Norbury v. Hogan

The applicant and respondent were neighbours. The applicant alleged that smoke coming from the respondent's balcony created a nuisance by interfering with his use and enjoyment of his property, in breach of s167 of the Body Corporate and Community Management Act. The applicant's complaint was upheld by an Adjudicator in a lower court, who ordered that the respondent take reasonable steps to ensure that her cigarette smoking did not cause nuisance to the applicant. The respondent appealed from that decision.

The Queensland Civil and Administrative Tribunal upheld the appeal, holding that the Adjudicator had misapplied the legal test. The relevant legal test was objective rather than subjective: the Adjudicator should not have had regard to the applicant's particular sensitivity to cigarette smoke, but rather whether the cigarette smoke would constitute a nuisance to a person of ordinary sensitivity.

Norbury v. Hogan [2010] QCATA 27 (13 May 2010)

  • Australia
  • May 13, 2010
  • Queensland Civil and Administrative Tribunal
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Parties

Plaintiff Cleis Norbury

Defendant John Hogan

Legislation Cited

Body Corporate and Community Management Act 1997 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"For the reasons already explored, the test under s 167 is objective and is to be measured against the needs and circumstances of a neighbour of ordinary sensitivity; it is not subjective, reflecting Mr Hogan’s particular circumstance of sensitivity. That was, also, the test correctly applied in the earlier decisions to which the learned adjudicator referred. The appeal should, then, be allowed and the order of the adjudicator made on 18 August 2009 set aside. The appeal was commenced under the Commercial and Consumer Tribunal Act 2003 (CCT Act), the legislation applying before the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). Under ss 256 and 271 of QCAT Act, this Tribunal has jurisdiction, but it can only make an order which could have been made under the former CCT Act."