Lake v Hermann[2021] QCAT 425

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is the application about?

1. [1]
   Mr and Mrs Lake own a property that they say has been impacted, variously, by over-hanging branches, leaf litter and roots from golden cane palm trees, a gum tree, a ficus tree and an umbrella tree situated on and encroaching/overgrowing from adjoining land owned by Mr and Mrs Hermann.
2. [2]
   The parties are also in dispute regarding several other issues over which the tribunal does not have jurisdiction, ranging from allegations of harassment, unapproved structures and privacy concerns.   There also appear to be issues regarding the dividing fence and retaining wall.  Unfortunately, these issues – and the acrimony accompanying them – have invaded the tree dispute between the parties, which is now long-standing, largely due to the enthusiastic filing of material and interlocutory applications that have necessarily delayed the matter from progressing to a final hearing.
3. [3]
   In an application filed 21 August 2019, Mr and Mrs Lake sought, among other things:

   1. (a)
      that Mr and Mrs Hermann carry out work on the trees at their expense;
   2. (b)
      that a “court elected” qualified arborist prepare an itemised report about the trees referred to in the application;
   3. (c)
      that the works to be undertaken comprise:

      1. Removal of all “border trees”, being a tree whose trunk, roots or branches encroach on the property or air space of Mr and Mrs Lakes property, back to 30cm on the tree keepers’ property and 40cm into the neighbours’ property, including the installation of root barriers to be installed at 30cm inside the tree keepers’ property to prevent regrowth;
      2. Regular pruning of all remaining trees on the tree keepers’ property so as to provide a 30cm buffer from the retaining wall, fence and any future structures on the boundary; and
   4. (d)
      that Mr and Mrs Hermann pay Mr and Mrs Lakes their out-of-pocket costs of the application.
4. [4]
   The application has progressed through most typical pre-hearing steps within the tribunal, including the filing of a response by Mr and Mrs Hermann, directions hearings (on the papers and by appearance), a compulsory conference and a tree assessment from an independent arborist appointed by the tribunal.
5. [5]
   At a directions hearing on 17 November 2021 I listed the application for a tree dispute for a final hearing on a date to be fixed.
6. [6]
   This decision addresses Mr and Mrs Lake’s outstanding applications for interlocutory decisions, being an:

   1. (a)
      Application for miscellaneous matters filed 3 February 2021^[1] seeking orders directing the Moreton Bay Regional Council to produce “any and all records of communicated between Mr and Mrs Hermann consisting in any form, including notes, emails between, phone calls or other materials the subject of which is our property or ourselves” between 1 January 2009 and 1 March 2021.
   2. (b)
      Application for miscellaneous matters filed 9 June 2021 seeking directions arising from the tree assessment, namely:

      1. that the tribunal strike out the tree assessment report dated 4 November 2020, the respondents’ submissions for the assessment filed 24 August 2020 and the respondents’ reply to the tree assessment filed 18 March 2021; in the alternative,
      2. that the tree assessor, Mr Gunter attend the filing hearing to give evidence, that he produce and submit to the tribunal all photograph recordings taken during his inspections on 20 October 2020 and that the tribunal examine or cross examine Mr Gunter at the hearing; and 
   3. (c)
      Application for interim orders filed 30 July 2021 seeking an order that the dead gum tree be made adequately safe until final orders are made.
7. [7]
   The parties have been given ample opportunity to make submissions on the various interlocutory applications and my decision on each of them follows.

What laws apply?

QCAT proceedings generally

8. [8]
   The objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”)^[2] include to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick, and, to that end, section 4 of the Act requires the tribunal, among other things, to:

   1. (a)
      encourage the early and economical resolution of disputes before the tribunal;^[3] and
   2. (b)
      ensure proceedings are conducted in an informal way that minimises costs to the parties and is as quick as is consistent with achieving justice.^[4]
9. [9]
   Justice is often achieved after a full hearing and tested evidence in a matter.   However, section 62(1) of the QCAT Act permits the tribunal to give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding. 
10. [10]
    Without limiting that power, the tribunal may give a direction requiring a party to the proceeding to produce a document or another thing or provide information to the tribunal or to another party to the proceeding.^[5]
11. [11]
    The tribunal’s power to make a decision in a proceeding (the primary power) includes a power to make such directions as the Tribunal considers appropriate for achieving the purpose for which the tribunal may exercise the primary power.^[6]
12. [12]
    The tribunal must allow a party to a proceeding a reasonable opportunity to call or give evidence and to make submissions to the tribunal.^[7]  It must also ensure that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.^[8]  However, the tribunal may refuse to allow a party to a proceeding to call evidence on a matter if the tribunal considers there is already sufficient evidence about the matter before the tribunal.^[9]  
13. [13]
    To that end interlocutory applications may be decided upon the written submissions of the parties without those parties or their representatives appearing at a hearing.^[10]  These proceedings are known as decisions made “on the papers”.

Tree disputes in QCAT

14. [14]
    Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (“the NDA’) applies to trees situated on land recorded in the freehold land register^[11] (subject to some exclusions) and tree keepers are responsible for their trees.^[12] 
15. [15]
    Under section 48(1)(a) of the NDA a “tree keeper” is, if the land on which the tree is situated is a lot recorded in the freehold land register under the Land Title Act 1994 (Qld), the registered owner of the lot under that Act.
16. [16]
    Section 65 of the NDA prevents the tribunal from making an order in relation to trees unless the applicant neighbour:

    1. (a)
       the neighbour has made a reasonable effort to reach agreement with the tree-keeper;
    2. (b)
       the neighbour has taken all reasonable steps to resolve the issue under any relevant local law, local government scheme or local government administrative process;
    3. (c)
       to the extent the issue relates to the land being affected because branches from the tree overhang the land—

       1. the branches extend to a point over the neighbour’s land that is at least 50cm from the common boundary; and
       2. the neighbour cannot properly resolve the issue using the process under part 4; and
    4. (d)
       the neighbour has given the copies of the application under section 63, other than to the extent the requirement to do so has been waived.
17. [17]
    Section 46 of the NDA provides:

Land is affected by a tree at a particular time if—

(a) any of the following applies—

(i) branches from the tree overhang the land;

(ii) the tree has caused, is causing, or is likely within the next 12 months to cause—

(A) serious injury to a person on the land; or

(B) serious damage to the land or any property on the land; or

(C) substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land; and

(b) the land—

(i) adjoins the land on which the tree is situated; or

(ii) would adjoin the land on which the tree is situated if it were not separated by a road.

18. [18]
    Section 66 of the NDA:

    1. (a)
       require the tree-keeper or neighbour to pay the costs associated with carrying out an order under this section; and
    2. (b)
       require the tree-keeper to pay compensation to a neighbour for damage to the neighbour’s land or property on the neighbour’s land.
19. [19]
    Under section 66(2) of the NDA, the tribunal can make orders in relation to trees in order to:

    1. (a)
       prevent serious injury to any person;
    2. (b)
       remedy, restrain or prevent -

       1. serious damage to the neighbour’s land or any property on it; and
       2. substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.
20. [20]
    Section 72 of the NDA provides that the removal of a tree should be an order of last resort.
21. [21]
    Tree assessors assist the tribunal by providing expert evidence.^[13]  The assessor will inspect the tree/s and properties the subject of the dispute and provide a report that outlines solutions to the issues raised in the application from which the parties will be invited to reach agreement, or the matter will proceed to a hearing on the basis that the tree assessor’s evidence will be the only expert evidence permitted at the hearing.^[14]

Application for miscellaneous matters filed 3 February 2021 (directions to produce)

22. [22]
    Section 62(3) of the QCAT Act provides that the tribunal may make an order requiring a person to produce a document or thing relevant to the proceeding.
23. [23]
    For a notice to produce to be granted, it must be relevant to a proceeding and a lack of relevance is, of itself, grounds by which the tribunal can decline issue the notice to produce.^[15] 
24. [24]
    Noting that the onus is on the party alleging relevance,^[16] it nonetheless can be gleaned from the application and material filed in the proceedings.^[17]
25. [25]
    There must also be a legitimate forensic purpose for issuing the direction to produce.^[18]  The production of documents cannot be compelled for the purpose of trawling through what was produced in the hope of generating lines of enquiry not otherwise available to support the case in question (or any other case for that matter), or, in other words, the production of documents cannot be used for a “fishing expedition”.^[19]
26. [26]
    The appropriate test to apply to ascertain legitimate forensic purpose is whether or not the documents sought will materially assist the applicants’ case.^[20]
27. [27]
    It is for Mr and Mrs Lake to satisfy the tribunal that:

    1. (a)
       the party to whom the notice is directed has or is likely to have possession of the things they are being asked to produce; and
    2. (b)
       the documents to be produced are relevant to the matters in dispute to be decided by the tribunal; and
    3. (c)
       the documents produced will, on balance, assist the tribunal in hearing and determining the matter.   
28. [28]
    Importantly, on 25 February 2020 Mr and Mrs Lake filed a substantially similar application to the tribunal, seeking “all complaints made to MBRC’s Regulatory Services” in relation to their property to support their allegations against Mr and Mrs Hermann of “continual harassment”. By a decision made 23 April 2020 that application was dismissed.
29. [29]
    The current application reiterates that the purpose of the documents is ‘as evidence to support a document in our application named “Continual Harassment”’.
30. [30]
    Mr and Mrs Lake also say that the Council documents will “put the record straight” regarding Mr and Mrs Hermann’s “lies and created illusions in order to deceive the tribunal”. 
31. [31]
    To be very clear, the crux of the application for a tree dispute is whether the tribunal should make any orders, and if so at whose cost, under section 66 of the NDA, in relation to the removal or pruning of the problem trees identified by Mr and Mrs Lake.
32. [32]
    This requires an assessment of the extent to which the trees are causing or likely to cause serious damage or substantial, ongoing and unreasonable interference.  This is a matter for expert assessment of the nature and impact of the trees which is available to the tribunal thanks to the tree assessment that has already taken place.   The focus is on the trees situated on the Hermanns’ land and the impact they are having, have had, and are likely to have on the Lakes.  The conduct of and complaints by the Hermanns against the Lakes will have little, if anything, to do in relation to the decision to be made by the tribunal.  
33. [33]
    The current application for a direction to produce seeks from the Council “any and all records of communicated between Mr and Mrs Hermann consisting in any form, including notes, emails between, phone calls or other materials the subject of which is our property or ourselves” between 1 January 2009 and 1 March 2021.
34. [34]
    It is difficult to see how complaints made by the Hermanns regarding the Lakes’ carport and containers and any other matters are relevant to the decision to be made by the tribunal.  The issue of harassment is not one over which the tribunal has jurisdiction and is not relevant to these proceedings.   
35. [35]
    The Lakes believe the documents will also assist the tribunal to assess credibility however, the tribunal is able to do so at the hearing by observing the cross examination of, and by undertaking an examination of Mr and Mrs Hermann directly.  Directions have now been given to the parties regarding the filing of their statements of evidence for that purpose.
36. [36]
    Mr and Mrs Lake have not convinced the tribunal that the documents sought are relevant to the case.  Even if they had, the documents, if produced, will not assist the tribunal in hearing and determining the matter.  The application for the directions to produce is dismissed on that basis.

Application for miscellaneous matters filed 9 June 2021 (various directions regarding the tree assessor)

37. [37]
    In conducting the final hearing (in fact all proceedings), the tribunal must act fairly and according to the substantial merits of the case^[21] and:

    1. (a)
       must observe the rules of natural justice; and
    2. (b)
       is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures; and
    3. (c)
       may inform itself in any way it considers appropriate; and
    4. (d)
       must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit; and
    5. (e)
       must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.^[22]
38. [38]
    The tribunal may also admit into evidence the contents of any document despite the noncompliance with any time limit or other requirement under this Act, an enabling Act or the rules relating to the document or the service of it.^[23]
39. [39]
    To the extent the application filed 9 June 2021 seeks orders that the tree assessor attend the final hearing to give evidence, as mentioned in the directions hearing, this is the ordinary course when the tree assessment is disputed and, to that end, I have made orders in the directions hearing seeking submissions on the intention of the tribunal to call Mr Gunter as a witness and on the issue of costs.
40. [40]
    As to the striking out of material filed by Mr and Mrs Hermann before and after the report, and the striking out of the report itself, Mr and Mrs Lake say:

    1. (a)
       Mr and Mrs Hermann made covert submissions to the tribunal and to the tree assessor that Mr and Mrs Lake were not privy to; and
    2. (b)
       Mr and Mrs Hermann nonetheless objected to Mr and Mrs Lake’s last-minute submissions to the tree assessor.
41. [41]
    Each party, regardless of timing and disclosure to the other, made submissions to the tree assessor, and was able to be present at the inspection, and is able to cross-examine the tree assessor at the final hearing.  
42. [42]
    It is difficult to see how, in that context, either party was or will be disadvantaged by the timing or content of material filed for the tree assessment assessor.  The tribunal is the ultimate decision-maker in these proceedings and is well able to hear the various evidence, objections, and submissions of the parties and to make a decision on it.  Evidence has not closed, and each party is currently preparing its statements for the final hearing. 
43. [43]
    Given that the rules of evidence in the tribunal are relaxed, and that the tribunal may inform itself in any way it sees fit, provided that the rules of natural justice are observed, there is no basis at this stage of proceedings to exclude the submissions made before or after the tree assessment.   
44. [44]
    As to the exclusion of the tree assessor’s report altogether on the grounds of bias or noncompliance with the Uniform Civil Procedure Rules, or with Practice Direction 4 of 2009, I reiterate that the rules of evidence do not apply in the tribunal.
45. [45]
    Additionally, the tree assessor’s role is dictated under Practice Direction 7 of 2013, although they are also an expert to which Practice Direction 4 of 2009 applies (although not to the extent of inconsistency).  The assessor is charged with the obligation to “outline solutions to the issues raised in the application”^[24] but the final decision is and will be the tribunal’s to make. 
46. [46]
    It is not appropriate, and there are no grounds to strike out Mr Gunter’s tree assessment report prior to the final hearing for a number of reasons:

    1. (a)
       Mr Gunter was appointed as an independent expert arborist to give the tree assessment;
    2. (b)
       Each party was able to contribute and did contribute submissions to the assessment;
    3. (c)
       Each party can question and challenge Mr Gunter’s evidence and recommendations at the final hearing;
    4. (d)
       As Mr and Mrs Lake correctly point out, the tribunal can, in making its final decision, decide to completely reject the assessor’s report under section 111(3)(c)(ii) of the QCAT Act.
47. [47]
    Further, the tribunal need also be mindful that their resources serve the public as a whole, not just the parties to proceedings before it.  Justice Wilson said just this in Creek v Raine & Horne Real Estate Mossman:^[25]

The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, “… the public as a whole, not merely the parties to the proceedings”^[26].  Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties^[27].

48. [48]
    The tribunal appointed the tree assessor at its cost (with a contribution from the parties) and that valuable resource ought not be squandered when, if the contents of the assessment are disputed, the parties are well able at the hearing to test the evidence.
49. [49]
    For those reasons, the application to strike out the tree assessment report dated 4 November 2020, the respondents’ submissions for the assessment filed 24 August 2020 and the respondents’ reply to the tree assessment filed 18 March 2021 are dismissed.

Application for interim orders filed 30 July 2021 (prune or remove gum tree)

50. [50]
    Section 58 of the QCAT Act permits the tribunal to make an interim order to protect a party’s position for the duration of the proceeding or to require or permit something to be done to secure the effectiveness of the exercise of the tribunal’s jurisdiction for the proceeding.
51. [51]
    In Gosbell v Linehurst Pty Ltd^[28] Senior Member Howard said that the issue is whether the applicant has a good arguable case, and if so, whether on the balance of convenience the order should be made. Further, that it is not for the tribunal “to reach any final conclusions about the issues raised, as that will be a matter for the final hearing, if the matter is not resolved before that time”.
52. [52]
    Mr and Mrs Lake seek interim orders that the dead gum tree be made adequately safe until final orders are made.
53. [53]
    They say that the tree is dropping branches and has already caused minor damage to their property, specifically that:

    1. (a)
       the gum tree is dead and it shedding dead branches, hitting land, structures and chattels;
    2. (b)
       their caravan has been scratched by falling branches;
    3. (c)
       one branch flew over the carport into their trailer (photographs supplied); and
    4. (d)
       strong winds make the situation worse.  
54. [54]
    The fallen branches referred to are in the nature of “large sticks” or twigs rather than branches.
55. [55]
    The respondents rely on the tree assessment which indicates that although the gum tree is “in very poor condition” “none of the trees appear to be causing (or are likely to cause within the next twelve months) substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land”.
56. [56]
    All of the evidence and submissions of the parties in relation to the application for interim orders to maintain the gum tree are untested, and by that, I mean, the allegations of the applicants (that the tree is a danger) and of the respondents (that the tree is safe), as well as the opinion of the tree assessor (that the tree is safe) has not been the subject of examination, cross-examination or scrutiny to test its veracity.
57. [57]
    The interim orders sought by Mr and Mrs Lake are not supported by evidence other than the photographs they provided.  The tree assessment report – which, although untested, is independent – does not support their application.  Further, their own words describing the damage as “minor” do not trigger the tribunal’s jurisdiction to make orders, which requires “serious damage”.
58. [58]
    The evidence is not sufficient to satisfy me that the balance of convenience weighs in favour of making the interim orders sought for the pruning of the gum tree pending a final hearing. 
59. [59]
    In those circumstances the application for interim orders filed 30 July 2021 is also dismissed.