Bailey v Gould

ex tempore Judgment 1HIS HONOUR : Stephen Gould is the respondent to proceedings brought by Mrs Maureen Bailey pursuant to the provisions of the Trees (Disputes Between Neighbours) Act 2006 ( the Act ). Those proceedings related to a tree that is growing in the yard of Mr Gould's premises in Newtown. Mrs Bailey is the owner of adjoining premises. 2Mrs Bailey's application was heard on 15 March 2011 by Senior Commissioner Moore and Acting Commissioner Hewett. Her application was dismissed on that date. Mr Gould now applies by motion dated 7 April 2011 for an order that the costs incurred by him in defending the application be paid by Mrs Bailey. 3As has been made clear and as Mr Gould appears to understand, an order for costs in proceedings of this kind is not ordinarily made. Mr Gould's attention was drawn to the provisions of the Land and Environment Court Rules 2007, r 3.7(2) by which it is provided that costs in proceedings of this kind are not to be the subject of an order "unless the Court considers the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances." It has also been made clear to Mr Gould, who is self represented, that the rule has been interpreted to involve a presumption against the making of any order unless the Court is persuaded that the ordering of costs is fair and reasonable. He does not challenge this approach. 4A further matter that has been drawn to the attention of Mr Gould is the fact that many of the cost items that he claims cannot be recovered by him. This is because any order for costs made pursuant to the Court's rules is directed to the recovery of costs incurred in retaining legal representation. So much is made clear by the decision of the High Court in Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403. As the High Court there indicates, costs for which court rules provide are confined to money paid or liabilities incurred for professional legal services and do not include compensation for time spent by a litigant in person, who is not a lawyer, in preparing and conducting his or her case. That principle has been applied when costs have been sought by a self-represented litigant in this Court: Cachia v The Hills Shire Council [2010] NSWLEC 136. 5The relevant provision of the Court's rules, having the potential to justify a finding that the ordering of costs is fair and reasonable, is that found in paragraph (3)(f) of LECR 3.7. The paragraph relevantly indicates that a circumstance that might justify the making of an order for costs is one where the claim has been commenced and, at the time of commencement, did not have reasonable prospects of success. In the context of the present application, that provision, so it seems to me, is one that requires consideration of the reasons for judgment of the Court in the substantive proceedings so as to determine whether the provisions of the clause are truly engaged. That consideration must necessarily be undertaken having regard to the presumptive position that an order for costs should not ordinarily be made. 6There were a number of findings made by the Commissioners when determining the proceedings that bear upon Mr Gould's application. First, there is an inference to be drawn that damage said to have been occasioned to the tree itself and which had the potential to be affecting its health is damage that may have been of anthropogenic origin that was not accidental. So much is apparent from [2] of the judgment in which reference is made to "a perfectly round hole" in the trunk of the tree at about the height of the fence separating Mr Gould's premises from those of Mrs Bailey. No conclusion was expressed by the Commissioners as to whether this hole, found to be inconsistent with the activity of any known arboreal borer, had contributed in any way to the current health of the tree. 7The second matter adverted to in the judgment and bearing upon the present application relates to the smaller of the two stems that form the lower structure of the Jacaranda tree which was the subject of the application to the Court. That tree, so the judgment determines, had a mature stem with its smaller and younger stem having grown to only about fence height. In so far as a claim was made by Mrs Bailey of damage occasioned by or from that smaller stem, the Commissioners determined such claim to be "entirely fanciful" (at [5]). The Commissioners determined that there was no damage demonstrated to have been occasioned by the smaller stem with no likelihood that it would occasion any damage within the foreseeable future (at [6]). 8The Commissioners then turned their focus to the larger of the two stems of the tree. They determined that there was no basis upon which to conclude that tree roots were the cause of or likely to be the cause of any damage, contrary to the claim made in that regard by Mrs Bailey. They observed that the tree had been in its present location for over 25 years; that there was no evidence of any present damage and that there was "no basis upon which we could conclude that it is likely that the roots would cause damage in the next 12 months or so" (at [8]). 9The next basis of claim was apparently one founded upon damage said to have been occasioned by the leaves, fruits, fronds and flowers of the tree. However, as the Commissioners stated in their judgment, there was "no instance of past or present damage" to which Mrs Bailey could point in order to sustain her claim in that regard. They further stated that there was no likelihood of future damage being caused so far as they were able to discern (at [9]). 10A related claim was also advanced by Mrs Bailey. She claimed that damage occasioned by the flowers falling from the Jacaranda tree was evident in staining or damage to clothing drying in the yard of Mrs Bailey's premises. Photographs were produced by her in an endeavour to sustain her claim. These were considered by the Commissioners but dismissed by them as substantiating the claim that was made. 11They observed that some of the stains identified were clearly the product of bird excrement and therefore provided no basis for claim under the Act. Secondly, according to the Commissioners, a blue stain depicted on an item of linen fabric was a stain that appeared to be the product of a flower, perhaps a blue flower from a Jacaranda, that had been folded into and compressed within that linen item. As the Commissioners observed (at [12]): "It is a matter of some curiosity and is not amenable to any ready explanation short of the fact that the linen has been folded up on that flower and crushed. We draw no conclusion as to whether that was something that took place deliberately or inadvertently. However, it cannot support any finding about damage being caused by the tree." 12A further matter that was the subject of complaint by Mrs Bailey was damage said to have been occasioned to a fence separating her property from that of Mr Gould. However, the Commissioners found that the fence was, by the manner of its installation, entirely unstable by being inadequately fastened at its eastern end and that, from their own observation, it could be "displaced by a finger touch (as was demonstrated during our inspection of the tree owner's property)". They expressed an inability to conclude that any branch falling from the Jacaranda tree would have occasioned damage to the fence given the instability of its installation but they indicated that if some branch had fallen on the fence, any damage could only be described as being "so de minimis as not to warrant our intervention" (at [13]). 13The next basis upon which Mrs Bailey complained of damage occasioned by the tree was the displacement of a sewer vent pipe. The Commissioners observed in relation to that pipe that there was "no proper and appropriate attachment of that pipe" to the structure intended to support it. They concluded that had the vent been properly fixed, no limb falling from the tree could have displaced it. However, taking any displacement of the vent "at its highest (as representing damage)" the Commissioners conclude "that damage is in itself so minor and inconsequential as not to warrant the making of any order for the interference with or removal of the tree" (at [15]). 14The final matter of which Mrs Bailey complained pertaining to the tree was the potential for injury by reason of the taller of the two stems of the tree making contact with overhead powerlines. The Commissioners observed that there was a distance of about 3m between the uppermost point of the tree and the closest element of the adjacent powerlines. Having recorded that observation, they concluded "that there is no present likely risk of injury to any person whatsoever as a consequence of that distance " (at [16]). In the result they dismissed that matter as a proper basis for claim. 15It seems to me, founded upon the terms of the Commissioners' judgment, that Mrs Bailey had partaken of what might colloquially be described as "a shopping list" of complaints directed to this tree, none of which the Commissioners determined founded any entitlement to a substantive claim. Indeed, I infer from the judgment that this "shopping list", either in its individual items or in its totality, afforded no realistic basis to justify consideration of the remedial orders that the Court is able to make under the Act. 16Having regard to these matters, I am of the opinion that at the time at which these proceedings were commenced by Mrs Bailey, she did not have reasonable prospects of success. I am told, and I accept, that there was no arborist's report prepared and served on behalf of Mrs Bailey supporting her claim. Certainly, no reference is made to any such report in the judgment of the Commissioners. However, it is apparent from the decision of the Commissioners that if such a report was before them its contents would appear to have been dismissed out of hand. 17For all those reasons it seems to me that it is fair and reasonable that an order for costs, limited to certain out of pocket expenses incurred by Mr Gould, should be made. He incurred those expenses in defending the application made by Mrs Bailey which was one that on such evidence as was adduced by her, did not offer any reasonable prospects of success. 18A number of the items for which claim is made by Mr Gould are not recoverable. That is the case having regard to the principles earlier identified pertaining to the recovery of costs by a self represented litigant. Of the various claims that are made, it seems to me that there are only four of them that can properly be described as out of pocket expenses and for which recompense would be made. The first involves the fee incurred by Mr Gould in retaining the arborist who prepared a report for the purpose of the proceedings, being a report that had been served upon Mrs Bailey. That is a report prepared by Ms Sue Hobley of the firm known as BioDesign. The fee charged for that report was $495.00 and I propose to allow that fee. 19It is regrettable in litigation conducted by litigants in person that often a considerable volume of evidence is prepared which has no relevance to the issue that a court is to decide. In this matter, there were a number of statements or affidavits prepared by or on behalf of Mrs Bailey which contained allegations going to the credit of Mr Gould or otherwise sought to relate matters that appeared wholly irrelevant to any issue tendered for consideration under the Act. 20Believing that it was necessary to address all of that evidence, Mr Gould incurred expense in copying affidavits, statements or other material prepared by way of response but which ultimately proved irrelevant. Relevant to the events that occurred here, it seems to me that if a respondent conducts litigation in person, prepares evidence which is served seeking to respond to the material filed by an applicant, then it is fair and reasonable that the expenses reasonably and properly incurred by the successful respondent in having those documents copied for filing and service should be recompensed for that expense. The sum claimed by Mr Gould for copying charges incurred by him is $316.11 and I propose to allow that amount. 21In order to bring this present notice of motion before the Court, Mr Gould incurred a filing fee of $180.00. It is appropriate that he recover that fee. 22His notice of motion was supported by an affidavit that was sworn before a solicitor. He incurred a solicitor's fee of $110.00 for having that solicitor take the oath and witness the affidavit. The solicitor's fee statement has been produced in order to prove the claim. It is appropriate that the fee incurred with that solicitor should be recovered by Mr Gould. 23In the result, I have allowed the recovery of four amounts, being disbursements incurred by Mr Gould in the defence of his proceedings. The total sum of those four amounts that are recoverable is $1,101.11 and I propose to make an order that Mrs Bailey pay that amount. 24The order that I make is as follows: (1)The applicant is ordered to pay costs by way of disbursements incurred by Mr Gould in the sum of $1,101.11