Appellant v Respondent

1. The appellant, Mr John Braddock, and the respondent, Mr Joseph D'Angelo, are the owners of neighbouring residential properties in Oakleigh East in suburban Melbourne. In 2013, Mr D'Angelo requested Mr Braddock take action to prevent further damage to his property from a large tree located on what was then his mother's property ('Braddock property'). Mr Braddock was a regular visitor to the Braddock property. Mr D'Angelo made further complaints to Mr Braddock in 2014, 2015 and 2017, before engaging an arborist to conduct investigations into the damage in 2021.
2. Mr D'Angelo's primary complaint was that the intrusion upon his property of the roots of a mature Monterrey Cypress tree located adjacent to the boundary fence between the two properties ('tree')[1] had caused and was continuing to cause severe cracking in a stretch of the driveway on Mr D'Angelo's property ('driveway'), which had been constructed by contractors engaged by Mr D'Angelo in 1987. Mr D'Angelo also complained that the tree had caused damage to the wall and roof of his garage.

1. What followed is a cautionary tale as to what can go wrong if a dispute between neighbours is not resolved promptly and sensibly. More than a decade later, on 14 November 2024, a magistrate found, after a four day trial, that all of the damage to Mr D'Angelo's property, including the driveway, had been caused by the tree. The learned magistrate found that Mr Braddock was liable in nuisance to Mr D'Angelo, and ordered him to pay Mr D'Angelo $44,972.10 in damages and $164,658 in costs. The learned magistrate also granted a mandatory injunction requiring Mr Braddock to remove the tree and other vegetation on the Braddock property. These reasons concern Mr Braddock's appeal from these orders.
2. In his notice of appeal, Mr Braddock contends that the learned magistrate failed to afford him procedural fairness by refusing to allow him to call an engineer, Dr Andrew Barraclough as an expert witness on the last day of the trial. He also contends that the learned magistrate erred by admitting into evidence video footage of Mr Braddock entering Mr D'Angelo's property in the period leading up to the trial without Mr D'Angelo's consent ('Braddock video').
3. In response, Mr D'Angelo says that viewed in the context of the trial, and given the history of the proceeding as a whole, the learned magistrate's refusal to allow Dr Barraclough to give evidence did not amount to a denial of procedural fairness. In any event, the result would not have been any different had Dr Barraclough been permitted to give evidence. Rather, what happened at the trial occurred as a consequence of the poor forensic choices made by Mr Braddock and his legal team, and the result was inevitable.
4. I agree. At first glance a refusal to allow a party to call a qualified witness who could give expert evidence relevant to the critical issue in the proceeding (being causation) would seem to be a serious breach of the obligation to afford a party procedural fairness. However, when viewed in its proper context and having regard to contemporary case management practices and principles, the learned magistrate's decision to refuse to allow Dr Barraclough to give evidence was reasonable. Further, even if the learned magistrate had allowed Dr Barraclough to give evidence, the capacity of that evidence to alter the learned magistrate's ultimate findings was miniscule. And finally, the admission of the Braddock video (and other video evidence of trespasses by other experts engaged by Mr Braddock onto Mr D'Angelo's property) into evidence was justifiable at the time. In any event, the Braddock video had no material bearing upon the primary issue in dispute in this proceeding, being whether the tree caused damage to the driveway and garage on Mr D'Angelo's property.
5. Accordingly, the appeal will be dismissed. My detailed reasons follow.

The notice of appeal, the evidence and some preliminary matters

1. Mr Braddock pressed the following questions of law and grounds of appeal:[2]

Question of Law 1

Did the learned Magistrate err in refusing to allow Dr Andrew Barraclough, Engineer, to testify either online or in person at the hearing?

Ground 1

1. Dr Andrew Barraclough had prepared a report on behalf of the Appellant, which was filed and served in the Original Proceeding. The Respondent's counsel objected to the admission of evidence from Dr Barraclough on the basis that his report allegedly did not comply with Order 44 of the Magistrates Court General Civil Procedure Rules 2020. At the hearing on 14 November 2024, the Appellant's counsel also offered to hand up to the learned Magistrate an Addendum Report signed by Dr Barraclough relevant to Order 44, but this document was not received by the learned Magistrate. The Order 44 objection to the evidence of Dr Barraclough was never determined by the learned Magistrate.

2. On 14 November 2024 Dr Barraclough was in Ballarat on business. That day, the fourth day of hearing, the learned Magistrate refused to allow Dr Barraclough to testify online, even though the hearing had originally been an online hearing and a witness had already given evidence online. The learned Magistrate also refused to stand the hearing down to allow Dr Barraclough to travel to Melbourne that day and testify in person.

3. As a result of the foregoing, the Appellant was deprived of the opportunity of presenting evidence from a key witness in his case and has thereby suffered an injustice.

Question of Law 2

Did the learned Magistrate err in admitting into evidence on 13 November 2024, video footage depicting the Appellant attending the Respondent's Land, which was not referred to in the Court Book and of which the Appellant and his lawyers had no notice or knowledge?.

Ground 2

1. During the cross-examination of the Appellant on 13 November 2024, the Appellant was shown video footage of himself wearing a balaclava and camouflage patterned clothing whilst present at the Plaintiff's Land (which adjoins the Defendant's Land). Some of this video footage had never before been seen by the Appellant or his lawyers and they had received no notice of it. Notwithstanding the objections of the Appellant's counsel to the admission of the previously unseen and unknown video footage into evidence, the learned Magistrate admitted it.

1. Prior to turning to the chronology of events, what occurred at the trial of the proceeding, and the evidence and submissions relied upon by the parties at the hearing of the appeal regarding the question of whether the learned magistrate denied Mr Braddock procedural fairness, I shall say, as indicated during the course of the hearing of the appeal, that Mr Braddock's second ground of appeal has no relevance to the issues in this appeal. First, the Braddock video, which showed Mr Braddock trespassing on Mr D'Angelo's property while wearing a balaclava and camouflage gear was admitted only provisionally, with the learned magistrate making it clear that the parties could make submissions about the admissibility of the Braddock video during their closing addresses.
2. As it turned out, neither party made any submissions at the conclusion of the evidence regarding the admissibility of the Braddock video, probably because the forensic relevance of the Braddock video had receded during the course of the trial. By his pleading, Mr Braddock put Mr D'Angelo to his proof regarding his allegation that at all relevant times Mr Braddock was in control of the Braddock property. Mr Braddock did not become a registered proprietor of the Braddock property until 2018, but had attended the Braddock property on a regular basis for many years prior to that. A factual dispute between the parties at trial was how frequently Mr Braddock attended the Braddock property, and the Braddock video was arguably relevant to Mr Braddock's credibility as a witness with respect to that issue.
3. However, while at the conclusion of the trial counsel for Mr Braddock pressed Mr Braddock's submission that he did not have control of the Braddock property prior to 2018, the factual dispute between the parties regarding how frequently Mr Braddock attended at the Braddock property fell away when Mr Braddock admitted during the course of cross-examination that he had attended the Braddock property nearly every day for many years to feed his late mother's cats both prior to and after her death.
4. Mr Braddock maintains his complaint that the admission of the Braddock video was prejudicial to him. However, once the question of the frequency of Mr Braddock's attendance at the Braddock property fell away as a live issue in the proceeding, any prejudicial impact of this evidence could only be material to the orders under appeal if an allegation of apprehended or actual bias on the part of the learned magistrate had been made. No such allegation has been made. Otherwise, the Braddock video had no material bearing on the question of whether the tree caused the damage to Mr D'Angelo's property, the cost of the repairs to Mr D'Angelo's property, or whether the removal of the tree constituted an appropriate remedy. None of these matters turned upon the character, credibility or conduct of Mr Braddock.
5. Accordingly, I will say nothing further about this ground of appeal in these reasons. However, during the course of the hearing of the appeal, counsel for Mr Braddock indicated that he sought to expand the scope of this ground of appeal to include the admission into evidence of a video showing Dr Barraclough attending Mr D'Angelo's property to inspect the driveway on the first day of trial, again without Mr D'Angelo's permission ('Barraclough video'). During the course of the discussion as to whether Mr Braddock would need to apply to amend his notice of appeal to expressly refer to the Barraclough video, I indicated that, given that the learned magistrate's viewing of the Barraclough video may at least arguably have influenced his decision to refuse to permit Dr Barraclough to give evidence, then I would consider the Barraclough video in the context of the allegation that the learned magistrate had denied Mr Braddock procedural fairness.

1. The following chronology of events has been prepared from the materials in the appeal book:

Mr D'Angelo first raised concerns with Mr Braddock about the tree. He repeated these concerns in 2014, 2015 and 2017.

Mr Braddock and his sister inherited the Braddock property after the death of their mother.

Mr Braddock became the sole registered proprietor of the Braddock property.

Mr D'Angelo engaged Mr Tim Chatfield, an arborist, to investigate the cause of the damage to his property.

Mr D'Angelo's solicitors sent a letter to Mr Braddock headed 'without privilege save as to costs', which repeated an offer made on 6 July 2021, which was not in evidence. In this offer, Mr D'Angelo, among other things, offered to accept $8,900 plus GST for the costs of repairs to the driveway, plus $1,100 plus GST in respect of costs and $275 for arborist fees, subject to Mr Braddock carrying out certain works, including the installation of a tree root barrier.

Mr Braddock engaged solicitors to act on his behalf.

Mr Chatfield prepared his first report ('first Chatfield report').

Mr D'Angelo issued a complaint and statement of claim in the Magistrates' Court at Moorabbin seeking damages and injunctive relief in relation to the damage to the driveway and the garage wall.

Mr Braddock's solicitors filed his defence, which, among other things, denied that the tree was the sole cause of the damage to the driveway, and said, to the extent that the tree has caused any damage, the damage occurred before he became the registered proprietor of the Braddock property.

Mr D'Angelo filed an amended statement of claim which amended the claim to allege that some damage had also been caused to his garage roof by other vegetation located on the Braddock property.

Mr D'Angelo's solicitors sent Mr Braddock a lengthy letter headed 'Without prejudice save as to costs', in which Mr D'Angelo offered to accept, among other things, the removal of the tree by Mr Braddock, along with $9,350 to repair the driveway, $7,260 to repair the garage, $3,750 for arborist fees, and $17,541.50 in respect of legal costs, all inclusive of GST. The claim for legal costs was said to represent 75 percent of Mr D'Angelo's actual legal costs.

Mr Braddock filed an amended defence. By this time, Mr Braddock was self-represented. The amended defence stated, among other things, that the damage to the driveway was caused by the age of the driveway, vehicular damage, weakness due to lack of reinforcing mesh, and the negligence of Mr D'Angelo. However, Mr Braddock acknowledged that a root of the tree had lifted an area of concrete next to the tree, and offered to pay half of the cost of the repairs to this section of the driveway. He said further that his installation of a root barrier would prevent further damage, and that it was not necessary to remove the tree.

The proceeding was listed for a two day trial scheduled to commence on 23 February 2023.

Mr Chatfield prepared a supplementary report ('second Chatfield report').

Mr D'Angelo's solicitors filed and serve a report prepared by Marcon Tedesco O'Neill Pty Ltd ('first Marcon report').

Mr D'Angelo's solicitors sent Mr Braddock's new solicitors a letter headed 'Without prejudice save as to costs' in which Mr D'Angelo offered to accept the removal of the tree, a payment of $14,000 in respect of repair works, and Mr D'Angelo's legal costs on scale.

Mr Braddock's solicitors filed and served a report prepared by Barrasons Engineers, Dr Barraclough's firm, on 12 December 2022 ('Barraclough report').

The trial was adjourned upon the application of Mr Braddock. Mr D'Angelo's solicitor gave evidence that Mr Braddock's counsel told the court that Mr Braddock had retained experts while self-represented, that the reports that the experts had prepared were not compliant with Order 44 of the Magistrates' Court (General Civil Procedure) Rules 2020 (Vic) ('Rules'), and that Mr Braddock needed to engage new experts to prepare compliant reports.

Mr Braddock filed a further amended defence, which said, among other things, that Mr Braddock was only an occasional visitor to the Braddock property prior to becoming its registered proprietor in April 2020, and denied that the tree was the cause of the damage to the driveway, relying upon the Barraclough report.

Mr Braddock served an expert report of Mr Simon Brownhill, a building consultant, dated 13 July 2023 ('Brownhill report').

Mr D'Angelo's solicitors filed and served a supplementary report of Mr Marcon ('second Marcon report'), which was responsive to the Brownhill report and Mr Braddock's further amended defence dated 7 June 2023.

Mr D'Angelo's solicitors filed and served a further supplementary report of Mr Chatfield ('third Chatfield report').

Mr D'Angelo's solicitors filed and served a report of Mr James Wilson regarding the costs of rectification works ('Wilson report').

The proceeding was listed for a three day trial commencing on 17 June 2024.

Mr Braddock served a supplementary report of Mr Brownhill ('supplementary Brownhill report').

Mr Braddock served an expert report of Mr James Berrell, arborist ('Berrell report').

The trial was adjourned by consent by reason of Mr Chatfield's inability to give evidence, for a four day trial commencing on 11 November 2024. The parties were given leave to file further evidence from their arborists.

Mr D'Angelo's solicitors serve an Offer of Compromise pursuant to Order 26 of the Rules, in which Mr D'Angelo offered to accept the sum of $12,000 plus costs on a standard basis.

Mr D'Angelo's solicitors filed and served a report by the new arborist engaged by Mr D'Angelo, Mr Simon Molloy ('Molloy report').

Mr Braddock served a supplementary report of Mr Berrell ('supplementary Berrell report').[3]

Mr Braddock's solicitor sent an email to Mr D'Angelo's solicitors disagreeing with their proposed trial plan, and notifying them that Mr Braddock intended to call Dr Barraclough and Mr Hondros[4] to give evidence in addition to Mr Berrell and Mr Brownhill.

Final day of trial, including the delivery of the learned magistrate's ruling ('ruling').

Final orders were made 'on the papers'. These orders were by consent, insofar as the parties agreed that the orders gave effect to the learned magistrate's ruling.

1. Given that Mr Braddock's primary ground of appeal is based upon the learned magistrate's refusal to allow Dr Barraclough to give evidence, and Mr D'Angelo's contention that Dr Barraclough's evidence would not have assisted Mr Braddock in his defence of Mr D'Angelo's claim, it is necessary to canvass the expert reports filed by the parties below in some detail, which I will do in chronological order.
2. The first report prepared was the first Chatfield report dated 7 December 2021,[5] which was prepared prior to the issue of the proceeding. The purpose of the first Chatfield report was to identify whether the tree had caused structural distortions in the surface of the driveway, to explain the growth habits and life expectancy of the tree, to undertake a non-destructive tree root investigation, and to provide direction as to the future management of the tree.
3. In summary, the first Chatfield report concluded that some roots of the tree had entered Mr D'Angelo's property near the damaged part of the driveway, and, while the tree root incursion was not the sole cause of the damage to the driveway, they 'very much have the capacity to displace surrounding soil and consequently shift infrastructure that's in [their] immediate vicinity'.
4. The second report was the quotation prepared by Mr Nick Hondros for Mr Braddock on 21 September 2022,[6] which provided a quote for the replacement of 20 square metres of the driveway of $2,200.00.
5. The next report was a report prepared for Mr Braddock by Australian Property and Building Inspections dated 20 October 2022. However, this report was not relied upon by Mr Braddock at trial.
6. The next report was the Barraclough report, which was dated 12 December 2022, but was not served until 21 February 2023. The Barraclough report made, in summary, the following observations:

(a) the purpose of the Barraclough report was to provide advice regarding the garage wall and the driveway, based upon a visual inspection on 29 November 2022;[7]

(b) the method and construction of the driveway was 'not thought through well', with a slab of varying thickness, no steel reinforcement, and control joints of varying widths;

(c) the style of the construction is 'extremely brittle and is susceptible to cracking', and, while there was evidence of tree root invasion, the driveway should have been constructed to take into account the proximity of the tree; and

(d) poor surface drainage was also observed at the edge of the driveway, and none of the cracks in the driveway have been sealed.

1. The Barraclough report then went on to discuss current recommended standards for driveway construction, including recommended concrete thickness, steel reinforcement, and the location and construction of control joints.
2. The Barraclough report continued with discussion of the following topics:

(a) crack classifications (by severity);

(b) masonry cracks;

(c) concrete floors;

(d) what causes subsidence; and

(e) trees and nearby vegetation.

This discussion was couched in generic terms, rather than by reference to Mr D'Angelo's property and the tree.

In conclusion it is our opinion that the observed damages [sic] to the masonry wall are typical and to be expected on a 35-year-old dwelling built on a moderately reactive clay soil.

In conclusions [sic] it is our opinion that the observed damages to the concrete driveway are due to the poor driveway design, poor surface drainage/landscape design/maintenance.

1. The next report was the second Chatfield report prepared on 20 December 2022. In this report, Mr Chatfield opined that the damage to the driveway caused by the tree was consistent with incremental movement over an extended period of time as the tree roots matured and expanded. Mr Chatfield also opined that if the tree roots were pruned, they would likely sprout from the point of pruning over time.
2. The next report was the first Marcon report dated 25 January 2023. The first Marcon report described the extent and severity of the cracking to the driveway, and observed that the cracking was in close proximity to the tree, and that 'roots from the neighbouring tree are located under the pavement where the distress is evident'. The authors of the first Marcon report observed as follows:

The crack pattern in the driveway slab and with respect to the proximity of the neighbouring Monterey Cypress, the distress observed is consistent with root heave. Root heave is a result of tree roots that do not have sufficient growing space underground, caused by compacted soil which provides a structural subbase for the overlying pavement. This forces the tree's roots to group underneath the concrete pavement, exerting pressure from the underside of the pavement, causing the concrete to lift, crack, and create aesthetic and safety issues (trip hazard).

With reference to the Chatfield arborist report findings, the roots of the Monterey Cypress tree extend well beyond and under the pavement slab. The height of the Monterey Cypress tree is around 15 m to 20 m tall and has a wide canopy spread. The pavement is located within the structural root zone and tree protection zone.

Based on our investigation and observations of crack patterns it is our opinion that the resulting distress in the pavement ie: longitudinal and horizontal cracking, tilting, and lifting/stepping with in the pavement slab, is directly attributed to the Monterey Cypress on the adjoining property and this trees root system extending into [Mr D'Angelo's property].

Based on our investigation and observations of crack patterns it is our opinion that the distress to the garage boundary masonry wall is directly attributed to the trees and vegetation in close proximity to the property boundary and the effects of drying related settlement altering the soil moisture conditions.

Based on our investigation and observations of the garage unit 2 roof that the damage is a direct result of vegetation and trees too close to the property boundary and fallen leaves have accelerated the deterioration of the roofing, guttering and eave linings.

...

The driveway in the vicinity of the tree influence is beyond repair. In order to guarantee no ongoing issues with the pavement, the trees are to be removed along with there [sic] root system. Rehydration of the soil will commence and will allow the soil to reach a state of long-term soil moisture equilibrium. This can be confirmed with site testing of the soil prior to the tree's removal and further testing at 6 month intervals after the removal of the tree/s. Upon confirmation by a geotechnical engineer that the soil profile has reaching a state of long term moisture equilibrium, reinstatement of the driveway can commence and repair of any damaged masonry walls can be undertaken. The installation of an effective tree root barrier is not a viable solution considering the trees close proximity to the pavement and associated structures.

[T]hat the pavement outside the planting distance and outside the influence of tree drying effects ... is in a serviceable condition with no steeping, lifting or cracking.

1. The next report was the Brownhill report, which was prepared on 13 July 2023. The Brownhill report was directly responsive to the first Marcon report's findings with respect to the cause of the damage to the driveway, the cause of the damage to the garage wall, and the rectification works recommended in the first Marcon report.
2. Mr Brownhill opined that there were eight separate contributing factors to the damage to the driveway, and that the contribution of the tree to the damaged portion of the driveway was only approximately 15 percent. Further, only two panels of the driveway needed to be replaced. Mr Brownhill assessed the cost of rectification as being $6,870.53, or $1,030.50 taking into account the contribution of the tree of 15 percent.
3. Mr Brownhill acknowledged that the driveway was constructed in accordance with the standards applicable at the time, as the current standard was first published in 1993, some years after the construction of the driveway. He identified the other factors contributing to the cracking of the driveway as being:

(a) insufficient thickness for vehicle use;

(b) absence of isolation joints;

(c) absence of steel reinforcing;

(d) an unsealed joint in the drainage pit;

(e) insufficient drainage on the soil surfaces adjacent to the driveway;

(f) water leaking from an air-conditioning unit onto the driveway; and

(g) subsidence of backfilled soil in the trench in which the stormwater drain underneath the driveway is located ('alternative hypothesis').

1. The Brownhill report included numerous photographs of the driveway which were said to evidence the impact of the factors enumerated above on the structure and performance of the driveway.
2. Mr Brownhill attributed the damage to the garage wall to the way in which the garage was originally constructed and the lack of maintenance carried out on the garage, not the tree or any other vegetation located on the Braddock property.
3. The next report was the second Marcon report dated 30 October 2023, which was prepared in response to the Brownhill report and Mr Braddock's further amended defence ('second Marcon report'). In the second Marcon report, Mr Marcon opined, in summary, as follows:

(a) Mr Brownhill's contention that there were eight separate contributing factors to the damage to the driveway should be rejected. The sole cause of the damage to the driveway was caused by the tree, as the roots of the tree have compromised the structural integrity of the driveway;

(b) the slab is 100mm thick, not 75mm thick, as contended by the Brownhill report;

(c) the absence of any steel reinforcement or expansion joints was acceptable at the time the driveway was constructed;

(d) any soil displacement was caused by the lifting of the concrete slab caused by the tree roots;

(e) that Mr Brownhill did not appear to have undertaken any investigations to support the alternative hypothesis; and

(f) as to the rectification works required to repair the driveway.

1. The next report was the third Chatfield report dated 5 December 2023, which described the roots of the tree, the water requirements of the tree and the approximate radius of the roots of the tree. Mr Chatfield was also asked to comment upon the effectiveness of the tree root barrier installed by Mr Braddock. Mr Chatfield opined that, by reasons of the depth of the tree root barrier, the tree root barrier was only likely to be effective for a period of between six and 24 months, and the new tree roots would reach their previous size within five to ten years. Further, the pruning of the roots and the branches of the tree had compromised the structural integrity of the tree.
2. The next report was the Wilson report dated 18 December 2023, which opined upon the cost to undertake the rectification works recommended by Mr Marcon. Mr Wilson opined that the cost to repair the driveway was $39,780, and that the cost of the repair works to the garage was approximately $10,000. Mr Wilson also opined that the estimates in the Brownhill report were deficient, in that the Brownhill report:

(a) did not allow for the repair of all of the driveway damaged by the tree;[8]

(b) did not include an estimate for the costs of all of the works necessary to repair the affected part of the driveway;

(c) did not provided an estimate of the works required to repair the roof of the garage; and

(d) provided an insufficient contingency allowance for the works.

1. The next report was the supplementary Brownhill report prepared on 4 March 2024 in response to the second Marcon report and the Wilson report. The supplementary Brownhill report responded in some detail to the contentions in the Marcon reports and the Wilson report regarding the following matters:

(a) acceptable driveway construction practices in 1987;

(b) the thickness of the driveway;

(c) the cause and effect of water ingress and soil heave;

(d) the area of the driveway which requires rectification;

(e) the absence of isolation joints and whether the damage to the driveway may have been caused by the collapse of the stormwater trench;

(f) whether it was necessary to remove the tree; and

(g) the scope and cost of the rectification works.

(a) said that it was acceptable industry practice to construct driveways with steel reinforcement at the time that the driveway was constructed;

(b) disagreed with Mr Marcon's opinion that the driveway slab was 100mm thick, and disagreed with Mr Marcon's opinion that the thickness of the slab was not a contributing factor to the damage to the driveway;

(c) said that if the cracks in the driveway had been repaired when the cracks were first observed, the damage to the driveway would have been minimised;

(d) said that construction of isolation joints were acceptable building practice at the time the driveway was constructed;

(e) provided a more detailed explanation of the alternative hypothesis (see paragraph 45 of these reasons);

(f) disagreed with Mr Marcon about the extent of the driveway which required replacement, and the scope of works required for rectification;

(g) disagreed with the costings for the repairs to the driveway contained in the Wilson report; and

(h) did not provide any estimate for repairs to the roof and guttering of Mr D'Angelo's garage, and noted that the parties were in agreement as to the costs of repair to the brick wall of the garage.

1. The next report was the Berrell report dated 28 March 2024. Mr Berrell, an arborist, was asked to opine on whether, following the canopy and root pruning works carried out by Mr Braddock, there was any risk of the roots of the tree damaging any structures on Mr D'Angelo's property, and whether the tree was safe, or could be rendered safe following the canopy and root pruning works carried out by Mr Braddock.
2. Mr Berrell opined, referring to the Brownhill report, that:

there was little evidence to suggest that the tree was a major contributor to instability of the neighbouring driveway', that 'in light of the works carried out, there is little to no likelihood of damage to any structures located on [Mr D'Angelo's property] from the roots of the tree, in the foreseeable future', and that 'the effectiveness of the root barrier installed accords with its intention...

1. The next report was the Molloy report dated 4 October 2024. Mr Molloy, an arborist, expressly referred to the Chatfield reports, the Marcon reports and his own investigations, and made, relevantly, the following findings:

(a) the structure of the tree was poor following the pruning of the canopy and the roots of the tree, and the rate of failure is expected to be high, particularly during storms;

(b) the explanation in the Chatfield reports regarding the root spread of trees and how tree roots affect adjacent structures is largely correct;

(c) root pruning generally results in numerous new roots growing from the points of severance;

(d) the damage to the driveway is likely to have occurred over time. Disruption to the surface has led to ponding, leading to a soil with higher moisture content encouraging further root growth, and thus '[a] cycle of growth and ever increasing damage'; and

(e) local planning controls would not impede the removal of the tree.

1. The final report was the supplementary Mr Berrell report dated 4 November 2024. In the supplementary Berrell report, Mr Berrell:

(a) updated his qualifications to include expertise in landscape construction, investigation of building and construction works, and civil construction plan review and supervision;

(b) referred to the Molloy report and said that the photographs in the Molloy report show 'a pattern of cracking in the concrete driveway which [was] not consistent with radial tree root cracking';

(c) said he therefore determined a site visit was necessary in order to investigate the construction methodology for the slab, the pit, and the associated drainage network; and

(d) he attended Mr D'Angelo's property and observed there was no steel reinforcing mesh used in the concrete slab, the slab was laid on soil without a gravel sub-base or any other type of membrane, the alignment of the PVC drainage infrastructure corresponds with the cracking pattern, and the absence of sufficient expansion joints is likely to have contributed to cracking.

1. Mr Berrell attributed the damage to the driveway to '[a] confluence of natural subsidence, locally high soil moisture levels, [and] frequent and ongoing vehicular access and egress across a non compliant [sic] driveway'.

The three hypotheses regarding the cause of damage to the driveway

1. As can be seen from the survey of the expert reports in the preceding section of these reasons, the expert witnesses who prepared reports for Mr D'Angelo were unanimous and adamant in their conclusion that the damage to the driveway had been wholly or predominantly caused by the disruption to the structural integrity of the surface of the driveway by the incursion of the roots of the tree.
2. In contrast, in Mr Braddock's further amended defence dated 7 June 2023, Mr Braddock relied upon what was described by counsel for Mr D'Angelo as the 'driveway hypothesis', by reference to the Barraclough report. The particulars to paragraph 5A of the further amended defence dated 7 June 2023 identified the following contributing factors to the damage to the driveway:

i. age, having been laid approximately 35 years ago;

1. load bearing due to traffic, exacerbated by being thinly laid, unreinforced with insufficient control joints and having been laid using a 'floating slab' method;

iii. general wear and tear;

1. different levels between the driveway and the unsealed 'parking areas' adjacent to the driveway;

v. poor landscape drainage, causing water to pool around the driveway;

vi. reactive soil at the site;

vii. moisture changes due to environmental factors; [and]

1. the seepage of water through cracks created by the foregoing factors, which due to remaining unsealed, prompted the growth of plant and tree roots towards the driveway;

1. However, during the course of Mr Marcon's cross-examination, counsel for Mr Braddock put forward the alternative hypothesis, which ultimately made its way into the second further amended defence which was filed and served on the third day of trial. Put simply, the alternative hypothesis was that the surface of the driveway had subsided and cracked because soil rather than crushed rock had been used to backfill a trench excavated under the driveway for storm water drainage purposes.
2. During the course of the discussion between counsel and the learned magistrate, when the learned magistrate requested that counsel for Mr Braddock identify the source of the alternative hypothesis, counsel for Mr Braddock said at first that Dr Barraclough had indicated during the course of a conference that the alternative hypothesis was his explanation of what had occurred, but acknowledged that the alternative hypothesis was not referred to in the Barraclough report. However, later that day, after Mr Marcon had been excused, counsel for Mr Braddock referred to the Brownhill report (which had been prepared about a month after the filing of Mr Braddock's further amended defence), and in particular, the following extract of the Brownhill report:

Furthermore, the location of the crack extending north to south on the concrete panel outside the garage and the panel adjacent to the drainage pit is approximately located in line with a stormwater pipe extending along the middle of the Driveway into the north end of the pit. Installation of the stormwater pipe comprises the pipe laid in a trench and backfilled with soil. Over time, the backfilled soil subsides creating voids to develop between the underside of the Driveway and the top of the subsided backfill.

1. Given that Mr Braddock's primary contention in this appeal is that the learned magistrate denied him procedural fairness by refusing to permit him to call Dr Barraclough to give evidence, it is also necessary to canvass what happened at the trial in some detail.

1. The trial commenced as an online hearing on Monday 11 November 2024. The hearing commenced with a discussion of housekeeping matters. It was agreed that the experts' reports would constitute their evidence-in-chief, with cross-examination commencing immediately after the witnesses had been sworn in and had adopted the contents of their reports.
2. On 11 November 2024, Mr D'Angelo filed a written outline of opening submissions which, among other things, set out the relevant legal principles regarding claims in nuisance, summarised the expert evidence to be relied upon by Mr D'Angelo, and objected to Mr Braddock calling Dr Barraclough and Mr Hondros to give evidence.
3. Counsel for Mr D'Angelo opened his case, and referred to his written submissions, which the learned magistrate said that he had not read. In the course of his opening, counsel repeated his objection to Dr Barraclough and Mr Hondros giving evidence ('objection'), but said that he did not seek a ruling upon the objection at this stage.
4. Counsel for Mr Braddock opened his client's case, noting that the key issue in the proceeding was causation, and explained the driveway hypothesis and the alternative hypothesis in some detail. Counsel referred at some length to the contents of the Barraclough report, and explained that it was non-compliant because it failed to include Dr Barraclough's curriculum vitae, or any reference to the expert's code of conduct in Form 44A, which would be rectified by the preparation of a short addendum.[9] The learned magistrate said that he would rule upon any objections when the witnesses were called to give evidence. Counsel for Mr Braddock also identified the question of whether Mr Braddock had control of the Braddock property prior to 2020 as being an issue in the proceeding, and also said that local town planning controls would prevent the removal of the tree.
5. After counsel for Mr Braddock finished his opening, the learned magistrate informed counsel that a court room had become available, which would be available for the rest of the trial. Both counsel expressed a preference for an in-person hearing, and the learned magistrate agreed, saying that an in-person hearing was desirable given the number of expert witnesses. However, the first witness, Mr D'Angelo himself, was at home preparing to give evidence, and he is in his senior years. His Honour said that he did not like hybrid hearings, but that if counsel for Mr Braddock did not object, Mr D'Angelo could give evidence by audio-visual link ('AVL'). The remainder of the first day was taken up by Mr D'Angelo giving evidence by AVL.

1. On the second day of the hearing, two further lay witnesses were called by Mr D'Angelo to give evidence. The first, Mr D'Angelo's son Dean ('Mr D'Angelo junior'), gave evidence by AVL, as he was overseas. Mr D'Angelo junior lives in the unit at the rear of Mr D'Angelo's property. He gave evidence about seeing Mr Braddock attend at the Braddock property, and that it was the CCTV camera outside his unit which captured the Braddock video and the Barraclough video, as well as a video showing Mr Berrell attending Mr D'Angelo's property and inspecting the driveway ('Berrell video').
2. Counsel for Mr Braddock objected to the admission of both the Braddock video and the Barraclough video, largely on the grounds of relevance, and in relation to the Barraclough video (which had been filmed the previous day), because he had not previously seen the Barraclough video, and it was not in the court book.
3. The learned magistrate dealt with this objection by saying that the Braddock video might be relevant to the outcome of the case, and provisionally admitted the Braddock video and the Barraclough video subject to further argument in final submissions.
4. After Mr D'Angelo junior concluded his evidence, another lay witness, a neighbour, gave evidence, briefly, about the number of occasions she saw Mr Braddock attend the Braddock property.
5. Mr D'Angelo then called Mr Marcon to give evidence. After adopting his reports, the only question Mr Marcon was asked in examination-in-chief was about the dates he attended at Mr D'Angelo's property.
6. Mr Marcon was cross-examined extensively by counsel for Mr Braddock. During the course of cross-examination, counsel for Mr Braddock introduced the alternative hypothesis, as follows:

The hypothesis that's going to be put is that part of the reason for these cracks is that the backfill is reacting at a different rate from the natural soil. Now, do you have any comment to make on that hypothesis?--- The backfill would be - sorry, can you repeat that question?

So the backfill, assuming that after-the trench is dug the pipe is laid. Someone has just gone and put the spoil back in there as backfill and whatever's done to it is done to it is done to it. But it's going to have a different level of compaction from the soil on either side of the trench?

1. Counsel for Mr D'Angelo objected to the question on the basis that he did not understand what was being put to Mr Marcon. The following exchange ensued:

HIS HONOUR: Why don't you just take him to what the expert's going to say in the report? Is it actually just a hypothesis or is it actual finding by an expert from your side, Mr Fink?

MR FINK: Well, this is a hypothesis, Your Honour. Yes.

HIS HONOUR: Okay. So even your client doesn't [know] whether or not it's true or just a hypothesis?

MR FINK: Well, I mean much of what's in this case is - it's all hypothesis. It's all based on what could or is likely to have happened.

HIS HONOUR: All right. Where do I find that in your client's case? Which expert is saying the - where do I find that hypothesis?

MR FINK: It's not contained, I think - I'm not sure if it's contained in the report.

HIS HONOUR: Are you now putting a hypothesis that's not contained in any report?

MR FINK: Well, it's what will be put by Dr Barraclough.

HIS HONOUR: All right, and he hasn't produced an expert report, has he?

MR FINK: There is a report produced. Yes.

HIS HONOUR: That's the one that's objected to?

...

MR THOMAS: What we've learnt this morning from Mr Dean D'Angelo's evidence is that Mr Barraclough was at my client's property yesterday on his property without any authority to be there, and it would appear from what has been said by my learned friend that there is a proposal to effectively adduce new expert evidence. Now, to answer Your Honour's question, we object to that. There was, of course, a timetable for the service of expert evidence.

...

HIS HONOUR: All right. So where do I find Mr Barraclough's evidence in the court book? Is it in the court book at all?

MR FINK: It is in the court book. Yes.

HIS HONOUR: And where do I find that?

MR FINK: I'll take you to that, Your Honour. So that is pp661-678.

HIS HONOUR: Okay, 661. And does he have that theory in relation to the (indistinct).

MR FINK: Look, I haven't come here prepared to specifically ask that question. I need to look at it. I apologise, but this is cross-examination, and I submit that if - - -

HIS HONOUR: Yes, but you have to have a proper basis for it. If you're putting a theory that's not going to be led in evidence, that would be improper questioning.

MR FINK: Well, it will be led in the evidence.

HIS HONOUR: Well, that's why I'm asking. Where is it in the report by Mr Barraclough, thus far?

MR FINK: Yes, could I just take some time to examine that?

HIS HONOUR: Yes, thank you. Go ahead.

MR FINK: Your Honour, I just have to say, I do object in the middle of cross-examination that it's necessary that I start - in any event I will do - - -

HIS HONOUR: Objection is taken to your cross-examination, and the objection that's taken is because you're putting a theory that is not based on any evidence which will be led by your client (indistinct) their objection. So I'm asking you to justify the basis of your cross-examination.

MR FINK: Yes, I'll do that, Your Honour. If I could take you to p670 of the court book.

HIS HONOUR: Thank you.

MR FINK: Now, you can see photos there which depict cracking.

HIS HONOUR: I've found those. I just want to know his theory. Where's it put in the theory that backfilling - just the written word is what I'm looking for.

MR FINK: It isn't in the written word, but Dr Barraclough, in conference, has indicated that this is his explanation.

HIS HONOUR: Right. I'm not going to allow it. It's not even in the written document that is objected to anyway and it looks like it's just coming along and being done on the fly.

MR FINK: Well, if I may say, Your Honour, there has been very recent evidence that's been allowed in that the defendant in this case wasn't even able to see up until it was adduced.

HIS HONOUR: So let me get this right. Mr Barraclough has not put any documentation together. It's not contained in his report thus far. It's not even an expert report as I understand it, being objected to. You may well say it is. But even if I was to presently accept that it could get in as an expert report, this theory about the drainage and the backfilling of the drainage pipe as a reason for the upheaval and breaking of the concrete driveway is not contained in that report.

MR FINK: Not in words specifically, Your Honour.

HIS HONOUR: All right. Well, I'm not going to allow it in cross-examination. Thank you. Bring the witness back in.

1. After Mr Marcon concluded his evidence, the next witness was Mr Wilson, who was called by Mr D'Angelo to give evidence regarding the costs of the rectification of works.
2. Prior to Mr Wilson commencing to give evidence, counsel for Mr Braddock rose and informed the learned magistrate that he had identified a report which referred to the alternative hypothesis, being the Brownhill report. The Brownhill report was not in the court book, and counsel for Mr Braddock could not immediately confirm whether or not the report had been served. His Honour suggested that this issue be investigated over the luncheon break.
3. After the luncheon adjournment, it was confirmed that the Brownhill report had in fact been served upon Mr D'Angelo's solicitors, and should be included in the court book. Then followed a discussion between counsel and the learned magistrate as to whether it was necessary for Mr Braddock to amend his defence to expressly refer to the alternative hypothesis. Counsel for Mr Braddock submitted that this was not necessary, but the learned magistrate disagreed. Counsel for Mr Braddock then made an application to amend Mr Braddock's further amended defence, which was opposed, unsuccessfully, by counsel for Mr D'Angelo. His Honour said as follows:

Well, the question is doing justice to the parties. They haven't put it in the pleading. Whether I ought to give them leave to amend and therefore put these matters to Mr Marcon, I'm sure Mr Marcon can deal with these and might be recalled to give evidence tomorrow online. It'll be very, very brief. It will just be those issues only.

1. Mr Wilson was then called to give evidence. Again, the only question he was asked in examination-in-chief was whether and when he had visited Mr D'Angelo's property, and to adopt the contents of his report.
2. In the course of cross-examination, Mr Wilson clarified the scope of the rectification works and the basis upon which he had quantified the cost of the rectification works. Counsel for Mr Braddock then questioned Mr Wilson about the manner in which the driveway was constructed. Counsel for Mr D'Angelo objected, on the basis that the purpose for which Mr Wilson was engaged was quite clear, and that his retainer had been limited to providing an opinion on the cost of the rectification works. He submitted that Mr Wilson could not give evidence about the cause of the damage to the driveway because he had not made the necessary inquiries.
3. Then followed an exchange between the learned magistrate and counsel for Mr Braddock:[10]

HIS HONOUR: The objection is he's not an expert as was Mr Marcon in that field. So he's been asked as an expert building consultant to quantify the loss and damage.

MR FINK: Yes.

HIS HONOUR: But he hasn't been asked - and it's been suggested he doesn't have the expertise - to give evidence like Mr Marcon did. Now, if he doesn't have the expertise everything he says, even in cross-examination, wouldn't be relevant to me.

MR FINK: Well, I have to say I would completely disagree with the assertion that Mr Wilson lacks expertise to comment on building defects.

HIS HONOUR: Why don't you ask him about that (indistinct words) below the foundations?

MR FINK: I will. I will do. Now - - -

...

So on defects in this structure; on whether this structure is defective or not.

HIS HONOUR: No, I think that's what an engineer needs to do. He said he's -

MR FINK: Well, Your Honour, if that's the -

HIS HONOUR: He said he's not an engineer so if you're meant to ask him all sort of issues about the engineering defects of this slab, whether it be the thickness of the slab, the lack of reinforcement or otherwise, and the codes, he's already told you he's not an engineer so I wouldn't be prepared to accept his evidence on that element.

MR FINK: Not proposing to ask him any engineering evidence questions at all.

HIS HONOUR: Put the next question.

MR FINK: So regularly you as a building consultant, when you're preparing defects reports, you are going to talk about concrete structures and components of concrete structures, aren't you, Mr Wilson? --- I would make observations of the distress that I observed. However, I would then advise that the issue was outside my field of expertise and refer the matter to an engineer.

And you couldn't do the calculations or any of the specific things that an engineer does, could you?--- No.

But you could talk about potential factors causing a problem - - -

HIS HONOUR: No, I'm going to shut it down, thank you. Move on. He's not an engineer. I'm not going to accept his expert evidence in that regard. He's here as a quantity building surveyor. Mr Marcon's given evidence and no doubt you'll be calling someone to rebut Mr Marcon in due course. Thank you.

1. Mr D'Angelo's final witness was an arborist, Mr Simon Molloy. At the conclusion of Mr Molloy's evidence, counsel for Mr D'Angelo told the learned magistrate that Mr Marcon was available to return to give evidence the following morning, and that he preferred to attend court to give evidence in person. Counsel for Mr D'Angelo said again that he continued to maintain his objection to Mr Braddock calling Mr Hondros and Dr Barraclough to give evidence.

1. Shortly after Mr Marcon was sworn in again, the learned magistrate made the following statement:

I'll just say for the purpose of the transcript that Mr Marcon has been recalled today despite having been given evidence yesterday, as a result of the pleading amendment that I granted to the defendant. And I did shut down the defendant from asking certain questions about the site - the pipe and backfill. That ruling, in my view, was good based on the pleading status at the time.

But in a matter of fairness to the defendant, having now made that pleading amendment Mr Marcon has been recalled to deal with those issues. Just putting that on the record in the case this matter goes further. Thank you.

1. Mr Marcon then gave evidence-in-chief about the stormwater drainage system under the driveway, which was the foundation of the alternative hypothesis. Under cross-examination, Mr Marcon agreed that the effect of backfilling the stormwater pipe trench with soil may be different than if scoria or crushed rock was used, but said that this did not cause him to alter his opinion that the cause of the damage to the driveway was the tree, because the cracking pattern was consistent with tree root damage. Mr Marcon gave evidence that the use of soil rather than crushed rock may cause the surface of the driveway to subside, not uplift, and the impact of the subsidence on the surface of the driveway would be evident within four to five years of the construction of the driveway.
2. Mr D'Angelo then closed his case.
3. Mr Braddock then gave evidence, regarding, among other things, his attendance at the Braddock property over the years. He gave evidence that between 2013 and 2020 he attended the Braddock property on a daily basis to feed his mother's cats.
4. Mr Braddock's next witness was Mr Brownhill. Just after Mr Brownhill was sworn in, counsel for Mr Braddock requested that his next witness, Mr Hondros, be permitted to give evidence by AVL. Counsel said that he understood that Mr Hondros was the only witness who sought to give evidence by AVL. The learned magistrate then asked why Mr Hondros was unable to attend court, but counsel for Mr Braddock did not have any instructions. Counsel for Mr D'Angelo maintained his objection to Mr Hondros giving evidence at all, and the learned magistrate said that he would revisit the issue after Mr Brownhill concluded his evidence.
5. Counsel for Mr Braddock indicated that he planned to question Mr Brownhill about his qualifications, because he anticipated a challenge to Mr Brownhill's qualifications, given that Mr Brownhill was not an engineer. However, no such challenge was made by counsel for Mr D'Angelo, and Mr Brownhill adopted his two reports. However, counsel for Mr D'Angelo objected to Mr Brownhill being asked questions of 'clarification' in his examination-in-chief, which was overruled by the learned magistrate. Mr Brownhill gave evidence that he considered that the tree had only caused damage to two panels of the driveway, and that cracking in other parts of the driveway were attributable to the other matters referred to in the Brownhill report (see paragraph 30 of these reasons).
6. In cross-examination, Mr Brownhill agreed that two panels of the driveway were damaged (which represented approximately 15 percent of the total area of the driveway) but maintained his position that only 15 percent of the damage to that portion of the driveway was attributable to the tree. Mr Brownhill was unable to currently explain why he attributed only 15 percent of the damage to the damaged area of the driveway to the tree. He agreed that if the structure of the driveway had been undermined by the case of backfilled soil in a trench underneath (the alternative hypothesis), any damage to the driveway would be evident within about five years from the date of construction.
7. In re-examination, Mr Brownhill gave evidence that the damage to the driveway would not be able to be effectively repaired by filling the cracks with epoxy resin. Mr Brownhill also said that the cause of the damage to the driveway could only be definitively established by pulling up the slabs of the driveway, which would enable the location of the tree roots to be identified, along with any issues associated with stormwater plumbing and drainage.
8. After Mr Brownhill concluded his evidence, the dispute about Mr Hondros' non-compliant report was resolved by the learned magistrate allowing his quotation to be tendered as an exhibit without Mr Hondros being called to give evidence.
9. Mr Braddock then called Mr Berrell to give evidence. Counsel for Mr D'Angelo foreshadowed an objection to the supplementary Berrell report, but said that this objection could be ventilated in closing submissions.
10. In his examination-in-chief, Mr Berrell gave evidence about his experience and qualifications which were not referred to in the Berrell report. Mr Berrell described his specialty as the interaction between the built environment and the growing environment.
11. Mr Berrell was cross-examined about how he came to prepare the supplementary Berrell report, which was prepared in the weeks prior to trial, and covered quite different topics than his first report. Mr Berrell gave evidence that he made another visit to Mr D'Angelo's property and the Braddock property after he reviewed the Molloy report. He noticed that the cracking on the driveway had a grid pattern rather than a radial pattern, which he considered was caused by faulty construction rather than by the tree.
12. It was put to Mr Berrell that he was asked by Mr Braddock or his legal representatives to attend Mr D'Angelo's property and opine about the construction of the driveway, which Mr Berrell denied.

1. At the commencement of the final scheduled day of the trial, counsel for Mr Braddock had the following exchange with the learned magistrate:

MR FINK: Dr Barraclough, a witness who I'd proposed to call later on today, has expressed desire to proceed online. Could a link by [sic] sent to my instructor, please?

HIS HONOUR: What's the reason for Mr Barraclough not being able to be here in person?

MR FINK: I haven't got instructions on that yet, Your Honour.

HIS HONOUR: All right. Well, I'm not going to wait up - I mean, reality is it's been moved into court, parties are expected to be here; it's not a matter of convenience. He'll have to be here in person, if he hasn't got a reason to do so. Thank you. Anything further?

1. When the cross-examination of Mr Berrell resumed, Mr Berrell acknowledged that he had relied upon the instructions of Mr Braddock to the effect that the tree roots were pruned in 2021. He agreed that he had not carried out any invasive or diagnostic testing at Mr D'Angelo's property, and that he had relied upon the root exploration works of Mr Chatfield, Mr D'Angelo's first arborist.
2. Mr Berrell was taken to the Berrell report, and agreed that he said that one of the causes of the damage to the driveway was the tree. He agreed that he said that there was a risk of the tree falling, with potentially significant consequences for nearby dwellings, but also said that he believed the risk was low, and could be mitigated by a bracing system. He said he was surprised to hear that Mr Molloy had found new root growth penetrating Mr D'Angelo's property following the installation of the root barrier.
3. Mr Berrell gave evidence that the opinions contained in the supplementary Berrell report were entirely his own. The hearing was then briefly adjourned to make the necessary technical arrangements to play the Berrell video. During this break, there was the following exchange between the learned magistrate and counsel for Mr Braddock regarding Dr Barraclough:

MR FINK: He is currently in Ballarat, and he has scheduled the hearing until today, in his book, until 4 o'clock, but he has other matters in his diary. That was the main reason for wanting to do this. So he can certainly testify online from Ballarat, but if you wanted him to come it might take a few hours for him to be here.

HIS HONOUR: Tell him to get on his - start getting on to his bike and getting here. You can get your client to make the phone call if need be.

MR FINK: Well, I'll send him a text message.

HIS HONOUR: All right. Thank you.

1. After Mr Berrell was recalled, the Berrell video was shown. Mr Berrell agreed that he was on Mr D'Angelo's property without permission, and that the Berrell video showed Mr Braddock leaning over the fence giving instructions, the contents of which he did not exactly recall. However, he denied that Mr Braddock was giving him instructions about what to put in the supplementary Berrell report.
2. Mr Berrell's cross-examination concluded with some questions about Mr Berrell's qualifications, following which the learned magistrate asked Mr Berrell why he had not referred to the matters contained in the supplementary Berrell report in the Berrell report. Mr Berrell's response was that this was an oversight.
3. In re-examination, Mr Berrell gave evidence about the risk of the tree falling, and the effectiveness of the root barrier installed by Mr Braddock. It was apparent from some interjections of the learned magistrate during the course of re-examination that the learned magistrate did not look favourably upon Mr Berrell or his evidence.
4. After Mr Berrell withdrew, there was the following exchange between the learned magistrate and counsel for Mr Braddock:

Your Honour, of course this hearing was originally going to be an [online] hearing, and it's - - -

HIS HONOUR: Up until Monday afternoon.

MR FINK: Yes.

HIS HONOUR: Which is two and a half days ago.

MR FINK: Yes. Everyone's request that it's 'Come' [sic], and it's a big advantage that it's in person, but I have contacted Dr Barraclough. I have asked him to come. I'm in the unfortunate position that I don't have, obviously, my next witness here yet.

HIS HONOUR: So we have a hearing which is, since Monday afternoon, has been an in-person hearing. There was no foreshadowed application in relation to Mr Barraclough giving evidence online, which could have been given yesterday. Could have been made yesterday and ruled upon. You've made that application this morning, which has been refused. And you've essentially said to the court, 'Well, he's elected to remain in Ballarat this morning rather than come here'.

MR FINK: No, that's not what I'm saying, Your Honour. I just have a message from him here. He says, 'I am leaving now'.

HIS HONOUR: Why wasn't the application made yesterday afternoon?

MR FINK: Well, yes, I admit it could have been made yesterday afternoon.

HIS HONOUR: Well, it could have been. It should have been made yesterday afternoon, and then it would have - I mean, well witnesses are expected to be present at court.

MR FINK: I understand, Your Honour.

HIS HONOUR: This is not a McDonald's drive-through.

MR FINK: I understand.

HIS HONOUR: We are not here for the convenience of the parties. We're here to do justice between the parties.

MR FINK: I understand. He anticipates being there at about 12.40, Your Honour.

HIS HONOUR: No. I'm not going to wait. He should have been here. Thank you. If any other witnesses are ready to call?

MR FINK: No other witnesses.

HIS HONOUR: Thank you. Is that your case?

MR FINK: That - well, yes.

1. Counsel for Mr Braddock then queried whether his Honour had ruled that Dr Barraclough could not give evidence. The learned magistrate then said that he was ready to take the next witness, and then move into closing submissions before lunch, so that he could look at the material and deliver a ruling that day. Counsel for Mr Braddock suggested that counsel commence their closing submissions in the period it would take for Dr Barraclough to travel to court, which the learned magistrate rejected, noting that Dr Barraclough was one of the witnesses being objected to as not having provided a compliant report.
2. Counsel for Mr Braddock then referred to an addendum to the Barraclough report he proposed to hand up to remedy the non-compliance with Order 44 of the Rules ('addendum'), which had been served upon Mr D'Angelo's solicitors the previous evening. The learned magistrate asked counsel to take him to the Barraclough report, which he said he had not read.
3. The learned magistrate then asked whether the addendum referred to the investigations carried out by Dr Barraclough on the first day of trial, and counsel for Mr D'Angelo said it did not. The learned magistrate then said:

HIS HONOUR: It is breathtaking how badly this expert evidence is being put to the court. Everyone knows about Order 44A.[11] I mean, not only does everyone know about it - and if they didn't know about it, presumably they would have known about it when the last hearing was adjourned because of non-compliance with Order 44A, and that was discussed on Monday.

And now there's going to be some document purporting to make good an old report which the other side think, 'Well, I haven't served in accordance with Order 44A. We don't have to worry about it'. And then halfway through a trial - three-quarters of the way through a trial - there's going to be some addendum served which then purports to make good a two-year-old document. And what, include some further material about investigations made on Monday while this case is actually on foot?

MR FINK: Well, I'd ---

HIS HONOUR: Without having attended the property without permission. I mean, what sort of experts are these people? Who do they think they are? It's unbelievable how badly put an expert - how their credibility is affected by attending a property without permission, trespassing upon property as per the last witness as well, and then this witness on Monday. Breathtaking. Breathtaking.

1. Counsel for Mr D'Angelo then renewed the objection submitting that, in addition to the Barraclough report not being compliant with Order 44 of the Rules, it was irrelevant, because all the Barraclough report said was that if the driveway was being built today, it would be built differently. Counsel for Mr Braddock disagreed, saying that Dr Barraclough would give evidence about what has caused the deterioration in the driveway.
2. The learned magistrate then expressed some frustration when told by counsel for Mr Braddock that he had mislaid his copy of the Barraclough report and the addendum. His Honour then said that he was going to refuse to hear Dr Barraclough because there was no report, and by reason of non-compliance with Order 44 of the Rules. When counsel for Mr Braddock said that Dr Barraclough was a crucial witness, and without him, the case would be missing a major element, the learned magistrate suggested that might be a matter that his client might take up with his solicitors, given that the objection had been foreshadowed at the commencement of the hearing, and Mr Braddock's solicitors had been in possession of the Barraclough report for two years.
3. The following exchange ensued:

HIS HONOUR: And then for two years, nothing's happened with those reports in relation to making them compliant. And then Mr Barraclough, who apparently lives in Ballarat, was able to make his way down, without permission, to attend on the first day of the hearing for some further inspections and then has elected not to come to court today, given that he was going to be the next witness.

MR FINK: Well, it had originally been anticipated - in fairness to him and to my instructor, of course, original arrangements were made online, and there's been the change.

HIS HONOUR: Which has changed since the day he actually came down. He was here anyway.

MR FINK: But if I may just ---

HIS HONOUR: Ballarat's an hour and a half away, hour away.

MR FINK: Well, he doesn't live there.

HIS HONOUR: Where does he live?

MR FINK: I believe he lives in Melbourne. He was up there on business, but he's available to come down.

HIS HONOUR: So he's doing other business today when he's giving evidence? Is that the situation?

MR FINK: He was available at the time allocated. The time anticipated was now, of course, Your Honour. That was what was communicated. Yes, there had been an earlier link or it'd earlier been anticipated that there would be online evidence given.

HIS HONOUR: No. That is in no way, shape, or form correct. This case has been an in-court case since Monday afternoon. That's been clear to everyone present.

MR FINK: Prior to Monday, of course.

HIS HONOUR: Yes, prior to Monday. And now he lives in Melbourne and is doing some work up in Bendigo or Ballarat.

MR FINK: Well, he'd acted, perhaps, on the basis of what was previously anticipated.

HIS HONOUR: Well, he had no basis to do so. All right, thank you. I'm making the ruling: no compliance with that order 44A. I'm not going to allow the evidence. Thank you.

MR FINK: As the court pleases.

HIS HONOUR: And because - if there needs to be another reason - he's not ready to be called, and he should be here, and the administration of justice requires cases to be dealt with in an expeditious fashion. If he is not called until 12.30, it essentially means he's not going to be here until - I mean, he's only just left Ballarat now, which means he'd have to get here in the city traffic, park his car.

We're not going to start his evidence until after 1 o'clock - after 2 o'clock, really - which means closing submissions won't be completed, which means the matter will be pushed in - even if I was to allow his evidence, then that means the parties all incur another cost of another day of hearing. Thank you. That'll be the reason upon which his evidence will be refused to be given. Thank you. We ready to move to closing submissions?

1. Counsel for Mr D'Angelo then commenced his closing submissions by handing up a timeline of relevant events, and taking the learned magistrate through the timeline. Counsel then went on to summarise the expert evidence adduced on behalf of Mr D'Angelo. He submitted that the evidence of Mr Marcon should be preferred to the evidence of Mr Brownhill. The learned magistrate observed that Mr Marcon was very convincing.
2. Counsel for Mr D'Angelo observed that the experts were largely in agreement about the quantum of any damages, and then went on to criticise the expert witnesses called by Mr Braddock. He then went on to comment upon the evidence given by the lay witnesses, noting the concession made by Mr Braddock to the effect that he visited the Braddock property daily and that he carried out maintenance works at the Braddock property.
3. In response, counsel for Mr Braddock submitted that Mr D'Angelo's contention that Mr Braddock was in control of the Braddock property prior to 2018 should be rejected. Counsel then referred to the expert evidence called by Mr Braddock, and submitted that it would be a 'significant step' for his Honour to reject the evidence that there were multiple causes of the damage to the driveway. Then followed a lengthy exchange between counsel for Mr Braddock and the learned magistrate, during which the learned magistrate said that he was going to prefer the evidence of Mr Marcon and Mr Molloy, who were both very impressive witnesses, over the evidence of Mr Brownhill, who did not strike his Honour as a very impressive witness.
4. Counsel for Mr Braddock sought to persuade the learned magistrate otherwise, but his Honour was adamant that he preferred the evidence of Mr Marcon and Mr Molloy to the evidence of Mr Brownhill. His Honour then went on to say that he was very interested in the 'control point',[12] given that he was 'absolutely satisfied' that 100 percent of the damage to the driveway was caused by the tree. He criticised the evidence and conduct of Mr Berrell, and said 'I reject his evidence outright'.
5. The learned magistrate and counsel for Mr Braddock then went on to have a discussion about what part of the driveway should be replaced, and whether some allowance ought to be made for betterment, given that the driveway was nearly 40 years old ('betterment issue'). Counsel for Mr Braddock submitted that the learned magistrate should award less than 50 percent of the amount of the costs of rectification sought by Mr D'Angelo to take into account the betterment issue.
6. Counsel for Mr Braddock then addressed the learned magistrate about other issues associated with the quantum of the damages claimed by Mr D'Angelo for the rectification works to the driveway, but the learned magistrate said that he accepted the evidence of Mr Wilson over the one page quote provided by Mr Hondros. They then went on to discuss the claim with respect to the repair of the garage, but once again the learned magistrate said that he accepted the evidence of Mr Marcon regarding the cause of the damage to the garage, and noted that Mr Brownhill largely agreed with Mr Wilson's opinions with respect to the costs of the repair works to the garage.
7. Counsel for Mr Braddock then said he wished to finalise the point he had made before regarding Mr Braddock's occupation and control of the Braddock property, but the learned magistrate said that he wanted to hear first about Mr D'Angelo's application for an injunction to remove the tree, noting that Mr Molloy had given evidence that there were no local planning controls impeding the removal of the tree. Counsel for Mr Braddock submitted that a mandatory injunction was not something that should be granted lightly, and that Mr Braddock wished to retain the tree. The learned magistrate agreed that a balancing exercise was required to be undertaken, but that he accepted that there were sound reasons to remove the tree.
8. Counsel for Mr Braddock completed his submissions by making some brief points about the control issue, submitting that Mr D'Angelo had not discharged the burden upon him to establish that Mr Braddock was anything other than an occasional visitor to the Braddock property prior to 2018.
9. In his submissions in reply, counsel for Mr D'Angelo conceded that the betterment issue was relevant to the assessment of damages in relation to the replacement of the driveway and the garage roof, but not the repairs to the garage wall. However, the authorities suggest that the usual discount would be in the order of 20 percent, not 50 percent as contended for by counsel for Mr Braddock. Counsel submitted that the issue of whether the tree should be removed was not given a great deal of attention at trial because none of the expert evidence which recommended the tree's removal was challenged by Mr Braddock.
10. The learned magistrate then delivered his ruling. His Honour stated, in summary, as follows:

(a) he was satisfied, relying upon the evidence of Mr Marcon and Mr Molloy (for the reasons explained in his dialogue with counsel for Mr Braddock), that the tree root incursion was a substantial and unreasonable interference with Mr D'Angelo's property;

(b) he was satisfied that Mr Braddock was in control of the property from 2013, when Mr D'Angelo first complained about the tree, stating that Mr Braddock had a very close connection with and control over the Braddock property;

(c) he was therefore satisfied of all of the elements required to make out private nuisance;

(d) he described Mr Marcon as 'incredible' and 'one of the better expert witnesses I have seen in my time on the Bench';

(e) he described Mr Berrell as an unsatisfactory witness, who acted as an advocate for his client;

(f) he said that he could not really place much weight upon the evidence of Mr Brownhill, unless it corroborated the evidence of Messrs Marcon and Molloy;

(g) he said that he was satisfied with Mr Wilson's very detailed assessment of damages, but the real issue with respect to quantum was the betterment issue, for which he would make an allowance of 10 percent; and

(h) he accepted Mr Marcon's evidence regarding the need to remove the tree, particularly given that the tree root barrier installed by Mr Braddock had proved ineffective in preventing further tree root incursion, and there was no legal impediment to removing the tree.

1. The learned magistrate then went on to say that he considered a three to six month stay of the order requiring the removal of the tree was appropriate, and then stood the matter down to enable counsel to have discussions regarding the form of order and the question of costs.
2. At the resumption of the hearing later that day, counsel were able to agree upon a form of wording of the mandatory injunction. Counsel for Mr D'Angelo handed up a short form of bill of costs claiming $131,906.15 for costs and disbursements, calculated upon scale, and said his client sought an uplift of 25 percent upon that sum.[13]
3. Counsel for Mr D'Angelo also handed up a number of offers made by Mr D'Angelo during the course of the proceeding (see paragraph 14 of these reasons), including a formal offer of compromise dated 17 July 2024, in which Mr D'Angelo offered to accept $12,000 plus costs on a standard basis.
4. The learned magistrate offered to go through the short form bill with counsel in order to finalise the costs order that day, but counsel for Mr Braddock objected, so the learned magistrate adjourned the hearing to an afternoon the following week. The parties were able to agree upon the form of order to give effect to the learned magistrate's ruling and upon the quantum of the costs payable by Mr Braddock to Mr D'Angelo without the need for a further hearing.

1. Counsel for Mr Braddock submitted that the learned magistrate's refusal to allow Mr Braddock to call Dr Barraclough, either by AVL or in person (with a consequent 90 minute delay), contributed to the quantum of damages payable by Mr Braddock to Mr D'Angelo. Counsel for Mr Braddock accepted that the parties were generally in agreement that there was some damage to Mr D'Angelo's property caused by the tree, but were not in agreement as to the extent of the contribution. While Dr Barraclough was of the opinion that no damage had been caused to the driveway by the tree, he was the only expert to hold that view, so realistically, the learned magistrate's error went more to the assessment of damages and the question of costs than to liability.
2. Counsel for Mr Braddock referred to the decision of the High Court in Stead v State Government Insurance Commission,[14] ('Stead') where the Court allowed an appeal and ordered a retrial in circumstances where the trial judge stated that a party did not need to develop their submissions to the effect that an expert opinion should not be accepted, but then ultimately accepted this evidence. The Court stated as follows:

The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker L.JJ.) in Jones v. National Coal Board [[1957] 2 QB 55, 67], in these terms:

"There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it."

That general principle is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.

For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. ...

Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. ... However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when he issue concerns the acceptance or rejection of the testimony of a witness at the trial.[15]

1. In his written submissions, counsel for Mr Braddock submitted that the bar for concluding that there was a material failure to afford procedural fairness was not particularly high, and submitted that the decision in Stead[16] was directly analogous to the current case, in that:

[T]he act of denying Dr Barraclough to give evidence on the basis of his request to appear by AVL affected the entitlement of the appellant's counsel to make submissions on a critical fact in issue, being whether the Tree caused the Damage, or whether the Damage could have been caused by something else. It is further submitted that this denial of natural justice is amplified, again with reference to the above excerpt of Stead, by the fact that the denial of allowing Dr Barraclough to testify goes to "the acceptance or rejection or the testimony of a witness at the trial".

1. Counsel for Mr Braddock submitted further that it was not necessary for Mr Braddock to show that he would have been entirely successful in defending Mr D'Angelo's claims in the proceeding: a successful outcome may have been an award of, say, $20,000 and a much lower award of costs.
2. Counsel for Mr Braddock noted that the request to call Dr Barraclough to give evidence by AVL needs to be viewed in the context that, while the trial had proceeded in person, it had up until halfway through the first day proceeded online in accordance with the standard practice of the Magistrates' Court. Further, the learned magistrate allowed one of Mr D'Angelo's experts to give evidence by AVL, because the learned magistrate said that he wanted 'to avoid any suggestion of a party being shut out of its case'. However, when the learned magistrate was informed that Dr Barraclough was in Ballarat, the learned magistrate insisted that Dr Barraclough give evidence in person, and then refused to wait for Dr Barraclough to arrive.
3. Counsel then referred to the subsequent exchange between the learned magistrate and counsel (see paragraphs 87 and 90 of these reasons), and submitted that the learned magistrate had excluded Dr Barraclough's evidence on the basis of its non-compliance with Order 44 of the Rules without reviewing the Barraclough report or the addendum. Counsel submitted as follows:

...I believe that his Honour was frustrated with the way that counsel below sought to call the witness and, on that basis, denied the opportunity for the appellant's case to be fully heard and, therefore, denied the appellant procedural fairness.[17]

1. Counsel for Mr Braddock submitted that allowing Dr Barraclough to give evidence would have made a real difference to Mr Braddock's defence of Mr D'Angelo's claim. In particular:

(a) Dr Barraclough was the only engineering expert engaged by Mr Braddock, and his evidence was crucial to determining the cause of the damage to the driveway, the extent of the damage, and the works required to repair the driveway, and these are matters upon which Dr Barraclough could give evidence, and other witnesses could not;

(b) the learned magistrate said that he only wanted to hear from engineers on engineering issues, and accordingly there was no witness to respond to Mr Marcon other than Dr Barraclough;

(c) Dr Barraclough would have given different evidence on material matters than the other expert witnesses called by Mr Braddock, and could have given evidence regarding issues such as the quality of the construction of the driveway and Mr D'Angelo's contribution to the condition of the driveway; and

(d) had Dr Barraclough's evidence as to the alternative theories relating to the cause of the damage to the driveway been before the court, the learned magistrate may not have found that 100 per cent of the damage was caused by the tree.

1. Counsel for Mr Braddock made the following submissions in response to Mr D'Angelo's written submissions:

(a) the assertion that Mr Braddock disclaimed any reliance upon the Barraclough report should be rejected, as Mr D'Angelo's legal team was informed of Mr Braddock's intention to call Dr Barraclough the week prior to trial, and did not express any surprise or raise any objection at that time;

(b) Mr D'Angelo's submission to the effect that the learned magistrate's refusal to allow Dr Barraclough to give evidence was consistent with s 8 of the Civil Procedure Act 2010 (Vic) should be rejected, noting that the 'just' determination of civil disputes is as important as the 'timely and efficient' resolution of civil disputes. Counsel submitted that what was 'just' should have been given greater weight than what was 'timely'. In any event, there would have been no delay if the learned magistrate had allowed Dr Barraclough to give evidence by AVL, and a delay of only 90 minutes had he required Dr Barraclough to attend in person;

(c) while the Barraclough report was technically non-compliant with Order 44 of the Rules, that was not fatal to it being admitted into evidence, referring to the decision of J Forrest J in Matthews v SPI Electricity (No 9),[18] where his Honour said that the requirement to comply with Order 44 may be relaxed or dispensed with in an appropriate case; and

(d) the allegation that Dr Barraclough had never visited his property until the first day of the trial is merely an assertion for which there is no evidence.

1. Counsel for Mr Braddock conceded that, if Dr Barraclough had attended Mr D'Angelo's property prior to preparing the Barraclough report, he had been trespassing, and therefore s 138 of the Evidence Act 2008 (Vic)[19] ('Evidence Act') was enlivened. However, the types of illegal or improper conduct which would generally lead to the exclusion of evidence under s 138 are generally more grave or egregious than trespassing on a driveway, noting that the Barraclough report was prepared when Mr Braddock was self-represented.
2. In response, counsel for Mr D'Angelo submitted that Mr Braddock was afforded every opportunity to put forward a comprehensive defence to Mr D'Angelo's claims in the proceeding, and, for most of the relevant period, had the assistance of experienced solicitors and counsel. Counsel rejected the contention that Mr Braddock has a low bar to clear in this appeal, along with any contention that the rules do not matter so much in the subordinate courts.
3. Counsel for Mr D'Angelo referred to the driveway hypothesis, which was the thrust of the Barraclough report, but all of the other expert evidence at trial was to the effect that the driveway was constructed in accordance with the relevant standards at the time. Further, Mr Braddock has never explained how, even if the driveway hypothesis was correct, that would impact upon Mr Braddock's liability to Mr D'Angelo, given that a tortfeasor must take their victim as they find them. The only possible way that Mr Braddock could have avoided part or all of his liability to Mr D'Angelo in nuisance would be if it could be established that the driveway was not constructed in accordance with the standards applicable at the time.
4. Counsel for Mr D'Angelo then canvassed the events leading up to trial in some detail, noting that the trial scheduled for 23 February 2023 was adjourned at the request of Mr Braddock, on the grounds that the case was not ready to proceed because Mr Braddock wished to retain new experts and serve reports which were compliant with Order 44 of the Rules.
5. Counsel for Mr D'Angelo noted that after the adjournment of the trial in February 2023, Mr Braddock filed a completely new defence, and the Brownhill report, which was directly responsive to the first Marcon report. The Brownhill report listed the Barraclough report as a reference, and a number of sections of the Barraclough report were directly reproduced in the Brownhill report. The Brownhill report also opined on the cost to repair the driveway. Counsel noted further that the supplementary Brownhill report also directly engaged with the reports of Mr Marcon and the Wilson report, and advanced Mr Brownhill's own version of the driveway hypothesis. Some of the drawings in the Barraclough report were reproduced in the supplementary Brownhill report, and reference was made to the alternative hypothesis in the Brownhill reports.
6. Counsel for Mr D'Angelo also referred to the evidence of Mr Berrell, which engaged with the reports of the arborists engaged by Mr D'Angelo in support of his contention that Mr Braddock had ample opportunity to put forward expert evidence regarding the key issues which were the subject of the Barraclough report, including the driveway hypothesis. The supplementary Berrell report also reproduced sections of the Barraclough report.
7. Counsel for Mr D'Angelo observed that the scope of the evidence-in-chief of the experts who gave evidence at trial was limited to the contents of their reports. Mr Braddock has not identified any particular part of the Barraclough report which would have made a difference at trial had it been admitted into evidence. This is not a case where it could be suggested that it could not be known what Dr Barraclough would have said at trial, because by reason of the manner in which the trial was conducted, Dr Barraclough simply would have adopted his report and then would have been cross-examined. He would not have been permitted to give evidence about matters not referred to in the Barraclough report.
8. In his written submissions, counsel for Mr D'Angelo summarised the evidence given by the expert witnesses called by Mr D'Angelo to give evidence, and made the following observations regarding the expert witnesses called by Mr Braddock:

(a) Mr Brownhill gave evidence that the driveway was constructed in accordance with the building standards applicable at the time the driveway was constructed;

(b) Mr Brownhill gave evidence that the surface of the driveway had been cracked by the tree roots, but, for reasons which were not explained in his reports or in his oral evidence, only 15 percent of the damage to the driveway was caused by the tree;

(c) the Brownhill reports contained similar and in parts identical content to the Barraclough report; and

(d) Mr Berrell gave evidence as to his opinion regarding the cause of the damage to the driveway, consistent with the driveway hypothesis.

1. Counsel for Mr D'Angelo submitted that '...this whole appeal is predicated on the basis that they had all of these good points that they were shut out from arguing and that's just not so'.[20] The objection was foreshadowed in Mr D'Angelo's written submissions, and was raised again during his opening.
2. Counsel for Mr D'Angelo then went on to review the Barraclough report in some detail and submitted that '...it's a generic report and it could not have assisted them'.[21]
3. Counsel for Mr D'Angelo submitted as follows:

Now, what I want to do is show to Your Honour what we say the true intention of calling Dr Barraclough was. Because, of course the lawyers on the other side knew very well that this [Barraclough] report was hopeless. It wasn't going to prove their case, their defence. What they needed to do was to effectively get Dr Barraclough in to give a whole new report, orally in examination-in-chief.[22]

1. Counsel went on to explain the submission above by reference to the cross-examination of Mr Marcon, where the alternative hypothesis was put to Mr Marcon. However, the alternative hypothesis was not referred to in the Barraclough report.[23] Counsel submitted that the ensuing discussion between the bench and the bar table made it clear that Mr Braddock intended to lead evidence concerning the alternative hypothesis from Dr Barraclough orally, which would fly in the face of the agreed timetable for the service of expert evidence and the provision of responsive evidence. If this course of action was adopted, Mr D'Angelo would have been denied procedural fairness.
2. As for the question of whether the learned magistrate acted unfairly and unreasonably in refusing to allow Dr Barraclough to give evidence by AVL, counsel for Mr D'Angelo submitted that it was disingenuous for Mr Braddock to refer to the learned magistrate's invitation to Mr Marcon to give evidence remotely. All of the expert witnesses gave evidence in person after the trial was converted into an in-person trial. Mr Marcon had been excused, but was recalled after Mr Braddock successfully applied to amend his defence to raise the alternative hypothesis. In any event, Mr Marcon returned to court in person the following day once recalled. Accordingly, the submission that the learned magistrate applied a different standard to Mr Braddock's witnesses was incorrect.
3. Counsel for Mr D'Angelo referred to the reasons given by the learned magistrate for refusing to wait for Dr Barraclough to arrive at court, and submitted:

So His Honour considered the efficient use of the court's resources and the efficient determination of the matter and, of course, all of the other relevant factors when coming to the decision that is complained of here.[24]

1. In his written submissions, counsel for Mr D'Angelo observed that the learned magistrate's refusal to permit Dr Barraclough was based upon the following matters:

(a) an earlier trial had been vacated on the basis that the Appellant could not or did not wish to rely on the Barraclough] Report;

(b) the [Barraclough] Report was non-compliant and had not been filed in accordance with Order 44;

(c) the content of the Barraclough Report had already been given by other witnesses;

(d) that Dr Barraclough's inspection of the property had only occurred on Monday, 11 November 2024 (being day 1 of trial) and that Dr Barraclough had trespassed on Mr D'Angelo's Land; [and]

(e) adjourning the Court for Dr Barraclough's convenience (on the afternoon of the final day of a four-day trial) would have the effect of the trial not concluding and being part-heard and "the administration of justice requires cases to be dealt with in an expeditious fashion."[25]

1. Counsel for Mr D'Angelo referred to the recent decision of the Court of Appeal in Giovinazzo v Resource Capital Limited,[26] where the trial judge refused a mid-trial application to issue a subpoena to call a new witness said to be relevant to a key issue in the proceeding. The appeal was dismissed, and the Court's decision was said to support the proposition that '...there is not a failure of procedural fairness where somebody without good reason attempts to call people as witnesses late midstream'.[27]
2. Counsel for Mr D'Angelo submitted that Mr Braddock's submission to the effect that Dr Barraclough was a critical witness because the learned magistrate had made it clear that he only wished to hear engineering evidence from engineers should be rejected. Rather, this statement was made after counsel for Mr D'Angelo had objected to certain questions asked of Mr Wilson, who had given evidence on behalf of Mr D'Angelo regarding the cost of repairs to the driveway and the garage. The subject matter of the questioning went beyond the scope of Mr Wilson's retainer, not the nature of his expertise.
3. Counsel for Mr D'Angelo noted that the driveway hypothesis had been explored in some detail at trial, and submitted that the evidence of the experts called by Mr D'Angelo, the photographs of the driveway in evidence, and the learned magistrate's finding that the remainder of the driveway had performed well in support of his submission that Dr Barraclough's evidence could not have displaced the ultimate findings made by the learned magistrate. Counsel submitted as follows:

... even if it did go in, it couldn't have changed the outcome of the proceeding. It was a standard report. And then having regard to what the other witnesses said, my submission is this: that there was just no chance that that evidence was going to displace the overwhelming evidence. Every single expert that came, no matter whether they were for the defendant or plaintiff said this tree, that vegetation, it's causing damage to all of them.[28]

1. Counsel for Mr D'Angelo concluded his submissions as follows:

... the material put before the court by the respondent supports our proposition that the appellant's defence was prepared and presented by experienced practitioners. Contrary to the evidence of Mr Braddock and his solicitor in the appeal, the [Barraclough] report was filed and served on the eve of the first trial. The appellant subsequently engaged new experts and filed and served several new reports, all of them which ventilated the driveway hypothesis, and the diagrams and drawings and things included in the [Barraclough] report.

The appellant has not been deprived of any opportunity to advance its defence, make its defence and do it in a comprehensive way. The [Barraclough] report was abandoned, and of course, the real reason why Dr Barraclough didn't give evidence was that he wasn't present at the court and considered he could do it at a time and location that was convenient to him.

Now, even if Dr Barraclough had attended the court to give evidence, and even if his non-compliant report had been admissible, the content of the [Barraclough] report could not have changed the outcome of the trial, given the expert evidence of five experts which proved the plaintiff's case overwhelmingly. And the rulings made throughout the trial by the learned magistrate were within His Honour's power. They were exercised judicially and in a manner consistent with the just and efficient, timely and cost-effective resolution of the real issues in dispute as demanded by the CPA [and] s136 of the Magistrates Court Act.[29]

1. In his written outline of submissions in reply, counsel for Mr Braddock rejected the contention that the contents of the Barraclough report were similar or identical to the contents of the Brownhill reports or the Berrell reports. He also rejected the proposition that there was a 'driveway hypothesis', submitting that each of Mr Brownhill, Mr Berrell, and Dr Barraclough reached different conclusions regarding the cause of the damage to Mr D'Angelo's property.
2. Further (emphasis in the original):

In the circumstances, the proposition that the admissions of Messrs Brownhill and Berrell that some damage had been caused to the Respondent's land by the tree in question, meant that Dr Barraclough's testimony could not have made any difference to the outcome at trial, cannot be maintained.

This is particularly so in circumstances where:

(a) Dr Barraclough's testimony would have canvassed matters that were substantially different to the hypotheses advanced by Messrs Brownhill and Berrell;

(b) by the conclusion of the trial, the plaintiff claimed to have expended costs approximately four times the sum in dispute. Therefore, the precise quantum of damages awarded by the learned Magistrate had a significant effect on the overall liability of the Appellant;

(c) the learned Magistrate himself increased the significance of Dr [Barraclough] testimony for the Appellant...

(d) Dr Barraclough was the only civil engineer called by the Appellant and was therefore, on the basis of the learned Magistrate's comments, uniquely qualified to comment on the cause(s) of the damage to the Respondent's land.

1. Mr Braddock's written submissions in reply then went on to address in some detail the contentions of counsel for Mr D'Angelo regarding the admissibility or otherwise of the Barraclough report. However, as discussed later in these reasons, my analysis of the issues in the appeal will proceed on the assumption that, had Dr Barraclough given evidence, these difficulties would have been overcome, and accordingly, it is not necessary to canvass these submissions further here.
2. As for the admission of the Barraclough video into evidence, counsel for Mr Braddock maintained the video was irrelevant, and submitted further as follows:

The Respondent attempts to overcome this difficulty by stating that, in any event, the learned Magistrate did not have regard to the Barraclough Footage in determining the outcome of the trial. The Respondent does so by artificially restricting the enquiry to the learned Magistrate's ex-tempore judgment.

That approach finds no support in the legal test that is to be applied in determining whether there has been a miscarriage of justice, by reason of the admission of irrelevant evidence, as set out at paragraph 54 above. The relevant enquiry is whether the Barraclough Footage had the meaningful potential or tendency to [affect] the outcome of the proceeding.

Once again, there is no need for the Appellant to speculate as to whether this was the case, in circumstances where the Barraclough Footage was expressly cited as a basis for the learned Magistrate to refuse to allow Dr Barraclough to testify.

1. In his submissions in reply at the hearing of the appeal, counsel for Mr Braddock pressed his submission that Dr Barraclough's evidence was important, because the learned magistrate had made it clear that he only wanted to hear from engineers about engineering matters.
2. Counsel for Mr Braddock submitted that Mr D'Angelo had ample notice of the evidence Dr Barraclough would give, as the Barraclough report was served nearly two years prior to the trial. Counsel submitted that the Barraclough report addressed issues as to how the driveway should have been constructed to take into account the proximity of a large mature tree, and what steps should have been taken to maintain the driveway. Counsel submitted as follows:

It could have made a difference in the assessment of damages. The magistrate could have listened to what Dr Barraclough had to say, perhaps about the sealing of cracks, and perhaps that could have swayed the magistrate to take a further 10 per cent or 20 per cent off the construction of the driveway. We don't know, because it wasn't called - I'm sorry, it was called, it wasn't allowed to, you know, he wasn't allowed to actually give evidence. It goes straight to the pleaded issues and it's in the pleadings. It's referenced, as I've said, in other documents as well. And as I've already touched on at the start of my reply, in the context where the magistrate said he wanted to hear engineers speak on engineering issues.[30]

1. As for the question of whether Dr Barraclough should have been permitted to give evidence by AVL, counsel for Mr Braddock observed that while the inability of Mr Braddock's counsel to explain why Dr Barraclough could not attend court that day was unacceptable, it was 'not the most outlandish thing that's ever happened during a trial', and such issues are dealt with and managed on a daily basis.[31]
2. While counsel for Mr Braddock accepted that the learned magistrate was taken to the Barraclough report and the addendum, the learned magistrate said that he had not read the reports, and there was nothing in the transcript to suggest that the learned magistrate read the reports after he had been taken to them.
3. Counsel for Mr Braddock concluded his submissions as follows:

But in any event, we go back to the legal test of could it have made a difference? And I say, of course, there are things that would have been different below if this trial were run again. Of course, things would have been perhaps more, you know, properly managed.

But in a situation where you have a witness who's ready to give evidence online - again, for whatever reason, he isn't in the courtroom and that's unfortunate. Absolutely. Where you have a witness who's filed a report two years prior, and they're ready to give evidence online, and then to not call them, especially where it's the standard practice of the [Magistrates' Court] to hear things online. And I accept that two and a half days had gone past where that wasn't the case here. But that's the usual practice. I submit, in all those circumstances, it's unjust that he wasn't able to be called, and whatever he had to say and this report could have had an impact or could have made a difference.[32]

1. The determination of this appeal requires the consideration and application of the relevant legal principles regarding:

(a) the requirements of procedural fairness;

(b) the approach to be taken to appeals on a question of law from the Magistrates' Court;

(c) the approach to be taken to appellate review of discretionary decisions involving practice and procedure, including evidentiary rulings and application for adjournments;

(d) the materiality threshold; and

(e) the principles governing applications to adduce evidence by AVL under s 42E of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) ('EMPA').

1. The principles regarding the obligation of a court, tribunal or other decision-maker to afford a party procedural fairness are well established, and are uncontroversial. As stated by Mason P in Seltsam Pty Ltd v Ghaleb:[33]

As to procedural fairness, this judicial obligation is relevantly concerned with affording a reasonable opportunity to present or meet a case (Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at 611[40]). That opportunity is vital both to the reality and the appearance of justice. Just outcomes are grounded upon the court or tribunal addressing the issues presented, particularly where litigation proceeds according to the adversary principle.

Where an adjudicator hears evidence or receives argument from one side behind the back of another there will be want of procedural fairness without inquiring into the probative impact of that evidence or representation. The same goes for a refusal to entertain a relevant argument that one party wishes to put, is stopped from putting, and later turns out to have been rejected.[34]

1. However, the requirement to afford procedural fairness is not absolute. Not all procedural decisions or evidentiary rulings which deny, or appear to deny a party the opportunity to present their case in the manner in which they see fit amounts to a denial of procedural fairness. And further, not all breaches of the obligation will attract appellate intervention in the form of an order for a new trial.
2. Traditionally, this Court has taken a cautious approach to appellate review of decisions of the Magistrates' Court. The position is well summarised by Derham AsJ in Guissine v Silver Top Taxi Services Pty Ltd,[35] as follows (omitting footnotes):

The appeal under s 109 is an appeal strictly so called, and not in any sense a re-hearing. As Kaye J noted in Fiorelli Properties Pty Ltd v Professional Fence Makers Pty Ltd, '[i]t is necessary for the Appellant to be able to identify a relevant error of law made by the Magistrate before it is entitled to relief from this Court.'

Thus, the Court is not entitled to interfere with the decision of a Magistrate unless it is satisfied that they acted on a wrong principle of law, misapprehended the facts or made a wholly erroneous assessment of the relevant issues. There is a strong presumption in favour of the correctness of the decision appealed from, and the general rule is that the decision should be affirmed unless the Court is satisfied that the decision is clearly wrong.[36]

1. Similarly, in Wong v Carter,[37] the Court of Appeal held that leave should not have been granted to a party seeking to overturn decisions of a magistrate made during the course of a trial to refuse to allow the appellant to 'split' his case, to refuse an application for an adjournment to permit the calling of further evidence, and to fail to apply to what was said to be the appropriate standard of proof to the ultimate issue in the proceeding.
2. Tadgell JA (with whom the rest of the Court agreed) made the following observations with respect to the character of an appeal from the Magistrates' Court to this Court under s 109 of the Magistrates' Court Act:

A decision upon a matter of practice or procedure - or any other decision that is made in running for the purpose of regulating the conduct of a judicial hearing -is, notoriously, one that is in general left to the good judgment of the presiding judicial officer. For that reason, and almost axiomatically, a successful attack on a decision of that character will rarely be seen on an appeal of any sort. In appeals of the present limited kind under the Magistrates' Court Act, however, the rarity should increase.[38]

1. A similarly cautious approach has generally been adopted by appellate courts with respect to the decisions of primary judges concerning matters of practice and procedure, including evidentiary rulings, even where appeals are not confined to questions of law.
2. In Goldsmith v Sandilands,[39] the High Court held that a trial judge was not in error in refusing a plaintiff in a personal injury claim to reopen his case to adduce evidence in reply on an issue going to the plaintiff's credibility. However, the Court held the trial judge did err in refusing the plaintiff leave to reopen his case to adduce evidence which was only available after the plaintiff closed his case, but refused to grant relief on the basis that the evidence concerned would not have made a different to the result. In his reasons, Kirby J made the following observations regarding the latitude available to a primary judge:

The·second principle, also one of procedural fairness, concerns the consequence that follows where the appellate court considers that the discretion at trial has miscarried. Given that in every trial many rulings on the admission of evidence must be made, some insignificant and others of great importance, it is not every incorrect decision upon such a matter that will attract an appellate order for a retrial. To adopt such a rule would be unduly inflexible. It would permit technical slips of little or no consequence to overwhelm substantive merit, ignoring the mistakes and imperfections to which any human system of justice is prone.

Commonly, legislation or rules of court will involve the requirement, both in criminal and civil appeals, that an error in a ruling on evidence must produce a miscarriage of justice or substantial wrong before appellate intervention is warranted. Within such limits, the ordering of a new trial for any such error is a discretionary remedy. It follows that it is not every erroneous ruling permitting evidence to be received, or excluding it, that will justify an order setting aside the judgment entered at trial and ordering a new trial.

Specifically in the context of decisions· affecting the reception of evidence relevant to the evaluation of the credibility of a witness, a rule of vigilance has been adopted by appellate courts. The foundation for this rule is an appreciation of the fact that decisions about credibility are often complex ones in which the decision-maker must take into account a variety of evidentiary indicators pointing respectively to acceptance or rejection of the contested testimony. Until the evidence at the trial is concluded and the last word spoken in argument, our legal system requires the decision-maker to keep an open mind about the significance of particular evidence as it may cast light on the truthfulness or falsehood of the assertions of a party or other witness. In the well-known words of Denning LJ, "[n]o cause is lost until the judge has found it so; and he cannot find it without a fair trial".

However, even in such a matter the common law retains its sense of proportion. It is not every departure from procedural fairness concerning the reception or rejection of evidence relevant to the credibility of a party or witness that will entitle the aggrieved party to a new trial. In Stead v State Government Insurance Commission, this Court pointed to the cases where established error in this regard would not warrant an order for a retrial. However, it also emphasised that it "is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference" where the issue is whether the testimony of a particular witness would be accepted.[40]

1. In Giovinazzo v Resource Capital Limited,[41] the Court of Appeal dismissed an appeal from a decision of a trial judge to refuse the appellants (the defendants below) leave to issue a subpoena to a witness during the course of the trial. The sole ground of appeal was that the trial judge denied the appellants procedural fairness in refusing to allow them to call a witness who could give evidence said to be 'relevant to the "critical question" in the proceeding and which could have been determinative of that question and dispositive of all issues in this proceeding'.[42]
2. The trial judge refused leave to call the additional witness, on the basis that, among other things, the appellants had been on notice of the relevance of the evidence for some time, had sought to rely upon the new witness to tender into evidence documents which had not been discovered, there was real prejudice, because the respondents had closed their case, and the evidence the new witness could give was not of central importance to the issues in the proceeding.
3. The Court refused leave to appeal, observing that the trial judge's decision to refuse the application to call the new witness could only amount to a breach of procedural fairness if the judge's exercise of discretion to refuse the application was shown to be tainted by 'an error of principle or fact', or was 'unreasonable or plainly unjust'.[43] The Court concluded as follows (emphasis in original):

Finally, we do not consider the judge's decision to have been unreasonable or plainly unjust. The judge weighed the importance of the expected evidence against the prejudice to the Billis parties and the risk of disruption to the trial. He also took into account the lack of explanation for the failure to subpoena Mr Christensen or his file before trial and the continued claim of privilege over various documents and over the conversation Ms Langridge had with Mr Christensen (the latter of which was only disclosed for the purposes of this appeal). It was open to the judge, weighing up all these matters, to refuse the late application to call Mr Christensen.[44]

1. In Stead,[45] the High Court held that a decision to refuse a party to call a witness, or to make submissions upon whether the evidence of a witness already called should be accepted amount to a breach of procedural fairness justified appellate intervention if it could be shown that the evidence or submissions may have led to a different outcome. Such a low threshold seems, at first glance, somewhat inconsistent with the requirement for a party aggrieved by an evidentiary or procedural ruling to establish unreasonableness, or a miscarriage of justice.
2. However, in Nobarani v Mariconte,[46] the High Court granted an appeal from a decision of the New South Wales Court of Appeal, where the majority of the Court held that the appellant had been denied natural justice at a trial, but had found that the denial of natural justice had not deprived the appellant the possibility of a successful outcome. Accordingly, the Court refused to order a new trial, referring to the relevant Court rule, which precluded the Court from order a new trial in certain circumstances 'unless it appears to the Court that some substantial wrong or miscarriage has been thereby occasioned'.[47]
3. The Court stated as follows:

In summary, a power under s 75A(10) [of the Supreme Court Act 1970 (NSW)] to order a new trial arises where a denial of procedural fairness causes some substantial wrong or miscarriage. The denial of procedural fairness will cause a substantial wrong if it deprived the affected person of the possibility of a successful outcome. Unless the other party can show some reason for the exercise of discretion not to order a new trial, the power will be exercised to order a new trial. One reason that might sometimes be sufficient, and upon which the respondent relied, is where no useful result could ensue because a properly conducted trial will not make a difference.[48]

1. Accordingly, it is clear from the analysis above that where the manner in which a trial has been conducted is shown to have deprived a party of the possibility of a successful outcome, that will amount to a 'substantial wrong or miscarriage' justifying appellate intervention.
2. More recently, albeit in a different context (being the review of the decision of a delegate of a minister), the High Court said again that the materiality threshold is relatively undemanding. In LPDT v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs ('LPDT'),[49] the Court said the following (emphasis in the original):

The question in these cases is whether the decision that was in fact made could, not would, "realistically" have been different had there been no error. "Realistic" is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.

What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is "no easy task" for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. ...

In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).[50]

1. However, as discussed further later in these reasons, the learned magistrate's decision was not simply an evidentiary ruling: it was, in effect, the refusal of an application for an adjournment, albeit a short adjournment. Accordingly, questions of case management, in particular, the burden of any adjournment upon the resources of the parties and the Court, and the potential disruption to the business of a court by late applications to amend pleadings and adjourn trials are also relevant to the determination of this appeal.
2. In Aon Risk Services Pty Ltd v Australian National University[51] ('Aon'), the plurality said as follows:

Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.[52]

1. Of course, Aon[53] was concerned with a late application to amend pleadings, but substantially similar considerations apply to an application for an adjournment. In Sali v SPC Ltd,[54] the High Court dismissed a decision of the Full Court to refuse an application for an adjournment of the hearing of the appeal. The Court refused not only to grant an application for an adjournment of the hearing for two weeks, but also refused to stand the matter down to later that day, on the basis that the appeal had been set down for two to three days, and there were no other cases listed for hearing that week. The application was made in the context of the appellant having been granted a stay on his undertaking to prosecute the appeal with expedition. The appeal had been listed for hearing some months earlier than expected, as the Court conducted a 'spring offensive' in late 1992 in order to clear a backlog of civil cases.[55]
2. The plurality referred to the statement of the English Court of Appeal to the effect that '...although an appellate court will be slow to interfere with the discretion of a trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party'.[56] However, the plurality then went on to say as follows:

In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties. As Deane J pointed out in Squire v Rogen this "may require knowledge of the working of the listing system of the particular court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing". What might be an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.[57]

1. Toohey and Gaudron JJ dissented in the result, but concurred with the plurality's statement of principle, saying as follows:

The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard. Because these considerations are singularly within the knowledge of the court to which an application for an adjournment is made, there is an added reason why this court should not interfere with a decision made on such an application.[58]

1. In Queensland v JL Holdings Pty Ltd[59] ('JL Holdings'), the plurality of the High Court held that nothing in Sali v SPC Ltd[60] provided that principles of case management could preclude a party from litigating a fairly arguable case, save in extreme circumstances.[61] However, in Aon,[62] the High Court expressly declined to follow JL Holdings.[63]
2. Accordingly, while the obligation of a decision-maker to afford procedural fairness is of course a critical feature of our system of justice, the obligation is tempered by case management considerations, and, in any event, considerations of utility and materiality necessarily influence what remedy is available for any asserted breach.
3. The learned magistrate's decision to refuse to permit Dr Barraclough to give evidence followed his earlier decision to refuse Mr Braddock's application to give evidence by AVL ('AVL application'). Accordingly, I will refer, briefly, to the principles relevant to the determination of applications made pursuant to s 42E of the EMPA. The principles are conveniently summarised in the following extract of the decision of Gobbo AsJ in Grege v Grege[64] (omitting footnotes):

The Act gives the Court a broad discretionary power to make orders for the taking of evidence by audio-visual link. In ASIC v Rich, similar provisions of the Evidence (Audio and Audio-Visual Links) Act 1998 (NSW), the related procedural rules and the case law about the procedure were analysed by Austin J.

Austin J identified the following matters as being relevant to the Court's discretion:

"Apart from dealing with obvious practical matters such as comparative costs and the difficulty created by differences in time zones, the cases touch upon some recurring themes: the appropriateness of audio-visual facilities for centrally important evidence, the assessment of credit where evidence is given by audio-visual link, difficulties raised by the use of documents for cross-examination in audio-visual evidence, technological difficulties due to lapse of time between transmission and receipt of questions and answers, and difficulties posed by the use of audio-visual facilities where the cross-examination is lengthy. There are also comments on the general approach to be taken by the court to a proposal for evidence to be adduced using audio-visual facilities."

In Kirby v Centro Properties Limited, Gordon J identified some of the factors a Court may take into account in exercising its discretion to allow video link evidence:

"the employment commitments of an overseas witness: see, for example, Reinsurance Australia Corp at [4];

whether the credibility of the witness is in issue: ASIC v Rich at [28]; Australia Medical Imaging at [27]; Sunstate Airlines (Qld) at 6 and Lamesa Holdings BV v Commissioner of Taxation (unreported, FCA, Sackville J, 30 July 1998) at [6];

whether the witness' evidence will be 'centrally important' to the case: see, for example, StoresOnline International Inc at (15) and ASIC v Rich at [22) and (28];

whether the use of video link may frustrate or delay the management of documents in cross examination: see, for example, ASIC v Rich at [31)."[65]

1. Her Honour granted the application, referring to the fact that the Lebanon domiciled witnesses were professional witnesses, with other professional commitments, and their credibility was unlikely to be in issue
2. Finally, the flexibility available to the learned magistrate in determining whether to permit a witness to give evidence and in determining the manner in which they give evidence is illustrated by the terms of s 192 of the Evidence Act. Section 192 provides as follows:

192 Leave, permission or direction may be given on terms

(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account -

(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and

(b) the extent to which to do so would be unfair to a party or to a witness; and

(c) the importance of the evidence in relation to which the leave, permission or direction is sought; and

(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

1. As indicated earlier in these reasons, I consider that the learned magistrate's decision to, in effect, refuse to allow Dr Barraclough to give evidence was reasonable in all of the circumstances, and did not amount to a breach of his obligation to afford Mr Braddock procedural fairness. That finding of itself is sufficient to dispose of the appeal. However, for completeness, and in the event that I am wrong in my conclusion that there had been no breach of the requirements of procedural fairness, then I consider that Mr Braddock has failed to meet even the rather undemanding materiality threshold established by the High Court in Stead.[66] In my view, there was no realistic possibility that Dr Barraclough's evidence would have led to a materially different outcome, either in relation to liability, the quantum of damages, or the award of costs.

Did the learned magistrate fail to comply with the requirements of procedural fairness?

1. When evaluating whether the learned magistrate's conduct amounted to a breach of procedural fairness, it is necessary to properly characterise the decisions the learned magistrate actually made, and the reasons for making those decisions.
2. Mr Braddock submits that the decision of the learned magistrate was to preclude Dr Barraclough from giving evidence because the Barraclough report did not comply with Order 44 of the Rules. Mr Braddock says that this decision was made without the learned magistrate taking the time to read and consider the Barraclough report, or to consider the nature and extent of the non-compliance, the circumstances in which the non-compliance occurred, and whether the non-compliance would be remedied either by a supplementary report or oral evidence.
3. Mr Braddock's characterisation of the nature of the learned magistrate's decision and reasons is entirely understandable, given what was actually said by the learned magistrate (see the extracts of the transcript at paragraphs 90 and 93 of these reasons). However, upon considering the whole of the exchange between the bench and the bar table after Mr Berrell completed his evidence, along with two exchanges earlier that morning (see paragraphs 80 and 83 of these reasons), in my view, the proper analysis is as follows:

(a) at the commencement of the final day of hearing, counsel for Mr Braddock made an application pursuant to s 42E of the EMPA ('AVL application'),[67] which was refused, because counsel was unable to provide an explanation as to why Dr Barraclough could not give evidence in person;

(b) after Mr Berrell finished giving evidence, the AVL application was renewed, and again refused; and

(c) counsel for Mr Braddock then made, in effect, an application for an adjournment of the trial to enable Dr Barraclough to give evidence in person after travelling from Ballarat, which the learned magistrate refused on the basis that if the application was allowed, the trial could not be completed that day, and the parties would be required to incur the costs of a further day of hearing.

1. It seems to me that the reference by the learned magistrate to the Barraclough report being non-compliant with Order 44 of the Rules is somewhat of a red herring. I have no doubt that had the learned magistrate granted the AVL application, or had Dr Barraclough been present in court after Mr Berrell had concluded his evidence, the opposing arguments regarding the objection would have been fully ventilated and ruled upon, either prior to Dr Barraclough giving evidence, or during the course of closing submissions. Given that the objection, which was multi-faceted,[68] was arguable, but was capable of being rebutted, it is not necessary for present purposes to predict the outcome of the objection. Rather, it is abundantly clear that the real reason why Dr Barraclough was not permitted to give evidence was because he was not present in court to give evidence when he was due to do so, and, while he did not say so expressly, the learned magistrate was not prepared to revisit his refusal of the AVL application.
2. Turning now to the learned magistrate's decision to refuse the AVL application, the principles governing applications of that kind are summarised in the preceding section of these reasons. However, it is important to note that s 42E of the EMPA does not, save for the requirement that the court must be satisfied of the relevant technical requirements, purport to guide or fetter the discretion conferred upon a judicial officer as to whether to grant an application under s 42E of the EMPA. The exercise of the discretion is to be guided by the principles referred to in the authorities, and by the overarching principles established by the Civil Procedure Act 2010 (Vic), but otherwise the discretion is quite broad. Further, as the determination of such an application goes to a matter of practice and procedure, and/or amounts to an evidentiary ruling, the scope for appellate intervention is arguably quite limited.
3. Accordingly, in my view, the question is whether it was reasonably open to the learned magistrate to refuse the AVL application. In my view, given the lateness of the application, the absence of any reasons given for the making of the application when it was first made, the manner in which the trial had been conducted to date, the somewhat cavalier approach to the court evidenced by the manner in which the application was made, and the reasons advanced for the making of the application, along with the fact that the credibility of Dr Barraclough's evidence may well have been in issue, all told against the granting of the AVL application.
4. It goes without saying that the appetite for hearing evidence by AVL varies from judicial officer to judicial officer. Judicial officers will reasonably differ as to their perceptions as to the disparity in the quality of evidence given by AVL and evidence given in person, although I would expect that the general consensus would be that, all other things being equal, the quality of in-person evidence is considered to be generally superior. Judicial officers will also reasonably differ as to the extent to which they are prepared to adapt their court's timetables and procedures to accommodate the convenience of parties and witnesses. The fact that another judicial officer might have no difficulty in switching the mode of trial at the last minute to accommodate the convenience of a professional witness does not mean that the learned magistrate's refusal to adopt a more relaxed approach was unreasonable. After all, the onus was upon Mr Braddock to make out a case for Dr Barraclough to give evidence by AVL, and the case he did make was hardly compelling.
5. Further, while it was not clear from the transcript whether this issue was at the forefront of the learned magistrate's mind, the credibility of Dr Barraclough's evidence may well have been an issue, both on the question of admissibility of his evidence, and on the substance of his evidence, which may well have been relevant to the learned magistrate's refusal of the AVL application.
6. To explain further, one limb of the objection was that if and when Dr Barraclough inspected the driveway, he did so as a trespasser on Mr D'Angelo's property. His explanation of the circumstances in which he attended at Mr D'Angelo's property, and the credibility of the that explanation may well have been relevant to the question of whether the Barraclough report ought be admissible under s 138 of the Evidence Act.
7. Further, given what was shown by the Berrell video, and the learned magistrate's criticisms of the evidence of Mr Berrell, the question of whether the evidence of the expert witnesses called by Mr Braddock had been unduly influenced by the instructions given directly by Mr Braddock may also have been an issue that counsel for Mr D'Angelo would wish to explore had Dr Barraclough had been permitted to give evidence. The fact that the credibility of Dr Barraclough was an issue, and the fact that all of the other expert witnesses had given evidence in person, means that the learned magistrate's decision to refuse the AVL application was a decision which was reasonably open to him to make.
8. Turning now to the learned magistrate's refusal to grant an adjournment, as discussed earlier in these reasons, given the fact that the refusal of the adjournment application had the practical effect of depriving Dr Barraclough the opportunity to call a witness who could, at least prima facie, give relevant evidence about a critical issue in the proceeding, being causation, the learned magistrate's refusal of the adjournment application could certainly amount to a breach of the requirements of procedural fairness.
9. However, since the decision of the High Court in Aon,[69] not every decision of a judicial officer which has the effect of precluding a party from running a case they want to run at trial in the way that they want and when they want will be susceptible to appellate review on the grounds of denial of procedural fairness. Considerations such as the effect of an adjournment on the resources of the parties and the courts and public confidence in the administration of justice have assumed far greater importance in judicial decision making and discourse over the past 15 years or so, as illustrated by the Court of Appeal decision relied upon by counsel for Mr D'Angelo in his submissions.[70]
10. Accordingly, the learned magistrate's decision to refuse the adjournment application needs to be viewed in the changed landscape created by the decision of the High Court in Aon,[71] as well as in the context of how the trial before the learned magistrate was scheduled and in fact proceeded.
11. The proceeding was issued in early 2022, and following the exchange of expert reports, and a further adjourned trial earlier in 2024, the proceeding was set down for a four day trial in late 2024. The four day estimate turned out to be quite accurate. If Dr Barraclough had been in court to give evidence, or if the learned magistrate had granted the AVL application, in all likelihood the trial would have been completed that day. If the adjournment application had been granted, it probably would not have concluded that day.
12. To explain further, based upon the exchange between the bench and the bar table extracted at paragraph 93 of these reasons, if the adjournment application had been granted, Dr Barraclough would not have been in a position to commence giving evidence until after the luncheon break. His presence in the witness box would have been prolonged by the hearing and determination of the objection, which may well have involved Dr Barraclough giving evidence on a voir dire regarding, among other things, the circumstances in which he came to inspect Mr D'Angelo's property. There may also have been an argument about whether Dr Barraclough would be able to give further evidence arising from his inspection of the driveway on the first day of trial, although I doubt very much whether that argument would have been resolved in Mr Braddock's favour. Had the objection been otherwise resolved in Mr Braddock's favour (as I assume it would have for the purposes of these reasons), then Dr Barraclough would have been cross-examined, then re-examined. The parties would then have made their closing submissions, and the learned magistrate would then have delivered his ruling.
13. In those circumstances, the decision of the learned magistrate to refuse to stand the matter down in order to wait for Dr Barraclough to attend court was a decision which was reasonably open to him in the circumstances. The proceeding had been set down for a four day trial, and by the time Dr Barraclough was due to give evidence, the trial was in the middle of the morning of the final day. Granting the adjournment application would almost certainly cause the trial to go another day.
14. As illustrated by the quantum of the costs ultimately awarded in favour of Mr D'Angelo, the parties had incurred considerable costs in progressing the dispute to trial. No doubt a considerable proportion of those costs would have been attributable to the preparation of expert reports, not legal fees, and therefore had already been incurred, but the costs to the parties of an additional day in court in the context of a dispute between neighbours over a damages claim of less than $50,000 would not be negligible. Also relevant to the learned magistrate's decision was the potential disruption to a busy court, especially in circumstances where there was a real question-mark over whether Dr Barraclough's evidence was even going to be admissible, given the objection.
15. Accordingly, in my view, the learned magistrate's decision to refuse the adjournment application was reasonable, and was thus within the bounds of his decisional freedom.

Would calling Dr Barraclough have made any difference?

1. As can be seen from the discussion in the section of these reasons headed 'Relevant legal principles', the test to be applied as to whether any breach of the requirements of natural justice is material, and therefore should sound in relief from this Court, is whether the decision which was made could realistically have been different had there been no error. As noted by the High Court in LPDT,[72] what is a realistic possibility is one which is not 'fanciful or improbable'.[73] Arguably, given that the learned magistrate's decisions had the effect of excluding Dr Barraclough to give evidence, a more demanding threshold should apply. Dr Barraclough's evidence went to a fact in issue, being causation, not the credibility of another witness. However, for the avoidance of doubt, I will adopt the test for materiality expressed by the High Court in LPDT.[74]
2. In LPDT,[75] the Court criticised the Full Court for making assumptions about the tribunal's reasoning process had it not made an error, and said further that:

[A] reviewing court does not engage in the review of the merits of the decision, reconstruct a decision-making process, rework the apparent basis upon which a decision has been made, or rewrite the reasons for decision.[76]

1. I have that caution in mind when embarking upon the exercise of determining whether allowing Dr Barraclough to give evidence could realistically led to a different outcome for Mr Braddock at trial. However, the current case is somewhat different to the case before the High Court in LPDT.[77] In that case, the relevant decision-maker was an administrative decision-maker applying a statutory test in a quasi-inquisitorial process, and the reasoning of the tribunal was said to be 'scant'.[78]
2. In the current case, there was extensive oral and documentary evidence available to the learned magistrate over the course of a number of days, which was contestable and contested, with expert witnesses being subjected to extensive and thorough cross-examination. The learned magistrate's reasoning process was transparent, and there was no suggestion that Mr Braddock was not alerted to the issues he had to address at trial.
3. Evaluating whether any breach of procedural fairness does require, at least to some extent, the construction of a counter-factual. In doing so, I make the following assumptions:

(a) that the admissibility issues associated with the Barraclough report would have been overcome;

(b) while in examination-in-chief counsel for Mr Braddock may have been permitted to ask questions of clarification regarding the driveway hypothesis, he would not have been permitted to ask Dr Barraclough questions about the alternative hypothesis, or about any of his observations or findings arising from his inspection on the first day of trial;[79] and

(c) Dr Barraclough would not resile from his opinion concerning the driveway hypothesis under cross-examination.

1. However, in my view, the likelihood that Dr Barraclough's evidence would have materially altered the learned magistrate's view as to causation of damage, or the costs of rectification, such as to materially alter the outcome at trial, is so remote as to be fanciful, as explained further below.
2. First, the Barraclough report did not address the rectification works required to repair the damage to Mr D'Angelo's property or the costs of those works. Accordingly, Dr Barraclough's evidence would be relevant only to the causation of damage, not the quantum of damage. Further, the Barraclough report made no reference to the issue of whether the tree should be removed.
3. Accordingly, the question is whether the Barraclough report, and in particular, his propoundment of the driveway hypothesis would have been sufficiently persuasive to materially alter the learned magistrate's finding that he was satisfied that '100 percent of the damage [of the driveway was] caused by the tree'. It is to be kept in mind that this finding was influenced by the learned magistrate's enthusiastic acceptance of the evidence given by the experts called by Mr D'Angelo, particularly Mr Marcon, and the learned magistrate's own observation that the structure of that part of the driveway was not affected by tree root incursion had held up quite well over time.
4. Further, the question of materiality needs to be considered in the context and composition of the ultimate orders made by the learned magistrate and the impact of the offers made by Mr D'Angelo (and rejected by Mr Braddock) upon the quantum of costs awarded in favour of Mr D'Angelo. To explain further, of the damages awarded against Mr Braddock, approximately 75 percent were attributable to the costs of rectification of the driveway, and the remainder to the repair works to the garage.
5. However, the quantum of damages awarded to Mr D'Angelo was dwarfed by the award of costs. That award was ultimately agreed between the parties, but that agreement must not have only been influenced by Mr D'Angelo's substantive success in the proceeding, but also the quantum and timing of the offers made by Mr D'Angelo. In order to have a material effect on the ultimate award of costs to Mr D'Angelo, Dr Barraclough's evidence would have to led to the learned magistrate coming to a radically different view regarding the contribution of the tree to the damage to the driveway.
6. The first offer was made on 5 August 2021, before the issue of the proceeding, whereby Mr D'Angelo made no demand for the removal of the tree, and offered to accept $10,000 plus GST ('first offer'). That is, Mr D'Angelo was willing to accept less than 25 percent of the damages ultimately awarded, and the offer otherwise satisfied the requirements laid down by the authorities.[80]
7. The award ultimately made by the learned magistrate was substantially in excess of each of the subsequent offers made by Mr D'Angelo to Mr Braddock. While each of the offers contained different non-monetary terms regarding the works required to be done by Mr Braddock, the quantum of the sums Mr D'Angelo was prepared to accept are set out below.

$8,900 plus GST, legal costs of $1,100 plus GST, plus an arborist fee of $275.

Total: $11,275 inclusive of costs, $9,790 exclusive of costs.

$9,300 (driveway), $7,260 (garage), $3,750 (arborist fees), $17,541.50 (legal fees).

Total: $37,901.50 inclusive of costs, $16,610 exclusive of costs.

1. To recapitulate, at trial, Mr D'Angelo was awarded damages of $44,972.10, plus costs of $164,658. The quantum of the costs component of the award suggests that they may have been calculated on an indemnity basis. In order for Mr D'Angelo to achieve an outcome at trial less favourable than the first offer, Dr Barraclough's evidence would have to persuade the learned magistrate that the tree had contributed less than 25 percent of the damage to the driveway and the garage, and arguably, space that it would not be necessary to remove the tree. In my view, Mr Braddock has not established that there was a realistic possibility of such an outcome, particularly in the light of the learned magistrate's emphatic acceptance of Mr Marcon's evidence, his rejection of Mr Brownhill's (unexplained) opinion that the tree had only contributed 15 percent of the damage to the driveway, his scepticism of Mr Brownhill's evidence generally and his rejection of Mr Berrell's evidence in its entirety.
2. In order for Dr Barraclough's evidence to have made a real difference, Mr Braddock would have to establish that there was a real prospect that the learned magistrate would have accepted Dr Barraclough's opinion regarding the cause of the damage to the driveway, being that the damage to the driveway was completely unrelated to the tree, or that there was a real prospect that Dr Barraclough's evidence would have persuaded the learned magistrate to accept Mr Brownhill's opinion that the tree had made only a minor contribution to the damage. Further or alternatively, given that Mr Brownhill had prepared comprehensive reports regarding the causation issue, and had been permitted to give further oral evidence during his examination-in-chief, Mr Braddock would need to show that Dr Barraclough would have given new evidence that Mr Brownhill had not given or was not qualified to give, or, that Dr Barraclough's evidence would have been inherently far more persuasive than Mr Brownhill's evidence.[82]
3. The written submissions in reply filed on behalf of Mr Braddock contain, in summary form, a useful comparison of the Barraclough report and the first Brownhill report. The main conclusions of the Barraclough report were as follows:

(a) the cracking in the garage wall was consistent with what might be expected given the clay soil upon which it was constructed;

(b) the construction of the driveway was not well thought through, as it should have been designed to take into account the presence of the tree, including tree root barriers and deepened edge beams;

(c) the slab of the driveway was a varying thickness, there was no steel reinforcement, and the size of the control joints varied, making it 'extremely brittle and susceptible to cracking';

(d) there was poor surface drainage at the edge of the driveway, likely weakening the subsoil structure of the driveway; and

(e) none of the fractures in the driveway had been repaired, enabling water to seep into the fractures and further weakening the subsoil.

1. In comparison, Mr Brownhill's opinion conflicted with Dr Barraclough's opinion in respect of three matters:

(a) he agreed that the tree had caused damage to two panels of the driveway;

(b) the installation of the driveway was consistent with acceptable building practices at the time; and

(c) in his oral evidence, he said that sealing the cracks in the driveway would be ineffective.

1. However, notwithstanding Mr Brownhill's concession that the driveway was constructed in accordance with acceptable building practices at the time, Mr Brownhill then went on to level a number of criticisms at the construction of the driveway. Mr Brownhill's criticisms not only mirrored the criticisms in the Barraclough report (depth of slab, absence of steel reinforcements, inadequate drainage and faulty control/isolation joints) but also went further than the Barraclough report, referring to, among other things, the alternative hypothesis. Further, unlike the Barraclough report, the Brownhill report and the supplementary Brownhill report were directly responsive to the Marcon reports, and the opinions of Mr Marcon regarding the cause of damage to the driveway.
2. The only evidence given by the Barraclough report which was not referred to or repeated in Mr Brownhill's reports was Dr Barraclough's statement that the construction of the driveway should have taken into account the presence of the tree, through the installation of tree root barriers, deepened edge beams, and 'the like'. However, there was evidence at trial from Mr Molloy and Mr Berrell about the effectiveness or otherwise of tree root barriers.
3. In sum, I agree with the submissions of counsel for Mr D'Angelo to the effect that the admission of the Barraclough report could not realistically have materially altered the outcome of trial. I do so evaluating the possibility of a different outcome against the rather undemanding threshold referred to by the High Court in Stead[83] and LPDT,[84] even though it is arguable that a more stringent standard should apply given that the evidence which would have been given by Dr Barraclough went to issues of causation rather than credibility.
4. I accept that the somewhat granular analysis and reasoning above may appear to be inconsistent with some of the authorities which have considered whether the materiality threshold has been met, where a more generous, broad-brush approach is generally adopted, consistent with the undemanding nature of the test. However, a more granular approach is appropriate when there a range of possible outcomes. In many proceedings where there are only two possible outcomes (such as whether a visa is revoked or affirmed), the analysis can be a little more broad-brush. If there is a realistic, even if less than fifty percent, possibility of a different outcome, the materiality threshold is met.
5. However, in the current case, there were a myriad of possible outcomes. The learned magistrate could have reached a range of conclusions as to the contribution of the tree to the damage of the driveway, the contribution of the tree to the damage to the garage, whether the tree needed to be removed, and the betterment issue. All of those findings fed into the ultimate result, which in turn had to be compared to the offers made by Mr D'Angelo in order to evaluate and quantify Mr D'Angelo's entitlement to costs, which was by far the largest financial burden imposed upon Mr Braddock by the orders made by the learned magistrate.
6. Accordingly, the non-binary nature of this proceeding complicates the question of what would amount to a successful outcome for Mr Braddock. Of course, a finding of no liability whatsoever would have been a successful outcome, but counsel for Mr Braddock conceded in his submissions at the hearing of the appeal that such an outcome was highly unlikely.
7. To illustrate this point further, I accept that it is not beyond the realms of possibility that Dr Barraclough's evidence could have persuaded the learned magistrate that there were other causes of damage to the driveway. But, had the learned magistrate concluded that, say, only 50 percent or 75 percent of the damage to the driveway was caused by the tree, would that be a successful outcome, the mere possibility of which would justify a new trial?
8. If the learned magistrate had made a finding that 75 percent of the damage to the driveway had been caused by the tree, the quantum of damages awarded with respect to the damage to the driveway would have been reduced by about $12,000, to around $33,000. However, such an award in favour of Mr D'Angelo would still have bettered, by a considerable margin, each of the offers made by Mr D'Angelo throughout the course of the proceeding. The reduction in damages of $12,000 would only represent five percent of the total award of damages and costs: hardly a successful outcome justifying a fresh four day trial.
9. The same could be said for the proposition advanced by counsel for Mr Braddock in his observations at the commencement of the hearing of the appeal that an award of damages of $20,000[85] would be a successful outcome for Mr Braddock. However, such an award of damages would not have led to a different outcome with respect to costs, given the terms of the offers made by Mr D'Angelo prior to trial (although that may have bettered the second offer).
10. What would have amounted to a successful outcome for Mr Braddock would have been the acceptance by the learned magistrate of Mr Brownhill's opinion that only 15 percent of the damage to the driveway was caused by the tree. Mr Brownhill provided detailed and comprehensive reports, and was given an opportunity to explain his reasoning as to why the learned magistrate should accept his opinion, and he failed to do so. It is difficult to see how the admission of the Barraclough report, which was rather thin in its analysis and reasoning, and did not concede that the tree had affected the driveway at all, would have made up for the deficiencies in Mr Brownhill's evidence and opinions evident from the transcript of the trial.
11. In my view, Mr Braddock has failed to establish that allowing Dr Barraclough to give evidence would have caused the learned magistrate to accept an opinion he had already rejected, and to reject the opinions of Mr D'Angelo's experts, which he had enthusiastically accepted. Further, given the terms of the offers that had been made by Mr D'Angelo, it would not be sufficient to establish that Dr Barraclough's evidence might have persuaded the learned magistrate to modestly discount the damages awarded to Mr D'Angelo. Mr Braddock must persuade me that there was a real possibility that the learned magistrate would have made a complete about turn after hearing from Dr Barraclough, and he has failed to do so.
12. Accordingly, Mr Braddock has not established that, even if there had been a breach of procedural fairness on the part of the learned magistrate, that there was a realistic prospect of Mr Braddock obtaining a successful outcome had that breach not occurred.

1. For completeness, I do not consider that the learned magistrate's decision to provisionally admit the Barraclough video into evidence has any bearing on the issues in this appeal.
2. First, while not centrally relevant to the issues before the learned magistrate, the Barraclough video, at least at the time it was provisionally admitted, was relevant and admissible. In particular, the Barraclough video was potentially relevant to the question of whether the Barraclough report should be excluded under s 138 of the Evidence Act. As it turns out, the AVL application was rejected, and Dr Barraclough did not get to court in time to enable the objection to be ventilated and determined. But at the time it was provisionally admitted, the Barraclough video was relevant.
3. Secondly, counsel for Mr Braddock at the hearing of the appeal submitted that the Barraclough video should have been excluded pursuant to s 135(a) of the Evidence Act, on the basis that its admission was unfairly prejudicial to Mr Braddock. However, it is difficult to see how, in circumstances where Dr Barraclough did not give evidence, how that could be the case.
4. To explain further, once Mr Braddock had made the concession to the effect that he attended the Braddock property on a daily basis during the relevant period, the only relevant factual dispute between the parties was the question of causation. The Barraclough video could have been relevant to impugn the credibility of Dr Barraclough's evidence, had he given evidence, but he did not. The Barraclough video could have also been deployed to attack Mr Braddock's credibility, but, as discussed in paragraph 10 of these reasons, the practical relevance of Mr Braddock's credibility as a witness fell away during the course of the trial.
5. While counsel for Mr Braddock in his submissions said that the learned magistrate 'failed to exclude [the Barraclough video] from his reasoning after he allowed it into evidence', and referred to an exchange where the learned magistrate expressed some exasperation at Dr Barraclough's conduct (see paragraph 90 of these reasons), it is not at all clear how it is said that the admission of the Barraclough video prejudiced Mr Braddock at trial. It was not expressly put that the Barraclough video unduly influenced the learned magistrate's decision not to stand the matter down to await Dr Barraclough's arrival from Ballarat. As indicated earlier in these reasons, other issues were paramount in the learned magistrate's mind at the time.
6. Further, while the Barraclough video would have been relevant to the objection, ultimately, given that Dr Barraclough was not present to give evidence, that relevance fell away. It was also not expressly put that the learned magistrate formed an adverse view of Mr Braddock's case on causation by reason of the admission of the Barraclough video into evidence. In any event, there was ample evidence upon which the learned magistrate could reach the conclusions that he did, and it is abundantly clear that he preferred the evidence of the experts called by Mr D'Angelo over the experts called by Mr Braddock.
7. Accordingly, I will dismiss the appeal, and hear further from counsel on the question of costs.

[1] The tree is approximately 1.5 metres from the boundary fence.

[2] Mr Braddock's Notice of Appeal filed on 17 December 2024 identified the following question of law: 'Did the learned magistrate err in determining the question of whether the Appellant was in control of [the Braddock property] for the period 2012 to 2018, when that question was never set out in the pleadings?' However, this question of law and the related ground of appeal were abandoned in the written outline of submissions filed on behalf of Mr Braddock.

[3] Mr D'Angelo contended that this report did not comply with the orders made on 16 June 2024, as the supplementary Berrell report was not responsive to the Molloy report, but rather addressed issues regarding the construction and maintenance of the driveway.

[4] Mr Hondros is apparently an engineer, but also operates a concrete supply business. His 'report' was actually a quote to repair a portion of the driveway for $2,200. Ultimately, Mr Braddock was permitted to tender this document, but it was ultimately given little weight by the learned magistrate.

[5] Mr Chatfield was not ultimately called to give evidence at trial, as noted in the chronology of events. However, reports prepared by witnesses engaged by Mr Braddock were responsive to Mr Chatfield's reports, and the arborist ultimately called by Mr D'Angelo to give evidence at trial (Mr Molloy) relied upon Mr Chatfield's investigations and agreed with his conclusions.

[6] But not served until 21 February 2023. See footnote 4.

[8] The second Marcon report included a diagram which outlined the part of the driveway which needed to be replaced, which looks to be about two-thirds of the surface area of the driveway.

[9] This characterisation of the extent of non-compliance was disputed by counsel for Mr D'Angelo at the hearing of the appeal, but it is not necessary to resolve that dispute in the context of this appeal.

[10] This exchange was said by counsel for Mr Braddock in his submissions at the appeal to be significant because it elevated the importance of permitting Dr Barraclough, who was the only qualified engineer relied upon by Mr Braddock, to give evidence at the trial.

[11] The reference to 'Order 44A' is taken to be a reference to Form 44A, which is the expert witness code of conduct.

[12] That is, the question of whether Mr Braddock was in effective control of the Braddock property prior to becoming its registered proprietor in 2018.

[13] The learned magistrate observed, correctly, that an uplift fee could only be sought with respect to the solicitors' fees, not counsel fees and other disbursements.

[18] [2012] VSC 340. Counsel for Mr Braddock also referred to the decision of Young JA in Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279 as cited in Bekaa Dairy Products Pty Ltd v Speak Industries Pty Ltd [2020] NSWSC 47.

[19] Section 138(1) of the Evidence Act provides as follows:

Evidence that was obtained - (a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law - is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. Section 138(3) of the Evidence Act provides a non-exhaustive list of the matters a court is required to take into account when making a determination of s 138(1) of the Evidence Act.

[23] It is possible that the reference of counsel for Mr Braddock below to the alternative hypothesis being documented in the Barraclough report (see the exchange reproduced at paragraph 59 of these reasons) was a mistake, given that he later took the learned magistrate to the Brownhill report in support of Mr Braddock's application to amend his defence.

[26] [2025] VSCA 176.

[33] [2005] NSWCA 208.

[35] [2016] VSC 225.

[37] [2000] VSCA 53.

[39] [2002] HCA 31; (2002) 190 ALR 370.

[41] [2025] VSCA 176.

[46] [2018] HCA 36; (2018) 265 CLR 236, 248 [39].

[47] Uniform Civil Procedure Rules 2005 (NSW) r 51.53(1).

[48] [2018] HCA 36; (2018) 265 CLR 236 [39].

[49] [2024] HCA 12; (2024) 280 CLR 321.

[51] [2009] HCA 27; (2009) 239 CLR 175.

[54] [1993] HCA 47; (1993) 116 ALR 625.

[56] Ibid 628, citing Maxwell v Keun [1928] 1 KB 625, 650, 657, 658.

[59] (1997) 189 CLR 146.

[60] [1993] HCA 47; (1993) 116 ALR 625.

[61] JL Holdings (1997) 189 CLR 146, 154.

[62] [2009] HCA 27; (2009) 239 CLR 175.

[63] (1997) 189 CLR 146.

[64] [2024] VSC 475, referred to with approval by Delany J in Aollande Pty Ltd v He [2024] VSC 736 [69]-[71].

[67] No express reference was made by the parties or the learned magistrate to s 42E of the EMPA, but this was the learned magistrate's source of power to allow a witness to give evidence by AVL.

[68] The objection was based upon three separate grounds, being non-compliance with Order 44 of the Rules, relevance, and s 138 of the Evidence Act 2008 (Vic).

[69] [2009] HCA 27; (2009) 239 CLR 175.

[70] Giovinazzo v Resource Capital Limited [2025] VSCA 176. See paragraphs 152 to 154 of these reasons.

[71] [2009] HCA 27; (2009) 239 CLR 175.

[72] [2024] HCA 12; (2024) 280 CLR 321.

[79] Because the introduction of new expert evidence so late would fall foul of Order 44 of the Rules.

[80] See Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435.

[81] This offer was a formal offer of compromise under Order 26 of the Rules.

[82] I set aside for present purposes the evidence of Mr Berrell. Mr Berrell was inherently unqualified to give evidence regarding the quality of the construction of the driveway, and his evidence was emphatically rejected by the learned magistrate.

[84] [2024] HCA 12; (2024) 280 CLR 321.

[85] An award of $20,000 would reflect a finding by the learned magistrate that approximately 50 percent of the damage to the driveway and the garage had been caused by the tree.