Hinde v Anderson and anor

Hinde v Anderson [2007] NSWLEC 847 Agius v Forrester [2008] NSWLEC 256 CASES CITED: Agius v Forrester [2007] NSWLEC 857 Agius v Forrester [2008] NSWLEC 1434 Robson v Leischke [2008] NSWLEC 152; [2008] 159 LGERA 280

TEXTS CITED: The Doctrine of Res Judicata, Spencer Bower, Turner and Handley, 3rd Edition

RESPONDENT ON THE MOTION (APPLICANT) Mr A GAlasso SC INSTRUCTED BY Deacons LEGAL REPRESENTATIVES: APPLICANT ON THE MOTION (RESPONDENTS) Mr P Tomassetti SC INSTRUCTED BY Slade Mainwaring

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

20167 of 2009 Judith Hinde v Lynn & Sidney Anderson

JUDGMENT 1 COMMISSIONERS: Trees, whether living or dead, are evolving, changing dynamic structures. Living trees may grow, flower, fruit or react to climatic changes such as drought. They are also susceptible to attack from a variety of organisms large and small - from microbial fungi through human beings to pachyderms.

2 They are also subject to the influence, malignant or benign depending on the species and the circumstances, of all four of the ancient elements - earth, air, fire or water. This case concerns a tree that is subject to the malignant impact of the ancient element of air.

3 The tree is a Chinese Elm (Ulmus parvifolia) (the tree) that sits atop a coastal cliff line in the Sydney suburb of Mosman. In the past, during periods of strong winds from a generally southerly direction, the tree has lost branches that have fallen on the roof of the property immediately to the north of the property on which the tree is located. On several occasions, over a number of years, those falling branches caused damage to the roof of the property to the north.

4 In late 2007, the owner of the property to the north, the applicant in the present proceedings, made an application to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act).

5 As is usual practice of the Court in hearing and determining such applications, an on-site hearing was conducted. At that hearing, a variety of expert witnesses assisted the applicant. The owners of the property upon which the tree is located were the respondents in the earlier application and are also the respondents in this application. At the earlier hearing, they, too, and were assisted by a number of expert witnesses.

6 At the conclusion of the hearing, Tuor C and Fakes AC gave an extemporaneous decision and made orders concernin g the ongoing management of the tree (see Hinde v Anderson [2007] NSWLEC 847).

7 The decision of Tuor C and Fakes AC was subsequently transcribed and provided to the parties together with a sealed copy of the Court's orders. The hearing took place on 17 December 2007and the orders were effective from that date. Pruning by the respondents in satisfaction of an element of the orders was undertaken in March 2008. As a consequence, the next pruning to be undertaken pursuant to the orders was due to have taken place in March 2009.

8 On 15 January 2009, in what the applicant in these new substantive proceedings says was a severe southerly wind, she says that a branch broke from the tree with it falling on her roof and causing damage to the roof's ridge-capping.

9 As a consequence, in February 2009, she lodged a further application pursuant to s7 of the Trees Act. The orders that she seeks in these new proceeding are to be found at two places (in the application form and a supplementary application form concerning compensation). First, she seeks orders concerning the tree. In addition, she made a claim for compensation for her insurance excess for repairs to her roof. This compensation element of her claim is for $100 - being the excess on her insurance policy. The precise terms of these orders now sought and the relief that was sought in the earlier proceedings are, in light of the conclusion we have reached for the reasons that follow, are not relevant, in our view

10 This decision is given concerning a Notice of Motion filed by the respondents in the substantive application who are, therefore, the applicants on the Notice of Motion. For convenience, we will continue to refer to the parties by their designations in the substantive proceedings - that is to refer to Ms Hinde as the applicant and to refer to Mr and Ms Anderson as the respondents.

11 The Notice of Motion seeks summary dismissal of the application on the basis that all the relevant issues between the applicant and the respondents were determined, to finality, in the earlier hearing. This Notice of Motion, therefore, falls to be determined on the assumption that the facts as asserted by the applicant are true and the respondents say, on those facts, if true, they were comprehended by and had been dealt with to finality by the earlier decision.

12 It is relevant, at this point, to note that the consideration that we are undertaking in this decision relates to the present application and what is said to be its foundation in the changes which have occurred since the earlier decision was given - being, in our view, relevantly, the pruning undertaken in March 2008 and the damage to the applicant's property that she says was caused by the tree in January 2009.

13 The qualification we use in describing the January 2009 events does not imply any judgement by us on any test of fact (as the matter will now proceed to a hearing on the merits and there be some dispute about what the applicant says is the factual position). We have certainly not reached any conclusions about the existence or causation of any event or damage but merely reflect the proposition (with which we agree) put to us by Mr Tomasetti SC, for the respondents, that we should determine the Notice of Motion on the assumption that those matters asserted in the application now before us took place just as the applicant said they did. Any contest about matters of fact relating to causation or damage is necessarily deferred to the on-site hearing on the merits.

14 The requirement that we should summarily dismiss these proceedings, Mr Tomasetti says, follows as a necessary consequence of the application of the doctrine of res judicata to the outcome in those proceedings. He put that the application of this doctrine, coupled with the provisions of s 22 of the Land and Environment Court Act 1979 meant that this second substantive application was not permissible.

15 The submission put by Mr Tomasetti is, effectively, that provided any second application made under the Trees Act is made with respect to the same issues and the same tree as were raised in an earlier application, no such second application can be permitted concerning those issues and that tree whatever changes there may have been in the circumstances. However, he concedes that, in a case such as this (dealing with the canopy of a tree and its impact on an adjoining property), a separate and new application concerning any damage that might be alleged to be caused by the roots of that tree would not be excluded.

16 Mr Tomasetti has provided us with extensive written submissions on the law concerning the doctrine of res judicata and how that should be applied to the present application. Mr Galasso SC, for the applicant, provided us with more modestly dimensioned submissions in reply on this issue.

17 We do not propose to deal with the range of authorities to which we were taken by Mr Tomasetti or Mr Galasso (with one exception), as we consider that the approach taken on behalf of the respondents is fundamentally misconceived from first principles - that is, a proper consideration of the purposes and scope of the Trees Act, particularly the removal of the application of the common law tort of nuisance to trees to which the Trees Act applies, makes it obvious that such a conclusion would be absurd and fundamentally contrary to the intention of the legislation.

18 We first deal with one aspect of what was submitted on behalf of the applicant (as we consider this to be determinative and disposes of the respondents' motion). However, if we be wrong on this aspect, we also turn to other matters which lead to the same conclusion.

19 Mr Galasso SC, for the applicant, submitted that the decision by Biscoe J in Agius v Forrester [2008] NSWLEC 256 provides the proper foundation upon which we should consider the present motion by the respondents. We are both familiar with this case because one of us - Moore SC - heard the original application with Fakes AC whilst Thyer AC heard the second application.

20 It is not necessary to undertake an exhaustive examination of the facts concerning the tree in that case. In the first instance, after an examination of the tree and consideration of its condition at the time of that hearing, the original decision was that there was no basis to order interference with or removal of the tree (see Agius v Forrester [2007] NSWLEC 857). Thyer AC reached a different conclusion on the second application and ordered that works be undertaken to the tree (see Agius v Forrester [2008] NSWLEC 1434).

21 The first of these decisions was subject to an application for an extension of time to lodge an appeal pursuant to s 56A of the Land and Environment Court Act 1979 (the Court Act). That application came before Biscoe J who gave a succinct extemporaneous decision refusing the application for an extension of time to appeal. The critical and relevant elements of his Honour's brief decision are contained in the final three paragraphs of that decision. These are in the following terms: Mr Agius now says that on 11 February 2008 another branch fell off the same tree on a calm day, that it missed his place by two metres and that this branch was bigger than those that had fallen on previous occasions.

Assuming that is correct, it does not raise any question of law in relation to the Commissioner's decision. Rather, Mr Agius has identified new circumstances which, if supported by evidence, could justify a further tree application. Since an appeal is limited to questions of law, it would be futile to extend the time for filing a notice of appeal. Accordingly, I dismiss the application for extension of time.

The appropriate procedure, if Mr Agius wishes to pursue it, is to file another tree application to raise the circumstance that a branch has fallen since the Commissioner delivered judgment. Mr Agius has informed me that in or about May this year he did attempt to file another tree application that raised that circumstance but was informed by someone in the registry that he should instead seek to appeal under s 56A. If that happened, then in my view he was misinformed. Mr Agius has shown me the tree application which he said that he attempted to file on that occasion. He may now wish to take that tree application, or such other tree application as he may be minded to file, to the registry and file it.

22 In our view, it is clear that the ratio of this decision concerned the absence of any possible legal error arising from the new circumstances described by Mr Agius to Biscoe J. It is clear that his Honour's additional comments concerning making a fresh application under the Trees Act constitute obiter dicta.

23 Mr Tomasetti submitted that it would give little regard to this decision because there were is no effective contradictor to the proposition and his Honour did not deal with the possibility of matters, such as those presently being raised, being agitated before him.

24 However his Honour's comments, although brief, are entirely unequivocal. Under the circumstances, we are inclined to the view that the reasons for this brevity of these comments in his Honour's decision arose because of the self-evident truth, to his Honour, of the propositions contained therein.

25 As a consequence, we do not consider it would be appropriate for us to conclude that his Honour did not consider that there might be some determinative basis upon which a second application under the Trees Act should not be entertained by the Court. Although we are not bound to follow his Honour's comments, as they are obiter, we are of the view that they are sufficiently persuasive that, in the circumstances, absent any decided case on the specific question, we should do so.

26 However, we are also satisfied on our own consideration of the proper construction of the Trees Act and the doctrine of res judicata that his Honour's proposition was accurate.

27 During the course of the hearing, Mr Tomasetti was asked, hypothetically, to respond to the proposition that there was a large tree that: o was adjacent to and overhung the playground of a preschool; o had been the subject of an application pursuant to s 7 of the Trees Act for an order to remove it; o this application was unsuccessful; and o there was a subsequent significant branch failure of the tree so that the failed branch was hanging dangerously over the children's play area.

28 He was asked whether, on his hypothesis, there would be no ability to pursue a new application to be made to remedy or restrain the owner of the tree in order to prevent the likely risk of injury to any of the children in the playground. He responded that such an application would not be permissible.

29 In Robson v Leischke [2008] NSWLEC 152; [2008] 159 LGERA 280, Preston CJ discusses the history of the common law and the evolution of actions in nuisance. He discusses the process which led up to the passage of the Trees Act. It is clear from his Honour's analysis that this legislation is intended, for the trees to which it applies, to act as a statutory codification of the process to be followed in lieu of the common law tort of nuisance that might previously have applied to them.

30 There is no doubt that this tree is a tree to which the Trees Act applies as the tree is located on private property and the allotment upon which it is located is within a zone falling within the provisions of s 4 of the Act. The consequence of the tree being a tree to which the Trees Act applies triggers the provisions of s 5 of the Act that provides no action may be brought in nuisance as a result of damage caused by a tree to which this act applies.

31 As a consequence, as we understand it, on this hypothetical case of the preschool playground that was put to Mr Tomasetti, there would never be an ability to prevent risk of injury from the dangerous branch in circumstances where ownership of the tree and ownership of the property potentially affected has not changed. Such a result would clearly be against the public interest and unsound public policy.

32 Mr Galasso advanced the alternative proposition, equally simple in its construction that, if circumstances were alleged to have changed, a further application can be entertained by the Court founded on those allegedly changed circumstances.

33 He conceded, properly, that if such a later application were to be made and there were no changes to the circumstances found to exist compared to those which had applied at the time of the earlier application, the subsequent application might be amenable to being disposed of as an abuse of process.

34 Mr Galasso took us to a passage in the third edition of Spencer Bower, Turner and Handley The Doctrine of Res Judicata where, in 383 under the heading No estoppel in changing situation, the learned authors say There is substantial authority that there can be no res judicata in a changing situation.

35 We accept that the statement in Spencer Bower, Turner and Handley cited above is a correct statement of the law that applies in these circumstances and taking the factual basis of the present substantive application as being that which is set out by the applicant (without undertaking any assessment of that factual basis).

36 We do not consider that the terms of s 22 of the Court Act requiring that all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided provides any barrier to a second application. We hold this view because the asserted change in circumstances means that those changes were and could not be in controversy between the parties at the time of that hearing.

37 Similarly, the absence of a statement in the orders in the earlier proceedings between the parties that those orders were subject to further order does not, in our view, create any impediment to the present proceedings. Such an absence might act as an additional barrier had there been no change in circumstances but cannot, in our view, act to prevent our consideration of any alleged changes in circumstances in the context of an Act which appears to have extinguished any possible alternative remedy for those changed circumstances.

38 Whether, in fact, there are changes in circumstances is a matter for consideration in a substantive hearing. It may be that, as a matter of fact for determination, there are no such changed circumstances and an application for dismissal, at that stage, might arise. Equally, some application for refusal of relief founded on an interpretation of the facts that the nature of the changes in circumstances are so small as to be de minimis may be pursued. Finally, the decision-making path of the Court set by the Trees Act is one that, after dealing with jurisdictional questions under s 10(2), requires the consideration of a wide range of matters set out in s 12 and then (and only then) does the Court consider the scope of what the orders, if any, might be made pursuant to s 9. The discretionary powers of the Court pursuant to s 9 to make orders, provided such orders are properly directed to remedying, restraining or preventing damage to property, or to preventing injury to any person, are virtually unfettered save as to reasonableness.

39 As all the matters set out in the preceding paragraph arise to be considered during a substantive hearing on this application, this decision does not express any views on any merit matters that might come before the Court during such a process. We have solely determined that, within the scheme of the Trees Act, such a substantive hearing is permissible. The order of the Court is, therefore, that the application for summary dismissal is refused.

Tim Moore Peter Thyer Senior Commissioner Acting Commissioner of the Court

28/05/2009 - Add catchwords - Paragraph(s) Coversheet

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