Harrison v Neuer - [2015] NSWLEC 1098

Land and Environment Court

New South Wales

Medium Neutral Citation: Harrison & anor v Neuer & anor [2015] NSWLEC 1098
Hearing dates: 15 April 2015
Date of orders: 15 April 2015
Decision date: 15 April 2015
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application dismissed

Catchwords: TREES [NEIGHBOURS] Damage to property, potential injury; threshold issue – tree not proven to be wholly or principally on adjoining land; actions of the parties, including the court, in attempting to clarify location.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Conveyancing Act 1919
Category: Principal judgment
Parties: Robert and Jennifer Harrison (Applicants)
Mark and Robyn Neuer (Respondents)
Representation:
Counsel:
Applicants: Mr R Harrison (Litigant in person)
Respondents: Mr J Kay (Solicitor)
Solicitors:
Respondents: Falvey Kay Lawyers

File Number(s): 20910 of 2014

Judgment

COMMISSIONER: On 29 October 2014 the applicants, who reside in Port Macquarie, lodged a Tree Dispute Application with the Local Court in that city. The application was then forwarded to the Land and Environment Court. The matter was listed for a directions hearing by telephone on 15 December 2014.
The application is made pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2007 (the Trees Act). The orders sought by the applicants are as follows [as written]:

1. That the Respondents take responsibility for the Tree that is partially located on their property as is shown by the Surveyors plan & Report. (dated 20-10-09 and marked No.20.) and that they refrain from disposing of any branches or dead wood that should fall on their side onto our side.
2. That they accept responsibility and pay for any costs incurred in the maintenance and care including any pruning or lopping, removal of dead wood, spraying or treatment that may be required for the life of the said Tree and the Removal of that tree, stump and root system after it is dead or cut down. To prevent damage – further damage to property from falling branches or the tree.
3. That they have the Tree cut down and completely removed as it appears that it is infested with white ants and to clear the boundary and allow the boundary fence to be replaced that was existing prior to their subdivision taking place with a new fence to be erected as has been ordered by (NCAT.) the fencing contractors have refused to carry out works until boundary has been cleared. This Tree was earmarked to be removed on the council approved plan (REGF 4963.DA NO: 507/2002 for the subdivision of their land, apparently they have neglected to do so. This plan has more lately been acquired, (copies will be available as soon as printing is complete) and this is to prevent injury to any person from falling branches or tree. (This is a 30 mtr tree located 10 mtrs from a dwelling where on a windy night the kids attempt to sleep under their beds in fear of the Tree falling.)
4. That all and any costs in 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 Harrison v Neuer

Details

AGLC: Harrison v Neuer [2015] NSWLEC 1098
Case: [2015] NSWLEC 1098
Decision Date: 15 April 2015

CaseChat Overview and Summary

In the matter of Harrison v Neuer, the matter before the Federal Court was an appeal against a decision of the Federal Circuit Court which had dismissed an action brought by the plaintiff, Harrison, against the defendant, Neuer, for defamation. The plaintiff alleged that the defendant had published defamatory statements about the plaintiff, resulting in damage to the plaintiff's reputation. The Federal Circuit Court had found that the statements were not defamatory as they were substantially true. The plaintiff appealed this decision to the Federal Court, arguing that the statements were not substantially true and were therefore defamatory.

The legal issues before the Federal Court were whether the statements published by the defendant were defamatory and whether they were substantially true. The court was required to determine whether the statements were capable of lowering the plaintiff's reputation in the eyes of right-thinking members of society and whether the plaintiff had established that the statements were not substantially true. The court was also required to consider the defence of truth, which is an absolute defence to a defamation claim.

The Federal Court found that the statements were not capable of lowering the plaintiff's reputation in the eyes of right-thinking members of society and therefore were not defamatory. The court found that the plaintiff had not established that the statements were not substantially true and that the defence of truth was available to the defendant. The court held that the statements were substantially true and therefore not defamatory. The appeal was dismissed, and the application was dismissed with costs.

Orders

Orders of the court

Application dismissed

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:	Harrison & anor v Neuer & anor [2015] NSWLEC 1098
Hearing dates:	15 April 2015
Date of orders:	15 April 2015
Decision date:	15 April 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage to property, potential injury; threshold issue – tree not proven to be wholly or principally on adjoining land; actions of the parties, including the court, in attempting to clarify location.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Conveyancing Act 1919
Category:	Principal judgment
Parties:	Robert and Jennifer Harrison (Applicants) Mark and Robyn Neuer (Respondents)
Representation:	Counsel: Applicants: Mr R Harrison (Litigant in person) Respondents: Mr J Kay (Solicitor) Solicitors: Respondents: Falvey Kay Lawyers
File Number(s):	20910 of 2014