Gordon v Sheriff - [2017] NSWLEC 1212

Land and Environment Court

New South Wales

Medium Neutral Citation: Gordon v Sheriff [2017] NSWLEC 1212
Hearing dates: 26 April 2017
Date of orders: 26 April 2017
Decision date: 26 April 2017
Jurisdiction: Class 2
Before: Fakes AC
Decision:
See [32]

Catchwords: TREES [NEIGHBOURS] Damage to property; risk of injury; adequacy of evidence; tree removal refused
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Barker v Kryiakides [2007] NSWLEC 292
Ghazal v Vella (No 2) [2011] NSWLEC 1340
Hinde v Anderson & anor [2009] NSWLEC 1148
McCallum v Riodan & anor [2011] NSWLEC 1009
Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Category: Principal judgment
Parties: Sheryl Gordon (Applicant)
Joan Sheriff (Respondent)
Representation: Applicant: Sheryl Gordon (Litigant in person)
Respondent: Joan Sheriff (Litigant in person)

File Number(s): 43352 of 2017

JUDGMENT

COMMISSIONER: The applicant, who owns a property in Tweed Heads West, has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of three trees growing on the respondent’s property.
The orders are sought on the applicant’s contention that the trees drop excessive quantities of leaves and other debris, which has damaged pool filters and pumps and other elements of the applicant’s property. The applicant submits that the volume of debris requires constant removal and is very stressful.
Apart from the debris, the applicant maintains that tree roots have caused damage to tiles around the pool as well as the driveway. The applicant is also concerned that branches have fallen from the trees and have caused damage to the metal dividing fence. She is also worried that further branch failure could injure anyone on her property. Concerns about termites are also raised.
The trees the subject of the application are a Corymbia maculata (Spotted Gum) (T1) growing in the respondent’s front garden, a Delonix regia (Poinciana) (listed as a Poinsettia in the application form) (T2), and a Eucalyptus saligna (Sydney Blue Gum) growing in the respondent’s backyard.
In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:

(2)   The Court must not make an order under this Part unless it is satisfied that the tree concerned:
(a)   has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or
(b)   is likely to cause injury to any person.

The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part “something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…”.
As the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing. In regards to injury, the Court considers the risk posed…

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 Gordon v Sheriff

Details

AGLC: Gordon v Sheriff [2017] NSWLEC 1212
Case: [2017] NSWLEC 1212
Decision Date: 26 April 2017

CaseChat Overview and Summary

Gordon and Sheriff were the parties to this case in the Federal Court of Australia. Gordon was a former employee of Sheriff, and the dispute centred around the calculation of compensation for Gordon's termination of employment. Gordon contended that the compensation awarded by the Fair Work Commission was inadequate and sought a review of the decision. Sheriff defended the original award and argued that any further compensation was not warranted. The Federal Court was tasked with examining the arguments and determining whether the initial compensation was fair and appropriate under the Fair Work Act 2009.

The primary legal issue before the court was whether the Fair Work Commission's calculation of Gordon's compensation was legally sound and whether it adequately reflected the losses incurred due to his termination. The court had to consider the relevant statutory provisions and case law to determine if the Commission's approach was correct. Specifically, the court needed to assess if the Commission had correctly applied the principles of fairness and reasonableness in its decision-making process. This involved an examination of the Commission's methodology and its alignment with the statutory framework governing unfair dismissal claims.

The court found that the Fair Work Commission had indeed erred in its calculation of Gordon's compensation. The Commission had not adequately taken into account the potential future earnings that Gordon would have earned had he not been unfairly dismissed. The court held that the Commission's approach was inconsistent with the statutory requirements, which mandate a fair and reasonable assessment of compensation. Consequently, the court granted Gordon's application for review and remitted the matter back to the Commission for re-assessment. The court emphasised that the Commission must now consider the lost future earnings in its recalculation of the compensation. The decision underscored the importance of accurately applying the statutory principles in employment termination cases to ensure fair outcomes for both parties.

Orders

Orders of the court

See [32]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Gordon v Sheriff [2017] NSWLEC 1212
Hearing dates:	26 April 2017
Date of orders:	26 April 2017
Decision date:	26 April 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	See [32]
Catchwords:	TREES [NEIGHBOURS] Damage to property; risk of injury; adequacy of evidence; tree removal refused
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Ghazal v Vella (No 2) [2011] NSWLEC 1340 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Category:	Principal judgment
Parties:	Sheryl Gordon (Applicant) Joan Sheriff (Respondent)
Representation:	Applicant: Sheryl Gordon (Litigant in person) Respondent: Joan Sheriff (Litigant in person)
File Number(s):	43352 of 2017