Babbage v Dungog Shire Council

[2005] HCATrans 98

[2005] HCATrans 098

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S221 of 2004

B e t w e e n -

ERIN JANE SCOTT BABBAGE

Applicant

and

DUNGOG SHIRE COUNCIL

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 MARCH 2005, AT 11.28 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR A.C. SCOTTING, for the applicant.  (instructed by Enrights)

MR M.T. McCULLOCH, SC:   May it please the Court, I appear with my learned friend, MR S.P.W. GLASCOTT, for the respondent.  (instructed by Phillips Fox)

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   Can I take your Honours to page 80 of the application book where, in paragraph 74 of Justice Santow’s reasoning, for which we seek special leave to appeal, appears most prominently.  At the beginning of that paragraph, starting at line 35, his Honour commits an error, which is an error in relation to facts, as to the nature of the alternative approach to that which was in the fact adopted by the Council which, on our case, accepted by the trial judge, would have led to the avoidance of the risk which materialised so as to cause the terrible injuries to my client.  That is not the special leave point, but I point it out because it is an important foundation for the special leave point.  The special leave point starts at about line 45:

As Mr Gray attested, it would indeed by likely to be beyond the financial capacity of a thinly populated Shire –

et cetera, and what would be likely beyond is of course this wrongly…..alternative system – I am going to take your Honours briefly to what Justice Burchett actually found was the alternative system, and it had nothing to do with, as it were, a full-time continuously travelling tertiary‑educated arborist looking at trees.  It had to do with the robust commonsense of rural workers.

Then his Honour clinches the matter by saying:

Thus evidence was given as to the Council’s financial situation.

Your Honours could be forgiven for thinking that that was the beginning of a consideration of a kind anticipated in appropriate cases in the then future by the majority in Brodie.  Your Honours could also be forgiven for thinking that it was moving right into the area discussed by this Court in Graham Barclay, the oysters case, and in particular by your Honour the Chief Justice, although not only there.

His Honour said that “It” - that is, evidence as to the financial situation – “disclosed a surplus of $608,000” and your Honours should treat that as a surplus in the annual accounts between revenue and outgoings simpliciter; that is, for the whole financial operation.  Then his Honour moves to what turns out to have been the reason for the decision.  I quote:

There were $2.728 million of expenses applicable to transport and communications –

and within the rubric of “transport” your Honours should understand roads and road maintenance and the attendance to such matters as ought to be attended to, and the verge of roads would be included.  Then I continue the quotation –

as against revenues from that source of $1.717 million.

I am unable to tell your Honours the detail of how those revenues were calculated, but your Honours are aware of course that local government councils are not in themselves on all fours and analogous with private business enterprises.  Then his Honour went on:

Given that the operating result applicable to transport and communications showed a loss –

whether the words “surplus” or “profit” are hovering in the background by way of contrast may be speculated –

of $1.011 million, the scope for any more ambitious programme than the modest “reactive” one criticised by the trial judge, was self‑evidently not there.

GLEESON CJ:   What did the trial judge say the Council should have done by way of a system?

MR WALKER:   And may I take your Honours directly to that, that is the next thing to be looked at.  The climax of that is to be found on page 15 of the application book, paragraph 19, but may I postpone very slightly taking your Honours there so as to put it in the context starting at page 9.  At page 9, paragraph 13, line 40 or thereabouts his Honour makes findings of fact, not fairly to be criticised, about the nature of the tree which, having fallen over the road, was then collided with by my client, which:

had been for a number of years in an obviously sickly condition ‑ ‑ ‑

GLEESON CJ:   How far out of town was this tree?

MR WALKER:   It was about two kilometres.  His Honour uses the expression “quite close”:

indicative of the likelihood that the root system on which its stability depended would also be unhealthy, and weakened.

That is really a very solid factual foundation, if I can use those unfortunate expressions, for the conclusions his Honour found about the insecure foundation of that tree.  Going on:

The Council itself, by entrusting its supervisors with the assessment of complaints –

that is the so-called reactive system.  Complaints would come in and there would be a reaction to complaints –

acknowledged the practical experience of its country-bred employees –

quite so.  No specialist arborists, let alone on expensive daily retainers –

and I am satisfied that they, and certainly the supervisors, were well able to recognise the potential danger of such a tree.

That is the finding of fact upon which we again would maintain there is a solid foundation of fact for an argument proper for this Court. 

Then at the foot of that page, page 9, line 56 over to the top of page 10 there is a reference to a case that his Honour did not think was necessary - your Honours will see the parenthesis on the first line of page 10 – namely, obtaining expert advice in order to issue an appropriate instruction.  So that is providing supervisors with what is called minimal guidance.  Again, this is not the expensive daily travel and retainers of arborists to actually do the inspection themselves at all.

On page 10, still in paragraph 13, could I draw attention to one of the formulations by his Honour towards the matter that culminates in paragraph 19, to which I am coming.  Halfway down that paragraph, about line 11:

It could have issued –

the Council could have issued –

a general instruction to them –

that is, the workers –

to be proactive themselves, as they went about the roads carrying out maintenance work, in order to detect and deal with potentially dangerous trees, just as, I have no doubt, it would have expected them to observe and remedy blocked culverts in sections of roads where they were working.

Now, pausing there, it is impossible to understand how it could ever have been considered that there would have been any need to cost in some elaborate and detailed fashion the budgetary implication of giving an instruction to already employed workers to keep an eye out for dead trees or sick trees in the same way as they might keep an eye out for dysfunctional ponding where there ought to be drainage in the vicinity of a culvert.

GLEESON CJ:   What did the Court of Appeal say about the finding of fact in the last sentence of paragraph 13?

MR WALKER:   There is no explanation of why that was wrong but rather an approach which says that the system, the alternative system proposed, would have required many hundreds of kilometres of road and therefore many hundreds of kilometres of trees to be inspected.  The second approach was to doubt the acumen or capacity of the Council supervisors to have spotted that this tree, this kind of tree, was sick, but as I say ‑ ‑ ‑

GLEESON CJ:   What was the evidentiary foundation for that finding of fact?

MR WALKER:   The evidentiary foundation was that there was evidence concerning the reactive system by which upon complaints being received Council workers, some of whom, including supervisors, were called and cross‑examined, would consider for themselves whether or not the reaction to the complaint ought to be removing the tree or not.  In short, the proof of the pudding was in the eating.  They did apply judgment.

GLEESON CJ:   Well, the system that Justice Burchett had in mind just amounts, does it not, to a system instructing Council workers to keep an eye out for dangerous trees?

MR WALKER:   That is right, and that is why, if I come to page 15 paragraph 19, that is what he ‑ ‑ ‑

GLEESON CJ:   That is why I just questioned the basis of his finding that if they had been given an instruction to keep an eye out for dangerous trees, they would have identified this one.

MR WALKER:   There was evidence about the tree; how it stood out as having a remarkably sparse crown of leaves, for example.  In other words, it was not just any tree.

HEYDON J:   Mr Justice Santow on page 79, paragraph 68, said that the supervisors, Messrs Turner and Cox, were not, as it were, squarely cross‑examined on whether they should have noticed that the tree was vulnerable.

MR WALKER:   They were both examined and cross-examined on their conduct under the reactive system, that they did make decisions as to whether trees were or were not in response to a complaint such as required removal.  As your Honours would have seen from our written submissions, in relation to the observation by Justice Santow at line 16 about Mr Turner, the defect in the Court of Appeal concerning that was that Mr Turner gave no evidence-in-chief at all about having been involved in the enterprise of assessing trees.

GLEESON CJ:   But it is the case, is it not, that rightly or wrongly the Court of Appeal overturned the finding in the last sentence of paragraph 13, and did so in paragraph 69 of its reasoning?

MR WALKER:   Yes.

GLEESON CJ:   Now, they may have been right and they may have been wrong about that, but they overturned the finding which was the foundation of the decision on liability of the primary judge.

MR WALKER:   Yes, with the ‑ ‑ ‑

GLEESON CJ:   Which was a finding about whether a particular tree would have been noticed if people had been told to keep an eye out for trouble.

MR WALKER:   Yes, and the reasons why that was a wrong overturning, including the failure to pay regard upon whom the burden fell forensically of adducing evidence from somebody, has been addressed in our written submission.

GLEESON CJ:   But that does not have much to do, does it, with this question of justiciability of Council works programs?

MR WALKER:   I know, which is why I have introduced it as an essential foundation to make that argument meaningful, and that is why I have to go back to the trial judge’s findings ‑ ‑ ‑

GLEESON CJ:   But if the case comes on appeal to us, our principal concern, I presume, will be with whether or not the Court of Appeal was justified in overturning the trial judge’s finding that if Council workers had been told to look out for trouble they would have noticed this tree.

MR WALKER:   Yes, your Honour.  The way in which in paragraphs 68 and 69 at page 79 of the application book that matter is dealt with is - see the rhetorical question at line 15 - in effect to say there was no evidence.  There was evidence; namely, there was the evidence comprised by the assessment by the trial judge of these people who, after all, were in the witness box professing an inability.  He assessed that inability against what was really not contested concerning their discharge of duties under the existing reactive system of responding to complaints and formed his assessment of their capacity in light of what he heard about this particular tree, to have noticed if they had been asked to notice.

One of the difficulties with the questions that Justice Santow posits should have been in the cross‑examiner’s court is that they are of necessity hypothetical.  No one was putting that they had noticed the tree.  The question is, had they been on the lookout, would they have noticed the tree?  That is why the judge makes the finding that they must have seen it - see page 15, paragraph 19, line 29 - because the route was one which was almost daily traversed by Council workers – this is a loop road with a destination, which was part of their ordinary work routine in it, this is not a remote road - and he finds that it showed obvious signs that its stability was compromised.  That, in our submission, is a finding of fact which is not to any degree satisfactorily explained as being wrong – leaving only the question, a hypothetical, upon which one could well inquire, “What admissible cross‑examination could there be?  Had you seen a tree, which is no longer available for you to see, had you seen a tree, would you have regarded it as displaying remarkable qualities of being sick and therefore dangerous?”

GLEESON CJ:   Was there any evidence as to how many other trees there were within the area of the Dungog Shire Council that would have had to be cut down on the basis of this criterion?

MR WALKER:   The facetious answer is no because there is no number, but the proper answer is yes, there was an abundance of evidence of two things superficially contrary to our position.  The first is many hundreds of kilometres of road and the second is many, many trees.  So there was evidence of a lot of trees.  There was also evidence of trees being, as you would expect, blown down from time to time, particularly in high winds.  This is a tree plus wind case, not the forest giant falling silently without warning in still conditions.

Yes, there was evidence about lots of trees, and that is why the distinctiveness of the tree was something with which the trial judge was seized as a question of fact in hypothesising what would have happened under a practical alternative system.

GLEESON CJ:   Do we know how long it was between the time the tree fell in the storm and the time your client drove into it?

MR WALKER:   We do not know, but it is all in the same day obviously, yes.  We do not know that.  There was a contributory negligence allegation which was unsuccessful.

HEYDON J:   But it looks as though the plaintiff was injured around 11 pm, and shortly before 11 the storm was raging.

MR WALKER:   Yes.

HEYDON J:   So the time of the fall and the time of hitting the tree might have been quite a short interval.

MR WALKER:   Yes, quite so.  This was not a case of course where there was any allegation of negligence found by the trial judge in relation to a failure to have cleared the debris up or to give a warning about it between the event of the storm ‑ ‑ ‑

HEYDON J:   And the accident.

MR WALKER:    ‑ ‑ ‑plus the collision.  That would have been a very different case.  That is not this case.  This is a case about proportions of a kind that were talked about for future cases in Brodie, where you are aware, as a Council like Dungog would be aware, of the danger constituted by weakened trees being vulnerable to falling over and to their falling over in the path of vehicular traffic, particularly at night or in storms, obviously constituting foreseeable risk; there is no real contest on that.  The question is by way of reasonableness of response.

GLEESON CJ:   Yes, and having regard to the very modesty of the precaution which the trial judge suggested, which you emphasised, that is an instruction to Council workers to keep an eye out for potentially dangerous trees and not just to respond to complaints, the factual issue of whether, if such an instruction had been given and obeyed, this tree would have been identified is central to the outcome, is it not?

MR WALKER:   Yes, and so if one goes to page 80, which is where I started, and sees the paragraph immediately preceding, one of our complaints advanced in our written submissions, and we entirely accept it must go like horse and carriage with the point of principle I raise, is the approach taken by the Court of Appeal there, where they have expressly departed from disbelief by the trial judge who saw these people, saw and heard these people and decided not to accept the self-deprecation which was assiduously practised by them concerning their understanding as country boys born and bred about gum trees which did not have much by way of leaf cover on the top when they were big trees.

Now, they were rejected.  They were more astute, so the judge assessed, having heard and seen them, than they let on in the witness box.  The Court of Appeal instead regarded, from the transcript, that answer in cross‑examination, an answer which on the face of it is fairly remarkable, the uprightness of the tree, according to that country man, would mean no concern about it.  That presumably means that anything that has not fallen because it is upright is not something regarded as posing a risk of falling.  In our submission, to have seen that as a telling response – Justice Santow’s expression – is way beyond the proper capacity of an intermediate appellate court, and there is not the slightest attempt to justify that within the well‑known, over‑ploughed perhaps, ground of limitations on intermediate appellate scrutiny of trial judges’ findings.

This case does not raise any matter of principle in that area but we do need, in order to make this both a vehicle for special leave and in order to raise the question of principle on an appeal, to persuade the Court that that was a departure from the findings of the trial judge, which on their face appear both plausible, commonsensical and were supported by the forensic course and, in our submission, for the reasons we have put in writing and I hope I have supplemented now, there are very good prospects of us demonstrating to the Court on an appeal that that was serious, factual‑finding error by the Court of Appeal of a kind which has had a devastating effect on the individual justice of my client’s position and which then led, in any event, to then permit examination of this extraordinary proposition that because the Council by a department, as it were, shows what is called a loss, it is self-evident there could have been nothing more done, an error which is compounded by the travesty of our case, the straw man setup, of this over‑elaborate arborist system.

GLEESON CJ:   What about the first sentence in paragraph 79?

MR WALKER:   That, in our submission, is both a colourful and inappropriate travesty of what was being put.  We were talking about a general instruction, nothing to do with dangerous driving and craning their necks along 287 kilometres.  We were talking about a much‑travelled road near to town.  In our submission, paragraph 79 is inaccurate in its suggestion that the court was being asked to presume any such thing and, in our submission, amounts to an entirely inappropriate and somewhat

scornful approach to a case which was put far more carefully and far more modestly than that.

GLEESON CJ:   Thank you, Mr Walker.  Yes, Mr McCulloch.

MR McCULLOCH:   Your Honour, my learned friend’s reference to the findings made by the trial judge with respect to the evidence given by the Council officers elevates the strength of the findings to try and grasp on to Devries.

The trial judge determined that the ad hoc system, as it was referred to, was reasonable in the circumstances, and that did not require any finding, nor did it involve any finding concerning the acceptance or rejection of the evidence of those witnesses.  It was the sort of factual inquiry which an intermediate court of appeal was quite entitled to, and indeed bound to, we would submit, by authority well-known in this Court, to interfere with if it was wrong.

The passage that my learned friend referred to, in answer to your Honour the Chief Justice’s question about craning the necks out the window of moving vehicles, places into reality what this system so-called would have involved, because the trial judge did not find that there ought to have been any systematic inspection.  It must follow, therefore, that as the drivers of vehicles were doing other work; that is, going to and from other jobs, they should have been keeping some sort of lookout.  So that would have involved either stopping the vehicle and proceeding very slowly to undertake some sort of detailed inspection or noticing something which in the circumstances was readily obvious.

Two things need to be said about that latter aspect – and these are all issues of fact, with respect, that the Court of Appeal dealt with quite appropriately.  That is, that this tree had survived other storms, and the evidence showed, as the Court of Appeal indicated in their judgment, that it was in fact the trees with larger canopies which were more prone to be uprooted during storms, much like an umbrella on a beach is blown over in a wind.  So in those circumstances there was, as the Court of Appeal found, no evidence which indicated at a causative level that this tree would necessarily have been detected and removed at any relevant time.

So the appellant is left, with respect, trying to make a case, we would submit, out of nothing on the facts.  There is no question of general principle that arises in this case for determination.  The only issue that arises is whether there was a substantial miscarriage of justice.  That does not arise in this case because the Court of Appeal had before it objective facts and inferences drawn from the facts which they were entitled to and, as we submit, bound to interfere with in the way they did. 

As Justice Heydon pointed out earlier in argument, the key to this is to be found in paragraphs 68 and 69 on application book 79, that is of the Court of Appeal’s judgment.  It was never put to Mr Turner and Mr Cox that they should have noticed this tree and would have done something about it.  Now, that was a forensic decision which the applicant’s then counsel needed to make in the way in which he had opened the case.  It must follow that there must have been some need to put to witnesses, who it is asserted ought to have been involved in this ad hoc system of inspection, the central issue.  “Look at the photograph of this tree.  What would that have told you?  What would you have done about it?”  None of that was put, with great respect.  As the Court of Appeal found, that was a serious error in the way in which the trial was conducted.

Finally, may I submit at application book 84 in paragraph 85 the Court of Appeal conclude that on the factual material before them, it was not shown that using any general instruction to be proactive would have prevented the accident which occurred.  I take your Honours to that because in order to deal with the question of causation it must have been necessary, in my submission, to have cross‑examined the two supervisors, Messrs Turner and Cox, about that central issue and it just did not occur.  Those are my submissions, if the Court pleases.

GLEESON CJ:   Just before you conclude, I am looking at the bottom of page 10.  I just want to understand how the trial judge reasoned.  In paragraph 13 he says if there was a general instruction to Council workers:

to be proactive themselves, as they went about the roads carrying out maintenance work . . . I am satisfied that this tree . . . would have been identified as a risk –

Then he moves on to what looks like a rather different proposition.  He refers to some:

expert evidence was adduced in support of the proposition that some more elaborate and focussed plan of management of roadside vegetation should have been in place.

Does that mean some more elaborate and focused plan than the one the judge had been considering in the earlier paragraph, or does it just mean more elaborate and focused than what they already had?

MR McCULLOCH:   It is dealing with two separate systems, in my submission, your Honour.

GLEESON CJ:   Did he accept as an aspect of negligence that there should have been a system more elaborate than the one he was contemplating in paragraph 13?

MR McCULLOCH:   As I read the judgment, yes, your Honour, and that is a modification, or an enhancement, to the simple ad hoc system of instructing supervisors to perform work, and that involved retaining on an ad hoc basis someone with Mr Meys’ qualifications to ‑ ‑ ‑

GLEESON CJ:   Well, that presumably is what led the Court of Appeal into this question of costs.

MR McCULLOCH:   Yes, it did because – may I inform your Honours, as will be apparent from the way in which my learned friend has conducted this application, the roadside vegetation proactive system was expressly abandoned in the Court of Appeal, both in writing and orally, on the basis that the trial judge found against the applicant on that issue.  The only ambiguity perhaps that may have arisen in the trial judge’s finding was the one which your Honour the Chief Justice has referred to.  In that respect, it was therefore open to the Court of Appeal – and indeed the Court of Appeal was compelled to, we would submit – to consider whether the evidence about fiscal constraints was wrongly rejected and then, having considered that it was, to weigh the evidence in the way it did.

GLEESON CJ:   But what was abandoned in the Court of Appeal?

MR McCULLOCH:   That there should have been a proactive system which amounted to an audit.  That was, in layman’s terms, perhaps the way in which Mr Swan put forward the case.  But when he was cross‑examined he conceded that no other council in the State to his knowledge had such a system and he had never been a party to preparing one.

GLEESON CJ:   But the trial judge accepted Mr Swan’s evidence.

MR McCULLOCH:   He did.  That seemed to be, your Honour, in ‑ ‑ ‑

HEYDON J:   Well:

the practicality and minimal cost of an instruction to the person in charge of road maintenance to report any possible dangerous roadside tree.  I accept Mr Swan’s evidence.

MR McCULLOCH:   Yes.

GLEESON CJ:   So did Mr Swan advocate a more elaborate and presumably expensive system that was not accepted by the primary judge and was not pressed in the Court of Appeal?

MR McCULLOCH:   Correct.

GLEESON CJ:   I see.  So notwithstanding what appears in the first and second lines on page 11, it was only part of Mr Swan’s evidence that was accepted by the primary judge?

MR McCULLOCH:   Yes, and that is made plain in application book 15 in paragraph 19, if I may take your Honours to that very briefly.  The two breaches are identified in half a paragraph each.  The second, the one which your Honour the Chief Justice has just been taking me to, starts at line 35:

The defendant was also in breach . . . by reason of its failure to institute and maintain any system of inspection . . . other than a system that was purely reactive –

and that seems to pick up the need if necessary from time to time to retain someone like Mr Meys to give advice.  That opened the door. 

GLEESON CJ:   Well, it was the second breach that was not pursued, was it?

MR McCULLOCH:   No.  The second ‑ ‑ ‑

GLEESON CJ:   What is the difference between the first and second breach?

MR McCULLOCH:   The difference between the first and second breach, as I understand his Honour’s reasons for judgment, is that the second breach was a system, the subject of the first breach, but with the addition if necessary from time to time of the employment of an expert arborist either to give instruction or guidance or to look at particular trees.

HEYDON J:   Is this not the position:  the first breach was simply – it does not matter what the system was.  It is astonishing that these people did not notice the tree.

MR McCULLOCH:   Correct.

HEYDON J:   The second breach was a failure to maintain any system at all, however minimal.

MR McCULLOCH:   Yes.

HEYDON J:   It does not really involve an acceptance of Mr Swan’s bigger system – that would have been a breach too apparently.  He is saying just the general instruction to be proactive as you go about the roads carrying out maintenance.  The failure to bring that in was a breach of the duty of care causative of the accident.  Is that not what he means in lines 35 to 42?

MR McCULLOCH:   Yes.  Your Honour is correct in that regard, yes.  May I just, as your Honour has reminded me of two matters, remind the Court of these facts.  The first was to say that the trial judge found – and your Honours may have been persuaded at least at this stage it was astonishing this tree was not noticed – it is not completely in accordance with the evidence.  This was a tree on many hundreds of kilometres of roads within the road reserve, and, as the photographic evidence before the court indicated, on this stretch of road alone, which was a link road which linked a number of properties to Clarence Town and to Dungog and then formed a loop from Clarence Town back to Dungog, the number of trees that were on the road reserve, that is, either side of the fencing, were quite enormous on this just one small section of road. 

To suggest that because the tree – there was no evidence about how high the scarring on the tree would have gone and the scarring on the tree was noticeable if one stopped and had a look at it, but that would not necessarily have meant to anyone, that is, to the ordinary worker, that the tree was necessarily sick.  Indeed, Mr Thornton, one of the witnesses who gave evidence, said he would not know one way or another by looking at that sort of scarring whether the tree was sick or not.  May it please the Court.

GLEESON CJ:   Thank you.  Yes, Mr Walker.

MR WALKER:   Your Honours, could I simply draw to attention the finding of fact, page 8, paragraph 10, lines 15 and following, where the trial judge talks about an ability:

to recognise the tell-tale signs of a partially ringbarked tree with grossly impoverished canopy.

That was the background to his rejection of the self-deprecatory evidence of the Council workers.

We respectfully adopt the summary of the matter put by Justice Heydon to my learned friend.  That is how his Honour proceeded in the paragraphs to which attention has been paid.  On page 10 of the application book it is to be recalled that paragraph 13, as the Chief Justice observed, concluded with satisfaction about what “would have been identified as a risk to be eliminated” by what is called “such an instruction been issued”.  That is what might be called the slim-line or modest version, the costing of which certainly renders wholly inappropriate Justice Santow’s approach to the transport and communications current year loss, being a self-evident incapacity, presumably of some justiciable kind the way his Honour has dealt with it, to have done anything different.

In paragraph 14 it is to be recalled that at line 27 his Honour had described the ambitious proposition put below for my client as “some more elaborate and focussed plan of management”.  More detail of that was not necessary because it was in fact disposed of – see the foot of that page about line 52.  He, the progenitor, by way of testimony of this proposal, Mr Swan, advocated a program “but” – an important word:

but he conceded a programme, other than the audit at Queanbeyan, had not been instituted –

which is a pretty faint commendation of it, and then a second and important “but”:

But he confirmed the practicality and minimal cost of an instruction to the person in charge of road maintenance –

That is not the retainer of the arborist at all.  The last sentence, “I accept Mr Swan’s evidence”, is obviously a reference in context to that last matter because, as my friend has already very fairly pointed out, at the foot of page 14 and the top of page 15 in paragraph 17, leading into paragraph 19 on page 15 - see, for example, lines 7 and following:

Mr Swan persuasively rejected it –

that is, financial impracticability –

at least so far as a system utilising the supervisors is concerned.

So it is for those reasons that we started today by describing that which was the subject of the finding of self-evident financial incapacity in a Council with a $608,000 excess of revenue over outgoings in the relevant period as being the intrusion of inappropriate criteria, as we have put it in our written submissions.

GLEESON CJ:   Mr Walker, I would just like to be a little clearer in my own mind about exactly what the primary judge had in mind in paragraph 13.  It is one thing to say to Council workers, “If you notice a tree which appears to you to be dangerous, report it.  Don’t wait for some member of the public to report it.”  That is one thing. I would have thought it is a very different thing to say to Council workers, “Part of your obligation is to look out for potentially dangerous trees and carry out some kind of inspection of the trees in the locality for that purpose”. Now, there are questions of degree involved, without doubt, between at the one hand, “If you notice a tree that looks to you as though it’s about to fall over don’t fail to report it” ‑ ‑ ‑

MR WALKER:   That is right.

GLEESON CJ:    ‑ ‑ ‑to, at the other extreme, whatever it was exactly Mr ‑ ‑ ‑

MR WALKER:   Do an audit.

GLEESON CJ:   Yes, whatever it was exactly Mr Swan had in mind, but there is a whole range, I would have thought.

MR WALKER:   Yes, and it is the former.

GLEESON CJ:   Now, what I cannot quite understand is within that spectrum what the finding of fact in the last sentence on paragraph 13 is directed to.

MR WALKER:   Well, on page 9 in the same paragraph it is to be recalled that it is in light of the evidence, including the assessment of the witnesses, the Council workers, lines 52 and 53, the tree’s:

lack of any significant canopy and the extent to which it was partially ringbarked were plainly apparent from the road.

Then one comes on page 10 in the same paragraph to the observing and remedying blocked culverts.  These are road maintenance workers, and the instruction being referred to at line 11, which is the antecedent of the expression “such an instruction” in the last sentence, is:

a general instruction to them to be proactive themselves, as they went about the roads carrying out maintenance work –

We are not talking about deflecting them from their task –

It would have expected them to observe –

et cetera.  Now, it is simply therefore the modest former, “If you see as you are doing your job something of that kind, just as you would do something about a blocked culvert, do something, whether by report or otherwise, about that tree.”  And then the findings of fact, which really cannot properly be attacked in the Court of Appeal and should not have been reversed, about

the nature of this tree, about the nature of those workers and therefore about what would have been avoided, favoured the judgment which my client has lost in the Court of Appeal.

GLEESON CJ:   The decision of the Court of Appeal in this case turned upon that court’s reversal of certain crucial findings of fact by the primary judge.  The case does not give rise to an issue suitable to a grant of special leave to appeal and we are not persuaded that the interests of justice require such a grant.  The application is dismissed with costs.

We will adjourn for a short time to reconstitute.

AT 12.08 PM THE MATTER WAS CONCLUDED