Ground 2
30 Mr Ekermawi submitted on a number of occasions at the hearing of the s 56A(1) appeal that the commissioner ought to have found on the evidence before the Court that the tree had caused, is causing or is likely in the near future to cause damage to Mr Ekermawi's property and is likely to cause injury to any person. In response to my inquiry as to why that involved a question of law and was not merely a question of fact, Mr Ekermawi narrowed the focus of this ground of appeal to the fourth sentence in para 7 of the commissioner's judgment, that "there is no evidence of any damage to any vehicle parked on the applicant's property." Mr Ekermawi submitted that this was a finding of fact where there was no evidence to support the finding and this was an error of law.
31 Mr Ekermawi submitted that there was in fact evidence that the tree had caused damage to his van parked on his property. Mr Ekermawi referred to the photographs showing fallen branches after the storm on 31 January 2008 behind a van parked in the driveway of his property. The photographs, he said, showed a damaged tail light on the van. Mr Ekermawi also referred to a quotation from a motor vehicle repairer to repair damage to the van (which was more extensive than the damaged tail light) and to Mr Ekermawi's insurance claims for damage to his van. Mr Ekermawi referred to the statement in Mr El Haddad's affidavit that "on or about January 2008, during a storm the tree in question as usual dropped small and large branches, but this time damaging my Mercedes where the insurance has writing it off and damage to my neighbours' van, I have lodged a claim for it with the NRMA … ". As to Mr El Haddad's reference to lodging a claim with the NRMA, I note that NRMA Insurance rejected the claim that the tree had caused damage to the van saying "from information in our possession we do not consider our client to be liable for this instance and therefore deny liability …": see NRMA Insurance's letter of 21 October 2009.
32 No error of law is revealed in the commissioner's sentence challenged by Mr Ekermawi. Mr Ekermawi's argument involves a misconstruction of the sentence. The sentence needs to be construed in the context of the paragraph and the judgment as a whole.
33 The commissioner noted in para 2 of the judgment that Mr Ekermawi in the application before the Court was seeking the removal of the tree and compensation for damage to his car, as well as to his house, and that Mr Ekermawi sought these orders because he contends that the tree has caused damage and is concerned that it will continue to do so.
34 In para 7 of the judgment, the commissioner started the discussion on Mr Ekermawi's claim of damage to his car with the statement: "The damage said to have been caused to the car that forms part of the claim for compensation occurred during a storm on 31 January 2008". The commissioner then referred to the actions of the SES saying "the SES removed a large section of the tree that had fallen towards the applicant's house." Mr Ekermawi had provided to the Court the letter from the SES in which they stated that they had attended on 1 February 2008 and cut a large branch (8 m in length) that had been caught approximately 12 m up in the tree using a cherry picker, and also removed a smaller branch also caught up in the tree. This letter provides an evidentiary basis for the commissioner's finding.
35 The commissioner then referred to the set of photographs that Mr Ekermawi had provided to the Court depicting the fallen branches laying on the properties at 120 and 122 Nuwarra Road, Moorebank after the storm on 31 January 2008. The sentence challenged by Mr Ekermawi is one of three sentences in which the commissioner makes findings of fact based on the photographs taken after the storm. In the first of these sentences, the commissioner finds that the photographs show some branches on Mr Ekermawi's property, with the majority of debris being on the driveway of 122 Nuwarra Road, Moorebank (then owned by Mr El Haddad). In the third of the sentences, the commissioner finds the photographs show a car parked in front of the garage of 122 Nuwarra Road covered by branches. This was Mr El Haddad's Mercedes. The second of these three sentences, the one challenged by Mr Ekermawi, also involved the commissioner making a finding based on the photograph. The commissioner's statement that "there is no evidence of any damage to any vehicle parked on the applicant's property" is, properly construed, a finding that the commissioner was not able to draw the inference from the photographs that the branches on Mr Ekermawi's property shown in the photographs caused damage to the vehicle shown in the photographs parked on Mr Ekermawi's property. The sentence must be construed in the context of the preceding and following sentences which are expressly describing what the photographs show as well as in the context of the purpose of the paragraph which the first sentence discloses is to determine Mr Ekermawi's claim that the tree caused damage to Mr Ekermawi's car in the storm on 31 January 2008.
36 Properly construed, therefore, the sentence is an inference of fact open to the commissioner on the evidence. It cannot be said that the only inference that the commissioner was able to draw from the photographs was that the tree caused damage to Mr Ekermawi's car. As I have noted in relation to ground 1, whether or not the commissioner's inference was factually correct is irrelevant. It was an inference of fact that had an evidentiary basis and is unassailable on an appeal under s 56A(1) limited to questions of law.
37 Accordingly, no error of law was involved in the commissioner's statement in para 7 of the judgment.