Land and Environment Court New South Wales Medium Neutral Citation: Evans v Anderson (No 2) [2011] NSWLEC 169 Hearing dates: 26 September 2011 Decision date: 26 September 2011 Jurisdiction: Class 2 Before: Pepper J Decision: The Court dismisses the notice of motion with no order for costs. Catchwords: COSTS: whether the plaintiff should be awarded costs in respect of contempt proceedings no longer pressed by the plaintiff - application dismissed Legislation Cited: Civil Procedure Act 2005 s 98 Land and Environment Court Rules 2007 r 3.7(2) Trees (Disputes Between Neighbours) Act 2006 s 14B Cases Cited: Australian Securities and Investments Commission v Sigalla (No 4) [2011] NSWSC 62 Evans v Anderson [2011] NSWLEC 1024 Gerondal v Eurobodalla Shire Council (No 6) [2011] NSWLEC 132 Category: Procedural and other rulings Parties: Maxwell Evans (Applicant) Larry Anderson (Respondent) Representation: Ms J Ellyett (Solicitor) (Applicant) Mr L Anderson (Respondent - in person) Lawmark Solicitors & Notaries (Applicant) Mr L Anderson (Respondent- in person) File Number(s): 20829 of 2010 EX TEMPORE Judgment Proceedings for Contempt are Initiated by the Plaintiff 1This is an application commenced by the plaintiff, Mr Maxwell Evans, that the defendant, Mr Larry Anderson, a respondent in Class 2 proceedings commenced by Mr Evans pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006, pay the costs of abandoned contempt proceedings commenced because of Mr Anderson's failure to comply with orders made by the Court on 21 February 2011 ( Evans v Anderson [2011] NSWLEC 1024). 2In the substantive proceedings, Mr Evans sought the removal of nine Leighton Green Cypress trees from Mr Anderson's land at 28 Watkins Road, Avalon. In addition, he sought the replacement of those trees with other species of tree and the maintenance of the newly planted trees to a specific height. Mr Anderson opposed the orders sought. 3After a hearing, the Court ordered that: (1) the application to remove the trees was dismissed; (2) the respondent was to engage and pay for "an AQF Level 3 (tradesperson) horticulturist or arborist to prune the cypress trees to a height of no more than 3.2 metres"; (3) thereafter, the trees were to be maintained at a height of no greater than 3.5 metres at the cost of Mr Anderson; and (4) "the initial pruning is to be carried out within 60 days of the date of these orders", that is, by 22 April 2011. 4The notice of motion in respect of the contempt proceedings was filed by Mr Evans on 5 August 2011, together with an accompanying statement of charge. In the notice of motion Mr Evans sought orders that Mr Anderson be punished for contempt for disobeying orders 2, 3 and 4 made by the Court on 21 February 2011. The notice of motion also sought an order that Mr Anderson pay Mr Evans' costs. 5At the hearing before the Court today, the contempt order was not pressed by Mr Evans. This is because, according to Mr Evans, since the date of the initiation of the contempt proceedings he has been satisfied that the trees have been pruned to the requisite height of 3.2m. However, the order for costs remained extant. 6Mr Evans was not present in Court but was represented by his solicitor, Ms Judith Ellyett. Mr Anderson was present in Court and represented himself. 7The question for the Court to determine is whether or not Mr Anderson should, as Mr Evans seeks, pay Mr Evans' costs of the contempt notice of motion. Unsurprisingly, Mr Anderson resists such an order. Evidence of Mr Evans 8The evidence relied on by Mr Evans is as follows. First, he relied on an affidavit of Mr Maxwell Evans sworn 26 July 2011. In that affidavit, in addition to setting out some of the background the Court has already detailed above, Mr Evans states that on 20 June 2011 his solicitors sent a letter to Mr Anderson complaining about the non-compliance with the Court orders. The letter stated that within 7 business days Mr Anderson was to rectify his contravention of the orders of the Court or else contempt proceedings would be commenced. Mr Anderson did not respond to the letter. 9On 28 June 2011 Mr Evans became aware that Mr Anderson had engaged a tradesperson from Campos Tree Service Pty Ltd ("Campos") to prune the trees. There was on this day a conversation between the tradesperson and Mr Evans to the following effect: Maxwell Evans: "Were you engaged by Larry Anderson to prune his trees today?" Employee from Campos Tree Service: "Yes" Maxwell Evans: "Was Mr Anderson with you during the job?" Employee from Campos Tree Service: "Yes" Maxwell Evans: "What height did you cut them to?" Employee from Campos Tree Service: "We cut them to where we were told to." Maxwell Evans: "Did you know there was a Court Order to cut them to 3.2m?" Employee from Campos Tree Service: "Yes well some may be under or over that." Maxwell Evans: "So did you measure them or follow Mr Anderson's directions?" Employee from Campos Tree Service: "He told us where we cut them." Maxwell Evans: "Because this is a legal situation, you will probably get a call from my Solicitor. Is that O.K?" Employee from Campos Tree Service: "Yes" 10As a result of this exchange and based on his own observations, Mr Evans remained of the view that the trees had not been cut to the required height of 3.2m. Therefore, on 1 July 2011 his solicitors sent a further letter to Mr Anderson. The letter referred to the previous letter dated 20 June 2011 where Mr Anderson had been given 7 business days to rectify his contravention of the orders. The letter stated that contempt proceedings would now be commenced against Mr Anderson because while the trees had been pruned, they nevertheless remained at a height in excess of 3.2m. In that letter Mr Evans stated he would be seeking his costs of the contempt proceedings. 11This prompted a response from Mr Anderson dated 8 July 2011, in which Mr Anderson stated that the trees "have been pruned. In fact, many of the trees are well below the height sited." 12Mr Evans went on to depose in his affidavit that as of the date of the signing of his affidavit, that is 26 July 2011, the trees continued to remain over 3.2m. Four photos were annexed to Mr Evans' affidavit purportedly demonstrating this fact. The photos depicted a stick with a red and white band at the top of it located in vegetation. It was asserted by Mr Evans that the photographs were taken on 24 July 2011, and that the red indicator demonstrated the height of 3.2m and that the vegetation was in excess of that height. However, there was no objective indication on the stick as to its height or where the end of the stick, not visible in the photographs, had been placed, nor was there any verification that the vegetation consisted of the impugned trees. As such, the Court placed very limited weight on the photographs and Mr Evans' evidence in this regard. 13Second, Mr Evans relied on an affidavit of Ms Ellyett. Ms Ellyett gave further background to the contempt proceedings. In particular, she stated that on 25 August 2011 an email was sent to her from Mr Evans indicating that on 24 August 2011 Mr Evans had arrived home to find that the trees had been trimmed, on this occasion apparently in compliance with the Court orders. 14On 6 September 2011 Ms Ellyett sent a letter to Mr Anderson stating that the trees had been appropriately pruned but requested evidence that the pruning had been carried out by "an AQF level 3 (tradesperson) horticulturist or arborist". The letter went on to state that once this evidence had been received by her, she would advise Mr Evans to vacate the hearing listed on 26 September 2011. In due course this evidence was provided. Evidence of Mr Anderson 15Mr Anderson relied on an affidavit sworn by him on 22 August 2011. He stated the following in that affidavit (at paragraphs 4 and 5): 4. As per the Judgement [sic] I engaged a tradesperson and shared with them a copy of the Orders. The Orders were read and understood by the tradesperson. 5. With this information, the tradesperson pruned the said tress [sic] to a height of 3.2 metres following the downward slope on the east-to-west boundary of my property, I paid the tradesperson for his services. 16The affidavit of Mr Anderson went onto state that he subsequently retained Urban Forestry Australia, a consulting arboriculturist, to provide an independent report showing that the trees were at a height of 3.2m. A copy of the report dated 26 August 2011 (curiously four days after Mr Anderson had sworn his affidavit) from Ms Catriona Mackenzie, a consulting arboriculturist, horticulturist and landscape designer with Urban Forestry Australia, was annexed to his affidavit. In the report Ms Mackenzie stated that in some places the tree height was considerably less than the maximum 3.2m required. 17A subsequent letter dated 9 September 2011 from Ms Mackenzie to Mr Anderson confirmed that she held an Australian Qualification Framework Level 5 in arboriculture. 18Mr Evans also relied on an affidavit of Mr Paulo Campos sworn 1 September 2011. In that affidavit Mr Campos stated that he is a "tree service tradesman". No further explanation was given as to what this description means and whether his qualifications meet the criteria of "an AQF Level 3 (tradesperson) horticulturist or arborist". Mr Campos stated that he was engaged by Mr Anderson to prune the trees to a height of 3.2m. Mr Campos states that he in fact "cut the trees at a height of 3.2 metres". He also stated that he did not cut all the trees to that height because one was already below 3.2m. Although he does not state explicitly that he is the same person who had the conversation referred to in Mr Evan's affidavit, I readily infer that he is. 19Mr Anderson gave further oral evidence to the Court. On oath Mr Anderson stated three important matters: (a) first, that the tradesperson referred to in paragraphs 4 and 5 of his affidavit sworn 22 August 2011 was Mr Paulo Campos; (b) second, that although he could not recall when, within the 60 day period specified by the Court orders Mr Anderson had engaged another tradesperson to cut the trees below the requisite height. Mr Anderson acknowledged that this important evidence was not contained in his affidavit; and (c) third, he acknowledged that nowhere in Mr Campos' affidavit did it state when Mr Campos had pruned the trees, and moreover, he was not able to recall the date. 20Mr Anderson was cross-examined on his evidence that within the 60 day period specified by the Court he had engaged a horticulturist or arborist to prune the trees. He did not resile from his evidence, although he conceded that he could not recall whom he had engaged or when the pruning had taken place. When Were the Trees Properly Pruned? 21The Court is troubled by the critical omission from Mr Anderson's affidavit as to the engagement of the first tradesperson by him to prune the trees. Even allowing for the fact that Mr Anderson is a self-represented litigant, the omission is telling. That Mr Anderson could not recall when this event occurred or whom he engaged serves only to augment the Court's sense of unease as to the correctness of this evidence. 22I did not find Mr Anderson's explanation as to why this central piece of evidence had been omitted from his affidavit compelling, namely, that his affidavit was only in response to later correspondence from Mr Evans. 23In all the circumstances, I do not accept Mr Anderson's evidence in this regard. Accordingly, I cannot find that within the 60 day period the trees were pruned as mandated by the Court orders. On the contrary, I find that they were not. 24However, this is not the end of the matter. The question then becomes at what point were the trees properly pruned by reference to the date upon which the proceedings for contempt were commenced, viz , on 5 August 2011. 25As the evidence of both Mr Anderson and Mr Evans clearly demonstrates, it appears that the very latest the trees were pruned was on 28 June 2011. So much so appears from the conversation that Mr Evans had with Mr Paulo Campos on that day. 26As referred to above, the affidavit of Mr Campos does not indicate when the trees were pruned. The Court also does not know, and there has been no evidence put before the Court either way, as to whether or not Mr Campos is "an AQF level 3 (tradesperson) horticulturist or arborist". No challenge was made by Mr Evans either at the time, or since, that Mr Campos did not possess these qualifications. The orders of the Court did not require any such proof to be furnished to Mr Evans or the Court. 27In light of the evidence before the Court, the Court finds that on 28 June 2011 the trees were pruned. Giving Mr Anderson the benefit of the doubt the Court also finds that Mr Campos was a suitably qualified horticulturist or arborist. 28The next question is whether or not on that date the trees were pruned in conformity with the Court orders. There is an inconsistency between the conversation between Mr Campos and Mr Evans, wherein Mr Campos suggested that only some of the trees pruned were under 3.2m, and the evidence given by Mr Campos in his affidavit that indicates that all of the trees in excess of 3.2m were pruned to that height. Mr Evans did not require Mr Campos for cross-examination. Having said this, Mr Anderson did not seek to challenge Mr Evans' evidence of the conversation. 29Again, the Court is willing to give Mr Anderson the benefit of the doubt and accepts the evidence contained in Mr Campos' affidavit that the trees were cut to 3.2m. 30Accordingly, by 28 June 2011 Mr Anderson had complied with the orders of the Court made on 21 February 2011. That is to say, prior to the filing of the statement of charge and the notice of motion instituting the contempt proceedings, the Court imposed obligations, albeit late, had been satisfied by Mr Anderson. 31Mr Anderson informed Mr Evans of this position in his letter dated 8 July 2011 to Ms Ellyett. But notwithstanding this notification and notwithstanding Mr Evans' own knowledge of the pruning that had taken place on 28 June 2011, proceedings were commenced by Mr Evans. Power of the Court to Award Costs 32Mr Evans submitted to the Court that because the contempt proceedings were filed within the framework of Class 2 proceedings, r 3.7(2) of Land and Environment Court Rules 2007 ("the Rules") applied. That rule states that the Court may not make an order for the payment of costs "unless the Court considers that the making of an order as to the whole or any part of costs is fair and reasonable in the circumstances." 33If this is the correct basis upon which the Court is empowered to award costs in the present application, it is plain that the starting point for the Court under this rule is that no order for costs may be made unless the Court considers that to do so would be "fair and reasonable in circumstances". This imposes a higher burden on a party seeking an award of costs than the general rule that is applied in other classes of the Court's jurisdiction where costs are wholly at the discretion of the Court but usually follow the event. 34Alternatively, assuming that but for their abandonment these proceedings were civil contempt proceedings (see the distinction in Australian Securities and Investments Commission v Sigalla (No 4) [2011] NSWSC 62 at [7]-[9] and [77] per White J), then it is arguable that the costs of this application fall to be determined not by r 3.7(2) of the Rules, but by the application of general costs principles applying to contempt proceedings in this Court (Gerondal v Eurobodalla Shire Council (No 6) [2011] NSWLEC 132 at [19] per Pain J). If so, then costs would be at the Court's discretion (see s 98 of the Civil Procedure Act 2005) which, in the usual case, aligns with the rule that costs follow the event. 35Ultimately the issue is not one that I am required to decide given my finding that irrespective of what is the appropriate basis for enlivening the Court's jurisdiction to award costs, the result is the same. Costs Ought Not be Awarded 36If r 3.7(2) is the correct basis for the costs order, the Court would not order costs in favour of Mr Evans. The Court considers that, particularly when regard is had to some of the circumstances in which the Court may consider making a costs order enumerated in r 3.7(3), to order costs in the present factual matrix would be neither fair nor reasonable. The Court does not consider that the behaviour of Mr Anderson was such that he has either acted unreasonably in the conduct of the contempt proceedings once commenced, or that he acted unreasonably in the circumstances leading up to the commencement of the contempt proceedings. This view is held even when regard is had to his dilatory compliance with the orders. 37While I accept that there is some force in Mr Evans' submission that it was the threat of the contempt proceedings that caused Mr Anderson to engage Mr Campos on 28 June 2011 to prune the trees to the Court ordered height, the fact nonetheless remains that as at that date, as the Court has found, the trees were properly pruned and that notwithstanding notification of this fact by Mr Anderson to Mr Evans on 8 July 2011, Mr Evans nevertheless proceeded to file the notice of motion for contempt on 5 August 2011. Whilst I accept that Mr Evans believed as at 28 June 2011 that not all of the trees had been pruned to the necessary height, this belief alone is not sufficient to warrant, in my opinion, an order for costs being imposed on Mr Anderson under r 3.7(2). 38In the alternative, if the general discretion of the Court unfettered by the strictures of r 3.7(2) is the applicable power pursuant to which costs may be awarded in the present application, I would similarly not exercise my discretion in favour of Mr Evans. The fact remains that, as the Court has found, prior to 5 August 2011 the trees were pruned to a height that conformed to the Court's orders. There was no need, therefore, to institute contempt proceedings. 39Finally, the Court notes that it is highly regrettable that the proceedings have taken the course that they have and that the parties have not been able to resolve this dispute absent the need for Court intervention. The result has been wasted time and costs suffered by both parties. Orders 40For the reasons given above, the Court dismisses the notice of motion and there is no order for 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. Decision last updated: 27 September 2011