CITATION: Pollard v Wilson [2010] NSWCA 68 This decision has been amended. Please see the end of the judgment for a list of the amendments.
FILE NUMBER(S): CA 40384/08
HEARING DATE(S): 17 November 2009
JUDGMENT DATE: 8 April 2010
PARTIES: Brett Laurance Pollard (1st Appellant) Lenore Pollard (2nd Appellant) Kyah Simone Wilson (1st Respondent) Dubbo City Council (2nd Respondent)
JUDGMENT OF: Macfarlan JA Young JA McClellan CJ at CL
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 2006/3862
LOWER COURT JUDICIAL OFFICER: Hughes DCJ
LOWER COURT DATE OF DECISION: 15 August 2008
COUNSEL: E G Romaniuk (Appellants) A C Bridge SC/M Fordham (1st Respondent) P R Garling SC/P A Horvath (2nd Respondent)
SOLICITORS: Creagh & Creagh (Appellants) Holman Webb (1st Respondent) DLA Phillips Fox (2nd Respondent)
CATCHWORDS: TORTS – Negligence – liability for others’ negligence – agency – whether first respondent liable as principal for actions of husband or contractors with which she had no direct involvement – whether first respondent vicariously liable for actions of husband or contractors TORTS – Negligence – causation TORTS – Negligence – liability of second respondent – effect of failure to notify neighbouring residents of amended development plans – alleged failure to consider heritage impact in approving development application – whether Council obliged to supervise works not requiring Council approval – effect of failure to include tree on Significant Tree Register negligent TORTS – Negligence – liability of second respondent – causation PROCEDURE – Application to amend statement of claim – whether trial judge’s refusal to allow application appropriate PROCEDURE – Judges – application for disqualification – bias – whether trial judge’s conduct during trial evidenced bias PROCEDURE – Judgments and orders – obligation to provide reasons – whether trial judge’s reasons adequate EVIDENCE – Expert report – admissibility – whether expert provided appropriate factual basis for his opinions – effect of trial judge’s failure to read entire report before ruling – whether appellants denied a proper hearing DAMAGES – Quantum – whether approach of trial judge appropriate
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Pollard v Wilson [2010] NSWCA 68
Case
[2010] NSWCA 68
Decision Date
CaseChat Overview and Summary
The appeal concerned claims brought by the Pollards against Mrs Wilson and the Botany Bay City Council. The Pollards alleged negligence on the part of Mrs Wilson, and vicarious liability for the actions of her husband or contractors, and also negligence on the part of the Council. The dispute involved the Council's approval of development plans and the impact of these plans, including the failure to notify neighbouring residents and the alleged failure to consider heritage impact.
The court was required to determine several legal issues, including whether Mrs Wilson was liable as a principal for the actions of her husband or contractors, and whether the Council was negligent in its approval process, specifically regarding notification of amended plans, heritage impact, and supervision of works. Further issues related to the admissibility of expert evidence, the trial judge's refusal to allow an amendment to the statement of claim, and whether the trial judge's conduct evidenced bias, thereby warranting disqualification. The court also considered the adequacy of the trial judge's reasons and the quantum of damages.
The court found that criticisms regarding the admissibility of evidence, including an expert report and a newspaper article, were misconceived. The trial judge's interventions during the proceedings, while interventionist, were for the purpose of understanding the case and facilitating the efficient disposition of the trial, and did not demonstrate bias. The court noted that the cost of the litigation was out of proportion to the modest claim, and that the case called for a dispassionate consideration of the evidence.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
This criticism is misconceived. Mr Cook was permitted, over objection, to give evidence as to his observations of the root ball of the pistachio nut tree. He was then cross-examined on this topic, and no attempt was made to re-examine him on the issue. 3.The rejection of Mr Botfield’s evidence without reading his report There was considerable debate at the trial with respect to the admissibility of this report. The Pollards called Mr Botfield on two separate occasions to give evidence as to his expertise. The trial judge heard detailed submissions from each party during which time the Pollards’ counsel had the opportunity to refer his Honour to any aspect or section of the report which he believed to be significant. As with the Pollards’ application to amend the statement of claim, even if I was of the opinion that the trial judge erred in refusing the tender, that could not, of itself, support a contention that the notional lay observer might reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the matter.4.The approach to a newspaper article sought to be tendered and read by the trial judge The trial judge over an objection by the Pollards’ counsel admitted a newspaper article as part of Exhibit 6. Unfortunately the debate concerning the admissibility of the article is not transcribed. The basis for the tender by counsel for Mrs Wilson was that the newspaper article was before the expert (Mr Semmler, a licensed builder) and while it was hearsay, it was tendered for a non-hearsay purpose pursuant to s 60 of the Evidence Act. I am not certain why it is that the Pollards submitted that his Honour’s decision would give rise to an apprehension of bias. Even if the decision was wrong there is nothing to suggest that it was other than one of many rulings as to admissibility of evidence which are required in the course of any trial.5.The interruption of the Pollards’ counsel during cross-examination The trial judge was unquestionably interventionist. A review of the transcript confirms that his Honour interrupted all counsel whether they were leading evidence, cross-examining witnesses or making submissions. The transcript makes plain that these interruptions occurred so that his Honour could understand how the parties (primarily the Pollards) put their case(s) and how particular evidence fitted into that case. It will often be necessary to avoid any misunderstandings and to assist the efficient disposition of a trial for a judge to intervene and ask questions of a witness or seek the assistance of counsel. The days when a judge was obliged to sit patiently in the hope that ambiguities will be clarified and the evidence, particularly that of experts fully explained are long gone (Minnesota Mining & Manufacturing Co & 3M Australia Pty Ltd v Beiersdorf (Aust) Ltd (1980) 144 CLR 253; (1980) 29 ALR 29; Botany Bay City Council v Rethmann Australia Environmental Services Pty Limited [2004] NSWCA 414). The interruptions by the trial judge may have been irritating for counsel but his Honour did not display a bias against the Pollards.6.The suggestion that the Pollards’ counsel was attempting to trick Mr Wilson
Decision
Reasons for decision
CLELLAN CJ
There is little doubt after considering the transcript that his Honour was seriously concerned that many days of court time were being taken up by the proceedings which involved what on any view was a modest claim. He was right to be concerned. The cost of the litigation involving three parties, a number of expert witnesses, and representation by senior counsel was out of all proportion to the likely damages if the Pollards succeeded. The case called for a dispassionate consideration of the available evidence by counsel with firm advice as to the prospects of success and the cost of failure. Decision In my judgment the appeal should be dismissed with costs.