Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Monhem v Shields [2015] NSWCA 24 Hearing dates: 18 February 2015 Decision date: 18 February 2015 Before: Basten JA; Ward JA; Leeming JA Decision: Dismiss the application for leave to appeal, with no order as to costs. Catchwords: APPEAL – application for leave to appeal – failure of applicants to attend hearing before Land and Environment Court – refusal of judge to reopen final orders – appeal limited to errors of law – arguable error of approach – case presented before primary judge not shown to justify reopening PRACTICE AND PROCEDURE – application to reopen final orders – party served with originating process failed to attend hearing – no satisfactory explanation for non-attendance – whether material supported different outcome – orders partly effected – prejudice to other party Legislation Cited: Land and Environment Court Act 1979 (NSW), ss 56A, 57 Trees (Disputes Between Neighbours) Act 2006 (NSW) Uniform Civil Procedure Rules 2005, r 36.16 Cases Cited: Allesch v Maunz [2000] HCA 40; 203 CLR 172 Double Bay Newspapers v The Fitness Lounge [2006] NSWSC 226 Category: Principal judgment Parties: Mansour Monhem (First Applicant) Houda Monhem (Second Applicant) Ranald Shields (Respondent) Representation: Counsel: H Altan (Applicants) Submitting appearance (Respondent) Solicitors: Cordato Partners Lawyers (Applicants) Houston Dearn O'Connor (Respondent) File Number(s): 2014/214636 Decision under appeal Court or tribunal: Land and Environment Court of New South Wales Jurisdiction: Class 2 Citation: [2014] NSWLEC 99 Date of Decision: 18 July 2014 File Number(s): 2014/20160 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] JUDGMENT OF the COURT: 1. The applicants, Mansour and Houda Monhem, live on a residential property at Silverwater. Their land adjoins land owned by the respondent, Ranald Shields. There is a Camphor Laurel tree on their boundary which the respondent sought to have them remove and pay compensation for damage done by the roots on his land. The agreement of the applicants not being forthcoming, Mr Shields sought orders against the applicants in the Land and Environment Court under the Trees (Disputes Between Neighbours) Act 2006 (NSW). On 23 May 2014, Commissioner Fakes conducted an on-site hearing. The Commissioner was satisfied that Mr and Mrs Monhem had been served and deliberately did not attend the hearing. The Court made orders putting in place a detailed regime for the removal of the tree and for various rectification works to be paid for by the applicants. 2. On 1 July 2014 Mr and Mrs Monhem applied to have the Commissioner's orders set aside, pursuant to Uniform Civil Procedure Rules 2005, r 36.16, the orders not having been entered, on the ground that the hearing had occurred in their absence. On 18 July 2014, Sheahan J dismissed the motion. The applicants now seek leave to appeal from that judgment. Mr Shields has filed a submitting application in this Court. An appeal is limited to a question of law: Land and Environment Court Act 1979 (NSW), s 57(1). Being in relation to an application to reopen, leave is required: s 57(4)(d). 3. The point made by Mr and Mrs Monhem in seeking leave is that the primary judge erred in principle, by applying authorities applicable when there has been a hearing in the presence of a party. It is said that a more relaxed test, as stated in Allesch v Maunz [2000] HCA 40; 203 CLR 172, should have been applied because the failure to appear has been adequately explained. 4. There has been a long history of acrimony between the neighbours. However there is no dispute that on 1 April 2014, Mr Shields effected personal service of the originating process upon Mr Monhem. There is an affidavit of service to that effect, and affidavits of Mr Monhem and his son. Both latter affidavits confirm receipt of the originating process, and the fact that the Monhems took the view that they would not communicate with Mr Shields any more. It also seems that Mr and Mrs Monhem were advised by their son, without viewing the document, that any originating process would have been sent to them directly by the Court. 5. There is much to be regretted: Mr and Mrs Monhem do not read or write English and are elderly; all parties are of limited means. However, the findings of fact demonstrate that applicants were accorded the opportunity to participate in the hearing, knowing that it was to take place and had the usual opportunity provided by court procedure to know what was sought from them. (Mr Shields' claims had already been put to them in writing in detail.) Those findings could not be challenged in this Court: Land and Environment Court Act, s 57. Even could they, on the material before this Court they seem to have been inevitable. 6. So far as error of law is concerned, the applicants submitted that Sheahan J, in holding that the judgment below could not be set aside except in "limited, special, or wholly exceptional" circumstances applied the wrong test. That may be so. This was not a case in which leave was sought to reopen a judgment after a full hearing. As explained by White J in Double Bay Newspapers v The Fitness Lounge [2006] NSWSC 226, the power conferred in the absence of appearance is broadly expressed and applies in a wide range of circumstances. Nevertheless, it will be exercised only on a proper basis. A court should be allowed a degree of flexibility in determining when to allow a final judgment to be reopened, particularly in a case in which the only right of appeal is limited to a question of law: Land and Environment Court Act, s 56A. There is no issue of principle which can be usefully elucidated in this case. 7. Nor has a miscarriage of justice been established. It appears that the applicants conceded before Sheahan J that they needed to show a bona fide issue to be tried and to provide a reasonable explanation for their failure to appear. Sheahan J was not persuaded that they had a satisfactory explanation for their failure to appear. They were served personally; a letter from the Court, receipt of which was not denied by the applicants themselves, advised them of the date fixed for the hearing at Mr Shields' premises. On the day of the hearing the Commissioner herself knocked on the applicants' door but received no response, although the mother accepted she was in the house. The applicants clearly did not accept the conclusions reached by the Commissioner on the facts, but did not put forward new material which cast doubt on the findings: nor did the submissions in this Court provide a basis for a further hearing. The tree has now been removed: the effect of now ordering a rehearing would be to cause further inconvenience and possible expense to the respondent. 8. Whilst the discretion to reopen is not expressly fettered, good grounds must be established for the Court to exercise the power to set aside a judgment, albeit in circumstances where the orders have not been entered. It is not demonstrated that any proper basis was put before Sheahan J to support that step. 9. The application for leave to appeal is dismissed. Given that the respondent submitted, there should 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. Decision last updated: 19 February 2015