Zangari v Miller (No 2)

[2010] NSWLEC 1093

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Zangari v Miller (No 2) [2010] NSWLEC 1093

PARTIES:
APPLICANTS
V & K Zangari

RESPONDENTS
C & K Miller

FILE NUMBER(S):
20045 of 2010

CATCHWORDS:
RES JUDICATA; TREES (NEIGHBOURS) :-
Second application concerning tree
No "fresh evidence"
Abuse of process

LEGISLATION CITED:

CORAM:
Moore SC

DATES OF HEARING:
23 April 2010

EX TEMPORE DATE:
23 April 2010

LEGAL REPRESENTATIVES

APPLICANTS
First applicant in person

RESPONDENTS
In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

23 April 2010

20045 of 2010     Zangari  & anor v Miller & anor

JUDGMENT

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

1. SENIOR COMMISSIONER:  This is an application concerning a tree located on the Millers’ property that was the subject of an application determined, in a hearing between the applicants and the Millers, by Fakes C in January 2010 (see Zangari v Miller [2010] NSWLEC 1012).

1. The two expert reports that are relied on by the applicant in these proceedings are exactly the same documents that were relied on in the proceedings in January 2010. The only physical difference that arises on this occasion is that the tree's roots have now been exposed by the removal of a number of elements of a concrete slab – that slab could have been removed prior to the hearing in January. Mr Zangari indicated that there have been no changes to the tree since then.

1. Mr Zangari, one of the applicants in both sets of proceedings spoke on behalf of himself and his wife. He suggested that there were medical reasons why he personally had not removed the slab on the last occasion. There is nothing in the Commissioner's decision that indicates that that matter was raised on that occasion. Whether or not that was applicable at that time, however, is a matter of irrelevance because there is no evidence in any of the material filed in these proceedings (that were subject to the standard directions) nor anything said this morning that establishes that it would have been impossible for Mr Zangari to have had somebody else remove the slab and expose the roots prior to the last occasion.

1. This hearing is proposed to proceed to determination on evidence that is in identical terms – relying on the same expert reports – as was the occasion in January of this year but with the tree roots now exposed.

1. There is no “fresh evidence” (within the meaning of that term as considered by appellate courts – including the High Court). There is certainly no reason to permit Mr Zangari now to rely on evidence that could otherwise have been available on the last occasion.

1. There is no basis upon which I should interfere with the finality of the earlier proceedings. This further application constitutes an abuse of process. As a consequence I do not intend to permit this application to proceed. The application is dismissed.

Tim Moore
Senior Commissioner