Brand v Monks

[2009] NSWSC 1454

CITATION:	Brand v Monks [2009] NSWSC 1454 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	29 and 30 September 2009 and 1, 2, 12 and 13 October 2009
JUDGMENT DATE :	21 December 2009
JURISDICTION:	Equity Division
JUDGMENT OF:	Ward J
DECISION:	Plaintiff claim dismissed with costs.
CATCHWORDS:	CONTRACTS - general contractual principles - discharge, breach and defences to action for breach - defendant contracted to prepare development application for subdivision of plaintiffs’ land - defendant agreed to keep confidential information obtained by her in providing commissioned services - defendant reported clearing activity on land to council - whether plaintiff breached confidentiality clause of contract - whether public interest in defendant’s disclosure to council - held that information disclosed to council not confidential and not within ambit of clause - public interest in disclosure not established - CONTRACTS - general contractual principles - construction and interpretation of contracts - implied terms - whether implied term that defendant, if she formed view that development application would not succeed, would disclose that view to plaintiffs - whether defendant breached implied term - held that no implied term and, in any event, had such a term been implied, no evidence of breach - EQUITY - general principles - fiduciary obligations - whether defendant owed fiduciary obligation to council - relationship not within recognised categories of fiduciary relationships - held that no fiduciary obligations existed - TRADE AND COMMERCE - Trade Practices Act 1974 (Cth) and related legislation - consumer protection - unconscionable conduct - whether defendant engaged in unconscionable conduct in breach of s 43 of the Fair Trading Act 1987 (NSW) by making disclosures to council - held that defendant did not engage in unconscionable conduct as pleaded - PROCEDURE - pleading - particulars - in earlier version of statement of claim, plaintiffs had pleaded as material facts of unconscionable conduct claim, the defendant's non-disclosure to plaintiffs of communications with council and continued receipt of fees thereafter - as a result of amendment, those facts no longer pleaded in final statement of claim, but appear in particulars - had those facts been pleaded, plaintiffs’ claim may have been established, subject to whatever evidence defendant might have adduced - defendant made clear that only responding to case as pleaded - consideration of role of particulars - held that plaintiffs not able to succeed on ground of non-disclosure as material facts not pleaded.
LEGISLATION CITED:	Environmental Planning and Assessment Act (NSW) 1979 Fair Trading Act 1987 Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 Trade Practices Act 1974 (Cth)
CATEGORY:	Principal judgment
CASES CITED:	A v Hayden (1984) 156 CLR 532 AFL v The Age Company Pty Limited (2006) 15 VR 419 AG Australia Holdings Limited v Burton (2002) 58 NSWLR 464 Ansett Transport Industries (Operations) Pty Limited v The Commonwealth of Australia (1977-78) 139 CLR 54 Artedomus v Del Casale [2006] NSWSC 146 ASIC v National Exchange Pty Limited [2005] FCAFC 226 ASIC v Rich (2005) 54 ACSR 326 Attorney-General v Observer Newspapers [1990] 1 AC 109 Attorney-General (NSW) v World Best Holdings Pty Limited [2005] NSWCA 261 Attorney-General v Guardian Newspapers Ltd [No 2] [1990] 1 AC 109 Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 Black Uhlans Inc v NSW Crime Commission & Ors [2002] NSWSC 1060 Blatch v Archer (1774) 1 Cowp 63, 98 ER 969 Breen v Williams (1996) 186 CLR 71 Browne v Dunn (1893) 6 R 67; (1893) 6 R 67 HL Bruce v Odhams Press Limited [1936] 1 KB 697 Cameron v Qantas Airways Limited (1994) 55 FCR 147 Canon Australia Pty Limited v Patton (2007) ATPR 42-183 Carantinos v Magafas [2008] NSWCA 304 Chapple v Electrical Trades Union [1961] 3 All ER 612 City of Subiaco v Heytesbury Properties Pty Limited [2001] WASCA 140 Coastal Estates v Bass Shire Council [1993] 2 VR 566 Collings Construction Co Pty Limited v ACCC [1988] NSWSC 32 Commonwealth of Australia v John Fairfax & Sons Limited (1980) 32 ALR 485 Coulthard v State of South Australia (1995) 63 SASR 531 Council of the Shire of Eurobodalla v Caldak Pty Limited and Towrang Park Pty Limited (1980) NSWLEC 14 Elspan v Eurocopter [1999] NSWSC 555 Financial Times Limited & Ors v Interbrew SA [2002] EWCA Civ 274 G v Day [1982] 1 NSWLR 24 Gibson Motorsport Merchandise Pty Limited v Forbes (2006) 149 FCR 569 Goldsmith v Sandilands (2002) 190 ALR 370 Gosford City Council v Brand [2006] NSWLEC 422 H 1976 Nominees Pty Limited v Galli (1979) 30 ALR 181 Harris v Digital Pulse Pty Limited (2003) 56 NSWLR 298 Heddin v Deli Gas Pipeline Co 522 SW 2d 888 (1975) (Tex) Henderson v Merrett Syndicates Limited [1995] 2 AC 145 Henville v Walker (2001) 206 CLR 459 Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41 Ingot Capital Investments Pty Limited v Macquarie Equity Capital Markets Limited [2008] NSWCA 206 Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales [1975] 2 NSWLR 104 ISPT Pty Limited v Melbourne City Council (2008) 20 VR 447 Jackson Nominees Pty Limited v Hanson Building Products Pty Limited [2006] QCA 126 Johns v Australian Securities Commission (1993) 178 CLR 408 Jones v Dunkel (1959) 101 CLR 298 Kation Pty Limited v Lamru Pty Limited [2009] 257 ALR 336 Kenny & Good Pty Limited v MGICA (1992) Limited (1999) 199 CLR 413 Kowalczuk v Accom Finance (2008) 252 ALR 55 Mackay v Dick (1881) 6 App Cas 251 Maggbury Pty Limited v Hafele Australia Pty Limited 210 CLR 181 March v Stramare (E & MH) Pty Limited (1991) 171 CLR 506 McFadzean v CFMEU [2004] VSC 289 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Michael Wilson & Partners Limited v Robert Colin Nicholls [2009] NSWSC 721 Milbank v Milbank [1900] 1 Ch 376 Morison v Commonwealth (1972) 34 LGRA 273 Musca v Astle Corporation Pty Limited (1988) 80 ALR 251 Norbeg v Wynrib [1992] 2 SCR 226 Parramatta City Council v Brickworks Limited (1982) 128 CLR 1 Permanent Building Society (in liq) v Wheeler (1994) 11 WAR 187 Pilmer v Duke Group Limited (in liq) (2001) 207 CLR 165 Pinson v Lloyds and National Provincial Foreign Bank Limited [1941] 2 KB 72 Placer (Granny Smith) Pty Limited v Thiess Contractors Pty Limited (2003) 77 ALJR 768 Port Stephens Council v SS and LM Johnston Pty Ltd [2007] NSWLEC 30 Port Stephens Shire Council v Tellamist Pty Limited [2004] NSWCA 353 Rawley Pty Limited v Bell (No 2) (2007) 61 ACSR 648 Rubenstein v Truth and Sportsman Limited [1960] VR 473 Shanmugaratnam v Strasburger Enterprises (Properties) Pty Ltd [2004] NSWCA 229 Southern Cross Exploration NL v All Risks Insurance Co Limited (1985) 2 NSWLR 340 Spencer v the Commonwealth (1907) 5 CLR 418 Travel Compensation Fund v Blair [2003] NSWSC 720 Tyco Australia Pty Limited v Optus Networks Pty Limited [2004] NSWLR 333 Vetter v Lake Macquarie City Council (2001) 202 CLR 439 Vines v ASIC (2007) 62 ACSR 1 White City Tennis Club Limited v John Alexander’s Clubs Pty Limited [2009] NSWCA 114
TEXTS CITED:	Cross, The Law of Intellectual Property: Copyright, Designs and Confidential Information Jacobs, Commercial Damages, Lawbook Co 2008
PARTIES:	George Charles Brand (First Plaintiff) Tosca Brand (Second Plaintiff) Helen Monks (Defendant)
FILE NUMBER(S):	SC 2660/07
COUNSEL:	M S Jacobs QC with him D Fitzgibbon and P Bambagiotti (Plaintiffs) I Faulkner SC with him L Chan (Defendant)
SOLICITORS:	Daphne Kennedy (Plaintiffs) Kennedys Lawyers (Defendant)

- 201 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WARD J

MONDAY 21 DECEMBER 2009

2660/07 GEORGE CHARLES BRAND V HELEN MONKS

JUDGMENT

1 Mr and Mrs Brand are the registered proprietors of 44 hectares of land situated in Copacabana, New South Wales. The land is zoned 7(a) Conservation Scenic Protection (Conservation) under a Gosford City Council Planning Scheme Ordinance. The land forms part of the Merchants Creek catchment area and is of some ecological significance.

2 In mid-2003, Mr Brand engaged Dr Monks, a certified environmental practitioner with expertise in town planning and regional development, trading as Highlight Consulting, to prepare and submit to Gosford City Council a development application for subdivision of the land (on which there is one existing dwelling occupied by Mr and Mrs Brand’s daughter and her family) into ten parcels of land including the existing dwelling.

3 Dr Monks prepared the subdivision application and provided it, with accompanying expert reports, to Mr Brand in December 2004. However, Mr Brand decided not to proceed with the development application at that stage as, in the meantime, the Council had resolved to commence proceedings against Mr Brand in the Land and Environment Court for both a restoration order and penalty for alleged unauthorised clearing and underscrubbing of the land. (Those proceedings were ultimately withdrawn by consent between the parties in 2006, after Talbot J had refused leave sought by the prosecution to amend the charge particularised in the summons.)

4 Mr Brand’s complaint in these proceedings relates to actions taken by Dr Monks (and/or expert consultants retained by her, namely Mr Clarke and Mr Payne) prior to the finalisation of the development application (broadly speaking, comprising the disclosure to the Council in or about May 2004 of matters relating to the clearing of the land which Mr Brand says Dr Monks and her consultants were obliged to keep confidential), which Mr Brand says caused the Council to prosecute him and as a result of which he says he suffered financial and other loss.

5 Senior Counsel for Mr and Mrs Brand, Mr Jacobs QC, characterised this as a case posing the question as to the extent to which a professional person holding herself out as an expert and adviser “who accepts an engagement to advise and represent, which has in it contractual duties of confidentiality [can] decide at will to turn on her principal, … deliberately disregard the relationship and obligations of confidence, and … use her relationship and the advantages placed in her hands by virtue of that relationship, to the disadvantage of her principal by inciting and urging his prosecution by local authorities” (para 1, written Opening Address).

6 Stripped of the rhetoric, in essence this is a case in which it is alleged that Dr Monks (herself or through her consultants), in making disclosures to the Council, acted in breach of an express contractual obligation of confidence and/or of fiduciary obligations allegedly owed by her to Mr and Mrs Brand. That same conduct is alleged to amount to unconscionable conduct in breach of s 43 of the Fair Trading Act 1987. (A claim is also made that Dr Monks breached an implied contractual obligation to advise Mr Brand if she came to the view that there was little or no prospect of the subdivision application succeeding.)

7 Having regard to Mr Brand’s evidence in the witness box (T 55.17; T56.38) (and to the tenor of some of the submissions made on behalf of the plaintiffs to which I refer later), it seems fair to say that, although the claim as pleaded turns on the disclosure to the Council of what was alleged to be information confidential to Mr Brand, at the heart of Mr Brand’s complaint is the fact that Dr Monks (while retained by and working for him) had approached and discussed his affairs with the Council at all (irrespective of whether any confidential information had been passed on to the Council). However, a claim based simply on that conduct was not pleaded.

8 The relief sought by Mr and Mrs Brand includes damages to compensate for the financial loss said to have been suffered as a consequence of the disclosures (identified initially as the costs of defending the Land and Environment Court proceedings, the loss of a chance to secure the subdivision and sale of the land in 2004, the “wasted” fees paid to Dr Monks, and unquantified damage to the goodwill of Mr Brand’s real estate business), as well as the broad spectrum of general, aggravated and exemplary damages.

9 Dr Monks denies any liability. Dr Monks accepts that she owed a contractual obligation of confidence but denies any breach of that obligation. She denies that she owed any fiduciary duty to the Brands. In relation to any breach of confidence which may be established, Dr Monks relies, among other things, on a public interest defence – namely, that it was reasonable for her to reveal to the Council that a serious offence had been committed. In broad terms, that offence is pleaded as the mechanical clearing (or underscrubbing) of weeds and native vegetation on the land for the purposes of agriculture or subdivision, without the Council’s consent. (Dr Monks explained these terms as being that “underscrubbing” refers to the removal of all flora, save for tall established trees and grass roots; whereas “clearing” leaves the land clear of any vegetation possibly excepting grass roots.)

10 Dr Monks also invokes the doctrine of unclean hands as disentitling Mr and Mrs Brand from any equitable relief (on the basis that the alleged crime has an immediate and necessary relation to, and must be relied upon in order to establish, the claim for breach of fiduciary duty and the loss claimed to have been suffered as a result of that breach).

Issues

11 The following issues arise for determination in these proceedings:

(1) Breach of Contract

· Contractual confidentiality obligation

(i) What is the scope of the contractual obligation of confidentiality owed by Dr Monks? In particular,

(a) does the obligation extend to information communicated by Dr Monks (or her consultants) to Mr and Mrs Brand (or opinions held by Dr Monks or her consultants about their activities)?

(b) does the obligation extend to information obtained by the expert consultants (Mr Clarke and Mr Payne) retained by Dr Monks to prepare various reports for the development application?

(c) does the obligation extend to information which is not confidential in nature or which, though once confidential in nature, has passed into the public domain?

(d) was the information which was disclosed to the Council information which would necessarily have had to be disclosed for the purposes of rendering the services to be provided under the contract (and, if so, was it information excluded from the contractual confidentiality obligation owed by Dr Monks by reference to the proviso contained in the relevant clause of the contract)?

(e) is Dr Monks contractually liable for any disclosure of confidential information by Mr Clarke or Mr Payne?


(ii) Having regard to the findings in (i) above, was there a breach of the contractual obligation of confidentiality by the making of any of the relevant disclosures? (For this purpose it is necessary to identify with particularity the information which Mr and Mrs Brand say was confidential to them and was disclosed to the Council in breach of Dr Monks’ obligations.)

(iii) If any one or more of the relevant disclosures was in breach of the contractual confidentiality obligation owed by Dr Monks, is Dr Monks able to rely upon a public interest defence?

· Implied obligation to notify Mr Brand as to prospects?

(iv) Was there an implied contractual term obliging Dr Monks, if she formed the view that the development application would not be likely to succeed, to disclose that view to Mr and Mrs Brand; and, if so, was Dr Monks in breach of that term?

(v) Did Dr Monks owe fiduciary obligations to Mr and Mrs Brand arising out of their contractual relationship (or otherwise) and, if so, did she breach those obligations by making the relevant disclosure(s)?

(vi) Are Mr and Mrs Brand precluded, by operation of the doctrine of unclean hands, from obtaining equitable relief for any breach of fiduciary duty?

(vii) Did Dr Monks engage in unconscionable conduct in breach of s 43 of the Fair Trading Act as pleaded, namely by the making of the relevant disclosures to the Council alleging criminal conduct and urging it to prosecute Mr Brand?

(viii) What loss or damage, if any, have Mr and Mrs Brand suffered as a result of any breach of contract, breach of fiduciary duty or breach of the Fair Trading Act established on the part of Dr Monks?

Summary

12 In summary, for the reasons set out below I have concluded that:

(i) the contractual obligation of confidentiality, as a matter of construction of the contract entered into between Dr Monks and Mr and Mrs Brand:

(a) does not extend to information communicated by Dr Monks (or, for that matter, her consultants) to Mr and Mrs Brand (nor does it extend to views or opinions formed or held by Dr Monks or her consultants);

(b) does extend to information obtained by Dr Monks from the expert consultants (Mr Clarke and Mr Payne) retained by Dr Monks to prepare various reports for the development application, provided that it was passed on by them to Dr Monks for the purpose or in the course of the provision of the commissioned services; and

(c) does not , in the absence of an express provision to that effect, extend to information which is not confidential in nature or which at the time of disclosure had lost its confidential quality, having entered into the public domain;

and that
(d) of the information disclosed to the Council, it is not the case that all such information would necessarily have had to be disclosed for the purposes of rendering the services to be provided under the contract so as to be excluded from the operation of the confidentiality clause by the proviso thereto;

(e) Dr Monks is not contractually liable for any disclosure of confidential information by Mr Clarke or Mr Payne otherwise than in the performance by them of their retainer with Dr Monks (and hence there is no liability on the part of Dr Monks for the disclosures made by Mr Clarke of which Mr and Mrs Brand complain).


(ii) There was no breach of the contractual obligation of confidentiality by reason of the making of the particular disclosures of which complaint is made in these proceedings.

(iii) Had there been a breach of the contractual confidentiality obligation by reason of the disclosure of matters relating to the fact or extent of the clearing activities, such that the public interest defence fell to be determined, I would not have been satisfied that Dr Monks had established a prima facie case that there was a reasonably tenable charge of a crime committed in relation to the clearing activities carried out on the land (although I accept that she believed in good faith that a serious environmental offence was being committed). Had I been so satisfied then I would have held that this justified no more than the minimum disclosure necessary to alert the Council to the fact that Mr Brand was engaging in the said clearing activities and that, beyond disclosure of the fact of clearing, various of the disclosures made to the Council by Dr Monks went beyond what would have been necessary for the purpose of disclosure of any offence constituted by those activities of the kind alleged.

(iv) No term of the kind pleaded is to be implied into the contract. In any event, even if there was an implied term of the kind pleaded, in the absence of any evidence that Dr Monks had ever formed the view on which the alleged obligation to notify was predicated, no breach of any such obligation would have been established on the evidence before me.

(v) The relationship between Dr Monks and Mr and Mrs Brand was not fiduciary in nature and Dr Monks did not owe to Mr and Mrs Brand fiduciary obligations of the kind pleaded. (Had I found that there was any fiduciary relationship between the parties it would not have extended to impose a positive duty of the kind pleaded in paragraph 7(a)(i) of the pleading but would, relevantly, have given rise to a duty to avoid a real and sensible possibility of conflict between Dr Monks’ personal interests and her duties to her client or between Dr Monks’ duty of disclosure in the public interest of any serious environmental offence and her duty to her clients.)

(vi) Had I found that Dr Monks owed to Mr and Mrs Brand a fiduciary duty of the kind referred to above and that this had been breached by Dr Monks’ failure to disclose to them (either in advance or afterwards) of the fact of her disclosures to the Council, in light of my finding as to the alleged offence I would not have found that Mr and Mrs Brand were precluded, by operation of the doctrine of unclean hands, from obtaining equitable compensation from Dr Monks. For the reasons set out below, any such compensation would have been limited to the recovery of the fees paid to Dr Monks for work carried out after 20 May 2004 (less, perhaps, any amount which might be said to have represented the benefit Mr Brand has obtained from the provision of the relevant reports).

(vii) Dr Monks did not engage in unconscionable conduct in breach of s 43 of the Fair Trading Act , as pleaded , by reason of any of the disclosures to the Council which alleged criminal conduct on Mr Brand’s part. (Insofar as the pleaded conduct extended to alleged disclosures urging a criminal prosecution, I find as a matter of fact that no such conduct was made out.)

(I should note that I would have been inclined to find that there was unconscionable conduct in breach of the Act by reason of the fact that Dr Monks did not disclose to Mr Brand the disclosure(s) she had made to Council and continued to perform services for which she charged Mr Brand since, by so doing, she deprived Mr Brand of an opportunity to consider not only whether he wished to continue with the project at all at that stage but also whether he wished to continue to retain her services in relation to the project. However, that claim was not pleaded. I accept that Dr Monks’ defence was conducted expressly on the basis that no such claim was pleaded and, as a matter of procedural fairness, I make no findings in relation thereto.)

(viii) As I have not found for the plaintiffs on any of their various claims, the question of relief does not arise.

Had the issue of relief arisen for determination on my findings as to liability, I would have found that none of the disclosures made by Dr Monks to the Council was the (or a) material cause of the prosecution of Mr Brand, so as to have been capable of giving rise to a claim for damages or equitable compensation based on the alleged diminution in the value of the land by reason of the prosecution or for the costs of the prosecution.
Had I found that Dr Monks was in breach of fiduciary obligations owed to Mr and Mrs Brand or otherwise liable for unconscionable conduct, in either case by having failed to disclose to them the fact of her disclosures to the Council (or her intention to make those disclosures and thereafter continuing to accept fees from Mr Brand, Dr Monks), the appropriate relief would in my view have been an order for recovery by Mr and Mrs Brand of the fees paid for work carried out from 20 May 2004 onwards (less, perhaps, an account for any benefit Mr and Mrs Brand have obtained thereby in terms of the production of reports which they may be able later to use if they do wish to proceed with a development application in relation to the land).
As to the claims for general/aggravated damages for hurt and distress and exemplary damages, the latter was not pressed before me and, while I accept that Mrs Brand suffered health problems as a result of the stress caused by the prosecution of her husband I do not consider that this was loss caused by Dr Monks’ disclosure as such but rather by the prosecution itself and I would have made no such award. It is not therefore necessary for me to decide whether aggravated damages would as a matter of principle be available on such a claim.

Conduct of the Proceedings

13 Before summarising the factual background to this matter, it is necessary to outline the manner in which the case proceeded up to and during the hearing, as this of relevance when considering the ambit of the claims (and particularly the Fair Trading Act claim) as pleaded. Senior Counsel for Dr Monks, Mr Faulkner SC, made it clear a number of times during the hearing that the defendant was conducting her defence of this case as pleaded against her, and no other. There was no demur to this proposition from Mr Jacobs.

14 Mr and Mrs Brand commenced these proceedings by Statement of Claim in May 2007. Their claim was then one for breach of contract and breach of s 42 of the Fair Trading Act.

15 As to the breach of contract, it was alleged that Dr Monks (together with persons employed and instructed by her) had made disclosures to the Council and taken certain actions including supplying documents and evidence to the Council, and had done so negligently and with reckless disregard, thereby causing serious financial damage to Mr and Mrs Brand and their reputations.

16 As to the alleged breach of s 42 of the Fair Trading Act, what was initially pleaded was misleading and deceptive conduct having occurred by the “deliberate failure” of Dr Monks to inform Mr and Mrs Brand of her actions in complaining to the Council on about 20 May 204 “and her subsequent actions after the complaint” (para 43).

17 An Amended Statement of Claim was subsequently filed on 24 July 2007. By this pleading, the allegation that the alleged breaches of contract and actions were made or done by Dr Monks acting “negligently and with reckless disregard” was deleted and there was pleaded for the first time (para 30) an “express duty of care” not to disclose confidential or other material relating to the plaintiffs’ affairs and a breach by Dr Monks of “this express duty of care”.

18 At that time, the Fair Trading Act claim was amended to include (as well as the alleged breach of s 42) an allegation of breach of s 43 of the Act. The manner in which this was done in terms of the drafting of the pleading was somewhat circuitous. Paragraph 4 continued to plead an allegation of conduct in trade and commerce that was misleading and deceptive or likely to mislead and deceive within s 42 of the Act. Paragraphs 45-47 were newly inserted under a heading “Particulars of breach of Fair Trading Act 1987 (ss 42 and 43)”; those particulars, in summary, being entry into a contract in relation to the performance of work of a professional nature (para 45); the payment to Dr Monks of a sum in excess of $30,000 “prior to the … unconscionable conduct in relation to her disclosure to the … Council of confidential and other information relating to the Plaintiffs’ affairs” (para 46); and that Dr Monks had by “refraining from notifying” the plaintiffs of her disclosure to the Council and her subsequent acceptance of payments totalling $58,000, Dr Monks “refused to do an act including refraining (otherwise than inadvertently) from doing the act” and that such conduct constituted unconscionable conduct within s 43 of the Fair Trading Act “in that unfair tactics were used against the Plaintiffs”( para 47). Paragraph 50 continued to plead the “deliberate failure” to inform, this time as a breach of both s 42 and s 43 of the Act.

19 Up to this point, therefore, Dr Monks’ non-disclosure to Mr and Mrs Brand of the fact of her communications to the Council in relation to their affairs (together with her “subsequent actions”, presumably the particularised acceptance of fees from Mr and Mrs Brand) was clearly pleaded as being part of the misleading and deceptive or, alternatively, unconscionable conduct allegedly engaged in by Dr Monks.

20 Particulars of the alleged unconscionable conduct were provided by letter dated 8 October 2007 from the plaintiffs’ solicitors as:

88. The Defendant’s unconscionable conduct consisted of the fact that she continued to undertake work for the Plaintiff, to advise him in relation to the work, to charge him for her work and accept payment for this work while at the same time having made the instant complaint to the Council and disclosing further material relating to the Plaintiff to the Council.”

21 In answer to a request for particulars of the “unfair tactics” pleaded on the part of Dr Monks, the response (paragraph 92) was to refer back to the provisions of s 41 and s 43 of the Act.

22 By her Defence filed 2 November 2007, Dr Monks pleaded, in answer to the entire Amended Statement of Claim, that the information contained in her 20 May 2004 letter was not confidential information in that it was in the public domain or, alternatively, that there was no confidence in an iniquity (para 49). It was alleged that the letter disclosed the existence, or real likelihood of the existence, of an iniquity - that being a crime in contravention of s 127 of the Environmental Planning and Assessment Act (NSW) 1979 (to which I will refer as the EPA Act) and that the crime was of a character of public importance. In the alternative, it was pleaded that the confidentiality clause was unenforceable (by reason of the public interest in disclosure of the crime, which it was alleged outweighed the public interest in the preservation of private and confidential information) (para 52).

23 Paragraph 53 pleaded further that any loss or damage was caused “by the unlawful activities of the Plaintiffs themselves in undertaking mechanical clearing of weeds and native vegetation on the Property without the approval of Gosford City Council” (para 53(a)). (Although it was contended by Mr Jacobs, in his submissions made at the outset of the hearing, that the question of clearing by mechanical means was a new allegation, the reference to mechanical clearing in this paragraph of the 2007 Defence in my view makes it clear that this was not a new allegation. Further, I note that paragraph 36(a) of that Defence had also made reference to the mechanical clearing of weeds and native vegetation on the land.)

24 A Reply was filed on 31 January 2008 on behalf Mr and Mrs Brand, largely restating and repeating (or otherwise noting) various matters and the plaintiffs’ reliance on specified paragraphs of their Amended Statement of Claim. (On its face, this appears to be no more than a verified draft pleading, since it still contains an annotation (in paragraph 50(b) presumably intended for the draftsperson, to check a particular finding.)

25 The matter was listed for hearing before me commencing in May 2009. However, on 9 April 2009, an application to vacate the hearing date was made due to the need for Mr Brand to undergo spinal surgery. That adjournment application was not opposed but Ms Chan, Counsel appearing for the defendant, not unreasonably pressed for the earliest possible future hearing dates (and Senior Counsel then appearing for the Brands accepted that this was appropriate). The matter was re-listed for hearing commencing on 28 September 2009 for four days. Although the amended hearing dates were listed well in advance, it appears there was some misunderstanding within the plaintiffs’ camp as to the availability of Senior Counsel then briefed for the hearing, who confirmed only some time later that he was not available to appear.

26 It was not until 27 August 2009 that the matter was again listed before me, this time on the plaintiffs’ application to vacate the first day of the re-scheduled hearing dates in order to accommodate Mr Jacobs, who had then only recently been briefed in the matter. Mr Jacobs gave his assurance that if I acceded to this adjournment application the matter could be heard within three days (notwithstanding that it had been listed for four) and that he would assist the court in ensuring that this would be achieved. To that end, he proposed the preparation of a written opening address in lieu of an oral opening and was prepared to accede to limits on the duration of cross-examination, as necessary. (I note this simply to explain the course I subsequently took during the hearing of asking Mr Jacobs to provide an indicative timetable for the completion of cross-examination, when it became apparent that the three and a half days by then listed for the hearing would be woefully inadequate to complete the hearing.)

27 It was on 27 August 2009 that an application further to amend the Amended Statement of Claim was first foreshadowed by Mr Jacobs, that amendment being described generally as attaching “new labels” to causes of action the facts of which had already been pleaded. The plaintiffs’ amendment application was heard by me on 3 September 2009. I acceded to the application, but only in part, for the reasons set out in my judgment on 4 September 2009. Broadly speaking, what I did not allow were the proposed new pleas of conspiracy and malicious prosecution, but I did allow the pleading to be amended to include a claim for breach of fiduciary duty and, relevantly, to confine the Fair Trading Act claim to the proposed newly pleaded claim under s 43 of the Fair Trading Act.

28 As amended pursuant to the leave so granted, the claims which had to date been made in the pleading for breach of s 42 and s 43 of that Act (including the “unfair tactics” claim to which I adverted earlier in these reasons) were deleted and the Fair Trading Act claim was repleaded and confined to a claim for breach of s 43 of the Act on the basis of an allegation of unconscionable conduct “as set out in” paragraphs 3.1 and 3.2 of the Further Amended Statement of Claim, that conduct being pleaded as disclosures in breach of the confidentiality obligation alleging criminal conduct on the part of Mr Brand and urging the Council to prosecute Mr Brand. No longer pleaded as part of the unconscionable conduct claim (though referred to directly or indirectly in various particulars to other parts of the pleading, such as the particulars to paragraph 3.2(k) of the material allegedly provided by Mr Clarke to the Council), was the allegation that Dr Monks had deliberately failed to notify, or refrained from notifying, Mr and Mrs Brand of the fact that she had made the disclosures in question to the Council. This becomes significant when I come to consider in due course whether the Fair Trading Act claim has been established.

29 I note that although the Further Amended Statement of Claim continued to specify the relief claimed (on page 2) as compensatory damages, paragraph 1 of the orders sought in the amended pleading was an order for exemplary damages. Ultimately, the claim for exemplary damages was not pressed before me (having regard to what was said in Harris v Digital Pulse Pty Limited (2003) 56 NSWLR 298), although Mr Jacobs expressly reserved the plaintiffs’ position in that regard, should the matter “go further”.

30 Dr Monks filed her Defence to the Further Amended Statement of Claim on 16 September 2009. A reply (labelled an “Amended Reply”) to that Defence was filed in court on behalf of Mr and Mrs Brand on 29 September 2009.

31 At the commencement of the hearing on 29 September 2009, Mr Faulkner sought confirmation from Mr Jacobs that the plaintiffs’ case was solely that which had been pleaded. That confirmation was readily given by Mr Jacobs. It was on the basis of that confirmation that Mr Faulkner then indicated that Dr Monks would not press paragraphs 8.4(a)(i) and (ii), 12(b)(A) and (B), and 17 (i) and (ii), respectively, of her Defence. An Amended Defence was filed in court on 30 September 2009 reflecting the abandonment of those particular allegations. (The paragraphs which were not pressed related to an alleged contravention of a Gosford City Council Tree Preservation Order, whether of itself or having regard to s 76A(1) of the EPA Act.)

32 Thus, at the hearing, the only crime alleged to have been committed by Mr Brand was that pleaded in 8.4(a)(iii) of the Amended Defence, namely “the mechanical clearing of weeds and native vegetation” on the land without consent, in alleged contravention of clause 5(2) of Interim Development Order (IDO) No 122, and thus in breach of s 76A(1) of the EPA Act, rendering Mr Brand liable for prosecution pursuant to ss 125 to 127 of the EPA Act. It was said that under IDO No 122 any “development” (including the clearing and underscrubbing, cutting down, removing, injuring and wilfully destroying trees and rainforest vegetation) for the purposes of agriculture or of subdivision required Council’s consent, which it was alleged Mr and Mrs Brand did not have.

33 In Reply, Mr and Mrs Brand say that should the mechanical clearing of weeds and native vegetation constitute a “development” of the land (which they do not admit) and should this require a development consent, then there was at all material times a development consent in effect which did not preclude the use of mechanical means to undertake the removal of weeds and/or native vegetation. In this regard they rely on one or more of the following: a consent said to have been given by the Council in or about 1980 (a copy of which was not in evidence) for the purpose of the undertaking of agricultural activity on the land; a development consent (No 22846/99) given by the Council on 29 November 1999 for the existing residential dwelling on the land; and a “consent” of the Council to underscrubbing given in around 1985 by a Council officer (Mr Cecil Rose), who was identified (during the course of evidence from Mr Gary Chestnut of the Council) as a then Council tree preservation officer.

34 In his submissions in reply to the defendants closing submissions, for example, Mr Jacobs identified the content of the information that was of a confidential nature in an overarching fashion as being “inter alia” what Dr Monks and what Mr Brand discussed and what it was that she told him, including statements about his intentions and beliefs as well as his other various activities “that were put into a particular context” by virtue of Dr Monks’ engagement.

35 After the close of the hearing (and in light of an exchange with Mr Jacobs during closing oral submissions – T 449 - in which I had asked him to specify with some precision what confidential information it was that the plaintiffs contended had been conveyed by Dr Monks in breach of any obligation(s) owed by her), Mr Faulkner sought (and Mr Jacobs agreed to provide) further detailed particulars as to each communication of information alleged to have been made in breach of confidence (stating the specific words relied on; whether it was only the fact of communication of those words which was relied upon and, if more than the fact of communication was relied upon, what facts were implied in that communication but did not occur; alternatively for each communication each fact which the plaintiffs said did occur and was communicated as information), as well as notification of any particulars which were no longer pressed. Mr Jacobs, in turn, sought (and Mr Faulkner agreed to provide) further written particulars to be provided by the defendant in relation to the offence or crime alleged to have been committed by Mr Brand.

36 I considered orders of this kind to be appropriate, having regard to the need for clarity on the face of the pleading as to the Brands’ claim; it not being clear to me, from the pleading alone, precisely what was the information (or confidential information) said to have been disclosed by Dr Monks in respect of which complaint was ultimately made by Mr and Mrs Brand and there having been what I can only describe as some fluidity in this regard during the course of submissions.

37 It did not seem to me to be appropriate (having already, albeit perhaps without success, sought to clarify this during the course of closing submissions) for that to be left in any way uncertain.

38 After the conclusion of the hearing, I received, in accordance with the above directions, Mr Jacobs’ Reply, dated 22 October 2009, to the request for particulars; Mr Faulkner’s Response, dated 26 October 2009, to those particulars; Mr Faulkner’s Summary, dated 22 October 2009, of the Offence by Mr Brand; and Mr Jacobs’ Response thereto dated 27 October 2009. I have dealt with the case as pleaded, having regard to those final particulars.

Factual Background

39 Mr and Mrs Brand purchased the land in about 1979/80. It had for some years before then been used for farming. According to Mr Brand (and another witness Mr John Eardley Blair, who was not required for cross-examination on his affidavit of 29 September 2009), the land had earlier been used for logging. Mr Brand said that a number of large stumps had been left on the site and identified one such stump by reference to photographs tendered in evidence, as having been on the site from the time he purchased the land.

40 Mr Brand says that shortly after acquiring the land he sought and obtained permission for use of the land for agricultural purposes. I accept that Mr Brand has sought, but been unable to obtain from the Council, a copy of any document recording this consent. Assuming, as the Council appears to have accepted, there was an early consent to agricultural use, it would seem that the explanation for the lack of documentation is either that it was a formal consent which was not properly recorded or archived when the Council later changed its records to an electronic data storage system (which Mr Chestnut considered unlikely, in light of the statutory obligation of the Council to maintain records, but could not wholly discount due to the possibility of human error) or else it was not of a formal kind (perhaps akin to the later approval from Mr Rose on which Mr Brand relies in relation to the underscrubbing but which, again according to Mr Chestnut, is not a formal Council approval as such).

41 In 1999 Mr Brand obtained a formal development consent for the construction of a dwelling on the land. That consent required compliance with a specified Bushland Management Plan, which, in its terms, strongly recommended against mechanical clearing of the land.

42 For some time prior to the events in question part of the property had been used, without the Brands’ consent, as a dumping ground for rubbish – including old car bodies, tyres and an old housing frame – and for trail bike riding. (Reference to such usage was included in the development application later prepared by Dr Monks, she relying at least to some extent on Mr Brand’s information in that regard. Nothing seems to turn on this.)

43 In July 2003, Mr Brand contacted Dr Monks about a proposed subdivision application for the land. Dr Monks had from 1994-8 been the Project Manager (Development and Building) for the Council (a fact of which Mr Brand says he was unaware at the relevant time, though his ignorance in this regard again seems to me to be of no relevance to the issues in dispute before me).

44 By letter dated 7 July 2003, Dr Monks wrote to Mr Brand to confirm her understanding of his requirements and to confirm her “trading terms”. These terms were accepted by Mr and Mrs Brand, by signing on 21 July 2003 and returning to Dr Monks a copy of the letter. Those terms

included, relevantly, the following:

Confidentiality and Legal Relationship
Highlight Consulting agrees to keep confidential any information relating to your affairs that is obtained by us in providing the commissioned services, unless this clause prohibits us from rendering those services.
We confirm that the services provided to you are by way of providing advice and in no way are they to be construed as Highlight Consulting taking part in the management of your affairs.
Highlight Consulting retains copyright over its intellectual property.

45 The word “us”, where used in this clause, must mean Dr Monks trading as Highlight Consulting, since no other party was named a party to, or expressly agreed by, this contract to provide the “commissioned services”. Throughout the letter there are instances where “we” and “us” appear to relate only to Dr Monks. So, for example, the reference to “us” where this appears in the context of working on an hourly rate or to “our” hourly charge clearly relates only to Dr Monks’ work. There is separate provision for the cost of any contractors engaged by Highlight Consulting, (which work, it was said, “may or may not be the subject of a fixed price offer or an estimate prior to commencement of work, for your consideration and agreement”).

46 What were the “commissioned services”? According to the 7 July 2003 letter, they were “to prepare and submit to Council a Development Application for subdivision, without any attempt at rezoning”. Dr Monks’ estimate of fees referred to the “preparation and facilitation [of the Development Application] until determined by Council”. The letter contemplated that responses might be required from organisations such as Council or the State government, though did not indicate to what such responses might relate. (Dr Monks’ “job planning” draft of 14 January 2004 (Exhibit E p 16) contemplated that a ‘pre-DA’ meeting with Council and sub committees might be required (“as needed”) prior to submission of the development application.) The scope of the commissioned services is relevant when considering the fiduciary duty claim and I will consider this further in that context later in these reasons.

47 It was clear that Dr Monks was, under the contract, reserving the right to provide part or all of the services through contractors engaged directly by her. The evidence from both Mr Brand and Mr Clarke was that Dr Monks wished all communications between her contractors and her clients to be made through her (although as it transpired it seems that there were occasions on which Mr Clarke communicated directly with Mr Brand, such as the letter he sent to Mr Brand in early May 2004).

48 The 7 July 2003 letter stated, in relation to contractors:

Contractors to Highlight Consulting
From time to time, contractors may be engaged by Highlight Consulting to undertake work to fulfil the requirements that you have of Highlight Consulting. The choice of such contractors may or may not be discussed with you. In any case, Highlight Consulting is responsible for their work and for all communications with them in relation to the work. In order to protect any negotiations and to ensure quality and efficiency in overall administration of your work, all contact between and any such contractors shall be through Highlight Consulting.

(The clause went on to contain the provisions as to the costing for such work which I have earlier noted.)

49 Dr Monks commenced work on the matter on 24 July 2003, when she met with Mr Brand’s surveyor, Mr Cahill, on the land. In due course, Dr Monks retained Mr Robert Payne to carry out a flora/fauna study (which included what was referred to as an eight part impact test, relating to the identification of threatened species) and Mr Michael Clarke to prepare a bushland management plan. Also required were geotechnical, flooding, access, stormwater, services, and bushfire protection studies or plans, as evident from the description of work for which Dr Monks invoiced Mr Brand in December 2003 by way of a 50% deposit (Exhibit E p 14).

50 In late 2003, Mr Brand and Mr Clarke met on the land and there was a discussion between them as to how to remove weeds. It does not seem to be disputed that certain areas of the land were populated by weeds (particularly lantana and blackberry), nor that those weeds were regarded as noxious weeds. Mr Clarke’s own bush management plan, prepared for the purposes of the proposed development application, makes this clear. Where there was an issue was as to how those weeds should be removed in accordance with what were perceived to be proper bush management processes (and whether their removal by way of mechanical clearing was unlawful without express consent from the Council thereto). Mr Clarke advised Mr Brand at this time that along the edges and within the “good bush” there had to be hand weeding and that this would take a long time; that blackberries had to be scraped and painted but that continuing to slash open areas away from the creeks was “fine”. On 26 September 2003, Dr Monks provided Mr Brand with a handwritten quote for removal of lantana including slashing of “setbacks”.

51 On 19 November 2003, a Council officer, Mr Jonathan Scorgie, visited the property and spoke with Mr Brand. He did so, according to Mr Chestnut, following the receipt of a complaint at that time about Mr Brand’s clearing of the land (T 205.39). There was on that occasion a discussion about previous clearance of the land. Mr Scorgie says that he advised Mr Brand that he was required to cease all machine work and to erect adequate sediment controls (paragraph 4 of Mr Scorgie’s affidavit of 23 May 2008). Mr Scorgie suggested that a hazard reduction certificate from the Rural Fire Service might be an alternative to Mr Brand having to obtain Council permission to remove vegetation on the land (thus perhaps impliedly advising of the need to have consent of some kind to do so).

52 At that stage, therefore, Mr Brand seems to have turned his mind to the possibility that there might be a need for approval to be obtained for the removal of vegetation on the land. Further, the Council was aware by that stage (if it had not been before), through Mr Scorgie, that there had been some clearance on the land at a previous time. Also, according to Mr Chestnut, he understood that Mr Scorgie had explained to Mr Brand the requirements of clearing/underscrubbing at that time – T206 (something relevant when considering the significance sought to be attributed to Dr Monks’ May communication to the Council to the effect that there had been an explanation given to Mr Brand by her and her consultants of the relevant requirements).

53 Mr Scorgie gave evidence as to his observations of the site from his inspection in November 2003. He said that the soil had been churned up and made unconsolidated (or loose), which is what caused him to require the erection of erosion sediment controls (T 240). From this churning, he was of the view that machinery had been used to underscrub the land (hence his advice that all machine work should stop).

54 Mr Scorgie confirmed that when he inspected the land in November 2003 the only recently cleared area was along one street frontage of the property and that Mr Brand told him he had taken away debris, rubbish, lantana and weeds. (Mr Scorgie said that when he next visited the land in May 2004 he observed that vegetation along the paddock boundaries, which had been intact in November, had been removed – T 236.43).

55 Dr Monks’ 14 January 2004 “job-planning” document noted that “Slashing for bushfire protection and blackberry cane removal (the latter with follow-up poison spraying by the owner) will be commissioned by the owner within the next month”. Mr Jacobs relies on this document (and the September 2003 quotation) as evidencing that there was no objection in principle by Dr Monks to the slashing of weeds on the land. (In that regard, the evidence of Dr Monks and Mr Clarke seems to have been consistent in that some slashing of weeds was regarded as acceptable and in accordance with proper bush regeneration techniques, but not the extensive slashing carried out in mid 2004 along the gully in particular.)

56 On 14 January 2004, Dr Monks sent an email to Mr Payne (Exhibit E p 18) referring to a conversation with Mr Brand, from which it seems that Mr Brand had advised Dr Monks (or at least she had concluded from what he had said to her) that “he’s finished pulling out the car bodies, clearing, filling etc” and that he had applied to the local rural fire service for permission to slash for bushfire purposes. It is clear from that email that Dr Monks was aware there were at the time horses on the site, as she says, “the horses will go within a fortnight”. (Reliance is placed by the Brands on the presence of horses, and earlier cows, on the land as evidence of its agricultural use and that there was apparently no objection thereto by the Council.)

57 Relevantly, Dr Monks says in that email that she had pointed out to Mr Brand “we needed a stable ‘bottom line’ for our reports”. This suggests that what Dr Monks had in mind in January 2004 was the need for the extent of the clearing on the land to be known, or finite, so that there would be a ‘bottom line’ to permit appropriate reports for the development application to be finalised. There was again a reference to blackberry clearing and a comment that all blackberries should have been ‘slashed’ within about a month. Mr Jacobs drew my attention to this email as suggesting that Dr Monks was looking out for her own interests (as I understand it, in relation to any fees which might be recoverable for the hand weeding). Mr Jacobs emphasised that there was evidence that at a meeting in early 2004 on the site a discussion had taken place in relation to the hand slashing of weeds, during which Mr Clarke had suggested that Mr Brand “invest” in hand weeding and that Dr Monks had said she could provide qualified and experienced people to do that. However, there is no evidence that Dr Monks would personally have received any fees for hand weeding, even if she had been asked to arrange for qualified people to carry out that task, nor was there any allegation in the pleading that Dr Monks had acted improperly or in breach of any obligation owed to Mr and Mrs Brand in recommending hand weeding as the appropriate means of weed control in the relevant area.

58 Dr Monks stated in that letter that she wanted “to establish some long-term boundaries for hand work versus slashing, to protect the edges of areas that need long-term protection.” While it is possible that this was simply in the interests of bush protection and not necessary for the development application per se, on the face of the email it seems to me that what Dr Monks was considering was what might be necessary in this regard in order to improve the prospects for approval of the development application; and that it was in this context that she was seeking Mr Payne’s recommendation as to whether any bush regeneration work should be commenced or whether it should be left to be dealt with as part of an approved bush management plan. If so, then I would read this statement as evidencing the proper consideration by Dr Monks as to how to improve for the benefit of her clients the prospects of approval of the development application (which would surely be seen as within Mr Brand’s interests) by putting in place in advance measures which might satisfy any environmental concerns on the part of the Council.

59 On 8 April 2004, Dr Monks noted in an email to Mr Payne that Mr Brand was “turning it into parkland around each building envelope”. This seems to be a reference to the clearing of the areas around the designated lots under the plans for the proposed subdivision. Dr Monks continued:

He knows he should have permission but says a lot of the trees are “just regrowth”. He is clearing the lantana and will treat the blackberry (he spoke with Michael about how). I’ve asked him to remove the sand up top (“due to pennywort coming through”) and to avoid scarfing the turp [turpentine trees] up there.

60 Up to this point, therefore, Dr Monks was clearly aware that some clearing had been undertaken. It seems she believed that Mr Brand had been given (and had understood) the advice given to him from Mr Clarke (correct or otherwise) on how to clear the blackberry.

61 According to her affidavit, it was at about this time that Dr Monks became concerned at the continuing extent and level of vegetation clearing. Dr Monks says that she raised her concerns with Mr Brand and that his response was that he was “getting it ready to put on the market” and he asked her to give him “another couple of weeks”. (In cross-examination, Mr Brand could not recall, but did not deny, saying this to Dr Monks.) The suggestion that Mr Brand may have been contemplating marketing the land for sale prior to obtaining an approval for subdivision does not accord with the pleaded claim for damages, which refers to the loss of the ability to subdivide and sell the land in 2004-2006. That said, it is conceivable that Mr Brand may have been intending to market the land for sale at the same time as he was pursuing the development application. Ultimately, the point at which Mr Brand had intended (but for the ensuing Council prosecution) to sell the land, a matter seemingly highly relevant to the quantification of damage referable to the alleged loss of the chance to subdivide and sell the land, was not made wholly clear.

62 By 21 April 2004, it seems that Mr Clarke had also raised with Dr Monks a concern about potential habitat removal as a result of the ongoing clearing, since by email of that date (Exhibit E p 29), Dr Monks wrote to Mr Clarke:

I agree re potential habitat removal – but we’d have to decide how to stop it. He doesn’t respond very well – we’d have to be formal about it, I suspect.

63 What Dr Monks seems, by the comment extracted above, to have recognised was the likely negative reaction from Mr Brand to any suggestion that he stop clearing (or mechanical clearing).

64 (There was also a concern raised by Mr Clarke in about March/April 2004 as to whether there were any trees of potential Aboriginal significance on the land. This does not seem relevant to the issues in the present proceedings. However, Mr Jacobs’ chronology, rhetorically, asks “One wonders, … exactly what interests that the defendant is protecting or advancing” in her discussion in relation to the identification of any trees requiring protection. Reading the 21 April 2004 email as a whole, it seems to me that what Dr Monks was mainly expressing concern about was the likely delay which would be encountered to the development application process if there were to be significant archaeological/historical research into what were described as “uncertain” trees, hence her stated desire to avoid the use (in the reports) of terms such as “needs further investigation”. I would have thought that endeavouring to frame the necessary reports in a way which might avoid or minimise the likelihood of significant ongoing delays of this kind could only have been in Mr Brand’s interests (if I may in this instance be permitted to answer Mr Jacobs’ rhetorical question).)

65 This email seems to mark the point of time at or about which Dr Monks, in consultation with Mr Clarke and Mr Payne, formed the view that it would be necessary to take steps to ensure that Mr Brand was “formally” made aware of the issues they had with clearing on land.

66 Mr Clarke emailed Dr Monks on 22 April 2004 (Exhibit E p 31) as to his observations while doing field work at Copacabana on 20 April. He observed “the amount of understorey being cleared” and requested that she “please stop any future clearing for the moment”. Mr Clarke seems to have assumed that Dr Monks had some ability to direct what was or was not done by Mr Brand in relation to the clearing. He noted that survey information was still being gathered to formulate planning of the site, and that it was possible for some areas still to be cleared, but emphasised that it was necessary for this to be planned first.

67 Dr Monks’ response to those comments was to note that Mr Brand had “agreed not to go back into the vegetation … just the edges”, but that if they wanted to develop written guidelines it would be necessary to think it through “and preferably have a legislative basis for the bad news we’ll be delivering to him”. Again, it seems to me that this communication is expressing Dr Monks’ opinion that Mr Brand would not welcome interference in his activities on the land and that, for Mr Brand to be persuaded to cease clearing (at least the extent or level of the clearing which was causing Mr Clarke concern), then he would have to be pointed to a statutory prohibition on clearing. In other words, Dr Monks seems to have believed that a general appeal to Mr Brand on the basis of bush regeneration policy or the desirability of preserving native habitat would be unlikely to meet with a favourable response (a not unwarranted conclusion in my opinion, having regard to some of Mr Brand’s responses in cross-examination).

550 If it had been necessary to determine the loss I think that Mr Stamoulis’ comparable sales figures in that regard would seem more likely to produce a more realistic assessment of the value of the lost chance insofar as they look at lost profits from comparable sales at different points in time without reference to the fear factor which I think has not been established as applicable in this case. That would suggest a much lower sum than that for which the plaintiffs have contended.

· Wasted fees paid to Dr Monks

551 In relation to the s 43 Fair Trading Act claim, the only potential unconscionable conduct (not pleaded as such) which I consider might have been able to be established was in relation to the failure of Dr Monks to put Mr Brand on notice of the disclosures which she had made to Council (or of Dr Monks’ intention to make such disclosures)

552 The losses itemised in the first two heads of damages could not be said to have been caused by that conduct. Nor is any distress and hurt suffered by Mr and Mrs Brand (since this resulted from the publicity relating to the prosecution and not, in my view, Dr Monks’ failure to tell them what she had done or proposed to do).

553 The damages referable to this claim would in my view have been limited to any costs incurred by Mr and Mrs Brand for work done in relation to the development application after 20 May 2004 (that being the date on which Dr Monks first contacted the Council by telephone). I would in that regard have considered submissions as to whether any residual benefit had been obtained by reason of the completion of the reports, for which Mr and Mrs Brand should account in some way. In any event, in light of my findings on liability, this issue does not arise.

Conclusion

554 For the reasons set out above, I find that the plaintiffs have not established their claims against Dr Monks. I find for the defendant. I dismiss the proceedings with costs. I will hear any submissions as to the basis on which the costs order should be granted at a time convenient to counsel.

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