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- Unreported Judgment
Houston Property Services v Day QCATA 136
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Houston Property Services v Day and Ors  QCATA 136
Houston property services
for ian henry campbell
and patricia denise campbell
Jane louise day
benjamin thomas day
Ashgrove tree service
6 September 2019
Member M. Katter
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where joinder of an additional or substituted respondent – where respondents removed to be joined as applicants – denial of procedural fairness – where leave granted, appeal allowed, and matter remitted for rehearing afresh
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) Chapter 3.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), sections 13(2), 62 and 142(3).
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- A minor civil dispute - minor debt was filed on 27 March 2018 at Brisbane (“the application”). The named applicant Houston Property Services for Ian Henry Campbell and Patricia Denise Campbell (“Houston Property Services”) sought payment of money from the named respondents Jane Louise Day and Benjamin Thomas Day.
- A hearing was commenced before Justices of the Peace on 18 October 2018. Interlocutory orders were made on 18 October 2018 as follows:
- Jane Louise Day and Benjamin Thomas Day are removed as Respondents and added as Applicants.
- Ashgrove Tree Services, 7/35 Queens Road, Everton Hills Qld 4053 are added as Respondents.
- Ashgrove Tree Services is to be served by the Applicants within a reasonable time from today’s date, after which the Tribunal will arrange for a hearing.
- The matter is to be adjourned to a dated to be fixed to enable 1-3 to occur.
- When the matter is listed for hearing, it should be put before a differently constituted Tribunal.
- An application for leave to appeal or appeal was filed by Houston Property Services on 14 November 2018 (“the appeal”). The appeal sought is against interlocutory orders made on 18 October 2018. The appeal seeks an order “To reinstate the original application”. The grounds of appeal state that “We believe that the Application was not given due consideration, as we were not given the opportunity to question the witness, Graham (last name unknown)…”. It is further stated in the grounds of appeal that “… we do not consider that Ashgrove Tree service is at fault”.
- On 1 February 2019 the Tribunal made directions in relation to the appeal calling for submissions from the parties in relation to the appeal.
- Submissions were received from Houston Property Services on 14 March 2019.
- Submissions were received from a Graham Fea (not a party to the proceedings) on 12 April 2019.
Leave to Appeal
- Leave is required to appeal a decision of the Tribunal in a minor civil dispute. Leave is also required to appeal a decision that is not a final decision in a proceeding. The original application filed on 27 March 2018 was filed as a minor civil dispute. Further, order 5 made on 18 October 2019 directs that “When the matter is listed for hearing, it should be put before a differently constituted Tribunal”. Therefore, no final orders have been made. Houston Property Services require leave to appeal.
- Whether leave to appeal should be granted requires consideration of the grounds raised in the appeal. Part C of the appeal makes some reference to various potential grounds of appeal. For ease of reference the grounds raised will be described as follows:
- (a)Ground 1: Whether application has had due consideration
- (b)Ground 2: Whether applicant was given the opportunity to call a witness
- (c)Ground 3: Whether Ashgrove Tree Services should have been joined as a respondent
- (d)Ground 4: Whether Jane Louise Day and Benjamin Thomas Day should be re-instated as respondents.
Ground 1: Due consideration of application
- Whether or not the application has had ‘due consideration’ is a question that cannot be answered prior to the application being heard and determined. The application has not yet been heard and determined. There has been interlocutory orders made in the application. Whether ‘due consideration’ was given to application as a whole is separate question from whether the interlocutory orders made on 18 October 2019 should have been made. Houston Property Services were provided an opportunity to made submissions by the directions of the Tribunal on 1 February 2019. The submissions filed by Houston Property Services on 14 March 2019 do not assist in clarifying the assertion that the application was not given due consideration because a witness was not called.
- Ground 1 is not a proper basis to grant leave to appeal.
Ground 2: Opportunity to call a witness
- Leave to call a witness or witnesses is a matter for the consideration of the Tribunal that hears the application. The hearing has not yet occurred. Presently there is no order denying any party to the application the opportunity to seek leave to call witnesses.
- Ground 2 is not a proper basis to grant leave to appeal.
Ground 3: Joinder of party
- Ashgrove Tree Services have been joined as a Respondent by order of the Tribunal on 18 October 2018. Section 42 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) provides that:
(1) The tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that:
(a) the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or
(b) the person’s interests may be affected by the proceeding; or
(c) for another reason, it is desirable that the person be joined as a party to the proceeding.
(2) The tribunal may make an order under subsection (1) on the application of a person or on its own initiative.
- In the grounds of appeal it is states that “…we do not consider that Ashgrove Tree Service is at fault”. Whether or not ‘fault’ or liability in relation to a minor debt rests with a party to a proceeding is a matter for consideration by the Tribunal that hears the application. The application has not yet been heard. The Tribunal has exercised the discretion granted to it by section 42 of the QCAT Act in joining Ashgrove Tree Service by order of 18 October 2018. Whether or not an order should or should not be made Against Ashgrove Tree Service is a matter that can only be considered at the conclusion of a hearing. If, for purposes of discussion, it is found that no order should be made against or in relation to Ashgrove Tree Services (in accordance with the assertion of the Houston Property Services), then it might be said that it was unnecessary or prejudicial to join Ashgrove Tree Services as a Respondent. Any inconvenience or delay caused as result of joining Ashgrove Tree Service is counterbalanced by the relevance of Ashgrove Tree Service to the factual basis for the dispute and the potential that the dispute cannot be properly adjudicated without joining Ashgrove Tree Services.
- Ground 3 is not a proper basis to grant leave to appeal.
Ground 4: Re-instating Jane Louise Day and Benjamin Thomas Day as Respondents.
- Houston Property Services assert that the original respondents to the application should be re-instated as respondents. The Respondents to the application as filed, Jane Louise Day and Benjamin Thomas Day, remain as parties to the dispute, albeit as Applicants rather than Respondents pursuant to order 1 of 18 October 2018. It remains open for the Tribunal that hears the application to make directions and to do whatever is necessary for the speedy and fair conduct of the proceeding, including, making a final order that binds or provides benefit to any party irrespective of whether the party is an applicant or a respondent. Broad discretion is given to a decision maker in a minor civil dispute to make orders that would permit a monetary amount to be paid by ‘a party’ to ‘a stated person’.
- Section 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) sets out objects of the Act that include having matters dealt with in a way that is accessible, fair, just, economical, informal and quick. To grant leave to appeal in the present circumstances (noting that the appeal is against interlocutory orders in a minor civil dispute where any potential prejudice resulting from the interchanging of parties could be alleviated by a careful Tribunal at hearing) seems contrary to objects of having the matter dealt with in a way that is economical, informal and quick. However, changing the original respondents to applicants denies the original applicant Houston Property Service the opportunity to proceed in the usual way against a party they assert to have a claim against. Whether or not there is a valid claim against Jane Louise Day and Benjamin Thomas Day is a matter for consideration by the Tribunal that hears the application. Therefore, the original respondents should remain as respondents for the same reason that Ashgrove Tree Service should remain as a respondent. That is, that the presence or absence of a valid claim should be determined after the hearing of the application is complete.
- As a matter of procedural fairness to ensure that an applicant is provided proper opportunity to have a claim heard, leave should be granted to appeal on the basis of Ground 4 and the application should be heard with Jane Louise Day and Benjamin Thomas Day as respondents.
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld)
- Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) sets out a statutory framework for the resolution of tree disputes. Chapter 3 also sets out the Tribunal’s jurisdiction in relation to ‘tree’ disputes. Whether or not the dispute the subject of the application is a ‘tree’ dispute or whether it is indeed a minor civil dispute – minor debt is a question for considered by the Tribunal that hears the dispute with the benefit of further evidence and submissions from the parties. It is not appropriate for an Appeal Tribunal, of its own volition, to attempt to make directions or seek further evidence to resolve a jurisdictional issue not raised in an appeal that specifically relates to interlocutory orders.
- Grant leave to appeal.
- Orders 1, 4 and 5 made on 18 October 2018 are set aside.
- Orders 2 and 3 made on 18 October 2018 are confirmed.
- The application is to be listed for hearing afresh at the first available hearing date before a Member or Adjudicator. To avoid any doubt, the First Respondent is Jane Louise Day. The Second Respondent is Benjamin Thomas Day. The Third Respondent is Ashgrove Tree Services.
- Published Case Name:
Houston Property Services for Ian Henry Campbell and Patricia Denise Campbell v Jane Louise Day, Benjamin Thomas Day and Ashgrove Tree Service
- Shortened Case Name:
Houston Property Services v Day
 QCATA 136
06 Sep 2019