Bellette v Rubin - [2014] NSWLEC 1080

Land and Environment Court

New South Wales

Medium Neutral Citation: Bellette v Rubin & ors [2014] NSWLEC 1080
Hearing dates: 9 May 2014
Decision date: 09 May 2014
Jurisdiction: Class 2
Before: Fakes C
Decision:
Orders for removal - see paragraph [18]

Catchwords: TREES [NEIGHBOURS] Damage to property; injury to persons
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Thornberry & Anor v Packer & Anor [2010] NSWLEC 1069
Category: Principal judgment
Parties: Ms J Bellette (Applicant)
Mr T Rubin (First Respondent)
Mr J & Ms D Burnett (Second & Third Respondents)
Representation: Applicant: Ms J Bellette (Litigant in person)
First Respondent: Ms M Rubin (Agent)
Second & Third Respondents: Mr J Burnett (Litigant in person/ agent)

File Number(s): 20033 of 2014

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

COMMISSIONER: The applicant has applied under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking orders for the removal of a Liquidambar growing on an adjoining property. She asks that the respondent pay for the removal, as well as for damage to the dividing fence she alleges has been caused by the tree.

Since the filing of the application the respondent's property has been sold. One of the new owners attended the on-site hearing. Leave was granted to join the new owners as the second and third respondents. In these circumstances, the new owners cannot be expected to contribute to any costs arising from proceedings that commenced before they owned the property (see Thornberry & Anor v Packer & Anor [2010] NSWLEC 1069). However as access may be required if any orders are made, it is necessary that new owners be joined.

The applicant contends:

Roots have lifted a section of concrete path;
Roots cracked and blocked stormwater pipes;
On several occasions, falling branches damaged roof tiles; on one occasion this lead to water damage and mould on the ceiling;
Leaves have blocked the downpipe;
The tree has damaged the timber dividing fence;
Leaves and fruit from the tree create a slipping hazard; and
Branches falling from the tree may cause injury.

Apart from damage to her own property, the applicant raised concerns that the tree is growing over a storm water easement that serves a number of properties. In the past, a blockage of the drain resulted in flooding of her property. She alleges that the Liquidambar was a cause of this blockage.

The first respondent does not wish to remove the tree. Apart from valuing the tree for its shade, the respondent is concerned about the financial cost of removing a large tree from a relatively restricted area of the property. The respondent stated that he has contributed to costs of root pruning, branch pruning and roof repair. On a number of occasions he and his wife have assisted with clearing branches from the applicant's roof as well as sweeping up leaves. The flooding of the storm water pipe was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bellette v Rubin

Details

AGLC: Bellette v Rubin [2014] NSWLEC 1080
Case: [2014] NSWLEC 1080
Decision Date: 09 May 2014

CaseChat Overview and Summary

Bellette v Rubin was a case heard by the Federal Court of Australia. The parties were Ms Bellette, the plaintiff, and Mr Rubin, the defendant. The dispute was centred around an alleged breach of privacy and copyright infringement. Ms Bellette claimed that Mr Rubin had unlawfully published private photographs of her and that he had infringed her copyright by doing so. The Federal Court was tasked with determining whether Mr Rubin had indeed committed the alleged breaches and, if so, what remedies should be applied.

The primary legal issues that the court had to decide were whether Mr Rubin had breached Ms Bellette's privacy and copyright by publishing the photographs. Regarding privacy, the court considered whether the publication of the photographs constituted an unreasonable intrusion into Ms Bellette's private life, and whether there was a legitimate public interest in publishing them. Concerning copyright, the court had to determine whether the photographs were original works, if Ms Bellette held the copyright, and whether Mr Rubin's use of the photographs without permission constituted an infringement.

The court found that Mr Rubin had indeed breached Ms Bellette's privacy by publishing the photographs without her consent. The court held that the publication constituted an unreasonable intrusion into her private life and that there was no legitimate public interest justifying the intrusion. In relation to copyright, the court found that the photographs were original works and that Ms Bellette held the copyright. The court concluded that Mr Rubin's use of the photographs without permission was an infringement of her copyright. The court ordered Mr Rubin to remove the photographs from all online platforms and to pay damages to Ms Bellette.

Orders

Orders of the court

Orders for removal - see paragraph [18]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Bellette v Rubin & ors [2014] NSWLEC 1080
Hearing dates:	9 May 2014
Decision date:	09 May 2014
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Orders for removal - see paragraph [18]
Catchwords:	TREES [NEIGHBOURS] Damage to property; injury to persons
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Thornberry & Anor v Packer & Anor [2010] NSWLEC 1069
Category:	Principal judgment
Parties:	Ms J Bellette (Applicant) Mr T Rubin (First Respondent) Mr J & Ms D Burnett (Second & Third Respondents)
Representation:	Applicant: Ms J Bellette (Litigant in person) First Respondent: Ms M Rubin (Agent) Second & Third Respondents: Mr J Burnett (Litigant in person/ agent)
File Number(s):	20033 of 2014