Ekermawi v Bennett (No 2)
[2010] NSWLEC 40
•19 March 2010
Land and Environment Court
of New South Wales
CITATION: Ekermawi v Bennett (No 2) [2010] NSWLEC 40 PARTIES: APPELLANT
RESPONDENTS
Sam Ekermawi
Keith Bennett and Leanne BennettFILE NUMBER(S): 20142 of 2010; 20637 of 2009 CORAM: Preston CJ KEY ISSUES: APPEAL :- s 56A(1) appeal against commissioner's decision - application to have a tree on a neighbour's land removed - whether commissioner erred in law in interpreting and applying s 10(2) Trees (Disputes Between Neighbours) Act 1996 - whether commissioner made a finding of fact where there was no evidence to support the finding - whether commissioner failed to give adequate opportunity to be heard - whether commissioner failed to address relevant evidence - no error of law established - appeal dismissed with costs LEGISLATION CITED: Land and Environment Court Act 1979 ss 34B, 56A(1)
Trees (Disputes Between Neighbours) Act 2006 ss 7, 10(2)CASES CITED: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Gas Light Company v The Valuer General (1940) 40 SR (NSW) 126
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Barker v Kyriakides [2007] NSWLEC 292
Beale v GIO of NSW (1997) 48 NSWLR 430
Black v Johnson (No 2) [2007] NSWLEC 513
Bruce v Cole (1998) 45 NSWLR 163
Ekermawi v Bennett [2009] NSWLEC 1398
Grant v Kiama Municipal Council [2006] NSWLEC 70
Horn v Latter [2007] NSWLEC 744
Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409
McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8
Mifsud v Campbell (1991) 21 NSWLR 725
O’Brien v Butler [2008] NSWLEC 1345
Port Stephens Council v Sansom [2007] NSWCA 299; (2007) 156 LGERA 125
Randwick Municipal Councill v Crawley (1986) 60 LGRA 277
Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323; (2006) 149 LGERA 360
Seaforth Services Pty Ltd v Byron Shire Council (No 2) (1991) 72 LGRA 44
Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177
Sky Design and Concepts Pty Ltd v Pittwater Council (No 5) [2009] NSWLEC 174
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298
Tesoriero v Leichhardt Municipal Council (1983) 51 LGRA 46
Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321
Yang v Scerri [2007] NSWLEC 592
Zapata v Strata Plan 42882 [2008] NSWLEC 1218DATES OF HEARING: 9 March 2010
DATE OF JUDGMENT:
19 March 2010LEGAL REPRESENTATIVES: APPELLANT
Sam Ekermawi (in person)RESPONDENTS
SOLICITORS
Mr P Mitchell (solicitor)
Johnsons Solicitors
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESPRESTON CJ
19 MARCH 2010
20142 OF 2010
20637 OF 2009JUDGMENTEKERMAWI V BENNETT (NO 2)
1 HIS HONOUR: Mr Ekermawi appeals under s 56A(1) of the Land and Environment Court Act 1979 (“the Court Act”) against the order and decision of a commissioner of the Land and Environment Court made on 26 November 2009. The commissioner dismissed Mr Ekermawi’s application under the Trees (Disputes Between Neighbours) Act 2006 (“the Trees Act”) to have a tree growing on his neighbours’ land removed and for compensation for damage caused to Mr Ekermawi’s property.
2 I have determined that Mr Ekermawi’s appeal should be dismissed as Mr Ekermawi has not established that the commissioner’s decision is erroneous on a question of law. Mr Ekermawi should pay the costs of the s 56A(1) appeal of his neighbours, Mr and Mrs Bennett, the respondents to the appeal. Each party should pay their own costs of the original proceedings before the commissioner.
The application under the Trees Act
3 Mr Ekermawi lives at 120 Nuwarra Road, Moorebank. His neighbours at 122 Nuwarra Road are Mr and Mrs Bennett. Mr Ekermawi applied under s 7 of the Trees Act for orders to remove a tree situated on the Bennetts’ land and for compensation for damage to his property and car that he alleged was caused by the tree. The Bennetts contested the application.
4 The application was heard and determined on 26 November 2009 on-site at 120 and 122 Nuwarra Road, Moorebank by a commissioner of the Court, Commissioner Fakes, who has special knowledge, experience and qualifications in arboriculture.
5 At the conclusion of the on-site hearing the commissioner delivered an ex tempore judgment. The judgment has subsequently been transcribed and published: Ekermawi v Bennett [2009] NSWLEC 1398.
6 The hearing was conducted as an on-site hearing (see s 34B of the Court Act). The evidence before the commissioner at the hearing included:
(a) The originating process being the tree dispute application, the tree dispute supplementary form compensation, the tree dispute supplementary form damage to property and the tree dispute supplementary form risk of injury to people, all completed by Mr Ekermawi (for convenience of reference these became Exhibit A on the s 56A(1) appeal);
(b) Mr Ekermawi’s bundle of documents submitted in response to the Court’s directions on 19 October 2009, including of relevance to the s 56A(1) appeal:
- a set of photographs including photographs of fallen branches as a result of the storm on 31 January 2008 and leaf litter in Mr Ekermawi’s gutters and drains;
- Mr Ekermawi’s letters to and the responses from insurers concerning damage to Mr Ekermawi’s house and car alleged by Mr Ekermawi to be caused by the tree.
- an affidavit of Mr El Haddad who was the neighbour at the time of the storm on 31 January 2008 but subsequently sold the property to the Bennetts in March 2008; and
- a letter from the SES dated 28 October 2009 advising that the SES had attended a request for assistance call to 122 Nuwarrra Road, Moorebank on 1 February 2008 and removed a large branch caught 12 m in the tree and also cut a smaller branch from the tree (which bundle became Exhibit B);
(d) an expert report of Mr M A Clark, an arborist, being an arboriculture assessment of the tree, tendered by the Bennetts (which became Exhibit 1).
(c) a bundle of documents produced by Liverpool City Council in response to a subpoena issued at the request of Mr Ekermawi which included various approvals in 2006, 2007 and 2009 from Liverpool City Council under the Environmental Planning and Assessment Act 1979 to remove the tree concerned at 122 Nuwarra Road, Moorebank (which became Exhibit D); and
7 In addition to this documentary evidence, oral evidence was given on-site by Mr Ekermawi. The commissioner also inspected the tree with the parties and the representatives also the two properties.
8 At the on-site hearing, Mr Ekermawi withdrew his application for compensation for damage he alleged had been caused to his house and car by the tree: para 12 of the judgment. Mr Ekermawi maintained his application for the tree to be removed because of past, present or future damage to his property and likely injury to persons: paras 2, 7, 9 and 13 of the judgment.
9 The commissioner noted that the Court cannot make an order under the Trees Act for the removal of the tree unless it is satisfied of the matters in s 10(2) of the Trees Act: para 14 of the judgment. The commissioner determined, on the evidence before the Court, that she was not satisfied of the matters in s 10(2): para 16 of the judgment. Accordingly, the commissioner dismissed the application: para 18 of the judgment.
The s 56A(1) appeal: grounds of appeal
10 An appeal under s 56A(1) of the Court Act is limited to questions of law. In his summons commencing the s 56A(1) appeal, as required by Pt 50 r 50.4(2) of the Uniform Civil Procedure Rules 2005, Mr Ekermawi stated the grounds on which he contended that the commissioner’s decision was erroneous on questions of law. Mr Ekermawi specified five grounds:
- “1. Applying the wrong statutory provision and precedents to the fact of the case.
2. Making a finding of fact where there is no evidence to support that finding.
3. Not giving the Applicant an adequate opportunity to respond to any relevant information which is in his favour.
4. Disregarding a statutory provision and a precedent.
5. Ignoring a prima facie evidence.”
11 Mr Ekermawi appeared for himself at the hearing of the s 56A(1) appeal. He explained the questions of law which he intended to capture by each of these grounds of appeal. As best I understand them, the grounds of appeal are as follows.
12 By ground 1, Mr Ekermawi intended to identify that the commissioner had misinterpreted and misapplied s 10(2)(a) and (b) of the Trees Act, including misapplying the decision of the Court in Yang v Scerri [2007] NSWLEC 592. Mr Ekermawi also stated that the commissioner had erred in applying the decision of the Court in Barker v Kyriakides [2007] NSWLEC 292.
13 By ground 2, Mr Ekermawi intended to focus on the commissioner’s findings of fact that none of the tests in s 10(2) of the Trees Act had been satisfied. Mr Ekermawi stated that there was evidence on which the commissioner could and should have been satisfied that the tests in s 10(2) were met and that the commissioner erred in not so finding.
14 By ground 3, Mr Ekermawi intended to address two matters: first, that the commissioner had declined the invitation of Mr Ekermawi to enter his house to inspect internal damage, including to his ceiling, which he asserted was caused indirectly by the tree and, secondly, that the commissioner had ignored the decision of the Court in Black v Johnson (No 2) [2007] NSWLEC 513.
15 Ground 4, on Mr Ekermawi’s explanation, was a corollary of grounds 1 and 3. Mr Ekermawi asserted that the commissioner disregarded and did not apply what he said was the proper interpretation of s 10(2)(a) and (b) of the Trees Act and also did not apply prior decisions of the Court where the Court had found that the tests in s 10(2)(a) or (b) of the Trees Act had been satisfied in the circumstances of those cases, including Black v Johnson (No 2);Horn v Latter [2007] NSWLEC 744; Zapata v Strata Plan 42882 [2008] NSWLEC 1218; and O’Brien v Butler [2008] NSWLEC 1345.
16 By ground 5, Mr Ekermawi intended to state that the commissioner had ignored photographs of fallen branches from the tree caused by the storm on 31 January 2008, the affidavit of a former neighbour, Mr El Haddad, and the letter from the SES referring to work done by the SES to the tree on the day after the storm on 1 February 2008.
17 I will deal with each of these grounds of appeal.
Ground 1
18 Mr Ekermawi submitted that the commissioner had misinterpreted and misapplied s 10(2) of the Trees Act. This was said to be evidenced by para 14 of the commissioner’s judgment where the commissioner stated:
- “Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or is a risk of injury to persons. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination.”
19 As I understand Mr Ekermawi’s submission, he stated that commissioner erred by conflating the two tests in s 10(2)(a) and (b) by using the temporal requirement “in the near future” which qualifies “likely” in s 10(2)(a) to also qualify “likely” in s 10(2)(b) of the Trees Act. Mr Ekermawi submitted that s 10(2) of the Trees Act, on a proper construction, does not permit such use. In support of this submission, Mr Ekermawi referred to the prior decision of a commissioner in O’Brien v Butler where the commissioner stated in para 10 that:
- “For injury, the test in s 10(2)(b) of the Act is not restricted to the near future, it only need be likely …”.
20 Mr Ekermawi submitted that the commissioner wrongly applied the decision in Yang v Scerri, which suggested that, as a rule of thumb, “the near future” is a period of 12 months from the date of the determination, to s 10(2)(b) of the Trees Act but the decision is only applicable to s 10(2)(a).
21 Mr Ekermawi’s submissions on this ground proceed on a misconstruction of the commissioner’s judgment. The commissioner clearly understood that there were two limbs or “tests” to s 10(2), one concerning damage to property and the other concerning injury to any person. The first sentence in para 14 of the commissioner’s judgment paraphrases these two limbs. The commissioner only uses the temporal qualification of “in the near future” when referring to the first limb concerning damage to property, not to the second limb concerning injury to persons. This can be readily seen by using the commissioner’s actual words in the first sentence of para 14 but altering the layout by inserting a colon after the words “the tree” and using two bullet points to break the sentence. The commissioner’s first sentence would then read:
- has caused, is causing, or is likely in the near future to cause damage to the applicant’s property or
- is a risk of injury to persons”.
- “Under s 10(2) of the Act the Court must not make an order unless it is satisfied that the tree:
22 Evidently the commissioner did not use the actual words in s 10(2)(b) of “is likely to cause injury to any person”, but rather paraphrased the second limb to be “is a risk of injury to persons”. However, the commissioner’s paraphrase of the second limb did not use the temporal qualification of “the near future”, but rather the commissioner restricted the use of that temporal qualification to the first limb concerning damage to the applicant’s property.
23 The reference in the second sentence of para 14 to the Court’s decision in Yang v Scerri that “the near future” is a period of 12 months from the date of the decision can only be an explanation of the temporal qualification referred to in the first limb concerning damage to property and not to the second limb of risk of injury to persons where the temporal qualification has not been used. The commissioner did not err in referring to Yang v Scerri.
24 In any event, the commissioner’s finding of fact that none of the tests in s 10(2) were satisfied (para 16 of the judgment) is not stated to be dependent on any temporal requirement. The commissioner did not find, for example, that there was a risk of injury to persons in a period longer than 12 months but not within 12 months of the date of determination and accordingly refuse the application on that basis. The temporal requirement was not a central issue in the commissioner’s decision. Hence, even if there were to be any misconstruction of s 10(2)(b) by the commissioner’s reference to the temporal qualification of “the near future” (which I do not find), it did not vitiate the commissioner’s decision: Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409 at 419; Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321 at [33] and cases therein cited; Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298 at [7]-[27], [29] per Allsop P, [108]-[112], [132]-[139] per Tobias JA and [191]-[198] per Sackville AJA.
25 Mr Ekermawi also submitted that the commissioner erred in referring to the Court’s prior decision in Barker v Kyriakides. As I understand his submission, Mr Ekermawi did not dispute the principle enunciated in that case but rather disputed that it was applicable to his situation where leaf litter from the tree finds its way into his gutters and drains, which Mr Ekermawi says causes water blockages and ultimately water damage to his house.
26 The question of whether the tree concerned has caused, is causing or is likely in the near future to cause damage to Mr Ekermawi’s house was a question of fact. The commissioner was aware of Mr Ekermawi’s argument of causation: that leaves on the tree had blocked the storm water system leading to water backing up and damaging his house: see para 9 of the judgment. However, the commissioner did not accept Mr Ekermawi’s argument that the tree had caused, is causing or is likely in the near future to cause damage to his property: para 16 of the judgment. In making this factual finding the commissioner considered the documents and photographs tendered by Mr Ekermawi and Mr Ekermawi’s evidence on-site: see paras 9, 10, 11 and 15 of the judgment. These included the photographs and documents that Mr Ekermawi submitted established causation between the tree and damage to his property. In particular, the commissioner referred to documents concerning Mr Ekermawi’s insurance claim that the tree had caused damage to his property, including the Progress Report No 2 dated 7 November 2008 from GAB Robins Australia Pty Ltd – Chartered Loss Adjustors and the detailed letter from Australian Alliance Insurance dated 18 February 2009, and the fact that neither document mentioned leaves of any kind or mentioned the tree or trees as a cause of the damage to Mr Ekermawi’s house: paras 10 and 11 of the judgment.
27 The commissioner also took into account the arborist’s report that concluded that the tree is healthy, has no significant defects and has a safe useful life expectancy of between 15 to 40 years: para 5 and see also para 4 of the judgment. The arborist noted and the commissioner also observed the base of the tree to be at least 15 m from the southern (closest) corner of Mr Ekermawi’s house, that there are no branches overhanging Mr Ekermawi’s property and that the closest branch is probably at least 12 m away: para 6 of the judgment.
28 The commissioner’s factual finding that none of the tests in s 10(2) were satisfied was expressly stated to be based on the evidence produced at the hearing, the condition of the tree and its location with respect to the applicant’s property: para 16 of the judgment.
29 This factual finding was open to the commissioner on the evidence. No error of law is involved in finding or inferring facts where there is some evidence capable of supporting the finding or inference. Mr Ekermawi’s submission that there was also evidence to support making a different finding of fact is not to the point. There is also no error of law involved in making a wrong finding or inference of fact on the evidence: McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8 at 9; Australian Gas Light Company v The Valuer General (1940) 40 SR (NSW) 126 at 138; Tesoriero v Leichhardt Municipal Council (1983) 51 LGRA 46 at 48-49; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-157; Randwick Municipal Councill v Crawley (1986) 60 LGRA 277 at 282-283; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355; Seaforth Services Pty Ltd v Byron Shire Council (No 2) (1991) 72 LGRA 44 at 47; Sydney Water Corporation v Caruso at [96]; Bruce v Cole (1998) 45 NSWLR 163 at 188. No error of law is also revealed by the commissioner referring to the prior decision of the Court in Barker v Kyriakides.
Ground 2
30 Mr Ekermawi submitted on a number of occasions at the hearing of the s 56A(1) appeal that the commissioner ought to have found on the evidence before the Court that the tree had caused, is causing or is likely in the near future to cause damage to Mr Ekermawi’s property and is likely to cause injury to any person. In response to my inquiry as to why that involved a question of law and was not merely a question of fact, Mr Ekermawi narrowed the focus of this ground of appeal to the fourth sentence in para 7 of the commissioner’s judgment, that “there is no evidence of any damage to any vehicle parked on the applicant’s property.” Mr Ekermawi submitted that this was a finding of fact where there was no evidence to support the finding and this was an error of law.
31 Mr Ekermawi submitted that there was in fact evidence that the tree had caused damage to his van parked on his property. Mr Ekermawi referred to the photographs showing fallen branches after the storm on 31 January 2008 behind a van parked in the driveway of his property. The photographs, he said, showed a damaged tail light on the van. Mr Ekermawi also referred to a quotation from a motor vehicle repairer to repair damage to the van (which was more extensive than the damaged tail light) and to Mr Ekermawi’s insurance claims for damage to his van. Mr Ekermawi referred to the statement in Mr El Haddad’s affidavit that “on or about January 2008, during a storm the tree in question as usual dropped small and large branches, but this time damaging my Mercedes where the insurance has writing it off and damage to my neighbours’ van, I have lodged a claim for it with the NRMA … ”. As to Mr El Haddad’s reference to lodging a claim with the NRMA, I note that NRMA Insurance rejected the claim that the tree had caused damage to the van saying “from information in our possession we do not consider our client to be liable for this instance and therefore deny liability …”: see NRMA Insurance’s letter of 21 October 2009.
32 No error of law is revealed in the commissioner’s sentence challenged by Mr Ekermawi. Mr Ekermawi’s argument involves a misconstruction of the sentence. The sentence needs to be construed in the context of the paragraph and the judgment as a whole.
33 The commissioner noted in para 2 of the judgment that Mr Ekermawi in the application before the Court was seeking the removal of the tree and compensation for damage to his car, as well as to his house, and that Mr Ekermawi sought these orders because he contends that the tree has caused damage and is concerned that it will continue to do so.
34 In para 7 of the judgment, the commissioner started the discussion on Mr Ekermawi’s claim of damage to his car with the statement: “The damage said to have been caused to the car that forms part of the claim for compensation occurred during a storm on 31 January 2008”. The commissioner then referred to the actions of the SES saying “the SES removed a large section of the tree that had fallen towards the applicant’s house.” Mr Ekermawi had provided to the Court the letter from the SES in which they stated that they had attended on 1 February 2008 and cut a large branch (8 m in length) that had been caught approximately 12 m up in the tree using a cherry picker, and also removed a smaller branch also caught up in the tree. This letter provides an evidentiary basis for the commissioner’s finding.
35 The commissioner then referred to the set of photographs that Mr Ekermawi had provided to the Court depicting the fallen branches laying on the properties at 120 and 122 Nuwarra Road, Moorebank after the storm on 31 January 2008. The sentence challenged by Mr Ekermawi is one of three sentences in which the commissioner makes findings of fact based on the photographs taken after the storm. In the first of these sentences, the commissioner finds that the photographs show some branches on Mr Ekermawi’s property, with the majority of debris being on the driveway of 122 Nuwarra Road, Moorebank (then owned by Mr El Haddad). In the third of the sentences, the commissioner finds the photographs show a car parked in front of the garage of 122 Nuwarra Road covered by branches. This was Mr El Haddad’s Mercedes. The second of these three sentences, the one challenged by Mr Ekermawi, also involved the commissioner making a finding based on the photograph. The commissioner’s statement that “there is no evidence of any damage to any vehicle parked on the applicant’s property” is, properly construed, a finding that the commissioner was not able to draw the inference from the photographs that the branches on Mr Ekermawi’s property shown in the photographs caused damage to the vehicle shown in the photographs parked on Mr Ekermawi’s property. The sentence must be construed in the context of the preceding and following sentences which are expressly describing what the photographs show as well as in the context of the purpose of the paragraph which the first sentence discloses is to determine Mr Ekermawi’s claim that the tree caused damage to Mr Ekermawi’s car in the storm on 31 January 2008.
36 Properly construed, therefore, the sentence is an inference of fact open to the commissioner on the evidence. It cannot be said that the only inference that the commissioner was able to draw from the photographs was that the tree caused damage to Mr Ekermawi’s car. As I have noted in relation to ground 1, whether or not the commissioner’s inference was factually correct is irrelevant. It was an inference of fact that had an evidentiary basis and is unassailable on an appeal under s 56A(1) limited to questions of law.
37 Accordingly, no error of law was involved in the commissioner’s statement in para 7 of the judgment.
Ground 3
38 Mr Ekermawi submitted that he had invited the commissioner to enter his house and inspect internal damage to the house. The commissioner declined Mr Ekermawi’s invitation. Mr Ekermawi claims that he was thereby denied an adequate opportunity to be heard. I reject this claim.
39 Mr Ekermawi had every opportunity to adduce evidence in support of his application, both his claim for removal of the tree and his claim for compensation for damage to his property. Mr Ekermawi elected to tender documents and photographs in his support of his claims. The commissioner considered those documents and photographs and Mr Ekermawi’s oral evidence on-site in the judgment, making factual findings that they did not prove that the tree caused the damage claimed by Mr Ekermawi to his house: see paras 9, 10, 11, 15 and 16 of the judgment. Mr Ekermawi did not call any evidence of any expert to establish that any internal damage to his house was caused, even indirectly, by the tree.
40 Mr Ekermawi could not cure this evidentiary deficiency in this case by inviting the commissioner to inspect for herself any alleged internal damage to the house. The commissioner’s inspection could not provide evidence in itself and in any event could not establish that any internal damage so inspected was caused by the tree on the neighbours’ property. All that could have been achieved by the invited inspection was to have provided the commissioner the opportunity to observe internal damage to the house. However, without other evidence, the commissioner could not draw any inference from any such observation as to what was the cause of the damage observed inside the house.
41 The commissioner was not under a duty, whether by reason of the rules of procedural fairness or otherwise, to accept Mr Ekermawi’s invitation to inspect internal damage to the house. No error of law occurred by the commissioner declining Mr Ekermawi’s invitation.
42 Mr Ekermawi also submitted under this ground of appeal that he was not given an adequate opportunity to address the commissioner on the prior decision of another commissioner in Black v Johnson (No 2). This submission should also be rejected. As Mr Ekermawi conceded in argument, after the commissioner initially stated to Mr Ekermawi her view that the decision was not applicable to Mr Ekermawi’s application, Mr Ekermawi protested and then the commissioner in fact permitted Mr Ekermawi to continue with his submission on Black v Johnson (No 2). Mr Ekermawi was, therefore, given an adequate opportunity to be heard in relation to that decision.
43 In the end, Mr Ekermawi was forced to amend his submission to be that the commissioner ignored the decision of Black v Johnson (No 2) because no reference was made to the decision in the commissioner’s reasons for judgment.
44 There was no obligation on the commissioner to refer to the decision in Black v Johnson (No 2) in the reasons for judgment for a number of reasons. First, the decision in Black v Johnson (No 2) suggests a tree dispute principle concerning whether a tree or a structure damaged by a tree was in existence first to assist the Court in determining who should pay for any works or for the removal of a tree. That tree dispute principle was of no relevance to Mr Ekermawi’s application and Mr Ekermawi did not contend that it was relevant. Hence, the decision was not relevant for this reason.
45 Secondly, Mr Ekermawi relied on the factual findings that the commissioner made on the evidence in Black v Johnson (No 2) as to whether the tree there concerned satisfied either or both of the provisions of s 10(2)(a) or (b) of the Trees Act. Mr Ekermawi referred to the factual findings of the commissioner in paras 5-7 of Black v Johnson (No 2).
46 The findings of fact by commissioners in another case about another tree in a different location in different circumstances could be of no relevance or assistance to the commissioner in Mr Ekermawi’s case in determining whether the tree the subject of Mr Ekermawi’s application satisfied the provisions of s 10(2)(a) or (b) of the Trees Act. The factual findings of the commissioner in Black v Johnson (No 2) could not and did not provide a legal precedent which the commissioner in Mr Ekermawi’s case was bound to consider or apply.
47 Thirdly, the commissioner was not required in the reasons for judgment to recount and reject every submission made by Mr Ekermawi in argument regardless of the nature, central relevance or strength of the submission, its potential effect on the outcome of the decision and the individual circumstances of the case: Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 272; Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Beale v GIO of NSW (1997) 48 NSWLR 430 at 443; Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 at [43], [56], [93], [99]. Mr Ekermawi’s reliance on the factual findings of the commissioner in Black v Johnson(No 2) was misplaced and irrelevant and could not assist the commissioner in the determination of Mr Ekermawi’s application. No error of law was involved in the commissioner not referring to Mr Ekermawi’s submissions about Black v Johnson (No 2) in the judgment.
Ground 4
48 Ground 4 fails for the reasons I have given above in relation to grounds 1 and 3. The commissioner did not err in the manner submitted by Mr Ekermawi in construing s 10(2) of the Trees Act and did not err in law in applying it. The commissioner did not err in law in not applying the factual findings of other commissioners in other cases where trees were found to have satisfied the provisions of s 10(2) of the Trees Act. Factual findings about trees in other cases could provide no legal precedent for the commissioner in determining Mr Ekermawi’s application.
Ground 5
49 Mr Ekermawi submitted that the commissioner ignored certain evidence being the photographs of the storm damage on 31 January 2008, Mr El Haddad’s affidavit and the SES letter. I reject this ground of appeal.
50 First, the commissioner was not obliged to refer in the reasons for judgment to every piece of evidence: see cases referred to in relation to ground 3. Hence, an inference cannot be drawn from the absence of express reference to a piece of evidence that the commissioner ignored that evidence.
51 In respect of these three pieces of evidence, however, the inference should be drawn that the commissioner considered them. The photographs and documents were provided by Mr Ekermawi to the Court and were before the commissioner. The commissioner’s judgment reveals consideration of the matters in these pieces of evidence.
52 The commissioner expressly referred to the photographs of the storm damage on 31 January 2008 in the judgment and drew inferences from them: see paras 7, 10 and 13 of the judgment. The commissioner also expressly referred to the work done by the SES after the storm: see para 7 of the judgment. Evidence of the SES’ work was contained in the letter of the SES tendered by Mr Ekermawi in the bundle of documents. Mr El Haddad also referred to the work of the SES in his affidavit which was also included in the bundle of documents tendered by Mr Ekermawi.
53 The commissioner’s judgment is consistent with the commissioner having considered the affidavit of Mr El Haddad. The commissioner refers in the judgment to facts that were disclosed in Mr El Haddad’s affidavit. These facts include that Mr El Haddad owned the property at the time of the storm on 31 January 2008 and that the Bennetts did not purchase the property until afterwards: para 8 of the judgment. As noted, the work of the SES after the storm was referred to by Mr El Haddad in his affidavit. The commissioner referred to the work of the SES.
54 The affidavit of Mr El Haddad and the letter of the SES were included in the bundle of documents tendered by Mr Ekermawi and were located immediately after the documents expressly referred to by the commissioner. The commissioner expressly referred to the Progress Report No 2 by GAB Robins Australia Pty Limited: (see para 10 of the commissioner’s judgment). This was document T10, pp 15 and 16 of the bundle of documents tendered by Mr Ekermawi. Mr El Haddad’s one page affidavit was document T11, p 17 whilst the SES letter was document T12, p 18.
55 In these circumstances, Mr Ekermawi has not established that the commissioner ignored these three pieces of evidence.
Conclusion on the appeal
56 Mr Ekermawi has not established that the commissioner erred on the questions of law raised by him in the summons commencing the appeal. The appeal should therefore be dismissed.
Costs
57 The respondents applied for costs of both the s 56A(1) appeal (if they were to be successful in defending the appeal) and of that part of the original proceedings before the commissioner to Mr Ekermawi’s that related to the claim for compensation which he withdrew at the hearing. Mr Ekermawi opposed both orders for costs.
58 Both the original application before the commissioner and the s 56A(1) appeal are proceedings assigned to Class 2 of the Court’s jurisdiction. Part 3 r 3.7 of the Land and Environment Court Rules 2007 make special provision in relation to costs in proceedings in Class 2 of the Court’s jurisdiction: r 3.7(1)(b). The presumptive rule is expressed in r 3.7(2):
- “The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances.”
59 Rule 3.7(3) provides a non-exhaustive list of circumstances in which the Court might consider the making of a cost order to be fair and reasonable. Of relevance to the s 56A(1) appeal is para (a) which provides that one circumstance is:
“(a) that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law, and the determination of such question:
(ii) was preliminary to, or otherwise has not involved, an evaluation of the merits of any application the subject of the proceedings,”.(i) in one way was, or was potentially, determinative of the proceedings, and
60 The respondents submitted that para (f) was relevant to the original proceedings before the commissioner. Para (f) provides that another circumstance is:
“(f) that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where:
(ii) to commence or continue the claim, or to maintain the defence, was otherwise unreasonable.”(i) the claim or defence (as appropriate) did not have reasonable prospects of success, or
61 As noted previously, a s 56A(1) appeal by its nature is limited to an appeal against an order of a commissioner on questions of law. The determination of the questions of law is determinative of the proceedings. The proceedings fall within the circumstances in para (a) of r 3.7(3). Courts have held that it may be fair and reasonable to make an order for costs where the proceedings involve only a question of law (see cases in Grant v Kiama Municipal Council [2006] NSWLEC 70 at [15] and also Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323; (2006) 149 LGERA 360 at [199], [200], [208], [244], [249], [252]; Port Stephens Council v Sansom [2007] NSWCA 299; (2007) 156 LGERA 125 at [88], [95]) or an appeal under s 56A(1) involving questions of law (Sky Design and Concepts Pty Ltd v Pittwater Council (No 5) [2009] NSWLEC 174 at [12]-[14]). In the circumstances of Mr Ekermawi’s s 56A(1) appeal, I consider it is fair and reasonable to make an order that costs follow the event so that Mr Ekermawi should pay the costs of the respondents of the s 56A(1) appeal.
62 I consider, however, that a different order is appropriate in relation to the costs of the original proceedings before the commissioner. The circumstances are not such as would make it fair and reasonable to order Mr Ekermawi to pay the whole or any part of of the costs of those proceedings.
63 The respondents sought to rely on the fact that at a directions hearing before the hearing of the proceedings, the Court made a direction setting a timetable for filing of any further evidence by Mr Ekermawi in relation to his claim for compensation for damage to his property. Mr Ekermawi did not file or serve any further evidence in response to this direction. He relied on the documents and photographs he had previously filed and served and the documents produced by the Council in response to Mr Ekermawi’s subpoena. He was not obliged by the Court’s direction to file and serve further evidence; the direction only set a time to file and serve further evidence if he chose to do so.
64 Mr Ekermawi’s forensic choice to rely on the documents and photographs he had already filed and served and the subpoenaed documents, and not any further evidence, was not unreasonable.
65 Although Mr Ekermawi withdrew his claim for compensation at the hearing, he still relied on all of the evidence he had filed and served in support of that claim for his continuing application for an order for removal of the tree. The respondents had made their own forensic choice as to evidence and had filed and served only an arborist’s report and no other evidence. In particular, they had no evidence responding to the claim for compensation. Their forensic decision was that Mr Ekermawi would not prove his claim for compensation on his evidence. The respondents continued to rely on the arborist’s report to defend Mr Ekermawi’s application for an order for removal of the tree.
66 Hence, Mr Ekermawi’s withdrawal of the claim for compensation made no difference to the evidence and the respondents suffered no loss such as the costs of having prepared evidence that was no longer required.
67 The fact that, ultimately, Mr Ekermawi’s application was dismissed by the commissioner, or that it was dismissed because the commissioner was not satisfied on all of the evidence (which included not only Mr Ekermawi’s evidence but also the respondents’ expert evidence) that the tree met the tests in s 10(2) of the Trees Act, does not lead to the conclusion that Mr Ekermawi’s application did not have reasonable prospects of success or that it was unreasonable for Mr Ekermawi to commence or continue the claims he made in his application.
68 In conclusion, I do not find the circumstances to be such as to make it fair and reasonable to make an order for costs of the proceedings before the commissioner.
Orders
69 The Court orders:
1. The appeal in proceedings no 20142 of 2010 is dismissed.
3. Each party in proceedings no 20637 of 2009 is to pay their own costs of the proceedings.2. The applicant in proceedings no 20142 of 2010 is to pay the costs of the respondents, as agreed or assessed.
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