What happened?

The recent decision in Xu v Johns is a timely reminder that parties may be “estopped” from re-litigating issues that were previously determined by the Court.

Context

First Tree Dispute Proceedings - Xu v Seccombe [2023] NSWLEC 1670

On 6 June 2023, the Applicants brought proceedings against their neighbour in the Land and Environment Court under the Trees (Disputes Between Neighbours) Act 2006 (Trees Act).

The Applicants sought removal of four trees on the Respondent’s land as well as compensation for loss and damage purportedly caused by the trees.

Following three separate amendments to the Class 2 Application, on 26 September 2023, the Court dismissed the proceedings on the basis that the Applicants failed to establish that the subject trees had caused, or are likely to cause, damage or injury.

Second Tree Dispute Proceedings - Xu v Johns [2024] NSWLEC 33

Dissatisfied with the Court’s decision, on 20 December 2023, the Applicants filed a fresh Class 2 Application, seeking to re-litigate the same issues (this time confined to 2 of the 4 trees). In doing so, the Applicants sought to adduce fresh evidence to support their claim.

Rather than proceeding to a hearing (again), the Respondent filed an application for summary dismissal of the proceedings on the basis that the Second Tree Dispute Proceedings was an abuse of process and was also frivolous and/or vexatious.

Chief Justice Preston agreed with the Respondent and found that the Second Tree Dispute Proceedings was an abuse of process.

Accordingly, the Court dismissed the Second Tree Dispute Proceedings and ordered the Applicants to pay the Respondent’s costs.

His Honour found that the Second Tree Dispute Proceedings could not be brought on the grounds of res judiciata, issue estoppel and anshun estoppel.

These forms of estoppel are each described further below.

Res Judicata

The Court held that in the First Tree Dispute Proceedings, the Applicants litigated the statutory cause of action under s 7 of the Trees Act by adducing evidence and making submissions that the trees on the Respondent’s land caused damage to themselves and to their property. This cause of action is precisely what the Applicants alleged, for a second time, in the Second Tree Dispute Proceedings.

The doctrine of res judicata holds that any fact or right which has already been determined by an earlier decision cannot be re-litigated in any subsequent proceedings (unless they are appeal proceedings).[1] If the cause of action in both cases is identical and the judgment of the Court was “final and conclusive” as to the merits, the defence of res judicata will succeed and the party that brings the proceedings is estopped.

The Commissioner’s decision in the First Tree Dispute Proceedings meant that the Applicants were precluded from re-litigating the same cause of action in subsequent proceedings, even if it involves a different form of damage or further evidence to prove the cause of action.

Issue estoppel

The second ground for summary dismissal, issue estoppel, is a form of res judicata that applies where an issue that has already been determined in prior proceedings is raised for the purpose of some other claim or cause of action.

The Applicants sought to re-litigate the question of whether the roots of the trees on the Respondent’s land caused damage to their house. This question of fact was previously determined by the Commissioner in the First Tree Dispute Proceedings, thus estopping the Applicants from raising the issue again in the current proceedings.

Anshun estoppel

Taking its name from the High Court Case of Port of Melbourne Authority v Anshun Pty Ltd, the third ground for summary dismissal, Anshun estoppel, applies to issues that could and should have been decided in earlier litigation.

This form of estoppel applied in respect of the issue of whether the roots of the Respondent’s Loquat tree caused damage to the Applicants’ house.

His Honour found that the Applicants ‘made a forensic decision as to how best to run their case which was not to adduce evidence establishing that the roots of Tree 1 caused damage to their property.’  This was an issue that the Applicants could and should have raised in the First Tree Dispute Proceedings. As such, they were estopped from raising the issue in subsequent proceedings.

How will this affect you?

The Court’s judgment is a reminder that the long-standing principles of estoppel apply to proceedings brought under the Trees Act.

Applicants who seek to re-litigate disputes that have already come before the Court must carefully consider what distinguishes their current claim from issues already determined in previous proceedings.

Failure to do so may result in dismissal of the proceedings and an adverse costs order.

Further information

For further information please contact Darren Bick, Director, on +61 416 167 556 or darren.bick@bicksteele.com.au.

[1] Thomas Penberthy Fry, ‘The Finality of Judicial Decisions’ (1953) 2(1) The University of Queensland Law Journal 10.