SOLICITORS:
Pikes & Verekers (Appellant)
Swaab (Respondents)
File Number(s): 60302/15, 60303/15
Decision under appeal Court or tribunal: Local Court
Jurisdiction: Criminal
Date of Decision: 11 March 2015
Before: Magistrate Wilson
File Number(s): 00300821/14
[2]
Judgment
This is an appeal by the prosecutor Council against the Local Court's dismissal of summary proceedings with respect to an environmental offence.
The prosecutor may appeal to the Land and Environment Court against an order made by the Local Court dismissing a matter the subject of any summary proceedings with respect to an environmental offence, "but only on a ground that involves a question of law alone": s 42(2B)(b) Crimes (Appeal and Review) Act 2001. Two related propositions in relation to "a question of law alone" may be noted. First, an appeal on a question of law alone does not include a mixed question of fact and law. Secondly, a question of law alone should be stated and considered in abstract terms ie separately from the facts with which it may be connected in a given case. For example, the application of incorrect principles to the consideration of the issue is an error of law alone. In contrast, to wrongly apply the correct principles to the facts is an error of mixed fact and law, not an error of law alone. See Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [39]-[45] per Beech-Jones J where the authorities are reviewed. If an error of law alone is established, that does not enable this Court to make findings of fact: Bimson at [33] citing Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300, 71 NSWLR 230 at [83]-[87].
Each of the respondents, Mr Wayne Spice and Ms Fiona Sorrenson, was charged with an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). The charges were that, on 8 September 2014, each of the respondents carried out development without consent in contravention of s 76A(1)(a) of the EPA Act on residential land known as 1 Amaroo Crescent, Mosman (Land) without prior development consent. At all relevant times the respondents were the owners of the Land.
The development comprised the cutting down of two fiddlewood trees and the lopping of an angophora tree. The fiddlewood trees were identified by the numbers 4 and 5 and the angophora by the number 11 on a marked survey plan According to the markings on the survey plan, it appears that trees 5 and 11 were situated on the Land and tree 4 was situated on public land adjacent to the Land, near the common boundary.
The prosecution case in the Local Court was that the respondents were vicariously liable for the cutting or lopping of the subject trees because they directly authorised their contractor to remove them.
Direct authorisation is a recognised basis of a principal's vicarious liability for the unlawful act of an independent contractor: Stoneman v Lyons [1975] HCA 59, 133 CLR 550 at 573-574. Another basis of vicarious liability is if the principal has and exercises control over the manner in which work is performed by the independent contractor: Walker Corporation Pty Ltd v Director-General Department of Environment Climate Change and Water [2012] NSWCCA 210, 82 NSWLR 12, 27, 31. At trial Council did not press the control basis although it was the subject of submissions by the respondents.
The main ground of appeal is broadly stated: that the magistrate failed to apply the correct test in determining whether or not the respondents were vicariously liable for the conduct of the contractor in cutting down or lopping the trees. It is broad enough to encompass the way it was put at the hearing of the appeal: that the magistrate failed to apply the correct test of direct authorisation for determining vicarious liability because he held that the direct authorisation principle is inapplicable where a contractor uses independent sub-contractors to do the authorised act rather than employees.
[3]
THE EVIDENCE IN THE LOCAL COURT
There was uncontentious evidence in the Local Court that:
1. prior to 8 September 2014, the respondents had engaged the services of High Tech Tree Services Pty Ltd, a contractor company specialising in the removal of trees and other arboricultural management services to carry out tree removal works on the Land;
2. the sole director of the contractor, and the only individual who acted on its behalf in the present matter, was Mr Gideon Jordan;
3. the contractor's practice was to engage its workers as sub-contractors. The contractor (Mr Jordan) engaged eight workers as sub-contractors to carry out tree works on the Land on 8 September 2014;
4. on 8 September 2014 these workers physically embarked on the tree works including cutting down the two fiddlewoods and the lopping of a live branch off the angophora;
5. those three trees were more than 10 metres from the house on the Land and therefore were outside the ambit of the permission granted to remove trees under the "10/50 Laws". This is the name given to provisions of the Rural Fires Act 1997 (principally ss 100Q and 100R) and the subsidiary code published by the NSW Rural Fire Service, entitled 10/50 Vegetation Clearing Code of Practice for New South Wales. The 10/50 Laws were introduced in 2014 to permit occupiers of dwellings situated on land in areas identified as being bushfire prone to remove trees within 10 metres of a habitable dwelling and vegetation within 50 metres of a habitable dwelling in order to reduce bushfire risk, without the need to obtain any approval, despite the provisions of any local environmental plan which purports to prohibit the cutting down of trees or vegetation without a development consent or permit;
6. on the morning of 8 September 2014 Ms Sorrenson rang the Council's Tree Management Officer, Mr Stephen Wall, and left a message informing him they were intending to remove trees on the Land under the 10/50 Laws. Mr Wall attended the Land later that morning with a colleague. He observed several trees marked for removal that were clearly more than 10 metres from the house on the Land. He observed a person in the process of removing the subject angophora, which was outside the 10 metre zone. One significant branch had already been lopped. He requested work to stop. He spoke to Mr Spice, said it appeared the workers were breaching Council's tree preservation rules, and asked him if he had verified the distances between the dwelling and the trees being removed. Mr Spice said he had a survey drawn up and would look for it. Mr Wall observed that the two subject fiddlewoods were outside the 10 metre zone and had been cut down, their stumps were covered with dust and leaves in an apparent makeshift attempt to conceal their locations, and their debris had spray painting marks to indicate they had been marked for removal. He estimated the angophora to be 14 metres tall and the two fiddlewoods to be approximately 8 and 10 metres tall respectively. He told Mr Spice that there was a breach of the EPA Act and Council's Local Environment Plan regarding tree preservation such that he would be conducting a formal investigation. Mr Spice said he had found the survey and would send it to Mr Wall to clarify that the trees were marked accordingly, and that he was not sure what had occurred in relation to trees being outside the 10 metre zone. Later that day, Mr Spice emailed a copy of the survey plan to Mr Wall who marked the locations of the three subject trees on it with a highlighter and handwriting.
Other evidence supporting the conclusion that the respondents directly authorised the contractor to cut or lop the subject trees included the following. The contractor's (Mr Jordan's) quote of 27 August 2014 addressed to Ms Sorrenson was to remove specified trees including "4 angophoras closest to the house rear" and "2 fiddlewoods rear boundary". In Mr Jordan's statement of evidence he said he had considered that the two fiddlewoods, which were marked 4 and 5 on the survey plan, would most likely require consent for removal, and that one of the angophora he was asked to remove included the subject angophora marked 11 on the survey plan. He said that on 8 September 2014 eight sub-contractors attended the Land, and that he walked around the Land with Ms Sorrenson when various trees were marked for removal by spray-painting the trunks with a pink marking. In oral evidence, Mr Jordan added that his leading arborist (evidently one of the sub-contractors) was also present on that occasion and that Ms Sorrenson showed them which ones to mark; and that it was the practice and understanding of the sub-contractors to remove the trees so marked. A letter of 22 September 2014 written by both respondents to Mr Wall of Council said that "we" engaged the contractor to do the work.
On the other hand, there was evidence, including pre-trial statements by Mr Jordan, that a trier of facts might view as casting doubt on whether the respondents gave direct authority to the contractor to cut or lop the subject trees or all of them:
1. On 9 September 2014 Mr Wall of Council wrote to Mr Spice inquiring as to who authorised the work, why Council consent was not obtained, the contact person of the individual or contractor used to prune the trees, and the reason the trees were removed. A file note of Mr Wall of 16 September 2014 recorded that Mr Jordan had telephoned and said that he did not mean to remove the two fiddlewoods as they required Council consent but intended to remove two smaller trees that were under 5 metres and exempt from tree protection; and that Mr Wall told him that if that was what occurred to put it in writing.
2. On 16 September 2014 Mr Jordan did write to Mr Wall stating the following. His company was engaged by the respondents to remove certain trees located within 10 metres of the existing dwelling the removal was [to be] conducted under the new 10/50 legislation. On the morning tree works commenced, Ms Sorrenson asked if they were able to remove three small trees including a fiddlewood. Those trees were under five metres and therefore exempt. Adjacent to that fiddlewood stood another larger fiddlewood. After commencement of the work it was regrettably discovered that staff had removed a large portion of the wrong fiddlewood. The remainder of that tree was assessed and deemed to be a danger as it was now significantly unbalanced. Based on that danger, the tree staff were instructed by the contractor to remove the remainder of the tree. In cross-examination, Mr Jordan agreed that in writing that letter he was careful to be truthful and complete. Council relied on that letter in the statement of facts tendered on the sentencing of the contractor for the unlawful clearing of the subject trees in earlier criminal proceedings in the Local Court.
3. The letter written by both respondents to Mr Wall on 22 September 2014 (where they said "we" engaged the contractor to do the work) also said that they did not think Council consent was required after reviewing the 10/50 vegetation clearing documentation on Council's website and engaging a surveyor to prepare a plan, which was sent to Mr Wall on 8 September and was also attached. The survey plan is marked "proposed tree clearing plan" and shows by a dotted line the 10 metre "fire zone" from the existing building as well as the boundary of the Land. The respondents submit that it also shows by dotted lines the trees to be removed, the trunks of which were within that 10 metre fire zone; and that this evidences an intention to comply with the 10/50 rule.
4. In cross-examination, Mr Jordan said he had only been instructed to remove dead wood from the angophora.
[4]
SUBMISSIONS IN THE LOCAL COURT
At trial, the respondents submitted in writing, and orally as a "critical point", that the direct authorisation principle was inapplicable because there was no contractual or other relationship between the respondents and the sub-contractors retained by the contractor and therefore the causal link between the respondents and the work was broken. On the hearing of the appeal before me, the respondents conceded that that proposition is erroneous in law.
In submissions, the respondents also took the magistrate to the above evidence and submitted that Mr Jordan's oral statement on and letter of 16 September 2014 to Mr Wall exculpated the respondents and acknowledged that the contractor was to blame and gave the instruction to the sub-contractors to cut or lop the subject trees.
[5]
THE JUDGMENT IN THE LOCAL COURT
The hearing before the magistrate took a day. The defendants did not tender evidence. Towards the end of the day the magistrate enquired of counsel if they would be happy to accept a short ex tempore judgment or whether they wanted written reasons. They indicated that an ex tempore judgment would be acceptable.
The ex tempore judgment delivered close to the end of the day occupies one and a half pages of the 73 page transcript. The judgment commenced by briefly noting the following. Evidence was given by Mr Jordan who had provided a quote on behalf of his company to the respondents pursuant to which the works were undertaken by eight unidentified sub-contractors engaged by the company. Whilst the works were being undertaken, Ms Sorrenson telephoned Council, resulting in Mr Wall attending the Land and carrying out an inspection. Mr Wall gave evidence and his statement was tendered. There was a survey plan in evidence depicting the 10 metres within which trees could be lawfully cleared. Mr Jordan provided a statement of evidence. Previous proceedings had been brought against Mr Jordan concerning the removal of the subject trees. The magistrate continued and concluded his judgment as follows:
It is submitted to me by the prosecution that there was direct authorisation and I have been directed to several cases supporting that contention, together with other various exhibits. Contemporaneous notes have also been tendered, which were exhibit 9, being the notes of Mr Wall when he attended the premises on 8 September and additional notes were also made by him the following day.
On behalf of the defendants, extensive submissions have been made on the law dealing with vicarious liability and the exceptions to that. In particular, I have been directed to cases dealing with control and direction. I am satisfied that the defendants did not have any direct intervention with the sub-contractors, or in fact there's no evidence to say that they did and I'm certainly of the mind that they didn't have any direct control as to the actions of the sub-contractors on 8 September and to the nature of the work that they were undertaking on that day.
In this particular case I have to find the facts proven as against the defendants beyond reasonable doubt, which is a high burden of proof for the prosecution to show in these particular circumstances. I also note that there is evidence to state that one of the trees, being tree number 4, was in fact outside the boundary of the said premises and that tree 11 was only trimmed in relation to some dead branches, and that such work was done by the eight unknown sub-contractors. The offences, as alleged, bring - are a strict liability but, as I said, the burden of proof on the prosecution is to prove beyond reasonable doubt that in fact the defendants were in breach of the sections as per the amended court attendance notices, being s 76A, and that the trees were cut down or lopped contrary to clause 5.9(3) of the Mosman local environment plan 2012.
I FIND THAT THE PROSECUTION HAS NOT BEEN ABLE TO PROVE THIS CASE AS AGAINST EITHER DEFENDANT TO THE REQUISITE REQUIRED LEVEL, BEYOND REASONABLE DOUBT, AND ACCORDINGLY I DISMISS THE CHARGES BROUGHT AGAINST BOTH DEFENDANTS.
[emphasis added]
In passing, two uncontroversial factual errors in the judgment may be noted. First, the statement that the defendants did not have any "direct interaction with the sub-contractors" is not entirely correct because Ms Sorrenson identified the trees to be marked for clearance to both Mr Jordan and the sub-contractor arborist. Secondly, the statement that there was evidence that "tree 11 [the angophora] was only trimmed in relation to some dead branches" is incorrect and misstates the evidence referred to above at [10(d)]. Mr Wall's evidence referred to at [8(d)] above and a photograph in evidence showed that a live branch was lopped from that tree.
[6]
SUBMISSIONS ON APPEAL
Council submits that the magistrate dismissed the proceedings because he held that the direct authorisation principle of vicarious liability was inapplicable if the authorised contractor retained sub-contractors to carry out the authorised work rather than employees. The respondents had made submissions to that effect to the magistrate and had described it as a "critical point". In my opinion, that proposition is an error of law alone. If the magistrate so held then, as is now common ground on the appeal, the magistrate made an error of law.
The respondents submit that the magistrate did not make, or I should not be satisfied that the magistrate made, that error of law. It should be discerned from the judgment that the magistrate was instead, or also, not satisfied beyond reasonable doubt on the facts that Council had proved that the respondents directly authorised the contractor to cut or lop the subject trees.
[7]
CONSIDERATION
The appeal turns on what to make of the magistrate's brief reasons for judgment construed against the background of the evidence and submissions that the magistrate had received.
Ex tempore judgments in a busy magistrates court immediately following submissions are not to be finely picked over, an overly critical approach should not be taken, and appropriate allowance should be given to the pressures under which magistrates are placed by the volume of cases coming before them: Acuthan v Coates (1986) 6 NSWLR 472 at 478 - 479 per Kirby P; Director of Public Prosecutions v lllawarra Cashmart Pty Limited [2006] NSWSC 343, 67 NSWLR 402 at [15] per Johnson J; Flaherty v Columbia Nursing Homes Pty Ltd [2007] NSWLEC 148, 152 LGERA 383 at [19]-[20] per Jagot J; Matheson v Director of Public Prosecutions (NSW) [2008] NSWSC 550, 185 A Crim R 83 at [47] per Johnson J; Director of Public Prosecutions v Gramelis [2010] NSWSC 787 at [19] per Price J; CB v Director of Public Prosecutions (NSW) [2013] NSWSC 618, 231 A Crim R 522 at [54] per Adamson J; and Director of Public Prosecutions (NSW) v Mathews-Hunter [2014] NSWSC 843 at [79], [80] per Fullerton J. It is the substance of what the magistrate said and did that the appeal court is concerned with. In determining whether the magistrate made an error of law, regard may be had not only to the brief judgment but also to the context in which the judgment was given as revealed by the transcript of proceedings, including the dialogue between the magistrate and counsel and submissions put by counsel to the magistrate in order to determine whether the magistrate made the alleged error. That was the approach taken in Acuthan at 476-477, CB and Director of Public Prosecutions v Smith [2012] NSWSC 281 at [18] per Grove AJ.
Depending upon what findings of fact were made on the evidence, it may have been open to the magistrate to decide that he was not satisfied beyond reasonable doubt that the respondents had in fact directly instructed the contractor to cut or lop the subject trees or all of them. However, I am unable to interpret the magistrate's reasons for judgment as indicating that that was the basis, or a basis, upon which he dismissed the charges. The magistrate does not appear to have made any specific findings of fact in that regard or to have referred to the evidence in a way that could safely be understood by inference as supporting that interpretation.
The only specific findings of fact in the judgment are in the second sentence of the second paragraph quoted above at [14]. The opening words I have emphasised above in that sentence are: "I am satisfied that the defendants did not have any direct intervention with the sub-contractors, or in fact there's no evidence to say that they did". This seems to me to be the only discernible reason why the magistrate dismissed the Council's case of vicarious liability based upon the respondent's direct authorisation of the contractor to cut down or lop the subject trees. It was an acceptance of the respondents' legally erroneous submission (put to the magistrate as a "critical" point) that the direct authorisation principle did not apply because the contractor's workers were sub-contractors with whom the respondents had no contract and consequently the causal link between the respondents and the work was severed. That was a pure error of law, as is common ground in the appeal. Under the direct authorisation principle, it is irrelevant whether the directly authorised contractor carried out the work through sub-contractors or otherwise.
The remainder of that quoted sentence dealing with "direct control" may perhaps be referable to a different legal basis of vicarious liability - control - that Council did not press before the magistrate but on which the respondents also made submissions. It may alternatively have been intended to be referable to the direct authorisation test for vicarious liability referred to erroneously by the magistrate earlier in the same sentence. It is not clear which, but it does not matter for present purposes.
Consequently, in my opinion, there was an error of law alone, the appeal should be upheld and the matter remitted to the Local Court to be determined according to law.
If Council proceeds in the Local Court on the remitter, the evidentiary matters put to me by the respondents and considered above may be agitated and determined.
[8]
ORDERS
The orders of the Court are as follows:
1. The appeal is upheld.
2. The matter is remitted to the Local Court to be determined according to law.
3. The Court Book is to be returned to the appellant.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 24 August 2015