Sidoti v Ross Kerr Sleeman and Heather Gaye Sleeman as Executors of the Estate of the late Keith Sleeman

[2017] NSWLEC 1573

Land and Environment Court

New South Wales

Medium Neutral Citation:	Sidoti & anor v Ross Kerr Sleeman & Heather Gaye Sleeman as Executors of the Estate of the late Keith Sleeman [2017] NSWLEC 1573
Hearing dates:	10 October 2017
Date of orders:	10 October 2017
Decision date:	10 October 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Hearing vacated - see [16]
Catchwords:	NOTICE OF MOTION: Apprehended bias; actions of an expert
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Procedural and other rulings
Parties:	Bartolomeo & Eleonora Sidoti (Applicants) Ross Kerr Sleeman and Heather Gaye Sleeman as Executors of the Estate of the late Keith Sleeman (Respondents)
Representation:	Applicants: Mr White (Barrister) Respondents: Ross and Heather Sleeman (Litigants in person) Solicitors: Applicants: Conomos & Spinak
File Number(s):	227502 of 2017
Publication restriction:	No

JUDGMENT

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

1. COMMISSIONER: On 26 July 2017 the applicants, Mr and Mrs Sidoti, lodged a Tree Dispute Application with the court. That application made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 seeks orders for the removal of a Lemon-scented gum from the front garden of the respondents’ adjoining property. The removal is sought on the basis of the applicants’ concerns that the tree poses a risk to people and property on their land.

2. Included in the application claim form is a tree report prepared at the applicants request by Mr Mark Bury, a consulting arborist.

3. In preparing for the on-site hearing that was set down for 11 October 2017, the respondents engaged their own consulting arborist, Mr Mark Hartley, to prepare a report and to review Mr Bury’s report.

4. On 20 September Mr Bury was provided a copy of Mr Hartley’s report. After receiving that report, Mr Bury emailed the applicants and evidently advised them of what he said were his previous dealings with Mr Hartley. In that email Mr Bury states that “Also Mr Hartley is a friend of Commissioner Fakes”.

5. The respondents advised the applicant’s solicitor that Mr Bury was required to attend the on-site hearing for cross-examination. This was in accordance with standard direction (15) in the Directions of The Court, made by the Registrar on 22 August 2017, which allows a party to notify a witness or any expert that they are required for cross-examination as long as at least 5 working days’ notice is given. The affidavit of the applicants’ solicitor, Ms Krystiana Danae Conomos of 6 October 2017, (Exhibit A in this Notice of Motion), records the attempts she made to contact Mr Bury.

6. On 5 October 2017, Mr Bury rang Ms Conomos and advised her that he would not be attending the on-site hearing on the basis of a claim that Mr Bury had taken out an Apprehended Violence Order (AVO) against Mr Hartley and that he had lodged a complaint about me with a Member of Parliament.

7. Ms Conomos’ affidavit attaches the email from Mr Bury to the applicants on 20 September 2017, as well as an “Application for Apprehended Personal Violence Order” made by Mark Burl [not Bury] against Mark Hartley, and the written complaint about me, which also includes complaints about TAFE teachers and council tree officers.

8. On the basis of this material, the applicants have filed a Notice of Motion seeking the following orders:

1. The hearing date of 11 October 2017 be vacated;

2. Commissioner Fakes disqualify herself from hearing proceedings number 17/227502;

3. The Applicants be granted leave to adduce further expert evidence;

4. If the Applicants be granted leave to adduce further expert evidence then the Court notes that the Applicants shall not rely upon the expert report of Mark Bury dated 16 January 2017 in these proceedings;

5. Such further orders as the Court deems suitable; and

6. Costs be reserved.

9. The reasons provided by the applicants for these orders are:

1. If Commissioner Fakes is aware of the complaint made by Mr Bury it may give rise to an actual bias or apprehended bias against the Applicants at the hearing of this matter on 11 October 2017 or in any future allocated hearing date.

2. Mark Bury’s failure to attend the hearing will likely result in the Applicants being unable to rely on the expert report authored by him and dated 16 January 2017.

10. The respondents expressed their dismay that an expert should be able to disrupt and delay court proceedings by such unreasonable actions. The respondents stated that they have found the proceedings to date very stressful and time consuming and wish the matter to be resolved as soon as possible. Their position is that should the hearing be vacated, any additional costs they may be required to incur be met by the applicants. The respondents’ statement is Exhibit 1 in these NOM proceedings.

11. In regards to costs, Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court.

Consideration

12. For the record, I do not consider Mr Hartley my “friend”. Over the last 30 plus years that I have been involved in the arboriculture industry, my only contact with Mr Hartley has been through attendance at industry events such as conferences or workshops and or during the last ten years as an Acting or Full time Commissioner of the Court, when Mr Hartley has appeared before me as an expert witness. I have never socialised with Mr Hartley.

13. Amongst other things, Mr Hartley’s written response to Mr Bury’s allegations (NOM Exhibit 2) states:

“To say that I am a friend of Commissioner Fakes is laughable. At the best the relationship would be described as strained and congenial. I have great respect for the Commissioner but often disagree with her professional opinion.”

14. As a Commissioner of the Court, I am constantly mindful of the necessity for impartiality when dealing with any matters to which I am assigned by the Chief Judge. However, while I reject each and every unsubstantiated allegation made by Mr Bury in the letter attached to the Affidavit, I am concerned that the applicants, by the actions of their expert in sowing the seeds of doubt in their minds, may have an apprehension that I may be biased against them. Although I consider it unnecessary that either arborist attend the hearing as there are written reports from both experts, I am concerned that any comments I may make, favourable or otherwise, about either report may be construed by the applicants as a manifestation of that apprehended bias.

15. In the circumstances I have determined it is prudent to recuse myself and will make orders for the hearing date to be vacated and the matter to be relisted before the assistant registrar for further directions. I note that the availability of appropriately qualified and experienced members of the Court is limited and the next available dates may be in the week before Christmas or in 2018. The applicants cannot make any complaint about this as this inconvenience to the parties, in particular the respondents and the court, arises through the unfounded accusations of their expert.

16. That said, the Orders of the Court are:

1. The hearing date of 11 October 2017 is vacated.

2. I recuse myself from hearing proceedings 17/227502.

3. The applicants are granted leave to adduce further expert evidence.

4. The applicants shall not rely upon the expert report of Mark Bury dated 16 January 2017.

5. The matter is listed before the Assistant Registrar in Court at 12.50pm on 17 October 2017 for the purpose of setting a new hearing date and a revised timetable.

______________________

Judy Fakes

Acting Commissioner of the Court

Decision last updated: 11 October 2017