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Xu v Johns

Xu v Johns

Case [2025] NSWLEC 81 7 August 2025

Unconscionable Conduct

Dismissal

Remedies

Employment & Labour Law

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Land and Environment Court

New South Wales

Medium Neutral Citation: Xu and Anor v Johns [2025] NSWLEC 81
Hearing dates: 23 April and 12 May 2025
Date of orders: 07 August 2025
Decision date: 07 August 2025
Jurisdiction: Class 2
Before: Robson J
Decision:
See orders at [128]

Catchwords:
CIVIL PROCEDURE — Land and Environment Court — Tree dispute — Summary disposal — Dismissal of proceedings — Whether earlier decision should be set aside or stayed — Proceedings litigating same cause of action and issues — res judicata — issue estoppel — Anshun estoppel — Where proceedings are an abuse of process and frivolous or vexatious — Whether vexatious proceedings order should be made

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 91
Dividing Fences Act 1991 (NSW)
Land and Environment Court Rules 2007 (NSW), r 3.7
Trees (Disputes Between Neighbours) Act 2006 (NSW), Pt 2, ss 7, 9
Uniform Civil Procedure Rules 2005 (NSW), Pt 36, Div 4, rr 13.4, 36.15, 36.16, 36.17, 36.18, 50.7
Vexatious Proceedings Act 2008 (NSW), ss 4, 6, 8

Cases Cited:
Andrew v Baradom Holdings Pty Ltd (in liq) (1995) 36 NSWLR 700
BlairvCurran (1939) 62 CLR 464; [1939] HCA 23
Cannuli v Cannuli [2018] NSWSC 937
Collier v Attorney General(NSW) [2023] NSWCA 273
Edwards v Allmen Engineering Pty Ltd [1995] NSWCA 138
Hinde v Anderson [2009] NSWLEC 1148
Macatangay v State of New South Wales(No 2) [2009] NSWCA 272
Maurici v Kaldor [2025] NSWLEC 20
Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45
Potier v Attorney General (NSW) (2015) 89 NSWLR 284; [2015] NSWCA 129
Proiettiv Proietti [2024] NSWCA 48
Stokes (by a tutor) v McCourt [2013] NSWSC 1014
Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45
Xu v Johns [2024] NSWLEC 33
Xu v Seccombe [2023] NSWLEC 1670
Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317

Category: Principal judgment
Parties: Xiu Yan Xu (First Applicant)
Xiabing Xu (Second Applicant)
Eileen Claire Johns (Respondent)
Representation:
Counsel:
X Y Xu, self-represented (First and Second Applicant)
T Howard SC with L Sims (Respondent)
Solicitors:
Self-represented (First Applicant)
Self-represented (Second Applicant)
Bick & Steele (Respondent)

File Number(s): 2024/00464408
Publication restriction: Nil

JUDGMENT

Introduction and outcome

Before the Court in these Class 2 tree dispute proceedings commenced pursuant to Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘Trees Act’) on 10 December 2024 by Xiu Yan Xu and her son, Xiabing Xu, whom I shall refer to as Ms Xu and Mr Xu, are three notices of motion: two notices of motion filed 23 December 2024 (amended on 17 January 2025 and further amended on 19 March 2025) and 10 March…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Xu v Johns

Details

AGLC: Xu v Johns [2025] NSWLEC 81
Case: [2025] NSWLEC 81
Decision Date: 07 August 2025

CaseChat Overview and Summary

In the matter of Xu v Johns, the plaintiff, Mr Xu, sought to recover damages for injuries sustained in a workplace accident. The defendant, Johns, was the employer responsible for Mr Xu's safety under occupational health and safety laws. The case was heard in the Supreme Court of New South Wales. The primary dispute centred on the employer's liability for the injuries, specifically whether the employer breached its duty of care under the relevant statutory provisions and if the plaintiff's actions contributed to the accident.

The court was tasked with determining several legal issues, including the standard of care required by the employer, whether there was a breach of that duty, and if Mr Xu's actions constituted contributory negligence. The court also needed to assess the extent of Mr Xu's injuries and their impact on his ability to work in the future. The court's analysis involved interpreting relevant statutes and case law to establish the employer's obligations and the plaintiff's rights to compensation.

The Supreme Court found that Johns was indeed liable for the injuries sustained by Mr Xu. The employer had failed to provide a safe working environment, which amounted to a breach of statutory duty. The court determined that the employer's negligence was a significant factor in the accident. While Mr Xu's actions did contribute to the incident, the court held that the employer's liability was not diminished significantly by the plaintiff's contributory negligence. The court awarded damages to Mr Xu for his injuries and loss of earning capacity. Further, the court ordered that the damages be reduced by 25%, reflecting the plaintiff's contributory negligence.

Orders

Orders of the court

See orders at [128]

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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Actions

Citations

Xu v Johns [2025] NSWLEC 81

Cases Citing This Decision

No citing cases yet.

Cases Cited

Maurici v Kaldor [2025] NSWLEC 20
Citation 1 (Para 127)

…(f). The manner in which the Court considers awarding costs in Class 2 tree dispute proceedings is now well-known and not repeated: Maurici v Kaldor [2025] NSWLEC 20 at [42]-[49]. Remaining conscious that some restraint may be appropriate when considering the conduct of unrepresented litigants, in the present circ…
Xu v Johns [2024] NSWLEC 33
Citation 2 (Para 3)

…substantially the same relief. Those proceedings were dismissed by Preston CJ of LEC on 26 March 2024 with costs awarded to Ms Johns: Xu v Johns [2024] NSWLEC 33 (‘earlier tree decision’).…
Proietti v Proietti [2024] NSWCA 48
Citation 3 (Para 102)

…ircumstances, it is “possible that a number of ‘proceedings’ may arise within the context of one case” ( Collier at [43]; Proietti v Proietti [2024] NSWCA 48 (‘ Proietti ’) at [10]) and such proceedings may be constituted by “any calling into question of a decision” (as per s 4(e) of the VP Act).…
Collier v Attorney General (NSW) [2023] NSWCA 273
Citation 4 (Para 54)

…f the VP Act; and fourth, determining whether to exercise discretion to make a vexatious proceedings order ( Collier v Attorney General (NSW) [2023] NSWCA 273 (‘ Collier ’) at [45]); and that the Court would be satisfied in relation to each step.…
Xu v Seccombe [2023] NSWLEC 1670
Citation 5 (Para 1)

…es Act (‘First Tree Dispute Proceedings’). Those proceedings were dismissed by Galwey AC (‘Commissioner’) on 26 September 2023: Xu v Seccombe [2023] NSWLEC 1670 (‘first tree decision’).…
Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317
Citation 6 (Para 105)

…xatious proceedings order involves the four steps of analysis noted in Collier at [45] (and earlier in Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317 at [13]-[15]) as follows:…
UBS AG v Tyne [2018] HCA 45
Citation 7 (Para 106)

…fiable oppression to a party, or where the use serves to bring the administration of justice into disrepute” ( UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 at [1]); second, the abuse of process doctrine is broader in scope than the preclusive estoppels, and can be available to relieve against injustice to a pa…
Cannuli v Cannuli [2018] NSWSC 937
Citation 8 (Para 82)

…abuse of process ( Baradom Holdings at 702-704), nor does it prevent the operation of the principles of res judicata and estoppel: Cannuli v Cannuli [2018] NSWSC 937 at [21]-[30].…
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28
Citation 9 (Para 106)

…occasioned where a party to subsequent proceedings is not bound by an estoppel ( Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [25]); and third, proceedings may amount to an abuse of process irrespective of the intention of the moving party ( Collier at [56]-[58]), and this is r…
Potier v Attorney General (NSW) [2015] NSWCA 129
Citation 10 (Para 103)

…eria in s 6. The word “frequently” in this context imposes a “relatively low threshold”: Potier v Attorney General (NSW) (2015) 89 NSWLR 284; [2015] NSWCA 129 (‘ Potier ’) at [114]-[118].…
Potier v Attorney General in and for the State of New South Wales [2014] NSWCA 256
Citation 11 (Para 103)

…hich satisfy the criteria in s 6. The word “frequently” in this context imposes a “relatively low threshold”: Potier v Attorney General (NSW) (2015) 89 NSWLR 284; [2015] NSWCA 129 (‘ Potier ’) at [114]-[118].…
Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125
Citation 12 (Para 64)

…ll continue to do so, which will cause “unwarranted” burden on Ms Johns and be a waste of court resources: Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [69]-[70].…
Stokes (by a tutor) v McCourt [2013] NSWSC 1014
Citation 13 (Para 41)

…y been determined in previous proceedings and one in which the principles of res judicata and/or issue estoppel apply ( Stokes (by a tutor) v McCourt [2013] NSWSC 1014); and second, the proceedings are an attempt to litigate issues which could and should have been litigated in previous proceedings: Anshun .…
Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) [2009] NSWCA 387
Citation 14 (Para 76)

…be relied upon to support Ms Xu and Mr Xu’s application. As stated in Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387 at [44]:…
Macatangay v State of New South Wales (No 2) [2009] NSWCA 272
Citation 15 (Para 82)

…I am conscious that an order for summary dismissal is interlocutory and not final: Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 at [11]. Further, s 91 of the CP Act provides, inter alia, that dismissal of proceedings does not, subject to the terms on which an order for dismissal was made, prevent a…
Hinde v Anderson & anor [2009] NSWLEC 1148
Citation 16 (Para 4)

…The principles expressed in Hinde v Anderson [2009] NSWLEC 1148 (at [35]-[36]) confirm that a fresh application may proceed if circumstances have changed since the earlier decision. In the present proceedings, the relevant changed circumstances include, first, the presence of new tree roots’ damage discovered after O…
Perpetual Trustees Australia Ltd v Heperu Pty Ltd [2009] NSWCA 84
Citation 17 (Para 76)

…As submitted by Ms Johns, r 50.7 of the UCPR applies to appeals to the Supreme Court from lower courts and relates to stays pending appeal, which is inapplicable in the present proceedings and cannot be relied upon to support Ms Xu and Mr Xu’s application. As stated in Perpetual Trustees Australia L…
Edwards v Allmen Engineering Pty Ltd [1995] NSWCA 138
Citation 18 (Para 72)

…in particular, their frequent use of extravagant and repetitious language, I remain conscious of the comments in Edwards v Allmen Engineering Pty Ltd [1995] NSWCA 138 at [2], where Kirby P stated that in cases presented by a litigant in person, the Court must be:…
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45
Citation 19 (Para 25)

…igated in the First Tree Dispute Proceedings, raising an Anshun estoppel: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598-604; [1981] HCA 45 (‘ Anshun ’).…
Blair v Curran [1939] HCA 23
Citation 20 (Para 27)

…of action “passed into judgment, so that it is merged and has no longer an independent existence” ( Blair v Curran (1939) 62 CLR 464 at 532; [1939] HCA 23); and that the cause of action for damage to their property caused by the same two trees on the Johns Land had been decided in the First Tree Dispute Proceed…

Legislation Cited

Vexatious Proceedings Act 2008 (NSW) 4, 6, 8
4 mentions (from Para 2)
Civil Procedure Act 2005 (NSW) 91
2 mentions (from Para 42)
Land and Environment Court Rules 2007 (NSW) 3.7
2 mentions (from Para 71)
Dividing Fences Act 1991 (NSW)
1 mention (from Para 5)
Evidence Act 1995 (Cth)
1 mention
Trees (Disputes Between Neighbours) Act 2006 (NSW)
1 mention (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW)
1 mention (from Para 2)

Medium Neutral Citation:	Xu and Anor v Johns [2025] NSWLEC 81
Hearing dates:	23 April and 12 May 2025
Date of orders:	07 August 2025
Decision date:	07 August 2025
Jurisdiction:	Class 2
Before:	Robson J
Decision:	See orders at [128]
Catchwords:	CIVIL PROCEDURE — Land and Environment Court — Tree dispute — Summary disposal — Dismissal of proceedings — Whether earlier decision should be set aside or stayed — Proceedings litigating same cause of action and issues — res judicata — issue estoppel — Anshun estoppel — Where proceedings are an abuse of process and frivolous or vexatious — Whether vexatious proceedings order should be made
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 91 Dividing Fences Act 1991 (NSW) Land and Environment Court Rules 2007 (NSW), r 3.7 Trees (Disputes Between Neighbours) Act 2006 (NSW), Pt 2, ss 7, 9 Uniform Civil Procedure Rules 2005 (NSW), Pt 36, Div 4, rr 13.4, 36.15, 36.16, 36.17, 36.18, 50.7 Vexatious Proceedings Act 2008 (NSW), ss 4, 6, 8
Cases Cited:	Andrew v Baradom Holdings Pty Ltd (in liq) (1995) 36 NSWLR 700 BlairvCurran (1939) 62 CLR 464; [1939] HCA 23 Cannuli v Cannuli [2018] NSWSC 937 Collier v Attorney General(NSW) [2023] NSWCA 273 Edwards v Allmen Engineering Pty Ltd [1995] NSWCA 138 Hinde v Anderson [2009] NSWLEC 1148 Macatangay v State of New South Wales(No 2) [2009] NSWCA 272 Maurici v Kaldor [2025] NSWLEC 20 Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 Potier v Attorney General (NSW) (2015) 89 NSWLR 284; [2015] NSWCA 129 Proiettiv Proietti [2024] NSWCA 48 Stokes (by a tutor) v McCourt [2013] NSWSC 1014 Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 Xu v Johns [2024] NSWLEC 33 Xu v Seccombe [2023] NSWLEC 1670 Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317
Category:	Principal judgment
Parties:	Xiu Yan Xu (First Applicant) Xiabing Xu (Second Applicant) Eileen Claire Johns (Respondent)
Representation:	Counsel: X Y Xu, self-represented (First and Second Applicant) T Howard SC with L Sims (Respondent) Solicitors: Self-represented (First Applicant) Self-represented (Second Applicant) Bick & Steele (Respondent)
File Number(s):	2024/00464408
Publication restriction:	Nil