The Doctrine of Res Judicata, Spencer Bower, Turner and Handley, 3rd Edition
DATES OF HEARING:
6 May 2009
DATE OF JUDGMENT:
18 May 2009
LEGAL REPRESENTATIVES:
RESPONDENT ON THE MOTION (APPLICANT) Mr A GAlasso SC INSTRUCTED BY Deacons
APPLICANT ON THE MOTION (RESPONDENTS) Mr P Tomassetti SC INSTRUCTED BY Slade Mainwaring
JUDGMENT:
THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES
MOORE SC THYER AC
18 May 2009
20167 of 2009 Judith Hinde v Lynn & Sidney Anderson
JUDGMENT
1 COMMISSIONERS: Trees, whether living or dead, are evolving, changing dynamic structures. Living trees may grow, flower, fruit or react to climatic changes such as drought. They are also susceptible to attack from a variety of organisms large and small – from microbial fungi through human beings to pachyderms.
2 They are also subject to the influence, malignant or benign depending on the species and the circumstances, of all four of the ancient elements – earth, air, fire or water. This case concerns a tree that is subject to the malignant impact of the ancient element of air.
3 The tree is a Chinese Elm (Ulmus parvifolia) (the tree) that sits atop a coastal cliff line in the Sydney suburb of Mosman. In the past, during periods of strong winds from a generally southerly direction, the tree has lost branches that have fallen on the roof of the property immediately to the north of the property on which the tree is located. On several occasions, over a number of years, those falling branches caused damage to the roof of the property to the north.
4 In late 2007, the owner of the property to the north, the applicant in the present proceedings, made an application to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act).
5 As is usual practice of the Court in hearing and determining such applications, an on-site hearing was conducted. At that hearing, a variety of expert witnesses assisted the applicant. The owners of the property upon which the tree is located were the respondents in the earlier application and are also the respondents in this application. At the earlier hearing, they, too, and were assisted by a number of expert witnesses.
6 At the conclusion of the hearing, Tuor C and Fakes…
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.
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Details
AGLC
Hinde v Anderson & anor [2009] NSWLEC 1148
Case
[2009] NSWLEC 1148
Decision Date
CaseChat Overview and Summary
In Hinde v Anderson, the Land and Environment Court of New South Wales was called upon to determine whether a second application under the Trees (Disputes Between Neighbours) Act 2006 (the Act) was permissible, where the same tree and issues were at stake as in an earlier application, but new circumstances had arisen. The applicant, Judith Hinde, sought orders to manage a Chinese Elm tree located on the property of the respondents, Lynn and Sidney Anderson, which had previously caused damage to her property due to falling branches. After an initial hearing in 2007, orders were made to manage the tree, but in early 2009, further damage occurred. The respondents sought summary dismissal of the new application, arguing that the doctrine of res judicata and the provisions of the Land and Environment Court Act 1979 precluded a second application on the same issues.
The court examined whether the doctrine of res judicata, which prevents the re-litigation of the same issues between the same parties, applied to bar the new application. The court found that the doctrine of res judicata did not necessarily preclude a second application if there were changed circumstances. The court considered the purpose of the Act, which was to codify the process for disputes involving trees, replacing the common law tort of nuisance. The court concluded that the Act was intended to provide a statutory framework for addressing tree-related disputes and that the removal of the common law tort of nuisance meant that a second application could be entertained if new circumstances had arisen. The court also noted the obiter comments of Biscoe J in a related case, which suggested that a new application could be made if new circumstances had arisen.
The court held that the Act permitted a second application if there were changed circumstances, and that the absence of an explicit statement in the earlier orders that they were subject to further order did not prevent consideration of the new circumstances. The court emphasised that the determination of whether there were indeed changed circumstances was a matter to be considered during a substantive hearing. The court found that the application for summary dismissal was not justified, and the application for relief could proceed to a substantive hearing. The court's decision allowed for the possibility that the new application might be dismissed if it were found that there were no changed circumstances, or that the nature of the changes was de minimis. However, the court held that a substantive hearing was permissible within the scheme of the Act.