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Riethmuller v White QCAT 454
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Riethmuller & Anor v White  QCAT 454
Other civil dispute matters
18 December 2018
On the papers
Leave is granted for Paul Riethmuller and Patricia Riethmuller to make the application for resolution of a tree dispute that was filed in the Tribunal on 31 May 2018.
ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where tree dispute settled by agreement – whether party can start a new proceeding where agreement not fully complied with
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application withdrawn after settlement agreement – whether appropriate to grant leave for new proceeding
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 46(1), 46(3)
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
- On 31 May 2018 Dr and Mrs Riethmuller filed an application (NDR119-18) to resolve a tree dispute in QCAT, naming their neighbour Ms White as the respondent. The application relates to a jacaranda tree and a ficus tree in Ms White’s yard. Dr and Mrs Riethmuller seek orders for the removal or pruning of overhanging branches.
- The present proceeding is to determine a preliminary question: whether leave should be granted, under section 46(3) of the QCAT Act, for Dr and Mrs Riethmuller to make the application. The application can be made only with leave. This is because Dr and Mrs Riethmuller withdrew a similar application (NDR173-17) in January 2018 under section 46(1) of the QCAT Act.
- The parties have filed written submissions about whether leave should be granted. The submissions of Dr and Mrs Riethmuller are dated 20 September 2018. Those of Ms White are dated 17 September 2018.
- The earlier application, NDR173-17, was filed on 10 October 2017.
- On 18 January 2018 the parties signed an agreement to the effect that Ms White would arrange for a registered arborist to trim both trees back to the boundary line within three months. The agreement also provided for future trimming. The agreement noted that Dr and Mrs Riethmuller would withdraw their QCAT application.
- On the same day, 18 January 2018, Dr and Mrs Riethmuller withdrew their QCAT application.
- On 18 April 2018 Ms White filed an application for miscellaneous matters in QCAT to have the agreement struck out. This was rejected on the basis that there was no longer any current proceeding.
- On 31 May 2018 Dr and Mrs Riethmuller filed the later application for resolution of a tree dispute, NDR119-18. They indicated that Ms White had not had the trees trimmed.
- Ms White filed a response on 25 July 2018. She indicated that two qualified arborists had declined to quote for the pruning of the jacaranda tree in the manner required under the January 2018 agreement, as such pruning would jeopardise the health and stability of the tree and breach the relevant Australian Standard. Ms White supplied a copy of an arborist’s report dated 18 July 2018: it indicates that the pruning specifications in the January 2018 agreement were not optimal, and makes recommendations for a different pruning regime.
- In their submission on the leave question, Dr and Mrs Riethmuller say that on 7 September 2018 Ms White had the ficus tree cut back to the boundary, and that she had some pruning of the jacaranda tree carried out but it was insufficient from their point of view.
- In her submissions on the leave question, Ms White argues that leave should not be granted. She says that she has substantially complied with the terms of the January 2018 agreement by having the trees trimmed to the extent permitted under the relevant Australian Standard on 7 September 2018. This includes, Ms White says, having the ficus tree pruned back to the boundary line. Ms White acknowledges that the pruning did not occur within three months of the agreement, but says there were valid reasons for this. Ms White says that she is meeting her obligations as a tree-keeper and so no further proceeding is required.
Should leave be granted?
- When a party has withdrawn an application, the party cannot make a further application relating to the same facts or circumstances without leave of the Tribunal.
- The requirement for leave promotes finality. It would, for example, serve to prevent a party from withdrawing an application and then lodging a new application simply because of a change of mind. Withdrawing an application is a serious step, which should not be taken lightly. A respondent should not be automatically expected to face a repeat proceeding after an application has been withdrawn.
- Further, where parties have reached an agreement in settlement of a proceeding, and one party alleges that the other has failed to carry out their side of the bargain, the usual expectation would be that the dissatisfied party would, if necessary, seek to have the agreement enforced in a Court rather than start a new proceeding in the Tribunal.
- On the other hand, there will sometimes be cases where a new Tribunal application will be justified. In my view, the present is such a case. There is an ongoing dispute between the parties, at least in relation to the jacaranda tree. The earlier settlement of the dispute, in January 2018, appears to have involved a misapprehension by the parties about what was achievable. The earlier application was withdrawn on the basis of an agreement which one of the parties says cannot be carried out, at least in relation to the jacaranda tree, based on professional advice that she has since received. Ms White has had the jacaranda tree pruned to some extent, but not to the extent specified in the agreement or an extent that satisfies Dr and Mrs Riethmuller. The option of seeking enforcement of the agreement in a Court is doubtful: if pruning the jacaranda tree back to the boundary line would render it unstable, it seems unlikely that a Court would order specific performance of the agreement.
- It would not be appropriate to grant leave if the inevitable outcome of the proceeding was an order for the pruning regime now adopted by Ms White. However, while that is an available outcome, it is not an inevitable one. Dr and Mrs Riethmuller might put forward some different pruning proposal, perhaps backed up by expert opinion, or they might press for total removal of the jacaranda tree in the event that pruning cannot meet their concerns. A decision by the Tribunal would require the weighing up of many factors under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).
- In these circumstances, it is appropriate to grant leave to Dr and Mrs Riethmuller to make the current application, NDR119-18.
- Leave is granted to Dr and Mrs Riethmuller to make the current application.
- In due course the Tribunal will make directions about the next steps to be taken by the parties.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 46.
- Published Case Name:
Paul Riethmuller and Patricia Riethmuller v Elizabeth White
- Shortened Case Name:
Riethmuller v White
 QCAT 454
18 Dec 2018