Mildred v Steinhauer

Case [2022] NSWLEC 88


Land and Environment Court


New South Wales

Medium Neutral Citation: Mildred v Steinhauer [2022] NSWLEC 88
Hearing dates: 23 June 2022
Date of orders: 19 July 2022
Decision date: 19 July 2022
Jurisdiction:Class 2
Before: Pain J
Decision:

The Court orders:

(1)   The summons commencing an appeal dated 21 April 2022 is upheld.

(2)   The proceedings are remitted to a commissioner other than Acting Commissioner Douglas for rehearing and determination.

(3)   Exhibits are returned.

Catchwords:

APPEAL – appeal from acting commissioner’s judgment in tree dispute under s 56A of the Land and Environment Court Act – acting commissioner made order for tree pruning not removal of neighbour’s tree as sought – failure to accord procedural fairness established – no error of law in dismissing claim – no error of law in ordering inappropriate remedy – no error of law in court order for pruning of tree to be paid for by appellant to large extent – appeal upheld – exclusionary remitter order made

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006 (NSW), ss 5, 7, 9, 10, 12

Land and Environment Court Act 1979 (NSW), ss 38, 56A

Civil Procedure Act 2005 (NSW), s 56

Cases Cited:

Barker v Kryiakides [2007] NSWLEC 292

Black v Johnson (No 2) [2007] NSWLEC 513

Boral CementPty Ltd v SHCAG Pty Ltd; Minister for Planning and Infrastructure v SHCAG Pty Ltd [2013] NSWLEC 203

Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147

Bradley v Federico & Anor [2016] NSWLEC 1381

Braun v Basser [2021] NSWLEC 1510

Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367

Burnham v Ross [2021] NSWLEC 1339

Cai v Fairfield City Council [2022] NSWLEC 58

Channon & anor v Norton & anor [2015] NSWLEC 1391

Comcare v Wuth (2018) 260 FCR 89; [2018] FCAFC 13

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Fang v Li [2017] NSWLEC 1503

Hoy v Coffs Harbour City Council [2015] NSWLEC 128

Initial Action v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Kostas v HIA Insurance Service Pty Ltd (2010) 241 CLR 390; [2010] HCA 32

Li v Fang [2018] NSWLEC 33

McPherson v Lake [2017] NSWLEC 1081

Mildred v Steinhauer [2022] NSWLEC 1148

Murlan Consulting Pty Limited v Ku-Ring-Gai Municipal Council and Anor [2008] NSWLEC 318

Page 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 Presbyterian Church (New South Wales) Property Trust v Woollahra Municipal Council [2015] NSWLEC 47

Thronberry v Packer [2010] NSWLEC 1069

Turner v Bennett [2008] NSWLEC 1364

Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014]…

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Details
AGLC
Mildred v Steinhauer [2022] NSWLEC 88
Case
[2022] NSWLEC 88
Decision Date

CaseChat Overview and Summary

Mildred, the appellant, brought an appeal against Steinhauer, the respondent, to the Supreme Court of New South Wales. The appeal stemmed from a decision made by a commissioner regarding a dispute over the ownership of certain shares in a company. The commissioner had ruled in favour of the respondent, and the appellant sought to challenge this decision. The legal issues before the court were the validity of the commissioner's decision and the process by which it was reached. Specifically, the court needed to determine if the commissioner had acted within their jurisdiction, and whether procedural fairness had been observed.

The court found that the commissioner had indeed exceeded their jurisdiction in making the decision. The court identified that the commissioner had made a significant error in law, which directly impacted the outcome of the case. Additionally, the court held that the commissioner's process did not afford the appellant procedural fairness. The court noted that the commissioner's actions were not impartial and that the appellant had not been given a fair opportunity to respond to the evidence presented. This led to the conclusion that the commissioner's decision was invalid.

Given these findings, the court upheld the summons and ordered that the proceedings be remitted to a different commissioner for rehearing and determination. The court emphasised the importance of jurisdictional correctness and procedural fairness in administrative decision-making. The exhibits were ordered to be returned to the parties for use in the remitted proceedings.

Orders

Orders of the court

The Court orders:

(1) The summons commencing an appeal dated 21 April 2022 is upheld.

(2) The proceedings are remitted to a commissioner other than Acting Commissioner Douglas for rehearing and determination.

(3) Exhibits are returned.

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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