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.
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).
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.
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.
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.
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.
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
Details
AGLC
Zangari v Miller (No 2) [2010] NSWLEC 1093
Case
[2010] NSWLEC 1093
Decision Date
CaseChat Overview and Summary
The applicants, V and K Zangari, sought to have the court order the respondents, C and K Miller, to remove a tree from their property. This was the second such application brought by the Zangaris, following an earlier decision in January 2010 which had dismissed their application. The court was required to determine whether the application should proceed, given that the evidence relied upon was identical to that presented in the earlier proceedings, and whether the applicants had presented any "fresh evidence" that would warrant a new hearing.
The court found that there was no fresh evidence presented by the applicants as the expert reports and the tree itself had not changed since the earlier proceedings. Furthermore, the court determined that the applicants could have exposed the tree's roots prior to the earlier hearing, making this current application an abuse of process. The court held that the earlier decision had finality and should not be interfered with.
The application was dismissed by the court, with the Senior Commissioner stating that he did not intend to permit the application to proceed. The court's decision was based on the lack of fresh evidence and the applicants' abuse of process in bringing forward an application with identical evidence to that presented earlier.
This decision serves as a reminder that the court will not entertain applications that are brought forward without any new evidence or for the purpose of abusing the legal process. The applicants in this case were not permitted to rely on evidence that could have been presented in the earlier proceedings, and as such, their application was dismissed.