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- Unreported Judgment
Wood v Kenyon QCAT 119
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Wood v Kenyon  QCAT 119
Other civil dispute matters
21 April 2020
On the papers
The application is dismissed.
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER – RENEWAL – where problem in implementing or enforcing orders – where Tribunal can only make the same final decision or any other appropriate decision ‘when the proceeding was originally decided’ – where final decision in Compulsory Conference can only be by agreement – where Tribunal did not have jurisdiction to make orders under Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) – where Tribunal’s jurisdiction to make Consent Orders arose in its appellate jurisdiction from the Office of the Commissioner for Body Corporate and Community Management – where Tribunal cannot set aside original Consent Orders or make final decision without parties’ agreement
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 94
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 84, s 88, s 132, s 133, Schedule 3
Barry-O'Neill v Masters  QCAT 415
Bielby v Beilby & McGrath  QCAT 649
Bool v Constable  QCAT 99
DJL v Central Authority (2000) 201 CLR 226
Hayman Views Estate  QBCCMCmr 529
Tasmanian Seafoods Pty Ltd v Chief Executive, Department of Primary Industries & Fisheries  QCAT 326
Urquhart v Body Corporate for Circle on Cavill CTS 39918  QCAT 241
Wood v Kenyon  QCAT 335
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
What is this Application about?
- This proceeding is preceded by an unnecessarily protracted history. Unfortunately, it does not seem likely to end here.
- Some five years ago on 14 May 2015, Jerry and Cathy Wood filed an application in the Tribunal to remove palm trees blocking their views. On 2 September 2015, a Senior Member of the Tribunal dismissed the application for lack of jurisdiction.
- Mr and Mrs Wood then filed an application in the Office of the Commissioner for Body Corporate and Community Management. On 18 November 2016, an Adjudicator in that office relevantly ordered that Robert and Kerry Kenyon remove the palm trees and not replant any tree without body corporate consent.
- On 15 December 2016, Mr and Mrs Kenyon applied to the Tribunal for leave to appeal the Adjudicator’s decision. On 29 March 2017, another Senior Member of the Tribunal made directions that included listing the matter for a compulsory conference. The matter did not settle at the conference, but the learned Member made directions about the obtaining of expert evidence to facilitate a settlement.
- On 29 November 2017, yet another Senior Member of the Tribunal made directions that included listing the matter for another compulsory conference. On 12 December 2017, a compulsory conference proceeded before the same Member who conducted the first compulsory conference. Unfortunately, the parties were again unable to resolve their matter.
- On 19 April 2018, another Member of the Tribunal directed the parties to attend a compulsory conference on 12 June 2018. This conference proceeded before me and to their credit, Mr and Mrs Wood and Mr and Mrs Kenyon reached an agreement to settle their dispute that was reflected in Consent Orders.
- On 19 September 2018, a Senior Member of the Tribunal directed the parties to attend another compulsory conference on 28 September 2018. At that compulsory conference attended by Mr Kenyon and Mr and Mrs Wood, the appeal was dismissed on the basis of the previous Consent Orders.
- Despite the parties’ considerable and commendable efforts to reach an agreement to end their dispute and having ostensibly ended it, on 4 June 2019 Mr and Mrs Wood applied to the Tribunal to renew its Consent Orders on the basis that Mr and Mrs Kenyon “have not kept their side of the agreement or complied with the order at this time”.
Can the Tribunal renew the Decision?
- A party to a proceeding may apply to the Tribunal to renew a decision if there are problems with interpreting, implementing or enforcing the Tribunal’s final decision. The final decision was the dismissal of the appeal from the Office of the Commissioner for Body Corporate and Community Management. It cannot be suggested that it is not possible for that decision to be complied with, nor any problem with interpreting, implementing or enforcing it. It is clear on its face. This alone is sufficient to dismiss the application for renewal.
- Notwithstanding this, Mr and Mrs Wood’s grievance is about implementing or enforcing the Consent Orders preceding the dismissal of the appeal. The relevant Order by Consent for which they seek enforcement reads:
Robert Kenyon and Kerry Kenyon, co-owners of Lot 14, will arrange to have the works carried out in the U Plan specifications dated 2 May 2018 and otherwise maintain all their vegetation so that none of it is higher than the sightline that intersects with the northern roof gutter of Lot 13 and referred to in the Landscape Cross Section in the U Plan specifications dated 2 May 2018.
- The Tribunal notes the parties do not dispute the terms of this Consent Order to which they agreed, nor is there evidence of difficulty with its interpretation. Again, the Consent Order is clear on its face. The parties agreed to its wording. The Tribunal is not satisfied of any problems with interpreting the Consent Orders.
- Mr and Mrs Wood seek enforcement. They submitted that the vegetation has not been removed to the agreed sightline. Mr and Mrs Kenyon deny this.
- Mr and Mrs Wood claimed that upon receiving legal advice, a hearing in the Supreme Court proceeded on 7 May 2019 where they say they were told to come back to the Tribunal to have the order enforced. Unfortunately, Mr and Mrs Wood did not file with the Tribunal any orders or reasons given by the honourable Court, nor did they file any transcript of the proceeding to guide the Tribunal in its determination of their current application to renew.
- Regardless, the superior courts are very limited in their ability to vary Orders once made. The Tribunal’s exercise of powers is even more limited – by statute. The legislature’s desire for finality in Tribunal’s Orders that are difficult to implement or enforce is reflected by the term ‘renewal’ to distinguish it from ‘reopen’. The Tribunal therefore cannot conduct a fresh hearing on the merits as it can for a reopening.
- ‘Final decision’ means the Tribunal’s decision that finally decides the matters the subject of the proceeding. Although the proceeding was resolved by agreement and therefore not strictly ‘decided’ on the merits, the Queensland Civil and Administrative Tribunal Act 2009 (Qld) applies to the orders as if the compulsory conference were a proceeding before the Tribunal. This means even if the Tribunal accepts that the Consent Orders preceding the Order to dismiss were a part of the ‘final decision’, the ‘final decision’ can only be a ‘final decision’ that could have been made at the Compulsory Conference.
- The only ‘final decision’ that could have been made in a Compulsory Conference attended by both parties is by agreement:
Section 134 of the QCAT Act only enables a different order to be made if it could have been made when the matter was originally decided. As the order made was a consent order and there has been no hearing of the evidence, no other order could have been made at the compulsory conference than the one agreed to by both parties at the time.
- The Tribunal’s jurisdiction to make the Consent Orders arose in its appellate jurisdiction from the Office of the Commissioner for Body Corporate and Community Management. This means that section 94 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) does not apply here. This is because section 94 applies only to work agreed to or ordered ‘under this Act’(my underlining):
94 Right to enter land for work under this Act
- (1)A person may enter land owned by another person (the other owner) if—
- (a)the person has agreed with the other owner to carry out fencing work or work relating to trees (the relevant work); or
- (b)QCAT has ordered that the relevant work be carried out by the person.
- Mr and Mrs Wood’s application for a tree dispute brought under the Act was dismissed by a Senior Member in 2015 for lack of jurisdiction. Because of the learned Senior Member’s decision and accompanying reasons, the Tribunal does not have jurisdiction to make orders under this Act.
- The Tribunal therefore cannot set aside the original Consent Orders or make any final decision without the parties’ agreement. The Tribunal also cannot amend the Orders unless both parties apply. This means that the Tribunal cannot make any Orders other than to dismiss the application for renewal. While this is likely to end the Tribunal’s involvement in the matter, unfortunately for the parties it is unlikely to end their dispute.
- The only recourse for the parties is to seek to set aside the Agreement that underlies the Consent Orders in a court of appropriate jurisdiction, agree to further Consent Orders in this Tribunal or seek enforcement in the relevant court.
- As the parties are aware, this protracted dispute has already cost them considerable time and money. Continuing to litigate will continue to cost all of them.
- The parties excelled in their efforts in cooperation at their Compulsory Conference to reach an agreement that resulted in Consent Orders. They may wish to consider reinvigorating those efforts for whatever remains of their dispute.
- The application is dismissed.
 Wood v Kenyon  QCAT 335.
 Hayman Views Estate  QBCCMCmr 529.
 Appeal Tribunal Directions dated 29 March 2017, Direction 3.
 Appeal Tribunal Directions dated 24 May 2017.
 Appeal Tribunal Directions dated 29 November 2017, Direction 6.
 Directions dated 19 April 2018.
 Decision dated 12 June 2018.
 Decision dated 28 September 2018.
 Application for reopening, correction, renewal or amendment dated 4 June 2019.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 133(1).
 Decision dated 28 September 2018.
 Barry-O'Neill v Masters  QCAT 415, .
 Ibid; Bool v Constable  QCAT 99, .
 Decision dated 12 June 2018, Order 3(a).
 Urquhart v Body Corporate for Circle on Cavill CTS 39918  QCAT 241, citing with approval DJL v Central Authority (2000) 201 CLR 226,  – .
 Unlike superior courts with inherent powers: Urquhart v Body Corporate for Circle on Cavill CTS 39918  QCAT 241, ; Bool v Constable  QCAT 99, .
 Tasmanian Seafoods Pty Ltd v Chief Executive, Department of Primary Industries & Fisheries  QCAT 326, .
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 134(1).
 Ibid, Schedule 3 (definition of ‘decision’).
 Ibid, Schedule 3 (definition of ‘final decision’).
 Ibid, s 84.
 Bielby v Beilby & McGrath  QCAT 649, .
 Wood v Kenyon  QCAT 335.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 88.
 Ibid, s 132(6)(b).
- Published Case Name:
Wood v Kenyon
- Shortened Case Name:
Wood v Kenyon
 QCAT 119
21 Apr 2020