Bailey v Gould

SELF-REPRESENTED Mr Stephen Gould (Respondent) File Number(s): 20977 of 2010

ex tempore Judgment 1On 12 May last, I delivered judgment on an application by Mr Stephen Gould for an order for costs ( Bailey v Gould [2011] NSWLEC 96). Mr Gould was the successful respondent in an application made to the Court by Mrs Maureen Bailey under the Trees (Disputes Between Neighbours) Act 2006. I ordered that Mrs Bailey pay Mr Gould costs by way of disbursements in the sum of $1,101.11. 2There was no appearance by Mrs Bailey at the hearing conducted before me on 12 May. At that time Mr Gould, who was self represented, read an affidavit of service of his notice of motion seeking costs. The affidavit stated that on 8 April a copy of the notice of motion had been sent to Mrs Bailey by pre-paid registered post addressed to her Newtown address. Annexed to the affidavit was a photocopy of an Australia Post lodgement receipt indicating the document to have been addressed to Mrs Bailey at that address. An Australia Post stamp with the date "8 April 2011" appeared on the receipt. The address to which the document was directed was the address for service indicated on the application made by Mrs Bailey when she filed her tree dispute application with the Court (cf Uniform Civil Procedure Rules r 10.5(1)(b)). 3Mrs Bailey, who is also a self represented litigant, has now filed a notice of motion by which she seeks a number of orders. In substance, she seeks to set aside the order for costs made against her. She also seeks an order that Mr Gould pay her costs of this motion and a further order that he pay costs that were reserved on 13 January last when an order was made by the Court for substituted service upon him of the tree dispute application. 4The material filed in support of Mrs Bailey's application establishes that between 7 April and 11 May last she was travelling through northern New South Wales and into Queensland where she stayed before returning to Sydney. Upon her return to Sydney on 11 May she was ill for a number of days. 5Significantly, I am satisfied that Mr Gould's notice of motion seeking costs and lodged for posting to Mrs Bailey on 8 April was not received by her or, at the very least, had not come to her attention when that motion was heard on 12 May. Clearly, the envelope enclosing Mr Gould's notice of motion had not been posted until after Mrs Bailey's departure from Sydney and the hearing date occurred one day after her return, a time when she was ill. In these circumstances, she seeks to set aside the orders made by me on 12 May. 6The power of the Court to accede to an application of the present kind is found in the Uniform Civil Procedure Rules r 36.16(2)(b). The rule relevantly provides as follows: "(2) The court may set aside or vary a judgment or order after it has been entered if: (a) ... (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order ... ". In light of the evidence to which I have referred and which I accept, it is open to me to set aside the order that I made and to reconsider Mr Gould's application for costs in light of any further relevant material advanced by Mrs Bailey. 7A great deal of the voluminous material that Mrs Bailey has provided in support of her motion relates to her absence from the hearing on 5 May. For reasons already indicated, I accept that material as providing a proper explanation for her absence. As I have also indicated, I am prepared to reconsider Mr Gould's application together with the other matters raised by Mrs Bailey's application. 8Much of the remaining material that Mrs Bailey has produced seeks to take issue with the order and reasons for judgment of the Commissioners who, in exercising the jurisdiction of this Court, dismissed her application on 15 March last ( Bailey v Gould [2011] NSWLEC 1062). As I have endeavoured to make clear to Mrs Bailey, in deciding the question of costs I do not have any power to reconsider, as if on appeal, the orders or reasons for judgment of the Commissioners. Indeed, it is essentially by reference to their reasons for judgment that I must found any decision as to costs. On an application of the present kind, I cannot and do not make any decision based upon any asserted error in that decision, whether such error be perceived, as is claimed, by a newspaper journalist, another arborist or by Mrs Bailey herself. 9Apart from challenging the reasoning and findings of the Commissioners and asserting disagreement with them by others, there is only one new matter of relevance raised by Mrs Bailey that bears upon the reasons expressed in my judgment of 12 May that an order for costs should be made in favour of Mr Gould. As is indicated in that judgment (at [16]), I had understood, based upon the material then before me, that no report by an arborist or other qualified person supporting the claims made by Mrs Bailey had been obtained by her before commencing her tree dispute proceedings in the Court. It is now apparent that my understanding was incorrect. In fact, a report had been obtained by Mrs Bailey from Mr Hugh Taylor, an arborist and director of Australian Tree Consultants Pty Ltd. 10The report by Mr Taylor is dated 23 October 2008. Although his report recommends that "(c)onsideration should be given to removal of the tree" because of poor pruning practices in the past, the conclusion expressed is that, at the time of his inspection, namely 23 October 2008, "the tree was not considered to be hazardous or dangerous." 11Mrs Bailey's application to the Court commencing the current proceedings was filed on 3 December 2010. It is not suggested by her that she obtained any further report from Mr Taylor or from any other arborist after October 2008. 12When completing her tree dispute application filed with the Court, Mrs Bailey indicated that the first of the orders sought by her was the "urgent and immediate removal" of the tree. In addition to an order that the cost of removal be borne by Mr Gould, she also sought orders for the payment of compensation for past damage said to have been occasioned by the tree. 13It is salutary to remember that the provisions of the Trees (Disputes Between Neighbours) Act do not provide a remedy for any discontent that a neighbour may have with the existence of a tree on adjoining land. As is provided in s 7 of that Act, the Court can only entertain a claim where action is brought to remedy or prevent damage to property or injury to persons as a consequence of that tree. In the present case, the 2008 report from Mr Taylor upon which Mrs Bailey relied to commence her proceedings does not, by its terms, appear to provide any foundation for the claim that Mrs Bailey made. The conclusion expressed by Mr Taylor did not, objectively judged, identify a basis upon which to found a realistic prospect that the Court might exercise its jurisdiction and make the remedial orders available to it under the Act. 14Founding my decision, as I must, essentially upon the findings and reasons for the decision of the Commissioners, nothing that has been put to me by Mrs Bailey causes me to reconsider the basis upon which I previously exercised the discretion available under Land and Environment Court Rules r 3.7 to make a costs order in favour of Mr Gould. Nonetheless, in light of particular matters raised by Mrs Bailey, I must reconsider the quantum of costs by way of disbursements that are to be the subject of any order. 15In my earlier judgment, I identified four items in respect of which Mr Gould incurred expense in defending the application brought by Mrs Bailey against him. They were the filing fee incurred for his notice of motion seeking costs, photocopying charges incurred in respect of documents filed and served in the proceedings, the fee paid to an arborist retained by him and fees incurred when he utilised the services of a firm of solicitors to have the affidavit in support of his notice of motion sworn before a solicitor in that firm. 16If costs are to be awarded in favour of Mr Gould, reimbursement of the court filing fee of $180.00 could not be disputed. For reasons indicated in my earlier judgment, it also seems appropriate that photocopying or printing charges should be recovered (see [19] -[20]). However challenge is made to the quantum of these charges. As I understand observations made by Mrs Bailey in her documents, she does not challenge the fact that there was a considerable volume of irrelevant evidence exchanged between the parties prior to the hearing before the Commissioners and which necessitated the copying of documents. Some of the items claimed would seem to be for expendables that have other use. Doing the best I can from the evidence provided, I believe that a figure of $150.00 is appropriate to be allowed for these items. 17The fee paid by Mr Gould to his retained arborist and which he seeks to recoup is the sum of $495.00. That sum does not seem unreasonable as a total claim, given the statement by Mrs Bailey that she paid the sum of $250.00 for the initial report provided by Mr Taylor in 2008 and incurred a further fee of $250.00 to have a member of his firm present at the hearing before the Commissioners in March last. 18Mrs Bailey takes issue with the fee incurred by Mr Gould in paying solicitors to take his oath and witness the affidavit that he swore in support of his notice of motion. She points to the fact that affidavits sworn by her have been witnessed by a justice of the peace free of charge. As she stated, the solicitors consulted by Mr Gould have a Newtown address where there is also the registry of the Newtown Local Court, a place at which Mrs Bailey has been able in he past to have sworn documents witnessed by a justice of the peace without charge. I am inclined to think that her challenge to this item is reasonable and therefore I reject this component of Mr Gould's claim. 19Subject to what follows, Mr Gould would be entitled to recover the sum of $825.00. 20In light of my determination, it is unnecessary to say anything further in relation to Mrs Bailey's application for costs save in one respect. Among the items that she seeks to claim is the sum of $180.00 to reimburse her for the filing fee incurred on the notice of motion whereby she sought and obtained an order for substituted service of her tree dispute application upon Mr Gould. Costs of that motion were reserved when the Court made that order on 13 January last. The evidence provided by Mrs Bailey at that time demonstrated that the reason for making the order was the attempt by Mr Gould to avoid, or at least render difficult, personal service of the tree dispute application upon him. In that circumstance, I see no reason why Mrs Bailey should not have the benefit of a credit for that filing fee against the sum otherwise payable by way of "costs" to Mr Gould. 21In the result, the net amount payable to Mr Gould will be $645.00 calculated as follows: Costs of motion filing fee incurred by Mr Gould $180.00 Photocopying fees $150.00 Arborist fee $495.00 Total $825.00 Less filing fee on notice of motion for substituted service $180.00 incurred by Mrs Bailey NET PAYABLE $645.00