Ollier v Kuhnemann[2015] QCATA 112

REASONS FOR DECISION

1. [1]
   Mr Ollier and Ms Glubb own a house in Hampton Street, Harristown.  A large Camphor Laurel tree is situated on their land. Ms Kuhnemann lives next door and brought proceedings^[1] under the Neighbourhood Disputes Resolution Act 2011 (Qld) (the Act)^[2] for various orders including that Mr Ollier and Ms Glubb at their cost remove the tree and remove or prune the roots of the tree.
2. [2]
   Following a hearing, the learned Member made orders for the management of the tree by Mr Ollier and Ms Glubb at their cost but not for its removal and ordered that there is no order as to costs.^[3]
3. [3]
   Mr Ollier and Ms Glubb filed an Application for leave to appeal or appeal.  They challenge the learned Member’s decision in two respects and seek orders that:

   2. a)
      the order for canopy work be made an order of consent.
   3. b)
      the costs order be overturned and that reasonable costs be awarded to them.
4. [4]
   Where the ground of appeal raises an error of law leave is not required.^[4]  Where grounds of appeal raise questions of mixed law and fact, leave to appeal is necessary.^[5]  Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.^[6] Where leave is granted, the appeal is to be decided by way of rehearing.^[7]
5. [5]
   Mr Ollier and Ms Glubb’s application indicates that leave to appeal is required.  In their grounds they largely re-state the case they made before the learned Member rather than identifying errors of fact or mixed law and fact for which leave to appeal is required.  Mrs Kuhnemann’s submissions are in a similar vein but extend to matters that have occurred since and include a submission that there has been non-compliance with the orders.  It is not a function of this proceeding to enforce the orders made.  The Tribunal has no powers to enforce its own orders.  Section 132 of the QCAT Act sets out the steps, which may be taken to enforce a non-monetary decision.  

Was it an error not to make a consent order?

6. [6]
   Mr Ollier and Ms Glubb contend that the learned Member erred in dismissing their request, made during the hearing, to make a consent order, without justification.
7. [7]
   We are not satisfied that there is a demonstrated error.
8. [8]
   A Tree Assessment Report was obtained from Jonathan Hobbs, an arborist.^[8] Mr Hobbs recommended tree pruning work, if the tree was to be retained.  At the hearing, in response to questioning by the learned Member, Ms Kuhnemann informed him that she agreed with Mr Hobb’s report^[9]. 
9. [9]
   Toward the end of the hearing the learned Member indicated that he could see no evidence warranting the removal of the tree and indicated he would formulate orders ‘in accordance with what the arborist has recommended’.^[10] Mr Ollier then requested that any order made consistent with Mr Hobb’s report be ‘a consent order’ to indicate they were not being compelled and had always been willing to prune the tree.  The learned Member asked Ms Kuhnemann’s view.  When she indicated that she did not understand what was proposed, the learned Member said ‘Look, I think it’s beyond a consent order.’^[11]
10. [10]
    Mrs Kuhnemann commenced the proceedings in November 2012.  The final hearing was held almost two years later on 17 October 2014.  The request was made toward the end of the final hearing. In order for a consent order to be made the precise terms of the order was required to be agreed by all parties.   
11. [11]
    In the absence of a consent order agreed by all parties the learned Member was required to make a decision, whether or not Mr Ollier and Ms Glubb opposed or did not oppose an order requiring pruning work.  
12. [12]
    There was no error in not making a consent order, where the precise terms of the order were not agreed by all parties.

Was it an error not to award costs? 

13. [13]
    Mr Ollier and Ms Glubb contend that failing to allow costs is an error in circumstances where they gave evidence of a number of offers to settle, which they submit were more favourable to Ms Kuhnemann than the ultimate outcome. They seek an order that outlays incurred^[12] together with their costs of attending the hearing^[13].
14. [14]
    The appeal is allowed in this respect.
15. [15]
    The ordering of costs in a proceeding involves the exercise of a discretion. 
16. [16]
    The QCAT Act provides ‘Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceedings.’^[14]  Relevantly the Act, which is an enabling Act, does not specifically confer a power on the Tribunal to award costs.  Therefore, the power to award costs must be found in the QCAT Act.
17. [17]
    The Tribunal may award costs if it is satisfied that it is in the interests of justice to do so.  Section 102(3) sets out some factors, which may be considered, in the exercise of the Tribunal’s discretion to award costs.  This includes whether a party has acted in a way, which unnecessarily disadvantages another party.^[15] A matter that is relevant to the exercise of the discretion is whether settlement offers have been made, which were not accepted and whether in the opinion of the tribunal the decision of the tribunal is not more favourable than the offer.^[16] 
18. [18]
    The learned Member did not refer in his reasons to the claim for costs by Mr Ollier and Ms Glubb.  Reasons for final decisions are required to be given.^[17] The Appeal Tribunal^[18] has recognised that:

they must contain three essential elements: appropriate and sufficient reference to the relevant evidence; the material findings of fact that were made (and the reasons for making those findings); and, the applicable law and the reasons for applying it.....the crucial requirement is for the Tribunal to give reasons which disclose what has been taken into account in a way that means that any error is revealed.

19. [19]
    It has also been accepted by the Appeal Tribunal that the adequacy of the Tribunal’s reasons is to be considered ‘in light of the simpler, expedited procedures it is obliged to adopt under the QCAT Act’^[19]
20. [20]
    We find that the reasons are inadequate, as they do not disclose why the claim for costs was not allowed. A failure to provide sufficient or adequate reasons for a decision is an error of law.^[20] Leave is not therefore required.

What are the consequences?

21. [21]
    Section 146 of the QCAT Act sets out the Appeal Tribunal’s powers on appeal where the appeal is on a question of law. It does not provide for rehearing as compared to section 147, which relates to appeals on questions of fact or mixed law and fact.^[21] If the question of law resolves the matter as a whole then the Appeal Tribunal may substitute its decision, otherwise it is to remit the matter for further consideration.
22. [22]
    We have no alternative but to allow the appeal as to the costs decision in the original proceeding and to set aside that decision and return the matter as to costs to the learned Member for a fresh determination to be made according to law.
23. [23]
    Mr Ollier and Ms Glubb do not expressly seek costs of this appeal proceeding in the Application for leave to appeal or appeal.
24. [24]
    As there is no claim for costs other than for the proceeding before the learned Member and having regard to:

    2. a)
       s 100 and s 102 of the QCAT Act;
    3. b)
       that the parties were self-represented;
    4. c)
       the appeal proceeding was determined on the papers; and
    5. d)
       Mr Ollier and Ms Glubb were successful on one of the two grounds relied upon,

we consider that it is appropriate to make no order as to costs of the appeal proceedings.