SECTION 1: Statutory Interpretation Problem Solving

This section is compulsory.

You must answer all questions in this section (Question 1 AND Question 2)

Word limit for this section: 900 words

 Question 1

Fred lives next door to Jojo on a residential street in West Moonah. Fred bought his property in 2013 and has spent the last 10 years re-wilding the garden, planting native grasses, shrubs and trees that attract and provide shelter for native birds and other wildlife. Fred is especially passionate about growing heritage plants. Heritage plants are plants that were thought to be extinct but have recently been rediscovered and made available for purchase. Around two months ago, Fred planted a newly-released heritage plant, the ‘Crimson Alert’ bottlebrush about 1 metre from the fence line between his property and Jojo’s. Every morning, Fred likes to sit and contemplate the beauty of the bottlebrush while he meditates.

The ‘Crimson Alert’ bottlebrush in Fred’s garden has just started flowering for the first time since he planted it, and is expected to flower for the next four months. The flowers of this bottlebrush are prized for their vivid red colour and their scent of nectar and honey. Recent research suggests that a small proportion of the population (around 1% of people) is allergic to the pollen released by the flowers of the ‘Crimson Alert’ bottlebrush. People who are allergic to the pollen may experience an anaphylactic reaction which, if not treated in hospital, can be fatal. This is the rarest form of pollen allergy in Australia, being almost four times less common than allergies to the pollen produced by other bottlebrush plants such as the lemon bottlebrush and the lime bottlebrush.

Jojo has started to find parts of the ‘Crimson Alert’ bottlebrush flowers that have blown over the fence and onto her lawn. Jojo’s six-year-old son, Bao, has had anaphylactic reactions to other types of bottlebrush pollen, requiring an ambulance and hospitalisation, at least twice a year for the past three years. Jojo is worried that Bao might also be allergic to the pollen of the ‘Crimson Alert’ bottlebrush if he touches it or breathes it in. There is currently no test available to determine whether Bao is allergic to the pollen produced by this recently released plant. Bao is a very active child and is frequently outside, running around and playing on the lawn. Jojo has rented her house from a friend for 20 years and does not want to move.

Jojo is unsure whether her land is affected by the bottlebrush plant within the meaning of s 7 of the Neighbourhood Disputes About Plants Act 2017 (Tas) (‘the Act’), and therefore whether she can ask Fred to take action to address her concerns under s 19 or s 22 of the Act.

Advise Jojo (and Fred) using the seven ingredients of problem-solving for statutory interpretation. Your advice should focus on s 7 of the Act. The Word template of the ingredients of problem-solving is available in the Week 9 > Part 2 MyLO materials.

/80

(approximately 800 words)

Question 2

Bina has recently been involved in a dispute with her neighbour, Cam, about a large gingko biloba tree growing in Bina’s garden. Bina loves to sit under the tree on sunny winter days and play the harmonica. The gingko produces fruit for about three months each year in summer and autumn. The fruit drops onto Bina’s lawn and, when it decomposes, it emits a strong unpleasant odour that is similar to the smell of vomit. Cam says he can smell the rotting gingko fruit inside his house, even if he keeps the windows closed. Bina tries to keep her garden tidy and occasionally rakes up the gingko fruits and puts them in the bin, but she travels frequently for work so this is not always possible.

Seven months ago, Cam started a home-based business as a barber. Approximately six clients visit Cam’s house each weekday for a haircut. Cam has noticed that he has about half the number of appointments booked each week compared to his bookings three months ago, and several of his regular clients have mentioned that they will postpone their next haircut until after the gingko has stopped fruiting.

Cam has written Bina a note asking her to cut down the gingko tree, citing s 7 and s 19 of the Neighbourhood Disputes About Plants Act 2017 (Tas). Bina wants to know if Cam has legitimate grounds to ask her to cut down her tree, or whether she can either ignore the note or offer an alternative solution that doesn’t require her to cut down the entire tree.

Based on the scenario above:

• Identify the relevant subsection(s) of s 7 and s 19 and the ambiguous word(s) or phrase(s) within those subsection(s) which require interpretation in order to determine whether Bina should cut down the gingko; and
• Explain why the ambiguity identified in (a) has arisen in relation to Bina and Cam’s case.

Note that you do not need to provide advice in relation to this scenario. You are only required to address questions (a) and (b) above and your mark will be based entirely on your answers to these questions.

/20

(approximately 100 words)

PART 1 – Preliminary

3. Interpretation

(1)  In this Act, unless the contrary intention appears –

affected land means an area of land that is, under section 7 , affected by a plant situated in whole or in part on another area of land;

 affected landholder means a landholder of land that is affected land;

 landholder, in relation to land, means –

(a) an owner of the land; and

(b) an occupier of the land;

occupier, in relation to land, means a person who is entitled to the immediate possession and occupation of the land;

 plant – see section 4;

4. Meaning of plantand plant situated on land

(1)  In this Act –

plant means any plant or part of a plant.

(2)  In this Act, plant includes –

(a) a tree; and

(b) a hedge or group of plants; and

(c) fruits, seeds, leaves, or flowers, of a plant; and

(d) a bare trunk; and

(e) a stump rooted in land; and

(f) any root of a plant; and

(g) a dead plant.

(3)  Despite subsections (1) and (2), plant does not include a member of a class of plants that is prescribed to be a class of plants to which this Act does not apply.

(4)  For the purposes of this Act, a plant is situated on land if –

(a) the base of the trunk of the plant; or

(b) a place at which a stem of the plant connects with the roots of the plant –

is, or was, situated in whole or in part on the land.

7. When land is affected by plant

(1)  Subject to this section, for the purposes of this Act, land (affected land) is affected by a plant that is situated on another area of land if –

(a) branches of the plant overhang the affected land; or

(b) the plant has caused, is causing, or is likely within the next 12 months to cause –

(i) serious injury to a person on the affected land; or

(ii) serious damage to the affected land or any property on the affected land; or

(iii) substantial, ongoing and unreasonable interference with the use and enjoyment by a person of the affected land.

(2)  Without limiting the generality of subsection (1)(b)(iii), a plant may cause substantial, ongoing and unreasonable interference with the use and enjoyment by a person of affected land by virtue of causing sunlight to be severely obstructed from reaching –

(a) a window (including a window in a door) of a building on the affected land; or

(b) a solar photovoltaic panel, a solar collector for a solar hot water system, or a skylight, situated on a roof of a building on the affected land.

(3)  Without limiting the generality of subsection (1)(b)(iii), a plant may cause substantial, ongoing and unreasonable interference with the use and enjoyment by a person of affected land by virtue of causing a view from a dwelling on the affected land to be obstructed, but only if –

(a) the plant is at least 2.5 metres high; and

(b) the plant causes the view to be severely obstructed; and

(c) the person is an owner of the land and the view from the dwelling was not so obstructed when the person took possession of the affected land.

(4)  For the purposes of this Act, land is not affected by a plant, other than as referred to in subsection (2) or (3), if no part of the land is situated within 25 metres from –

(a) the base of the trunk of the plant; or

(b) a place at which a stem of the plant connects with the roots of the plant.

PART 3 – Informal Dispute Resolution

19. Neighbours to attempt to resolve dispute

(1)  A landholder of land that is affected by a plant situated on another area of land may request the owner of the other land, verbally or in writing, to take action to ensure that the affected land ceases to be affected by the plant.

(2)  Both –

(a) a landholder of land that is affected by a plant; and

(b) the owner of the land on which the plant is situated –

are to make reasonable attempts to prevent the affected land being affected by the plant, or to minimise the degree to which the affected land is being, or will be, affected by the plant.

22. Notice about land affected by plant

(1)  A landholder of land that is affected by a plant situated on another area of land may give notice in writing to an owner of the other land.

(2)  A notice under subsection (1), from a landholder of land that is affected by a plant situated on another area of land is to –

(a) specify the grounds on which the affected landholder believes the land is being affected by the plant; and

(b) specify the action that the affected landholder considers the owner of the land should take, or ensure is taken, so that the affected land will cease to be affected by the plant; and

(c) request the owner of the land to respond in writing to the notice within a period, of not less than 14 days, specified in the notice.

 ADDITIONAL MATERIALS

Second reading speech

In the second reading speech introducing the Neighbourhood Disputes About Plants Bill 2017 (Tas), the responsible minister said:

‘The Bill has been introduced in response to concerns raised by the community that plant-related disputes are difficult to resolve, resulting in growing numbers of people and property being harmed by neighbourhood plants. This has included a number of tragic cases where serious injury or damage was predictable and could have been foreseen and dealt with if a proper dispute resolution process had been available to the parties. For example, there have been several instances where rotting tree branches have fallen into people’s gardens and caused them serious injury requiring hospitalisation.

‘Importantly, and because it is desirable to have friendly, peaceful and cohesive local communities, the Bill includes a number of provisions which are designed to encourage neighbours to attempt to resolve disputes by informal means before going down the path of more formal dispute resolution. The Bill outlines the steps for parties to try and resolve the situation informally before proceeding to formal dispute resolution. It recognises that people might have different preferences and interests but must be willing to negotiate and make compromises in consideration of their neighbours.’

Case law

Australian courts have previously characterised the right to quiet enjoyment of property as a common law right. In the High Court case of Kuru v State of New South Wales (2008) 236 CLR 1, the majority (Gleeson CJ, Gummow, Kirby and Hayne JJ at [37]) referred to ‘the strong principle of Australian law defensive of the quiet enjoyment by an occupier of that person’s residence’. The judges went on to say:

‘That principle has been recognised and upheld by this Court on numerous occasions. It derives from the principles of the common law of England. … It defends an important civil right in our society.’

SECTION 2:  Short Essay Questions

 This section is compulsory

 You must answer two of the three questions.

Word limit for this section: 900 words (i.e. approximately 450 words for each essay)

Please answer two of the following three questions. Your answer will be given a mark out of 100 and represents 50% of your exam mark.  DO NOT answer more than two questions.

Each of your short essays should:

• Begin with an introduction of three to five sentences in length that identifies the main thesis (broad argument) you wish to advance and explains how that thesis addresses the question posed.
• Advance 2-3 arguments or points that support the central thesis raised in your introduction.
• Provide reasons for each argument by explaining key examples (cases and/or legislation) and learning (drawn from articles, textbook readings and other commentary) from the unit. The point of this exercise is to test your understanding of the material presented in the unit. You should therefore keep references to other material to a minimum.
• Define and explain key concepts of statutory interpretation, legal method and technology that you incorporate into your essay.
• End with a conclusion that provides a conclusion to the central argument.

Each essay should include at least four footnote references to course materials. You can refer to the same material more than once.

Mark: /100

You will be given an overall grade based on the combined quality of your two short essays.

Write essays in response to two of the following options.

Option A

Can artificial intelligence (AI) support the decision-making of judges and/or statutory draftspersons? Support your arguments with at least two examples from this unit.

Option B

Imagine you are a judge who has been asked to decide the dispute between Fred and Jojo described in Section 1 of this exam. Explain how your decision would differ depending on whether you adopted the purposive approach or the literal approach, and discuss the strengths and weaknesses of each approach. Illustrate your answer with examples from Australian High Court judgments and/or points made by the judges in the Speluncean Explorers ‘case’.

Option C

“Statutory presumptions can always be rebutted by the use of clear language.” Discuss with reference to examples from Australian High Court judgments from this unit.