Hardie v Gibson[2018] QCATA 74

APPEARANCES and REPRESENTATION (if any):

REASONS FOR DECISION

1. [1]
   This is a purported “appeal” from an order transferring a civil dispute to the magistrates court as the more appropriate forum. The tribunal’s discretion is said to have miscarried because it:

• is inconsistent with statutory objects in a dispute about property damage of less than $2,000 caused by a neighbouring tree;
• caused confusion for the applicant with court rules, formalities and technicalities;
• limits his access to justice;
• decreases efficiency;
• needlessly increases the costs (filing and professional) and time expended to resolve the dispute.

The context

2. [2]
   The parties are neighbours. Their land is divided by a paling fence.
3. [3]
   The applicant claims the $1,577.42 for the cost of repairing his carport which was damaged in late March 2017 during a cyclone (the tree damage) and $495 for reinstating the gravel driveway washed away by storm water runoff (the water damage).
4. [4]
   Both categories of damage were attributed in the claim to runoff from the respondent’s non-compliant storm water drainage system on the basis that “… the stormwater goes around (their) house and makes the backyard all soggy”.^[1]
5. [5]
   A solicitor’s letter sent to the respondent in July 2017 complained:

… your down pipes are not properly connected to storm water drains, or adequately directed to storm water saw a significant volume of water flowing from your improper (sic) connected downpipes straight into and through Mr Hardie’s property.  This caused damage to his yard and driveway.  The damage consists of washouts and existing driveway to be spread thought (sic) the yard.  

6. [6]
   In 2017 the applicant filed a $2,072.42 minor civil claim against his neighbour for tree and water damage to his property. In response, the respondent admits the tree and water damage but denies any legal duty to take precautions against cyclonic winds (81 kph) or extreme rainfall (261 mm over 2 days) and, even if he did, is not liable for “damages for disaster” because he is not in breach.
7. [7]
   The terms of the filed application and response determine the scope of the proceeding and provide the framework for hearing.
8. [8]
   At the tribunal hearing in October 2017 the applicant sought to establish negligence against the respondent via photographs and the insurance assessor’s report of a site inspection conducted on 13 April 2017.
9. [9]
   The water damage, according to the report was caused by “a combination of … severe wind gusts (81 kph), extensive rainfall and the pre-existing condition of loose gravel driveway”.
10. [10]
    The report also noted (at 3 of 8) the applicant’s admission that “damage to the driveway … (had) occurred prior to” but was aggravated by the storm.
11. [11]
    The tree damage was assessed to be due to “the strength of winds” and “volume of rain”.
12. [12]
    Acceptance of the applicant’s claim for tree damage was recommended but the water damage repairs were to be registered as “uninsurable” because the terms of the policy “does not respond”.
13. [13]
    The applicant now disavows the water damage claim altogether and relies, instead, on the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (Trees Act) as “the applicable legislation” for awarding $1,577.42 in compensation for the tree damage.

The leave requirement

14. [14]
    A party to a proceeding may appeal, as of right, against a “decision” of the tribunal in a proceeding (including an order) under s 142(1) QCAT Act on a question of law.
15. [15]
    However, an appeal may only be made with leave against a decision (a) in a proceeding for a minor civil dispute (b) that does not finally decide the subject matter of the proceeding or (c) on a question of fact or mixed law and fact.^[2]
16. [16]
    The leave requirement is a mechanism for controlling the workload of the appeal tribunal and promoting efficiency. Its functional purpose is to prevent court procedures from being used by the losing party to cause needless inconvenience and expense to the successful one by re-litigating lost issues.
17. [17]
    The QCAT Act does not prescribe any mandatory considerations for granting or refusing leave but the public cost of tribunal litigation and the requirements of the due administration of civil justice are highly influential.
18. [18]
    An error that ought to be corrected in the interest of justice between the parties and some utility in doing so is usually required. Put another way, sufficient doubt must be demonstrated about the correctness of the decision at first instance to warrant reconsideration. The risk of substantial injustice if the decision is wrong and the orders are allowed to stand must also be demonstrated.
19. [19]
    The only “decision” or “order” the tribunal made was to transfer to the proper forum a damages claim for negligence (or nuisance) mischaracterised as a money claim the tribunal was empowered to deal with.
20. [20]
    In Amanda Flynn Charity Limited & Anor v Dawson^[3]the appeal tribunal treated the tribunal’s decision not to transfer anti-discrimination proceedings to the Supreme Court as interlocutory and requiring the appeal tribunal’s leave to appeal.
21. [21]
    The Victorian Civil and Administrative Tribunal held that neither power to transfer proceedings under an equivalent provision^[4]  nor an order staying a proceeding for forum non conveniens were final decisions and, therefore, a grant of leave to appeal is required.^[5]
22. [22]
    Leave is required here because it relates to a matter of procedure decided in a minor civil dispute. Technically, appeals are incompetent if leave is required but not sought.^[6] Likewise, when the appeal is not against a decision (or order) of the tribunal to which s 142(3) applies or grounded on an identifiable legal, factual or mixed question.^[7] However, in the interests of justice the Form 39 is amended under ss 28(3)(d) and 64(1) QCAT Act to comply with the rules and will be decided accordingly.

The leave issues

23. [23]
    The application raises two questions of law. The first is whether the tribunal wrongly declined to exercise its Trees Act jurisdiction. This depends on whether the tribunal was seized of such a claim and correctly applied the law to the facts.  The second relates to the principles governing the transfer discretion.

QCAT’s Trees Act jurisdiction

24. [24]
    The tribunal has original jurisdiction under the Trees Act in relation to a tree affecting neighbouring land,^[8] for example, requiring the tree-keeper to pay “fair and equitable” compensation for “serious damage” to the property.^[9]
25. [25]
    Land is affected by a tree at a particular time if the tree has caused, is causing or is likely within the next 12 months to cause, serious damage to any property on adjoining land.^[10]
26. [26]
    As tree-keeper the respondent is responsible under the Trees Act for ensuring that the tree does not cause serious damage to property but failure to do so does not create a civil cause of action separate from the negligence or nuisance torts.^[11]
27. [27]
    The term “serious damage” is not defined but denotes significant or substantial not trivial.
28. [28]
    The damage in issue meets that description.
29. [29]
    As “the neighbour”, the applicant, for stated reasons,^[12] may apply as provided under the QCAT Act for any order under s 66 of the Trees Act^[13] to resolve “the dispute”^[14] on at least 21 days notice.
30. [30]
    However, for the applicant’s new Trees Act based claim to succeed the tribunal would have to be satisfied he would meet the demanding challenge of proving – by admissible and adequate evidence – that the tree in question was a “nuisance” tree that affected his land in the relevant sense and all reasonable efforts to reach an agreement and steps to resolve the issue had been informally taken.^[15]
31. [31]
    The filed application did not ask the tribunal to deal with a Trees Act dispute in the statement of reasons required by s 33(2)(b) QCAT Act and the rules.
32. [32]
    Neither party addressed these core issues in evidence or submissions. Nor was there any indication anywhere in their material that a tree order was being sought.
33. [33]
    The application is misconceived because (a) no party to a trees dispute even applied under the QCAT Act for the tribunal to deal with the dispute (b) the tribunal did not dismiss or make any of the orders listed in s 13(2) QCAT Act it considered “fair and equitable” to resolve a tree dispute and, therefore, (c) there is no “decision” within s 142 QCAT Act or under the Trees Act to apply for leave to appeal against.

The transfer discretion

34. [34]
    Although the applicant’s loss was quantified in specific dollar terms the claim as filed and litigated was neither a debt or liquidated demand but in the nature of damages. Its reasonableness – a question of fact – had to be assessed by the tribunal.
35. [35]
    Accordingly, as there was no Trees Act application before the tribunal the application did not meet statutory definition of a minor civil dispute under ss 11, 12(a) QCAT Act and was in jeopardy of summary dismissal, withdrawal, being struck out or, at the tribunal’s discretion, transferred.
36. [36]
    The tribunal opted to transfer the proceeding (which did not incorporate a tree dispute) to the magistrates court under s 52 QCAT Act “for determination as either a negligence or nuisance claim for unliquidated damages”.^[16]
37. [37]
    In these circumstances, no arguable jurisdictional or discretionary error nor any substantial injustice is demonstrated.
38. [38]
    Leave to appeal is refused.