Cai v Fairfield City Council
[2022] NSWLEC 58
Para 104
…act are alleged in subs 14 as summarised above in [56], with eleven matters identified. As Preston CJ stated recently in Cai v Fairfield City Council [2022] NSWLEC 58 at [38]:…
Mildred v Steinhauer
[2022] NSWLEC 1148
Para 1
…with his wife which shares a common boundary with the Respondent’s land. The Respondent opposed the removal of her tree. In Mildred v Steinhauer [2022] NSWLEC 1148 the Acting Commissioner ordered pruning of the tree with the Appellant to pay 70% of that cost inter alia. The Appellant has commenced an appeal pursuant…
Braun v Basser
[2021] NSWLEC 1510
Para 22
…issioner concluded that the tree was in good health and no indications suggested poor stability or anchorage at [38]. The facts of Braun v Basser [2021] NSWLEC 1510 ( Braun ) were distinguished at [39] and [40]. In that case the tree was of a different species and was determined to be structurally unstable whereas th…
Burnham v Ross
[2021] NSWLEC 1339
Para 19
…Various cases submitted by the Appellant of Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29, Burnham v Ross [2021] NSWLEC 1339, Channon & anor v Norton & anor [2015] NSWLEC 1391, Li v Fang [2018] NSWLEC 33 ( Li v Fang ) were considered and distinguished by the Acting Commissioner due to their different facts, at [2…
Woods v Sleeman
[2020] NSWLEC 1513
Para 38
…ess these criticisms including the criticism that he had not stated that he had complied with the Expert Witness Code of Conduct. In Wood v Sleeman [2020] NSWLEC 1513 ( Sleeman) at [25] a commissioner handled this differently in stating that he did not consider the absence of reference to the Code of Conduct showed a…
RebelMH Neutral Bay Pty Limited v North Sydney Council
[2019] NSWCA 130
Para 73
…ct v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379; [2009] NSWCA 138 at [197]-[201]; RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 at [73].…
Council of the City of Sydney v Vision Land Glebe Pty Ltd
[2019] NSWLEC 60
Para 84
…t a question of law: McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 at 9; Council of the City of Sydney v Vision Land Glebe Pty Ltd (2019) 243 LGERA 25; [2019] NSWLEC 60 at [84]. Similarly, to make a finding of fact that is against the weight of the evidence is also to make an error of fact not law: Azzopardi v Tasman…
Initial Action Pty Ltd v Woollahra Municipal Council
[2018] NSWLEC 118
Para 118
…nces in Boral Cement at [134]-[136]. Chief Justice Preston did so more recently in Initial Action v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [135]-[141]. The observations in both matters concerning a remitter order where the error upheld concerns a failure to accord procedural fairness…
Comcare v Wuth (No 2)
[2018] FCAFC 60
Para 73
…The Court is not generally required to identify its deliberations: Comcare v Wuth (2018) 260 FCR 89; [2018] FCAFC 13 ( Wuth ) at [27]; Aronson and Groves at [9.180]. In Wuth , Flick J (with whom Siopis J agreed, Perry J concurring in the result but writing separately) stated at [27]-[28]:…
Li v Fang
[2018] NSWLEC 33
Para 19
…of Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29, Burnham v Ross [2021] NSWLEC 1339, Channon & anor v Norton & anor [2015] NSWLEC 1391, Li v Fang [2018] NSWLEC 33 ( Li v Fang ) were considered and distinguished by the Acting Commissioner due to their different facts, at [21]-[26].…
Fang v Li & Anor
[2017] NSWLEC 1503
Para 54
…aim for damages with considerations relating to prevention of damage, two distinct matters per Thronberry v Packer [2010] NSWLEC 1069 and Fang v Li [2017] NSWLEC 1503. No claim for compensation was made by the Appellant, the claim is for removal of a tree to prevent further damage and/or injury.…
McPherson v Lake
[2017] NSWLEC 1081
Para 22
…pplicant is injured and that the person can be injured on other than the applicant’s land. At [37] the Acting Commissioner cited McPherson v Lake [2017] NSWLEC 1081 ( McPherson ) at [10] where the test for what the Court must consider under s 10(2)(b) is discussed. The Acting Commissioner concluded that the tree was…
Bradley v Federico
[2016] NSWLEC 1381
Para 63
…is fairly well settled, as set out in the annotated guide to the Trees Act found on the Court’s website at p 17, see also Bradley v Federico & Anor [2016] NSWLEC 1381 ( Bradley v Federico ); Page v Lang [2012] NSWLEC 1205 ( Page v Lang ). In Page v Lang at [24], Galwey AC held that generally the cost of removing the…
Channon v Norton
[2015] NSWLEC 1391
Para 19
…es submitted by the Appellant of Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29, Burnham v Ross [2021] NSWLEC 1339, Channon & anor v Norton & anor [2015] NSWLEC 1391, Li v Fang [2018] NSWLEC 33 ( Li v Fang ) were considered and distinguished by the Acting Commissioner due to their different facts, at [21]-[26].…
Hoy v Coffs Harbour City Council
[2015] NSWLEC 128
Para 67
…I outlined the principles to be applied in determining a s 56A appeal in Hoy v Coffs Harbour City Council [2015] NSWLEC 128 ( Hoy) at [7]-[11] and it is useful to set these out as they are applicable to this appeal:…
The Presbyterian Church (New South Wales) Property Trust v Woollahra Municipal Council
[2015] NSWLEC 47
Para 70
…SHCAG Pty Ltd [2013] NSWLEC 203 ( Boral Cement ) at [34]; The Presbyterian Church (New South Wales) Property Trust v Woollahra Municipal Council [2015] NSWLEC 47 at [22] inter alia.…
NBNB v Minister for Immigration and Border Protection
[2014] FCAFC 39
Para 145
…on ” of the potential relevance of that matter is whether the party is represented: cf. NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39 at [145], (2014) 220 FCR 44 at 80 per Buchanan J. On the facts of the present case, the parties were represented by Counsel – but, on the facts, no indicatio…
Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc
[2014] NSWCA 105
Para 71
…In Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 at [38] the Court of Appeal emphasised that the requirement of informality mandated by s 38(1) of the LEC Act does not abrogate the requirements of procedural fairness in Class 1 proceedings, and by analogy…
Boral Cement Pty Ltd v SHCAG Pty Ltd; Minister for Planning and Infrastructure v SHCAG Pty Ltd
[2013] NSWLEC 203
Para 70
…g has been applied subsequently including by me in Boral Cement Pty Ltd v SHCAG Pty Ltd; Minister for Planning and Infrastructure v SHCAG Pty Ltd [2013] NSWLEC 203 ( Boral Cement ) at [34]; The Presbyterian Church (New South Wales) Property Trust v Woollahra Municipal Council [2015] NSWLEC 47 at [22] inter alia.…
Botany Bay City Council v Pet Carriers International Pty Ltd
[2013] NSWLEC 147
Para 70
…In Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 at [99]-[100], following the High Court of Australia’s decision in Kostas v HIA Insurance Service Pty Ltd (2010) 241 CLR 390; [2010] HCA 32, Preston CJ took the view that a failure to accord procedural fairness in…
Page v Lang
[2012] NSWLEC 1205
Para 63
…de to the Trees Act found on the Court’s website at p 17, see also Bradley v Federico & Anor [2016] NSWLEC 1381 ( Bradley v Federico ); Page v Lang [2012] NSWLEC 1205 ( Page v Lang ). In Page v Lang at [24], Galwey AC held that generally the cost of removing the tree falls to the owner unless in exceptional circumsta…
O' Donnell v Sutherland Shire Council
[2011] NSWLEC 184
Para 23
…ter for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291, O’ Donnell v Sutherland Shire Council [2011] NSWLEC 184 at [23].…
Edyp v Brazbuild Pty Ltd
[2011] NSWCA 218
Para 147
…9) 170 LGERA 298 at [29], [133]-[136] and [191]. The question must also arise from a contest or dispute between the parties: Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 at [147], [160] per Basten JA. The merits of a commissioner’s decision cannot be the subject of a s 56A appeal. 8 An appeal under s 56A is “on a ques…
Smith & Hannaford v Zhang & Zhou
[2011] NSWLEC 29
Para 19
…Various cases submitted by the Appellant of Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29, Burnham v Ross [2021] NSWLEC 1339, Channon & anor v Norton & anor [2015] NSWLEC 1391, Li v Fang [2018] NSWLEC 33 ( Li v Fang ) were considered and distinguished by the Acting Commissioner due to their different facts, at…
Southon & Ors v Gordon Plath on behalf of the Department of Environment and Climate Change
[2010] NSWCCA 292
…the issues presented by them: see by analogy Southon & Ors v Gordon Plath on behalf of the Department of Environment and Climate Change [2010] NSWCCA 292; (2010) 181 LGERA 352 at [79]. 11 An approach to finding error that is nit-picking with an eye to identifying error is not permissible, as identified in numerous a…
Kostas v HIA Insurance Services Pty Ltd
[2010] HCA 32
Para 70
…16; [2013] NSWLEC 147 at [99]-[100], following the High Court of Australia’s decision in Kostas v HIA Insurance Service Pty Ltd (2010) 241 CLR 390; [2010] HCA 32, Preston CJ took the view that a failure to accord procedural fairness in the making of a decision disposing of proceedings in Class 1, 2 or 3 of the C…
Thornberry & anor v Packer & anor
[2010] NSWLEC 1069
Para 54
…operty (sub 12) and confused a claim for damages with considerations relating to prevention of damage, two distinct matters per Thronberry v Packer [2010] NSWLEC 1069 and Fang v Li [2017] NSWLEC 1503. No claim for compensation was made by the Appellant, the claim is for removal of a tree to prevent further damage and…
Sydney Water Corporation v Caruso
[2009] NSWCA 391
…4) 86 NSWLR 527 at [4]. That question must also be sufficiently material that a wrong answer vitiates the decision: Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298 at [29], [133]-[136] and [191]. The question must also arise from a contest or dispute between the parties: Edyp v Brazbuild Pt…
Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council
[2009] NSWCA 138
Para 197
…ncil v Manousaki (1988) 66 LGRA 330 at 333-334; Minister Administering Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379; [2009] NSWCA 138 at [197]-[201]; RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 at [73].…
ISPT Pty Ltd v Valuer General
[2009] NSWCA 31
…a s 56A appeal. 8 An appeal under s 56A is “on a question of law” not limited, however, to “an error of law”: ISPT Pty Ltd v Valuer General [2009] NSWCA 31 (2009) 165 LGERA 25 at [3] per Allsop P. In the absence of any statutory indication of the weight to be given to various considerations, an allegation that ins…
Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council
[2008] NSWLEC 318
Para 87
…In Murlan Consulting Pty Limited v Ku-Ring-Gai Municipal Council and Anor [2008] NSWLEC 318 at [51]-[54] I found that the Ebner test was applicable to commissioners, albeit differences between court proceedings and other decision-making must sometimes be recognised and accommodated ( Ebner at [4]) which finding was…
Turner v Bennett
[2008] NSWLEC 1364
Para 52
…In Turner v Bennett [2008] NSWLEC 1364 ( Turner ) at [19] Thyer AC held that injury in the future need only be likely.…
Robson v Leischke
[2008] NSWLEC 152
…e v Lang [2012] NSWLEC 1205 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 The Pres…
Yang v Scerri
[2007] NSWLEC 592
Para 48
…im that the Court’s jurisdiction was enlivened under s 10(2)(a) on the basis that no damage would occur in the near future applying Yang v Scerri [2007] NSWLEC 592 (sub 10). The Appellant asserted on appeal that damage would likely occur within one year and this was more probable than not to occur.…
Black v Johnson (No 2)
[2007] NSWLEC 513
Para 64
…s of the remedial tree works ordered when the Respondent owns the tree (sub 18). The Acting Commissioner incorrectly relied on Black v Johnson (No 2) [2007] NSWLEC 513 ( Black v Johnson No 2 ) at [69]. That case deals with damage to property and remediating that damage, not the cost of pruning a tree. The Respondent…
Barker v Kyriakides
[2007] NSWLEC 292
Para 20
…Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 ( Robson v Leischke ) at [171]. Reference is made to the Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 ( Barker ) at [20], cited at [33].…
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs
[2006] HCA 63
Para 48
…tary of State for Trade and Industry [1975] AC 295 at 369 per Lord Diplock; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [48], (2006) 228 CLR 152 at 166 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. Any other approach would have the potential to lead to a nev…
Segal v Waverley Council
[2005] NSWCA 310
…mmissioner or judge of the Court is required to address relevant material issues by exposing his or her reasoning: Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 at [43] per Tobias JA, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259 per Kirby P, at 279 per McHugh JA. The Court at f…
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council
[2003] NSWCA 289
…or Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41, Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 at [57], Hoskins v Waverley Council [1999] NSWLEC 236 at [11]-[12]. 9 A commissioner or judge of the Court is required to address relevan…
Re Minister for Immigration and Multicultural Affairs; Ex parte MIAH
[2001] HCA 22
Para 72
…n for judicial decision makers to disclose their thinking, in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [31] Gleeson CJ and Hayne J stated:…
Ebner v Official Trustee in Bankruptcy
[2000] HCA 63
Para 85
…is generally considered by reference to the Ebner test as identified by the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]:…
Comcare v Forbutt
[2000] FCA 837
Para 58
…first instance is not required to “deal with every argument raised and every possibility that could be adverted to”: Comcare v Forbutt [2000] FCA 837 at [58] per Heerey J cited by Tobias JA in Segal at [71]. 10 The judgment should be read on the basis that the Commissioner and the parties were present and unders…
Hoskins v Waverley Council
[1999] NSWLEC 236
Para 57
…at 41, Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 at [57], Hoskins v Waverley Council [1999] NSWLEC 236 at [11]-[12]. 9 A commissioner or judge of the Court is required to address relevant material issues by exposing his or her reasoning: Segal v Waverley Council…
Minister for Immigration and Ethnic Affairs v Wu Shan Liang
[1996] HCA 6
…whole, not selecting parts of the judgment and reading them out of context: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291, O’ Donnell v Sutherland Shire Council [2011] NSWLEC 184 at [23].…
Stead v State Government Insurance Commission
[1986] HCA 54
Para 75
…address and did not have the opportunity to do. Application of the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 at 145-146 suggests this represents a failure on the Acting Commissioner’s part to ensure the Appellant was able to address a key matter relevant to hi…
Minister for Aboriginal Affairs v Peko-Wallsend Ltd
[1986] HCA 40
…eight was given to particular evidence is generally insufficient as a ground of appeal: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41, Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 at [57], Hoskins v Waverley Council…
[1975] AC 295
[1975] AC 295
…es of an administrative decision-maker is, of course, well-established: e.g., F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369 per Lord Diplock; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [48], (2006) 228 CLR 152 at 166 p…
Azzopardi v Tasman UEB Industries Ltd
2002 SC13437
…to make a finding of fact that is against the weight of the evidence is also to make an error of fact not law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156. Even if the finding of fact were to be perverse or unreasonable or the reasoning whereby the finding of fact was reached was demonstrably…
Soulemezis v Dudley (Holdings) Pty Ltd
(1987) 10 NSWLR 24
Para 43
…ant material issues by exposing his or her reasoning: Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 at [43] per Tobias JA, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259 per Kirby P, at 279 per McHugh JA. The Court at first instance is not required to “deal with every argument raised and every possibility th…
[2018] FCAFC 13
[2018] FCAFC 13
Para 73
…The Court is not generally required to identify its deliberations: Comcare v Wuth (2018) 260 FCR 89; [2018] FCAFC 13 ( Wuth ) at [27]; Aronson and Groves at [9.180]. In Wuth , Flick J (with whom Siopis J agreed, Perry J concurring in the result but writing separately) stated at [27]-[28]:…