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Leonardi v Watson & Harloe[2015] QCATA 192

Leonardi v Watson & Harloe[2015] QCATA 192

CITATION:

Leonardi v Watson & Harloe [2015] QCATA 192

PARTIES:

David Leonardi and Lisa Leonardi

(Applicant/Appellant)

v

Allan James Watson and Barbara Mary Harloe

(Respondent)

APPLICATION NUMBER:

APL299-15

MATTER TYPE:

Appeals

HEARING DATE:

11 December 2015

HEARD AT:

Townsville

DECISION OF:

Senior Member O'Callaghan

Member Browne

DELIVERED ON:

22 December 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Applications to rely on fresh evidence by both parties is refused.
  2. Leave to appeal granted.
  3. Appeal allowed.
  4. The decision made by the Tribunal on 24 June 2015 is set aside and the following decision substituted: Application NDR243-13 is dismissed.

CATCHWORDS:

APPEAL – OTHER CIVIL DISPUTE – TREE DISPUTE – where respondents sought relief alleging the tree on the applicants’ property caused serious injury – where Tribunal order removal of tree – where Tribunal found the neighbour was seriously affected by pollen of the tree – where applicants seek leave to appeal – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(b), s 147

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 65, s 66, s 69, s 72, s 73, s 75

Barker v Kyriakides [2007] NSWLEC 292; cited

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404; cited

Ellis & Anor v Queensland Building Services Authority [2010] QCATA 93; cited

Humphries & Anor v Poljak [1992] 2 VR 129; cited

Pickering v McArthur [2005] QCA 294; cited

Thomsen v White [2012] QCAT 381; cited

APPEARANCES:

 

APPLICANT:

David Leonardi and Lisa Leonardi in person

RESPONDENT:

Allan James Watson and Barbara Mary Harloe in person

REASONS FOR DECISION

  1. [1]
    Alan James Watson and Barbara Mary Harloe have lived in the suburb of Hyde Park for approximately 25 years.
  2. [2]
    Mr Watson and Ms Harloe are neighbours to David Leonardi and Lisa Leonardi (the Leonardis).
  3. [3]
    The Leonardis have a tree growing in their back yard and for the purposes of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the Act) are the tree keepers.
  4. [4]
    Mr Watson and Ms Harloe want the tree growing in the Leonardis’ back yard removed because they say Ms Harloe has an allergic reaction to the flowers; and the leaves, flowers and seed pods block the gutters on their property causing water to overflow.[1]
  5. [5]
    Mr Watson and Ms Harloe filed an application for a tree dispute. The application proceeded to a hearing in Townsville before a single member of the Tribunal. The Tribunal ordered the Leonardis to wholly remove the tree described as an ‘Albizia Lebbek’ within 60 days.[2] The Leonardis want to appeal that decision. The Tribunal’s order for the removal of the tree has been stayed pending the outcome of the application for leave to appeal or appeal.[3] Both parties filed applications to rely on fresh evidence in the appeal; and at the oral hearing of the appeal had an opportunity to read the Tribunal’s transcript from the hearing at first instance.[4]
  6. [6]
    The main issue raised on appeal is whether the medical report relied upon by Ms Harloe contained sufficient information for the learned Member to determine that ‘it [the allergic reaction] was [a] serious injury, or that the tree caused the injury’.[5]
  7. [7]
    This raises a question of mixed fact and law for which leave is required.[6] Leave to appeal will usually only be granted if there is a ‘reasonable argument’ that there is an error in the decision at first instance, and an appeal is necessary to correct a ‘substantial injustice’ to the applicant caused by that error.[7]
  8. [8]
    If leave is granted in circumstances where there is an error of mixed fact and law, the appeal must be decided by way of rehearing with or without the hearing of additional evidence as decided by the Appeal Tribunal.[8]
  9. [9]
    Mr Watson and Ms Harloe say that Ms Harloe’s condition is ‘chronic’ when the tree is flowering and is required to take medication that leaves her ‘feeling drugged out and very tired’.[9] At the oral hearing, Ms Harloe said that the tree damages their home and it was necessary to replace their existing roof (because of the damage).

What is the Tribunal’s power to make orders under the Act?

  1. [10]
    The Tribunal has the power under the Act to make the orders it considers appropriate in relation to a tree ‘affecting’ the neighbours land to ‘prevent serious injury to any person’; or to remedy, restrain or prevent serious damage to the neighbour’s land or property; or ‘substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land’.[10]
  2. [11]
    The issue of whether land is being affected (by a tree) is, as provided under s 46(a)(ii)(A), at a particular time if the tree has caused, is causing, or is likely within the next 12 months to cause serious injury to a person on the land. An “injury’ for the purposes of chapter 3 includes ‘a severe allergic reaction’.[11]
  3. [12]
    The Tribunal in making appropriate orders where there is an alleged ‘serious injury’ may consider anything other than the tree that has contributed, or is contributing to the injury or likelihood of injury, including any act or omission by the neighbour and the impact of any tree situated on the land.[12] The Tribunal may also consider any steps taken by the tree keeper or the neighbour to prevent or rectify the injury or the likelihood of injury.[13]
  4. [13]
    Under s 74(2) of the Act the Tribunal may also consider in deciding whether to order under s 66 that the tree be destroyed, how long the neighbour has known of the injury; any steps that have been taken by the tree keeper or the neighbour to prevent further injury; anything other than the tree that may have caused, or contributed to, some or all of the injury; and any other matter the Tribunal considers relevant.
  5. [14]
    The Tribunal must also have regard to relevant considerations under s 72 and 73 of the Act. Section 72 provides that a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.
  6. [15]
    Under s 73(1) the Tribunal must consider matters including (for example) the location of the tree in relation to the boundary of the land on which the tree is situated, whether the tree has any historical, cultural, social or scientific value; any contribution the tree makes to the local ecosystem and to biodiversity; any contribution the tree makes to the amenity of the land including its contribution relating to privacy, landscaping, garden design or protection from the sun, wind, noise, odour smoke; any impact the tree has on soil stability, the water table or other natural features of the land or locality; the likely impact on the tree of pruning it, including the impact on the tree of maintaining it at a particular height, width or shape; the type of tree, including whether the species of tree is a pest or weed.
  7. [16]
    Under s 65 the Tribunal must be satisfied before it can make an order under s 66 that certain requirements are met including whether the neighbour (the applicant) has made a reasonable effort to reach agreement with the tree keeper.

What is a serious injury under the Act?

  1. [17]
    The Act does not define the meaning of a serious injury but does provide that an injury includes a severe allergic reaction.
  2. [18]
    In Humphries & Anor v Poljak[14] the Supreme Court of Victoria Appeal Division considered the meaning of ‘serious injury’ for the purposes of determining whether a person was able to access common law entitlements under legislation in Victoria namely the Transport Accident Act 1986 (Vic). Although that decision refers to different legislation, the discussion by the Court about the meaning of a ‘serious injury’ is relevant when considering whether a person has a ‘serious injury’ under the Act. The Court said the injury must be ‘very considerable’ and more than ‘significant’ or ‘marked’. The Court said:

"…To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequences, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the rage of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’? Beyond such guidance it is, we think, not possible to go. The only other assistance in the resolution of such applications that can be gained will derive from the trends that will emerge from the determination in the future from time to time of a range of applications including those the adjudication of which is now our responsibility."[15]

  1. [19]
    The applicant in this case Mr Watson and Ms Harloe have the burden of proof and must satisfy the Tribunal there is a nexus between the alleged serious injury (severe allergic reaction) and the tree. This is because s 46 provides when land is ‘affected by a tree’ meaning the tree ‘has caused, is causing, or is likely within the next 12 months to cause’ serious injury to a person on the land.
  2. [20]
    For land to be ‘affected by a tree’ for the purposes of s 46, a finding must firstly be made about the alleged injury in order to determine whether it is a ‘serious injury’ (severe allergic reaction). Secondly, the Tribunal must be satisfied based on the evidence before it as to whether the tree has caused, is causing, or is likely within the next 12 months to cause ‘serious injury’ to the person.
  3. [21]
    The Tribunal may also consider for the purposes of s 74 ‘anything other than the tree’ that has contributed, or is contributing to the injury or damage; and in making an order that involves destroying a tree, how long the neighbour (the applicant) has known of the injury or damage.

What were the findings made by the learned Member?

  1. [22]
    The learned Member’s reasons set out Ms Harloe’s evidence about the alleged allergic reaction caused by the pollen and treatment prescribed. The learned Member said:

"Ms Harloe gave evidence that the pollen affects her breathing; causes a burning sensation down her throat; her eyes swell and become infected; she develops blotches on her skin similar to measles; it affects the skin between her fingers and her toes and the soles of her feet. The symptoms have been so severe that Ms Harloe’s General Practitioner has referred her to the allergy specialist. Dr Hira the allergy specialist has prescribed medication to help Ms Harloe deal with her allergy."[16]

  1. [23]
    The learned Member considered the medical evidence of Dr Hira (Exhibit 3) and ultimately found there is evidence from pollen tests that confirms the allergic response that Ms Harloe said she is experiencing.[17]
  2. [24]
    The learned member made findings about the Ms Harloe’s allergic reaction that was a serious injury. The learned Member was satisfied that serious harm is being caused and the only way to ‘cease the effects’ is to remove the tree. The relevant findings appear in the Tribunal’s published reasons at [23] to [28] inclusive:

[22] The Tribunal has no reason not to accept Ms Harloe’s evidence.

[23] She accordingly suffers a severe allergic reaction for a period between six and ten weeks of each of the last three years.

[24] The constellation of symptoms; the severity of the symptoms; and the need to take prescription medication satisfied the Tribunal this constitutes a serious injury to Ms Harloe.

[25] The legislation provides that a living tree should not be removed or destroyed unless the issue relating to the tree cannot be otherwise satisfactorily resolved.

[26] The arborist has made the point that Mr and Mrs Leonardi are responsible tree keepers. Mr Leonardi told the Tribunal that he sympathised with Ms Harloe and was willing to have tree trimmed back.

[27] The Tribunal notes that the parties have been unable to reach any agreement as to a course of action.

[28] The Tribunal is satisfied that serious harm is being caused and the only way to cease the effects is to remove the tree. The appropriate remedy is to order the destruction of the tree.[18]

  1. [25]
    The learned Member made findings about the period of time that Ms Harloe said she suffers an allergic reaction (6 to 10 weeks) for the purposes of being satisfied that ‘a severe allergic reaction’ meets the requirements of the Act.[19] The learned Member ultimately found that Ms Harloe has ‘done the pollen test’ and she is reacting to the pollen of the Indian Raintree and that is a severe allergic reaction.[20]

What were the issues and evidence before the learned member?

  1. [26]
    In the application for a tree dispute Mr Watson and Ms Harloe identify the tree as having caused a serious injury because Ms Harloe has ‘an allergic reaction to the flowers’. The application also refers to the tree having caused serious damage to land and property because it ‘drops large quantity of flowers, leaves and seed pods. Wrecking gutters, seedlings growing in garden beds and the flowers smother small ground cover and lawn’. The application states that the tree is 10 years old however the tree is getting larger and Ms Harloe’s allergy is getting worse and in the last 3 years it (the allergy) has become a major problem.
  2. [27]
    The application identifies other issues such as:- financial hardship because of the cost in getting the gutters cleaned and the additional electricity costs, the ongoing problem of raintree seedlings continually growing in the garden beds ‘thus interfering with our use of the land’ and the small trees are very difficult to remove, Mr Watson and Ms Harloe being no longer capable of clearing gutters and sweeping sticky flowers off the roof, the location of the tree on the tree keepers land because the flowers and seed pods float into Mr Watson and Ms Harloe’s yard, the tree is unsuitable for an urban block; and the quantity of waste referred to as ‘tons of waste’ that are deposited into Mr Watson and Ms Harloe’s yard.
  3. [28]
    The Transcript shows both parties had an opportunity to present their evidence including giving sworn oral evidence at the hearing before the learned Member.
  4. [29]
    Mr Watson and Ms Harloe tendered colour photographs of the tree (Exhibit 1), a roof assessment report about the roof leaks caused by ‘blockage’ (Exhibit 2) and a referral from Dr Diamond Hira, Allergy Medical Centre to Dr Fiona Fleming dated 3 December 2014 (Exhibit 3).
  5. [30]
    Dr Hira in his referral (Exhibit 3) states that Ms Harloe is suffering from ‘urticaria possibly due to an allergic reaction to flowering of Indian siris/Albizia lebbeck’. Dr Hira states that Ms Harloe ‘also suffers’ from ‘contact dermatitis with prolonged contact with plastics’. Dr Hira states the closet pollen test is ‘Acacia mimosa’ and recommends that Ms Harloe take Zantac and Zyrtec for the next three months and avoid contact with the flowers of Indian Siris/Albizia lebbeck. Dr Hira’s referral attaches ‘skin prick test results’ that show ‘positive’ results for ‘pollens’ including ‘Chenopodium –fat hen’ and ‘Sycamore American’ and ‘Acacia Mimosa’.
  6. [31]
    The Transcript shows Mr Watson and Ms Harloe identified 3 issues referred to as ‘significant events’: the first being a lot of debris because the tree loses its leaves, the second is the flowers described as being ‘a real problem for the allergy’ because the flowers break down; and the third being the leaves that are dropping on the roof .[21]
  7. [32]
    In relation to the first issue, Ms Harloe said at the hearing that the leaves are ‘just an enormous amount of material that’s dropped into your yard’ and relies on photographs tendered (Exhibit 1).[22] In relation to the third issue about the roof gutters, Ms Harloe relied on the photographs (Exhibit 1) and the plumber’s report (Exhibit 3) and said because there is no ‘overhang’ the wind carries the water back into the house.[23] Ms Harloe refers to difficulties in maintaining the roof stating it is a ‘constant problem’ and the cost is ‘enormous’ because of the workplace health and safety requirement to use scaffolding (to clean the gutters).[24]
  8. [33]
    Ms Harloe, in giving her oral evidence also referred to concerns about maintaining their solar panels that were recently put on the roof. Ms Harloe refers to issues with cleaning and shade. Ms Harloe said:

"…we are concerned that we’ll have to – may spend a fair bit of time maintaining these solar panels because those flowers will stick to them. Remember that the flowers are designed to fly. I mean, that’s how they – the tree spreads.[25]

…There is a certain amount of shade here that – the solar panels and that, but, you know, these things are going to happen with people’s trees…"[26]

  1. [34]
    Mr Watson and Ms Harloe referred to the issue of Ms Harloe’s allergy as being the ‘biggest problem’. Mr Watson said that Ms Harloe spends weeks on medication and use the air-conditioner for ‘months on end’.[27]
  2. [35]
    Ms Harloe gave evidence about her allergy stating that it affects her breathing all down her throat, her skin breaks out ‘like measles’, her eyes swell and get very red, her ears get infected, (she has an) infected throat, her skin gets itchy, her hands, between her fingers and her feet get itchy.[28] Ms Harloe said she ‘ends up at the doctors’ and she ‘baths in certain stuff’ and when it ‘gets really bad’ she will get up in the night and lie in the bath in freezing cold water.[29]
  3. [36]
    In giving her oral evidence, Ms Harloe said it upsets her ‘something terrible’. Ms Harloe said she puts towels against the doors to keep ‘the rubbish’ (the pollen) out and she vacuums a lot.[30] Ms Harloe said she goes to work, will go to people’s places on the weekend and will only go home to sleep. Ms Harloe said she sees the allergy doctor (Dr Hiro) every 3 months and is taking double antihistamines twice a day (double the dose plus another) and has been doing that for the ‘last umpteen months’.[31] Ms Harloe said it (the allergy) never goes away but ‘it [the medication] keeps it down that [she] can function okay, but taking all that stuff, it fogs your brain…’.[32]
  4. [37]
    In relation to the allergy testing, Ms Harloe said that she was tested ‘as close as they could do to this tree’.[33] Ms Harloe said she came up allergic to it (the tree) and ‘obviously got a little allergy to plastics as well’.[34]

Was there an error in the learned Member’s findings?

  1. [38]
    There is an error in the learned member’s finding that Ms Harloe’s condition is ‘a severe allergic reaction’ and the constellation of symptoms is a ‘serious injury’.
  2. [39]
    It was not open to the learned Member to make the finding based on the evidence before him in particular the referral prepared by Dr Hira (Exhibit 3) and Ms Harloe’s oral evidence. Dr Hira does not refer to Ms Harloe’s condition as being ‘severe’ or ‘serious’. Dr Hira sates Ms Harloe is ‘suffering from urticarial possibly due to an allergic reaction to flowering of Indian siris/Albizia lebbeck’.
  3. [40]
    Ms Harloe gave oral evidence at the hearing that she ‘can function okay’.[35] There is no independent evidence to support Ms Harloe’s oral evidence given at the hearing before the learned Member that ‘taking all that stuff’ in reference to the effects of medication taken by her that it (the medication) ‘fogs [her] brain’; that her condition stops her doing ‘a lot of social things’; or that she is ‘sick all the time’ stating that a consequence of being sick (as stated) is ‘it’s really depressing’.[36]
  4. [41]
    Dr Hira refers to ‘recommended’ not ‘prescribed’ medication to be taken over the next three months. Dr Hira does not refer to any ‘effects’ of the medication recommended or that the ‘urticaria’ impacts on Ms Harloe’s ability to work, socialise or that it causes her discomfort to the extent that she is ‘depressed’.
  5. [42]
    There is insufficient evidence based on Dr Hira’s referral, Mr Watson and Ms Harloe’s evidence alone that Ms Harloe’s condition is ‘serious’ or is a ‘severe allergic reaction’. Ms Harloe has had an opportunity to present her evidence and this includes obtaining medical evidence and evidence from independent witnesses to support her contention that she has a severe allergic reaction that is a serious injury that affects her ability to socialise and function due to the effects of medication prescribed and taken by her.
  6. [43]
    It was not open to the learned Member to find that ‘serious harm is being caused’ and the only way to ‘cease the effects is to remove the tree’.
  7. [44]
    In the referral (Exhibit 3) Dr Hira refers to the ‘allergic reaction’ as being ‘possibly due’ to flowering of Indian siris/Albizia lebbeck. Dr Hira refers to the ‘closest pollen test’. The results of the tests attached to the referral identify ‘positive’ results meaning allergies to other pollens not just the ‘Acacia Mimosa’ that is the ‘closet pollen test’ to the subject tree.
  8. [45]
    Dr Hira identifies other allergies in the referral namely contact dermatitis with plastics. There is insufficient evidence based on Dr Hira’s referral alone to be satisfied that the pollen from the subject tree ‘has caused, is causing, or is likely within the next 12 months to cause’ Ms Harloe’s ‘urtcaria’.
  9. [46]
    The learned Member did not consider all of the evidence given at the hearing to be satisfied there is a nexus between Ms Harloe’s condition and the tree the subject of the dispute. This is important because even if the learned Member correctly found based on the evidence Ms Harloe had a serious injury or severe allergic reaction because of the tree, s 66 requires the Tribunal to make an order it considers appropriate to prevent serious injury.
  10. [47]
    Based on the evidence before the learned Member, he could not be satisfied that if the tree was removed this would prevent Ms Harloe’s serious injury or severe allergic reaction.
  11. [48]
    It is common ground that the tree growing in the Leonardis’ backyard is an Albizia Lebbek or Indian Siris or Raintree and has been established for approximately 10 years. One of the many issues Mr Watson and Ms Harloe have with the tree is that it drops seed pods. The transcript shows Ms Harloe in giving her oral evidence said the seed pods have many seeds inside and ‘they end up in all your garden beds and the plants grow up because you don’t always catch them’.[37] Ms Harloe said there are raintrees growing under their back verandah and ‘[w]e’re digging out raintrees all the time’.[38]
  12. [49]
    Based on Ms Harloe’s own evidence there are raintrees that she said is causing her serious injury or severe allergic reaction growing under their back verandah and in the garden beds. The learned member could not be satisfied based on all of the evidence there is a nexus between Ms Harloe’s condition and the tree. The evidence shows there are other possible causes of Ms Harloe’s condition including other raintrees that are growing in the garden and under Ms Harloe’s back verandah, plastic that Dr Hira identifies as being a ‘contact dermatitis’ and other pollens identified in the ‘skin prick test results’ attached to Dr Hira’s report.
  13. [50]
    The learned member only made findings for the purposes of s 66 of the Act about Ms Harloe’s condition and that ‘the only way to cease the effects is to remove the tree’.
  14. [51]
    Mr Watson and Ms Harloe raised other issues at the hearing before the learned Member about the leaves, seed pods and flowers. In particular, they raise issues about the leaves, seed pods and flowers causing damage to their roof guttering and interfering with the use and enjoyment of their land because of there is leaf litter, seed pods and flowers.
  15. [52]
    There is insufficient evidence before the learned Member to be satisfied for the purposes of s 66 it is appropriate to otherwise make an order in relation to the tree to prevent serious damage or a ‘substantial, ongoing and unreasonable interference with the use and enjoyment’ of Mr Watson and Ms Harloe’s land.
  16. [53]
    The report relied upon Mr Watson and Ms Harloe (Exhibit 2) refers to roof leaks in valley caused by ‘blockage, due to build-up of leaves ad pulp from tree’. The report suggest cleaning gutters that would be part of normal house maintenance. The report also refers to guttering being ‘rusted through in few places’. There is no reference in the report to the rusting as being ‘serious’ or ‘severe’ to suggest that the rusting is attributable to anything other than general house maintenance that would reasonably be expected of any home owner.
  17. [54]
    There is insufficient evidence based on the report (Exhibit 2) and the oral evidence given by Ms Harloe at the hearing before the learned Member that there is a nexus between the leaf litter from the subject tree and the rusting guttering. It is reasonable to expect that leaf litter could possibly be the result of several trees not just one tree particularly in a suburban area such as Hyde Parke where there are many trees present in the surrounding area.
  18. [55]
    The transcript shows Ms Harloe in giving her oral evidence accepted that the suburb of Hyde Park has ‘a lot of trees’ stating ‘that’s part of the charm of the suburb’.[39]
  19. [56]
    For the purposes of s 74 and considering ‘any steps’ taken by the tree keeper (the Leonardis), the transcript shows Ms Harloe did not dispute that the Leonardis’ maintain the tree. Mr Leonardi while cross-examining Ms Harloe said that they regularly maintain the tree (every year) and have an arborist ‘come around every year and advise us’ stating that they (the Leonardis) have children so they want to make sure it is safe.[40] Mr Leonardi said that the arborist recommended trimming the tree just before it flowers to limit the amount of flowers that drop.
  20. [57]
    The transcript shows that Ms Harloe did not dispute that the Leonardis maintain the tree. Ms Harloe did not accept however that trimming the tree before flowering would decrease the amount of the flowers. Ms Harloe said that the tree will ‘spurt more flowers’.[41] There is no independent evidence to support Ms Harloe’s evidence about the proposed maintenance of the tree by the Loenardis that trimming the tree before it flowers will result in the tree having more flowers.
  21. [58]
    It was previously determined by the Tribunal that leaf litter, seeds and flowers will not ordinarily provide a basis for ordering removal of, or intervention with an urban tree. In Thomsen v White[42] The Tribunal considered a decision from the Land and Environment Court of New South Wales that said some degree of house maintenance is expected in an urban environment. The Land and Environment Court said:

"For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis."[43]

  1. [59]
    Mr Watson and Ms Harloe had an opportunity to present evidence about their property and land that they say is affected by the tree. This includes expert evidence to support their contentions that the tree has caused serious damage to their property and an interference with the use and enjoyment of their land. Consistent with the decision in Thomsen v White it is reasonable to expect that Mr Watson and Ms Harloe who live in an urban area undertake some house maintenance including cleaning their gutters and their back yard of any leaf litter, seed pods and flowers.

Fresh evidence

  1. [60]
    There are established principles to be considered in determining whether leave to adduce further evidence should be granted. In Ellis & Anor v Queensland Building Services Authority36 the Appeal Tribunal identified the circumstances in which new evidence will be permitted:

"It could not have been obtained with reasonable diligence at the time of trial; had the evidence been given, it would have had an important influence on the result (although it need not be decisive); and the evidence is apparently credible, although not necessarily incontrovertible."[44]

  1. [61]
    Mr Watson and Ms Harloe made an application at the oral hearing to rely on fresh or new evidence that they say was not before the learned Member at first instance. The material includes photographs of the tree and Mr Watson and Ms Harloe’s property, a photocopy of Ms Harloe’s prescription medication, a quotation for the cost of removal of the tree and a newspaper article. There is also a further report from Dr Hira confirming he is a registered General Practitioner with special interest in allergic disorders, some references in support of Mr Watson and Ms Harloe’s application and a document prepared by a wall and roof tiling tradesman about a delay in commencing work due to a large amount of flowers.
  2. [62]
    Some of the photographs were before the learned member and tendered at the hearing (Exhibit 1). Ms Harloe also relies on photographs she says were taken in November 2014 of her skin in support of the application. Ms Harloe accepts that these photographs were available when the application proceeded to a hearing before the learned Member in Townsville on 4 June 2015.
  3. [63]
    The Leonardis also want to rely on fresh evidence about the benefits of the tree in relation to contributing ‘to the passive cooling’ of the Leonardis’ property because of the shade and the atheistic nature of the tree. There are also statements in support of the Leonardis’ application for leave to appeal or appeal, quotations for the removal of the tree and medical evidence in response to Dr Hira’s referral relied upon by Ms Harloe.
  4. [64]
    Both parties have failed to demonstrate why they could not have obtained the new evidence prior to the hearing at first instance. Both parties had an opportunity to present their evidence including giving oral evidence. The transcript shows the learned Member advised Mr Watson and Ms Harloe at the commencement of the hearing to present their case. The relevant extract of the transcript is as follows:

"All right. Well, if you want to step over to the witness box. Take whatever documents and information you’ve got and I’ll give to an opportunity to present your case and ask – I’ll ask questions, and, no doubt, the respondent will ask some questions as well.

Please understand that I’m – I don’t have the knowledge of the parties in relation to the issues so you’ll need to tell me your story for me to understand the situation, and I’ll ask questions where I’ve got issues.

Okay. Anything else that anyone wants to say to me?..."[45]

  1. [65]
    Both parties have failed to demonstrate that that new evidence would have an ‘important influence on the result’ being the findings made by the learned Member had the fresh material been available at the hearing. The issues about whether Ms Harloe has a serious injury (severe allergic reaction) and whether there is a nexus between the injury and the tree were live issues at the hearing. The medical evidence and oral evidence to be relied upon were before the learned member. The Appeal tribunal has also considered the evidence and found that there was insufficient evidence for the learned Member to be satisfied about Ms Harloe’s condition and the nexus between Ms Harloe condition and the tree. The issues about the leaf litter, seed pods and flowers were live issues at the hearing and the Appeal Tribunal has considered the issues and identified for the purposes of the Act whether it is appropriate to make an order about the tree.
  2. [66]
    The Appeal Tribunal has considered the contentions made by Mr Watson and Ms Harloe at the oral hearing of the appeal. We are not satisfied that if leave is granted to rely on the fresh evidence the material would have an important influence on the outcome of this matter.
  3. [67]
    The applications for leave to rely on fresh evidence by the Leonardis and Mr Watson and Ms Harloe are refused.

Conclusion

  1. [68]
    There is an error in the learned Member’s findings about Ms Harloe’s allergic reaction that was found to be a ‘serious injury’. There is also an error in the learned Member’s finding that ‘serious harm’ is being caused and the only way to ‘cease the effects is to remove the tree’ because the evidence before the learned member was not sufficient to establish a nexus between Ms Harloe’s condition and the tree.
  2. [69]
    The Appeal Tribunal is satisfied that leave should be granted in this case because there is an error in the learned Member’s findings and it is therefore necessary to correct a ‘substantial injustice’ to the Leaonardis caused by that error.[46]
  3. [70]
    Because there is an error that involves findings of mixed fact and law the Appeal Tribunal has the power under s 147 of the QCAT to set aside the decision and substitute its own decision. Mr Watson and Ms Harloe were given an opportunity at the oral hearing of the appeal to refer the Appeal Tribunal to relevant extracts of the transcript and make submissions about the appeal. The Appeal Tribunal has carefully considered those submissions and all of the evidence that was before the learned Member by way of rehearing the application for a tree dispute.
  4. [71]
    The Appeal Tribunal has made findings about the evidence including the oral evidence given by Mr Watson and Ms Harloe. The Appeal Tribunal has identified the relevant sections of the Act and the issues and evidence in determining whether it is appropriate to make an order about the tree.
  5. [72]
    Because there is insufficient evidence including the evidence tendered at the hearing (Exhibits 1, 2 and 3) and the oral evidence given by Mr Watson and Ms Harloe about the ‘serious injury’ or severe allergic reaction; and the nexus between Ms Harloe’s condition and the tree, it is not appropriate in this case to make an order about the tree. Mr Watson and Ms Harloe do not dispute that the Leonardis maintain the tree including consulting an arborist every year. Mr Watson and Ms Harloe accept that the tree was well established in 2005 and the suburb of Hyde Park has many established trees. The Appeal Tribunal cannot be satisfied that the tree is the sole cause of Ms Harloe’s condition and that the tree has caused serious damage to Mr Watson and Ms Harloe’s property or is likely within the next 12 months to cause serious damage or interfere with their use and enjoyment of their land.
  6. [73]
    The appropriate order in this case is to dismiss the application for a tree dispute filed by Mr Watson and Ms Harloe. We make orders accordingly.

Footnotes

[1]  Application for a tree dispute filed on 28 November 2013.

[2] Watson & Harloe v Leonardi [2015] QCAT 238.

[3]  Order made on 6 August 2015.

[4]  The Tribunal determined on 3 December 2015 the application to rely on fresh evidence would be determined with the application for leave to appeal or appeal.

[5]  Application for leave to appeal or appeal filed on 23 July 2015.

[6] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 142(3)(b).

[7] Pickering v McArthur [2005] QCA 294 at [3].

[8]  QCAT Act s 147.

[9]  Response to the application to rely on fresh evidence at the oral hearing filed on 27 November 2015.

[10] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (the Act), s 66.

[11]  The Act, Schedule, s 4.

[12]  The Act, s 74.

[13]  Ibid.

[14]  [1992] 2 VR 129.

[15] Humphries & Anor v Poljak [1992] 2 VR 129 at 140.

[16] Watson & Harloe v Leonardi [2015] QCAT 238, [10].

[17] Watson & Harloe v Leonardi [2015] QCAT 238, [11].

[18]  Ibid.

[19]  Ibid, [37].

[20]  Ibid, [ 39].

[21]  Transcript, P1-4.

[22]  Ibid, P1-5 L 1-5.

[23]  Ibid, L30-34.

[24]  Transcript, L45-47.

[25]  Ibid, L45-47, P1-6 L1-2.

[26]  Ibid, P1-6, L40-45.

[27]  Ibid, P1-6 L5.

[28]  Ibid P1-14.

[29]  Ibid.

[30]  Ibid, L29.

[31]  Ibid, L46.

[32]  Ibid, P1-15 L1-13.

[33]  Ibid, L18.

[34]  Ibid, P1-15 L15-27.

[35]  Transcript, P1-15 L4.

[36]  Ibid P1-15 L5 and L44, P1-6 L33.

[37]  Transcript P1-4 L14-21.

[38]  Ibid, P1-17 L15-25.

[39]  Transcript, P1-17 L30-33.

[40]  Ibid, P1-18 L5-20.

[41]  Ibid, P1-18 L15-17.

[42]  [2012] QCAT 381.

[43] Barker v Kyriakides [2007] NSWLEC 292 at [20]. See Thomsen v White at [11].

[44] Ellis & Anor v Queensland Building Services Authority [2010] QCATA 93 at [7], see Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, at 408. 

[45]  Transcript, P1-2, L34-37, P1-3 L1-5, P1-26 L34.

[46] Pickering v McArthur [2005] QCA 294 at [3].

Close

Editorial Notes

  • Published Case Name:

    Leonardi v Watson & Harloe

  • Shortened Case Name:

    Leonardi v Watson & Harloe

  • MNC:

    [2015] QCATA 192

  • Court:

    QCATA

  • Judge(s):

    Senior Member O'Callaghan, Member Browne

  • Date:

    22 Dec 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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