Gardner & Anor v Andrews [2026] QCATA 67

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 61, s 146

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Barker v Kyriades [2007] NSWLEC 292

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

Colonial Bank of Australasia v Willan (1874) LR 5 PC 417

Davison v Vickery's Motors Ltd (in liq) [1925] HCA 47; (1925) 37 CLR 1

Grey v Manitoba and North Western Railway Co of Canada [1897] AC 254

Hempel v Richardson & Wrench Hervey Bay [2018] QCATA 170

JM v QFG and KG [1998] QCA 228

L J Hooker Stafford v Roberts [2020] QCATA 94

Maxi Cool Pty Ltd V North (1989) 9 MVR 61

Milwain v Laurie Evans Real Estate and Anor [2012] QCATA 072

Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611

Mond v Lipshut [1999] VSC 103

O'Brien and Others V Komesaroff [1982] HCA 33; (1982) 150 CLR 310

Suttor v Gundowa Pty Ltd [1950] HCA 35; (1950) 81 CLR 418

Thomsen v White [2012] QCAT 381

Thomsen v White [2013] QCATA 37

Wallace v Keg [2012] QCAT 466

[1] The Gardners have long-enjoyed the amenity of two Chinese Elm trees (the trees) situated on their land, but overhanging, through the dividing fence and by their canopies, land owned by Ms Andrews. The trees also impact land owned by Mr Minchin, who is the respondent in related proceedings concerning the trees.[1]

[2] Mr Minchin commenced his application for a tree dispute on 3 February 2021 and Ms Andrews' application followed on 7 July 2023. As both applications sought orders relating to the same trees, they were heard together on 29 and 30 April 2024.

[3] An application in a dividing fence dispute was also filed by Ms Andrews and, by directions made 10 January 2024 was to be heard and determined with the tree disputes on 29 and 30 April 2024. The decision with respect to the dividing fence remains reserved, which is sensible, given that it is impacted by the outcome of this appeal.

[4] By reserved decisions made 9 December 2024 on Ms Andrews' application and 13 January 2025 on Mr Minchin's application, the Tribunal below ordered that the trees[2] be removed by 10 March 2025, their stumps ground and removed to prevent regrowth and that the Gardners reimburse Ms Andrews and Mr Minchin, respectively, their filing fees paid in the sum of $379.50.

[5] The Gardners appeal both decisions,[3] arguing that:

(a) Ground 1: The decision to remove the trees went against expert arborist evidence that supported pruning the trees, rather than their removal.

(b) Ground 2: The evidence of litter from the trees (by falling leaves and a 'black soot'-like mould that ants cause to drop from the tree) was insufficient to support a finding of substantial, ongoing, and unreasonable interference sufficient to warrant removal of the trees, and considerations that involved the impact of the trees on the dividing fence that also factored into the finding of interference ought not to have been considered in the tree disputes, but, rather, in a related dividing fence dispute between the parties.[4]

[6] The orders made for tree and stump removal have been stayed by order made 9 April 2025 pending the outcome of this appeal.

[7] An error of law may occur where a decision maker:

(a) has made a finding of fact without probative evidence to support it or drawn an inference which was not reasonably open on the primary facts, [5] or

(b) makes a decision which is manifestly unreasonable by failing to give adequate weight to a relevant factor of great importance.[6]

...a factual conclusion cannot be infected by legal error unless it is supported by no evidence whatever or unless it is clear, beyond serious argument, that it is wrong. That this court merely disagrees with a factual view of a tribunal does not show that a decision based on it is legally erroneous.[7]

[9] Therefore, on appeal, that the Appeal Tribunal merely disagrees with a factual view of the Tribunal below will not support a finding that the decision was made in error.[8]

[10] This appeal is determined on the basis that appeal grounds 1 and 2 rely on errors of law only. In that event, section 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) permits the Appeal Tribunal to:

(a) confirm or amend the decision; or

(b) set aside the decision and substitute its own decision; or

(c) set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration:

(i) with or without the hearing of additional evidence as directed by the appeal tribunal; and

(ii) with the other directions the appeal tribunal considers appropriate; or

(d) make any other order it considers appropriate.

Application for leave to rely on fresh evidence in the appeal

[11] Ms Andrews tendered fresh evidence in the appeal proceeding, namely, twenty-four photographs taken evidencing leaf litter, fall of the 'black soot' and staining alleged to have been caused by the trees between January and March 2025.

[12] A formal application for miscellaneous matters seeking leave to rely on this evidence was not filed. For the sake of expedience in the appeal, the Appeal Tribunal waives the requirement for Ms Andrews to file a formal application for leave to rely on fresh evidence pursuant to section 61 of the QCAT Act.

[13] For fresh evidence to be admitted on the appeal, the Appeal Tribunal need be satisfied that:[9]

(a) the evidence could not have been obtained with reasonable diligence for use at the trial,

(b) the evidence must be such that if given, it would probably have an important influence on the result of the case, although it need not be decisive, and

(c) the evidence must be such as is presumably to be believed, or in other words it must be apparently credible, though it need not be incontrovertible.

[14] Leave is refused for Ms Andrews to rely on the fresh evidence, because the current-state photographs have no bearing on the decision to be made on the grounds of appeal.

[15] Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the NDA) applies to trees situated on land recorded in the freehold land register[10] (subject to some exclusions) and makes tree keepers responsible for their trees.[11]

[16] Section 46 of the NDA provides:

Land is affected by a tree at a particular time if -

(a) any of the following applies -

(i) branches from the tree overhand the land; [or]

(ii) the tree has caused, is causing, or is likely within the next 12 months to cause -

...

(C) substantial, ongoing and unreasonable interference with the neighbour's use and enjoyment of the land; and

(i) adjoins the land on which the tree is situated...

[17] After having proper regard to the matters listed in Chapter 3, Part 5, Division 4 (ss 70-75) of the NDA, among other things, section 66 of the NDA empowers the tribunal to order the removal of a tree, relevantly, to remedy, restrain or prevent "substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour's land".

[18] In so deciding, section 73 of the NDA requires the Tribunal to consider the following matters:

(a) the location of the tree in relation to the boundary of the land on which the tree is situated and any premises, fence or other structure affected by the location of the tree;

(b) whether carrying out work on the tree would require any consent or other authorisation under another Act and, if so, whether the consent or authorisation has been obtained;

(c) whether the tree has any historical, cultural, social or scientific value;

(d) any contribution the tree makes to the local ecosystem and to biodiversity;

(e) any contribution the tree makes to the natural landscape and the scenic value of the land or locality;

(f) any contribution the tree makes to public amenity;

(g) any contribution the tree makes to the amenity of the land on which it is situated, including its contribution relating to privacy, landscaping, garden design or protection from sun, wind, noise, odour or smoke;

(h) any impact the tree has on soil stability, the water table or other natural features of the land or locality;

(i) any risks associated with the tree in the event of a cyclone or other extreme weather event;

(j) 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;

(k) the type of tree, including whether the species of tree is a pest or weed (however described) or falls under a similar category under an Act or a local law.

[19] In assessing interference, the Tribunal may (but is not compelled to) have regard to:[12]

(a) anything other than the tree that has contributed to the interference;

(b) steps taken by the parties to rectify or prevent or to reduce the interference;

(c) the size of the neighbours' land; and

(d) whether the tree existed before the neighbours purchased the land.

[20] Pursuant to section 72 of the NDA, an order for tree removal is an outcome of last resort:

A living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved.[13]

[21] At first instance, the interference relied upon by Ms Andrews was excessive shedding of leaves and branches into her property by the canopies, sap from the trees causing black sooty mould to accumulate on, and damage, furniture in her yard and that extensive and invasive roots prevented her from installing a garden bed and retaining wall on her property, and the trunk of the trees prevented her from constructing a dividing fence on the common boundary.

[22] The Gardners opposed the removal of the trees, denying that they produce excessive leaf litter or that they damage Ms Andrews' pool equipment and furniture, and preferred orders for pruning. They argued that a new fence and retaining wall can be constructed by making accommodations for the tree by constructing the fence of chain wire or by scalloping a timber fence around the parts of the tree that intersect with the common boundary. Importantly, the Gardners professed to deriving significant enjoyment from physical and visual amenity it provides and noted that the trees support the local ecosystem and wildlife.

[23] At paragraph [10] of the decision, the learned Member summarised a Tree Assessment Report of Steven Richards dated 30 October 2023, wherein Mr Richards observed that:

(a) The subject trees have grown together in unison. Their root systems and upper canopies have developed in conjunction with each other. For the purposes of his report, he intends to consider the trees as a single tree unit with two main leaders.

(b) The stem of Tree No. 2 leans slightly to the north and intersects with the dividing fence approximately 200ml above ground level.

(c) The subject tree is a declared Category 3 Restricted Matter (Biosecurity Act 2014 (Qld)). The restriction is limited to sale and distribution and is not a restricted category.

(d) The subject tree is deciduous, which means it loses it leaves in winter.

(e) The subject tree is estimated to be 50-60 years of age.

(f) When he inspected the tree, the branches of its northern canopy had been completely pruned back to the trunk effectively removing all overhanging limbs to an approximate height of 10m above ground level. The pruning did not conform to Australian pruning standards because more than 20% of the canopy was removed for only one objective.

(g) Dividing fences can be constructed around trees without damaging them or compromising the property boundaries. The report contained example photographs.

(h) Mrs Andrews removed significant structural and transport roots when the landscaped the rear of their property. The structural integrity of the tree is not a primary concern but the decline in its health is of grave importance.

[24] At paragraph [12] the Member noted Mr Richards' opinion that the health of Tree No. 2 must be closely monitored and if decline persists for more than a two-year period a decision should be made for tree removal, which would necessitate the removal of Tree No. 1 due to their association.

[25] Two reports were obtained from Mr Naylor on 12 and 26 April 2024 and were considered in paragraphs [15] and [16] of the decision, respectively. Relevantly, the Member noted Mr Naylor's evidence that:

(a) The subject tree predates the purchase of the adjacent properties and has landscape amenity value.

(b) The Gardners are more than 'urban observers of the trees' because they have administered a level of tree maintenance works over a period of time.

(c) The Chinese Elm tree is an environmental woody weed species and declared Category 3 Restricted Matter (Biosecurity Act 2014 (Qld)) in Queensland.

(d) The tree has reached maturity and has commenced arresting its growing potential.

(e) He designed and implemented a plant health care program for the tree and installed a Cobra tree bracing system for tree for the reasons outlined in the Richards report.

(f) Ms Andrews' removal of woody anchorage tree roots in December 2022 'poses many complexities with regards to long term tree retention' because it has "exacerbated the subject tree's risk potential via wood degradation, reduced tree vitality in addition to the possible onset of insect pests and fungal pathogens if not correctly managed...".

(g) The "canopy trajectory of the subject tree is somewhat elevated, providing no residential yard restriction or foreseen impediments and therefore is not classified as a nuisance with consideration of the adjoining neighbour's reasonable enjoyment of his or her land".

(h) Ms Andrews' interference with the tree has 'potentially compromised the subject tree and useful life expectancy as a functioning landscape amenity tree' and would 'take years to remediate'.

[26] At paragraph [17] of the decision the Member considers the evidence given by Mr Richards and Mr Naylor by 'hot tub' format in the hearing as follows:

(a) Mr Richards was shown exhibit 2, which is a series of photographs of the tree's trunk with a stringline running alongside it (the Gardners contend that the stringline marks the true location of the common boundary). In the photographs, a portion of the tree's trunk appears to be situated directly below the stringline. Mr Richards was asked what effect removing that portion of the tree would have on its health. In response, he opined that taking such a step would "create structural instability" and be a "death sentence for the tree".

(b) Mr Naylor was also given exhibit 2. He said that removing the portion of the tree under the stringline to soil level would have a significant effect on the tree's health, but it "might survive". However, if its roots were removed below soil level the "tree's structural integrity would be impacted and it may die".

(c) Mr Richards is not worried the tree is "immediately going to fall" as it has responded well to interventions. Mr Naylor also stated that the tree had responded well to his healthcare regime.

(d) Mr Naylor said that no pruning to the upper canopy of the tree should take place for at least two to three years because its canopy had already been reduced by 20 percent.

(e) Mr Richards and Mr Naylor both agreed that the top section of any proposed fence would need to be cut out because the tree's trunk leans into Mrs Andrews property.

[27] Orders were made for the removal of the tree, as opposed to any lesser order (such as for pruning) for the detailed reasons given in paragraphs [25] to [36] of the decision.

(a) The Member preferred the cadastral survey conducted by Trilogy Survey Solutions over the 'stringline' method of determining these matters proposed by the Gardners as evidence that, according to the 'blue marker' noted on it:

(i) the existing fence is situated entirely on Ms Andrews' land,

(ii) the existing retaining wall is partially on her land, and

(iii) the base of the tree is predominantly located on the Gardners' land, but it crosses the common boundary into Mrs Andrews' land.

(b) The Member considered photographic evidence and Ms Andrews' oral evidence that the location of the tree on the common boundary precludes the erection of a new dividing fence without scalloping or building it on either side of the tree; such a fence would be "ugly and incongruent with neighbouring fences"; and found that "it is fundamental to a person's enjoyment of their land that they ought not be compelled to live with a large tree projecting through their fence".

(c) With respect to protruding roots, after viewing photographs provided by Ms Andrews,[14] the Member considered the damage that the roots have caused to the fence to be "obvious" and found that Ms Andrews was unable to plant gardens on her land or build a pleasing fence on the common boundary, which amounted to a substantial, ongoing, and unreasonable interference with her enjoyment of her land.

(d) The Member found that the only means by which that interference can be sufficiently ameliorated is for the Tribunal to order that the tree is removed because the construction of a fence and gardens, and the retention of the tree, are "simply incompatible objectives".

(e) Photographs of the black sooty mould on Ms Andrews' outdoor furniture taken after Ms Andrews pruned the trees in December 2022 satisfied the Member that it is the tree that is causing the mould, and that the mould substantially and unreasonably interferes with Ms Andrews' enjoyment of her land because it is unsightly and requires her to replace her furniture, which is financially burdensome and inconvenient, and to frequently remove the mould at her expense, several times per year.

[29] The Member addressed the evidence of both assessors specifically, noting that the experts agreed that pruning of the canopy was not recommended until two to three years had passed and considered it was "patently unreasonable" that Ms Andrews must wait so long for relief.

[30] Addressing section 72 of the NDA specifically, the Member was not satisfied that the issues relating to the trees could be satisfactorily resolved by pruning, noting that:

(a) The construction of a fence and gardens, and the retention of the tree, are incompatible objectives.

(b) The two-to-three-year delay before the tree can be pruned is unreasonable and, even if it could occur earlier, would not meaningfully ameliorate the deleterious impacts of the tree dropping leaves and producing sooty mould.

(c) An existing row of amenity trees on the Gardeners' land that are larger than the subject trees will provide shade and cooling to balance out any loss of amenity caused by the removing the tree.

(d) The Gardners had taken no steps to maintain the tree since pruning it in January 2016 despite knowing for years the adverse impact it was having on their neighbours and the Member had "little confidence they will adequately maintain the tree going forward if it is retained".

Appeal Ground 1: The decision went against the expert evidence that supported pruning of the trees, rather than their removal.

[31] Although neither expert recommended tree removal, a careful review of the hearing transcript and of the thorough reasons given for the learned Member's decision does not support a conclusion that the learned Member made findings without probative evidence to support them, nor that they drew inferences that were not reasonably open to them on the primary facts.[15]

[32] Importantly, the role of an expert witness is to 'assist and advise the tribunal on issues in dispute within the expert's area of expertise'.[16] In this case, the experts were arborists. But they are not decision-makers in the proceeding, nor advocates for either party and their opinions are simply that: opinions.

[33] The Gardners' submissions on appeal seem to suggest that the Tribunal's departure alone, from the views expressed by the experts establishes an error and this is simply not the case. Thomsen v White [2012] QCAT 381 is one example of a matter in which a tree removal order was made against arborists' evidence that supported pruning, and in respect of which leave to appeal was refused in Thomsen v White [2013] QCATA 37.

[34] There was sufficient evidence before the learned Member, well considered, for the Member to conclude that:

(a) The trees were causing interference because of the leaf litter (black sooty mould) but also by protruding roots and a trunk that prevented Ms Andrews from using and enjoying her property within its full boundaries.

(b) The interference was substantial because the impact of the leaf litter was frequent and financial, the trees could not be pruned within two to three years to reduce or prevent ongoing interference, and Ms Andrews was prevented from installing garden beds on her land and from constructing a sightly dividing fence.

(c) Removing the trees was the only way to address the substantial interference.

[35] It cannot be said in those circumstances that it is clear, beyond serious argument and having regard to the expert evidence, that the Member's decision is wrong.

Appeal Ground 2: The decision gave too much weight to evidence of leaf litter and consideration ought not to have been given to interference with the dividing fence.

[37] The Gardners made submissions in the hearing that the black sooty mould and other evidence of leaf litter was not substantial and therefore did not meet the requisite threshold for the Tribunal to make a tree order for interference.[17]

[38] They conceded, quite frankly and in my view correctly, that:[18]

[The tree] does drop leaves. We've all discussed the deciduous nature... all trees will drop leave and have an impact. There's no such thing as a tree that has no impact.

[39] As submitted by the Gardners, there is a long line of Tribunal authority that leaf litter alone is not a substantial ongoing and unreasonable interference with land.[19]

[40] The Gardners' submissions also cite Barker v Kyriades [2007] NSWLEC 292 (Barker) in which the NSW Land and Environment Court said at [20]:

It is now appropriate to state these in a more specific form as a principle which may be applied when considering urban trees and ordinary maintenance issues arising from them. We state the principle in the following terms:

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.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.

[41] In Barker, Mr Barker's concerns about the tree related to the falling of leaves and pieces of small deadwood into his gutters and into the area of open space at the rear of his property where the clothesline was located. The tree, a eucalyptus, was wholly located within the tree keeper's property and the canopy did not overhang any houses. There was no evidence that the tree had caused any damage, was causing any damage or that it was likely to cause any damage in the immediate future nor that it posed any risk of injury to persons. The issue of 'interference' did not arise.

[42] The Gardners also rely on another decision of the NSW Land and Environment Court in Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 at [168] to [173] in which the Court said at:

171. However, annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind is not "damage to property on the land" within s 7 of the Trees (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour's land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7.

[43] Again, it is important to note that this decision, and the cited paragraphs [168] to [173] appear under the heading 'Damage to property' and are not on point with respect to substantial interference.

[44] In any event, the decision did not turn on a finding of substantial interference by leaf litter alone, but on a finding of substantial interference by the leaf litter (black sooty mould that caused damage to furniture and required frequent cleaning) and by encroaching roots and a trunk that prevent Ms Andrews from using and enjoying her property within its full boundaries. It was open to the Member to make that finding on the evidence before them.

[45] It cannot be said therefore that the decision gave too much weight to the evidence of leaf litter, nor that the wrong test for substantial interference was applied given the authorities cited above are distinguished in several respects.

[46] Reiterating that the test on appeal is not whether the Appeal Tribunal merely disagrees with a factual finding by the Tribunal below,[20] there is no error in this ground of appeal.

[48] Prior to the hearing the Gardners filed written submissions about the dividing fence and proposed orders in relation to it.[21] As the matters were to be heard and determined together, but decided separately, this was appropriate.

(a) made submissions to the Member about the type of fence that might be constructed to adjust for the trees,[22] and

(b) cross-examined the experts on manner by which a fence might be constructed around the tree, taking them specifically to section 12(2)(a) of the NDA.[23]

[50] In closing submissions, the Gardners put forward their solution to have the fence on the boundary without removing the tree.[24]

[51] Difficulty being, the Gardners' objection on appeal to evidence about the dividing fence being considered in the decision to be made in the tree dispute was not raised at first instance and nothing in the conduct of their case even hinted that they had an objection to this.

[52] It has been said that the appeal process is not an opportunity for parties to have their case reheard.[25] Rather, the focus is on whether an error has been made in the Tribunal below limited to what was before the Tribunal below:

The conduct of the trial is governed by the questions [then] asked ... a party is, and ought to be bound by the course of the trial.[26]

[53] In other words, it is not open to an appellant to argue on appeal a point which had not been made an issue by that party at the trial.[27]

[54] Judge Fleur Kingham, then Deputy President of QCAT said in Milwain v Laurie Evans Real Estate and Anor [2012] QCATA 072 that:

...[the appellant] cannot on appeal seek to reargue his case, in this instance, on a basis not raised at hearing, in an attempt to secure a different result.

[55] This appeal ground ought to fail on that basis alone.

[56] However, in fairness to the Gardners, who were self-represented litigants navigating three disputes being heard and determined together, I will consider this appeal ground on its merits.

[57] The learned Member was tasked by section 66 of the NDA to make orders appropriate in relation to a tree affecting the neighbour's land to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour's land.

[58] Pursuant to section 46 of the NDA, land is affected by a tree, relevantly, if branches from the tree overhang the land and the land adjoins the land on which the tree is situated. That Ms Andrews' land was affected by the Gardners' tree within the meaning of section 46 was not disputed.

[59] The matters that must, and the matters that may, be considered by the Tribunal in making tree orders are set out in sections 72, 73 and 75 respectively. By the express words of section 70(2), those sections do not limit the matters the Tribunal may consider in making its decision.

[60] Although the Tribunal had power under section 35 of the NDA (read with section 16), to order the preparation of land for a fence, including the "trimming, lopping or removal of vegetation, along or on either side of the common boundary of adjoining lands" to allow for the construction of a fence, this needed to be read with the later provisions of the legislation that required tree orders, as previously mentioned, for the removal of a tree.

[61] It follows that, Ms Andrews' land being affected by the Chinese Elm trees situated on the Gardners' land, the learned Member was not limited to the matters to be considered in determining whether there was substantial interference by the tree with Ms Andrews' use and enjoyment of her land.

[62] The matters considered by the learned Member included, but were not limited to, the impact on Ms Andrews' use and enjoyment of her land in being unable to landscape and fence her property as she saw fit due to the encroaching roots and trunk of the trees; nothing in the NDA prevented this and it was open to the Member on the evidence before them to do so.

[64] There being no successful grounds of appeal, the decision of the Appeal Tribunal is to dismiss the appeal and to vacate the stay order made on 9 April 2025.

[65] As it is not possible for the decision to be complied with, as compliance dates specified in the decision have passed whilst the decision has been stayed pending the outcome of this appeal, it is appropriate that the Appeal Tribunal make further orders in accordance with section 146(1)(d) of the QCAT Act that have the effect of renewing the decision.

[2] The orders pertain to a singular tree, as the Elms have grown such that their root systems and upper canopies are inextricably intertwined and as such were addressed as a single tree for convenience.

[3] Applications for leave to appeal or appeal filed 7 January 2025 in these proceedings and on 13 February 2025 in APL054-25.

[4] MCQ Q759-23, currently stayed pending the outcome of these proceedings.

[5] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 356.

[6] Colonial Bank of Australasia v Willan (1874) LR 5 PC 417, 40-42.

[7] JM v QFG and KG [1998] QCA 228, 22-3.

[8] Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611, [131].

[9] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408.

[14] Applicant's written submissions, Appendix 4.

[15] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 356.

[16] Queensland Civil and Administrative Tribunal, Practice Direction No 4 of 2009: Expert Evidence, [4].

[17] For example, 30 April 2024 Transcript, page 2-166 at lines [38] to [48].

[18] 30 April 2024 Transcript, page 2-97 at lines [16] to [18].

[19] Thomsen v White [2012] QCAT 381 at [12]; Wallace v Keg [2012] QCAT 466 at [17].

[20] Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611, [131].

[21] Written submissions filed in response to directions made in NDR127-23 on 10 January 2024, [24].

[22] For example, 29 April 2024 Transcript, page 1-28 and 30 April 2024 Transcript pages 2-136 to 2-141.

[23] 29 April 2024 Transcript at page 1-8, line [44] onwards.

[24] For example, 30 April 2024 Transcript at pages 2-177 to 2-181.

[25] Hempel v Richardson & Wrench Hervey Bay [2018] QCATA 170, [14]; L J Hooker Stafford v Roberts [2020] QCATA 94.

[26] Grey v Manitoba and North Western Railway Co of Canada [1897] AC 254 at 267; Davison v Vickery's Motors Ltd (in liq) [1925] HCA 47; (1925) 37 CLR 1 at 35 per Starke J; Suttor v Gundowa Pty Ltd [1950] HCA 35; (1950) 81 CLR 418 at 438; Mond v Lipshut [1999] VSC 103.

[27] Maxi Cool Pty Ltd V North (1989) 9 MVR 61; O'Brien and Others V Komesaroff [1982] HCA 33; (1982) 150 CLR 310.