landscaping placed on the respondents’ land are not issues that can be dealt with by the tribunal under the guise of a tree dispute. Quite apart from the strict jurisdictional limitations applicable to tree matters and to dividing fence matters, issues such as those concerning with retaining walls, land retention, natural ground level, and other issues such as overland water flow are not the type of issues contemplated as being within the limited purview of the Act. The applicants’ indicated that they wished to have all of the matters dealt with together. The tribunal reiterated its limited jurisdiction stating that if there was evidence in relation to trees causing the serious damage then orders could be made but with regard to the other areas QCAT was a creature of statute and not a court of general jurisdiction so therefore these matters would have to be ventilated in other courts more appropriately placed to hear them.
- [13]After having the matter stood down for several hours to give the parties an opportunity to either discuss whether or not there was some form of settlement they could come to and/or for the applicants to consider their position. It was the applicants clear indication, both orally on the day of the tribunal hearing and also in their written submissions on costs received 20 September 2018 that they were going to seek a resolution “through a higher jurisdiction”.
- [14]The applicants submitted that “it isn’t in the interests of justice to award costs at this stage as this matter has not been resolved and we are escalating this dispute to a higher jurisdiction. The court will rule on the case and decided who is right and who is wrong and liable for costs, therefore it should be at court, not QCAT’s role to award costs in this dispute.”
- [15]It was also submitted on behalf of the applicants that it would not be in the interests of justice for one side to pay the other’s costs when the services and reports paid for could be used in the higher jurisdiction. Further the applicants stated that since their first correspondence with the respondents in relation to the tree matter they had sought to try and reduce costs by suggesting a joint independent assessment and the use of mediation. They claimed that the respondents declined. It was additionally submitted by the applicants that on two further occasions at directions hearings, once with Senior Member Brown and once with Senior Member Howard the applicants stated that they was prepared to accept the findings of an independent geotechnical assessment but that the respondents decline to agree on both occasions.
- [16]The applicants also made submissions with regard to section 102 which looked at factors such as complying with the tribunal directions, on this section it was submitted that the respondents had failed to provide the applicants with reports as directed by the due dates set by the tribunal’s direction.
- [17]It was the respondents’ submission that the application being withdrawn in the tree dispute and the dividing fence dispute being dismissed on the basis of a lack of jurisdiction should be viewed in the light of section 102 of the QCAT Act. A large part of the of the respondents’ submissions on costs detailed what they considered to be the merits of their particular case, they suggested that the applicants should have sought more or different legal advice and made reference to the first directions hearing where, according to the respondents’ submission, Senior Member Stilgoe (as she then was), suggested that the applicants obtain legal advice.
- [18]The respondents considered the matter to have been “two years of harassment and expensive legal action that had cumulated in the applicant withdrawing the tree application as much of it was not within the QCAT jurisdiction”. They also referred what they described as a “massive financial and emotional impact on their family” describing having extending their mortgage and stating that the application had cost them almost $33,000 to date. It was their allegation that the second geotechnical investigation was directed because the applicant had “refused invasive work to support an appropriate geotechnical investigation to start with” and “the second investigation and drilling was requested after geotechnical engineers agreed it was difficult to give conclusive answers without drilling data in their joint report.”
- [19]The respondents sought to lay blame at the applicants’ feet with regard to the conduct of the matter.
- [20]The respondent also outlined the impact emotionally and what they considered to be an impact on their family and what they felt was the true aim of the action and what they referred to as harassment.
- [21]The tribunal notes the oft-repeated comment from many decisions in this jurisdiction that of all the claims that come before QCAT in their Minor Civil Dispute jurisdiction, dividing fence disputes are often the most bitter and divisive. It is usually because people are involved in dealing with the sovereignty of their homes and the perception that there is a high degree of hostility and conflict between otherwise reasonable people. . The tribunal also notes that similarly tree disputes are conducted in a heartfelt and often bitter manner. There is an encouragement towards settlement of these matters between neighbours under the Act however in these circumstances all attempts to settle this matter outside of a tribunal hearing appear to have been unsuccessful. Both the applicants and the respondents make claims that the other has been unreasonable in the circumstances and that this has driven the costs up.
- [22]I turn now to the relevant section of the QCAT Act relating to costs. Section 100 of the QCAT Act provides that other than as provided under the Act or the enabling act, each party to a proceeding must bear the parties own costs for the proceeding. The tribunal in considering claims for costs based on the “interests of justice” are required to find that the relevant factors must “point so compellingly to a costs award that they overcome the strong contra indicator against costs orders in section 100.”[3]
- [23]Section 102 provides that the tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party of the proceeding if the tribunal considers the interests of justice require it to make such an order. The tribunal may have regard to a number of factors listed in section 102(3) of the QCAT Act.
- [24]In this matter with respect to those factors, there is no evidence that the applicants have acted in a way that unnecessarily disadvantages the respondent nor is there any evidence relating to the respondent doing the same towards the applicant. The nature and complexity of the disputes are relevant. I note that there had been claims for legal costs made by the respondents despite no application for leave to be legally represented in the proceedings was ever made by either of the parties. While there was a degree of complexity in the factual matrix of this matter it was not so great as to require legal knowledge to interpret the statute. The question of whether or not legal representation was justified was never raised before the tribunal and there was no evidence provided in relation to this.
- [25]In short, there is nothing present in this case which makes it very different to a large number of cases heard in the tribunal each year. It would appear that the legislator’s intention was that most matters be conducted at QCAT on the basis that each party bear their own costs. It is a matter of degree and in the exercise of the tribunal’s discretion, however I do not think the nature of this case points so compelling to a costs award that it over comes the principles set out in section 100 of the QCAT Act.
- [26]It is also relevant to consider whether the applicants’ case was so weak that the respondent should not have been put to the expense of defending the claim. Again I note that as this matter had not been fully ventilated and as there are issues that appear to be intertwined with those more properly heard in other jurisdictions I cannot make a determination that this matter was completely without merit. It may have been possible that through cross-examination that this could have been established however the matter did not proceed to full hearing in front of the tribunal. I do not think that in these circumstances that there is evidence that the case was so weak that a costs order was justified. I cannot make this judgement in the absence of evidence. It would be premature and inappropriate to make such a determination when it would appear clearly from material in oral submissions and in written submissions from the applicants that there is a full intention to pursue this matter in higher courts. In that case it would appear to be inappropriate for the tribunal at this level, without having heard any evidence, to be making comments in relation to the prospects of success or otherwise in these matters and I will refrain from doing so.
- [27]Where arguments may not be without merit then the relative strengths of the arguments will not be a sufficient reason to displace the usual costs rule, see Compaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General & Ors.[4]
- [28]Other relevant facts that may allow the exercise of the discretion have been raised for the tribunal’s consideration. In relation to the financial circumstances of the parties neither of the parties make a compelling case over and above the situation that many people find themselves in with regard to matters in QCAT on an everyday basis.
- [29]As previously mentioned another consideration is a factor of the financial circumstances of the party, both parties indicated that they had employment, they indicated in particular that it had cost them a lot to pursue this matter however in these circumstances there appears to be no evidence despite the unfortunate nature of the fact that in the progression of the proceedings the applicants and respondents have spent a considerable amount of money on reports from experts. It is noted in the applicants’ submissions that they raise the argument that these reports can be utilised in proceedings commenced in other jurisdictions.
- [30]Both parties make submissions referencing various directions made by tribunal members over the course of this matter’s progress through QCAT. The tribunal is required by section 29(1) of the QCAT Act to take all reasonable steps to ensure that each party to a proceeding understands the tribunal’s practices and procedures. It is also required by section 28 to act fairly and accordingly to the substantial merits of the case and observe the rules of natural justice. From a review of the material before the tribunal it would appear that the tribunal in these proceedings did discharge those duties. This statement includes all stages of the proceedings including directions hearings.
- [31]It is regrettable if the applicants and respondents feel that directions made by members somehow amounted to incorrect advice or amounted to the tribunal members making the directions taking a view one way or the other on the merits of the case. As noted by then President Wilson in Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe,[5] Section 28 and section 29 of the QCAT Act do not extend to imposing upon QCAT an obligation to sure up deficiency in parties’ material. President Wilson observed that failure to lodge an application in the correct form that is a notice does not in some way make the tribunal responsible or allow the tribunal to order costs where otherwise it would be inappropriate under section 100 of the QCAT Act.
- [32]As discussed by President Wilson in that case, the Minor Civil Disputes jurisdiction is a busy and demanding one with many tens of thousands of applications each year. Parties must assume their responsibility to take care in preparing material upon which they seek to reply and to lodge the correct application and in the correct form.
- [33]In the face of the circumstances of this jurisdiction, the tribunal is not obligated to advise the Applicants that their application may be deficient. The applicants’ failure to provide a notice that would enliven the jurisdiction of the tribunal in the fencing dispute is a matter that rests within their responsibility. It does not amount to a miscarriage of justice or a disadvantage to them caused by tribunal processes.
- [34]In summary, the starting point for any decision about costs in relation to this matter is section 100 of the QCAT Act. This starting point was examined and explained in the case of McGee v The Queensland Building and Construction Commission & Anor,[6] which said that:
This interpretation of the costs provisions is also consistent with the objects of the QCAT Act which include to provide a way for parties to settle disputes that is economical, informal and quick. The practice of awarding costs has the potential to make proceedings more adversarial and, accordingly, increase the formality and technicality with which parties approach them. It is also consistent with one of the key principles underpinning the operation of the Tribunal, the emphasis on self-representation. The purpose of the Costs Division in having parties pay their own costs unless the interests of justice require otherwise, or for example s 105 of the QCAT Act is engaged, is clearly in keeping with the objective of establishing an informal and cost-effective tribunal.
- [35]If the tribunal is considering departing from the section 100 starting point then it must consider whether or not it has submissions in relation to this. In these circumstances both the applicants and the respondents have to some degree addressed why the starting point should or should not be departed from.
- [36]The tribunal must make factual findings to support departure from the usual rule however in these circumstances there appears to be no compelling evidence that would convince the tribunal that it was appropriate in the interest of justice to award costs. When deciding costs the tribunal is not obliged to decide what the outcome of a dispute would have been had it been finally determined, Coral Homes Queensland Pty Ltd t/as Coral Homes Pty Ltd v Queensland Building Services Authority (now the Queensland Building and Construction Commission).[7]
- [37]Orders can be made even where there has been no hearing on the merits and the applicant no longer wishes to proceed as is the case in this matter. The applicant longer wished to proceed with the tree dispute as what they wanted to pursue in an appropriate court were their retaining wall, overland water flow and other issues as previously discussed. In these circumstances the tribunal cannot try a hypothetical action between parties, and particularly not one that is going to be heard in another jurisdiction. It may only order costs if the circumstances justified this departure from s 100 of the QCAT Act e.g. one of the parties acted so unreasonably so as to justify. In these circumstances it would appear that where both sides are quick to apportion blame the other the tribunal has difficulty in justifying a finding that one side has as acted so unreasonably that the order of costs is justified.
- [38]Section 102(3) (a)-(f) are not grounds for awarding costs. They are factors which may be taken into account in determining whether, in a particular case the interests of justice requires the tribunal to make a costs order.[8] As previously mentioned, one such factor is unnecessarily disadvantaging another party in the proceeding, in particular, where the applicant has failed to consider the evidence before it. While there has been allegation from the respondent in regard to this I note there was a great deal of conflicting expert evidence on both sides and it would appear that in these circumstances it is very difficult to make a finding of fact that all of this was one sided with regard to the applicants failure to carefully consider the evidence available.
- [39]Cooper v O'Connor,[9] talks about costs of appeal in those circumstances where there is a failure to comply with the orders and directions of the tribunal without reasonable excuse. It is noted that the applicants raise this in relation to some of the respondent’s actions with regard to applications for extension of time, again I can make no factual finding that this is a reason for the tribunal to depart from the section 100 starting point.
- [40]In some circumstances filing an application without complying with jurisdictional prerequisites and then persisting with it even after being put on notice is an example of where a party applicant may be ordered to pay the respondent’s costs, see Armstrong v Kawana Island Retirement Village.[10] In the current proceedings, whilst the filing of the application for the fencing dispute did occur without the applicant complying with the jurisdictional prerequisites, the only evidence is notice of possible non-compliance with this jurisdictional requirement is to be found in the respondents’ statement filed with the tribunal on 16 July 2018. In this statement the Respondents refer to the applicants not using any “official form” for the notice. This paragraph then continued on to describe “a threatening letter” that purported to be notice.” I do not find that this amounted to unequivocal evidence that the applicants were put on notice with regard to the lack of jurisdiction of the tribunal. Therefore there can be no finding made that the matter continued to be persisted with even after being put on notice. It was not until the morning of the tribunal hearing that all parties were unequivocally put on notice by the tribunal.
- [41]This matter was in some aspects factually of a relatively complex or voluminous nature, it may or may not have been legally complex, and it did not appear to be in the circumstances. However even if it were to be considered legally complex the fact of such complexity may establish the reasonableness of allowing legal representation it does not necessarily mean that costs are ordered without some other compelling reason. In these circumstances where there had been no application for representation and no legal representation at the hearing itself the tribunal is hard pressed to make a finding with regard to the respondents’ submission that they should recover legal fees that they had incurred.
- [42]With regard to the issue of when during the proceedings can costs be claimed or ordered, Section 47 of the QCAT Act notes upon the striking out due to the proceedings being “frivolous, vexatious, misconceived or lacking in substances or otherwise an abuse of process” then QCAT may make a costs order to compensate another party for any of the reasonable costs, expenses, loss, inconvenience, embarrassment resulting from the proceeding.
- [43]The power under this section is entirely discretionary upon the tribunal and as previously noted there is insufficient evidence from the submissions that would support a finding that the respondents requires compensation for these costs due to the actions of the applicants.
- [44]Section 106 of the QCAT Act notes that costs may be awarded at any stage. Section 106 provides that costs orders can be made after a withdrawal which is the circumstance in this matter with the respondents urging costs to be ordered. The position is different for Minor Civil Disputes other than a minor debt claim. Rule 83 only permits a costs order to be made (limited to the filing fee) under section 102 where the tribunal has made a final decision.
- [45]Finally, as set out there is no fact relevant to the exercise of the tribunal’s discretion which has been appropriately raised to the requisite standard to justify a departure from the starting point of s 100 of the QCAT Act. In particular there have been no submissions or evidence conclusive of this being an appropriate case to depart from the section 100 view that each party pays for their own costs.
- [46]I therefore reject the respondent’s submissions and decline to make any order for costs in their favour. I order that each party bear their own costs in the proceedings.
Footnotes
[1] Amies v Lerve [2014] QCATA 61; Thomas J, President.
[2] White v Barclay & Anor [2012] QCAT 655, Adjudicator Bertelsen.
[3] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412.
[4] [2016] QCA 96, Margaret McMurdo P and Applegarth and Henry JJ (11).
[5] [2013] QCATA 212.
[6] [2018] QCATA 124, Senior Member Brown and Member Traves at [30].
[7] [2014] QCAT 093, Member Ryan.
[8] Ascot v Nursing and Midwifery Board of Australia [2010] QCAT 364, Judge Kingham.
[9] [2016] QCATA 180, Senior Member Stilgoe OAM.
[10] [2014] QCAT 51, Member Hughes.