Jones v Stephenson [2022] NSWLEC 36

Land and Environment Court New South Wales

Medium Neutral Citation: Jones v Stephenson [2022] NSWLEC 36 Hearing dates: 13 September 2021 and 4 April 2022 Date of orders: 4 April 2022 Decision date: 04 April 2022 Jurisdiction: Class 2 Before: Duggan J Decision: See paragraph 15 Catchwords: CONTEMPT – notice of motion seeking contempt conviction, penalty and costs – charge of failure to comply with court order requiring pruning of three trees at specified time of year to specified height – failure to comply with terms of orders within time required found – overall circumstances suggest no conviction should be recorded or penalty ordered – notice of motion dismissed – costs Legislation Cited: Trees (Dispute Between Neighbours) Act 2006 (NSW) Cases Cited: Jones & Anor v Stephenson [2017] NSWLEC 1028 Jones v Stephenson [2020] NSWLEC 154 Category: Costs Parties: Michael Jones (First Applicant) Michele Jones (Second Applicant) Ross James Stephenson (Respondent) Representation: No appearance (First Applicant) No appearance (Second Applicant) Ross James Stephenson, in person (Respondent) File Number(s): 2016/341142 Publication restriction: No

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. 1. 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. 2. 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. 3. 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. 1. 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. 1. In the first contempt proceedings, Pain J set out the relevant legislative provisions relevant to a determination of these proceedings at [7] to [9]; I adopt her Honour's analysis without repeating them here. In these proceedings, the Applicants read four affidavits sworn by Mr Jones, and the Respondent, Mr Stephenson, read his affidavit, sworn on 5 August 2021. 2. During the course of the proceedings, I enquired of Mr Stephenson whether he would be prepared to remove the trees that were the subject of the Order so that the continued pruning would no longer be required, and so that the Applicants would no longer have to monitor compliance with the orders to ensure that the Applicants retained sufficient light to the nominated window. Mr Stephenson indicated that he was prepared to do so. The Applicants indicated that they would be prepared to accept such actions in lieu of a finding of contempt. 3. The parties agreed that the following directions would be made: (1) The matter be listed for telephone mention on 8 November 2021 at 9.00am. The Court noted: Mr Stephenson has indicated that before 29 October 2021 he will organise for trees 2, 3 and 4 to be removed by an arborist, including the stumps; the arborist is to file and serve an affidavit confirming this removal. If this occurs to the satisfaction of both parties, Mr Stephenson has agreed to pay the costs of Mr and Mrs Jones in the amount of $311.65, and Mr and Mrs Jones agree not to pursue the order for contempt and other charges. If the trees are not removed to the satisfaction of both parties, another direction will be made for the short hearing and determination. 1. By affidavit sworn 5 November 2021, Mr Christopher Coussell, arborist, attested to the following: 1. I am a qualified arborist. 2. On 31 October 2021 I attended the premises of Mr Ross Stephenson at 48 Bedford Road, Woodford to supervise the removal of a number of trees bordering the property between Mr Stephenson and Mr and Mrs Jones of 50 Bedford Road, Woodford. 3. I can confirm that on 31 October 2021 the cypress trees identified to me by Mr Stephenson as trees 2, 3 and 4 were removed and all roots were severed. 1. The matter came before me for mention on 8 November 2021 at which time the Applicants indicated that they were dissatisfied with the tree removal due to the fact that the action was undertaken two days after the date it was required to be undertaken; the arborist only supervised the work and did not undertake it himself; and that the remnants of the removed trees remained on Mr Stephenson's land and had not been removed from that land in their entirety. Accordingly, as they were dissatisfied, the matter was fixed for hearing today. 2. As I have observed, the Applicants have failed to appear; Mr Stephenson appears before me today. 3. Whilst on the evidence I am satisfied that Mr Stephenson had failed to comply with the terms of the Tree Order within the time required for the annual pruning of the trees known as trees 2, 3 and 4, and that by failing to do so such action necessitated the bringing of this action by the Applicants to the Court, I am not satisfied that such failure necessitates, in the circumstances of this case, my moving to convict or to make an order finding Mr Stephenson in contempt of the Court order, or imposing a fine or other penalty. 4. Compliance with Court orders is a necessary part of the administration of justice in this State. When the Court makes orders the person who is obliged to comply with the orders must ensure that they take all steps to comply. The seriousness that the public holds such a failure to comply is reflected in the sentence that may follow upon a finding of contempt of a Court order, which includes fines and imprisonment. However, an appropriate penalty is in the discretion of the Court. In this case, it is apparent that the orders, and ongoing compliance with them, was operating to aggravate frictions on both sides of a neighbourhood dispute. The opportunity to take the ongoing compliance with the orders out of the daily lives of the parties was a more desirable outcome to all parties than punishing one party. For that reason, by acquiescing in the removal of the three trees, which was more than that which was required by the Tree Order, or to effect a purging of his contempt, I consider that Mr Stephenson has been adequately punished for the breach of the Tree Order on this occasion. 5. I further take into account the subjective circumstances of Mr Stephenson's character, his financial situation, and the circumstances in relation to the broader impact of the tree orders that have been observed by Pain J, which I have recited earlier in these reasons for my decision, which I adopt. For those reasons, whilst I find him in breach of the Tree Order, I make no finding of contempt, and I dismiss Orders 1 and 2 of the Amended Notice of Motion. 6. As observed above, due to Mr Stephenson's conduct, it was necessary that the Applicants commence these proceedings. As a consequence, they incurred the costs of filing the proceedings in the sum of $311.65; they are entitled to recover these costs, and I will order that such costs be paid within 14 days of the date of these orders. The Court orders: 1. Orders 1 and 2 of the Amended Notice of Motion filed on 1 June 2021 are dismissed; and 2. The Respondent is to pay the Applicants' costs in the sum of $311.65 within 14 days of the date of this order.