Jones v Stephenson

EX TEMPORE Judgment

1. HER HONOUR: By Amended Notice of Motion, together with statement of charge, filed on 1 June 2021, the Applicants seek the following orders: 1. Contempt of Court conviction; 2. For the Court to impose sufficient penalty so as to disabuse the Respondent that these orders are not open to his interpretation and modification; and 3. To be awarded costs.
2. From the Statement of Charge, it is apparent that the Applicants are alleging that Order 3 made by this Court in proceedings Jones & Anor v Stephenson [2017] NSWLEC 1028 (the Trees Act case) is not being complied with, both with respect to the requirement as to the timing and compliance with the criterion nominated in Order 3 of the orders made in those proceedings.
3. The Applicants are the owners and occupiers of land at Woodford which land shares its northern boundary as a common boundary with the Respondent's land. Along this shared boundary, and within the Respondent's land, is a row of trees, including three Leyland cypress trees which are referred to by the parties and in the other proceedings as trees 2, 3 and 4.
4. The Applicants commenced proceedings pursuant to both s 7 Pt 2 and s 14B Pt 2(a) of the Trees (Dispute Between Neighbours) Act 2006 (NSW). Those proceedings were determined by an Acting Commissioner of this Court by judgment dated 30 January 2017. Orders were made which included Order 3 (the Tree Order) which provided: (3) the Respondent is to engage and pay for an arborist with a minimum qualification of AQF level 3 in arboriculture to prune the Leyland cypress indicated as trees 2, 3 and 4 on the diagram in the application claim form, being the three conifers closest to window 2 on the upper floor of the Applicant's dwelling to a height level with the bottom of that window. The work is to be carried out in the month of April 2017 and maintained annually each April to that height until such time as the trees are removed.
5. The Respondent did not comply with the terms of this Order. The Applicants commenced contempt proceedings which were heard and determined in this Court by Pain J in November 2020. In the decision Jones v Stephenson [2020] NSWLEC 154 her Honour found at para 34 that the Respondent did not prune trees 2, 3 and 4 to the height required in April 2020, the first contempt proceedings. However, after considering the evidence and submissions, her Honour determined that no convictional penalty was warranted in the circumstances; in particular, her Honour found at [48] to [50]: [48] Mr Stephenson has stated in his affidavit that he intends to ensure compliance with Order 3 in the future. I accept that he faced personal difficulties in the first half of the year which can be seen as extenuating in relation to his failure to prune in April 2020. [49] General deterrence is an important consideration in the imposition of a penalty for contempt where warranted. Given my findings that the contempt has been purged, that the contempt is not serious and that I consider Mr Stephenson is unlikely to re-offend, deterrence has a limited role to play in sentencing in this case. [50] As identified in Pt 55 r 13(1) of the SC Rules, contempt of court can be punishable by fine or imprisonment or both. I have discretion to decide whether I should convict Mr Stephenson for the proven contempt and impose punishment of a fine. While not able to apply s 10 of the CSP Act directly, the factors to be considered in deciding whether to dismiss a charge in subs (3) can helpfully inform my approach. These are the person's character, antecedents, age, health and mental condition, the trivial nature of the offence, the extenuating circumstances in which the offence was committed, and any other matter that the court thinks it is proper to consider. The parties are neighbours in dispute over three trees on Mr Stephenson's boundary. Mr Stephenson is 60 years old and has no regular employment. The contempt is not serious and has been purged. Mr Stephenson has otherwise complied with the substantial work required by the Court's 2017 orders. I consider it inappropriate to convict or fine Mr Stephenson as the commencement of these proceedings alone is likely to have a salutary effect upon him.