This case note has been taken from the recently published second-edition of a Guide to ACT Strata Law. A physical copy of the full text can be purchased here.
The applicants brought a claim in nuisance against their neighbours, the respondents, and alleged that a large gum tree growing on the respondents’ land created a substantial and unreasonable interference to the applicants’ enjoyment of their land. In particular, the applicants claimed there was an unreasonable risk that a large branch or branches of the tree would fall on their house and cause substantial damage to the house and, potentially, injure occupants in the house.
A question soon arose as to whether the dispute was “within ACAT’s jurisdiction.”
The particular questions posed were whether the Tribunal had jurisdiction to hear the applicant’s claim and, if so, whether it had power to order the respondents to remove the tree. Ultimately ACAT was satisfied it had jurisdiction to hear the claim and could grant the relief sought. Further, its jurisdiction to order removal of the tree was not limited by the cost of compliance.
ACAT began by noting the relevant provisions of the ACT Civil and Administrative Tribunal Act 2008 (“the ACAT Act”).
Section 17 of the ACAT Act states:
17 Civil Dispute Applications
A person may make a civil dispute application to the Tribunal.
A “civil dispute application” was defined in section 16 of the ACAT Act to mean one or more of the ten kinds of applications listed in that section. The applications include a “nuisance application.”
A “nuisance application” was defined in section 15 as follows:
Nuisance application means an application for relief of nuisance.
“Nuisance” should be understood as a reference to the tort of nuisance.
Section 18 of the ACAT Act stated:
18 $25 000 limit on civil dispute applications
- A civil dispute application cannot be made to the Tribunal for an amount greater than the Tribunal’s jurisdictional limit, unless section 20 (Abandoning excess to come within jurisdiction) or section 21 (jurisdiction by agreement – amounts over $25 000) allows the application to be made
- The Tribunal’s jurisdiction is limited to –
- Civil dispute applications claiming amounts of not more than $25 000; or
- In relation to debt declarations – applications for declarations for debts of not more than $25 000.
Note – for working out an amount to decide whether the Tribunal has jurisdiction – see s 19.
- This section does not apply to –
- An application for a common boundaries determination; or
- An application prescribed by regulation.
Section 19(1) of the ACAT Act deals with amounts that are to be disregarded when working out the amount claimed or the amount to be declared as a debt, to decide whether the Tribunal has jurisdiction in relation to a civil dispute application.
Section 22 provided that the Tribunal had, in relation to a civil dispute application, the same jurisdiction and powers as the Magistrates Court.
The Magistrates Court Act 1930 (“the Magistrates Court Act”) contained section 260 which deals with claims in nuisance. Section 260 stated:
260 Nuisance
- The Magistrates Court has the same jurisdiction as the Supeme Court to hear and decide a civil action for nuisance.
- In a civil action for nuisance, the Magistrates Court may grant the same relief as the Supreme Court may grant in a similar action in that court.
Referring to section 22(2) of the ACAT Act, no rule had been made prescribing any provision of the Magistrates Court Act that did not apply in relation to the Tribunal.
By operation of section 22 of the ACAT Act and section 260 of the Magistrates Court Act, the Tribunal “has the same jurisdiction as the Supreme Court to hear and decide a civil action for nuisance” and “may grant the same relief as the Supreme Court may grant.”
The question arising in this case was whether the Tribunal’s power under section 22 of the ACAT Act was limited by section 18 of the ACAT Act. The respondents submitted that because the cost of removing the tree exceeds the Tribunal’s $25,000 jurisdictional limit stated in section 18, the Tribunal could not hear and determine the applicants’ claim.
The Tribunal’s jurisdiction in nuisance was considered in a sequence of decisions arising from a dispute between neighbours regarding nine cypress pine trees growing on or near the boundary between the respective neighbours’ properties. These decisions were made by the Tribunal at first instance, on appeal by the Appeal Tribunal, on further appeal by the ACT Supreme Court and on further appeal by the ACT Court of Appeal. The issues arising were materially similar to the case.
Ultimately ACAT held that the Supreme Court had power to grant an injunction by way of relief in nuisance. Pursuant to section 260 of the Magistrates Court Act, so too did the Magistrates Court. Pursuant to section 22 of the ACAT Act, so too did the Tribunal.
ACAT acknowledged that relief in any action could be limited by statute, but section 18 does not preclude the Tribunal from making non-monetary orders in response to a civil dispute application. Such an interpretation would:
- Be inconsistent with the definitions of a contract application and a goods application.
- Defeat the principal form of relief in actions for nuisance; and
- Be inconsistent with the grant of power to the Tribunal under section 22 of the ACAT Act.
Section 22 of the ACAT Act and section 260 of the Magistrates Court Act combine to give the Tribunal the same jurisdiction and powers as the Supreme Court in relation to an action in nuisance.
Finally, ACAT considered the question whether a non-monetary order in response to a nuisance application was limited or governed by the cost of compliance with the order and was satisfied that it is not. The jurisdictional limit did not apply to a non-monetary order in response to a nuisance application.
This is general information and should not be considered to be legal advice. You should obtain legal advice specific to your individual situation.
Author: Christopher Kerin