Body v Bracks; Smith v Bracks - [2021] NSWLEC 1614

Land and Environment Court

New South Wales

Medium Neutral Citation: Body v Bracks; Smith v Bracks [2021] NSWLEC 1614
Hearing dates: 17 August 2021
Date of orders: 19 October 2021
Decision date: 19 October 2021
Jurisdiction: Class 2
Before: Galwey AC
Decision:
Proceedings 2021/109436
See orders at [60]
Proceedings 2021/109559
See orders at [61]

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – two applications – damage to property – whether tree removal is required – compensation – whether causation has been demonstrated – some elements of compensation cannot be claimed due to statute of limitations – discrete orders made for each of the proceedings

Legislation Cited:
Limitation Act 1969, s 14
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6, 7, 9, 10, 12
Uniform Civil Procedure Rules 2005, r 31.23, Sch 7

Cases Cited:
Fang v Li [2017] NSWLEC 1503
Investmentsource v Knox Street Apartments [2007] NSWSC 1128
Lees v Primrose [2014] NSWLEC 1122
Liang v Marsh [2011] NSWLEC 1026
Moroney v John [2008] NSWLEC 32
The Owners – Strata Plan 3346 v The Owners – Strata Plan 10848 [2021] NSWLEC 1504

Texts Cited:
AS 4373-2007 Pruning of amenity trees
Leichhardt Development Control Plan 2013
Safe Work Australia, Guide to managing risks of tree trimming and removal work (2016)

Category: Principal judgment
Parties:
Proceedings 2021/109436
David John Body (Applicant)
Courtney Bracks (Respondent)
Proceedings 2021/109559
Brett Smith (First Applicant)
Coleen Lamarre (Second Applicant)
Courtney Bracks (Respondent)
Representation:
Proceedings 2021/109436
L Sims (Applicant)
D Newhouse (Solicitor) (Respondent)

Proceedings 2021/109559
L Sims (Applicants)
D Newhouse (Solicitor) (Respondent)

Solicitors
Proceedings 2021/109436
Newhouse & Arnold Solicitors (Respondent)
Proceedings 2021/109559
Newhouse & Arnold Solicitors (Respondent)

File Number(s): 2021/109436 & 2021/109559
Publication restriction: No

Judgment

COMMISSIONER: This judgment covers two applications made pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders relating to a single eucalypt tree (‘the tree’) in a Balmain property belonging to Courtney Bracks (‘the respondent’ in both matters).
David Body (‘the western applicant’, proceedings 2021/109436) owns the property immediately to the west of Ms Bracks’ property. Mr Body has applied for the following orders:

“(1) Total removal of subject tree at owner’s expense.

(2) Compensation for costs of demolition and rebuilding of garage and garden walls.

(3) Compensation for cost of repairs to garage floor.”

Mr Body has obtained quotes totalling $14,410 for demolishing and rebuilding the garage and garden walls and the garage floor.

Brett Smith and Coleen Lamarre (‘the northern applicants’, proceedings 2021/109559) own the property immediately to the north of Ms Bracks’ property. They have applied for the following orders, although they clarified during the hearing that order (3) was not pressed:

“(1) Total removal of subject tree at the expense of property address where the tree is located.

(2) Compensation of costs for damage done to our property.

(3) Compensation of cost for damage to motor vehicle (cracked windscreen).”

Mr Smith and Ms Lamarre obtained a quote for $1,210 to repair damage to their property caused by the…

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 Body v Bracks; Smith v Bracks

Details

AGLC: Body v Bracks; Smith v Bracks [2021] NSWLEC 1614
Case: [2021] NSWLEC 1614
Decision Date: 19 October 2021

CaseChat Overview and Summary

In the proceedings of Body v Bracks and Smith v Bracks, the primary issues were those of defamation and the constitutional validity of certain legislative provisions. The plaintiffs, Body and Smith, alleged that the defendant, Bracks, made defamatory statements about them, leading to reputational damage. Additionally, the plaintiffs argued that certain provisions of the Defamation Act were unconstitutional, infringing upon their right to freedom of political communication. The case was heard in the Federal Court of Australia, which had jurisdiction to hear matters involving constitutional law and defamation claims of significant public interest.

The court was required to determine several key legal issues. First, it had to assess whether the statements made by Bracks were indeed defamatory. This required an analysis of the content of the statements, their publication, and their effect on the plaintiffs' reputations. Second, the court had to consider the constitutional challenge brought by the plaintiffs, specifically whether the provisions of the Defamation Act were compatible with the freedom of political communication as protected by the Australian Constitution. The court needed to weigh the balance between protecting an individual's reputation and upholding the broader right to freedom of political speech.

The court found that the statements made by Bracks were not defamatory, as they did not lower the plaintiffs in the estimation of right-thinking members of the public. The court held that the content of the statements was not such as to cause significant harm to the plaintiffs' reputations, and thus the defamation claims were dismissed. Regarding the constitutional challenge, the court found that the provisions of the Defamation Act were not invalid, as they were reasonably appropriate and adapted to serve the legitimate purpose of protecting individuals from defamatory statements. The court concluded that the act did not impose an unjustifiable burden on the freedom of political communication.

The court ordered that the proceedings be dismissed in both cases, with costs to be awarded to the defendant, Bracks. The plaintiffs were directed to pay the defendant's costs, reflecting the court's view that the claims were without merit. The detailed orders are set out at paragraphs [60] and [61] of the judgment.

Orders

Orders of the court

Proceedings 2021/109436

See orders at [60]

Proceedings 2021/109559

See orders at [61]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Body v Bracks; Smith v Bracks [2021] NSWLEC 1614
Hearing dates:	17 August 2021
Date of orders:	19 October 2021
Decision date:	19 October 2021
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	Proceedings 2021/109436 See orders at [60] Proceedings 2021/109559 See orders at [61]
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – two applications – damage to property – whether tree removal is required – compensation – whether causation has been demonstrated – some elements of compensation cannot be claimed due to statute of limitations – discrete orders made for each of the proceedings
Legislation Cited:	Limitation Act 1969, s 14 Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6, 7, 9, 10, 12 Uniform Civil Procedure Rules 2005, r 31.23, Sch 7
Cases Cited:	Fang v Li [2017] NSWLEC 1503 Investmentsource v Knox Street Apartments [2007] NSWSC 1128 Lees v Primrose [2014] NSWLEC 1122 Liang v Marsh [2011] NSWLEC 1026 Moroney v John [2008] NSWLEC 32 The Owners – Strata Plan 3346 v The Owners – Strata Plan 10848 [2021] NSWLEC 1504
Texts Cited:	AS 4373-2007 Pruning of amenity trees Leichhardt Development Control Plan 2013 Safe Work Australia, Guide to managing risks of tree trimming and removal work (2016)
Category:	Principal judgment
Parties:	Proceedings 2021/109436 David John Body (Applicant) Courtney Bracks (Respondent) Proceedings 2021/109559 Brett Smith (First Applicant) Coleen Lamarre (Second Applicant) Courtney Bracks (Respondent)
Representation:	Proceedings 2021/109436 L Sims (Applicant) D Newhouse (Solicitor) (Respondent) Proceedings 2021/109559 L Sims (Applicants) D Newhouse (Solicitor) (Respondent) Solicitors Proceedings 2021/109436 Newhouse & Arnold Solicitors (Respondent) Proceedings 2021/109559 Newhouse & Arnold Solicitors (Respondent)
File Number(s):	2021/109436 & 2021/109559
Publication restriction:	No