Blatchford v Clubley (No 2)

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…