Land and Environment Court of New South Wales CITATION : Breen & Anor v Caronna & Anor [2008] NSWLEC 293 APPLICANTS Murray Breen and Helen Breen PARTIES : RESPONDENTS Vince Caronna and Maria Caronna FILE NUMBER(S) : 20684 of 2008 CORAM: Sheahan J KEY ISSUES: Practice and Procedure :- removal of proceedings to a Judge Civil Procedure Act 2005 Family Provision Act 1982 LEGISLATION CITED: Land and Environment Court Act 1979 Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005 CASES CITED: Bartlett v Coomber & Anor [2008] NSWCA 100 Harris v Caladine (1991) 172 CLR 84 DATES OF HEARING: 17 October 2008 EX TEMPORE JUDGMENT DATE : 17 October 2008 APPLICANTS Mr J A Trebeck, Barrister LEGAL REPRESENTATIVES: RESPONDENTS Mr D Legg, Solicitor of Burridge & Legg JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Justice Sheahan 17 October 2008 20684 of 2008 Breen & Anor v Caronna & Anor EXTEMPORE JUDGMENT 1 His Honour: These Class 2 proceedings under the Trees (Disputes Between Neighbours) Act 2006 ("Tree Disputes Act") are currently before Commissioner Moore and Acting Commissioner Thyer and are due to resume on site at 4.30pm Monday 20 October. 2 The parties reached an agreement on their dispute just before the first appointed hearing, and prepared Consent Orders, but the Commissioners have so far declined to make them. The parties adhere to their desire for those Orders to be made by the Court to give effect to the settlement reached between them, and have brought before me as the Duty Judge a Notice of Motion seeking (1) an order pursuant to s.36(5) of the Land and Environment Court Act 1979 ("Court Act") removing the proceedings for hearing and determination by a Judge of the Court, and (2) an order in the form of two paragraphs of the consent orders. 3 The Notice of Motion was filed on behalf of the Applicants and argued today by Mr Trebeck of counsel, but the solicitor for the Respondents, Mr Legg, has signified in writing the Respondents' instructions not to oppose the orders sought. I have heard the Notice of Motion ex parte. 4 The Applicant Murray Breen has sworn and filed an affidavit in support. The Consent Orders (including a notation covering stump grinding) are in the Court file and are clear on their face. Mr Trebeck made detailed written and oral submissions and took me to the extensive evidence, including expert evidence, on the Court file. 5 The three trees involved would appear to be significant, and the damage they appear to have caused is also significant and could cause injury to persons, especially those like Mrs Breen who labour under some degree of disability when negotiating the damaged concrete. Significant sums of money are involved in the various recommended options. 6 The Chief Judge has assigned Commissioner Moore and Acting Commissioner Thyer to deal with this case, including those serious considerations. The Commissioners are part-heard. They certainly can make consent orders to dispose of a tree dispute, but they must first be satisfied of the matters in s.10, and must consider also the matters in s.12, of the Tree Disputes Act. These sections are comprehensive in their terms, and simply must be observed before orders are made. 7 There is no absolute obligation on a Commissioner in a tree dispute case to make orders agreed upon by the parties. Some Acts impose such an obligation in certain circumstances. I have in mind, for example, the duty imposed by s.34(3) of the Court Act, when agreement is reached at a conciliation conference appointed under that section. 8 In the present circumstances a Judge removing the case has no more powers, and no lesser obligations, than the Commissioner(s) assigned to the case. 9 The procedure under s.36(5) of the Court Act mirrors the removal procedure in the Supreme Court and District Court delineated in the Uniform Civil Procedure Rules 2005 (r.49). The power to "remove" is discretionary. It is usually exercised only where there is some doubt about the "assigned powers" of the lower-level decision-maker, or where other extenuating circumstances are proven to the satisfaction of the higher-level judicial officer. 10 In the present case, there is no doubt about the Commissioners' powers, nor about their responsibilities, one of which is to not make orders solely on the basis of an agreement between the parties, until and unless satisfied it is, under ss.10 and 12 of the Tree Disputes Act, appropriate that they do so. The only "extenuating circumstance" here would appear to be that the parties have not had their way – or at least not yet – in concluding the matter, and are required to attend upon the Commissioners again. 11 The Applicants' written submissions on the removal application contain many arguments in support of the consent orders, and the draft orders would appear to find some support in the evidence to which my attention was drawn. The submissions rely, firstly, on what is allegedly "cogent evidence which satisfies the statutory criteria". It would appear that the Commissioners have not yet concluded that that evidence is "cogent", nor that it "satisfies the statutory criteria". It is, certainly, not clear that they have concluded otherwise, and I express no view or conclusion on the evidence put briefly to me. 12 Secondly, the submissions assert that the parties are, and ought not be, "compelled to conduct adversarial litigation against their will". I accept what Mr Trebeck put to me about this being private litigation between private citizens regarding trees on private lands, but the Parliament has spoken, one household has commenced these proceedings, and the other has responded. 13 In Classes 1 and 2 this Court is now well beyond the world of "adversarial litigation". As Mason P said in Bartlett v Coomber & Anor [2008] NSWCA 100 (at [47]) the legal system depends on consensual resolution of disputes, even those in an adversarial process. A settlement has been reached in this case, and both sides now seek to convince the Court to make the orders agreed upon. That onus lies on them in the non-adversarial climate of a further on-site hearing, albeit that they see it as an imposition. The Court is merely following its guiding statutes, and the Commissioners must do their duty in the way prescribed, and I do not accept, with respect, the force of the submission. 14 Thirdly, the submissions call on the Court to give effect to the overriding purpose in s.56 of the Civil Procedure Act 2005 ("Civil Procedure Act"), which provides that the Court must "facilitate the just, quick and cheap resolution of the real issues in the proceedings". The "real issues" here are not limited to those between the parties; once a suite of issues in a tree dispute comes before the court those issues expand to include whether or not the court is satisfied regarding the requirements of ss.10 and 12 of the relevant Act, which are far more detailed than the usual "just and equitable" test. 15 It may well be, as Dawson J said in Harris v Caladine (1991) 172 CLR 84 at 124, that "little more than consent may be needed", and/or, as Hodgson JA said in Bartlett v Coomber (at [72]), that the Court does not generally need "any significant investigation of the evidence", but that is a matter for the Court to assess in each case, and in the case of tree disputes the Act lays down a regime for that process of decision-making. 16 I do not find the arguments in the submissions regarding tribunal orders and Family Provision Act 1982 settlements of much assistance, again with respect, given the detailed provisions in the Tree Disputes Act, unique to proceedings under that Act. 17 True it is, as the submissions say in par 26, that the purpose of the Act is primarily to facilitate the resolution of disputes between neighbours by use of what the Second Reading speech described as a "simple, inexpensive and accessible process". The moving parties chose that process rather than a private extra-curial negotiation and agreement. That was their call, but once the Court is seized of the dispute it must comply completely and conscientiously with the terms of the Act. 18 No grounds have been made out for me to make any order removing the matter to a Judge of the Court. To do so would certainly offend the injunctions in the Second Reading speech and in s.56 of the Civil Procedure Act. 19 The Notice of Motion is dismissed. The matter is returned to the Commissioners, and the resumption of the hearing, on site on Monday 20 October at 4.30pm, is confirmed. 20 There will be no order as to costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.