Jeffs v Nilsson[2022] QCATA 146

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The Tribunal made consent orders finalising a tree dispute involving Ms Jeffs and Mr and Mrs Nilsson. Ms Jeffs now seeks to appeal the consent orders.
2. [2]
   There are two issues for determination. Does the QCAT Appeal Tribunal have the power to set aside consent orders made by the Tribunal at first instance? Was there error by the Tribunal in making the consent orders.

The consent orders

3. [3]
   Ms Jeffs commenced a proceeding for a tree dispute. Following a compulsory conference, the Tribunal member presiding at the conference made orders by consent requiring Mr and Mrs Nilsson to undertake work relating to a number of trees. An order was also made dismissing the application.

Can a consent order be set aside by the QCAT Appeal Tribunal?

4. [4]
   The following passage from McVey v St Vincents Hospital^[1] is relevant for present purposes. The Victorian Court of Appeal said the following when dealing with consent orders made in County Court proceedings:

Save for limited purposes, it may be doubted that a judge of the County Court, an inferior statutory court, would have power to set aside a perfected judgment of that court. The only remedy would be by way of appeal to the Court of Appeal, and that is the course which the applicant has attempted to pursue. An appellate court has power ‘to strike off the fetters’ which might restrain an inferior court from setting aside the judgement entered pursuant to a consent agreement.

5. [5]
   QCAT is an inferior court of record,^[2] having no inherent powers. The Tribunal has certain implied powers, however these are limited to those powers ancillary to an order of QCAT exercising the Tribunal’s original jurisdiction to resolve the dispute or, to make orders reasonably required for the effective exercise of its jurisdiction to make orders to resolve the dispute.^[3]
6. [6]
   The Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) does not confer upon the Tribunal a power to set aside consent orders. Once the Tribunal has made a final decision in a proceeding, the only exceptions to the operation of the doctrine of functus officio are found in Part 7, divisions 5, 6 and 7 of the QCAT Act. None of those provisions has application in the present case.
7. [7]
   In summary, neither the Tribunal nor the Appeal Tribunal has the power to review and set aside orders made by consent. The only avenue available to a party wishing to challenge the validity of consent orders is the appeals process set out in Part 8 of the QCAT Act.

The appeal by Ms Jeffs

8. [8]
   Ms Jeffs makes reference in her appeal submissions to what was said in the course of the compulsory conference. Evidence of anything said or done during a compulsory conference is not admissible at any stage in the proceeding.^[4] There are a number of exceptions to this prohibition including evidence that all parties to the proceeding have agreed may be admitted into evidence; evidence of an order made or direction given at a compulsory conference or the reasons for the order or direction; evidence of anything said or done that is relevant to a proceeding for an offence relating to the giving of false or misleading information, for contempt, or relating to an order made in the absence of a party.^[5] None of these exceptions has application in the present case.
9. [9]
   The prohibition on the admissibility of evidence of things said and done at a compulsory conference extends to appeal proceedings arising out of the original proceeding.^[6] Accordingly, I exclude from consideration those parts of Ms Jeffs’ submissions referring to events that transpired during the compulsory conference.
10. [10]
    Ms Jeffs says that she would not have consented to the orders had she known that the engagement by the Tribunal of an assessor was the next step in the proceeding. Some months before the compulsory conference, the Tribunal made directions for the conference to proceed. The Tribunal also made directions that if the matter did not resolve at the conference, the parties were required to each contribute to the Tribunal’s costs of engaging a tree assessor. It was therefore clear to the parties that engaging an assessor would only be a step undertaken by the Tribunal if the matter was not resolved at the compulsory conference. The submission by Ms Jeffs is inconsistent with the clear directions made by the Tribunal. It may be that Ms Jeffs overlooked or misunderstood the directions. Be that as it may, there was no error by the Tribunal in making the consent orders.
11. [11]
    Ms Jeffs’ remaining submissions are in essence a restatement of her complaints about the trees on Mr and Mrs Nilsson’s land. Those submissions neither assert error by the learned member nor support a finding of error in the making of the consent orders.

Conclusion

12. [12]
    The Appeal Tribunal observed in Australian CCTV & Alarm Specialists Pty Ltd v Willowbank Surgery^[7]:

It is an abuse of process to attempt to relitigate a case already finalised, particularly one resolved by an order to which the parties have freely, albeit reluctantly consented.

13. [13]
    Those comments are of direct relevance here. Ms Jeffs, unhappy that the matter is now at an end and presumably regretting that she agreed to the consent orders, seeks to reagitate the issues the subject of the dispute about Mr and Mrs Nilsson’s trees. Ms Jeffs cannot relitigate the tree dispute with her neighbours.
14. [14]
    Ms Jeffs has failed to demonstrate error by the Tribunal in making the consent orders.
15. [15]
    Insofar as leave to appeal is required, leave is refused. The appeal is dismissed.