Blatchford v Clubley (No 2)

[2015] NSWLEC 1040

Land and Environment Court

New South Wales

Medium Neutral Citation:	Blatchford & Anor v Clubley & Anor (No 2) [2015] NSWLEC 1040
Hearing dates:	29 January 2015
Date of orders:	29 January 2015
Decision date:	29 January 2015
Jurisdiction:	Class 2
Before:	Moore SC and Galwey AC
Decision:	Application dismissed
Catchwords:	TREE DISPUTE: res judicata; no changed circumstances
Legislation Cited:	Land and Environment Court Act 1979 Land and Environment Court Rules 2007 Uniform Civil Procedure Rules 2005
Cases Cited:	Autodesk Inc and Anor v Dyason and Others (No 2) (1992) CLR 176 Blatchford & Anor v Clubley & Anor [2013] NSWLEC 1228 Carl Zeiss Stiftung and Others v Rayner and Others [1967] 1 AC 853 Hinde v Anderson and Anor [2009] NSWLEC 1148 Kuligowski v Metrobus [2004] 220 CLR 363
Texts Cited:	Res Judicata by Spencer Bower and Handley (4th edition)
Category:	Principal judgment
Parties:	J Blatchford and L Bianchi (Applicants) G Clubley and S Ierace (Respondents)
Representation:	First Applicant in person First Respondent in person
File Number(s):	20640 of 2014

EXTEMPORE Judgment

1. SENIOR COMMISSIONER: On 15 November 2013, a bench of the Court (constituted as is presently the case) gave a decision in a tree dispute between the parties who are the parties to this present application. The decision in that matter was Blatchford & Anor v Clubley & Anor [2013] NSWLEC 1228. The decision was given on 15 November 2013. On 11 December 2013, according to evidence given in these proceedings in the written material provided by the applicants, the applicant Mr Blatchford, received an email from the Assistant Registrar of the Court which stated:

"There are limited circumstances in which a matter may be reopened and this is provided for under the Uniform Civil Procedure Rules, in particular Part 36. In the alternative, lodging a fresh application is also available to you."

2. That information is unexceptional and, as the orders in the earlier proceedings have not been entered, in accordance with r 7.6 of the Land and Environment Court Rules 2007, the finality of that earlier matter has, therefore, not been effected and a number of the provisions in pt 36 of the Uniform Civil Procedure Rules 2005 remain alive - subject to considerations as to whether or not the various discretionary issues about fresh evidence and the like, as discussed by the High Court in Autodesk Inc and Anor v Dyason and Others (No 2) (1992) CLR 176 at p 300.

3. In these proceedings, the applicants in the earlier proceedings seek to revisit the conclusions that were dealt with in the earlier proceedings. There is no doubt that, as dealt with by a differently constituted bench of the Court in Hinde v Anderson and Anor [2009] NSWLEC 1148 (a decision given on 18 May 2009), it is possible for there to be a fresh application made concerning the same tree or trees and between the same parties if there are changed circumstances that might arise.

4. In the 2009 case, citation was made of an earlier edition of Res Judicata by Spencer Bower and Handley. A more recent edition of this text confirms, at p 255, that there can be no effective res judicata in a changing situation. The change must be a change that occurs after the date of the previous decision.

5. In Carl Zeiss Stiftung and Others v Rayner and Others [1967] 1 AC 853, the House of Lords dealt with the question of whether an issue estoppel, a form of res judicata, can arise and, quoting from the speech of Lord Guest at p 935, his Lordship said that:

"The requirements are, one, that the same question has been decided; two, that the judicial decision which is said to create the estoppel was final; and, three, that the parties to that decision are the same parties as the parties to the proceedings in which the estoppel is raised."

6. In his material in evidence in these proceedings, Mr Clubley raises the fact that the matter was determined to finality in the earlier proceedings.

7. The comments made by Lord Guest in Carl Zeiss Stiftung have been adopted with approval by a Full Bench of the High Court of Australia, amongst other places, in the case of Kuligowski v Metrobus [2004] 220 CLR 363 with the specific adoption of his Lordship's remarks from Carl Zeiss Stiftung being at p 373.

8. We have asked Mr Blatchford in these circumstances what, if anything, is the damage that has occurred since the 2013 decision in November of that year. He is unable to point to any evidence of any damage that would constitute a change that would enliven our jurisdiction to deal with this matter further.

9. We have earlier indicated to him that, of the proposed orders that are set out in Exhibit A at p 3, that:

• subject to the procedural matters with which I am now dealing, we would have had the jurisdiction to deal with proposed orders 1, 2 and 3;

• proposed order 4 (that is, a further order to direct the respondents to carry out the terms of order 2 of the November 2013 decision) was not a matter that, for enforcement purposes, fell within the scope of our jurisdiction; and

• proposed orders 5 and 6, dealing with matters of costs and the like, were also outside the jurisdiction of Commissioners of the Court.

10. However, as a consequence of there being no change in the factual circumstances, we are satisfied that the decision of November 2013 acts as a complete answer to any further proceedings concerning the same issues and the application is, therefore, dismissed.

11. ACTING COMMISSIONER: Acting Commissioner Galwey concurs with the findings and decision as described by Senior Commissioner Moore.

Tim Moore

Senior Commissioner

David Galwey

Acting Commissioner

Decision last updated: 12 March 2015