Creary v Essential Energy;; Tathra Beach Motor Village Pty Ltd v Essential Energy;; Harris v Essential Energy;; Rowland v Essential Energy (No.2)

Case •

[2024] NSWSC 56

•

09 February 2024

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Creary v Essential Energy;; Tathra Beach Motor Village Pty Ltd v Essential Energy;; Harris v Essential Energy;; Rowland v Essential Energy (No.2) [2024] NSWSC 56
Hearing dates: 02 February 2024
Date of orders: 02 February 2024
Decision date: 09 February 2024
Jurisdiction:Common Law
Before: Garling J
Decision:

1.   Grant leave to the plaintiff to amend the 5th FASOC so as to add proposed paragraph 28(a)(i) subject to the addition of the words ‘within the Operator’s Easement’ after the words ‘(… irrelevant occlusions visible)’ and before the word ‘from’.

2.   Decline to grant leave to the plaintiff to amend the 5th FASOC by insertion of the material in proposed paragraph 28(a)(ii).

3.   Otherwise dismiss the Notice of Motion filed 31 January 2024.

4.   Order the plaintiffs to pay the costs of the defendants of and occasioned by the amendment.

5.   Note that this order is intended to include the costs of the Notice of Motion filed 31 January 2024.

Catchwords:

CIVIL PROCEDURE – Pleadings – Form and content of pleading – Proposed amendment to pleading – Whether amendment to pleading causes prejudice – Where an amendment to pleading is proposed close to the final hearing.

Legislation Cited:

Not Applicable

Cases Cited:

[2024] NSWSC 37

Texts Cited:

Vegetation Management: Common Requirements (Ausgrid Endeavour Energy and Essential Energy)

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

JUDGMENT

The Proceedings

  1. The plaintiffs in these proceedings claim damages arising out of a bushfire which occurred in the afternoon of 18 March 2018, and which commenced in the area of the span of the Reedy Swamp Transmission Line (“the Reedy Swamp Line”) between Poles C and D, and then burned in a generally easterly direction towards, and through, the township of Tathra. Significant damage was caused by that bushfire to the properties in Tathra.

  2. In April 2020, five sets of proceedings were commenced by multiple plaintiffs claiming damages for the consequences of the Reedy Swamp bushfire (“the Bushfire”).

  3. The Court has proceeded by managing the five separate cases together as they were brought, in all respects, in identical terms.

  4. In the course of the management of the proceedings, a Coronial Inquest was undertaken, during which Inquest considerable evidence was given which was relevant to these proceedings. Most of the parties to these proceedings were represented, or else were present, at the Coronial proceedings.

A Previous Pleading Issue

  1. On 14 December 2023, pursuant to leave granted by me at an earlier time, the plaintiffs filed their 5th Further Amended Statement of Claim (“the 5FASOC”). The 5FASOC included in it particulars appended to paragraph 28(a) which pleaded that the tree responsible for the commencement of the bushfire, namely “Tree 4”, which fell across the Reedy Swamp Line, was visible from a specified position along that Line.

  2. Pinnacle Arborpro Pty Ltd (“Pinnacle”), the third defendant, objected to the particulars and moved to strike out that part of the 5FASOC.

  3. Pinnacle’s Notice of Motion was heard on 17 January 2024, and on that day, for the reasons which I gave orally, that Motion was dismissed. Those reasons have been reduced to writing and can be found at [2024] NSWSC 37.

  4. The essence of my conclusion is to be found in [18]-[19] of that judgment. It is convenient if I repeat those paragraphs here:

“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.”

  1. The context of the Notice of Motion, which requires an urgent hearing, is that the proceedings are fixed for hearing on 19 February 2024, for an estimated period of four weeks.

Notice of Motion

  1. On 31 January 2024, the plaintiffs filed a Notice of Motion which sought the following orders:

“1. An order made pursuant to r 19.1(1) of the Uniform Civil Procedure Rules 2005 (‘the UCPR’) granting the plaintiffs leave to file and serve a Sixth Further Amended Statement of Claim (‘6th FASC’) substantially in the form annexed in draft to the affidavit of their solicitor, Matthew Peter McDonald, made on 31 January 2024, by 4.00pm on the day after the motion hearing.”

  1. Consequential orders were sought, including that the costs of the Motion be reserved.

  2. In support of that Motion, Mr McDonald swore an affidavit dated 31 January 2024, to which was annexed, amongst other things, the proposed pleading.

  3. As I have been responsible for the judicial management of these proceedings since their inception, I was notified of the Notice of Motion being filed.

  4. I fixed the matter for directions on 2 February 2024, before me. The parties indicated that they were in a position to put full submissions in support of the Motion and to proceed with it on that day. Accordingly, I heard it.

  5. At the conclusion of argument late on the day, I was told that a determination about the pleading was necessary to enable a conclave of experts in the field of vegetation management to properly consider all of the issues in the proceedings, in their expert reports, and to produce a joint report for the Court. I was informed that expert management conclave had been scheduled to take place on Tuesday 6 February 2024.

  6. In those circumstances, I indicated that I would make the orders for the determination of the Motion and deliver reasons in due course.

  7. Accordingly, on 2 February 2024, with respect to the Notice of Motion, I made the following orders:

“1.   Grant leave to the plaintiff to amend the 5th Further Amended Statement of Claim so as to add paragraph 28(a)(i) subject to the addition of the words ‘within the Operators Easement’ after the words ‘irrelevant occlusions visible’ and before the word ‘from’.

2.   Decline to grant leave to the plaintiff to amend the 5th Further Amended Statement of Claim so as to add paragraph 28(a)(ii).

3.   Otherwise dismiss the Notice of Motion filed 31 January 2024.

4.   Order the plaintiff to pay the defendant’s costs of and occasioned by the amendment.

5.   Note that this order is intended to include the costs of the Notice of Motion filed 31 January 2024.”

  1. I also gave procedural directions to give effect to these orders.

  2. These are the reasons for the orders which I pronounced on 2 February 2024.

Proposed Amendment

  1. The proposed amendment dealt with the subject matter of the negligent inspection of the Reedy Swamp Line in the general vicinity of one of the poles, identified as Pole C.

  2. Paragraph 27 of the 5FASOC pleaded that on 13 separate identified occasions, between 26 May 2014 and 16 December 2017, Essential Energy, by its officers, servants, agents or contractors, had attended the Reedy Swamp Line generally in the area of Pole C for the purpose of inspecting or maintaining vegetation clearances.

  3. These inspections occurred in the context of the existence of a Vegetation Management Plan created by Essential Energy, and upon the terms of which the plaintiffs rely.

  4. The pleading of paragraph 28(a) in the 5FASOC was as follows:

“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;

…”

  1. The proposed pleading, in respect of which leave was sought, would, with the amendments, read as follows:

“(a)   was visible (or apart from irrelevant occlusions visible) from: a position at Pole C and for approximately half the span up to Pole D;

(i)   any position at which a person might stand or pass (on foot or in a vehicle) within the triangular area approximated by straight lines drawn from Tree 4 to the far side of the Operator’s Easement and passing through:

(A)   Pole C; and

(B)   the midpoint of the span between Poles C and D –

the bounded area being the Visibility Triangle;

(ii)   any position at which a person might stand or pass while approaching the ‘Dot Tree’ described in paragraphs 47, 50 and 55 of Mr Norman’s Reply Report of 16 November 2023, along an approximately perpendicular line from near the edge of the Operator’s Easement, or along an angle of approach north of that line (the Dot Tree Window);

Particulars

The only occlusions to visibility of Tree 4 from positions within the Visibility Triangle and/or the Dot Tree Window comprised occasional shrubs, saplings or other tree trunks, each of which ceased to be ‘in the way’ if the person moved a few steps within the said Triangle or Window.” (sic)

  1. It can be seen that the amendments sought fall into two discrete sub‑paragraphs. The first is a Visibility Triangle amendment, and the second can conveniently be described as the “Dot Tree Window”. It will be necessary to consider these amendments separately.

Geographical Features

  1. In the material before the Court, there were a number of photos of the area relevant to these amendments. Some description, in general terms, assists in understanding the issues.

  2. The Reedy Swamp Line in the relevant area runs in a generally north/south direction and is contained within a registered easement which is 20m wide i.e., 10m on either side of the transmission lines.

  3. When the Reedy Swamp Line was constructed, an area was cleared to enable the transmission line to be positioned without contact with any vegetation. Accordingly, the area of the registered easement was completely cleared. I am also told, and accept, that the cleared area may have extended a short distance, in the vicinity of 0.5m or so, into the forested area on either side of the registered easement. This larger area can conveniently be referred to as the “clearance corridor”.

  4. The area through which the Reedy Swamp Line was constructed was a forested or timbered area, and the clearance corridor is bounded on its east and west sides by the forested area.

  5. Tree 4 and the Dot Tree were located to the east of the Reedy Swamp Line, and the clearance corridor in the forested area.

  6. An access track which was used for the construction of the transmission line remained and was thereafter used for the purpose of maintenance. It generally followed the axis of the Reedy Swamp Line although, depending upon the topography, the track could travel directly under the transmission lines or to one side or the other. At all times, the track was within the registered easement.

  7. Tree 4 was approximately 22m in height prior to the fire. Although there is no precise measurement available to the Court on this Motion, various of the photographs which were tendered as part of expert reports suggest that the base of Tree 4 would have been some metres into the forested area – perhaps eight to ten metres east of the boundary of the clearance corridor.

  8. The tree referred to as the Dot Tree was to the northwest of Tree 4, about ten metres from it, and closer to the edge of the forest adjoining the eastern boundary of the clearance corridor.

Proposed Visibility Triangle Amendment

  1. The plaintiffs submit by reference to the affidavit of Mr McDonald, that this amendment which identifies an area generally within the clearance corridor, commencing at the western boundary of that corridor and including the whole of the registered easement and clearance corridor, and then bounded to the south by a line through Pole C and to the north by a line through a point mid‑way between Poles C and D, was an area from which Tree 4 was visible.

  2. Having regard to the interpretation which I gave to the pleading in my earlier judgment, Mr McDonald’s affidavit identified this broader area as being an area which would have been traversed, according to experts retained by the plaintiffs, by a Tree Inspector exercising reasonable care, skill and diligence.

  3. The point, briefly, made by the plaintiffs is that although a reasonable Inspector might have driven along the access track, if they had been acting in accordance with proper practice, they would have alighted from their vehicle and walked through the parts of the Visibility Triangle and, accordingly, it was appropriate for the plaintiffs to amend the pleading with respect to the visibility of Tree 4.

  4. The plaintiffs do not intend to lead any evidence from any witness who had, in fact, traversed the easement, and the Visibility Triangle, prior to the commencement of the bushfire, and who would give evidence that from a specific point within the Visibility Triangle, Tree 4 was in fact visible. Rather, the plaintiffs’ case consists of expert opinion relating to the nature of the forested areas generally, the height of Tree 4, the interruptions to visibility caused by under‑storey and generally what can be derived from photographs taken of the area after the fire and aerial photographs of the area which were taken at the time, and perhaps earlier.

  5. The first defendant, Essential Energy (“Essential”), opposed the amendment submitting that what the proposed amendment meant, in light of the proximity of the hearing date, was that the defendants would need to engage in further enquiries about the visibility of Tree 4 to provide evidence as to what it may have looked like from other areas within the Visibility Triangle than the existing pleading which relied upon visibility along the axis from Pole C towards Pole D.

  6. As well, Essential submitted that the proposed amendment was inconsistent with other paragraphs in the 5FASOC, including reliance on the provisions of the Vegetation Management: Common Requirements (Ausgrid Endeavour Energy and Essential Energy) document dated October 2014 and the provisions of paragraph 28(e) of the existing 5FASOC which pleads that Tree 4 ought to have been detected as a hazard by either an Inspector or crews undertaking clearance work on “… the Reedy Swamp Line in the vicinity of Pole C” (emphasis added).

  7. It was submitted that the area now being sought to be relied upon as the Visibility Triangle went beyond those matters and created prejudice to the defendants.

  8. The defendants pointed to the late filing of the application for the adjournment, and the likely impact such an amendment would have on their preparation for hearing.

  9. None of the defendants pointed to any specific prejudice with respect to this Visibility Triangle amendment. Like the plaintiffs, they too were addressing the visibility of Tree 4 from the existing pleaded area by reference to expert evidence and post‑fire photographs rather than any pre‑fire evidence of an individual witness giving an account of visibility of the tree (or lack thereof).

  10. I was not persuaded that the defendants would suffer any prejudice if this Visibility Triangle amendment was granted. The experts already retained, who had visited the scene and expressed views about the visibility of Tree 4 from the track along the transmission line, or from the points already pleaded, are in a position, without significant further research, to comment upon whether there are any other areas within the Visibility Triangle from which Tree 4 would be visible.

  11. As well, I concluded that it was open to the plaintiffs as part of their pleaded case without the amendment, to lead evidence about the visibility of Tree 4 from the Visibility Triangle, in order to substantiate their case that a Tree Inspector, acting according to appropriate standards, would have seen the tree.

  12. In those circumstances, I formed the view that the subject matter was likely to be touched upon in the course of the evidence anyway, and the true effect of this amendment was to align the pleading with the range of evidence which might be put before the Court.

  13. Insofar as it was asserted that there was inconsistency in the pleading, I was not persuaded that this was so.

  14. Accordingly, for these reasons, I granted leave to the plaintiffs to amend the 5FASOC with respect to the Visibility Triangle amendment.

  15. However, it appeared to me that the proposed amendment was expressed in a way which may include as part of the Visibility Triangle, an area, at the apex of that triangle, which was within the forested area to the east of the clearance corridor. I was informed by senior counsel for the plaintiffs that it was no part of the plaintiffs’ that a Tree Inspector, acting reasonably, would have entered the forested area when undertaking a general inspection to identify hazard trees, such as Tree 4.

  16. Accordingly, I determined that, in order to avoid any ambiguity on this issue, the permitted Visibility Triangle amendment ought to include the words “within the Operator’s Easement”. My orders reflected this.

  17. As a consequence, the area defined will no longer be triangular in shape, but will be trapezoidal.

Second Proposed Amendment –Dot Tree Window

  1. The plaintiffs sought this amendment upon the basis of the contents of paragraphs 47 to 50 of the report in reply of the plaintiffs’ expert, Mr Andrew Norman, dated 29 November 2023 (“the Reply Report”).

  2. They submitted that Mr Norman’s opinion had only become available when that Reply Report was provided to them in early December 2023.

  3. Mr Norman, in the Reply Report, referred to a video recording made by him very shortly after the bushfire occurred on 28 March 2018, and which was subsequently played publicly during the Coronial Inquest. With respect to that video recording, at paragraph 47 of the Reply Report, Mr Norman said this:

“My video recording … shows that a tree adjacent to Tree 4 location was marked for pruning and subsequently pruned … .”

  1. Based upon that observation, the Reply Report went on to say at paragraph 50 this:

“During the scoping assessment on 11 December 2016, the Scoper walked over to place a paint mark on a tree situated just 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 the work crews that attended to undertake the pruning works[on the Dot Tree] on 24 February 2017.”

  1. Based upon this opinion, the Dot Tree amendment seeks to plead that as well as being visible from within the area of the Visibility Triangle, Tree 4 was also visible by a person approaching it, from any position including along a line into the forested area beyond the eastern edge of the registered easement or the clearance corridor.

  2. This amendment included, for the first time, an allegation of visibility of Tree 4 from within the forested area to the east of the registered easement, and clearance corridor.

  3. The defendants opposed this amendment. The third defendant (Pinnacle) drew attention to the fact that its employee, who undertook the inspection in December 2016, who was directly referred to in paragraph 50 of the Reply Report (although not by name), and who had given evidence at the Coronial Inquest, had not ever been asked about whether he had placed the marking on the Dot Tree; whether, if he had done so, it was a marking designed to indicate that the Dot Tree needed attention by way of trimming by vegetation crews; nor had he been asked about what he could see of Tree 4 as he walked towards that tree to place the dot on it; and had not ever been confronted with this “theory of visibility”.

  1. The evidence on the Motion proved that, as a consequence of a medical episode suffered by the identified employee, in September 2022, he was not able to give any further information about his conduct in December 2016 whilst working as a Tree Inspector (often referred to as a Scoper) for Pinnacle prior to the bushfire, and that he would not be able to give evidence at all during the final hearing of these proceedings.

  2. Accordingly, it was submitted that the introduction of this amendment, at such a late stage and well after the proceedings had first been commenced, placed Pinnacle and, indirectly, Asplundh and Essential, in the position of being quite unable to meet the allegation, and thereby being severely prejudiced.

  3. The plaintiffs accepted that this was so in the case of the individual employee but they submitted that, nevertheless, there were other ways in which the allegation could be met by the defendants, including by reference to whether or not Pinnacle had a practice of its Tree Inspectors marking trees, or else by reference to the GPS locations of the vehicle used by the employee during his inspection, or by reference to other information.

  4. I formed the view that the prejudice to Pinnacle principally, but Asplundh and Essential indirectly, was very significant with that prejudice arising as a consequence of the lateness of the application.

  5. The video was taken by Mr Norman in March 2018. It had been in his possession since then, which is a period of over five and a half years prior to the Reply Report. As well, Mr Norman had visited the scene at that time and inspected the area generally. He made no record of any observation of the Dot Tree from that inspection. He made no reference in any report to the Dot Tree prior to the Reply Report. No explanation is advanced by Mr Norman, or the plaintiffs, for the fact that he did not recognise the significance of the Dot Tree at that time including any marking upon it.

  6. Further, no explanation is advanced as to why, when reviewing the video at any earlier time than when preparing his Reply Report, Mr Norman did not observe the Dot Tree, appreciate its significance, and provide his expert opinion with respect to it.

  7. Had his opinion about the significance of the Dot Tree been part of his expert opinion provided in the course of the Coronial Inquest, then the individual employee could have been asked about them. Pinnacle (or lawyers or Police assisting the Coroner) cannot have been expected to ask their former employee about the Dot Tree in circumstances where Mr Norman himself had not noted its significance.

  8. It is the lateness of this amendment which causes the prejudice to the defendants.

  9. Whilst I accept that there are indirect means by which the defendants could provide some evidence in response to the Dot Tree Window amendment, I nevertheless concluded that those indirect means were not such as to enable the defendants to properly meet this allegation in the absence of the employee’s evidence.

  10. No real explanation was proffered for not identifying the Dot Tree Window as a position of visibility to Tree 4. No one apparently thought about it during the Coronial Inquest, and it was not raised there by either Mr Norman or any of the experts. The matter had not been explored in evidence at all. The principal witness who could deal with the question is unavailable to give evidence or provide information to Pinnacle. In my view the prejudice is simply unable to be met.

  11. For that reason, I disallowed the Dot Tree Window amendment.

Costs

  1. I ordered that the costs of and occasioned by the Amendment, including the proceedings on the Notice of Motion, should be paid by the plaintiffs.

  2. The plaintiffs submitted that this was not the appropriate order because they had had partial success with their Notice of Motion, namely, that an amendment was allowed, although they had not succeeded on the entirety of their Motion.

  3. In my view, this is an unmeritorious submission.

  4. The fact is that the plaintiffs were seeking the indulgence of the Court to amend the 5FASOC within three weeks of the final hearing of these proceedings. The plaintiffs had been properly advised throughout the course of the proceedings. There had been a Coronial Inquest which enabled all of the issues to be identified.

  5. The amendment which was allowed was one which addressed the case which the plaintiffs submitted was always being made by them. Accepting that this was so, there was no adequate reason advanced so as to explain the fact that the amendment was being sought so late, when it could have been pleaded at a much earlier time.

  6. In those circumstances, there is no reason for the Court not to make the usual order as to costs, namely, that costs follow the event.

  7. Accordingly, the costs order is as I have stated.

  8. These are the reasons for the making the orders which I did on 2 February 2024.

**********

Decision last updated: 09 February 2024

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0