Creary v Essential Energy; Tathra Beach Motor Village Pty Ltd v Essential Energy; Harris v Essential Energy; Rowland v Essential Energy

[2024] NSWSC 37

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Creary v Essential Energy; Tathra Beach Motor Village Pty Ltd v Essential Energy; Harris v Essential Energy; Rowland v Essential Energy [2024] NSWSC 37

Hearing dates:

17 January 2024

Date of orders:

17 January 2024

Decision date:

17 January 2024

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1)   Order that the words under the heading "Particulars" contained in the 5FASOC between paragraphs 28(a) and paragraph 28(b) be struck out.

(2)   Order the plaintiff pay the costs of the third defendant's notice of motion.

(3)   Order that the first and second defendants pay their own costs of the proceedings today.

Catchwords:

CIVIL PROCEDURE – Pleadings – Form and content of pleading – Whether amendment to pleadings causes prejudice – Construction of certain particulars – Whether the particulars should be struck out.

Legislation Cited:

Not Applicable

Cases Cited:

Not Applicable

Texts Cited:

Not Applicable

Category:

Procedural rulings

Parties:

Alexis Creary (P)
Tathra Beach Motor Village Pty Ltd (P)
Janet Harris (P)
Phillip Rowland (P)
Essential Energy (D1)
Asplundh Tree Expert (Australia) Pty Ltd (D2)
Pinnacle Arborpro Pty Ltd (D3)

Representation:

Counsel:
T Smyth (P)
H Pintos-Lopez (D1)
T Hackett (D2)
A Gandar (D3)

Solicitors:
Hall and Wilcox (P)
Sparke Helmore (D1)
BN Law (D2)
Landers (D3)

File Number(s):

2020/111438; 2020/11695; 2020/112403; 2020/142398

Publication restriction:

Not Applicable

EX TEMPORE JUDGMENT

1. This is an application by the third defendant (“Pinnacle”) to strike out an amendment contained in the 5th Further Amended Statement of Claim (“the 5FASOC”) filed on 14 December 2023 pursuant to leave granted by this Court at an earlier time.

2. The amendment subject of controversy is to be found in the Particulars set out below and relating to paragraph 28(a) of that pleading.

Background

3. I note, by way of context, that these proceedings make a very significant claim for damages arising out of a bush fire which burnt through the Tathra township and surrounding areas in March 2018. The proceedings centre upon whether a tree identified as, and referred to as, "Tree 4" which fell across transmission lines, usually referred to by the parties as conductors, ought to have been detected at a time earlier than March 2018 as being a dead tree carrying with it the risk of falling across the conductors.

4. As it is said to have been the cause of the bushfire, it is claimed that Tree 4 ought to have been managed by one or other of the defendants so as to cut it down or else trim it in such a way that, if it fell, it would not come into contact with the conductors.

5. As well, there are other allegations of negligence regarding the way in which the electricity transmission system operated. These other allegations are not relevant for the purposes of the challenged amendment.

The Challenged Pleading

6. In paragraph 28 of the 5FASOC, the following is pleaded:

“28. At some or all of the times referred to in the preceding paragraph, Tree 4:

(a) was visible from a position at Pole C and for approximately half the span up to Pole D;

(b) was dead or substantially dead;

(c) was visibly defective as a dead or substantially dead tree...;

(d) was visibly likely to be structurally unstable and at risk of falling towards the power line ...;

(e) ought reasonably to have been detected as a hazard tree by:

…

(i) an inspector exercising due skill and care to undertake a vegetation inspection of, or

(ii) crews undertaking clearance work on the Reedy Swamp line in the vicinity of Pole C.”

7. The contentious particulars, which are sought to be struck out are those below paragraph 28(a) and are as follows:

“Particulars

At trial the plaintiffs will refer, inter alia, to the attendances in the vicinity of the Tree 4 on or about 11 December 2016 and on or about 24 February 2017 dealt with in the reply report of Mr Norman dated 16 November 2023 (‘the Norman Reply Report’) at paragraphs 45 to 50 and 56 to 57, together with the source material referenced in those passages.”

8. Objection to the addition of those particulars is taken by Pinnacle, which employed a Scoper on 11 December 2016 to undertake an inspection of the relevant conductors, which inspection is said to have been negligent. In short, Pinnacle submits that the pleading is, plainly, that Tree 4 was visible from a position, as it says, “… at Pole C and for approximately half the span up to Pole D” which can only mean a position along the axis of the span, and not in any other direction.

9. The particulars refer to the content of the Norman Reply Report at paragraph 50 which reads as follows:

"During the scoping assessment on 11 December 2016 the Scoper walked over to place a paint mark on a tree situated two trees uphill from Tree 4's position and would have passed this 'window' of viewing whilst so doing. I explained this below and also that there was the opportunity to identify Tree 4 by work crews that attended to undertake the pruning works on 24 February 2017."

10. The basis for this statement of fact has been identified in oral submissions as being the existence of a mark on a tree which Mr Norman identifies as a paint mark, and then infers from industry practice that it was placed in position by the Scoper, employed by Pinnacle who carried out an assessment on 11 December 2016.

11. Further, so it seems, Mr Norman infers from the records produced by the third and second defendants which identify Mr Jonas as the Scoper undertaking duties for Pinnacle on 11 December 2016 that: first, the mark on the tree was placed by a Scoper in the course of their ordinary duties; secondly, that the mark was placed there during an assessment on 11 December 2016; thirdly, that the Scoper in question in fact identified the tree upon which the mark was placed during their assessment from a position at Pole C or a position along the easement track, and then, having walked over to the marked tree, could see from that position the state and condition of Tree 4 which was nearby to the marked tree.

Submissions of Pinnacle

12. Pinnacle submits that it is prejudiced by such a late amendment because as a consequence of a stroke suffered relatively recently, Mr Jonas is unable now to give evidence in response to paragraph 50 of the Norman Reply Report which is to be relied upon as the basis for the particulars which are in dispute. As well, Pinnacle submits that the particulars do not relate to the pleading because the particulars refer to visibility of Tree 4 from a position at the marked tree which was in the forested area where both Tree 4 and the marked tree were located, and not from a position at Pole C or, as pleaded, for approximately half the span up to Pole D. As a consequence of that prejudice and the disconnect between the particulars, and paragraph 28(a), Pinnacle submits that the amendment by way of the addition of the particulars ought to be struck out.

Submissions of the Plaintiffs

13. Counsel for the plaintiffs contends that the construction placed on paragraph 28(a) by Pinnacle does not accurately reflect the width of the words used, as properly understood, in paragraph 28(a) relating to the visibility of Tree 4. Counsel for the plaintiffs contends that the content of paragraph 28 ought to be read in a much more expansive way, namely, that Tree 4 was visible from the position identified and pleaded, which in fact describes an area generally in the vicinity of the conductors from Pole C to Pole D and including those poles, which would be understood to be an area broader than just the easement itself or the vehicular track in the easement, but would include an area where a Scoper, exercising due skill and care, would walk for the purpose of the inspection, which may include walking into the forest adjacent to the easement boundary.

14. In that way, counsel for the plaintiffs says that the particulars of visibility from the area of the marked tree fall within paragraph 28(a) and it is proper to provide those particulars in the 5FASOC. The context for that interpretation of the pleading is, as counsel for the plaintiffs submits, the contents of paragraph 28(e) of the pleading which pleads that Tree 4 ought reasonably to have been detected as a hazard tree by a Scoper exercising due skill and care, or else working crews undertaking vegetation clearance work.

15. Counsel for the plaintiffs also points to the generality of the phrase in paragraph 28(a) "a position". Counsel submits that the use of that phrase does not mean standing adjacent to Pole C and proceeding along the easement track between Poles C and D. As well, counsel for the plaintiffs submits that regardless of the content of the pleading, the paragraphs of the Norman Reply Report would be admissible anyway as provable and relevant facts in the proceedings, including in support of the allegation in paragraph 28(e). In that respect, counsel submits that the Court would not find that the prejudice contended for by Pinnacle is to the extent contended for, because he submits that having regard to what is in paragraph 28(e), solicitors acting reasonably, having the opportunity to interview Mr Jonas at a time before his disability had arisen, would have asked questions directed to the same issues which they would now need to explore if Mr Jonas was available.

Discernment

16. I note that I am giving this ex tempore judgment in the course of the Duty List, as Vacation Judge, and I am somewhat constrained by time and the need for the parties to have this issue determined as quickly as possible. I have not referred in this judgment to all of the facts by way of context with respect to each of these particular allegations that have fallen to be determined. However, I think I have referred sufficiently to the context to enable an understanding of this judgment.

17. I am of the view that the particulars which are in issue have no place in the 5FASOC referring to paragraph 28(a).

18. It is plain to the objective reader of paragraph 28(a) of the 5FASOC that the plaintiffs’ case is that, as a matter of fact, Tree 4 was visible from a position at, i.e., in close proximity to, Pole C and from one or more positions located along the transmission line between Poles C and D, but from beneath or in the close vicinity of the transmission line.

19. Paragraph 28 does not plead, nor can it be understood to have pleaded, that Tree 4 was visible from a point in the forest, including a point at, or in the vicinity of, the tree which has been marked and which is referred to in the paragraphs of the Norman Reply Report specified in the particulars.

20. I have come to that conclusion from a reading of the text in the 5FASOC. It is simply not possible to read that pleading in the expansive way contended for by counsel for the plaintiffs. To the extent that I interpret the pleading in this way, I simply note that it seems to be consistent with the contents of Mr Norman's first report, including the terms of the questions which were posed for his consideration by the solicitors for the plaintiffs.

21. Accordingly, I will order that the particulars presently included in the 5FASOC below paragraph 28(a) and before paragraph 28(b) be struck out.

Observation

22. I wish to note that this ruling does not purport to be a ruling on whether or not the contents of the paragraphs set out in the particulars which I have disallowed which came from the Norman Reply Report are, or are not, admissible, in the proceedings nor is it a ruling as to whether or not evidence of the kind to which Mr Norman refers may or may not be admissible in support of paragraphs other than paragraph 28(a) of the 5FASOC. Rulings on evidence will be a matter for the trial Judge.

23. This judgment is limited to a ruling on whether or not an identified part of the 5FASOC ought to remain in the pleading.

24. In my view, as I have said and for the reasons I have given, it ought not.

Orders

25. I make the following orders:

1. Order that the words under the heading "Particulars" contained in the 5FASOC between paragraphs 28(a) and paragraph 28(b) be struck out.

2. Order the plaintiff pay the costs of the third defendant's notice of motion.

3. Order that the first and second defendants pay their own costs of the proceedings today.

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Amendments

06 February 2024 - Formatting on coverpage.

Decision last updated: 06 February 2024