Williams v Ausnet Electricity Services Pty Ltd (Ruling No 2)
[2016] VSC 145
•6 April 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2014 05296
| STEVEN ELLIOTT WILLIAMS | Plaintiff |
| v | |
| AUSNET ELECTRICITY SERVICES PTY LTD (ACN 064 651 118) & Ors (According to the schedule attached) | Defendants |
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JUDGE: | T FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 April 2016 |
DATE OF RULING: | 6 April 2016 |
CASE MAY BE CITED AS: | Williams v Ausnet Electricity Services Pty Ltd & Ors (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 145 (First Revision 11 April 2016) |
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EVIDENCE – View proposed in advance of trial – Decay of subject tree – Likely failure of subject tree imminent – Discretion to conduct view – Forensic disadvantage to party who have not yet engaged an expert – Preservation order - Evidence Act 2008 ss 53(1), 53(3).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Fraatz | Maddens Lawyers |
| For the First Defendant | Mr M. Wheelahan QC Mr J. Kirkwood | Herbert Smith Freehills |
| For the Second Defendant | Mr M. Hooper | DLA Piper |
| For the Third Defendant | Mr R. Andrew | Wotton & Kearney |
| For the Fourth Defendant | Mr G. Harris QC Mr B. Barr | Colin Biggers & Paisley |
HIS HONOUR:
The plaintiff in these proceedings alleges that on 9 February 2014, a large stem of a sugar gum tree located on the Mickleham Road Reserve[1] (‘the tree’) failed and fell east onto power lines. The plaintiff claims that the bushfire that is the subject of these proceedings was caused by this failure.
[1]The tree is identified as tree No.468669 by the first defendant, and as tree No.213167 by the second defendant. It is located approximately 140 metres north of the driveway entrance to 1990 Mickleham Road, Yuroke.
On 21 March 2016, another stem of this tree failed. This time the stem fell to the west across Mickleham Road. As a result, the tree in its diminished state is now constituted by a central spar and, as I understand it, another single stem.
VicRoads has been advised that what remains of the tree requires urgent removal as it is structurally unsound. If the tree at its current height fails it could fall either on to the road or on to nearby power lines, causing a serious risk to public safety. In these circumstances, the plaintiff has requested that the court conduct a view of the remains of the tree, before allowing VicRoads to see to the tree’s removal. The proposed time of the view is tomorrow, 7 April 2016, at 3.30 pm.
The plaintiff proposes that the following features of the remaining portion of the tree be examined by the Court:
(a) The column of dead wood, that is, a dead stem in the centre of the tree, is approximately two and a half metres in height and 700mm in diameter;
(b) The existence of dead wood and decay;
(c) The remaining epicormic stems of the existing live canopy;
(d) Wounds to the north face of the lower trunk allegedly created by the February 2014 failure;
(e) Wounds to the tree created allegedly by 21 March 2016 failure of the west stem; and
(f) The proximity of the tree to the power lines, and to Mickleham Road.
A folder of photographs taken of the tree both before and after 9 February 2014 has been tendered on this application.
The plaintiff originally proposed that during the view counsel for the plaintiff should explain the significance of the features that I have just referred to. Neither the second or third defendant expressed any great concern with these proposals. The fourth defendant, who has been relatively recently joined to these proceedings, opposed a view tomorrow, essentially for these reasons:
(a) It may be prejudicial and unfair to the fourth defendant to conduct a view before the fourth defendant has engaged an arborist or filed a defence in this matter; and
(b) The tree can be trimmed in such a way[2] that public safety is assured and a view could be postponed until such time as the fourth defendant has received a report from its arborist and filed a defence.
[2]To a height of 9 metres or less.
The first defendant also opposed the prospect of a view being conducted tomorrow. Mr Wheelahan QC suggested that an order could be made preserving relevant parts of the trees, and the discretion that I possess under s 53(3)(b) ought be exercised in favour of postponing a view until the Court reached the positive opinion that a view would assist the Court in its consideration of matters relevant to this proceeding.
I propose to proceed with the view tomorrow. Given the tree's current precarious state, I consider that it is desirable to see the tree as soon as possible. I consider that if I postpone a view, regardless of whether the tree is trimmed or not, it may fail further or fall down altogether.
I am concerned, however, about the forensic disadvantage that may be occasioned to the fourth defendant. To attenuate this potential disadvantage, I will not entertain submissions or statements from the plaintiff or any party at the view about the significance of that which is being inspected.
All parties will have the opportunity to direct me to any particular aspect they wish me to inspect, but that is all. Any submissions about the significance of what I have seen can be made at trial. This will cater for any forensic disadvantage suffered by the fourth defendant due to its late arrival in the case.
Further, I will direct that the tree be preserved for a finite time by VicRoads, both in the central spar and in the remaining stem to a height of nine metres. This will preserve the tree sufficiently for an examination by the fourth defendant's arborist and will also ensure that public safety is preserved.
Should the fourth defendant wish me to view the tree or its environs further, or should any party wish that the tree be part of the proposed conclave hearings, then I would be sympathetic to those applications.
I order as follows:
1.Pursuant to s 53(1) of the Evidence Act2008, a view be conducted of the remaining portion of the sugar gum tree, identified by the first defendant as tree No.468669, and by the second defendant as tree No.213167, and situated approximately 140 metres north of the driveway entrance to 1990 Mickleham Road, Yuroke (‘the tree’), at 3.30pm on Thursday 7 April;
2.Until the hearing and determination of this proceeding or further order, in undertaking any works to the tree, VicRoads preserve the remaining stems of the tree to a length of nine metres from the base of the tree.
IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
No S CI 5296 of 2014
BETWEEN:
STEVEN ELLIOT WILLIAMS
Plaintiff
and
AUSNET ELECTRICITY SERVICES PTY LTD
(ACN 064 651 118) and OTHERS
Defendants
SCHEDULE OF PARTIES
STEPHEN ELLIOT WILLIAMS
Plaintiff
AUSNET ELCTRICITIY SERVICES PTY LTD (ACN 064 651 118)
First defendant
HUME CITY COUNCIL
Second defendant
ACTIVE TREE SERVICES (ACN 002 919 299)
Third defendant
HOMEWOOD CONSULTING PTY LTD (ACN 113 595 430)
Fourth defendant
AND BETWEEN
AUSNET ELCTRICITIY SERVICES PTY LTD (ACN 064 651 118)
Plaintiff by First Counterclaim
STEPHEN ELLIOT WILLIAMS
First defendant to First Counterclaim
HUME CITY COUNCIL
Second defendant to First Counterclaim
ACTIVE TREE SERVICES (ACN 002 919 299)
Third defendant to First Counterclaim
HOMEWOOD CONSULTING PTY LTD (ACN 113 595 430)
Fourth defendant to First Counterclaim
AND BETWEEN
HUME CITY COUNCIL
Plaintiff by Second Counterclaim
STEPHEN ELLIOT WILLIAMS
First defendant to Second Counterclaim
AUSNET ELCTRICITIY SERVICES PTY LTD (ACN 064 651 118)
Second defendant to Second Counterclaim
ACTIVE TREE SERVICES (ACN 002 919 299)
Third defendant to Second Counterclaim
HOMEWOOD CONSULTING PTY LTD (ACN 113 595 430)
Fourth defendant to Second Counterclaim
AND BETWEEN
ACTIVE TREE SERVICES (ACN 002 919 299)
Plaintiff by Third Counterclaim
STEPHEN ELLIOT WILLIAMS
First defendant to Third Counterclaim
AUSNET ELCTRICITIY SERVICES PTY LTD (ACN 064 651 118)
Second defendant to Third Counterclaim
HUME CITY COUNCIL
Third defendant to Third Counterclaim
HOMEWOOD CONSULTING PTY LTD (ACN 113 595 430)
Fourth defendant to Third Counterclaim
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