Newman v Smith (No 2)

[2008] NSWLEC 1335

Land and Environment Court

of New South Wales

CITATION:	Newman v Smith (No 2) [2008] NSWLEC 1335 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT Dennis Newman RESPONDENTS Graham and Pam Smith
FILE NUMBER(S):	20313 of 2008
CORAM:	Moore C - Fakes AC
KEY ISSUES:	Practice and Procedure - Trees (Neighbours) :- Application to reopen after decision given
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Newman v Smith [2008] NSW LEC 1293 Autodesk Inc v Dyason (No 2) 176 CLR 300
DATES OF HEARING:	15 August 2008
EX TEMPORE JUDGMENT DATE:	15 August 2008
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENTS In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
FAKES AC

15 August 2008

08/20313 Dennis Newman v Graham and Pam Smith

JUDGMENT

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

1 COMMISSIONER MOORE: This is our joint decision on an application to reopen a hearing which had been conducted pursuant to the Trees (Disputes Between Neighbours) Act 2006. The original application was made by Mr Newman and filed with the Court on 3 April 2008.

2 We attended the site on Friday 4 July, conducted an onsite hearing during the course of which written and oral evidence was heard and inspection was undertaken of the trees on the Smith’s property and inspection undertaken of locations on Mr Newman’s property to which he wished to draw our attention. The site hearing, informal as it was, was conducted in Mr Smith’s backyard.

3 As a consequence, the conclusion was that, after a short adjournment on site, we gave a decision which (for a variety of reasons of both jurisdiction and discretion) was that Mr Newman’s application was dismissed. That decision was recorded and subsequently transcribed and has been published as Newman v Smith [2008] NSW LEC 1293.

4 During the period after the onsite hearing and the delivery of that decision (but prior to entry of the proposed orders), Mr Newman wrote a letter addressed to me which, omitting irrelevant matters, said:

“I now advise that I am compiling new evidence which will confirm without doubt the validity of the application. As the result of the application has not yet been placed on public record I submit that it is not finalised”.

5 The Registrar of the Court referred that letter to me and, after discussing Mr Newman’s letter with me, she wrote to Mr Newman indicating that, as the orders of the Court had not been entered to give effect to our decision, I proposed to treat Mr Newman’s letter as an application to reopen the hearing – that being a course of action permissible under the Uniform Civil Procedure Rules 2005. As the decision of 4 July had been transcribed by that time, the Registrar’s letter of 14 July enclosed a copy of that decision.

6 The third paragraph of the Registrar’s letter said as follows:

“Though the matter which will be dealt with by the Commissioners on that occasion is an application to reopen the hearing, Commissioner Moore has asked me to inform you that, if the Commissioners grant leave to reopen, any further hearing on the merits will proceed forthwith”.

7 The letter then proceeded to establish a timetable for the filing and serving of additional material by both Mr Newman and the Smiths and Baulkham Hills Shire Council (should the Council wish to take part in the proceedings).

8 Mr Newman subsequently sent a further letter, by facsimile, to the Court dated 21 July indicating that he was unable to obtain a report from his arborist within the timeframe originally set for the filing and serving of new material. As a consequence of that letter, on 23 July the Registrar wrote a further letter to Mr Newman which granted an extension of time as requested but included the following:

“As earlier advised, the first matter which will be dealt with by the Commissioners on 15 August is an application to reopen the hearing. There is no automatic right to reopen and the Commissioners will determine as a preliminary matter whether such leave should be given”.

9 The letter then advised the revised timetable for the provision of material.

10 After the matter was originally lodged with the Court, the matter was set down for a preliminary hearing which took place on 23 May. Mr Newman and the Smiths were present on that occasion.

11 This background is relevant to our consideration of the question as to whether or not an application to reopen should be granted. The relevant decision which governs our approach to this preliminary question is the decision of the High Court in Autodesk Inc v Dyason (No 2) 176 CLR 300.

12 In that case Dawson J said, at p 317:

“Whilst the Court has jurisdiction to entertain an application to vacate orders which it has made in all events before those orders have been perfected by entry of judgment” - that not having occurred in this case - “it is a jurisdiction to be exercised cautiously bearing in mind the public interest in the finality of litigation”. In Wentworth v Woollahra Municipal Council , the Court said:

“The circumstances in which this court will reopen a judgment which it has pronounced are extremely rare. The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution. Generally speaking it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard”.

13 It is against that quite narrow test set by the High Court that we proceed to consider Mr Newman’s application.

14 Mr Newman has provided to us a variety of material, which has been admitted as Exhibit A, upon which he would seek to rely if the application to reopen were to be successful. In order to assess whether the test set by the High Court has been satisfied, it is now necessary to set out and consider the procedural steps which followed the lodgement of the application at and from the preliminary hearing on 23 May.

15 At the preliminary hearing on 23 May, I made the relevant ones of the Standard Tree Dispute Directions which are publicly available on the Court’s website. Directions 5, 6 and 7 of those directions are instructions to the applicant for the provision of information relating to merit considerations with respect to the trees and the relevant matters arising under s 10(2)(a) and (b) of the Act and, if a claim for compensation is involved, as is the case here, for the provision of the documents relating to that claim for compensation.

16 Standard Tree Direction 5 (with the appropriate date inserted in it) and Standard Tree Directions 6 and 7 for this case were given as follows:

“5. The applicant is to lodge with the Court and give a copy to the owner of the tree and to the council by 4.30pm on 3 June any further statements, reports, affidavits, photographs or any other documents upon which the applicant intends to rely.

6. For compliance with direction (5), for all claims for compensation for damage or claims for orders to rectify damage the applicant is to provide details including copies of any correspondence of when and how the damage was brought to the attention of the owner of the tree (if this information has not been provided as part of the application).

7. The applicant’s documents are to detail the basis of any amount claimed for past damage (including all relevant receipts and/or invoices( and any quotations for proposed works which the applicant seeks the court orders be undertaken (whether such proposed works are to the applicant’s property or to the property where the tree is located)”.

17 Issues relating to the subpoenaing of third party documents were not required to be the subject of directions and Standard Tree Directions 10 and 11, imposing similar obligations on the Smiths as respondents to Mr Newman’s application, to file material in reply, were given with a deadline for compliance of 12 June.

18 On 26 June, some three weeks after the expiry of the deadline for Mr Newman to provide material, he wrote a letter to the Court with attachments. That letter was received on 27 June. His letter said:

“I have been advised that an independent expert report should have been included with application. This is now enclosed from A Frasco and Associates Proprietary Limited, consulting structural engineers and building designers”.

19 That report was provided not only to the Court but also to the Smiths. Over objections during the course of the on site hearing, that report, although served significantly out of time and with limited notice to the Smiths to enable them to respond to it, was admitted as evidence in the proceedings.

20 On 4 July, we gave a decision on site (as earlier indicated) which determined that all aspects of Mr Newman’s application failed. Some of those failures, as detailed in our reasons for decision, were failures as no relevant jurisdictional test was satisfied. Others elements failed as a matter of the exercise of the Court’s discretion.

21 The additional material that has been tendered (for the purposes of its notation on the application to reopen) comprises new photographs, an update report from an arborist, a licensed builder’s statement, notes of a conversation with another neighbour, Mr Newman’s comments on our judgment and a variety of documents not relevant to this application to reopen.

22 We have carefully looked at all of that material. None of that material is material which could not have been made available by Mr Newman to us prior to or at the time of our hearing onsite.

23 Applications to reopen are not ones designed to permit a party to remedy evidentiary defects in their case by providing, to the Court, evidence which might, if it had been provided at the initial hearing, have altered findings – unless that evidence could not have been available to the party at the time of the hearing.

24 It is not a process designed to rectify inadequate preparation or any dilatory preparation of a matter. None of the so-called new material relates to anything that could not have been available to Mr Newman and, through Mr Newman, to the Smiths and to the Court at the time of hearing. That, in essence, is the nature of the submissions that Mr Smith, himself, has made in response to Mr Newman’s application to re-open.

25 We do not consider that there is any proper basis, tested against the parameters provided by the High Court in Autodesk(a decision which has been consistently applied by the Judges of this Court as the appropriate benchmark for applications to re-open), demonstrated by Mr Newman. The application to re-open is therefore refused.

26 Orders will be entered giving effect to the orders for dismissal made by us on 4 July.

Tim Moore Judy Fakes
Commissioner of the Court Acting Commissioner of the Court

29/08/2008 - Correction to given name of Second Respondent - Paragraph(s) Cover sheet; Judgment heading