KEN GAZZARD, PETER GAZZARD and NIPLAG PTY LTD v TREVOR ROBERT HUTCHESSON and JENNIFER HUTCHESSON No. SCGRG 95/214 Judgment No. 5068 Number of Pages - 12 Trespass - Damages (1995) Aust Torts Reports 81-337

[1995] SASC 5068

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA BOLLEN J

CWDS
Trespass - trespass to land - no implied licence - cutting and lopping of branches of trees.

Damages - general principles - amount of compensatory damages - circumstance justified an award of exemplary damages.

HRNG ADELAIDE, 6 April 1995 #DATE 9:5:1995 #ADD 26:6:1995

Counsel for appellants:     Mr M Birchall

Solicitors for appellants:    Reilly Basheer Downs and Humphries

Counsel for respondents:     Mr T Mellor

Solicitors for respondents: Mellor Olsson

ORDER
Appeal and cross-appeal dismissed.

JUDGE1 BOLLEN J In this matter there is appeal and cross-appeal. The respondents were the plaintiffs and the appellants were the defendants in an action in the Magistrates' Court (Civil Division) at Mount Gambier.

2. The plaintiffs issued proceedings alleging that the defendants had by their servant or agent trespassed on the property of the plaintiffs for the purpose of cutting branches from poplar trees, which trees were on the property of the plaintiffs and which branches overhung, in part at least, the property of the respondents. There is no doubt but that the defendants did cause a man named Porter to go to cut branches there. The trees were large and mature. The cutting was, in the words of the magistrate, "severe and substantial".

3. The property of the plaintiffs was contiguous to that of the defendants.

4. The defendants denied liability.

5. The plaintiffs claimed both compensatory and exemplary damages.

6. The magistrate found for the plaintiffs. He found trespass and damage proved. Of course, the action in trespass does not require proof of damage but here damage was proved. The magistrate decided that the circumstances demanded an award of exemplary damages.

7. The magistrate found that five trees had been damaged. The damage was not permanent.

8. The cutting of branches and the consequential damage was done during the week beginning on Monday, 9th May, 1994. By the time of trial in January 1995 the trees had regrown. The magistrate said "they have returned or near enough returned to their former glory". But, as I have said, he found that the lopping had been "both severe and substantial". In assessing damages the magistrate said:
    "In my opinion the plaintiffs are entitled to damages as a
    consequence of the trespass by the defendants' agent on to
    the plaintiffs' property and for the unauthorised lopping of
    the plaintiffs' Poplar trees. In determining the amount of
    those damages I have regard to the fact that some lopping
    was able to occur in any event. The defendants were able to
    cut back those branches of the Poplar trees which overhung
    the dividing fence. Hence, there would have been some
    affect(sic) to the Poplar trees in any event. I also have
    regard to the fact that the Poplar trees have regrown.
    However, given the nature of the trees that would not have
    occurred until well into the following growing season.
    I assess the plaintiffs' damages at $100 per tree and given
    five Poplar trees were involved, in the amount of $500.

Having indicated that I turn to the issue of aggravated
    and/or exemplary damages. The learned authors of Mayne and
    McGregor on damages say of exemplary damages;
    'Such damages are variously called punitive damages,
    vindictive damages, exemplary damages, and even retributory
    damages. They can apply only where the conduct of the
    defendant merits punishment, which is only considered to be
    so where his conduct is wanton, as where it discloses fraud,
    malice, violence, cruelty, insolence or the like, or, as it
    is sometimes put, where he acts in contumelious disregard of
    the plaintiffs' rights.'

That description was adopted by the High Court in Lamb v
    Cotogno 164 CLR 1 at 8. In my opinion the defendants'
    actions are such that they warrant an award of exemplary
    damages. They acted with reckless and indeed contumelious
    disregard of the plaintiffs' right of enjoyment of their own
    property. They did so at a time when they knew the
    plaintiffs were not present so as to monitor and prevent
    their actions. They did so to remove what they perceived as
    a nuisance to their business activities. In my opinion an
    award of $3,000 by way of exemplary damages in the
    circumstances is sufficient."

9. By the expression "able to cut back" the magistrate was referring to the fact that it would have been lawful for the defendants to have lopped branches which hung over the boundary so that they transgressed into or over the land of the appellants. The plaintiffs' case was that the branches were cut back or lopped over the plaintiffs' land.

10. The appellants appeal against the whole of the judgment and impugn most of the reasoning of the magistrate. The appellants ask for judgment in their favour dismissing the claim of the respondents.

11. The respondents cross-appeal. They say that compensatory and exemplary damages are each manifestly inadequate.

12. I will set out much of the reasoning of the magistrate. That will reveal the facts and his reasoning.
    "The defendant Niplag Pty Ltd is the owner of the allotment
    of land situated on the south-western corner of Commercial
    Street East and Anthony Street, Mount Gambier. That
    allotment has a Commercial Street East address. Immediately
    south of the allotment just mentioned is another allotment
    which is number 15 Anthony Street, Mount Gambier. The
    defendant Niplag Pty Ltd also owns that allotment. The
    defendants Messrs Gazzard operate a used caryard on both
    allotments. Immediately south of number 15 Anthony Street
    is number 13 Anthony Street. Those two allotments adjoin
    each other. Number 13 Anthony Street is owned by the
    plaintiffs. That property was purchased by them in
    September 1987 or thereabouts. It appears that prior to the
    plaintiffs' purchase of that property it had been used as a
    residential dwelling. However, the plaintiffs converted the
    existing dwelling into commercial premises and, in
    particular, into offices. By virtue of its previous use as
    a residential dwelling the property had a well established
    rear garden. As best I can determine from the photographs
    tendered into evidence the rear garden comprised a lawn area
    with a border of shrubs and bushes with well established
    trees interspersed around the garden area. Included amongst
    those trees and postioned along the northern boundary of the
    backyard of number 13 Anthony Street, were five Poplar
    trees. That northern boundary of the plaintiffs' land was
    also the southern boundary of Niplag Pty Ltd's land, being
    15 Anthony Street.

At some stage after Niplag Pty Ltd had purchased 15 Anthony
    Street the Gazzards caused to be erected a second fence
    between allotments 15 and 13. There had been a pre-existing
    fence between those allotments. As best I can determine
    that was a wooden picket fence standing approximately three
    feet high. The second fence erected was a post and rail and
    galvanised iron fence standing, I would estimate,
    approximately two metres high. That fence was constructed
    essentially immediately alongside of the pre-existing fence
    which was left in position. So much is clear from some of
    the photographs being Exhibit P2.

I digress momentarily to indicate that there is some issue
    that the pre-existing and the new fence constructed by the
    Gazzard family was not positioned on the true boundary of
    the adjoining allotments. In July 1994 Mr Mark Teakle, of
    Alexander and Symonds Pty Ltd, Surveyors, surveyed the
    boundary of the adjoining allotments. He prepared the plan
    Exhibit P3. He found that the post and rail and galvanised
    fence constructed by the defendants was at the Anthony
    Street end of the common boundary 70 centimetres onto the
    defendants' allotment and that the same fence at the rear of
    the adjoining allotments was eight centimetres on the
    plaintiffs' allotment. Of significance, however, he found
    that in the area of the Poplar trees the fence did represent
    the true boundary and that the trunks of each of the Poplar
    trees measured from their base was entirely on the
    plaintiffs' allotment.

Based on the photographs and in particular Exhibit D5 and on
    the evidence, I am satisfied and so find that the Poplar
    trees were each several metres high and by virtue of their
    proximity to each other formed a substantial barrier along
    part of the common boundary. I am satisfied and so find
    that some of the lower branches on the northern side of each
    of the trees overhung the common boundary and, in essence,
    encroached over allotment 15.

There is no doubt that the Poplar trees had some aesthetic
    value at least to the first plaintiff. Equally, however,
    there is no doubt that the trees were not viewed as
    favourably by Messrs Gazzard. The Poplar trees being
    deciduous dropped their leaves during the Autumn season and
    by virtue of the overhanging branches and the prevailing
    winds, the leaves fell on to the caryard area. That had the
    effect of making the caryard untidy. The leaves also fell
    on to motor vehicles in the caryard area blocking air
    intakes and the like, and it is suggested causing staining
    to the paint work of the vehicles. I am satisfied and so
    find that from time to time Messrs Gazzard at the least
    commented and, possibly more accurately expressed,
    complained to the first plaintiff about the trees and, in
    particular, about the effect of the leaves falling into the
    caryard. Nothing was done in relation to those complaints.

Again I digress momentarily to indicate that in early 1994
    the plaintiff was approached by Mr Ron Chuck of Gebhardts
    Real Estate Agency, acting on behalf of Niplag Pty Ltd
    and/or the Gazzard family. Mr Chuck enquired whether the
    plaintiffs were prepared to sell their allotment to the
    defendants. Some discussions occurred but it appears the
    parties were a long way apart in their respective opinions
    as to the value of the plaintiffs' allotment.

On approximately Saturday the 7th of May 1994 the first
    plaintiff attended at the defendants' premises. His
    intention was to ascertain whether there was any ongoing
    interest by the defendants in purchasing his property.
    Again the discussion centred on the price and with their
    respective opinions nothing of substance was agreed. It was
    during that meeting that the matter of the leaves was again
    raised. As best I can determine it was raised by Mr Peter
    Gazzard. At some point during the discussions the parties
    attended in the vicinity of the common boundary. I am
    satisfied and so find that the first plaintiff and Mr Peter
    Gazzard were in the area of the common boundary. Mr Ken
    Gazzard says that his attention was drawn to a work related
    matter and he left the first plaintiff and Mr Peter Gazzard
    for a short period. I am satisfied and so find that the
    discussion which occurred between the first plaintiff and
    Peter Gazzard concerned the overhanging branches of the
    Poplar trees. During that discussion the first plaintiff
    said that they, the Gazzards, were entitled to cut back the
    Poplar trees to the line of the fence. As he said those
    words he motioned with his arm along the dividing fence
    line.

At about that stage Mr Ken Gazzard rejoined the first
    plaintiff and Peter Gazzard and as they moved along Anthony
    Street there was a comment made by Ken Gazzard concerning
    the true position of the boundary. I digress to indicate
    that Ken Gazzard believed the dividing fence was out of
    position and that the true boundary was further on to the
    plaintiffs' allotment than the position that the fence
    suggested. As it transpired he was partly correct in his
    belief. The group entered the rear yard of the plaintiffs'
    allotment, number 13 Anthony Street, and continued their
    discussion. That part of the discussion related to the
    possibility of the defendants purchasing the plaintiffs'
    land and what use they could make of it.

Of significance I am satisfied and so find that during the
    course of those discussions the first plaintiff indicated
    that he would be absent from Mount Gambier and in Adelaide
    during the following week. That comment was made in the
    context of allowing the defendants time to consider whether
    they would continue the negotiations concerning the possible
    purchase of the plaintiffs' land.

The plaintiffs'(sic) were indeed absent from Mount Gambier
    during the week commencing Monday the 9th of May 1994. They
    returned to Mount Gambier on Saturday the 14th of May 1994.
    That was a long weekend with the Monday being Adelaide Cup
    day. At some stage during that long weekend the first
    plaintiff attended at his property and observed the Poplar
    trees. Each of the trees had been substantially lopped. So
    much is clear from the photographs forming Exhibit P2.

There is no dispute that Mr Peter Gazzard arranged for a
    tree lopper, Mr Kevin Porter, to attend to cut back the
    Poplar trees. That work was done by Mr Porter during an
    afternoon and the following morning during the week that the
    plaintiffs were away from Mount Gambier. Mr Porter was paid
    $210 by Messrs Gazzard for his work.

Mr Porter in his evidence suggested that he had lopped the
    trees by standing on the dividing fence and on occasions in
    each of the trees. He seemed at pains to exonerate himself
    from having set foot upon the plaintiffs' allotment. Mr
    Porter had to concede the possibility, however, that he may
    well have stood on the plaintiffs' allotment during his
    work. I cannot see great significance in the issue. I am
    satisfied and so find that Mr Porter did enter onto and
    stand on the plaintiffs' allotment during the lopping
    process. It was necessary for him to do so to achieve some
    of the cuts which he made to the respective trees. I am in
    no doubt that Mr Porter as a professional tree lopper when
    using a chainsaw, as he did on this particular job, is
    concerned with his personal safety. I am in no doubt that
    when he made several of the cuts to the Poplar trees he did
    so from ground level as that was the most convenient place
    to be when making those cuts. It was also the safest place
    to be when using the chainsaw. Quite apart from that, Mr
    Porter understood that the owner of the property on which
    the Poplar trees were growing had given permission for them
    to be cut. With that understanding there would be no reason
    for him not to enter onto that property.

Of significance I am also satisfied and so find based on
    Mr Porter's evidence that prior to the lopping work
    commencing Mr Ken Gazzard indicated to him that the fence
    did not represent the true boundary and he could, in
    essence, cut the Poplar trees further back on to the
    plaintiffs' allotment than the dividing fence. That was
    consistent with Ken Gazzard's belief at the time. Mr Porter
    thought Ken Gazzard suggested the boundary was out by about
    a metre. However, he acceded to the suggestion in
    cross-examination that Ken Gazzard may have said 'you can go
    back about a foot'. I am also satisfied and so find that during
    the time Mr Porter was attending to the lopping, Peter
    Gazzard at the least approached from time to time to inspect
    the work as it progressed. I am satisfied and so find that
    towards the end of the work Peter Gazzard made a comment to
    Mr Porter 'they have had a good haircut'.

There is some significance in my view in the fact that Peter
    Gazzard did not know of his own knowledge where the true
    boundary dividing the allotments was. He was aware that his
    father, Mr Ken Gazzard, believed the true boundary to be on
    the plaintiffs' side of the dividing fence. Mr Peter
    Gazzard simply accepted his father's opinion in that regard.
    Consequently, I am satisfied and so find Mr Peter Gazzard
    allowed Mr Porter to lop branches from the Poplar trees from
    a point well within the plaintiffs' allotment. Quite apart
    from Peter Gazzard's belief, however, I am satisfied and so
    find that he was keen for the Poplar trees to be
    substantially lopped. His intention was to have the Poplar
    trees cut back well away from the caryard. Indeed, he had
    expressed views much earlier that the trees should be
    removed completely.

I am satisfied and so find that Mr Porter not only trimmed
    the Poplar trees level with the boundary as indicated by the
    fence line, but indeed lopped several branches of varying
    sizes from the trees entirely on the plaintiffs' side of the
    dividing fence and indeed taking account of the survey of
    the boundary, entirely on the plaintiff's allotment.

I am satisfied and so find the defendants arranged that work
    with full knowledge that the plaintiffs were absent from
    Mount Gambier. Peter Gazzard suggests that was not a factor
    in his decision to arrange Mr Porter to do the work.
    However, my distinct impression is that the work was
    performed with too much haste and to such an extent that the
    plaintiffs' absence from their premises was a relevant
    factor to the defendants. In a sense the plaintiffs were to
    be presented with a fait accompli. That attitude in my view
    brings into contemplation aggravated and/or exemplary
    damages. I will return to that issue later."

13. The grounds of appeal in the Notice of Appeal lodged by the appellants are:
    "1. The learned Magistrate wrongly found that the surveyor
    Mr. Teakle found that in the area of the poplar trees the
    fence did represent the true boundary when there was no
    evidence to support such a finding and such was not the
    evidence of Mr. Teakle.

2. The learned Magistrate wrongly found that Mr. Peter
    Gazzard allowed Mr. Porter to lop branches from the poplar
    trees from a point well within the respondents' allotment
    when there was no evidence of where the true boundary of the
    respondents' property was in relation to the cuts which were
    made.

3. The learned Magistrate failed to appreciate or
    misunderstood the evidence of Mr. Teakle which was presented
    by the respondents to the effect that the dividing fence was
    not on the true boundary between the parties properties and
    that he made no measurement to ascertain where the branches
    cut were in relation to the true boundary.

4. The learned Magistrate wrongly found that Mr. Porter
    lopped branches from the trees entirely on the respondents'
    allotment when there was no evidence to establish where the
    true boundary of the respective properties was in relation
    to the cuts which he made.

5. The learned Magistrate having found that the appellants
    had an implied licence to enter onto the respondents' land
    wrongly found that the appellants exceeded such authority by
    lopping branches far removed from the fence alignment when
    there was no evidence before him that the branches lopped
    went beyond the true boundary of the appellants' property.

6. The learned Magistrate wrongly found in the premises that-
    6.1 the appellants' agent had committed a trespass.
    6.2 the respondents are entitled to damages for trespass.
    6.3 any unauthorised lopping of the poplar trees occurred.
    6.4 the lopping which occurred exceeded that which the
    appellants were entitled to do.

7. The learned Magistrate wrongly further found that the
    respondents were entitled to exemplary damages in that -
    7.1 for the reasons stated in paragraphs 1 to 6 hereof,
    there was no evidence to establish a trespass by the
    respondents and therefore no actionable conduct to be
    redressed by such an award.
    7.2 the conduct of the defendants, namely trimming the trees
    which overhung the boundary in the absence of the

    respondent, was insufficient in law to found any award of
    damages.
    7.3 Having found that the appellant had an implied licence
    to enter the respondents' property to lop branches
    erroneously held and found that the respondents were
    entitled to damages and exemplary damages."

14. On the issue of liability the grounds boil down to a denial that there was any trespass and a claim that the appellants, in any event, had an implied licence from the respondents to enter the land of the respondents for the purpose of cutting and lopping.

15. I digress for the moment. There was no debate before me about vicarious liability. I think that it was correct that there was no point taken on this score. The appellants arranged for Porter to lop. If he committed a trespass while engaged in such work for or on behalf of the appellants then they are vicariously liable.

16. If there was a licence or permission to enter or to otherwise do what would have amounted to a trespass in the absence of any licence that of course is the end of the matter. But I jump right into this issue of licence or not by saying that I can find no evidence of any licence or permission. If I am wrong then I uphold the view of the magistrate that the terms of the licence were exceeded. Porter went beyond any licence if it should happen that there was one. But I am firmly of the view that there was no evidence to justify the finding that there was any sort of licence granted by the respondents to the appellants. The idea of a licence is based on things said and done by the male respondent. But the male respondent did no more than demonstrate where the appellants could lawfully cut or lop. The evidence is contained in the cross-examination of the male plaintiff. It is:
    "Q. Did you say having been told about the trees causing a
    problem with damage to the cars which you have agreed was
    said, did you say 'yes they are a problem' meaning the
    poplar trees.
    A. No.
    Q. And I put it to you Peter Gazzard said 'well, I would
    like to chop them right back'
    A. Yes I believe he said something along those lines.
    Q. Did you say 'my wife and I are fond of trees but by
    law you can cut them back level with the fence'.
    A. Yes, along those lines and I indicated, I stood there
    and indicated with my hand anything over the boundary line
    could be trimmed back as I understood by law.
    Q. You stood more-or-less along the boundary fence on the
    Gazzards' side and indicated up and down with you(r) arm
    like I am demonstrating.
    A. Yes.
    Q. And did Peter Gazzard say 'well, we would like to get
    on with that straight away because our staff have been
    complaining about the leaves'.
    A. No.
    Q. You deny that do you.
    A. Yes."

17. No licence can be spelled out from this evidence. Nor from any other evidence in the case.

18. The first part of the submissions of Mr Birchall were addressed largely to the position of the boundary between the two properties. Much was said of the two fences and of the boundary. Mr Birchall was at pains to emphasise that the fence was not, at least for its full length, on the surveyed boundary. I speak of fence although there were two fences but, in fact, one was built against the other and for all practical purposes it can be looked at as one fence.

19. It does not matter that the fence was not at all times on the boundary. The plan drawn by the surveyor, Mr Teakle, shows that the trees were growing and standing on the land of the respondents. I append the plan. The magistrate accepted it and the oral evidence of Mr Teakle. He was entitled to do so. The plan shows that the fence (treating the two as one) is not on the boundary for some of its length. It is on the boundary for some of its length. And it is probably so at the area where the trees grow. The plan shows four trees, all to the south of the boundary, all on the land of the respondents. The distances from the northern side of the tree to the boundary are small in each case. But they are all on the land of the respondents. Branches, be they higher or lower, overhung across the fence above the land of the appellants. Porter came. He cut and lopped vigorously. The place on the trees where he cut can, in some instances, be clearly seen from the photographs which were an exhibit, especially those in the bundle marked P2. He cut back branches which were growing over the land of the respondents. Porter was at pains to say that he had not stepped on to the land of the respondents. But an examination of the photographs showing the growth around about the trees demonstrates that he must have stepped on to the land of the respondents. He said at first that he had stepped on the branches of trees and on the fence to reach over to cut. One branch (see photograph 4 in Exhibit P2) was pushing against the fence. Let me quote some of the evidence of Porter:
    "Q. Where did you put the ladder.
    A. On Ken's side, from the car yard.
    Q. And what did you do then, can you describe to his
    Honour how you cut them down.
    A. I put the ladder up against the trees and basically
    walked along the fence and trimmed them where on the outside
    they needed trimming.
    Q. Did you have any discussions with either Ken Gazzard
    or Peter Gazzard during the time you were doing the work.
    A. Oh yes off and on, yes.
    Q. What was (sic) those discussions.
    A. I think they were reasonably pleased with what I was
    doing.
    Q. You said you were trimming the branches where they
    were overhanging.
    A. Yes.
    Q. Overhanging what.
    A. Well they were overhanging the fence and also Ken had
    mentioned that the, I misunderstood I thought he said a
    metre over the fence he said the boundary was, so I leaned
    over the fence a fair bit.
    EXHIBIT P2 SHOWN TO WITNESS.
    Q. Have a look at all six.
    A. Yes.
    Q. Does that show the work you did for Mr Gazzard.
    A. Yes it does.
    Q. Looking at the photographs 3 and 4, just check the
    numbers on the back.
    A. 3 and 4 yes.
    Q. Do you say that you made those cuts there from a
    position on top of the fence.
    A. No, those ones I probably would have been, yes it was
    either on top of the fence or probably standing on a bough
    near the cut.
    Q. So on occasions you had got into the trees to cut a
    bit more did you.
    A. Yes.
    Q. Did you ever.
    A. I probably had one foot on the fence and one foot on
    the tree.
    Q. 3 and 4 indicate cuts you would agree some feet below
    the top of the fence.
    A. Yes, especially number 4. Number 4 the branches was
    (sic) actually pushing up against the fence. The fact you
    can see a mark in the photograph where it has been wearing
    up against the fence. It was actually pushing the fence
    over.
    Q. Was it necessary to come down out of the tree and
    stand alongside it.
    A. No, I never made any cuts standing on the ground.
    Q. Why was that.
    A. Well its probably too high off the ground, I never.
    HIS HONOUR
    Q. Would you agree that those cuts appear to be about
    waist high for a normal sized person standing at ground
    level.
    A. No I wouldn't. That's the middle really which would
    probably be about that high.
    Q. Are you indicating what, about 3 feet.
    A. I would say so yes. It's a 6 ft fence, the middle
    really would be about 3 ft.
    Q. How high would you estimate.
    A. Probably 4, that's about I would say probably a foot
    at the most at the lower part of the cut below the top
    really and to do a decent job so it's not going to interfere
    again it's better to cut there because to have a look
    properly you really need photographs before and after.
    Q. So if you were standing on the fence you would be
    cutting with that bough below your feet level.
    A. Yes quite possibly yes.
    Q. What about on photograph no. 3, how high do you think
    that cut is.
    A. That's only about 4 ft.
    Q. So if you were standing on the fence you were cutting
    2 ft below.
    A. I didn't say I stood on the fence for all the cuts but
    I know I never stood on the ground. I wasn't consciously
    not standing on the ground. I hadn't been told not to go
    into the property.
    Q. Wouldn't it be fair easier to cut those branches or
    boughs from ground level.
    A. Not really.
    Q. You appreciate there is more than just you that uses
    chain saws.
    A. Yes. I can't remember. I certainly don't remember
    standing on the ground cutting any.
    Q. Don't you.
    XN
    Q. As you cut the branches what did you do with them.
    A. I threw them over into Ken's yard and I carted that
    away.
    Q. How had you carted away.
    A. I think it might have been, I carted all the heads
    away, all the timber away. I generally cut it up for fire
    wood.
    Q. How many.
    A. I think it was only. I generally cram quite a bit in
    my trailer, I am pretty sure it would have been only. The
    more times you go to the tip the more cost that would have
    been, only a smallish load for me, the heads on one trip and
    come back and pick up the boughs if you like.
    HIS HONOUR
    Q. Just have a look at photograph no. 5. You can see the
    trees have been cut in photograph 5.
    A. Yes.
    Q. How high do you estimate they are above the ground
    surface using the same principle of the centre of the fence
    as an indicator.
    A. That's a different fence. It must be further along
    the fence but they certainly look.
    Q. Let me put this specifically to you. Do they appear
    to be lower than waist high for a normal sized man standing
    on the ground.
    A. They certainly do.
    Q. How did you cut them.
    A. I don't know.
    Q. Is it possible you might have been standing on the
    ground.
    A. All things are possible but I certainly cannot
    remember doing it.
    Q. You say you were not given instructions not to stand
    on the ground were you.
    A. No.
    Q. And so the likelihood as a professional tree lopper
    and concerned about chain saw safety you are going to get
    into the most safe and comfortable position to cut.
    A. Yes.
    Q. Isn't it probable you were standing on the ground when
    you cut those branches shown in photograph 5.
    A. It is probable. I know I walked along the fence quite
    a lot cutting them and there was a fair bit of undergrowth.
    It was very difficult to walk around on the ground. I got
    down to throw some branches I broke over because I don't
    like leaving a mess, I like to do a decent job. I wasn't
    consciously not walking on the ground but if there is no
    need to get down on the ground I don't."

20. Porter must have stepped on to the land of the respondents. The evidence which I have quoted and the photographs entitled the magistrate so to find.

21. The claim in trespass is complete. I mention that the trespass was not so much stepping on to the land but the cutting of the branches which were cut. Those branches were cut so that that part of them which grew between the tree and boundary was destroyed. It really matters not from where Porter did the cutting. If he were standing on fence and branches cutting other branches of wood on or over the land of the respondents he was committing a trespass. He was committing a trespass to trees growing on the land. If I put a stepladder near my dividing fence, mount it, lean over the fence and cut my neighbour's roses down I have committed a trespass. Perhaps it is a trespass to land done with my arm and hand against flora growing on my neighbour's land. Perhaps it is a trespass simply to the roses or, in the present case, to the trees. It does not matter. The evidence entitled the magistrate to find as he did. Trespass requires no proof of damage. But some damage was proved. The trees were damaged for a time. The plaintiffs' enjoyment of them was reduced for a time. But even if that be not regarded as damage the respondents are still entitled to "some damage" (Plenty v Dillon 1990-91 171 CLR 635). The award is "in vindication of (their) right to exclude the appellants from their property" (see page 645 per Mason CJ, Brennan and Toohey JJ).

22. The magistrate awarded compensatory damages at $100 per tree. He accepted the evidence of the male respondent that five trees were damaged. Only four are mentioned in the plan drawn by Mr Teakle. But the magistrate was entitled to accept the evidence of the male plaintiff if he saw fit. In any event an award of $500 is, in my opinion, a moderate award for the vindication which I have mentioned and for the diminution of enjoyment of the trees.

23. I think that the magistrate was entitled to take the view which he did about the selection of the time for the cutting. It was done when the male plaintiff was in Adelaide. He had told the appellants that he would then be away. The result was that the man who was at pains to emphasise wrongly that he had not stepped on the land of the respondents did the work at the behest of the appellants when there was no chance of effective complaint from the respondents. Against the background of all that had happened as appears in the evidence and the remarks in the reasoning of the magistrate it is clear, in my opinion, that the appellants chose a time when they knew there could be no complaint so that they could, as the magistrate says, present the respondents with a fair accompli. It follows, in my opinion, that the magistrate was on sound ground in deciding that exemplary damages should be awarded. I, too, think that the appellants acted with contumelious disrespect for the rights of enjoyment by the respondents of the trees (Lamb v Cotogno (1987-88) 164 CLR 1 at 8 and XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd 1985 155 CLR at 471 per Brennan J). Deterrents and punishment are elements in the awarding of exemplary damages. I can find no fault in the findings or reasoning of the magistrate. So far as the amount of the exemplary damages is concerned I think that the award is not manifestly excessive. Perhaps it is a little generous but not manifestly excessive.

24. I dismiss the appeal.

25. As to the cross-appeal I say no more than that I do not think compensatory or exemplary damages are manifestly inadequate.

26. I dismiss the cross-appeal.