Piper v Neal

[2014] NSWLEC 1042

Land and Environment Court

New South Wales

Medium Neutral Citation:	Piper v Neal [2014] NSWLEC 1042
Hearing dates:	6 February 2014
Decision date:	06 February 2014
Jurisdiction:	Class 2
Before:	Moore SC Fakes C
Decision:	Application to vacate rejected; evidence rejected
Catchwords:	Evidence
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Land and Environment Court Act 1979 Uniform Civil Procedure Rules Land and Environment Court Rules 2007
Category:	Procedural and other rulings
Parties:	J Piper (Applicant) M Neal (Respondent) Botany Bay City Council (Intervenor)
Representation:	Mr M Steinfeld, solicitor (Applicant) Mr L Chan, agent (Respondent) Mr S Shneider, solicitor (Intervenor) Steinfeld and Associates (Applicant) Houston Dearn O'Connor (Intervenor)
File Number(s):	20712 of 2013

Judgment

1. SENIOR COMMISSIONER: The respondent tree owner has filed a Notice of Motion in these proceedings seeking vacation of the hearing date and an extension of time to file documents. The third element of the Notice of Motion, seeking an order for substitution of her address for service, has been resolved by the granting of leave to Mr L Chan to appear as her agent in these proceedings for the purposes of today's hearing and for the purposes of a substantive hearing.

1. An affidavit of Ms Neal was read on the Notice of Motion and it included several matters that we need to address as part of the making of this decision. There are also two evidentiary matters that we have raised that inform the decision on whether or not to vacate the hearing - each of them relating to the late service of statements of evidence:

• one being the filing of a statement of evidence on behalf of the applicant; and
• the second being the filing of a statement of evidence in response to that statement of evidence by Botany Bay City Council - the council having been joined as the second respondent in these proceedings.

1. This decision will deal with all three of those matters.

1. First, we observe with respect to Ms Neal's affidavit that, in para 3, she asserted that she had had a serious illness and was on medication for it and that a medical certificate would be provided to the Court. No such medical certificate has been provided and, as a consequence of that - consistent with longstanding judicial practice and practice of Commissioners of this Court - we have no regard to that assertion in considering whether or not we should vacate the hearing, it being an assertion without any proper professional medical evidence in support.

1. Second, the assertion that is made, in para 5 of her affidavit, concerning a letter sent to her by the council's legal representative informing her of the council's decision not to allow the tree to be cut down is a matter to be weighed in evidence in the proceedings but has, in itself, no foundational description of any limitation on the Court's jurisdiction pursuant to the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) to hear the matter on its merits and to reach an independent determination as to what orders, if any, should be made in response to the application that has been made in the proceedings.

1. The final matter that is contained in the affidavit to which we need to respond is in para 8 where Ms Neal suggests in this affidavit dated 24 January 2014 that it has proved difficult for her to obtain advice as many of the experts and solicitors have been on holidays.

1. The matter was originally before the Court for directions on 19 November 2013. On that occasion the assistant registrar granted Mr L Chan, who is now granted a broader leave, leave to appear for that day to represent the respondent to the proceedings.

1. Having been provided with documents that enable us to reach the conclusion that the relevant provisions of the Land and Environment Court Rules 2007 and of the Land and Environment Court Act 1979 have been satisfied, Mr L Chan has been granted, as earlier noted, a broader right to represent the respondent as her agent.

1. However, on 19 November directions in the form of the standard directions for Trees Act matters were made. Relevantly, they provided that the respondent's evidence and alternative orders had to be served and filed in accordance with standard directions 9 and 10, they being required to be served and filed by 2 December 2013, well before any holiday period to which she might have adverted in para 8 of her affidavit - an affidavit as earlier noted, dated 24 January, some fortnight or so only prior to the date of the hearing and something which had, on the Court's file, not been foreshadowed at any significantly earlier time.

1. The application for vacation of the hearing date is neither supported nor opposed by the second respondent, the council, but is opposed by the representative of the applicant.

1. Given the timelines that I have outlined and the inadequacy of the supporting material in favour of the application to vacate, we decline to grant the orders sought in the first and second elements of the Notice of Motion and, as a consequence of that, the hearing will proceed on Monday 10 February on site as scheduled.

1. In order to ensure that occurs and that the respondent is not prejudiced in these proceedings, we then need to deal with the question of the witness statements of Mr P Chan, filed on behalf of the applicant, and the witness statement in response of Ms Gee filed on behalf of the second respondent. Both of those were filed significantly out of time. We appreciate that the statement of Mr P Chan of 21 January may well have been filed in response to some correspondence between the second respondent's legal representative and the applicant's legal representative but that, it seems to us, is neither here nor there.

1. It has regularly been the practice of the Court in this jurisdiction, one that is attended by significant informality in its proceedings, that the discretion that is available pursuant to the Uniform Civil Procedure Rules to dispense with strict compliance with the rules concerning expert evidence is something that would be likely to be exercised in these proceedings concerning the earlier document of Mr P Chan that was dated 18 April 2013 and had been provided as part of the applicant's original material.

1. If there is any objection to matters that might go beyond what is contained in that letter, that is a matter that is capable of being dealt with if the engineer, Mr P Chan, is to be present to give evidence during the course of the onsite hearing on Monday.

1. Similarly, any matters that Ms Gee might wish to raise in response to any material that Mr P Chan might give as part of his oral evidence or in response to anything that might be contained in the 2013 letter will be dealt with similarly during the onsite hearing if Ms Gee is present for those purposes at that time.

1. As a consequence, in addition to ruling that the hearing will proceed as scheduled, we indicate now - so that the parties are on appropriate notice, particularly the agent of the respondent who is not familiar with the Court's procedures - that we reject the witness statement of Peter Chan dated 21 January 2014 and for similar reasons of late service (and in addition, the fact that evidence-in-reply is not contemplated by the standard directions) we reject the witness statement of Julie Gee dated 28 January 2014.

1. The matter will commence onsite on the morning of 10 February at 9.30am as previously advised.

Tim Moore

Senior Commissioner

Judy Fakes

Commissioner of the Court

Decision last updated: 07 March 2014