Pollard v Wilson

The approach to a newspaper article sought to be tendered and read by the trial judge 99 The trial judge over an objection by the Pollards' counsel admitted a newspaper article as part of Exhibit 6. Unfortunately the debate concerning the admissibility of the article is not transcribed. The basis for the tender by counsel for Mrs Wilson was that the newspaper article was before the expert (Mr Semmler, a licensed builder) and while it was hearsay, it was tendered for a non-hearsay purpose pursuant to s 60 of the Evidence Act. I am not certain why it is that the Pollards submitted that his Honour's decision would give rise to an apprehension of bias. Even if the decision was wrong there is nothing to suggest that it was other than one of many rulings as to admissibility of evidence which are required in the course of any trial.

The interruption of the Pollards' counsel during cross-examination 100 The trial judge was unquestionably interventionist. A review of the transcript confirms that his Honour interrupted all counsel whether they were leading evidence, cross-examining witnesses or making submissions. The transcript makes plain that these interruptions occurred so that his Honour could understand how the parties (primarily the Pollards) put their case(s) and how particular evidence fitted into that case. It will often be necessary to avoid any misunderstandings and to assist the efficient disposition of a trial for a judge to intervene and ask questions of a witness or seek the assistance of counsel. The days when a judge was obliged to sit patiently in the hope that ambiguities will be clarified and the evidence, particularly that of experts fully explained are long gone (Minnesota Mining & Manufacturing Co & 3M Australia Pty Ltd v Beiersdorf (Aust) Ltd (1980) 144 CLR 253; (1980) 29 ALR 29; Botany Bay City Council v Rethmann Australia Environmental Services Pty Limited [2004] NSWCA 414). The interruptions by the trial judge may have been irritating for counsel but his Honour did not display a bias against the Pollards.

The suggestion that the Pollards' counsel was attempting to trick Mr Wilson 101 Again this criticism is misconceived. The relevant exchange appears in the transcript. That exchange could not leave the fair minded lay observer under any reasonable apprehension that the trial judge was suggesting that the Pollards' counsel was trying to trick the witness. In fact his Honour specifically stated that he was not suggesting that that was the case.

The reference to appeal proceedings 102 Again there is no doubt that throughout the case the trial judge commented that the cost of the proceedings would be such that, if the Pollards were unsuccessful, the costs orders would potentially require the Pollards to sell their home. Bearing in mind the court's obligations under ss 56 and s 60 of the Civil Procedure Act 2005, to ensure the just, quick and cheap resolution of disputes and to ensure that costs are proportionate to the importance and complexity of the dispute, the trial judge's comments were reasonable. His Honour was right to be gravely concerned that the pursuit of the claim was accompanied by a risk of failure which would inevitably prove very costly for the losing party with the costs, especially if there was an appeal, likely to be quite out of proportion to the amount of the claim even at its highest. 103 In the course of any proceeding, a trial judge is required to make rulings and, where necessary, intervene to impose effective discipline on the parties. Decisions made by a judge may be contrary to the interests of one party. The making of such decisions, even where there are many, does not bespeak bias. The fair-minded lay observer would understand that a judge must make decisions and if persuaded that the correct decision is adverse to one party, must nevertheless make that decision. Neither alone or cumulatively do the matters of which the Pollards complain justify a conclusion that the trial judge should have disqualified himself.

Grounds 1(a), (b), (c), (d), (f) and (g) - the liability of Mrs Wilson 104 It is convenient to consider these grounds together. The trial judge found that there was no duty of care owed to the Pollards by Mrs Wilson. His Honour's essential reasoning was that because Mrs Wilson was not involved in any way in the actual physical works, did not carry them out or direct how they were to be done, she could not be liable for any damage occasioned to the Pollard property. 105 I have previously discussed the evidence as to who carried out particular parts of the works. Mr Wilson himself was involved in the lopping of the jacaranda tree. His involvement in the removal of the pistachio tree was confined to supervision, with the exception of one large main root which Mr Wilson said that he severed. Mr MacKillop carried out the lopping of the pistachio nut tree. 106 The evidence indicated that Mr MacKillop was engaged for this task after the Pollards had complained about Mr Wilson lopping the jacaranda tree and had requested that further works be carried out by Mr MacKillop because of his professional experience. Mr Maas manipulated the backhoe to create the trench around the tree enabling the roots to be severed and the tree stump removed. As I have indicated earlier in these reasons, the pistachio nut tree was lopped on 24 November 2003 and a stump was left standing. Mr Maas used an excavator to remove the stump on 27 November 2003 under the direction of Mr Wilson. All of the roots running from the pistachio nut tree to the Pollard property were severed by the bucket of the excavator, with the exception of one large root, which was cut by Mr Wilson using an axe. The stump was subsequently removed from the ground and disposed of. 107 Mrs Wilson pleaded her defence, which includes an admission which was made in the following terms: "The first defendant admits that it commenced renovation work which involved the cutting down of a tree in August 2003, the removal of a tree in November 2003, some excavation work and the partial demolition of a retaining wall which is situated on the first property." 108 Assuming the facts did support a finding of negligence, the Pollards must establish direct or derivative liability on the part of Mrs Wilson. The Pollards have attempted to do so on three bases: agency, vicarious liability, and non-delegable duty. I will deal with each of these in turn. Before doing so, I regret that I have had trouble understanding the precise nature of the Pollards' submissions on this issue. When it comes to the question of derivative liability for a tortious act, care must be taken to clearly identify the basis upon which the liability is said to attach to the named defendant. Whilst the Pollards submit that Mr Wilson was his wife's agent they also make the following rather curious assertions in their written submissions including: "[T]he first respondent and Mr Wilson were both occupiers…"; "The duty of care owed by each …"; "Mr Maas was paid for his time and labour and was directed and controlled by Mr Wilson "; and "Mr Maas, and the other persons except Mr McKillop [sic] … were doing work "representative" of Mrs Wilson and/or Mr Wilson … serving in the enterprise of Mrs Wilson and/or Mr Wilson resulting in the legitimate imposition of liability…". (emphasis added). 109 These assertions conceal the need for liability to be meticulously traced from the original tortfeasor through to the named defendant, in this case, Mrs Wilson. As will emerge, the Pollards have not done so.

Personal liability on the basis of agency 110 In oral submissions, counsel for the Pollards contended that "the people doing the work were doing the works for and on behalf of and as agent of the nominated defendant." 111 The Pollards have not articulated the basis upon which they say that the contractors were acting as agents of Mrs Wilson. The written submissions touch on agency in relation to Mr Wilson but not in relation to either contractor. As it happens the evidence indicates that Mrs Wilson had negligible, if any, involvement in the selection and conduct of the contractors. Nor is there evidence that she subsequently authorised their actions in a manner that would render her liable as principal. Indeed the evidence is to the contrary. Mrs Wilson gave evidence of the single-minded and determined nature of her husband. Once he made up his mind to complete a task he had a determination to pursue it and was unlikely to be deterred. Even when the prospect of trouble from the Pollards was apparent, Mr Wilson determined, with appropriate caution, to remove the pistachio nut tree. 112 The trial judge found that Mr Wilson lacked capacity to create or effect legal relations on behalf of Mrs Wilson. However, he did not detail the findings underpinning this conclusion. His Honour appeared to reject any assumption of an agency between a husband and a wife which was originally sourced in the common law doctrine of necessity. The common law principle was that a wife could act as agent for her husband (not the reverse) and pledge his credit in the purchase of "necessaries" (Phillipson v Hayter (1870) LR 6 CP 38 at 41 per Bovill CJ). The trial judge also referred to the "unwanted effects" that would flow from a "blanket" relationship of agency, concluding that it would be unreasonable to regard the actions of a husband as those of a wife. 113 There is not currently, nor has there ever been, any general rule of agency as between married or cohabiting couples. The question is whether in the circumstances of a particular case one is the agent of another. 114 At the trial, counsel for the Pollards labelled Mrs Wilson the couple's "directing mind and will" (at least for the limited purpose of the renovations) as it was she who owned the property, obtained an owner-builder licence, and lodged the relevant development applications. The couple was said to have had a "common purpose". Whilst the latter may well be true, counsel's characterisation of the elements of that relationship does not indicate a relationship of agency. "Common purpose" is not an element of agency. Rather, an agency relationship is one in which a party (the agent) is authorised to act on behalf of another (the principal) such that the agent has capacity to affect the principal's legal relationships (International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co (1958) 100 CLR 644 at 652; (1958) 32 ALJR 160; Halsbury's Laws of Australia, vol 1, par [15-5]). An important incident of the agency relationship is the agent's capacity to create rights for and liabilities of the principal by doing the authorised acts (Pinkstone v R (2004) 206 ALR 84 at fn 35; WA Seavey, "The Rationale of Agency" (1920) 29 Yale Law Journal 859, 8; Australian Encyclopaedia of Forms & Precedents at par [1501]). Notably, such liabilities may include liability for torts: BS Markesinis and RJC Munday, An Outline of the Law of Agency, 3rd ed (1992) Butterworths at 201-2 citing Uxbridge Permanent Benefit Building Society v Pickard [1939] 2 KB 248, [1939] 2 All ER 344. An agent may, but need not necessarily, be appointed to create legal relations. Agency can exist where the agent is authorised to represent the principal in a more limited way, such as is the case with a real estate agent (Halsbury's Laws of Australia, vol 1, par [5-5]). It is unclear whether there must be some 'control' exercised over the agent by the principal for an agency relationship to exist. The authorities suggest that while control may assist in establishing agency, its presence or absence is not determinative: South Sydney District Rugby League Football Club Ltd v News Ltd (2000) 177 ALR 611; [2000] FCA 1541 per Finn J at [137]. 115 An agency relationship can arise in a variety of ways, including by express or implied agreement, ratification, estoppel and operation of law. The latter being inapplicable, the categories that are possible in the present case include agreement, ratification and estoppel. 116 The parties' conduct may lead to an inference that they formed an agency relationship. I am not satisfied that the evidence establishes this in the present case. It is reasonable to infer that Mr Wilson, who had provided the purchase price for the Wilson property, and Mrs Wilson, who had legal title to the Wilson property, regarded themselves as joint owners as a matter of fact. It is reasonable to infer that Mr Wilson's efforts in coordinating and supervising the development were done with a view to benefiting the Wilson property. But there is no evidence that the Wilsons had, expressly or impliedly, agreed that Mr Wilson would act on Mrs Wilson's behalf, even for the limited purpose of arranging the tree works. The evidence suggests that the parties were simply undertaking a division of labour: Mrs Wilson as legal owner applied for the relevant owner-builder permit and development consents. Mr Wilson, as the party with the more relevant expertise, coordinated and supervised the tree works. 117 To my mind nothing turns on the fact that Mrs Wilson "sent" her husband over to the Pollards' house to notify them of their intentions. A close reading of the trial transcript indicates that the purpose of this direction was to ensure that Mr Wilson did "the right thing" by giving the Pollards advance warning of the removal works (which did, after all, involve the use of heavy machinery). 118 In Balesfire Pty Ltd v Jamie Adams and Others [2006] NSWCA 112 ("Balesfire") this Court considered the situation of a worker who sustained injury on a construction site. The site was a residential property owned by Mrs Economou, who obtained the necessary owner-builder permit. The plaintiff sued five defendants including Mrs Economou as owner/builder acting as principal. Mason P concluded that she was properly joined to the action (at [84]). The evidence indicated that Mrs Economou took no physical part in the construction. The fact that she had obtained the owner-builder permit was not in any sense determinative (at [8]). She provided no technical instructions to the tradesmen. It was her husband, who with 22 years of building experience, took the leading role in relation to the construction project. He coordinated the necessary approvals, prepared the development application form, arranged for Mrs Economou to sign it, and lodged it with the council. He chose the contractors. He assumed the role of "head builder, organising the tradesmen and contractors" (at [9]). He oversaw the works onsite, ensuring that schedules and standards were adhered to. He opened and closed the construction site gates. 119 However, Mrs Economou was found to be liable because she was directly involved in important decisions in relation to the project. She discussed with her husband which contractors they would engage to perform the work. Despite being occupied caring for her children and elderly parents, Mrs Economou came on site several times and had conversations with various tradesmen. "She was naturally interested in the amenity of the residence and discussed with tradesmen matters such as the style of and location of power points and the design of gyprock, tiles, kitchen installations etc" (at [8]). 120 In the present case there is no evidence that Mrs Wilson was involved in the tree removals in any meaningful sense. Indeed, all the available evidence suggests the contrary. There is no evidence that Mrs Wilson was at the Wilson property at any point at which the tree works were undertaken. There is no evidence that she spoke with any of the contractors about the tree works, nor that she even spoke with her husband about which contractors would perform the work. The evidence of the conversation between Mrs Pollard and Mrs Wilson regarding the planned removal of the pistachio nut tree is at odds with an agency arrangement: the Wilsons were, it appears, not in agreement about the removal of the pistachio nut tree, but Mr Wilson was determined that it should go. There is nothing in the evidence to support a conclusion that the Wilsons impliedly agreed that Mr Wilson would act on his wife's behalf in relation to the trees. 121 If Mrs Wilson subsequently approved of conduct that was initially unauthorised, an agency relationship may arise by ratification. In that case, Mr Wilson's actions in coordinating and supervising the tree works would be treated as though they were originally authorised by Mrs Wilson and effective to bind her as a principal (Fisher, Agency Law p 59; Davison v Vickery's Motors Ltd (in liq) (1925) 37 CLR 1; (1925) 31 ALR 465 at 19). It is clear that ratification may be established from the principal's acquiescence: Suncorp Finance & Insurance Corp v Milano Assicurazioni SpA [1993] 2 Lloyd's Rep 225 at 234. It would seem in the present case that Mrs Wilson acquiesced in Mr Wilson's conduct in the cutting or removal of the trees. However, there must also be evidence that the alleged agent professed to act on the principal's behalf: "there must be some description of the principal which amounts to a reasonable designation of the principal" (Fisher at 61, citing Kelner v Baxter (1866) LR 2 CP 174; Trident v McNiece Bros Pty Ltd (1987) 8 NSWLR 270 at 276; Keighley Maxsted & Co v Durant [1901] AC 240). There is no evidence to this effect in the present case. 122 It may be that there is an estoppel which would prevent Mrs Wilson from denying that her husband was acting as her agent (Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; (2004) 208 ALR 213 at [38]; Heperu Pty Ltd v Morgan Brooks Pty Ltd (No 2) [2007] NSWSC 1438; GE Dal Pont, "Agency: Definitional Challenges through the Law of Tort" (2003) 11 Torts Law Journal 1, 21, citing Reynell v Lewis (1846) 15 M & W 517 at 526; 153 ER 954 per Pollock CB at 958; Harry S Bagg's Liquidation Warehouse Pty Ltd v Whittaker (1982) 44 NSWLR 421 per Powell J at 429). To establish an estoppel there must be evidence that Mrs Wilson made a representation to one or both of the Pollards amounting to a "holding out" (Halsbury's Laws of Australia, vol 1, par [15-60] and fn 8). Such a representation may be by words or conduct, including acquiescence, but must be to the effect that Mr Wilson had authority to act on Mrs Wilson's behalf. There is no evidence of such a representation in the present case. Mrs Wilson did not, by words, conduct or by positive act or omission, instil in the Pollards any belief that her husband had authority to act on her behalf in relation to the tree works. Whilst I am satisfied that the Pollards may have believed that Mr Wilson had authority to represent Mrs Wilson, I am not persuaded that they were led to believe this as a result of any representation on the part of the latter.

Vicarious liability 123 The principle of vicarious liability makes employers liable for the negligence of their employees where such negligence is committed within the scope of the employment. To make good liability on this basis, the Pollards would have to establish that Mr Wilson or any of the contractors were employees of Mrs Wilson. It is not enough that they may have been employees of Mr Wilson (which in itself is unlikely) because as I have found, Mr Wilson was not acting as agent for Mrs Wilson. 124 It was not contended that Mr MacKillop was an employee of Mrs Wilson. It is also clear that Mr Wilson was not an employee of Mrs Wilson. No evidence was adduced that could establish that any of the friends and helpers who assisted with the lopping of the jacaranda tree were employees. 125 With respect to Mr Maas, who excavated the trench, the evidence does not suggest that he was either an employee of or contractor to Mrs Wilson. If anything he was a contractor engaged by Mr Wilson. 126 The evidence supports the following findings in relation to Mr Maas: Mr Maas conducted his own contracting business operating under the trading name of 'Maas Contracting'. Mr Maas was paid on a day rate or hourly hire basis. He supplied an invoice for the excavation work done on the pistachio nut tree. Mr Maas provided and operated his own excavator to perform the excavation work on the pistachio nut tree root ball. This was a significant capital outlay on his part (see Stevens v Bodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 in contrast with Hollis v Vabu Pty Ltd (2001) 207 CLR 21 (" Hollis "). Mrs Wilson did not tell Mr Maas how to perform his job and was not present at the Wilson property on 27 November 2003 when the excavation work was undertaken. 127 It is plain from these matters that Mr Maas was an independent contractor (Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; (2006) 227 ALR 46 ("Sweeney") cf Hollis). Even if Mr Maas was an employee, his "employer" would have been Mr Wilson and not Mrs Wilson. There being no agency relationship between Mr and Mrs Wilson, I do not consider there to be any basis to attribute vicarious liability for any act of Mr Maas to Mrs Wilson.

Personal liability on the basis of non-delegable duty 128 The Pollards' primary contention was that the lopping and removal works were undertaken by agents of Mrs Wilson. In the alternative, they argued that if the persons carrying out the work were independent contractors, liability should attach to Mrs Wilson on the basis of the principles relating to non-delegable duty. 129 Non-delegable duties are an exception to the rule that a defendant cannot be found vicariously liable for the tortious acts or omissions of an independent contractor: Montgomery at [6], [8]. A non-delegable duty imposes a more stringent obligation than the usual duty of care in that it requires the duty holder not only to take care but also to "see that care is taken". 130 I have difficulty in understanding the basis upon which the non-delegable duty is said to arise in this case. The relevant submission reads: "where there is the connection between two persons of the character as set out in paragraph 64 above [being one of agency] and one of the persons to that joint task leaves it to the other person to perform certain aspects of the joint task a non-delegable duty is appropriate to be imposed as there is a special responsibility or duty to see that care is taken: Leichardt Municipal Council v Montgomery (2007) 81 ALJR 686". 131 There are certain recognised categories of cases in which a non-delegable duty will arise. They were discussed by Jane P Swanton in "Non-delegable Duties: Liability for the Negligence of Independent Contractors: Part 1" (1994) 4 Journal of Contract Law 183. They include the duty of employer to employee, hospital to patient, and school to student. The High Court in Montgomery considered whether a roads authority owes a non-delegable duty to roads users. The Court found that the "highway authority/road user" category was not one which was recognised by the authorities as giving rise to a non-delegable duty. Nor was an extension to the existing categories merited (A Corkhill, "Case Note: Vicarious Liability in Sheep's Clothing? Non-delegable Duties of Care in Leichardt Municipal Council v Montgomery" (2007) 15 Torts Law Journal 111). 132 Aside from the recognised categories, there are also situations in which a non-delegable duty is justified where the plaintiff is in a position of special dependence or vulnerability vis-à-vis the defendant, who by contrast is in a position of relative control. This was the principal discussed by Mason J in Kondis v State Transport Authority (1984) 154 CLR 672 at 687; 55 ALR 225. The principle is inapplicable to the instant case. 133 A non-delegable duty will not arise simply because one party to a joint task leaves it to the other party to perform certain aspects of that task, whether or not the second party is an agent of the first. Nor is there any general principle that a landowner or occupier owes a non-delegable duty of care to owners or occupiers of adjoining premises. The occupier's non-delegable duty is a duty towards contractual entrants to the property, a class to which the Pollards plainly do not belong: Watson v George (1953) 89 CLR 409. Excavation and tree lopping are not, to my mind, so inherently dangerous as to merit a discussion of the "extra hazardous activities" non-delegable duty (which in any event forms no part of Australian law: Stevens v Bodribb). It is instructive to note that the High Court was of the opinion that even if an "extra hazardous activities" category of duty did exist, it would not extend to excavations conducted next to adjoining land boundaries (Stoneman v Lyons (1975) 133 CLR 550; 8 ALR 173 at 184). 134 I see no basis upon which it could be concluded that Mrs Wilson owed a non-delegable duty of care to the Pollards.

Grounds 3(b)(ii), (b)(iii), (e) and (f) - quantum 135 Both the Pollards and the respondents called expert evidence in relation to the quantum of damages. The trial judge accepted the opinion of Mr Semmler that demolition, underpinning and subsequent reconstruction works were not required. The trial judge rejected the opinion of Mr Cook. His Honour found that his estimates "are exaggerated and there is no evidentiary basis for them." 136 Mr Cook estimated that the cost of repairing the damage to the Pollards' home was $125,228.10 whereas Mr Semmler said that it was $10,383.12. 137 Mr Cook's estimate of the cost of repairing the damage was made on the basis that there was a need to stabilise the foundations of the building by underpinning. However, there was no evidence that Mr Cook had carried out any investigative work. The trial judge was alert to this issue and concluded that there was "no evidence that Mr Cook has exposed the foundations and found them to be in any way unstable." Notwithstanding that he had not carried out any investigative work Mr Cook stated that 30 metres of the western wall of the Pollards' house required demolition and reconstruction. He also indicated that in his opinion to enable the wall to be reconstructed it would be necessary to remove some trees which would require replanting. 138 Although his Honour's reasons were brief I am satisfied that on this aspect of the matter they were adequate. The onus fell upon the Pollards to satisfy his Honour that demolition, underpinning and reconstruction of the wall were required. In the absence of any proper investigation of the foundations his Honour was entitled to reject Mr Cook's opinion. 139 His Honour accepted that by reason of his experience Mr Cook was in a better position than Mr Semmler to estimate the cost of the works that were required to be done. His Honour observed that Mr Cook possibly had a better idea of costs in the country, compared to Mr Semmler, who was working "straight out of tables". For this reason his Honour rejected Mr Semmler's estimate and accepted a figure which was at the bottom of Mr Cook's estimate of the likely cost. He was entitled to take this course. 140 I reject this ground of appeal.

Ground 2 - the position of the Council 141 The Pollards' case against the Council was framed in negligence which was pleaded as negligence "in discharging its statutory duties". I have set out the particulars of the alleged negligence at [48]. 142 I have previously related the history of the lodgement of the development application for the alterations to the garage. The original plan provided for a new carport in a position that would require the removal of the pistachio nut tree. That proposal was amended and that tree was removed because of the proposal to widen the driveway. The application did not indicate that there would be any impact upon the jacaranda tree. 143 As I understand the position none of the plans actually identified the trees which were required to be removed in order for the proposed works to be completed. Of course anyone who was familiar with the site would have been able to deduce from the plans that it would be necessary to modify the jacaranda tree and remove the pistachio nut tree. The fact that a plan showing the trees to be removed was not required by the Council is unusual. However, no doubt this was because the trees were not protected by the relevant planning instrument or other relevant order, with the consequence that permission to remove them was not required from the Council. 144 The arguments put forward by the Pollards at trial and on the appeal varied, in some respects significantly from the case pleaded against the Council. The first issue raised was an alleged failure by the Council to notify the amended plan from which it could be identified that the pistachio nut tree would be removed. 145 I have previously related the evidence relevant to these issues. Although repetitive it is necessary to repeat some of these matters. The Pollards were notified of the proposal by Mrs Wilson to make alterations, which included the proposed alterations to her garage. The relevant plan was the subject of notice to them by letter dated 13 February 2003. It is accepted by the parties that the extract from the plans which was attached to the letter showed building works for a garage, carport and the front fence. The development application followed approval in 2002 for alterations to the house. The Pollards gave evidence that after being notified they carefully examined the site which gave them the opportunity to appreciate the impact of the proposal on the trees. 146 Although the Council had no difficulty with the proposal for the garage and carport Mr Wolthers reported adversely on the proposed design for the front fence. It was changed, and as it happens the plans which amended the front fence design were not notified to the Pollards. Although I understand they may have a concern that they were not told of the amended proposal, because it effectively reduced any possible visual impact for the front fence it is quite reasonable that the Council did not provide further notification. In any event the fact that they were not notified does not have a consequence for any issue in these proceedings. 147 It was submitted to this Court that the Council should not have approved plans which necessitated the removal of the pistachio nut tree "without considering matters relating to the heritage listing (of) the Pollards' property." The submission was not developed. However, it is important to remember that there were a number of trees, many of them significant, on both the Pollard and Wilson residences which would not be affected by the proposal. Mr Wolthers, who was engaged by the Council to consider and advise in relation to heritage issues, raised no concern in relation to the trees. The Council was entitled to and did rely on his expertise in these matters. 148 The Council was first made aware of the Pollards' concern in relation to the trees in early September 2003. The first meeting with Mr Stanger was held on 19 September. The Pollards' solicitor wrote to the Council about the pistachio nut tree on 1 October. Mr Wood spoke with the Pollards on 24 October when the discussion was about placing the tree on the Significant Tree Register. The Pollards prepared and lodged a nomination which, repeating the advice they had been given wrongly identified the tree as a bloodwood. Between 27 October and 5 November Mr Wood confirmed that the tree was not a Bloodwood and was in fact a Pistacia Chinensis. Ultimately Mr Wood reports to the Council and does not recommend the inclusion of the tree on the Register, as by this stage it has been substantially cut, imperilling its health. The tree was finally lopped on 24 November and the root ball removed on 27 November 2003. 149 The submission advanced on behalf of the Pollards is that if the impact of the proposal on the heritage value of the Pollard property had been considered the Council "would have placed the pistachio nut tree on the 'significant tree register'." The soundness of this proposition is by no means obvious. Although the tree was likely to have been planted during the early stage of the development of the original garden surrounding the Pollard house it now formed part of the garden of the Wilson house. Mr Wood gave evidence that because pistachio nut trees are common in Dubbo and the tree would not have warranted protection because of its species alone. 150 If there had been a proposal to place the tree on the Council's Significant Tree Register it would undoubtedly have been opposed by the Wilsons who would have been entitled to make representations to the Council. Given the fact that no one, including Mr Wolthers, or for that matter the Pollards, had ever previously suggested that the tree warranted inclusion on the Register, I am not persuaded that if an application had been made before the tree had been damaged the Council would have decided to place it on the Register. 151 The other particulars of alleged negligence in relation to the Council may be shortly disposed of. There is no obligation on a council to supervise work on a building site for which its approval has not been required or given. It may be that if a council in some manner assumes responsibility for supervising the quality of the building work it may have a duty of care to carry out this task without negligence (see Sutherland Shire Council v Heyman (1985) 157 CLR 424; [1985] HCA 41; Parramatta City Council v Lutz (1988) 12 NSWLR 293; Pyrenees v Day (1998) 192 CLR 330; [1998] HCA 3; Ryan v Great Lakes Council [1999] FCA 177; Makawe Pty Ltd v Randwick City Council [2009] NSWCA 412). But that was not the present case. The lopping of the jacaranda tree and removal of the pistachio nut tree did not require the Council's approval and the Council did not assume control of or in any manner supervise that work. Although in the proper discharge of its function the Council should have considered the complaints of the Pollards, it did this and ultimately, and so far as I can see, appropriately decided to take no action. 152 There is one other matter. The allegation made against Mrs Wilson is that the disturbance of the jacaranda tree and the removal of the pistachio nut tree caused damage to the Pollard house. Although the inclusion of the pistachio nut tree on the Register (this was not suggested for the jacaranda) would have the consequence that it could not have been removed, this does not mean that the Council's negligence (if any) caused the Pollards' alleged loss. Even if it had been on the Register there was nothing in the evidence to suggest that the pistachio nut tree could not be removed without causing damage. 153 I have found that appropriate care was taken, but if it had not been, then it would have been the failure to remove the tree in an appropriate manner, not some more remote alleged breach of duty by the Council, that would be the cause of the Pollards' loss (see March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 514; Bondin v Lamaro [1994] NSWCA 29; MacRae v Stevens [1997] ANZ ConvR 129; Bendix Mintex Pty Ltd & Exxon Ltd, Jsekarb Pty Ltd v Barnes (1997) 42 NSWLR 307; Assaf v Kostrevski [1998] NSWCA 274; Jung v Son [1998] NSWCA 120; Victims Compensation Fund Corporation v Ainsworth [2001] NSWCA 92; Chamberlain v Callaghan and Ors [2004] NSWCA 44; Commonwealth of Australia v Shaw (2006) 66 NSWLR 325; [2006] NSWCA 209; North Sydney Council v Binks [2007] NSWCA 245; Dominello v Dominello [2009] NSWCA 95; Workers Compensation (Dust Diseases) Board of NSW v Smith [2010] NSWCA 19). 154 For this reason alone the claim against the Council was always destined to fail.

Grounds 1(f), 2, 3(b), 3(d) and 3(f) - failure to state reasons and making findings 155 It is well settled that a judge has an obligation to provide reasons for his or her decision: Pettitt v Dunkley [1971] 1 NSWLR 376. 156 Under these grounds of appeal various criticisms are made of the trial judge's reasons. It is submitted that his Honour failed to state reasons and make relevant factual findings with respect to the liability of Mrs Wilson. Similar criticisms are made of his Honour's reasons with respect to the liability of the Council. The criticism of the trial judge's reasons in ground 3 of the appeal are directed toward an alleged lack of factual findings with respect to liability and a lack of proper reasons with respect to damages. 157 The provision of reasons is a normal, although not universal incident of the judicial process: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667. Failure to provide reasons may result in a miscarriage of justice. The relevant principles are discussed in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278-281 ("Soulemezis") per McHugh JA and Mifsud v Campbell (1991) 21 NSWLR 725. 158 In Soulemezis McHugh JA identified at least three purposes served by the giving of reasons for a judicial decision. Firstly "it allows the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge's decision." Secondly the giving of reasons "furthers judicial accountability" and thirdly it "enables practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future" (at 279). 159 Soulemezis was applied in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430. In that case, as in many, the credibility of the plaintiff was a critical mater. Although the evidence of the plaintiff was significantly corroborated by three witnesses whose evidence was accepted, the trial judge rejected the plaintiff as not credible. The failure of the trial judge to expose a logical reasoning process in support of that finding resulted in a miscarriage of justice. Meagher JA considered the nature of the obligation to provide reasons and said at 441: "Perhaps the primary reason for an obligation on courts to provide reasons is the fact that a party seeking an appeal may generally only appeal where the trial judge has made an error of law. The absence of reasons or insufficient reasons may not allow an appeal court to determine whether the trial judge's verdict was or was not based on an error of law or an appealable error. However, the provision of full reasons has other benefits.

A failure to provide sufficient reasons can and often does lead to a real sense of grievance that a party does not know or understand why the decision was made: Re Poyser and Mills' Arbitration [1964] 2 QB 467 at 478. This Court has previously accepted the proposition that a judge is bound to expose his reasoning in sufficient detail to enable a losing party to understand why they lost: Clutha Ltd v Risby (Court of Appeal, 26 March 1996, unreported). One reason is obvious: if decisions cannot be understood, a feeling of injustice can arise and, as Justice Brennan of the United States Supreme Court (see P Huxtable, "A Question-Mark Over The Adversarial System" (December 1995) 30 (No 11) Australian Lawyer 17 at 18) recently perhaps overstated: "… Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But injustice makes us want to pull things down." Aside from the sense of injustice which can be caused, there is a broader interest in maintaining public acceptance of judicial decisions and the judicial system.

The requirement to provide reasons can operate prophylactically on the judicial mind, guarding against the birth of an unconsidered or impulsive decision. It enhances judicial accountability.

The provision of reasons has an educative effect: it exposes the trial judge or magistrate to review and criticism and it facilitates and encourages consistency in decisions. The educative effect does not stop with judges but extends to other lawyers, to government and to the public. Decisions of courts usually influence the way in which society acts and it is trite to point out that it is better to understand why one should act in a particular way.

The provision of adequate reasons will save time for appeal courts both in reducing the number of appeals and in reducing the time taken in considering any appeals." 160 His Honour provided further guidance as to the appropriate content of a judge's reasons at 442: "It follows, that reasons need not necessarily be lengthy or elaborate: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN (NSW) 34 at 36. The scope of the reasons to be given is, as Mahoney JA said in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386, related "… to the function to be served by the giving of reasons". Accordingly, the content of the obligation is not the same for every judicial decision. No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.

Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. The obvious extension of the principle in North Sydney Council is that, where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance: Rajski v Bainton (Court of Appeal, 6 September 1991, unreported).

Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well." 161 The trial judge's reasons for judgment occupy 52 typed pages. The reasons commence with a brief introductory statement of some of the relevant facts. His Honour does not at this stage attempt any comprehensive analysis of those facts and does not make findings with respect to some issues. He makes few findings as to the events surrounding the lopping of the trees and the removal of the pistachio nut tree. And his findings with respect to the dealings, if any, between Mrs Wilson, her husband and the contractors are skeletal. However, the relevant evidence was not in dispute and I am satisfied from my analysis of the transcript that the issue can be adequately considered by this Court. 162 His Honour states in summary form the issues which he believed he was required to resolve. They are stated in the following terms: "Issues [9] Is the first defendant properly a party? Is Mrs Wilson who, it is clear, did no work in lopping the jacaranda tree and removing the pistachio nut tree, liable for any alleged damage. It is not even clear that she was there on some of those occasions. [10] Does the second defendant owe a duty of care to the plaintiff and, if so, was that duty breached? [11] Was the lopping of the jacaranda tree and/or the removing of the pistachio nut tree done negligently? [12] What, if any, damage was caused by the lopping the jacaranda tree [sic] and/or removing the pistachio nut, or both? [13] What are the damages, if the negligent interference with of either of those trees caused damage?" 163 It is apparent that apart from considering whether Mrs Wilson was a proper party his Honour did not recognise any issue in relation to her prospective liability. With respect to Mrs Wilson his Honour's consideration was directed to whether, as a matter of law, in the absence of any evidence that she either supervised or undertook any part of the work, she could be liable to the Pollards. His Honour considered, albeit briefly, the Pollards' submissions that Mrs Wilson was liable on the basis of agency, non-delegable duty and vicarious liability. His Honour rejected each basis for liability. 164 I confess to some difficulty in understanding his Honour's reasons. His Honour does not assist the reader by discussing the facts relevant to each issue. Although his Honour stated that both Mr Maas and Mr MacKillop were independent contractors he neither discusses any relevant evidence nor explains the reasoning for that finding. It would seem that his Honour concluded, relying on Sweeney (which concerned the liability of a defendant for the actions of its employees or independent contractors) that, because the work was undertaken by independent contractors Mrs Wilson could not be liable. 165 Pages 8 to 43 of the reasons consist of a verbatim reproduction of the submissions made by counsel for the Council. His Honour said of the submissions that they were "an excellent analysis of the relevant law" and further said "I agree with that analysis and (counsel's) conclusion in her written outline of submissions." After reproducing the document his Honour said (at [26] of the reasons): "The plaintiff having failed to prove its case against the second defendant on the balance of probabilities, means there will be a verdict for the second defendant and the plaintiff is to pay the second defendant's costs." 166 The submissions made by counsel for the Council are well constructed and the reasoning is sound. However, the conclusions depend upon various assertions as to the relevant facts. Although the assertions are made, his Honour nowhere in his reasons indicates that he has analysed the relevant evidence and himself concluded that the assertions made by counsel are justified by the evidence. He should have done so. 167 There is one aspect, and it is ultimately the most significant issue in the proceedings in respect of which his Honour's reasons are adequate. It was the issue of causation: an issue upon which I have already expressed my conclusions. His Honour discussed this issue under the section of his reasons titled, "Was the lopping the jacaranda tree and/or removing the pistachio nut tree done negligently and what if any damage was caused by the lopping the jacaranda tree and/or removing the pistachio nut or both?" [sic]. 168 His Honour's reasons confirm, as I have related, that the jacaranda tree was substantially lopped but not entirely removed. The pistachio nut tree was entirely removed. Although there was evidence that when work was done on the jacaranda tree the Pollards' driveway was disturbed, no claim was made for any damage to the driveway. The evidence could not support any relationship between the work on the jacaranda tree and the damage which was alleged to have occurred to the house. Further, his Honour concluded at [50]: "We don't really know whether the jacaranda roots spread across to the Pollard's [sic] house or just their driveway." 169 This conclusion is confirmed by my own review of the evidence. 170 His Honour gives an account of the evidence relating to the removal of the pistachio nut tree. Although his Honour does not make an express finding it is apparent that he accepted evidence which confirmed that this work was carried out with care. Given the difficulties which emerged with the Pollards when work was done on the jacaranda tree it was to be expected that particular care would be exercised when the pistachio nut tree was being lopped and removed. There is evidence in a DVD of the trench being dug around the stump before the roots were cut and the stump "easily knocked over and removed" by Mr Maas. Mr Stanger, who his Honour apparently accepted, observed the works and said in evidence that the stump had been removed with great care. He said that the tree roots were cut prior to the stump being removed an excavator being used to carefully expose the root and an axe or chainsaw used to cut them. 171 His Honour then made the following analysis of the evidence and expressed his conclusions in these terms: "[39] There is no evidence that the removal of the pistachio nut tree caused any damage immediately after it had been removed. [40] Mrs Pollard's evidence to Mr Keighran was that damage appeared approximately six weeks after these events. She was cross-examined on that and she said that perhaps it was between September and November but the evidence is equivocal. Mr Cook inspected the site in March 2004 and prepared his report, including photographs of the damage. [41] Mr Keighran inspected the premises on 25 May, accompanied by Mrs Pollard and Mr Cook. Mr Keighran was shown the damage by Mrs Pollard and Mr Cook. The damage allegedly caused by the events was set out in his report as item A. Mrs Pollard showed him the damage which pre-existed the events of 2003 [sic]. He set those out in Item B. Mrs Pollard told Mr Keighran that the damage from Item B was present before 1999. [42] Exhibit M was a building inspection report at July 1999 of the plaintiff's [sic] premises. The report identified a hairline crack on the eastern wall and noted that it lacked a damp course, resulting in rising damp. Mrs Pollard identified that hairline crack as being above the laundry. She had been shown a photograph of it by Mr Keighran and agreed that it could not be described as hairline. [43] The eastern side of the premises, that is the side opposite to where the statement of claim says the damage occurred (the western side), shows evidence of substantial cracking, particularly the crack that was mentioned above, which, in fact, is the most significant of all of the cracks on the entire premises. [44] The Pollards had made no effort to repair their premises. Mr Samarand and Mr Keighran believe that they should just repair the cracks. Mr Cook believes that the appropriate course is to rebuild the western wall rather than repair the premises. [45] There is little to associate the lopping and removal of trees to the damage that is apparent in the photographs. [46] Putting it as its highest, the small cracking evident one has to infer was as a result of the either the removal of the pistachio nut tree and/or the lopping of the jacaranda tree, on the basis that Mr and Mrs Pollard say that those cracks were not there before, but they were there afterwards. [47] The cracking on the eastern side which no-one has attributed to or suggests was as a result of the action of the removal of the tree, rather than [sic] some other process such as the uplifting caused by other trees near the house, does not sit well with that hypothesis, especially as I accept that the eastern wall, as I say, unaffected by the lopping or the removal, has the worst crack. [48] The only damage complained of by the Pollards immediately was the uplifting of the driveway and as I say they have not claimed any damages for the driveway. [49] If there was some nexus between the tree removal and lopping, especially the jacaranda tree incident, one would expect it to have occurred immediately on the tensioning of the roots of the jacaranda tree. [50] We really don't know whether the jacaranda tree roots spread across to the Pollard's [sic] house or just their driveway." 172 His Honour then expressed the following conclusion: "[51] Therefore, I am not satisfied that the plaintiff [sic] have proved on the balance of probabilities that the cracking of the external skin of the cavity wall on their house and other cracking is a result of the removal of the pistachio nut tree and the lopping of the jacaranda tree. [52] I am not satisfied that the plaintiff has proved on the balance of probabilities any of the alleged particulars of negligence viz 'Failing to sever the surrounding roots of each tree before their attempted removal. Using excessive hydraulic/mechanical force to remove the trees. Failing to contract a competent horticulturist to remove the trees. Failing to have any or any sufficient regards to the proximity of the trees to the first property. Failing to exercise reasonable care and skill in the removal of the trees and the carrying out of the excavation/partial demolition of the remaining wall. Failing to shore, adequately or at all, the retaining wall during its partial demolition. Failing to retain expert engineering advice in respect to the excavation/partial demolition of the retaining wall. Failing to contract a competent builder to carry out the excavation/partial demolition of the retaining wall. Carrying out the building works without having the necessary skill and knowledge to do so.'" 173 His Honour's consideration of the issue of damages was brief but I am satisfied he considered the relevant issues. Mr Cook was of the view that to effectively remedy the identified defects the relevant portion of the foundations of the property would have to be stabilised. He was of the view that 30 metres of the western wall of the dwelling should be demolished and reconstructed. The trial judge rejected this view because there was no evidence that Mr Cook had exposed the foundations and found them to be in any way unstable. This seems to me to be an available finding and one which, having regard to the evidence I would have made myself. 174 It is apparent that the judge was concerned at the cost of the proceedings which he openly reflected in various remarks he made during the trial. Notwithstanding that he believed the Pollards' claim to be without merit he was required to resolve the proceedings and provide in his reasons an account of his material findings of fact together with the reasons for his conclusions. As I have indicated, to my mind in some respects the reasons are not adequate and the Pollards' complaints are justified. 175 I have already commented on the manner in which the trial judge resolved issues relevant to the Council. It is true that much of the evidence with respect to the relevant events was uncontroversial. However, there were differences particularly between the Pollards and the Council officers. The Pollards were entitled to understand why it was that his Honour preferred Mr Stanger's evidence. 176 Notwithstanding the deficiencies in his Honour's reasons, for the reasons I have indicated I am satisfied that this Court has been able, so far as is required, to determine the relevant facts and resolve the proceedings. The inadequacy of his Honour's reasons, although making the task more difficult, has not ultimately impeded my consideration of the appeal.

Ground 7 - suggestion of recovery necessary against both respondents 177 In [66] of his reasons the trial judge said: "The plaintiff would have to have succeeded against both defendants to have recovered at all." 178 His Honour did not elaborate on this comment and its factual basis or legal underpinning cannot be identified. Read literally it was plainly wrong. Perhaps his Honour was expressing a concern that if the Pollards failed against one respondent but succeeded against another the costs would have outweighed any verdict. If so his Honour was correct. Whatever the intended meaning the comment had no practical consequence.

One final matter 179 There is little doubt after considering the transcript that his Honour was seriously concerned that many days of court time were being taken up by the proceedings which involved what on any view was a modest claim. He was right to be concerned. The cost of the litigation involving three parties, a number of expert witnesses, and representation by senior counsel was out of all proportion to the likely damages if the Pollards succeeded. The case called for a dispassionate consideration of the available evidence by counsel with firm advice as to the prospects of success and the cost of failure.

Decision 180 In my judgment the appeal should be dismissed with costs. **********

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

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.