Pollard v Wilson - [2010] NSWCA 68

NEW SOUTH WALES COURT OF APPEAL

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

LEGISLATION CITED:
Evidence Act 1995
Civil Procedure Act 2005

CATEGORY:
Principal judgment

CASES CITED:
Assaf v Kostrevski [1998] NSWCA 274
Balesfire Pty Ltd v Jamie Adams and Others [2006] NSWCA 112
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Bendix Mintex Pty Ltd & Exxon Ltd
Bondin v Lamaro [1994] NSWCA 29
Botany Bay City Council v Rethmann Australia Environmental Services Pty Limited [2004] NSWCA 414
Chamberlain v Callaghan and Ors [2004] NSWCA 44
Commonwealth of Australia v Shaw (2006) 66 NSWLR 325; [2006] NSWCA 209
Davison v Vickery’s Motors Ltd (in liq) (1925) 37 CLR 1; (1925) 31 ALR 465 at 19
Dominello v Dominello [2009] NSWCA 95
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Harry S Bagg’s Liquidation Warehouse Pty Ltd v Whittaker (1982) 44 NSWLR 421
Heperu Pty Ltd v Morgan Brooks Pty Ltd (No 2) [2007] NSWSC 1438
Hollis v Vabu Pty Ltd (2001) 207 CLR 21 (“Hollis“)
International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co (1958) 100 CLR 644 at 652; (1958) 32 ALJR 160
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Jsekarb Pty Ltd v Barnes (1997) 42 NSWLR 307
Jung v Son [1998] NSWCA 120
Keighley Maxsted & Co v Durant [1901] AC 240
Kelner v Baxter (1866) LR 2 CP 174
Kondis v State Transport Authority (1984) 154 CLR 672 at 687; 55 ALR 225
Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 230 CLR 22
MacRae v Stevens [1997] ANZ ConvR 129
Makawe Pty Ltd v Randwick City Council [2009] NSWCA 412
Makita (Australia) Pty Ltd v Sproules (2001) 52 NSWLR 705
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Mifsud v Campbell (1991) 21 NSWLR 725
Minnesota Mining & Manufacturing Co & 3M Australia Pty Ltd v Beiersdorf (Aust) Ltd (1980) 144 CLR 253; (1980) 29 ALR 29
North Sydney Council v Binks [2007] NSWCA 245
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; (2004) 208 ALR 213
Parramatta City Council v Lutz (1988) 12 NSWLR 293
Pettitt v Dunkley [1971] 1 NSWLR 376
Phillipson v Hayter (1870) LR 6 CP 38
Pinkstone v R (2004) 206 ALR 84
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656
Pyrenees v Day (1998) 192 CLR 330; [1998] HCA 3
Ryan v Great Lakes Council [1999] FCA 177
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
South Sydney District Rugby League Football Club Ltd v News Ltd (2000) 177 ALR 611; [2000] FCA 1541
Stevens v Bodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 in contrast with
Stoneman v Lyons (1975) 133 CLR 550; 8 ALR 173
Suncorp Finance & Insurance Corp v Milano Assicurazioni SpA [1993] 2 Lloyd’s Rep 225 at 234
Sutherland Shire Council v Heyman (1985) 157 CLR 424; [1985] HCA 41;
Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; (2006) 227 ALR 46
Sydneywide Distributions Pty Ltd v Red Bull Australia [2002] FCAFC 157; (2002) 55 IPR 354
Trident v McNiece Bros Pty Ltd (1987) 8 NSWLR 270
Victims Compensation Fund Corporation v Ainsworth [2001] NSWCA 92;
Watson v George (1953) 89 CLR 409
Workers Compensation (Dust Diseases) Board of NSW v Smith [2010] NSWCA 19

TEXTS CITED:
Halsbury's Laws of Australia, vol 1, par [15-5])
WA Seavey, “The Rationale of Agency” (1920) 29 Yale Law Journal 859
Australian Encyclopaedia of Forms & Precedents at par [1501])
BS Markesinis and RJC Munday, An Outline of the Law of Agency, 3rd ed (1992) Butterworths at 201-2 citing Uxbridge Permanent Benefit Building Society v Pickard [1939] 2 KB 248, [1939] 2 All ER 344
Fisher, Agency Law p 59
GE Dal Pont, “Agency: Definitional Challenges through the Law of Tort” (2003) 11 Torts Law Journal 1, 21, citing Reynell v Lewis (1846) 15 M & W 517 at 526; 153 ER 954 per Pollock CB at 958
Halsbury's Laws of Australia, vol 1, par [15-60]
Jane P Swanton in “Non-delegable Duties: Liability for the Negligence of Independent Contractors: Part 1” (1994) 4 Journal of Contract Law 183
A Corkhill, “Case Note: Vicarious Liability in Sheep’s Clothing? Non-delegable Duties of Care in Leichardt Municipal Council v Montgomery” (2007) 15 Torts Law Journal 111

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40384/08
MACFARLAN JA
YOUNG JA
McCLELLAN CJ at CL
THURSDAY 8 APRIL2010

POLLARD v WILSON

Judgment

MACFARLAN JA: I agree with McClellan CJ at CL.
YOUNG JA: I agree with McClellan CJ at CL.
McCLELLAN CJ at CL: The appellants, Mr and Mrs Pollard (“the Pollards”) own a property at 63 Tamworth Street, Dubbo. The property is developed with a dwelling house and a substantial garden. The dwelling house was erected in the latter part of the 19^th century. It is one of a limited number of heritage listed properties in Dubbo. The adjoining property (“the Wilson property”), 61 Tamworth Street, Dubbo is owned by the first respondent (Mrs Wilson). The property was purchased by her in 2002, the funds being provided by Mr Wilson. The property is developed with a dwelling house in which she lives with her husband, Bernard Wilson. Before it was subdivided and developed, the land of the Wilson property was part of the curtilage of the Pollard property.
After taking up residence Mrs Wilson decided to upgrade her property and amongst other improvements erect a new garage, with a widened driveway, on the eastern boundary of the property. Mrs Wilson, as owner-builder, sought and obtained development approval from the second respondent, Dubbo City Council (“the Council”), for various building works. In order to be able to alter the garage and driveway access it was necessary to significantly lop a jacaranda tree adjacent to the boundary with the Pollard property and remove a pistachio nut tree which was also close to the boundary.
In August 2003, the jacaranda tree was heavily lopped but not removed. Some three months later, in late November, the pistachio nut tree was removed. The Pollards claim that the disturbance of the jacaranda tree and the removal of the pistachio nut tree disturbed the subsurface adjacent to the foundations of a portion of the western wall of their house causing cracking. They sued Mrs Wilson and the Council, claiming damages, being the cost of repairing their house. For reasons which are not apparent they did not sue Mr Wilson or either of the contractors who assisted in removing the pistachio nut tree. The Council was joined to the action because of its powers to control the development of land and the removal of trees.
The case was tried in the District Court where it occupied 11 days of hearing time. The trial judge, in reasons which are criticised by the appellants as being wholly inadequate, found for the defendants, dismissed the proceedings and ordered the Pollards to pay the respondents’ costs. If he had found the respondents liable his Honour indicated that he would have awarded damages in the sum of $16,500. The Pollards originally claimed a total sum of $125,228.10.
The trial judge made only limited factual findings. With respect to Mrs Wilson his Honour ruled that she was not properly a party to the proceedings. His Honour indicated that there was no dispute that Mrs Wilson did not herself carry out any work on the jacaranda tree or the pistachio nut tree and accordingly had not herself performed a negligent act.
His Honour also considered whether Mrs Wilson may be liable by reason of her husband’s actions as her agent. He further considered whether as an owner-builder Mrs Wilson owed a non-delegable duty of care to the appellants. His Honour determined that Mr Wilson “did not have a capacity to create or effect legal relations on behalf of Mrs Wilson and that the relationship between them did not create the legal relationship of agency.” His Honour also rejected the submission that there was a non-delegable duty of care and referred to the decision of the High Court in Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 230 CLR 22 (“Montgomery”).
Finally, in relation to Mrs Wilson his Honour held that she was not in the present circumstances vicariously liable for the acts of others who were carrying out activities which had a benefit to her by improving her property at Tamworth Street. His Honour found that the two contractors who carried out the work, Mr Maas and Mr MacKillop, were independent contractors. His Honour found that Mrs Wilson neither owed a duty of care to the Pollards nor, if she did, that it had been breached.
With respect to the Council the trial judge concluded that the Pollards had “failed to prove their case on the balance of probabilities”. His Honour’s reasons consisted of the adoption verbatim of the entire written submissions by counsel for the Council at the trial.
As I will discuss there are some inadequacies in the trial judge’s reasons. However, his Honour did consider whether the Pollards had proved that the lopping of the jacaranda tree or removal of the pistachio nut tree had been undertaken negligently and whether either action had occasioned damage to the Pollards’ house. His ultimate finding was that the Pollards had not established that the work on the Wilson land was the cause of any relevant damage to the Pollard house. This finding is ultimately determinative of the case. In the course of giving reasons in relation to these questions his Honour made some findings of fact. But it is necessary, as the parties accept, to examine other factual matters.
The sequence of events
The development applications
On 13 June 2002, Mrs Wilson applied to carry out renovations to the main building on her property. The property was inspected by Mr Wolthers, who was then the Heritage Advisor to the Council, following which the application was approved on 22 July 2002. Mr Wolthers gave evidence that he observed the jacaranda tree and the pistachio nut tree during his June 2002 inspection on the site. Significantly he did not recommend that either of the trees be included on the Council’s Significant Tree Register, a matter to which I shall return later.
On 31 January 2003 Mrs Wilson submitted a further Development Application 2003/84 (“DA”) to the Council, which sought approval to re-build the front fence and existing garage, and to build a carport in front of the garage. These improvements are the subject of the present controversy. Although a plan was submitted with the DA, that plan was not tendered in evidence at the trial.
On 13 February 2003 the Council wrote to the Pollards notifying them of the DA and inviting them to inspect the plans and supporting documentation at the Council offices. An extract of the submitted plans was attached to the letter. The letter also advised the Pollards of a 14-day period in which submissions or objections could be lodged with the Council. After receiving the application the Pollards examined the site and “stepped out” the plans. They did not attend the Council offices to inspect the full plans. No submissions or objections were received by the Council during the nominated timeframe. The Pollards’ evidence was that after perusing the extract of the plans attached to the correspondence, they did not consider it necessary to attend the Council offices to view the plans in full. Although it would have been possible to identify that both trees may be endangered by the proposed development it would seem that neither of the Pollards apparently appreciated that the trees would be affected and, in particular, the pistachio nut tree removed.
The Council asked Mr Wolthers to review the DA and prepare a report on the impact that it would have on the streetscape. Mr Wolthers’ report expressed concern in relation to the height and density of the front fence. He made no comment about the trees.
After receiving Mr Wolthers’ report, the Council sought and obtained from the Wilsons an amended fence plan, which in effect provided for a smaller fence. The Council did not notify this amended plan to the neighbouring residents. This may have been because in the absence of any objection to the original plan a fence of lesser impact was thought, quite reasonably, to be unlikely to cause any concern.
After reviewing the DA, Mr Stanger, who was a Senior Building and Development Officer at the Council, prepared a memorandum for the Council on 3 April 2003 in which he recommended that the DA be approved. His recommendation was adopted by the Council. A letter dated 4 April 2003 notified Mrs Wilson that the DA had been approved.
The jacaranda tree
Some time in either late August or early September 2003, an attempt was made to either cut down or remove the jacaranda tree. Mrs Wilson was not on-site. The Pollards and others observed the events from the Pollard property. Present on the Wilson property were Mr Wilson and several other men described by Mr Wilson as friends and helpers. Mr Wilson was supervising the works and directing the movements of a crane, which was operated by one of the Wilsons’ friends, Mr Holland.
A chain connected to the crane was secured around the tree’s lateral branches. These branches were lopped progressively and lowered to the ground on long ropes and/or chains. A section of the trunk remained intact, although there was a dispute about how large that section was. Mr Pollard’s evidence was that Mr Wilson wrapped the chain around the jacaranda trunk. Mrs Pollard could not confirm this but it is clear in any event that a chain was wrapped around the trunk. According to the Pollards an attempt was then made to hoist the trunk up vertically using the crane. On the Pollards’ account, immediately the crane was elevated, they yelled “Stop, Stop” because they observed a section of their gravel driveway lifting into the air. The Pollards believed that the driveway was lifted by two to three feet.
The Wilsons deny that there was any intention or attempt to hoist the stump out of the ground. Mr Wilson agreed that it would have been very dangerous to attempt to simply hoist the stump, given that its roots were intact and some could have extended underneath the Pollard house. Mr Wilson’s evidence is that the chain was used to “tension” the trunk during lopping. The trial judge did not resolve this disagreement but found that there was no nexus between the jacaranda incident and the “tensioning of the roots of the jacaranda tree”.
The work on the jacaranda tree caused the Pollards sufficient concern that they notified the Council. Mr Stanger gave evidence which the trial judge seemingly preferred, that Mr Pollard stated to him that the driveway was lifted by about one foot. The Pollards make no claim for damage to the driveway.
The jacaranda tree is still alive and has since sprouted substantial regrowth. Whilst its roots were never removed, the Pollards allege they were disturbed. There is no evidence that the disturbance of the roots affected the foundations of the Pollard house.
Subsequent to the lopping of the jacaranda tree, the Pollards made various complaints to the Council with respect to both the jacaranda tree and the planned removal of the pistachio nut tree. Between September and November 2003 the Council was involved in several discussions with the Pollards and the Wilsons. When giving evidence Mr Pollard initially agreed that Mr Wilson had told him of his intention to remove the pistachio nut tree, and stated that he had protested about this. Mr Pollard did not recall the date at which this conversation took place. However in re-examination he denied the conversation altogether. His denial is inconsistent with paragraph 12 of his written statement where he said, “I became aware that the Defendants intended removing the Pistachio Nut Tree”.
Mrs Pollard gave evidence that her husband first told her of Mr Wilson’s intentions in “mid September”. To my mind there is little doubt that Mr Pollard first became aware of Mr Wilson’s intention to remove the tree at that time.
On 19 September 2003 the Pollards met with Mr Stanger. Mr Stanger took a comprehensive file note of the meeting. According to Mr Stanger’s evidence, Mr Pollard expressed “concerns that the removal of excess soil would cause his footings and driveway to be undermined.” Mr Stanger’s evidence was that Mr Pollard stated that if the pistachio nut tree was to be lopped, then such lopping should be performed by Mr MacKillop, who, the trial judge found, had previously performed tree lopping and removal works for the Pollards. This is what happened.
On 19 September 2003, Mr Stanger also met with Mr Wilson. Mrs Wilson was not present at this meeting. Mr Wilson agreed to stop work pending resolution of the matter.
Some time in September, Mr Wilson informed Mrs Wilson that the Council had approved the removal of the pistachio nut tree. Mrs Wilson then sent Mr Wilson to speak to Mr Pollard about the tree. Mr Wilson gave evidence that his wife had told him to be courteous and “do the right thing” in disclosing what was to happen. Mrs Wilson observed the conversation between Mr Wilson and Mr Pollard through a chain mail fence. The next day, she spoke to Mr Pollard and “got the impression from him that he wasn’t happy with [the tree’s] removal”. On the same day, Mrs Wilson said that she had a brief conversation with Mrs Pollard as Mrs Pollard was reversing out of her driveway. Mrs Wilson admitted that she had said, “I like the tree and would prefer it to remain but once my husband has something in his mind he would rather not change anything”.
On 26 September 2003 the Pollards met with Mr Stanger, Ms Watkins (the Council’s Manager of Environment and Land Use Services) and Mr Ashley (the Council’s Senior Development Planner) at the Council’s offices. It is clear that by this point the Pollards knew that Mr Wilson was intending to remove the pistachio nut tree. At that meeting the Pollards raised concerns about what they regarded as improper tree removal on the Wilsons’ property. They also raised a series of concerns related to other aspects of the development. They remarked that if their house were to be damaged they would be seeking compensation for it. The Pollards did not report at this meeting, nor at any time between the lopping of the jacaranda tree and the removal of the pistachio nut tree, that they believed their house had sustained damage by reason of the tree works. In paragraph [34] of his reasons the trial judge states:
“The Pollards do not dispute that they did not report damage to their premises between the lopping of the jacaranda tree and the removal of the pistachio nut tree. Yet they claim that some damage had occurred.”

The Pollards have subsequently contended that by 26 September 2003 small cracks had started appearing in the western external wall of their house.
Mr Pollard gave evidence that he first noticed damage to the external western wall “two or three weeks after” the lopping of the jacaranda tree. He insisted that he first noticed cracks after the jacaranda tree was lopped but before the pistachio nut tree was removed. In cross-examination Mr Pollard admitted that he “didn’t go and tell the Wilsons” about this damage. Whilst he insisted that he did report damage to his house to the Council between the works to the jacaranda tree and the pistachio nut tree his evidence on this point was equivocal. Mr Stanger, who had dealt with Mr Pollard on numerous occasions between the lopping of the jacaranda tree and the removal of the pistachio nut tree, gave evidence that Mr Pollard had been concerned as to potential, not actual, damage.
Mrs Pollard’s evidence on this point is as follows:
“PARKER
Q.You said yesterday I think, and this morning, that you noticed some damage to your property about six to eight weeks after the lopping of the jacaranda tree, is that right?
A.           No, I said it was a few weeks, four to six.
…
Q.And can you tell me what part of your property you noticed this damage occurring, for the first time?
A.           Near a toilet window.
…
Q.If you look at the document in front of you, you’ll see that there are about 16 pages of – I beg your pardon. From about pages 4 through to page 16 are photographs taken by Mr Cook of the damage which I assume you identified to Mr Cook, is that right? You showed Mr Cook the damage?
A.           Yes.
…
Q.Can you identify from the photographs the damage that you first noticed? Plate number 2 seems to refer to the cracking above the window in the WC area adjacent to the laundry area of the residence, is that the damage—
A.           Yes.
Q.            –you first noticed?
A.           Yes.
Q.Do you notice the caption which is under that? That’s the damage, plate 2, is that right?
A.           Yes.
Q.And do you notice what Mr Cook’s written in the caption there? Do you see that? Did you not tell Mr Cook that the damage didn’t appear until the two trees were removed, namely the Jacaranda and the Pistachio Nut Tree?
A.           Can you repeat the question?
Q.           Yes. You see what the caption says?
A.           The caption, yes.
Q. The caption says, “the damage was not visible prior to the removal of the Jacaranda tree and the Pistachio tree,” is that right?
A. “The cracking apparently not visible prior to the removal of the Jacaranda and the Pistachio tree.”
Q. That’s right, and you gave Mr Cook that information, didn’t you?
A.           We did.
Q. And your evidence is that damage was present after the Jacaranda tree?
A.           Yes.
Q.           So Mr Cook’s got that wrong?
A.           No, the – I don’t think that’s wrong at all.
Q.           It’s patently wrong, isn’t it?
A.           No.
Q. What Mr Cook’s saying – well let’s examine it step by step. The Jacaranda tree is dealt with in September, right?
A.           August/September.
Q.           August or September, it doesn’t matter?
A.           Yeah.
Q.           The Pistachio Nut tree is dealt with in November, right?
A.           Yes.
Q. In order that the cracking not be visible until the removal of the Jacaranda tree and the Pistachio Nut tree, it has to be in November, correct?
A.           Yes.
Q.           Just as a matter of logic?
A.           Yes.
Q.           Right, and that’s what you told Mr Cook, wasn’t it?
A.           Yes.
Q. And what you’re telling the court now is something quite different, isn’t it?
A.           No.
Q. You're telling the court now that the damage was there after the Jacaranda tree was removed?
A.           Yes.
HIS HONOUR
Q.           And before the Pistachio tree was removed?
A.           Yes.
PARKER
Q. The two propositions are completely inconsistent, aren’t they?
A.           It would appear.
…
Q. You agree, do you not, that you told Mr Cook that the damage photographed there was not in existence prior to the tree removals, correct?
A. I agree that the damage was not there prior to the removal and the attempted removal of the trees.
Q.           Yes, the trees?
A.           The trees.
Q.           Yes, both trees?
A.           The trees.
Q. The damage, in other words, did not present itself until after the Pistachio Nut tree was removed, that’s correct isn’t it?
A.           No.
Q. Well you see madam, you’ve just agreed with me that the damage was not there until the trees were removed, correct?
A.           Trees, correct.
Q.           Both trees, correct?
A.           Yes.
…
Q. Madam, you’ve told this court that this damage occurred between the lopping of the Jacaranda tree and the removal of the Pistachio Nut tree, that was your evidence yesterday, wasn’t it?
A.           Yes.
Q.           And that evidence is not correct, is it?
A.           It is correct.
Q. You see – well it’s not consistent with what you told Mr Cook, is it?
A.           But it’s stating trees, removal of the trees.
Q.           Trees?
A.           Trees.
Q.           Yes, I know.
A.           Yes.
Q.           That’s the point.
A.           Yes.
Q.           You do understand that, don’t you?
A.           I do.
Q.           Right, in order to get the removal of both trees –
HIS HONOUR
Q.           This means that there’s more than one?
A.           Yes.
PARKER
Q. So the evidence you gave yesterday that the crack was in existence before the second tree was removed –
A.           Yes.
Q.           – was not correct, was it?
A. There were cracks in existence before the second tree was removed.
Q. This crack is what you said was in existence before the second tree’s removed?
A.           Yes.
Q.           And that’s not correct, is it?
A.           No, it is correct.
Q. I see, well then what you’ve told Mr Cook was not correct, is that right?
A. No, we’ve told Mr Cook that the cracks were not in existence before the removal of the trees.
Q.           Both trees?
A.           Trees.
Q.           That’s the point?
A.           Yes.
Q.           You understand?
A.           Yes.
Q. It’s not consistent with your evidence to the court yesterday that the crack was in existence after the first tree was [lopped]?
BATEMAN: Well I object to that. It’s not inconsistent at all.
…
HIS HONOUR: You’re quite correct Mr Bateman, that in a matter of English, that prior to the … (not transcribable) of tree removals could also refer to the existence of one tree being removed. It could, but it’s inconsistent with her answers on page 4, that’s the point.
PARKER: Yes, and that’s why I asked her whether this was a further picture of the same thing.
HIS HONOUR: Yes, that’s right, exactly.”
The evidence given by Mrs Pollard in cross-examination conflicts with the report of Mr Keighran, an engineer (Exhibit 8) in which it was stated that Mrs Pollard had said that the damage had appeared “approximately 6 weeks after the removal of the trees”.
In any event it is clear that after November 27 when the pistachio nut tree was removed the Pollards told the Council that their property had sustained damage.
By October 2003, the Pollards had adopted what counsel for the Council described as a “combative approach” to the Council. On 1 October 2003 the Pollards’ solicitors wrote to the Council criticising its DA approval process and complaining about the possibility of damage.
On 15 October 2003 officers of the Council, including Mr Stanger and Mr Albury, met with Mr Wilson to discuss the Pollards’ concerns. The trial judge appeared to accept that Mr Wilson informed Mr Stanger at this meeting that the pistachio nut tree was going to be removed whether Council consented or not. On 17 October 2003 the Council responded by letter to the Pollards’ solicitors, stating that the pistachio nut tree was not on the Council’s Significant Tree Register (which I discuss further below) and that its removal was a private matter.
On 20 October 2003 Mr Stanger updated Mr Pollard as to the discussions he had had with Mr Wilson on 15 October 2003. The Pollards again expressed concern about the proposed developments at 61 Tamworth Street. They also spoke to Mr Murray Wood, then Manager, Horticulture Services of the Council “sometime in October” to enquire about the requirements for a tree to be listed on the Significant Tree Register. The Pollards also received, as it turns out incorrect advice, from the Heritage Office of NSW that the tree may have been a red bloodwood, which may have made it worthy of protection. After receiving this advice they placed a nomination with the Council for the tree to be included on the Significant Tree Register. That nomination identified the tree as a “red bloodwood”. It was received by the Council before Mr Wood had inspected the tree. On Friday 24 October 2003 Mrs Pollard contacted Mr Wood and requested that he personally inspect the tree.
Mr Wood met Mrs Pollard on the site on Monday 27 October 2003. He identified the tree as a pistachio nut tree and concluded that it was likely, having regard to the position of the tree, that it would have originally been part of the property at 63 Tamworth Street. For that reason he believed there may have been merit in an application to have the tree listed on the Significant Tree Register. However, it was his evidence that by this stage 40% to 60% of the root plate of the pistachio nut tree had been removed and Mr Wood considered that this constituted “significant root damage”. He concluded that the tree would decline which would likely necessitate its removal within 5 years. Because pistachio nut trees are not uncommon in the Dubbo Local Government Area and given the likely decline of the tree, Mr Wood advised Mrs Pollard that it was not appropriate to place the tree on the Significant Tree Register.
On 31 October 2003 Mr Wilson provided to the Council some landscaping plans, which the Council forwarded to the Pollards on the same day. The Council next received a letter from the Pollards’ solicitors complaining that objections had not been called for in relation to the approved DA. This was of course true of the plans showing the modifications to the fence. The Council responded to this by letter dated 10 November 2003.
On 7 November 2003 the Council wrote to the Heritage Office of NSW outlining the reasons why it had determined not to make an interim heritage order with respect to the tree.
Thereafter Mr Pollard attempted to lodge a second STR nomination with Council, but it was not accepted.
On or around 18 November 2003 Mr Wilson contacted Mr Stanger to discuss the removal of the pistachio nut tree. After consulting with relevant personnel including Mr Chris Dwyer (the Council’s Development Assessment Services Supervisor), Mr Doug Herd (the Council’s Director of Environmental Services) and Ms Sophie Read (the Council’s Heritage Advisor), Mr Stanger informed Mr Wilson that the Council would not prevent Mr Wilson from removing the tree because “in council’s opinion [Mr Wilson] was entitled to remove it”. Mr Stanger recommended that Mr Wilson contact the Pollards to let them know of his plans, and stated that “[a]ny damage done to the property will be your responsibility”.
Removal of the pistachio nut tree
The pistachio nut tree was removed in two stages on 24 and 27 November 2003. Mrs Wilson was not present when any work was done to the tree. Mr Cook, a civil and structural engineer engaged by the Pollards, observed some of the lopping and removal on both dates.
On 24 November 2003, Mr MacKillop, a contractor hired by Mr Wilson, lopped the tree with a chainsaw, reducing it to a stump which the trial judge described as “some metres” in height. The evidence of Mr Wilson, who was present at the time, was that the stump was “about [a] metre” in height. There is no need to resolve this inconsistency. Mr MacKillop and his assistants lowered each branch segment to the ground by rope. Mr Pollard gave evidence that he arrived during the activities and told Mr MacKillop to stop the lopping operations.
Mr Maas, a contractor hired by Mr Wilson, gave evidence that before any attempt was made to remove the stump, the roots had been fully excavated in a square.
Mr Wilson’s evidence was that he had cut one major root with an axe but otherwise assumed a supervisory role. His evidence was that he took care to make sure that all roots going to the Pollard property had been severed. He agreed that he was, on the Council’s instructions, being especially careful not to damage the Pollard property because he was aware that the Pollards did not wish the tree to be removed.
There is a significant factual dispute as to the process of removing the stump of the pistachio nut tree. The trial judge remarked as follows:
“[36]On 27 November 2003 Mr Maas removed the stump of the pistachio nut tree. There is in evidence, a DVD, which shows him using an excavator to dig a trench around the stump. Mr Maas said that he excavated it carefully and that he made an excavation around the tree to a depth of 300 to 600 millimetres. Mr Maas said that Mr Wilson cut the roots and the stump was easily knocked over and removed by him.
[37] Mr Stanger noted that the stump had been removed with great care. He noted that the tree roots had been cut prior to it being removed. The excavator was carefully exposing the root, said Mr Stanger, and an axe or chain saw was used to cut the roots before continuing.
[38] Mrs Pollard observed this activity and confirmed that that was the activity which took place. Mr Cook agreed that if a tree stump was removed in this manner, that is, exposing the roots and cutting them off, it was the appropriate way to undertake the task.”
Although his Honour’s reasons are brief it is apparent that he accepted the relevant evidence of Mr Maas, Mr Stanger, Mrs Pollard and Mr Cook. I see no reason to disturb his Honour’s findings, apart from one inaccuracy. In paragraph [38] of his reasons his Honour states that Mrs Pollard “confirmed” the manner by which the pistachio nut tree was removed. However, this is not entirely accurate. She did not confirm that the tree was easily removed. The Pollards allege that the trench was not completely or properly excavated. When the excavator was applied to the stump, Mrs Pollard’s evidence was that it resisted, causing the excavator to wobble and some roots to snap.
During and after the works to the jacaranda tree Mr Wilson directed that photographs be taken as a record of the work done. The photographs were taken with Mr Wilson’s camera. They show:
Mr Maas using an excavator to remove the stump (which is lying on its side);
A person measuring the depth of the trench as 700 millimetres from ground level;
The large root that Mr Wilson severed with an axe;
The trench between the stump and the Pollard property boundary (it appears from the photographs that all roots had been severed); and
The root ball, with many exposed roots which have been severed.
The pleadings
The Pollards pleaded that the cracking and other damage to their property was occasioned “by reason of the negligence of the (first respondent) in carrying out the removal of the trees, excavation, and partial demolition of the retaining wall.” Although reference was made in the pleading to the retaining wall it was not an issue at the trial. The alleged negligence of Mrs Wilson was particularised by reference to her actions in “removing the trees.” However, as the jacaranda tree was not removed but only heavily lopped and its roots possibly disturbed the only relevant issue was whether the removal of the pistachio nut tree was the cause of the damage to the Pollards’ house. That damage was said to have been caused by:
(a)Failing to sever the surrounding roots of each tree before their attempted removal.
(b) Using excessive hydraulic/mechanical force to remove the trees.
(c) Failing to contract a competent horticulturist to remove the trees.
(d)Failing to have any or any sufficient regard to the proximity of the trees to the Pollards’ property.
(e)Failing to exercise reasonable care and skill in the removal of the trees and the carrying out of the excavation/partial demolition of the retaining wall.
(f)Failing to shore, adequately or at all, the retaining wall during its partial demolition.
(g)Failing to retain expert engineering advice in respect to the excavation/partial demolition of the retaining wall.
(h)Failing to contract a competent building to carry out the excavation/partial demolition of the retaining wall.
(i)Carrying out building works without having the necessary skill and knowledge to do so.
In relation to the Council the Pollards pleaded that it was “negligent in discharging its statutory duties”. That negligence was particularised in the following terms:
(a)Failure to include the first property on the Heritage Plan – character conservation zone.
(b)Failed to ensure the Development Application was correctly and fully completed before issuing the Construction Certificate.
(c)Causing, permitting or allowing the building work to be carried out without knowing who was doing it, or the manner in which it has been done.
(d)          Failing to carry out adequate inspection of the building works.
(e)          Failure to act on the Pollards’ concerns.
(f)           Permitting or allowing the removal of trees.
The grounds of appeal
The Pollards’ amended notice of appeal identified seven grounds of appeal falling into three broad categories although with some overlap. The categories are:
(a)Procedural matters concerning the application to amend the pleadings (grounds 1(e) and 4), the rejection of the evidence of Mr Botfield (ground 5) and the rejection of the application for the trial judge to disqualify himself (ground 6);
(b)The failure to state reasons and make findings (ground 1(f), ground 2 and grounds 3(b), 3(d), 3(f)); and
(c)Substantive errors of law (ground 7, ground 1, ground 2, ground 3(a), ground 3(c)).
The grounds were expressed as follows:
1.            In respect of Mrs Wilson, the trial judge erred:
a.in finding that Mrs Wilson by reason of the fact that others physically performed the works could not perform any act or fail to perform an act that could constitute negligence;
b.in failing to find Mrs Wilson’s husband’s performance of works and that of the other contractors retained were acts, omissions and conduct that was legally attributable to Mrs Wilson and/or were legally relevant to the liability of Mrs Wilson;
c.in failing to consider and state reasons as to the liability of Mrs Wilson as an occupier of the premises and lands where the works were performed in circumstances where those works were being conducted by Mrs Wilson;
d.in finding that the first and second appellant failed to establish that Mrs Wilson owed a duty of care to the first and second appellants and, consequently, that there was no breach of duty of care;
e.in failing to hear and determine a claim against Mrs Wilson based upon nuisance, including the matters raised in ground 4 below;
f.in failing to state reasons and/or make necessary primary and secondary findings of fact as to Mrs Wilson’s liability; and
g.            in failing to find Mrs Wilson liable.
2.            In respect of the Council, the trial judge erred:
a.in failing to consider and state reasons as to the liability of the Council;
b.in failing to state reasons and/or make necessary primary and secondary findings of fact as to the liability of the Council;
c.in reproducing the verbatim text of the Council’s counsel’s written submissions;
d.in finding that the first and second appellant failed to prove their case against the Council, on the balance of probabilities, which means that there is a verdict for the Council.
e.            in failing to find the Council liable.
3.            In respect of quantum, the trial judge erred:
a.            in misapprehending the factual and legal relevance of:
i.the movement in the driveway and the lack of a claim in respect of the driveway;
ii.the absence of a temporal complaint of damage to the premises and the work done to the jacaranda tree;
iii.the complaint concerning the potential of damage to the premises upon work done to the pistachio tree;
iv.the absence of temporal damage to the premises at the time of the removal of the pistachio tree;
b.in failing to make necessary primary and secondary findings of fact and state reasons as to:
i.the manner of the removal of the pistachio tree, including having proper regard to the expert evidence relevant to that mater;
ii.the damage at the premises and the cause of that damage, including having proper regard to the expert evidence relevant to that matter;
iii.the measures necessary to remedy the damage at the premises caused by the works, including having proper regard to the expert evidence relevant to that matter.
c.in finding that the first and second appellants did not prove on the balance of probabilities that the cracking to the external skin of the cavity wall on their house and other cracking is a result of the removal of the pistachio nut tree and the lopping of the jacaranda tree.
d.in finding, without stating any reasons and or making necessary primary findings and secondary findings of fact, the first and second appellant did not prove on the balance of probabilities any of the alleged particulars of negligence;
e.in determining quantum by determining whether the alleged particulars of negligence had been proved on the balance of probabilities;
f.in assessing damages in the sum of $16,500 without stating proper reasons as to that assessment including the failure to state reasons as to the acceptance of an expert opinion in preference to another expert opinion;
4.            The trial judge erred:
a.in refusing the first and second appellant’s application for leave to amend the statement of claim filed 18 August 2006 to include a cause of action based upon nuisance against Mrs Wilson; and
b.in failing to afford the first and second appellants a proper hearing in respect of that application, including failing to afford the first and second appellants the opportunity to make proper submissions.
5.            The trial judge erred:
a.in refusing the first and second appellant’s application to admit the written reports and oral evidence of Mr Botfield;
b.in failing to afford the first and second appellants a proper hearing in respect of that application, including failing to read the written reports of the expert prior to determining the application.
6.The trial judge erred in failing to disqualify himself, including by purporting to provide additional reasons for that decision in the reserved judgment.
7.The trial judge erred in finding that the first and second appellants “would have to have succeeded against both [respondents] to have recovered at all”.
Causation – grounds 2(d), 3(a) and 3(c)

Before addressing the other grounds of appeal it is important to understand the evidence and the trial judge’s findings with respect to causation. There was evidence of a building inspection of the Pollard house in July 1999. The report of that inspection indicated and the trial judge concluded from it that at that time the eastern side of the Pollard premises showed evidence of cracking of far greater significance than the cracking evident in 2004 in the western wall. Presumably the cracks on the eastern wall are due to natural movement of the soil although Mrs Pollard suggested that it may be due to the weight of some wine casks stored at the premises. The Pollards have made no effort to have the cracks in the eastern wall repaired. The trial judge accepted that cracking was observed in the western wall after the work was done on the trees. However he did not accept that the Pollards had made good their claim that the cracking was caused by the activities with the trees. As his Honour’s determination of the cost of repairing the cracking makes plain, the cracking is modest. His Honour was not persuaded that there are any problems with the fundamental integrity of the wall.
As I have indicated there was some ambiguity in the Pollards’ evidence as to when the damage first appeared. Mr Stanger, who spoke with Mr Pollard on 19 September 2003 and again a week later, reported that Mr Pollard had expressed concern about potential damage but that he expressed no concern about actual damage. Mrs Pollard first gave evidence that the damage appeared “a few weeks” after the jacaranda tree was cut back. However she admitted in cross-examination to having told Mr Cook that the damage “was not visible prior to the removal of the jacaranda tree and the pistachio tree”. She conceded that the damage was not present prior to the removal and the attempted removal of the trees”. She had also told Mr Keighran that damage had appeared approximately six weeks after the pistachio nut tree had been removed.
The trial judge’s findings as to damage and causation are detailed at paragraphs [39] to [51] of his reasons. His Honour concluded that there was little evidence which suggested that the lopping and removal of trees on the Wilson property was the cause of any cracking in the Pollards’ house. His Honour said:
“[46]Putting it at its highest, the small cracking evident one has to infer was as a result of the either [sic] the removal of pistachio nut tree and/or the lopping of the jacaranda tree, on the basis that Mr and Mrs Pollard say that those cracks were not there before, but they were there afterwards.
[47]The cracking on the eastern side which no-one has attributed to or suggests was as a result of the action of the removal of the tree, rather than some other process such as the uplifting caused by other trees near the house, does not sit well with that hypothesis, especially as I accept that the eastern wall, as I say, unaffected by the lopping or the removal, has the worst crack.
[48]The only damage complained of by the Pollards immediately was the uplifting of the driveway and as I say they have not claimed any damages for the driveway.
[49]If there was some nexus between the tree removal and lopping, especially the jacaranda tree incident, one would expect it to have occurred immediately on the tensioning of the roots of the jacaranda tree.
[50]We really don’t know whether the jacaranda tree roots spread across to the Pollard’s [sic] house or just their driveway.”
The trial judge’s ultimate finding was expressed in the following terms:
“Therefore, I am not satisfied that the plaintiff [sic] have proved on the balance of probabilities that the cracking of the external skin of the cavity wall on their house and other cracking is a result of the removal of the pistachio nut tree and the lopping of the jacaranda tree.”
In my view these findings cannot be disturbed. It is significant that no one has explored the foundations adjacent to the western wall of the Pollard house and whether the roots of the trees extended that distance is unknown.
By the time work came to be done to the pistachio nut tree concerns had been raised by the Pollards. It was therefore inevitable that considerable care would be taken in its removal. It was at the suggestion of the Pollards that Mr MacKillop was engaged to lop the pistachio nut tree. The Pollards both observed the work being done as did Mr Stanger. In these circumstances there is no difficulty in accepting, as Mr Maas contended, that the trench around the tree was carefully excavated so that the stump’s removal did not upset the tree roots. Mr Wilson said that Mr Stanger had told him to “take care”. This is confirmed by Mr Stanger’s record of conversation which states:
“Site visit 8:45am 27/11/03 onsite was BW, 2 x Maas excavation workers and a number of others painting the front fence. It was noted during the inspection that great care was being taken in cutting root system (ie excavator carefully exposing roots and axe/chainsaw used to cut roots before continuing) … I advised BW to take care and indicated my concern about him causing damage to adjoining owner. BW advised he is very aware of this matter and advised he would/will take extreme care and would not do anything ‘silly’ (ie resist forceful removal).”
Although Mr Stanger admitted in cross-examination that the contents of this record could have been relayed to him by someone else I am satisfied that Mr Stanger did advise Mr Wilson to take great care and that from what he observed in his site visit, the excavation was being conducted carefully.
Mr Wilson had photographs taken of the works as they were taking place and said, as would seem inevitable, that he was “especially careful” to avoid damage to the Pollard property. In cross-examination Mr Wilson admitted that he did not see what roots were encountered by the excavator bucket. However, this is to be expected. Until the trench had been completely excavated, the roots remained obscured by earth.
Counsel for the Pollards drew attention to what appeared to be a second major tree root which had been severed, but not by Mr Wilson. The implication is that this root was severed by the excavator bucket. Counsel for the Pollards suggested that the use of the excavator and excavator bucket to sever roots “was likely to cause a disruption of the roots going over onto the Pollard’s [sic] property”. Mr Wilson agreed that it would cause such disruption “if we hit anything major” but denied that damage to the Pollard property was for this reason foreseeable.
There is no evidence indicating that the jacaranda roots extend to the footings of the Pollard dwelling. In his report Mr Cook states the following:
“Invasive tree root systems often search for a water source such as household drainage systems and often manage to locate roots in pipework through any pre-existing cracks or breaks in the drainage lines. If in fact the tree roots from the removed trees had invaded the plumbing of the Pollard residence, then the act of reefing the trees from the soil without first severing the root extensions could have caused serious damage to the drainage lines which would remain un-noticed as they are not visible to the naked eye.”
Mr Cook gave evidence and the proposition is obvious that the closer a tree is to a structure such as a house, the more likely that the roots will extend to and penetrate that structure. Because all major water sources including the kitchen, laundry, WC and master bedroom ensuite were situated on the western side of the Pollard property, Mr Cook appears to have assumed that the jacaranda roots extended to the Pollard property. However, Mr Cook formed his views on the basis of what the Pollards had told him. He could not state whether or not the jacaranda roots had penetrated the foundations of the Pollard house. Counsel for the Council elicited the following evidence in Mr Cook’s cross-examination which makes plain the lack of objective evidence which could support Mr Cook’s theory:
“Q. But it’s correct to say that you have made some assumptions that, for example, the sewer lines might be cracked but you don’t know do you?
A. I suspect they are because there’s leaking in the shower and that indicates there’s been movement of the slab. More than likely sewer lines are fractured and that’s allowed the slab to drop in that vicinity.
Q. I’m sorry my question was that you don’t know though do you?
A.           No. That’s why it’s a contingency item.
Q. So when you said in your report that if the tree roots had entered the sewer lines then – and were removed in the fashion that you’ve been told that the roots were removed in, that that could have caused damage to the Pollard’s [sic] property. But the fact is you don’t know whether tree roots were in the sewer do you?
A. No. And the roots could also extend underneath and through the foundations. If they are brick foundations as mooted those tree roots can also penetrate through the mortar between the existing brick foundations if there’s mortar there and if they’re pulled, I’m not saying it was only the pipes, it could also pull the foundations as you pull the roots.
Q.           No, I was just asking about the pipes?
A. About the pipes. The likelihood of the tree roots ..(not transcribable).. the pipes in my opinion is high.
Q.           But you don’t know?
A.           No.
Q. And you’re not aware of anyone putting in an electric eel or spending a couple of hundred dollars to put—
A.           A sewer camera through.
Q. A sewer camera through to see if there are roots in the pipes?
A.           No.
Q.           Or to see if the pipes are cracked?
A. Well the pipes, the roots could’ve been pulled out of the pipes by now, who knows.
Q. No, but my question was you’re not aware of anyone putting a camera in the pipes?
A.           No I’m not.
Q. To see whether the pipes are cracked or to see whether there are roots in the pipes?
A.           No.”
At trial, counsel for the Pollards acknowledged that there being no direct evidence that disturbing the pistachio nut tree had damaged their house it was necessary to infer that because of the temporal and physical proximity of the cracks to the tree works, the removal of the pistachio nut tree or disturbance of the jacaranda, or both, were the cause of the cracking. In my view that inference cannot be made.
There was no dispute at the trial that the Pollard residence is unlikely to have footings which conform to contemporary building standards. However, without knowledge of the detail of the foundation or even whether the tree roots extend to the Pollard house it is impossible to conclude that anything done on the Wilson property has caused damage to the Pollard property.
In my opinion the Pollards’ case against both respondents fails because they failed to establish that anything done on the Wilson property actually caused damage which is now said to be evident in their own house.
Procedural matters – grounds 1(e) and 4
On the first day of the trial the Pollards sought to amend their statement of claim to plead a cause of action in nuisance. The application was opposed by both respondents. The form of the proposed amendment was as follows:
“Further and in the alternative the cracking and other damage occasioned to the first property resulting from the excavation activities and the tree removal on the second property constituted an act of nuisance for which the defendants are responsible.”
No further particulars were provided.
In opposing the amendment, counsel for Mrs Wilson submitted that the mechanism of the alleged damage as opened in the Pollards’ case in negligence was incompatible with the mechanism now being suggested in nuisance. Counsel for the Pollards identified the nuisance as being occasioned by the removal of the pistachio nut tree which allowed moisture to enter the subsoil on the Pollard property, causing the soil to react which occasioned damage to the dwelling. Counsel emphasised that the pleading alleging negligence was confined to an allegation that the cracking and other damage resulted from the excavation activities and not from some subsequent reaction in the soil.
Counsel for Mrs Wilson said that if the amendment was to be allowed, there were factual issues which had not previously been explored which required investigation. It was further suggested that the allegations may raise questions of contribution, requiring the joinder of the contractor who had undertaken the work. Counsel for the Pollards responded by submitting that the factual matrix for the claim in negligence was the same as that in nuisance.
The trial judge did not accept the Pollards’ submission. His Honour indicated that if the amendment were to be pursued he would allow an adjournment with the consequence that the matter could not proceed and would be stood over for a period of time. His Honour indicated that if this occurred he would order the Pollards to pay the costs of the respondents which were thrown away. When this was made plain to the Pollards’ counsel, the application for an amendment was not pursued.
My understanding of the evidence which was either tendered or was available to be tendered at the trial indicates that his Honour’s response to the application was appropriate. The case in negligence was substantially constructed upon an allegation that the disturbance of the jacaranda tree but, more particularly, the removal of the pistachio nut tree was undertaken without ensuring that when the roots were disturbed the foundations of the Pollards’ house were not disturbed. The mechanism suggested for the allegation of nuisance was quite different and if it was to be pursued would have required careful consideration by the respondents and their experts. The trial judge was correct to identify that an adjournment would have been necessary. The cost of that adjournment would properly have been ordered to be paid by the Pollards.
A perusal of the transcript of the trial indicates that the issues in relation to the application for leave to amend were appropriately explored. There is no substance to the submission that the trial judge did not allow the Pollards’ position to be appropriately ventilated.
These grounds of appeal fail.
Ground 5 - The report of Mr Botfield
The Pollards retained Mr Botfield to give evidence in relation to the impact of the removal of the trees on the Pollards’ house, the appropriate method of removing the trees as well as the approval process required by the Council.
Mr Botfield had previously worked for the Council during which time he held delegated responsibility for the management of the Council’s Tree Preservation Order. When that Order was abolished he was responsible for managing the Significant Tree Register. He holds a Bachelor of Applied Science (Parks, Recreation and Heritage). He prepared a written report in which he said that he had two decades of experience in plant production and landscape development. He has taught horticulture at various TAFE campuses.
Counsel for the Pollards sought to tender Mr Botfield’s report and call him to give oral evidence. Objection was taken to the report for various reasons. It was contended by counsel for the Pollards that Mr Botfield was qualified to give evidence as to “the physiological relationship between roots and structures, in particular the structure which comprised the foundations of houses.” Emphasis was placed on the fact that Mr Botfield had experience with the Council’s previous Tree Preservation Order and the current Significant Tree Register, based on his prior employment with the Council.
Objection was taken to the report by counsel for Mrs Wilson, firstly because it was submitted that Mr Botfield was not appropriately qualified to give expert evidence on the matters identified and secondly, because it was submitted that his report failed to satisfy the requirements of the Evidence Act 1995 insofar as it failed to expose the reasoning process that underpinned his conclusions. There was also a suggestion that the matters about which the witness proposed to give evidence were not matters of specialised knowledge; rather they were matters about which judicial notice could be taken.
Counsel for the Council also objected to Mr Botfield’s report on several bases. Firstly, it was argued that his experience with an earlier Dubbo City Council policy did not qualify him to offer any general evaluation about "council processes". Secondly, it was said to be unclear which aspects of the report were assumptions that had been made, which were facts that had been perceived, and which were opinions that he formed: see Makita (Australia) Pty Ltd v Sproules (2001) 52 NSWLR 705 (“Makita”). Thirdly and related to the first ground of objection, it was argued that the opinion proffered by Mr Botfield, particularly in relation to the administrative processes of the Council, was not a matter of which Mr Botfield possessed specialised knowledge. Fourthly, it was submitted that the report did not set out the factual basis or the process that had been adopted by Mr Botfield in conducting his enquiry and reaching his conclusions.
In response, counsel for the Pollards submitted that the expertise of Mr Botfield could not be confined in the fashion contended by the respondents. It was submitted that the witness' academic and professional qualifications gave him specialised knowledge in respect of both the physiological characteristics of the roots of trees as well as the processes adopted by the Council in respect of tree preservation. However, no effective response was made to the alleged failure to conform to the principles identified in Makita, namely the need to identify the assumptions relied upon and to explain the reasoning process that resulted in the conclusions reached in the report.
The trial judge rejected the report. His reasons were brief. His Honour said:
“I won’t allow the report. I don’t find the report satisfies the requirements of Makita v Sprowle that the assumptions are clearly set out, that the intellectual process of the expert is available to me to either agree with his opinions or to disagree with them. I reject the report.”
It is apparent from the transcript, and the Pollards’ complaint, that his Honour rejected the report without first reading the document in its entirety. His Honour only read the portions to which he had been referred by counsel for the respondents. The report consists of nine pages. His Honour was not referred to and, it would seem, did not read pages one, eight and nine.
It was submitted by the Pollards to this Court that there can be no doubt that Mr Botfield was qualified to assist the court with his opinion in relation to a variety of relevant matters. They were catalogued as follows:
a.The species of the trees and their general horticultural characteristics;
b.The characteristics of the trees’ feeding root zone extending beyond the canopy of the trees;
c.The characteristics of feeding roots (fine) and water seeking roots (major structural);
d.The characteristics of the root system that may develop in temperate regions (very significant);
e.            The likely maturity of the trees;
f.The characteristics of root system by trees in competition with other trees (large and roots extending further);
g.The characteristics of root systems vis-à-vis impervious clay (do not penetrate and run laterally);
h.The characteristics of the soil (sandy loam to 450mm and then clay) at the locality of the trees and its effect on the roots;
i.At the locality of the trees any structure within 10m of the drip line could be influence and affect [sic] by the roots;
j.At the locality of the trees the probable leaking of earthenware pipes would encourage and promote root development in and around the buildings and foundations;
k.Disturbance of roots affects the pipes and structures and changes the characteristics of the previously stable environment;
l.The former tree preservation regime and the current significant tree register and their operation;
m.The manner in which the significant tree register is administered by an authority;
n.            The criteria for inclusion on the register and the evaluation process;
o.The appropriateness of the Council’s employee in refusing to accept the application for inclusion of the register;
p.            The probability of inclusion onto the register of the tree;
q.Other similar trees on the register in the area of the locality of the trees;
r.The appropriateness of the omission of notification of the removal of the trees in the development application process; and
s.The tearing pressure applied to break roots would not be localised and would extend along the root system.

It was further submitted that Mr Botfield’s opinion was clearly based on his training, study and experience and that his assumptions and reasoning process were sufficiently disclosed. It was submitted that by rejecting the report his Honour denied the Pollards procedural fairness.
The requirements of s 79 of the Evidence Act were authoritatively considered in Makita by Heydon JA (with whom Powell and Priestley JJA agreed). His Honour identified at [59] the requirement that the report comply “with a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions.” In a passage which has been referred to many times his Honour said at [85]:
“In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of ‘specialised knowledge’; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be ‘wholly or substantially based on the witness's expert knowledge’; so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v The Queen (1999) 197 CLR 414 on ‘a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise’ (at [41]).”
His Honour’s remarks have not gone uncriticised. In particular in the Full Court of the Federal Court in Sydneywide Distributions Pty Ltd v Red Bull Australia [2002] FCAFC 157; (2002) 55 IPR 354 at 356-357 Branson J suggested that the criteria adopted by Heydon JA may impose a “counsel of perfection.” It is unnecessary to explore that debate in this appeal.
In my opinion in the present case, from either perspective, the evidence was rightly rejected. I accept that Mr Botfield does have specialised knowledge in relation to horticultural matters, including the relationship between the growth habit of trees and the micro climate and characteristics of the soil in the location where they have been planted. I also accept that he has experience in the assessment of the significance of trees and the process of assessing that significance for the purposes of the prospective inclusion of a tree on the Council’s Significant Tree Register. But the document he prepared has more fundamental problems.
After a brief discussion of some of the issues at the conclusion of his report Mr Botfield purports to give an opinion about six separate matters. They were stated in the following terms:
“(i)There is a significantly high probability that the physical activities associated with the removal of the trees impacted on the structure of the house at 63 Tamworth Street.
(ii)The trees at 61 Tamworth Street should have been considered to be part of the heritage landscape of the area.
(iii)In all probability the value of the property at 63 Tamworth Street has been diminished by the removal of the trees at 61 Tamworth Street in terms of its heritage context and the physical consequences.
(iv)It is my opinion that there are notable gaps and discrepancies in the manner of assessment, applied process and operation of Council’s procedures in regard to the Significant Tree Register and the Development Application Procedures in relation to this locality.
(v)It is my opinion that in all probability had the Development Application Procedure and the Significant Tree Register process been properly adhered to, Council would have placed the trees on the Significant Tree Register.
(vi)Forgoing the above, it is my opinion that proper due diligence was not carried out to determine the most appropriate manner of removal to be applied to this location which resulted in significant disturbance to the surrounding terrain.”
In my judgment Mr Botfield does not provide in his report an appropriate basis for any of these opinions. Although he may have been qualified to give an opinion about the relationship between tree roots, drainage problems and the foundations of buildings, there are virtually no facts identified which could provide a foundation for his opinions. To the extent that he seeks to explain the basis for his opinion it is confined to theory built upon assumptions as to the nature of the building foundation, drainage arrangements and soil type. He expresses opinions as to value, although he is not a valuer. He offers opinions as to actions which he says the Council would have taken which are nothing more than speculation framed out of his own belief as to the action the Council should have taken.
In my judgment his Honour was correct to reject Mr Botfield’s evidence.
Apart from a submission that Mr Botfield’s report should have been admitted into evidence counsel for the Pollards submitted that his Honour failed to give proper consideration to its admission. It was submitted that because he did not read every page of the report his Honour failed to give the Pollards a proper hearing in relation to its admissibility.
It may be that his Honour did not read all of the report, although given its relative brevity it is not difficult to quickly peruse and acquire an understanding of its form and contents. Even a cursory reading is sufficient to reach the conclusion that the opinions Mr Botfield expressed could not be admitted. This complaint by the Pollards is without substance.
Ground 6 - application for disqualification
The test which must be applied in Australia to determine whether a judge is disqualified for the appearance of bias (the apprehension of bias principle) is whether a “fair-minded lay observer” might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: see Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11] (“Johnson”) and the authorities cited therein. The "fair minded lay observer" is not completely unaware of the trial process. He or she will be aware that modern judges in the interests of effective case management may intervene and may engage in robust dialogue with the bar: Johnson at [13], [46]. The observer is also assumed to understand that when, during the course of proceedings, a judge expresses views which suggest that he or she may be inclined to a particular view of any issue, judges are not taken, on that account alone, to have prejudged any outcome: Johnson at [13], [46].
The relevant principles were further discussed and explained in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337. The joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ at [8] explains that there is a two step process:
“First it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.
When pressing the application that his Honour disqualify himself, the Pollards relied upon eight matters, or incidents, which occurred during the course of the trial. However, the first and second matters can be dealt with together. I have set them out below together with my conclusions in relation to each matter.
1. The application to amend to add a claim in nuisance
The trial judge heard full argument on this application before informing the Pollards that should they wish to press for the amendment, then they could so, but would be faced with an adjournment and would have to pay costs. No substantive argument was advanced to this Court as to why the notional lay observer might reasonably apprehend that the trial judge, by reason of this decision, might not decide the case on its merits.
2.The refusal to permit Mr Cook to give observation evidence as to the root ball of the pistachio nut tree
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
Again this criticism is misconceived. The relevant exchange appears in the transcript. That exchange could not leave the fair minded lay observer under any reasonable apprehension that the trial judge was suggesting that the Pollards’ counsel was trying to trick the witness. In fact his Honour specifically stated that he was not suggesting that that was the case.
7. The reference to appeal proceedings
Again there is no doubt that throughout the case the trial judge commented that the cost of the proceedings would be such that, if the Pollards were unsuccessful, the costs orders would potentially require the Pollards to sell their home. Bearing in mind the court’s obligations under ss 56 and s 60 of the Civil Procedure Act 2005, to ensure the just, quick and cheap resolution of disputes and to ensure that costs are proportionate to the importance and complexity of the dispute, the trial judge’s comments were reasonable. His Honour was right to be gravely concerned that the pursuit of the claim was accompanied by a risk of failure which would inevitably prove very costly for the losing party with the costs, especially if there was an appeal, likely to be quite out of proportion to the amount of the claim even at its highest.
In the course of any proceeding, a trial judge is required to make rulings and, where necessary, intervene to impose effective discipline on the parties. Decisions made by a judge may be contrary to the interests of one party. The making of such decisions, even where there are many, does not bespeak bias. The fair-minded lay observer would understand that a judge must make decisions and if persuaded that the correct decision is adverse to one party, must nevertheless make that decision. Neither alone or cumulatively do the matters of which the Pollards complain justify a conclusion that the trial judge should have disqualified himself.
Grounds 1(a), (b), (c), (d), (f) and (g) – the liability of Mrs Wilson
It is convenient to consider these grounds together. The trial judge found that there was no duty of care owed to the Pollards by Mrs Wilson. His Honour’s essential reasoning was that because Mrs Wilson was not involved in any way in the actual physical works, did not carry them out or direct how they were to be done, she could not be liable for any damage occasioned to the Pollard property.
I have previously discussed the evidence as to who carried out particular parts of the works. Mr Wilson himself was involved in the lopping of the jacaranda tree. His involvement in the removal of the pistachio tree was confined to supervision, with the exception of one large main root which Mr Wilson said that he severed. Mr MacKillop carried out the lopping of the pistachio nut tree.
The evidence indicated that Mr MacKillop was engaged for this task after the Pollards had complained about Mr Wilson lopping the jacaranda tree and had requested that further works be carried out by Mr MacKillop because of his professional experience. Mr Maas manipulated the backhoe to create the trench around the tree enabling the roots to be severed and the tree stump removed. As I have indicated earlier in these reasons, the pistachio nut tree was lopped on 24 November 2003 and a stump was left standing. Mr Maas used an excavator to remove the stump on 27 November 2003 under the direction of Mr Wilson. All of the roots running from the pistachio nut tree to the Pollard property were severed by the bucket of the excavator, with the exception of one large root, which was cut by Mr Wilson using an axe. The stump was subsequently removed from the ground and disposed of.
Mrs Wilson pleaded her defence, which includes an admission which was made in the following terms:
“The first defendant admits that it commenced renovation work which involved the cutting down of a tree in August 2003, the removal of a tree in November 2003, some excavation work and the partial demolition of a retaining wall which is situated on the first property.”
Assuming the facts did support a finding of negligence, the Pollards must establish direct or derivative liability on the part of Mrs Wilson. The Pollards have attempted to do so on three bases: agency, vicarious liability, and non-delegable duty. I will deal with each of these in turn. Before doing so, I regret that I have had trouble understanding the precise nature of the Pollards’ submissions on this issue. When it comes to the question of derivative liability for a tortious act, care must be taken to clearly identify the basis upon which the liability is said to attach to the named defendant. Whilst the Pollards submit that Mr Wilson was his wife’s agent they also make the following rather curious assertions in their written submissions including:
“[T]he first respondent and Mr Wilson were both occupiers…”;
“The duty of care owed by each…”;
“Mr Maas was paid for his time and labour and was directed and controlled by Mr Wilson”; and
“Mr Maas, and the other persons except Mr McKillop [sic] … were doing work “representative” of Mrs Wilson and/or Mr Wilson … serving in the enterprise of Mrs Wilson and/or Mr Wilson resulting in the legitimate imposition of liability…”. (emphasis added).
These assertions conceal the need for liability to be meticulously traced from the original tortfeasor through to the named defendant, in this case, Mrs Wilson. As will emerge, the Pollards have not done so.
Personal liability on the basis of agency
In oral submissions, counsel for the Pollards contended that “the people doing the work were doing the works for and on behalf of and as agent of the nominated defendant.”
The Pollards have not articulated the basis upon which they say that the contractors were acting as agents of Mrs Wilson. The written submissions touch on agency in relation to Mr Wilson but not in relation to either contractor. As it happens the evidence indicates that Mrs Wilson had negligible, if any, involvement in the selection and conduct of the contractors. Nor is there evidence that she subsequently authorised their actions in a manner that would render her liable as principal. Indeed the evidence is to the contrary. Mrs Wilson gave evidence of the single-minded and determined nature of her husband. Once he made up his mind to complete a task he had a determination to pursue it and was unlikely to be deterred. Even when the prospect of trouble from the Pollards was apparent, Mr Wilson determined, with appropriate caution, to remove the pistachio nut tree.
The trial judge found that Mr Wilson lacked capacity to create or effect legal relations on behalf of Mrs Wilson. However, he did not detail the findings underpinning this conclusion. His Honour appeared to reject any assumption of an agency between a husband and a wife which was originally sourced in the common law doctrine of necessity. The common law principle was that a wife could act as agent for her husband (not the reverse) and pledge his credit in the purchase of “necessaries” (Phillipson v Hayter (1870) LR 6 CP 38 at 41 per Bovill CJ). The trial judge also referred to the “unwanted effects” that would flow from a “blanket” relationship of agency, concluding that it would be unreasonable to regard the actions of a husband as those of a wife.
There is not currently, nor has there ever been, any general rule of agency as between married or cohabiting couples. The question is whether in the circumstances of a particular case one is the agent of another.

It was submitted to this Court that the Council should not have approved plans which necessitated the removal of the pistachio nut tree “without considering matters relating to the heritage listing (of) the Pollards’ property.” The submission was not developed. However, it is important to remember that there were a number of trees, many of them significant, on both the Pollard and Wilson residences which would not be affected by the proposal. Mr Wolthers, who was engaged by the Council to consider and advise in relation to heritage issues, raised no concern in relation to the trees. The Council was entitled to and did rely on his expertise in these matters.
The Council was first made aware of the Pollards’ concern in relation to the trees in early September 2003. The first meeting with Mr Stanger was held on 19 September. The Pollards’ solicitor wrote to the Council about the pistachio nut tree on 1 October. Mr Wood spoke with the Pollards on 24 October when the discussion was about placing the tree on the Significant Tree Register. The Pollards prepared and lodged a nomination which, repeating the advice they had been given wrongly identified the tree as a bloodwood. Between 27 October and 5 November Mr Wood confirmed that the tree was not a Bloodwood and was in fact a Pistacia Chinensis. Ultimately Mr Wood reports to the Council and does not recommend the inclusion of the tree on the Register, as by this stage it has been substantially cut, imperilling its health. The tree was finally lopped on 24 November and the root ball removed on 27 November 2003.
The submission advanced on behalf of the Pollards is that if the impact of the proposal on the heritage value of the Pollard property had been considered the Council “would have placed the pistachio nut tree on the ‘significant tree register’.” The soundness of this proposition is by no means obvious. Although the tree was likely to have been planted during the early stage of the development of the original garden surrounding the Pollard house it now formed part of the garden of the Wilson house. Mr Wood gave evidence that because pistachio nut trees are common in Dubbo and the tree would not have warranted protection because of its species alone.
If there had been a proposal to place the tree on the Council’s Significant Tree Register it would undoubtedly have been opposed by the Wilsons who would have been entitled to make representations to the Council. Given the fact that no one, including Mr Wolthers, or for that matter the Pollards, had ever previously suggested that the tree warranted inclusion on the Register, I am not persuaded that if an application had been made before the tree had been damaged the Council would have decided to place it on the Register.
The other particulars of alleged negligence in relation to the Council may be shortly disposed of. There is no obligation on a council to supervise work on a building site for which its approval has not been required or given. It may be that if a council in some manner assumes responsibility for supervising the quality of the building work it may have a duty of care to carry out this task without negligence (see Sutherland Shire Council v Heyman (1985) 157 CLR 424; [1985] HCA 41; Parramatta City Council v Lutz (1988) 12 NSWLR 293; Pyrenees v Day (1998) 192 CLR 330; [1998] HCA 3; Ryan v Great Lakes Council [1999] FCA 177; Makawe Pty Ltd v Randwick City Council [2009] NSWCA 412). But that was not the present case. The lopping of the jacaranda tree and removal of the pistachio nut tree did not require the Council’s approval and the Council did not assume control of or in any manner supervise that work. Although in the proper discharge of its function the Council should have considered the complaints of the Pollards, it did this and ultimately, and so far as I can see, appropriately decided to take no action.
There is one other matter. The allegation made against Mrs Wilson is that the disturbance of the jacaranda tree and the removal of the pistachio nut tree caused damage to the Pollard house. Although the inclusion of the pistachio nut tree on the Register (this was not suggested for the jacaranda) would have the consequence that it could not have been removed, this does not mean that the Council’s negligence (if any) caused the Pollards’ alleged loss. Even if it had been on the Register there was nothing in the evidence to suggest that the pistachio nut tree could not be removed without causing damage.
I have found that appropriate care was taken, but if it had not been, then it would have been the failure to remove the tree in an appropriate manner, not some more remote alleged breach of duty by the Council, that would be the cause of the Pollards’ loss (see March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 514; Bondin v Lamaro [1994] NSWCA 29; MacRae v Stevens [1997] ANZ ConvR 129; Bendix Mintex Pty Ltd & Exxon Ltd, Jsekarb Pty Ltd v Barnes (1997) 42 NSWLR 307; Assaf v Kostrevski [1998] NSWCA 274; Jung v Son [1998] NSWCA 120; Victims Compensation Fund Corporation v Ainsworth [2001] NSWCA 92; Chamberlain v Callaghan and Ors [2004] NSWCA 44; Commonwealth of Australia v Shaw (2006) 66 NSWLR 325; [2006] NSWCA 209; North Sydney Council v Binks [2007] NSWCA 245; Dominello v Dominello [2009] NSWCA 95; Workers Compensation (Dust Diseases) Board of NSW v Smith [2010] NSWCA 19).
For this reason alone the claim against the Council was always destined to fail.
Grounds 1(f), 2, 3(b), 3(d) and 3(f) - failure to state reasons and making findings
It is well settled that a judge has an obligation to provide reasons for his or her decision: Pettitt v Dunkley [1971] 1 NSWLR 376.
Under these grounds of appeal various criticisms are made of the trial judge’s reasons. It is submitted that his Honour failed to state reasons and make relevant factual findings with respect to the liability of Mrs Wilson. Similar criticisms are made of his Honour’s reasons with respect to the liability of the Council. The criticism of the trial judge’s reasons in ground 3 of the appeal are directed toward an alleged lack of factual findings with respect to liability and a lack of proper reasons with respect to damages.
The provision of reasons is a normal, although not universal incident of the judicial process: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667. Failure to provide reasons may result in a miscarriage of justice. The relevant principles are discussed in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278-281 (“Soulemezis”) per McHugh JA and Mifsud v Campbell (1991) 21 NSWLR 725.
In Soulemezis McHugh JA identified at least three purposes served by the giving of reasons for a judicial decision. Firstly “it allows the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge’s decision.” Secondly the giving of reasons ”furthers judicial accountability” and thirdly it “enables practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future” (at 279).
Soulemezis was applied in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430. In that case, as in many, the credibility of the plaintiff was a critical mater. Although the evidence of the plaintiff was significantly corroborated by three witnesses whose evidence was accepted, the trial judge rejected the plaintiff as not credible. The failure of the trial judge to expose a logical reasoning process in support of that finding resulted in a miscarriage of justice. Meagher JA considered the nature of the obligation to provide reasons and said at 441:
“Perhaps the primary reason for an obligation on courts to provide reasons is the fact that a party seeking an appeal may generally only appeal where the trial judge has made an error of law. The absence of reasons or insufficient reasons may not allow an appeal court to determine whether the trial judge's verdict was or was not based on an error of law or an appealable error. However, the provision of full reasons has other benefits.
A failure to provide sufficient reasons can and often does lead to a real sense of grievance that a party does not know or understand why the decision was made: Re Poyser and Mills' Arbitration [1964] 2 QB 467 at 478. This Court has previously accepted the proposition that a judge is bound to expose his reasoning in sufficient detail to enable a losing party to understand why they lost: Clutha Ltd v Risby (Court of Appeal, 26 March 1996, unreported). One reason is obvious: if decisions cannot be understood, a feeling of injustice can arise and, as Justice Brennan of the United States Supreme Court (see P Huxtable, “A Question-Mark Over The Adversarial System” (December 1995) 30 (No 11) Australian Lawyer 17 at 18) recently perhaps overstated: “… Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But injustice makes us want to pull things down.” Aside from the sense of injustice which can be caused, there is a broader interest in maintaining public acceptance of judicial decisions and the judicial system.
The requirement to provide reasons can operate prophylactically on the judicial mind, guarding against the birth of an unconsidered or impulsive decision. It enhances judicial accountability.
The provision of reasons has an educative effect: it exposes the trial judge or magistrate to review and criticism and it facilitates and encourages consistency in decisions. The educative effect does not stop with judges but extends to other lawyers, to government and to the public. Decisions of courts usually influence the way in which society acts and it is trite to point out that it is better to understand why one should act in a particular way.
The provision of adequate reasons will save time for appeal courts both in reducing the number of appeals and in reducing the time taken in considering any appeals.”
His Honour provided further guidance as to the appropriate content of a judge’s reasons at 442:
“It follows, that reasons need not necessarily be lengthy or elaborate: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN (NSW) 34 at 36. The scope of the reasons to be given is, as Mahoney JA said in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386, related “… to the function to be served by the giving of reasons”. Accordingly, the content of the obligation is not the same for every judicial decision. No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.
Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. The obvious extension of the principle in North Sydney Council is that, where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance: Rajski v Bainton (Court of Appeal, 6 September 1991, unreported).
Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.”
The trial judge’s reasons for judgment occupy 52 typed pages. The reasons commence with a brief introductory statement of some of the relevant facts. His Honour does not at this stage attempt any comprehensive analysis of those facts and does not make findings with respect to some issues. He makes few findings as to the events surrounding the lopping of the trees and the removal of the pistachio nut tree. And his findings with respect to the dealings, if any, between Mrs Wilson, her husband and the contractors are skeletal. However, the relevant evidence was not in dispute and I am satisfied from my analysis of the transcript that the issue can be adequately considered by this Court.
His Honour states in summary form the issues which he believed he was required to resolve. They are stated in the following terms:
“Issues
[9]Is the first defendant properly a party? Is Mrs Wilson who, it is clear, did no work in lopping the jacaranda tree and removing the pistachio nut tree, liable for any alleged damage. It is not even clear that she was there on some of those occasions.
[10]Does the second defendant owe a duty of care to the plaintiff and, if so, was that duty breached?
[11]Was the lopping of the jacaranda tree and/or the removing of the pistachio nut tree done negligently?
[12]What, if any, damage was caused by the lopping the jacaranda tree [sic] and/or removing the pistachio nut, or both?
[13]What are the damages, if the negligent interference with of either of those trees caused damage?”
It is apparent that apart from considering whether Mrs Wilson was a proper party his Honour did not recognise any issue in relation to her prospective liability. With respect to Mrs Wilson his Honour’s consideration was directed to whether, as a matter of law, in the absence of any evidence that she either supervised or undertook any part of the work, she could be liable to the Pollards. His Honour considered, albeit briefly, the Pollards’ submissions that Mrs Wilson was liable on the basis of agency, non-delegable duty and vicarious liability. His Honour rejected each basis for liability.
I confess to some difficulty in understanding his Honour’s reasons. His Honour does not assist the reader by discussing the facts relevant to each issue. Although his Honour stated that both Mr Maas and Mr MacKillop were independent contractors he neither discusses any relevant evidence nor explains the reasoning for that finding. It would seem that his Honour concluded, relying on Sweeney (which concerned the liability of a defendant for the actions of its employees or independent contractors) that, because the work was undertaken by independent contractors Mrs Wilson could not be liable.
Pages 8 to 43 of the reasons consist of a verbatim reproduction of the submissions made by counsel for the Council. His Honour said of the submissions that they were “an excellent analysis of the relevant law” and further said “I agree with that analysis and (counsel’s) conclusion in her written outline of submissions.” After reproducing the document his Honour said (at [26] of the reasons):
“The plaintiff having failed to prove its case against the second defendant on the balance of probabilities, means there will be a verdict for the second defendant and the plaintiff is to pay the second defendant’s costs.”
The submissions made by counsel for the Council are well constructed and the reasoning is sound. However, the conclusions depend upon various assertions as to the relevant facts. Although the assertions are made, his Honour nowhere in his reasons indicates that he has analysed the relevant evidence and himself concluded that the assertions made by counsel are justified by the evidence. He should have done so.
There is one aspect, and it is ultimately the most significant issue in the proceedings in respect of which his Honour’s reasons are adequate. It was the issue of causation: an issue upon which I have already expressed my conclusions. His Honour discussed this issue under the section of his reasons titled, “Was the lopping the jacaranda tree and/or removing the pistachio nut tree done negligently and what if any damage was caused by the lopping the jacaranda tree and/or removing the pistachio nut or both?” [sic].
His Honour’s reasons confirm, as I have related, that the jacaranda tree was substantially lopped but not entirely removed. The pistachio nut tree was entirely removed. Although there was evidence that when work was done on the jacaranda tree the Pollards’ driveway was disturbed, no claim was made for any damage to the driveway. The evidence could not support any relationship between the work on the jacaranda tree and the damage which was alleged to have occurred to the house. Further, his Honour concluded at [50]:
“We don’t really know whether the jacaranda roots spread across to the Pollard’s [sic] house or just their driveway.”
This conclusion is confirmed by my own review of the evidence.
His Honour gives an account of the evidence relating to the removal of the pistachio nut tree. Although his Honour does not make an express finding it is apparent that he accepted evidence which confirmed that this work was carried out with care. Given the difficulties which emerged with the Pollards when work was done on the jacaranda tree it was to be expected that particular care would be exercised when the pistachio nut tree was being lopped and removed. There is evidence in a DVD of the trench being dug around the stump before the roots were cut and the stump “easily knocked over and removed” by Mr Maas. Mr Stanger, who his Honour apparently accepted, observed the works and said in evidence that the stump had been removed with great care. He said that the tree roots were cut prior to the stump being removed an excavator being used to carefully expose the root and an axe or chainsaw used to cut them.
His Honour then made the following analysis of the evidence and expressed his conclusions in these terms:
“[39]There is no evidence that the removal of the pistachio nut tree caused any damage immediately after it had been removed.
[40]Mrs Pollard’s evidence to Mr Keighran was that damage appeared approximately six weeks after these events. She was cross-examined on that and she said that perhaps it was between September and November but the evidence is equivocal. Mr Cook inspected the site in March 2004 and prepared his report, including photographs of the damage.
[41]Mr Keighran inspected the premises on 25 May, accompanied by Mrs Pollard and Mr Cook. Mr Keighran was shown the damage by Mrs Pollard and Mr Cook. The damage allegedly caused by the events was set out in his report as item A. Mrs Pollard showed him the damage which pre-existed the events of 2003 [sic]. He set those out in Item B. Mrs Pollard told Mr Keighran that the damage from Item B was present before 1999.
[42]Exhibit M was a building inspection report at July 1999 of the plaintiff’s [sic] premises. The report identified a hairline crack on the eastern wall and noted that it lacked a damp course, resulting in rising damp. Mrs Pollard identified that hairline crack as being above the laundry. She had been shown a photograph of it by Mr Keighran and agreed that it could not be described as hairline.
[43]The eastern side of the premises, that is the side opposite to where the statement of claim says the damage occurred (the western side), shows evidence of substantial cracking, particularly the crack that was mentioned above, which, in fact, is the most significant of all of the cracks on the entire premises.
[44]The Pollards had made no effort to repair their premises. Mr Samarand and Mr Keighran believe that they should just repair the cracks. Mr Cook believes that the appropriate course is to rebuild the western wall rather than repair the premises.
[45]There is little to associate the lopping and removal of trees to the damage that is apparent in the photographs.
[46]Putting it as its highest, the small cracking evident one has to infer was as a result of the either the removal of the pistachio nut tree and/or the lopping of the jacaranda tree, on the basis that Mr and Mrs Pollard say that those cracks were not there before, but they were there afterwards.
[47]The cracking on the eastern side which no-one has attributed to or suggests was as a result of the action of the removal of the tree, rather than [sic] some other process such as the uplifting caused by other trees near the house, does not sit well with that hypothesis, especially as I accept that the eastern wall, as I say, unaffected by the lopping or the removal, has the worst crack.
[48]The only damage complained of by the Pollards immediately was the uplifting of the driveway and as I say they have not claimed any damages for the driveway.
[49]If there was some nexus between the tree removal and lopping, especially the jacaranda tree incident, one would expect it to have occurred immediately on the tensioning of the roots of the jacaranda tree.
[50]We really don’t know whether the jacaranda tree roots spread across to the Pollard’s [sic] house or just their driveway.”

His Honour then expressed the following conclusion:
“[51]Therefore, I am not satisfied that the plaintiff [sic] have proved on the balance of probabilities that the cracking of the external skin of the cavity wall on their house and other cracking is a result of the removal of the pistachio nut tree and the lopping of the jacaranda tree.
[52]I am not satisfied that the plaintiff has proved on the balance of probabilities any of the alleged particulars of negligence viz
‘Failing to sever the surrounding roots of each tree before their attempted removal.
Using excessive hydraulic/mechanical force to remove the trees.
Failing to contract a competent horticulturist to remove the trees.
Failing to have any or any sufficient regards to the proximity of the trees to the first property.
Failing to exercise reasonable care and skill in the removal of the trees and the carrying out of the excavation/partial demolition of the remaining wall.
Failing to shore, adequately or at all, the retaining wall during its partial demolition.
Failing to retain expert engineering advice in respect to the excavation/partial demolition of the retaining wall.
Failing to contract a competent builder to carry out the excavation/partial demolition of the retaining wall.
Carrying out the building works without having the necessary skill and knowledge to do so.’”
His Honour’s consideration of the issue of damages was brief but I am satisfied he considered the relevant issues. Mr Cook was of the view that to effectively remedy the identified defects the relevant portion of the foundations of the property would have to be stabilised. He was of the view that 30 metres of the western wall of the dwelling should be demolished and reconstructed. The trial judge rejected this view because there was no evidence that Mr Cook had exposed the foundations and found them to be in any way unstable. This seems to me to be an available finding and one which, having regard to the evidence I would have made myself.
It is apparent that the judge was concerned at the cost of the proceedings which he openly reflected in various remarks he made during the trial. Notwithstanding that he believed the Pollards’ claim to be without merit he was required to resolve the proceedings and provide in his reasons an account of his material findings of fact together with the reasons for his conclusions. As I have indicated, to my mind in some respects the reasons are not adequate and the Pollards’ complaints are justified.
I have already commented on the manner in which the trial judge resolved issues relevant to the Council. It is true that much of the evidence with respect to the relevant events was uncontroversial. However, there were differences particularly between the Pollards and the Council officers. The Pollards were entitled to understand why it was that his Honour preferred Mr Stanger’s evidence.
Notwithstanding the deficiencies in his Honour’s reasons, for the reasons I have indicated I am satisfied that this Court has been able, so far as is required, to determine the relevant facts and resolve the proceedings. The inadequacy of his Honour’s reasons, although making the task more difficult, has not ultimately impeded my consideration of the appeal.
Ground 7 - suggestion of recovery necessary against both respondents
In [66] of his reasons the trial judge said: “The plaintiff would have to have succeeded against both defendants to have recovered at all.”
His Honour did not elaborate on this comment and its factual basis or legal underpinning cannot be identified. Read literally it was plainly wrong. Perhaps his Honour was expressing a concern that if the Pollards failed against one respondent but succeeded against another the costs would have outweighed any verdict. If so his Honour was correct. Whatever the intended meaning the comment had no practical consequence.
One final matter
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.

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AMENDMENTS:

21/05/2010 - The last two sentences in [179] deleted. - Paragraph(s) [179]

LAST UPDATED:
21 May 2010