Coote v Forestry Tasmania

[2006] HCATrans 155

[2006] HCATrans 155

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H3 of 2005

B e t w e e n -

GRAHAM COOTE

Appellant

and

FORESTRY TASMANIA

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON WEDNESDAY, 22 MARCH 2006, AT 3.18 PM

Copyright in the High Court of Australia

MR J. RUSKIN, QC:   May it please the Court, in this appeal I appear with my learned friend, MR S.A. O’MEARA, for the appellant.  (instructed by Hilliard and Associates)

MR D.E. CURTAIN, QC:   May it please the Court, I appear with my learned friend, MR C.M. O’NEILL, for the respondent.  (instructed by Phillips Fox)

GLEESON CJ:   Mr Ruskin and Mr Curtin, I understand that the parties have agreed that Justice Gummow participate in the decision of this case on the basis of a reading of the papers and the transcript of oral argument.

MR RUSKIN:   That is so, your Honour.

MR CURTIN:   That is correct, your Honour.

GLEESON CJ:   Yes, Mr Ruskin.

MR RUSKIN:   Thank you, your Honour.  The crucial error that we say was made by the majority of the Full Court in this case was to state at paragraph 56 of its judgment that it was common ground that the appellant knew he had the right to “fell any trees that potentially posed a danger” as if it meant, in the context of this case, the same thing as that which they said at 54 - and I will take the Court to this in one minute – which is that he knew he “had the right to fell any tree that he considered too much of a danger to leave”.  Those paragraphs, your Honours, appear at page 509 of the judgment.  The difference between knowledge that he could fell any potentially dangerous tree, on the one hand, and knowledge that he had the right to fell trees that were too dangerous, on the other, was at the heart of the case.

GLEESON CJ:   What is the difference?

MR RUSKIN:   The difference was this, your Honour, that the appellant’s case was, “My capacity, my right to fell trees, was restricted or fettered by reason of the harvesting plan and the discussions about the harvesting plan between me and the Forestry officer, Johnstone.  If I had the choice I would fell potentially dangerous trees, but I was only permitted to fell trees which I would barrel or hit directly”.  The difference was crucial because both the trial judge, and the Full Court at least seemed to, but certainly the trial judge did, hold that consequent upon the discussions with Johnstone, the appellant was prevented from felling trees in the way he normally would, and if he could have fallen this tree in the way he normally would he would have indeed got rid of it.  That difference arose from – or the fact of that difference arose in this way.  There was a harvesting plan, as the Court knows, which had a couple of crucial clauses in it.  That appears, your Honours, at 335 of the book.

KIRBY J:   You are not in this appeal presenting us any larger question concerning any larger duties of persons who, though in law are independent contractors, are in reality very close to working as employees?

MR RUSKIN:   No, your Honour, we are ‑ ‑ ‑

KIRBY J:   You are not seeking to enlarge in this Court the duty that is owed by a principal contractor to a subcontractor?

MR RUSKIN:   No, we are not, your Honour.  We say that this is a case in which ‑ ‑ ‑

KIRBY J:   That is a matter Justice McHugh raised in a number of cases, and you are not pursuing that?

MR RUSKIN:   No, we are not, your Honour, and the reason is that ‑ ‑ ‑

KIRBY J:   So it is really a very short point in this appeal?

MR RUSKIN:   It is indeed, your Honour.

KIRBY J:   A question of whether the Court of Appeal made a mistake in its understanding of the concession of the Full Court?

MR RUSKIN:   Yes, it is as small as that, your Honour; small but important for the ‑ ‑ ‑

KIRBY J:   Yes, you were taking us to the harvesting page.

MR RUSKIN:   Thank you.

KIRBY J:   What page?

MR RUSKIN:   Page 335, your Honour.  If you see at 335 just about at line 45 you will see a dot point that talks of the aim of the harvesting plan and it says:

the aim of this operation is maximise sawlog production and minimise pulpwood.

GLEESON CJ:   Sorry, where is this?

MR RUSKIN:   Your Honour, about 45 on page 335.  You will see the words:

Remaining head logs are to be sold for pulp, however the aim of this operation –

that is, the harvesting operation –

is maximise sawlog production and minimise pulpwood.

Just above the line 45.

GLEESON CJ:   Is there any relevance in that general provision on the top of page 335?

MR RUSKIN:  

Forest Practices shall be carried out in accordance with the principles –

No, there is not, your Honour.

GLEESON CJ:   Thank you.

MR RUSKIN:   So that is the first important thing to read on that page, and the second is:

Direction from a Forest Officer will be supplied to help with selection.

That is at the next dot point, and there is a bottom dot point which says:

All trees that are considered to be un‑safe by the contractor are to be removed.

So the case raised the potential tension between, you can remove all trees that are unsafe on the one hand, but you have to minimise pulpwood on the other.  That gave rise to the factual scenario that happened here which was as follows ‑ ‑ ‑

GLEESON CJ:   That harvesting plan is addressed from whom to whom?

MR RUSKIN:   The harvesting plan, it is a statutory document that arises under the section – I think it is 8(1)(c) of the – one of the Acts talks about the ‑ ‑ ‑

KIRBY J:   It is the Forestry Act.  Chief Justice Underwood refers to it on page 502.

MR RUSKIN:   Yes, I am just looking for the section that ‑ ‑ ‑

KIRBY J:   Paragraph 16.

MR RUSKIN:   Yes, that is so, your Honour, thank you.  Section 19 of the Forest Practices Act says that – and that appears – that says the board shall approve or refuse to approve a timber harvesting plan, and a timber harvesting plan is that which you have just seen at page 335, or the relevant part thereof.  Forestry Tasmania, the respondent, had its representatives on the Forestry Board, and section 20 of the Act gave authority - an approved timber harvesting plan authorises the carrying out or causing or permitting to be carried out of harvesting of timber and any operations associated with the harvesting of timber of the land specified in the plan in accordance with the provisions of that plan during the period specified in the plan.

Section 21 of the Act says any person who in the process of harvesting timber on land or in the process of carrying out any operations associated with the harvesting of timber who contravenes or fails to comply with the provisions of the plan is guilty of an offence.

GLEESON CJ:   I just wanted to understand the connection between this plan and the action in tort between your client and Forestry Tasmania.  Was the allegation that there was something negligent about the preparation of this plan?

MR RUSKIN:   No.

GLEESON CJ:   Well, then ‑ ‑ ‑

MR RUSKIN:   No, only in the sense that it had ambiguous language in it and it was unusual.  Forestry Tasmania was responsible – that is the respondent – for implementation of the harvesting plan.

GLEESON CJ:   So it was not responsible for the preparation of the harvesting plan?

MR RUSKIN:   Yes, it was and its language.  It drew it, it approved it and its officer under the Act was Johnstone.

GLEESON CJ:   Is it alleged that any act or omission of Forestry Tasmania in relation to the form of the harvesting plan was negligent?

MR RUSKIN:   Yes, in this sense, that it prepared and approved a forestry plan which on the case of the appellant contained weird, to use the language of the transcript, and unusual language, namely minimise pulpwood.  That is what you saw at page 335.  That gave rise to the circumstance in which the appellant found himself bound by the harvesting plan, the responsibility of the respondent, and requiring and indeed being given directions by the respondent’s officer as to how to interpret and act in accordance with the plan.

GLEESON CJ:   This was issued by Forestry Tasmania to the appellant’s head contractor, was it?

MR RUSKIN:   Yes.  The appellant’s employer was Padgett.

GLEESON CJ:   Employer?

MR RUSKIN:   Employer was a company called Padgett.

GLEESON CJ:   And there was a relationship of employer and employee, was there?

MR RUSKIN:   He was in fact an independent contractor.

GLEESON CJ:   That is why I asked you the question I did.

MR RUSKIN:   The short point was that so far as the harvesting plan was concerned, anybody who was working in the forest, such as the appellant, it was common ground was bound by the harvesting plan.

GLEESON CJ:   Did they have a copy of the harvesting plan?

MR RUSKIN:   Yes.

GLEESON CJ:   Given to him by whom?

MR RUSKIN:   Given to him by Johnstone at the time.  It was given to him and there was a discussion about it, which was at the core of the understanding and direction by which he was to interpret and follow the harvesting plan.  So the evidence was that they got to the coupe, they had a discussion, did Johnstone and the appellant, “Here is the harvesting plan.  This is what it means.  This is what you have to do”.  That is in broad terms – and I will take the Court to a little bit of the transcript – what the appellant was required to do.  Then came the problem because on the appellant’s case Johnstone instructed or directed or a word of that kind such that the appellant was restricted in the way that he would normally go about the task because of the concept of minimising pulpwood.

So the first thing was that the timber harvesting plan demanded minimising pulpwood.  The second aspect of the harvesting plan was what the evidence showed was an unusual ratio.  If the Court would be kind enough to look at 334, that is just opposite where I took the Court, the Court will see at about line 35 on 334 two figures, 2850 and 3000.  The evidence was that that was an unusually high ratio between sawlog and pulpwood.  A sawlog was wood that you would be able to mill and pulpwood was wood that was not millable, it was just refuse, if you like.

The appellant’s case was this, and this is what the primary judge found.  These were the steps.  Johnstone, the representative of the respondent, instructed and supervised the appellant in fact in relation to implementation of the harvesting plan – step one.  Step two, the harvesting plan said relevantly, “Minimise pulpwood”, whatever that meant, which the appellant found both weird, to use his language, and unusual.  Three, the discussions between Johnstone and the appellant were such that as a result of those discussions the appellant understood himself to be restricted in removing pulp trees in the way he normally would and he was restricted in removing them only if he was going to barrel or directly hit or break and fall the pulp tree in front of the tree he was going to fall, the saw tree.

If he had had his way, a tree that he would brush – and that means brush and knock off a branch or two – he would have wanted to remove, which is the way he normally did the job.  He did not want to do it this way, and that was his evidence and I will take you to the passages.  He gave evidence:  “If I’d had my way I would have removed the pulp tree in advance but I couldn’t because Johnstone’s directions restricted me only to falling a pulp tree if I was going to barrel” – that is hit directly – “and fall”.  The consequence of that direction was that it would then conform with the plan, namely, “By not removing the pulp trees in the way I normally wanted to, indeed I would minimise pulp tree destruction because, given my way” – and I will take you to the transcript – “I would have removed numerous pulp trees, and that would not be conforming with the plan”.

The fourth point is that the burden of that discussion and the appellant’s understanding of it was the subject of evidence by the appellant in which he said on at least 15 occasions both in‑chief and in cross‑examination that that was the essence of the direction by Johnstone.  The source of the direction came from Johnstone and it was confirmed by inspection by Johnstone – and I will take you to that – in which he asked the appellant when he saw a pulp tree on the ground, “Why did you do that?  What was the reason for doing that?”  The appellant gave evidence consistent with, “Well, I was going to barrel it; that’s why I did it”.

In the passages that I am going to take the Court to very briefly – there are just a couple of lines; I have selected, say, five passages – the Court will get the flavour of how this occurred.  May I ask the Court to look, for example – I said there were at least 15 passages and there are.  I will just give the Court the page numbers but only take the Court to five of them if that is convenient:  73, 75 points 25 and 45, 106 point 10, 108, 109, 110, 116 points 20 to 30, 124 point 20, 125, 126, 127, 128, 130, 147, 148 points 20 and 40, 149, 150 and 151.  I do not think I gave the Court this number, but 70 is – I said 73 but it should be 70.

May I ask the Court to look at page 70 of the book at line 20.  This was the start of the discussion.  At line 15 you will see:

Is that a copy of the logging plan –

or the harvesting plan to which I referred the Court –

that you had a look at on the first morning . . . Yeah, that’s the logging plan.

When you looked at that on that morning did you notice anything unusual about it?......Yeah, I noticed, because I immediately went through to the – where it says “felling” because that was my part of the job, and it said to maxi – like, to maximum the soil logs.  In other words, I said something to Peter Johnson about falling the pulp trees and he said, “No, it was – evidently there was another logging contractor coming in to do that.  We were only there to take the soil –

it means saw –

logs only out,” and I thought that was a bit strange.  That’s what I thought at the time . . . 

No, I just sort of thought it was weird and then – because it said - it sort of said one thing and yet we were told another.

At 26 on that same page:

Had you worked in an operation at all previously in native forest where you had had to remove, where you had a felling prescription like the one that you’d seen?......No, never.

Then at 73 at line 18:

All trees that are considered to be unsafe by the contractor are to be removed –

You will recall that I took the Court to that clause of the plan.  There is a clause that said all trees considered to be unsafe are to be removed.  So the barrister asked the appellant:

All trees that are considered to be unsafe by the contractor are to be removed, did you believe that that gave you any obligation about unsafe trees?......I was told by Peter Johnson that if there was – because of a previous accident some weeks before –

and I pause there.  Obviously there had been a previous accident and someone was injured, one imagines –

or whatever, that on the logging track if there was a pulp tree, that the skidder had been pulling logs around, and it looked unsafe where the skidder had been pulling logs around it and dug the dirt up and it looked like it was going to fall over, well then I was to fall that tree.  And that’s basically all he said about unsafe trees . . . 

Well, if I was going to be working right beside it –

that is a pulp tree –

or if it was going to be in my – if I was going to head it in any way, like smack it well then I’d fall it.  But apart from that I wouldn’t - I wasn’t no.

GLEESON CJ:   Insofar as there is a difference between what Mr Johnstone said and what was going on inside the mind of your client, are we to take it that all that Mr Johnstone said about unsafe trees was what appears in the middle of 73?

MR RUSKIN:   A bit more, your Honour, and I will take you to it.  What the trial judge found was that he had to distil the evidence as between the appellant and Johnstone in terms of conversation because the appellant could not remember the very words that were used, although – Johnstone could not and the appellant gave his best version of the words which I will take the Court to.  If I could just lead up to that with a couple more passages if I may.  At 109 of the book, here he is now being cross‑examined.  It is indicative of the fact that he the appellant knew that pulp trees were potentially dangerous.  He certainly knew that but his case was, “You didn’t let me take them out”.  At line 9:

So you considered all pulp trees to be unsafe?......Yes.

Every single one there?......Yes.

Why?......Because they’re the worst trees of the lot, they’re rotten, they’re bent, they’re twisty – anything can happen with a pulp tree.

He is being cross-examined.

And you were quite clear in the timber harvesting plan that those trees that were considered to be unsafe by the contractor were to be removed?......Yeah, well – I wasn’t allowed to fall pulp trees.

Well, did anybody say to you “You are not to fall a pulp tree ever” in that coupe?....No.

Peter Johnson didn’t tell you that, did he?.....He told me not –

Just concentrate on what I said.  Peter Johnson didn’t say to you “You are never to fall a pulp tree” did he?.....No.

What Peter Johnson said to you was that this was essentially a saw log recovery exercise…Saw log extraction.

Yes.  That’s what he told you, didn’t he?.....Yes.

He made it quite clear that you could take the pulp trees out if you thought there was a need to –

So that is the case the respondent wanted but he would not agree with it:

Only if they were in my way.

He emphasised to you that any tree that you considered to be unsafe could be removed…Yes, if they were in my way.

Meaning barrelled.

No, what Peter Johnson said to you is that all trees that you considered to be unsafe were to be removed….He didn’t quite say it like that.

But you were in no doubt that as the feller working on the ground, that if you considered any tree to be unsafe, you could remove it….Yes.

You have to see this in the context of what he now means by “unsafe”, unsafe in the sense of barrelling, as becomes apparent as we go over to 110:

And that included saw trees and it included pulp trees, didn’t it?....Yes.

And it included any other species . . . Yes.

So that was the regime . . . Yes.

Your job primarily is to remove saw logs – correct?...Yes.

If you found any tree that was unsafe you could remove it?...Yes.

So that is what he says about that but then he qualifies it, as the trial judge noted, at 116.  This was a cross‑examination that went back to this topic many times.  May we ask the Court to look at 116.

GLEESON CJ:   We got that point.

MR RUSKIN:   Thank you very much, your Honour.  At line 10:

What he said to you –

he has come back again –

was to maximise saw log recovery in accordance with the timber harvesting plan..…He – he said when we first got to the block that it was saw log only.

What he said was saw log maximisation, didn’t he?....Yes, saw log only – it was treated as a saw log only bush.

But you were entitled to take a pulp tree if it contained a saw log, and you were entitled to remove any pulp tree that was a danger.  Correct?...Yes, but I –

And you were entitled to remove any pulp tree that was in the way of safe felling of saw trees?....I was allowed to take a pulp tree if I was going to directly hit it and break it off.

And thus create a danger…Yes.

Yes. .…But to me every pulp tree is a danger in itself.

May we now go to 124.  Again, he has gone somewhere else and he has come back again in the way great cross-examiners do.  This is important because if I may take the Court to line 5, he is trying again on that line in the harvesting plan - “You can do what you like” was the theme”:

‘All trees that are considered to be unsafe by the contractor are to be removed’.  That was mandatory, wasn’t it?......Yes.

GLEESON CJ:   Nobody could accuse counsel of not complying the rule in Browne v Dunn.

MR RUSKIN:   I am about to do that but for a different reason.

Did you consider that pulp tree to be unsafe before you felled . . . No.

Thank you……I wasn’t gonna –

Go on.  Finish your question – finish your answer……I wasn’t going to barrel it, as I’d said before.

You didn’t consider the tree to be so unsafe, that it needed to be removed before you felled the saw trees?........I would have liked to have removed it.

You were entitled to remove any tree that you considered unsafe –

so he has tried again –

I wasn’t allowed to fall pulp trees –

this is a bit of transcript difficulty, so I want to take the Court slowly to that answer if I may.  I will read it literally:

I wasn’t allowed to fall pulp trees for the sheer fact that I wasn’t going to knock some limbs out of it.

He probably means, “I wasn’t allowed to fall pulp trees for the mere fact that I was going to knock some limbs out of it”.  That is probably the sense of it.

It was mandatory, wasn’t it?  That any pulp tree you considered to be unsafe, you could fell, couldn’t you?

He has tried again at line 30.

That means I would have felled every pulp tree in the block.

It means that you would have felled every pulp tree that you considered to be unsafe……Yes.

And that was permitted, wasn’t it?......No.

Well, what does ‘all trees that are considered to be unsafe by the contractor are to be removed’ mean?......It means that all pulp trees are dangerous, and should be removed.  But in this situation, I wasn’t allowed.  It was saw log extraction.

So he tries again at line 10 on page 125:

And if you considered that the pulp trees that were there with those good saw trees were dangerous, you were entitled to remove the pulp trees, weren’t you?.......Not unless I was going to barrel them.

Where does it say in the Timber Harvest Plan anything about barrelling?......It doesn’t.

And barrelling is something you shouldn’t do, generally speaking, isn’t it?.......No, you shouldn’t strike – you shouldn’t leave a tree standing that you’re gonna strike.

That’s right . . . 

The only way to bring a tree down was to barrel it………Yep.

You could fell the pulp tree, couldn’t you?.......Yes.

GLEESON CJ:   Well, this is all construction of the document, the harvest plan, but what is the evidence about what Mr Johnstone said, different from what is in the written document?

MR RUSKIN:   Page 127 is at its best, your Honour.  This is where the Browne v Dunn point comes in. 

Your understanding that the timber harvest plan was that you were to take any trees that were considered by you to be unsafe.  That was mandatory……….Yes.

It’s not your understanding that the timber harvest plan that says anything in there at all about barrelling, does it?.........In – it’s a big hard to explain.

Well please try and explain……….I was told by Peter Johnson that it was saw log only and to not take any pulp trees out unless I was going to hit them, you know, like barrel.

But did Peter Johnson say “barrel” to you?.........No, he never used those words.

How many times did you speak to Peter Johnson in that coupe before your accident occurred?.........Quite a few times.

So, what you have there is, and on other occasions, but that is at the high point where he says the discussion started with Johnstone telling me that there was going to be another contractor, with Johnstone saying to me you can take out those trees because they are going to fall where the tractor had been and Johnstone saying to him, at 127 “You can only take them out if you barrel them” but not the verba ipsissima.  He could not remember the absolute precise words but that was the substance of what Johnstone said.

GLEESON CJ:   What did the trial judge find about this, about what Johnstone said to him?

MR RUSKIN:   At 11 on his judgment he distilled the evidence having heard him.  We will take the Court to that.

GLEESON CJ:   Did Johnstone have anything to say about this?

MR RUSKIN:   Yes, he did.  He did – is it convenient – I will take you first, your Honour ‑ ‑ ‑

GLEESON CJ:   Whatever suits you better.

MR RUSKIN:   What I might do is take you to what Johnstone said and then I will take you to what the trial judge said.  What Johnstone really said was he spoke in very vague and general rather non-responsive terms.  In terms of what Johnstone said I should I think, your Honour, before I go to that go to the second part and that is that there were inspections by Johnstone consistent with the understanding of the appellant that comes into what the trial judge said so it is probably helpful if I take you to those two passages.  That is 76, remembering the appellant is saying Johnstone said, “You can’t do it the way you want to do it.  You’ve got to do it only if you barrel it”. 

Did Peter Johnson come on the coupe when you working on it?.........Yep.

About how often?........Oh he’d be there at least once a week, sometimes more, sometimes I wouldn’t see him, sometimes I did . . . 

he’d just come and just say, “How’s it going”, and that was about it, and wander off.

Did he ever make any particular comment to you about any particular trees that you’d fallen or not fallen?.........Oh he did make a comment once about the amount of pulp that was on the landing and I think he did mention something about a stump or something he’d seen or a tree he’s seen that I’d fell and questioned me about it, a pulp tree.

And what was the question?.........Oh about why I’d fell it or something.

What did you tell him?.........I said something about it was directly in the way of a saw tree so I had to fall it.

Then, this is important because it shows that he is doing this systemically, is the appellant, at line 35:

And of the retained pulp trees what percentage were brushed by saw trees that you dropped?..........Oh, I couldn’t tell you, there was plenty of them . . . 

Did you inspect trees that you left standing for damage, once they’d been brushed?...All the time.

And was it clear or not clear, on an inspection –

at the top of 77 -

walking round that coupe that there had been the damage that you speak of - saw trees brushing, pulp trees?...Yep.

Can you just explain that?  What was it that was clear?...Oh, well, if you could look up, you could see where limbs were missing out of pulp trees that I’d brushed – you only had to spend time walking around having a look.

And then at 128 he says that again about the inspections.  This is under cross‑examination because, of course, the aim of the exercise forensically was to show that the understanding in the way he executed the plan at Johnstone’s direction was known to Johnstone and so at 128 at line 35 this exchange occurs:

Well, he visited the site on other occasions before your accident……….Yes.

And he wasn’t there to check your work was he……….No.

He was there to see in his role as a forest officer what logs were being produced?.........Yeah.

He was basically interested in checking what was up on the landing wasn’t he?.......Yeah, but he had also come in the bush and keep an eye on what I was up to.

He was there to make sure that you hadn’t gone into any of the prohibited areas?........Yes.

That’s part of his role as a forest officer isn’t?..........Yes.

And here is the rub -

To make sure that you’re not taking minor species?........And to make sure I wasn’t, to make sure I [w]as falling saw logs only, to make sure I wasn’t going through the bush and just willy nilly falling –

Knocking down anything?.......Falling what I wanted.

Then the proof that indeed the appellant was regularly and systemically not doing what he would otherwise do, namely that he was constantly brushing and leaving limbs off trees was independently corroborated in the forest operations report which appears at 425 which was before the accident and that showed:

Damage extensive due to falling prescription.  Some trees potentially dangerous.

Now if I may take the Court to what the primary judge said – I was going to take us to Johnstone.  Johnstone’s evidence is at 287 and he gave answers that were extraordinarily broad, did not deal with the distinction, we would say, or was open to the trial judge who found that he did not really deal with it.  May we take the Court to 286 at about line 35?  He is being examined in‑chief.

Were you present on the first day when the – I withdraw that.  Did at any stage you discuss the timber harvesting plan with Mr Coote?.........Yes, we did.

Right.  When did you discuss it with him?.........On most occasions I went we’d talk about tree selection.

Yes.  And when you say ‘we’d talk about tree selection’ what was involved in that?........We’d talk about basically the type of tree we were looking at taking out, falling.

Yes……..That was the intent of most of the conversations we had.

Then at 287, line 5:

Mr Coote, just let me get this correct, Mr Coote alleges that you gave him directions that he was not to fall any trees that were suitable for pulp wood in the coupe -

Now, you see already counsel has put the term far too wide.  He did not put to him “Mr Coote says that you restricted him to falling trees you were going to barrel”.  That was never put to Mr Johnstone so he could give evidence on it.  He put the question very widely.

Mr Coote alleges that you gave him directions that he was not to fall any trees that were suitable for pulp wood in the couple……….No, that’s incorrect.

Neither did Mr Coote say that.  He did not say he was not allowed to cut down any pulp tree.  The restriction was he could cut down pulp trees he was going to barrel.  So the problem was forensically he was put the wrong question.  Then we come to line 10 which is again a very vague and wide answer:

Did you have any – ever have any discussions with him about pulp trees?........We would’ve had discussions, I’m absolutely certain, individual discussions that I can’t remember.  But we would’ve talked about the -

Then it is objected to and then at line 25:

I remember –

This is Johnstone in‑chief –

having discussions with Graham about, as I’ve said, tree selection.  And if there was a problem tree then he would - had his full rights ‑ ‑ ‑

GLEESON CJ:   By the way, the question that you criticised on page 287, line 5 comes directly from the particulars of negligence given on page 7, paragraph b, subparagraph (i).

MR RUSKIN:   Yes, indeed, your Honour, but by that time the appellant had given his version, and you will see this in the reasoning of the primary judge, that whilst he said you were not allowed to take out pulp trees, what he was really saying was you were not allowed to take out the pulp trees you were really meant to; you were very restricted to only those ones you would barrel.  What should have been put to Mr Johnstone, consistent with how the appellant was putting his case, was this.  “Mr Coote alleges that you told him he was restricted or fettered so he could only cut down the trees he was going to barrel.  What do you say to that?”  But he was never asked that.  It is in the language at 25 that you get this problem which the primary judge refers to, and I will take you to it:

I remember having discussions with Graham about, as I’ve said, tree selection.  And if there was a problem tree then he would – had his full rights –

If there was a problem.  Now, that was the width of the language used by Mr Johnstone which made the task difficult for the primary judge.  On the one hand he had a man, the appellant, saying 15 or more times, “I was restricted to trees that I was going to barrel, otherwise I couldn’t do it the way I wanted to”.  That is the appellant’s case.  Johnstone said, “If you had a problem tree you had your full rights”.  Well, what did that mean?  That was language that was far too vague.  It did not answer the question.  The nearest you got to that was at line 32 on 290 where he is asked a general question:

Was there any prohibition on him taking out a pulp tree?........No.

Well, that is very difficult to accept when you have a harvesting plan which said minimise pulp trees.  It is unsurprising that the trial judge would have found that a fairly unhelpful – then so far as cross‑examination was concerned, because Johnstone did not deal with the evidence of the appellant – he was only cross‑examined about his memory, in other words – at line 30 on 294:

So there’s no point in me putting to you particular words –

“because you can’t remember anything”.  Then there is a marvellous answer, which is this - which was never re‑examined on, but it said this, at 30:

So there’s no point in me putting to you particular words that may or may not have been said because you’ll simply say to me, “Well I can’t remember, they might have been said, they might not”?........I know what I wouldn’t have said, if that’s what you’re saying.

Now, whatever you say about that answer, it is unilluminating and it did not advance the respondent’s case to meet the fairly precise case now put by the appellant, “You restricted me in respect of the very tree that injured me”.  All you are saying is, “I know what I wouldn’t have said” and “You had your full rights with the problem tree”, but you did not, as the primary judge said, deal clearly with the evidence.  So may we now take you to how the primary judge distilled that evidence?  At 478:

It is common ground that the plaintiff’s injury could have been prevented by him felling the pulp tree before felling the two sawlogs that collided with it.  It is also common ground that the plaintiff had the right to fell any tree that he considered too much of a danger to leave standing, at least subject to any specific directions as to situations in which trees were not to be felled.

The plaintiff gave evidence that he spoke to Peter Johnstone . . . on the first morning . . . He said he spoke to Mr Johnstone about felling pulp trees, and that Mr Johnstone told him that another logging contractor was coming in to do that, and that only sawlogs were to be taken out.  The plaintiff said he saw Mr Johnstone in the bush at that couple on a number of occasions after that first day, and that every time Mr Johnstone would make sure that he was only taking sawlogs.  He explained that pulpwood trees were felled for the purpose of installing landings and snig tracks, and whenever they were likely to be directly hit and smashed to pieces by a falling tree.  He said that when a pulpwood tree was not going to get smashed to pieces,, but was perhaps going to have a limb or two knocked off, he would fell alongside it.  He said he would not remove pulp trees in that situation before felling sawlog trees near them because he was not allowed to take pulp trees.  He gave evidence to the effect that he had never before been so restricted as to the taking of pulp trees.  When asked to estimate what percentage of pulp trees were felled by him, he replied, “Probably about between 5 and maybe 10 per cent pulp trees, probably 5 per cent”.

Mr Johnstone said he did not think he went to the coupe on the day logging commenced there, but that he did go there within a few days of the operation commencing.  He said he discussed the timber harvesting plan with the plaintiff, and that he talked about tree selection with him on most occasions that he went there.  He said they would basically talk about the type of tree that they were looking at taking out.  He said that it was incorrect that he had directed the plaintiff not to fell any trees that were suitable for pulpwood in the coupe.  However he was asked very little about what he said to the plaintiff.  In particular, he was not asked to comment on the proposition that the plaintiff was, generally speaking, not allowed to take pulp trees, subject to exceptions when landings and snig tracks were being installed, and when a pulpwood tree was likely to be directly hit and smashed to pieces by a falling tree.

So that is the point that we were getting at, that Johnstone was not directed to the appellant’s case, but rather spoke in generalities.  Now, here is the way the primary judge with that advantage that he had, subject to – he being the trial judge and so forth, he then distilled the evidence and the witnesses, at 11:

Mr Johnstone gave his evidence in a credible manner.  The timber harvesting plan required the installation of landings and snig tracks in particular locations.  The nature of the forest in the coupe was such that pulp trees would have to be felled in order to install landings and snig tracks.  I infer that it was so obvious to those concerned with the harvesting operation, including Mr Johnstone and the plaintiff, that pulp trees would have to be felled where landings and snig tracks were to be installed, that that went without saying.

Now, here is the assessment:

Mr Johnstone and the plaintiff both seemed to me to be practical men, and men of reasonable intelligence.  I do not think there was any real chance of a misunderstanding between them as to how readily Mr Johnstone wanted the plaintiff to fell pulp trees.  There may have been some inaccuracy on the plaintiff’s part in recounting what Mr Johnstone said to him on that subject.  There may have been some inaccuracy on his part as to when the initial conversation occurred.  But with those reservations, I accept the plaintiff’s evidence as honest and generally reliable.  Mr Johnstone may not have told him, in absolute terms, that he was not to fell any trees that were suitable for pulpwood in that coupe.  However I am satisfied that Mr Johnstone did give the plaintiff a direction to the effect that he was not to fell pulp trees as he normally would; that the plaintiff rightly perceived Mr Johnstone’s direction as prohibiting him from felling the pulp tree from which a branch ultimately fell and hit him; that when Mr Johnstone visited the plaintiff at the coupe from time to time, he did so for the purpose of checking that his direction was being complied with; and that the plaintiff rightly perceived that Mr Johnston was supervising him with that purpose in mind.  The plaintiff’s evidence as to the circumstances in which he was and was not permitted to fell pulp trees is supported to some extent by the expected sawlog and pulpwood production figures in the timber harvesting plan –

That was the ratio I took the Court to.  The evidence was that was very high ratio of sawlog to pulpwood –

the specifications in that plan as quoted above that tend to emphasise the maximisation of sawlog production, and the fact that another contractor took over -

So, what exercise the primary judge went through, we submit, was this.  He held that it was open to him that, whilst he did not remember the precise words, “I am satisfied having seen him in the witness box that Johnstone told him words to the effect that, ‘You minimise pulpwood’, meaning, ‘You can take the trees, you can take out the pulp trees if you’re going to barrel them and hit them directly, but if you’re just going to brush them, you leave them’.”

Did you have any – ever have any discussions with him about pulp trees?........We would’ve had discussions, I’m absolutely certain, individual discussions that I can’t remember.  But we would’ve talked about the -

Then it is objected to and then at line 25:

I remember –

This is Johnstone in‑chief –

having discussions with Graham about, as I’ve said, tree selection.  And if there was a problem tree then he would - had his full rights ‑ ‑ ‑

GLEESON CJ:   By the way, the question that you criticised on page 287, line 5 comes directly from the particulars of negligence given on page 7, paragraph b, subparagraph (i).

MR RUSKIN:   Yes, indeed, your Honour, but by that time the appellant had given his version, and you will see this in the reasoning of the primary judge, that whilst he said you were not allowed to take out pulp trees, what he was really saying was you were not allowed to take out the pulp trees you were really meant to; you were very restricted to only those ones you would barrel.  What should have been put to Mr Johnstone, consistent with how the appellant was putting his case, was this.  “Mr Coote alleges that you told him he was restricted or fettered so he could only cut down the trees he was going to barrel.  What do you say to that?”  But he was never asked that.  It is in the language at 25 that you get this problem which the primary judge refers to, and I will take you to it:

I remember having discussions with Graham about, as I’ve said, tree selection.  And if there was a problem tree then he would – had his full rights –

If there was a problem.  Now, that was the width of the language used by Mr Johnstone which made the task difficult for the primary judge.  On the one hand he had a man, the appellant, saying 15 or more times, “I was restricted to trees that I was going to barrel, otherwise I couldn’t do it the way I wanted to”.  That is the appellant’s case.  Johnstone said, “If you had a problem tree you had your full rights”.  Well, what did that mean?  That was language that was far too vague.  It did not answer the question.  The nearest you got to that was at line 32 on 290 where he is asked a general question:

Was there any prohibition on him taking out a pulp tree?........No.

Well, that is very difficult to accept when you have a harvesting plan which said minimise pulp trees.  It is unsurprising that the trial judge would have found that a fairly unhelpful – then so far as cross‑examination was concerned, because Johnstone did not deal with the evidence of the appellant – he was only cross‑examined about his memory, in other words – at line 30 on 294:

So there’s no point in me putting to you particular words –

“because you can’t remember anything”.  Then there is a marvellous answer, which is this - which was never re‑examined on, but it said this, at 30:

So there’s no point in me putting to you particular words that may or may not have been said because you’ll simply say to me, “Well I can’t remember, they might have been said, they might not”?........I know what I wouldn’t have said, if that’s what you’re saying.

Now, whatever you say about that answer, it is unilluminating and it did not advance the respondent’s case to meet the fairly precise case now put by the appellant, “You restricted me in respect of the very tree that injured me”.  All you are saying is, “I know what I wouldn’t have said” and “You had your full rights with the problem tree”, but you did not, as the primary judge said, deal clearly with the evidence.  So may we now take you to how the primary judge distilled that evidence?  At 478:

It is common ground that the plaintiff’s injury could have been prevented by him felling the pulp tree before felling the two sawlogs that collided with it.  It is also common ground that the plaintiff had the right to fell any tree that he considered too much of a danger to leave standing, at least subject to any specific directions as to situations in which trees were not to be felled.

The plaintiff gave evidence that he spoke to Peter Johnstone . . . on the first morning . . . He said he spoke to Mr Johnstone about felling pulp trees, and that Mr Johnstone told him that another logging contractor was coming in to do that, and that only sawlogs were to be taken out.  The plaintiff said he saw Mr Johnstone in the bush at that couple on a number of occasions after that first day, and that every time Mr Johnstone would make sure that he was only taking sawlogs.  He explained that pulpwood trees were felled for the purpose of installing landings and snig tracks, and whenever they were likely to be directly hit and smashed to pieces by a falling tree.  He said that when a pulpwood tree was not going to get smashed to pieces,, but was perhaps going to have a limb or two knocked off, he would fell alongside it.  He said he would not remove pulp trees in that situation before felling sawlog trees near them because he was not allowed to take pulp trees.  He gave evidence to the effect that he had never before been so restricted as to the taking of pulp trees.  When asked to estimate what percentage of pulp trees were felled by him, he replied, “Probably about between 5 and maybe 10 per cent pulp trees, probably 5 per cent”.

Mr Johnstone said he did not think he went to the coupe on the day logging commenced there, but that he did go there within a few days of the operation commencing.  He said he discussed the timber harvesting plan with the plaintiff, and that he talked about tree selection with him on most occasions that he went there.  He said they would basically talk about the type of tree that they were looking at taking out.  He said that it was incorrect that he had directed the plaintiff not to fell any trees that were suitable for pulpwood in the coupe.  However he was asked very little about what he said to the plaintiff.  In particular, he was not asked to comment on the proposition that the plaintiff was, generally speaking, not allowed to take pulp trees, subject to exceptions when landings and snig tracks were being installed, and when a pulpwood tree was likely to be directly hit and smashed to pieces by a falling tree.

So that is the point that we were getting at, that Johnstone was not directed to the appellant’s case, but rather spoke in generalities.  Now, here is the way the primary judge with that advantage that he had, subject to – he being the trial judge and so forth, he then distilled the evidence and the witnesses, at 11:

Mr Johnstone gave his evidence in a credible manner.  The timber harvesting plan required the installation of landings and snig tracks in particular locations.  The nature of the forest in the coupe was such that pulp trees would have to be felled in order to install landings and snig tracks.  I infer that it was so obvious to those concerned with the harvesting operation, including Mr Johnstone and the plaintiff, that pulp trees would have to be felled where landings and snig tracks were to be installed, that that went without saying.

Now, here is the assessment:

Mr Johnstone and the plaintiff both seemed to me to be practical men, and men of reasonable intelligence.  I do not think there was any real chance of a misunderstanding between them as to how readily Mr Johnstone wanted the plaintiff to fell pulp trees.  There may have been some inaccuracy on the plaintiff’s part in recounting what Mr Johnstone said to him on that subject.  There may have been some inaccuracy on his part as to when the initial conversation occurred.  But with those reservations, I accept the plaintiff’s evidence as honest and generally reliable.  Mr Johnstone may not have told him, in absolute terms, that he was not to fell any trees that were suitable for pulpwood in that coupe.  However I am satisfied that Mr Johnstone did give the plaintiff a direction to the effect that he was not to fell pulp trees as he normally would; that the plaintiff rightly perceived Mr Johnstone’s direction as prohibiting him from felling the pulp tree from which a branch ultimately fell and hit him; that when Mr Johnstone visited the plaintiff at the coupe from time to time, he did so for the purpose of checking that his direction was being complied with; and that the plaintiff rightly perceived that Mr Johnston was supervising him with that purpose in mind.  The plaintiff’s evidence as to the circumstances in which he was and was not permitted to fell pulp trees is supported to some extent by the expected sawlog and pulpwood production figures in the timber harvesting plan –

That was the ratio I took the Court to.  The evidence was that was very high ratio of sawlog to pulpwood –

the specifications in that plan as quoted above that tend to emphasise the maximisation of sawlog production, and the fact that another contractor took over -

So, what exercise the primary judge went through, we submit, was this.  He held that it was open to him that, whilst he did not remember the precise words, “I am satisfied having seen him in the witness box that Johnstone told him words to the effect that, ‘You minimise pulpwood’, meaning, ‘You can take the trees, you can take out the pulp trees if you’re going to barrel them and hit them directly, but if you’re just going to brush them, you leave them’.”

Secondly, consistent with that understanding, Johnstone came along and asked questions.  He said, “What’s that there for?”  There is a very important answer at 127 when he said to him, “I felled that because I was going to hit it directly.”  That was consistent with Johnstone acknowledging, acquiescing in, whatever term you would want to say - it was I think at 128.  This is the inspection.  I will just get that for the Court because it is important.  It is either 128 or 129 – sorry about this, I have a note of this ‑ ‑ ‑

GLEESON CJ:   Your case, as I understand it, came down to the proposition that, notwithstanding the particulars on page 7 which alleged a general instruction not to fell any tree suitable for pulp wood, and notwithstanding the different particulars of negligence given on page 8, the case was that Johnstone, being in a position to direct the plaintiff as to the manner of operation, directed him to operate in a risky fashion by being more inhibited about felling pulp trees than he normally would have and more inhibited than would have been consistent with a safe operation.  That was the case?

MR RUSKIN:   Yes, that was the case together with the evidence that came from the appellant and this, of course, went to causation, “Had I been not so inhibited that was the tree I would have – I would have taken that tree out”.  So there was a cause and effect.  In other words, I did not take out that pulp tree that ended up hitting the other tree knocking a branch off because of the way you instructed me.  That was how it was put.  The trial judge, the learned primary judge, looked at those particulars and saw where they fitted into the particulars, and that appears at page 484 of the judgment.  Just before I get to that, I did say that the evidence of the inspection by Johnstone was consistent with that and acquiescent in that understanding and that comes at 76 of the transcript at line 27.  He says this, Johnstone came along:

And what was the question?.......Oh about why I’d fell it or something.

What did you tell him?........I said something about it was directly in the way of a saw tree so I had to fall it.

Now, what the trial judge said ‑ ‑ ‑

GLEESON CJ:   Well, the key finding is on page 485, line 31, is it not?

MR RUSKIN:   Yes, indeed, that the third defendant was negligent in failing to provide instruction to first fall those trees.  Insofar as the allegation of lack of supervision relates to that, I think the allegation also has merit.  There is merit that it alleges the plaintiff should not have been allowed to continue until he was instructed to fall those trees that posed a potential danger.  At the heart of paragraph 11 of the primary judge’s reasoning was the systemic nature of what the appellant was doing, because those were very critical findings in the primary judge, that he was a sensible, experienced man, why would he day in, day out for weeks be felling trees so that they knocked branches off unless there was a reason? 

In other words, it was consistent with the understanding and the discussion between Johnstone and the plaintiff.  In other words, it would have been a different case and a harder case for the appellant if he did this only on Wednesday afternoon at 1 o’clock.  Then he would have had to say – he would have had to explain, but you never did this before.  You never left these trees that you broke limbs off before, why did you do it on Wednesday?  No, no, he did it everyday, day in, day out to the knowledge of Johnstone because ‑ ‑ ‑

GLEESON CJ:   I thought you mentioned earlier there is a report in evidence somewhere that says that?

MR RUSKIN:   Yes, there is.  Yes, certainly.  That is at 425.  I should say, your Honour, that that is not a report that Johnstone made and I will just explain how that works.  The accident was on 14 September 1998.  This was a report made for Padgett, the person who had the independent contracting relationship with the appellant.  It is at page 425 that you can see that somebody has come along and said:

Damage extensive due to falling prescription.  Some trees potentially dangerous.

In other words, it is, as it were, completely independent evidence that the appellant was doing this day in, day out.  I took the Court to the passage at 77 from which the trial judge was able to infer that Johnstone must have known this because he was there very often.  At the top of 77 comes these words:

And was it clear or not clear, on an inspection walking round that coupe that there had been the damage that you speak of – saw trees brushing, pulp trees?.....Yep.

Can you just explain that?  What was it that was clear?....Oh, well, if you could look up, you could see where limbs were missing out of pulp trees that I’d brushed – you only had to spend time walking around having a look.

Well, that is what Johnstone was there for.  So you had pursuant to the direction, the appellant doing this day in, day out from which it was open to the primary judge to infer that Johnstone knew he was doing it.  He observed it if he was looking.  I read to the Court that passage where, when the plaintiff is asked to explain why the pulp wood is there, the appellant says, “Because I was going to directly hit it”.  So all that evidence together with one other aspect which was, as I think I have just said, the notion that because it was systemic and because the trial judge had the benefit of observing both men in the witness box and so forth, it is obvious the primary judge asked himself the question, why would the appellant, as it were, self‑impose a fetter on his ability to remove the trees he wanted to remove unless he had been told to do so?

It just did not make any sense, unless he was, for example, a liar, which he was not; stupid, which he was not because he was sensible; an anarchist, that is, he did not listen to instructions, no; not capable of understanding what people said, no, because the judge had seen him in the witness box answering the same question 15 times or more with different breaks, as we have discussed, and you then have that completely consistent with a harvesting plan that had said minimise pulp wood.  So in those circumstances, this is what it was open for the learned primary judge to find and we say he did find it. 

I will just take you to what was open to the primary judge to find.  Johnstone exercised the power under the Act by which he discussed and directed and supervised and checked the appellant that he was minimising the pulp logs as directed by Johnstone and that it was consistent with the plan to, that consequent upon the discussion Johnstone indeed restricted the appellant from falling the logs as he normally would.  That was the finding of the primary judge and this was, on the appellant’s evidence, the very sort of tree he would normally fell.

HEYDON J:   Just on that – forgive me for this triviality - what is the correct way of speaking?  Do you fell these trees or fall these trees?

MR RUSKIN:   It appears that you do a bit of both.

HEYDON J:   But is there a difference or just two words are used to mean the same thing?

KIRBY J:   We would not want to use the wrong word.

MR RUSKIN:   No.  The answer to that, your Honour, is ‑ ‑ ‑

HEYDON J:   The plaintiff used the words indifferently.

MR RUSKIN:   Yes.  In the context of the case neither the appellant or Johnstone were wordsmiths.  I do not know that anything turned on whether they said, “fall” or “fell”.  The crucial difference was between the brushing – knocking the branches off – and barrelling or hitting directly and splitting.

GLEESON CJ:   I may be wrong, but I thought there was a transitive verb, “to fell”, and you speak of a tree‑felling operation.

KIRBY J:   And the past participle is “felled”.

MR RUSKIN:   Yes.

KIRBY J:   But you still have to overcome, do you not, the fact that there was reserved to your client as “an independent contractor” the complete independent right to make the final decision on felling any particular tree?

MR RUSKIN:   The answer to that is that the harvesting plan - I took the Court to the notion that if you did not obey the harvesting plan and the direction of the forestry officer – you respected the harvesting plan – you are guilty of an offence.  So that this was not an ordinary independent contractor situation like “I get a plumber to do something”.  This was a situation where the harvesting - the Forestry Practices Act made it an offence to not act in compliance with the harvesting plan and the direction of the forestry officer, and the forestry officer was Johnstone and he was giving directions to conform with the harvesting plan, namely, to minimise pulp wood, and if the appellant disobeyed Johnstone, because he said, “Well, I am an independent contractor, I will do what I like”, then he is not obeying the forestry officer who was in charge of the harvesting plan.

KIRBY J:   As I understand it, every tree has some pulp in it?

MR RUSKIN:   Yes.

KIRBY J:   And therefore it brings forth in every case a matter of judgment which is really ultimately assigned to your client?

MR RUSKIN:   Yes, that is so, your Honour, but when you – as they said in the transcript - he said, “I’m very experienced.  I can tell what a pulp tree was.  This was clearly a pulp tree.”  Sometimes when you felled it and you look at the stump you might think it is a saw log and you might be wrong, but in this case the decision that he had to make was – or the discretion that he had had been fettered by Johnstone.  That was the finding of the primary judge, and indeed, it seems – and I will take the Court now to what the Full Court said – it seemed it was the same finding by the Full Court, namely, by reason of the actions of Johnstone, the man in charge of the harvesting plan, he was not permitted to fell the pulp trees in the way he normally would.

So here was the simple formula, “I find Johnstone restricted you in felling the trees as you normally would – step one.  Step two - this pulp tree was one you would normally fell but you did not because of the restriction; three, thus the imposition of the fetter in the implementation of the plan and the system put upon you by Johnstone foreseeably gave rise to injury”.  In other words, the statutory power was exercised by the respondent, the statutory power to implement the plan was actually exercised by Johnstone giving directions what to do about the plan, and in that sense, there was a breach of the duty because you told him to do it in a way that foreseeably was going to give rise to injury, because everybody knew that if you fetter someone’s capacity to remove potentially dangerous trees such as this one, it can lead to danger.

The appellant knew that, but he had no choice.  That came from his cross‑examination as well, so that is the answer to, we would submit, your Honour’s question, Justice Kirby, that the big difference in this case was the requirement to conform to the direction of the person in charge of the harvesting plan.

KIRBY J:   So you say before he got to his independent exercise of his own reserved power, he had to get through and conform with the harvesting plan which fettered what he otherwise would safely have done for himself?

MR RUSKIN:   That is precisely the way we would ‑ ‑ ‑

KIRBY J:   It is a matter of reconciling those two provisions in the harvesting plan, really, and reconciling with the findings by the primary judge?

MR RUSKIN:   Yes.  Really, what the primary judge correctly found was that it was the exercise of that power by Johnstone, pursuant to the harvesting plan that effectively restricted the otherwise independent exercise of the discretion by the independent contractor.  The Full Court did not cavil with that.  The Full Court talked about a merging of two concepts which was the common ground being that he could only take out a tree that was too dangerous, namely, the barrelling one, and then you have this finding at 56 that it “was common ground”, says the learned judge, “as I have said, perhaps repetitiously”, that he could take out any potentially dangerous tree.

That was never common ground, and that was the error that led them to conclude – because, of course, if it had been common ground, if the appellant had said, “I agree, I had the right to take out any potentially dangerous tree” he would have lost, of course, because he knew it was potentially dangerous and why would he not take it out if he knew that.  Well, he would not take it out because of the fetter on his discretion.

GLEESON CJ:   Is that a convenient time?

MR RUSKIN:   It is convenient, your Honour.

GLEESON CJ:   We will adjourn until 10.15 am tomorrow.

AT 4.23 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 23 MARCH 2006