Joaquim v Adamson (No 2)

[2009] NSWLEC 1367

Land and Environment Court

of New South Wales

CITATION:	Joaquim v Adamson (No 2) [2009] NSWLEC 1367
PARTIES:	APPLICANTS J & J Joaquim RESPONDENTS J & J Adamson
FILE NUMBER(S):	20138 of 2009
CORAM:	Moore SC - Fakes C
KEY ISSUES:	TREES (NEIGHBOURS) :- Application to re-open orders Discretion Applicants poisoned tree leading to need for removal Applicants to bear cost of removal
LEGISLATION CITED:	Land and Environment Court Act 1979 Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005
CASES CITED:	Joaquim v Adamson [2009] NSWLEC 1312 Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300; (1993) 67 ALJR 270 (21 April 1993)
DATES OF HEARING:	6 November 2009
EX TEMPORE JUDGMENT DATE:	6 November 2009
LEGAL REPRESENTATIVES:	APPLICANTS In person RESPONDENTS Mr J Hannaford, solicitor Hannaford Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC
FAKES C

6 November 2009

09/20138 J & J Joaquim v J & J Adamson

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 SENIOR COMMISSIONER: In this matter, we held a site inspection and on-site hearing on 29 May 2009 and we adjourned and held a further hearing in court on 30 June 2009. On 2 October 2009, we published a reserved decision (Joaquim v Adamson [2009] NSWLEC 1312) dealing with the range of matters that were in the application made by the applicants in the present motion. It is appropriate, for the purposes of this morning’s motion, to deal very briefly with the outcome of the earlier proceedings. The outcome effectively fell into several parts. The first related to two trees at the front of the Adamsons’ property with respect to which, during the course of the site inspection, the Adamsons agreed to consent orders for their removal and did so promptly at the commencement of the proceedings (as discussed in our earlier judgment).

2 With respect to the remaining contested issues, the principal matter that required to be dealt with was the fate of a Hills Fig tree located in the rear yard of the Adamsons’ property. We held that that tree required to be removed and that the reason why that tree required to be removed, in response to its state satisfying the test pursuant to s 10(2)(b) of the Trees Disputes Between Neighbour’s Act 2006, was that it was a likely risk of injury:

• first, to residents in the Joaquims’ property; and
• second, if the part that was a risk to residents in the Joaquims’ property were removed, the remainder of the tree would be a risk to residents of the Adamsons’ property.

3 We held that the cause of the need to remove the tree was because Mr Joaquim or persons acting on his behalf had poisoned the tree. Thus, as discussed in the judgment, the reason for removal of the tree lay entirely in the hands of the applicants of the proceedings. As a consequence of that, in our reserved decision, we made a number of orders – the effect of which (in particular, order 14), was that Mr and Mrs Joaquim were to reimburse Mr and Mrs Adamson for the cost of removing the Hills Fig and a small adjacent eucalypt (whose removal was necessary as a consequence of the removal of the fig), but that they were to receive a minor credit (of some $295) for compensation for damage to their property.

4 It is fair to say that the only major issue upon which the Joaquims succeeded was an issue of their own causing and the functional outcome caused the cost burden of the orders arising to fall on them.

5 This is important to note in the context that on both those occasions, that is 29 May and 30 June, Mr and Mrs Joaquim were represented by Mr Caffrey, a member of the New South Wales Bar. Mr Caffrey was placed on notice, expressly, during the course of the 29 May hearing on-site, that, on the basis of our inspection of the Hills Fig tree, he needed to be made aware of and put on notice that he needed to deal with (at the resumed hearing) the possibility that orders adverse to the interests of his clients would be made.

6 After the conclusion of the hearing on 30 June, in order to prepare our written judgment, it was necessary for us to obtain a transcript of Mr Caffrey’s submissions because we needed to reproduce a number of elements of Mr Caffrey’s submissions in the course of the judgment and, in part, because his submissions were at times difficult to understand, at times bordering on incoherence and, as we had occasion to remark in the course of the judgment at times, despite his professional qualifications, displayed a significant lack of understanding of the difference between evidence and submissions.

7 However, Mr Caffrey is a member of the Bar and, although we have given assistance (as is appropriate for us to do so) this morning to Mr and Mrs Joaquim as they are now self-represented litigants in these proceedings, the Court is entitled to expect that those who are professionally represented are represented by persons who make appropriate forensic judgments on their behalf during the course of proceedings. In this context, in the substantive proceedings, Mr Caffrey made no submissions about the appropriate nature of any orders that might be made against his clients – apart from resisting the making of any such orders.

8 During the course of the proceedings this morning, Mr and Mrs Joaquim have relied on the provisions of s 23 of the Land and Environment Court Act 1979 which deals with the Court’s order making powers. That order making power was exercised by us on 2 October in our decision where, at para 120, two orders were made by consent concerning the trees at the front of Mr and Mrs Adamsons’ property to which they had readily agreed to their removal and, at para 121 of the judgment, we made a variety of orders (totalling some further seventeen orders) dealing with the contested issues and the procedural consequences of the orders arising out of those contested issues.

9 Mr and Mrs Joaquim now seek, by Notice of Motion (which we have dealt with on the basis of our understanding of the outcome of that which they seek), to revisit the basis upon which the Hills Fig tree would be removed. We have done so giving effect to what we understand is their intention rather than quibbling about the precise legality of the appropriate words being used in the Notice of Motion – as they are self-represented, we have proceeded to deal with the matter on that basis.

10 The application by the Notice of Motion is made to revisit the orders pursuant to Part 36 r 16(1) of the Uniform Civil Procedure Rules 2005. That rule permits the Court to set aside or vary a judgment or order if a Notice of Motion for setting aside or variation is filed before the entry of the judgment or order. The orders that were made on 2 October have not been entered and thus the ability exists for us to do so.

11 As we drew to the attention of Mr and Mrs Joaquim during the course of these proceedings, the circumstances under which it is appropriate for a matter to be reopened after orders have been pronounced was considered by the High Court in Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300; (1993) 67 ALJR 270 (21 April 1993). It is clear from the majority decision in the High Court that the grounds upon which such a reopening ought be permitted are quite narrow and should only be permitted on a basis where either a party has not had an opportunity to be heard on a critical matter or where there is some other matter in the interests of justice (such as an intervening decision of a superior court or the like, to give but one example) that demanded that this occur.

12 In this instance, Mr and Mrs Joaquim were specifically provided with the opportunity, through Mr Caffrey, their legal representative (on 29 May, he having been put on express notice on that date of the necessity to deal with the consequences or possibility of adverse orders against his clients), on 30 June – when, some four and half weeks or so later, the matter resumed, he had the opportunity to make any submissions on that basis and did not do so. It is not appropriate for us to speculate what might be the forensic reasons behind that failure. There is, however, consistent with what has been discussed by the High Court in Autodesk, no doubt in our mind that an appropriate opportunity was given and not availed of and that therefore there is no basis upon which we could revisit the orders that were pronounced on 2 October 2009.

13 However, if we are wrong in reaching that conclusion and we ought to have permitted the matter to be reopened, the Notice of Motion in itself is a futility.

14 The reason for that is the request by Mr and Mrs Joaquim that Mr Adamson be required to obtain three quotations and accept the middle of the range had, in fact – on the uncontested evidence that we have before us from Mr Adamson – been the process that he undertook. Therefore, as a matter of discretion it would not have been appropriate for us to intervene.

15 However, we also note Mr and Mrs Adamson were under no obligation to have followed that course because the orders did not require them to do so. Whether any moneys expended by Mr and Mrs Adamson, in carrying out the orders that we pronounced on 2 October, were appropriate to be expended or not is a matter that we are not the appropriate tribunal to hear and determine – that is a matter, if necessary, that will be dealt with in another place if enforcement procedures need to be undertaken for giving effect to the order for reimbursement of the Adamsons’ costs in removing the tree poisoned by the Joaquims.

16 The final reason why, even if Mr Adamson had not undertaken that which Joaquims have sought (which Mr Adamson had done but was under no obligation to disclose to the Joaquims that he had done so) is the fact that at the time the Notice of Motion was filed, that is on 29 October 2009, the tree removal had already substantially commenced that morning and was completed at some time on that day. That removal rendered it impossible, even had Mr and Mrs Adamson not commenced the removal process using three quotations as I have earlier described, to comply with any amended order as sought.

17 Mr Adamson has given evidence as to the reasons why, although we had allowed until February 2010 for the removal of the tree, he and his wife had undertaken that removal earlier. We have his uncontested evidence, as a consequence of the activities involving the Hills Fig (the death of which we have held were caused specifically by actions by or on behalf of Mr and Mrs Joaquim, the applicants in these proceedings), Mr and Mrs Adamson had felt that they were unable to continue living on their property in light of those events. They had decided to sell their property, such sale being effected by contract entered into at the end of September 2009 with settlement and possession to be effected by 9 November 2009. It was therefore entirely reasonable for Mr and Mrs Adamson, under these circumstances, to react promptly to the orders made on 2 October 2009 and to undertake the Hills Fig tree removal activity in the fashion that they have done.

18 As a consequence, we are satisfied that even if it were appropriate for us to consider, which we do not think is the case in light of the High Court’s decision in Autodesk, the question of varying the orders – as a matter of discretion we would also decline to do so not merely on the grounds of such exercise being a futility but that there has not been any unreasonable activity, whatsoever, on behalf of the Adamsons in complying with the orders.

19 The consequence of all of the foregoing is that the Notice of Motion is dismissed, as there is no possible foundation upon which it could have been brought or required to be granted. The second Notice of Motion of Mr and Mrs Adamson concerning costs is adjourned for hearing before the Acting Registrar and that hearing is to be on 11 November.

Senior Commissioner Commissioner of the Court