Francis v Baronian

[2009] NSWLEC 146

Land and Environment Court

of New South Wales

CITATION:	Francis v Baronian [2009] NSWLEC 146 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPELLANT Janette Francis RESPONDENTS Harry Baronian and Maria Baronian
FILE NUMBER(S):	20081 of 2009
CORAM:	Pain J
KEY ISSUES:	APPEAL :- s 56A appeal - notice of motion to strike out appeal successful in part - whether failure to accord procedural fairness at on-site hearing - whether failure to allow cross-examination - appeal dismissed - variation of orders made by Acting Commissioner as orders made outside jurisdiction COSTS :- application for indemnity costs by respondents unsuccessful
LEGISLATION CITED:	Land and Environment Court Act 1979 s 38, 56A Land and Environment Court Rules 2007 r 3.7 Trees (Dispute Between Neighbours) Act 2006 s 9, 10, 12
CASES CITED:	BP Australia Ltd v Campbelltown CC (1994) 83 LGERA 274 Ballina Shire Council v Stubberfield (No 2) [2006] NSWLEC 538 Blue Sky Capital Ventures Pty Ltd v Council of the City of Lake Macquarie [2007] NSWLEC 790 Burwood MC v Harvey (1995) 86 LGERA 389 Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 Re King; ex parte Westfield Corp (Vic) Ltd (1981) 64 LGRA 28
DATES OF HEARING:	26 August 2009
EX TEMPORE JUDGMENT DATE:	26 August 2009
LEGAL REPRESENTATIVES:	APPELLANT In person RESPONDENT Mr A Norrie SOLICITORS G J Gooden

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

26 August 2009

20081 of 2009 Francis v Baronian

EX TEMPORE JUDGMENT

1 Her Honour: The Appellant, Ms Francis, filed an application under the Trees (Disputes Between Neighbours) Act 2006 seeking various orders related to the two palm trees on her neighbours’ land, the Baronians who are the Respondents, and orders in relation to a retaining wall.

2 Acting Commissioner Thyer handed down an ex tempore judgment on 29 April 2009 in which he made various findings of fact (Francis v Baronian [2009] NSWLEC 1150). He ordered that:

a. The Baronians shall remove the two Palm trees by 31 May 2009, at their cost;
b. Mrs Francis shall repair or replace the retaining wall, and repair the fence by 31 August 2009, at her cost;
c. The retaining wall and its drainage elements shall be entirely on Mrs Francis’ property. The work shall be done in fit materials by qualified tradespeople, with site management in accordance with WorkCover procedures;
d. Mrs Francis shall provide to the Baronians by 30 September 2009 a certificate from a suitably qualified engineer, stating that the retaining wall is adequate for purpose.

3 The Appellant has lodged an appeal pursuant to s 56A of the Land and Environment Court Act 1979 (the Court Act) containing numerous grounds of appeal including:

a) that the Respondents were represented by Mr Vic Cavasinni at the on-site hearing.

b) that the Respondent Harry Baronian was not present at the on-site hearing.

c) that the conduct of the proceedings was improper.

d) that the evidence of Mr Edward Brincat (civil engineer) was allowed.

Notice of Motion to strike out s 56A appeal

4 The Respondents filed a Notice of Motion dated 19 August 2009 seeking to strike out the s 56A appeal as failing to disclose any errors of law and an order for indemnity costs. An affidavit of Mr Ken Gray, the Respondents’ solicitor, sworn 19 August 2009 was also read. It annexed the judgment of the Acting Commissioner and a letter to the Appellant advising that no errors of law were identified in the appeal. I heard this motion first. I upheld most of the arguments presented by the Respondents’ counsel on the motion and struck out most of the summons filed by the Appellant as it referred to numerous matters which did not disclose any error of law including those identified above at par 3. I ruled that the only ground able to be raised is that related to whether the conduct of the hearing by the Acting Commissioner on 29 April 2009 accorded procedural fairness to the Appellant.

Section 56A appeal

5 The evidence relied on to support the appeal consists of part of an affidavit of the Appellant sworn 12 July 2009. She also gave brief oral evidence from the bar table about what she believed took place at the on-site hearing on 29 April 2009 to the effect that she was not able to give her evidence uninterrupted, was not able to cross-examine witnesses and was not able to tender additional evidence she wished to rely on after the end of the hearing when the Acting Commissioner delivered his judgment.

6 In response to that oral evidence Mr Cavasinni, who represented the Respondents at the hearing before the Acting Commissioner, gave short oral evidence based on a written statement also provided to the Appellant. His evidence is that he recalls the Appellant asking questions of Mr Brincat, the civil engineer called by the Respondents. He affirms that the Appellant did not make any request to cross-examine Ms Baronian, one of the Respondents. He did not consider the Appellant was denied an opportunity to ask questions at any stage. At the end of the hearing he recalls the Acting Commissioner asking him if there was anything anyone wished to ask, say or provide and Mr Cavasinni said there was not on behalf of the Respondents. The Appellant cross-examined him briefly. He could not comment on what the Acting Commissioner said to her at the time judgment was delivered as he turned away as soon as judgment was given. He denied that he was representing to the Acting Commissioner that no-one at the on-site hearing had anything further to say.

7 The principal areas of complaint about procedural fairness raised by the Appellant concern the failure of the Acting Commissioner to allow cross- examination of witnesses, failure to allow the Appellant to give uninterrupted evidence and to adduce additional evidence before closing the hearing and delivering judgment.

8 The Respondents’ counsel argued that the Appellant had the onus of establishing that there had been a fundamental departure from the rules of procedural fairness giving rise to an error of law. In considering the appropriate conduct of proceedings, the Court must take into account the nature of proceedings in Class 2 matters of this kind as identified in s 38 of the Court Act. There is nothing in the Appellant’s affidavit which supports a finding of failure to accord procedural fairness. Nor was there in the oral evidence from the bar table.

Finding on s 56A appeal

9 The Appellant bears the onus of establishing that there has been a fundamental failure to provide an opportunity to present her case including the presentation of evidence and the examination of witnesses. If established such failure can give rise to a finding of procedural unfairness per Burwood Municipal Council v Harvey (1995) 86 LGERA 389. The Appellant’s oral and written evidence, while disclosing her dissatisfaction with the process adopted by the Acting Commissioner at the hearing, does not establish there was a fundamental failure by the Acting Commissioner to accord her procedural fairness. The Appellant’s evidence tended to be assertions of what she believed had occurred rather than detailing exactly what did occur. I mean no criticism of her in making these comments as I fully appreciate the difficulty lay persons have in distinguishing between evidence and submissions. I do however have to assess this matter on the basis of what I have before me today and that evidence does not identify matters which support her assertions.

10 At [18]-[19] in Blue Sky Capital Ventures Pty Ltd v Council of the City of Lake Macquarie [2007] NSWLEC 790 I dealt with the issue in a s 56A appeal of whether there had been a failure to allow cross-examination. I referred to the fact that there is no right to cross-examine in Class 1 proceedings relying on Re King; ex parte Westfield Corp (Vic) Ltd (1981) 64 LGRA 28 at 47-49. These observations also apply in Class 2 proceedings. The Appellant’s submissions appear to be based on the perception that she was entitled to do so. In any event the evidence of Mr Cavasinni is that she asked questions of Mr Brincat, the civil engineer called by the Respondents, and did not seek leave to ask questions of Mrs Baronian, one of the Respondents. That evidence was not contradicted by the Appellant in her evidence. It does not appear that the Appellant was denied an opportunity to cross-examine anyone during the hearing.

11 In relation to the claim that she was unable to tender additional documents at the time the Acting Commissioner delivered judgment, the evidence of Mr Cavasinni is that at the end of the hearing the Acting Commissioner asked the parties whether there was any other matter they wished to raise. He replied on behalf of the Respondents that there was not. I do not know from her evidence whether the Appellant responded to this question from the Acting Commissioner but that evidence suggests she was given the opportunity at the end of the hearing to raise additional matters. There is no failure to accord procedural fairness to the Appellant in these circumstances if the Acting Commissioner did not later accept more evidence when he came back to the parties shortly after the end of the hearing to deliver his ex tempore judgment.

12 The Appellant’s submission that she was not able to give uninterrupted evidence is not substantiated by her evidence. Whether it is realistic to expect to be able to give completely uninterrupted evidence is debateable as, for example, a commissioner or another party may commonly wish to ask one or more clarifying questions. The appeal under s 56A is dismissed.

Costs

13 It is necessary to determine whether any costs order ought be made. The Respondents seek their costs on an indemnity basis in relation to the Notice of Motion to have the s 56A appeal dismissed. The basis for doing so is that the Appellant failed to properly identify any errors of law in her summons for the s 56A appeal. She also failed to identify in any detail what the failures in procedure were which gave rise to an error of law by the Acting Commissioner. The award of indemnity costs requires that there be some unreasonable behaviour on the Appellant’s part to justify a departure from the usual costs rule as referred to by Sheppard J in Colgate-PalmoliveCompany v Cussons Pty Ltd (1993) 46 FCR 225 at 233 and considered by me in Ballina Shire Council v Stubberfield (No 2) [2006] NSWLEC 538. I do not consider the Appellant’s behaviour warrants the making of an indemnity costs order.

14 The summons to have the appeal dismissed was largely successful and necessary given the large number of issues raised in the s 56A appeal that were not identifying errors of law. I consider that it is fair and reasonable that the Appellant pay half the costs of the Respondents in relation to the Respondents’ Notice of Motion dated 19 August 2009.

15 In relation to the costs of the s 56A appeal, the Appellant has been unsuccessful. The Respondents seek their costs of the appeal. Under r 3.7 of the Land and Environment Court Rules 2007 costs may be awarded in Class 2 proceedings if it is fair and reasonable to do so. The appeal brought by the Appellant, while unsuccessful, was not frivolous or vexatious. Applying the broad discretion I have on costs I consider each party should pay its own costs and disbursements of the s 56A appeal.

Should the Acting Commissioner’s orders of 29 April 2009 stand?

16 Separately to the issues raised by the parties I have come to the view after considering the Acting Commissioner’s decision carefully that the orders he made on 29 April 2009 were not in accordance with the jurisdiction provided under the Trees (Disputes Between Neighbours) Act. Section 9 states that

9 Jurisdiction to make orders
(1) The Court may make such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned.

17 Section 10 specifies those matters about which the Court must be satisfied before it can make an order. Section 12 identifies those matters the Court must consider in deciding whether or not to make an order.

18 When the Acting Commissioner considered s 10 of the Trees (Disputes Between Neighbours) Act he concluded at [25] and [26] of his judgment that:

I find on the basis of these observations and explanations, that the most significant cause of damage to the retaining wall is decay and failure due to its materials, method of construction and the passage of time. However, by the growth and pressure of their roots, both trees are likely to have been a minor cause of bowing out of sections of the retaining wall. On that basis both trees meet the three tests in s 10(2)(a) of the Act, and I am able to make orders regarding them.

I do not find that either tree is likely to cause injury as they are not large trees, and unless the retaining wall was to fail, the trees are not likely to fall.

19 While the Acting Commissioner held that s 10 applied it was only just, in that he found that the tree damage to the retaining wall was in some sections only and was minor. He went on to consider the matters under s 12 and his conclusions were largely against the removal of the trees particularly in relation to s 12(e),(g) and (h). At [29] he held that the problems of the retaining wall and the fence located on top of the wall were caused substantially by the condition of structures on the Appellant’s own property and were of her own making. He stated at [33] that the removal of the trees was the first action necessary in the process of repairs to the retaining wall and that the trees would be unstable if the retaining wall was demolished. That the retaining wall requires repair unrelated largely to the presence of the two trees in dispute is not a basis for making orders for repair or replacement of the whole retaining wall and repair of the fence (order (b) par 2 above) under the Tree (Disputes Between Neighbours) Act. At [33] he considered that, as the Respondents had offered to remove the trees, he should make an order to that effect and that this be done at their cost (order (a) par 2 above). The agreement of a party to do something is not a basis for making an order under the Trees (Disputes Between Neighbours) Act. He then stated that as there was no utility in ordering the removal of the trees unless the Appellant did the work on her retaining wall, he having found that the retaining wall was on her land and therefore her responsibility to repair, that he should order her to repair the wall within a certain timeframe ([34]). That process of reasoning suggests that there was no jurisdiction to make the orders (a), (b) and (c) in light of s 9. The Court’s jurisdiction to make orders is limited to orders which prevent or remedy damage from trees, not damage to property from other causes.

20 Alternatively, his discretion to make orders miscarried as the orders he made in relation to requiring the Appellant to repair or replace the retaining wall and fence on her property were not proportionate to his findings of the amount of damage the trees did to the retaining wall, per Mahoney JA in BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 at 279. I have power in this s 56A appeal where there is an error of law to make an order in substitution for those at first instance. Under s 56A(2)(b) of the Court Act I can make such other orders in relation to the appeal as seem fit. There is an error of law underpinning the Acting Commissioner’s orders. I consider that I should substitute an order that the Appellant’s appeal be dismissed for those of the Acting Commissioner made on 29 April 2009. I note for completeness that the two trees the subject of the original application have been removed by the Respondents.

Orders

21 The Court makes the following orders:

1. The Appellant’s appeal pursuant to s 56A of the Land and Environment Court Act 1979 is dismissed.

2. Each party is to pay its own costs of the Appellant’s s 56A appeal.

3. The Appellant is to pay half the Respondents’ costs of the Notice of Motion dated 19 August 2009 seeking that the appeal be dismissed, as agreed or assessed.

4. The orders made by Thyer AC dated 29 April 2009 are set aside.

5. In substitution, the Class 2 appeal is dismissed.

27/10/2009 - incorrect rule number - Paragraph(s) coversheet, par 15