Pollard v Wilson

Pollard v Wilson - [2010] NSWCA 68 - NSWCA 2009 case summary — Zoe

[8]

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.

[9]

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.

[10]

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.

[11]

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.

[12]

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.

[13]

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.

[14]

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.

[20]

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.

Parties

Applicant/Plaintiff:

Pollard

Respondent/Defendant:

Wilson

Cases Cited (59)

CITATION: Pollard v Wilson [2010] NSWCA 68 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Assaf v Kostrevski [1998] NSWCA 274 Balesfire Pty Ltd v Jamie Adams and Others [2006] NSWCA 112 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Bendix Mintex Pty Ltd & Exxon Ltd Bondin v Lamaro [1994] NSWCA 29 Botany Bay City Council v Rethmann Australia Environmental Services Pty Limited [2004] NSWCA 414 Chamberlain v Callaghan and Ors [2004] NSWCA 44 Commonwealth of Australia v Shaw (2006) 66 NSWLR 325; [2006] NSWCA 209 Davison v Vickery's Motors Ltd (in liq) (1925) 37 CLR 1; (1925) 31 ALR 465 at 19 Dominello v Dominello [2009] NSWCA 95 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Harry S Bagg's Liquidation Warehouse Pty Ltd v Whittaker (1982) 44 NSWLR 421 Heperu Pty Ltd v Morgan Brooks Pty Ltd (No 2) [2007] NSWSC 1438 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 ("Hollis") International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co (1958) 100 CLR 644 at 652; (1958) 32 ALJR 160 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Jsekarb Pty Ltd v Barnes (1997) 42 NSWLR 307 Jung v Son [1998] NSWCA 120 Keighley Maxsted & Co v Durant [1901] AC 240 Kelner v Baxter (1866) LR 2 CP 174 Kondis v State Transport Authority (1984) 154 CLR 672 at 687; 55 ALR 225 Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 230 CLR 22 MacRae v Stevens [1997] ANZ ConvR 129 Makawe Pty Ltd v Randwick City Council [2009] NSWCA 412 CASES CITED: Makita (Australia) Pty Ltd v Sproules (2001) 52 NSWLR 705 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 Mifsud v Campbell (1991) 21 NSWLR 725 Minnesota Mining & Manufacturing Co & 3M Australia Pty Ltd v Beiersdorf (Aust) Ltd (1980) 144 CLR 253; (1980) 29 ALR 29 North Sydney Council v Binks [2007] NSWCA 245 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; (2004) 208 ALR 213 Parramatta City Council v Lutz (1988) 12 NSWLR 293 Pettitt v Dunkley [1971] 1 NSWLR 376 Phillipson v Hayter (1870) LR 6 CP 38 Pinkstone v R (2004) 206 ALR 84 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 Pyrenees v Day (1998) 192 CLR 330; [1998] HCA 3 Ryan v Great Lakes Council [1999] FCA 177 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 South Sydney District Rugby League Football Club Ltd v News Ltd (2000) 177 ALR 611; [2000] FCA 1541 Stevens v Bodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 in contrast with Stoneman v Lyons (1975) 133 CLR 550; 8 ALR 173 Suncorp Finance & Insurance Corp v Milano Assicurazioni SpA [1993] 2 Lloyd's Rep 225 at 234 Sutherland Shire Council v Heyman (1985) 157 CLR 424; [1985] HCA 41; Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; (2006) 227 ALR 46 Sydneywide Distributions Pty Ltd v Red Bull Australia [2002] FCAFC 157; (2002) 55 IPR 354 Trident v McNiece Bros Pty Ltd (1987) 8 NSWLR 270 Victims Compensation Fund Corporation v Ainsworth [2001] NSWCA 92; Watson v George (1953) 89 CLR 409 Workers Compensation (Dust Diseases) Board of NSW v Smith [2010] NSWCA 19

THURSDAY 8 APRIL2010 POLLARD v WILSON Judgment 1 MACFARLAN JA: I agree with McClellan CJ at CL. 2 YOUNG JA: I agree with McClellan CJ at CL. 3 McCLELLAN CJ at CL: The appellants, Mr and Mrs Pollard ("the Pollards") own a property at 63 Tamworth Street, Dubbo. The property is developed with a dwelling house and a substantial garden. The dwelling house was erected in the latter part of the 19th century. It is one of a limited number of heritage listed properties in Dubbo. The adjoining property ("the Wilson property"), 61 Tamworth Street, Dubbo is owned by the first respondent (Mrs Wilson). The property was purchased by her in 2002, the funds being provided by Mr Wilson. The property is developed with a dwelling house in which she lives with her husband, Bernard Wilson. Before it was subdivided and developed, the land of the Wilson property was part of the curtilage of the Pollard property. 4 After taking up residence Mrs Wilson decided to upgrade her property and amongst other improvements erect a new garage, with a widened driveway, on the eastern boundary of the property. Mrs Wilson, as owner-builder, sought and obtained development approval from the second respondent, Dubbo City Council ("the Council"), for various building works. In order to be able to alter the garage and driveway access it was necessary to significantly lop a jacaranda tree adjacent to the boundary with the Pollard property and remove a pistachio nut tree which was also close to the boundary. 5 In August 2003, the jacaranda tree was heavily lopped but not removed. Some three months later, in late November, the pistachio nut tree was removed. The Pollards claim that the disturbance of the jacaranda tree and the removal of the pistachio nut tree disturbed the subsurface adjacent to the foundations of a portion of the western wall of their house causing cracking. They sued Mrs Wilson and the Council, claiming damages, being the cost of repairing their house. For reasons which are not apparent they did not sue Mr Wilson or either of the contractors who assisted in removing the pistachio nut tree. The Council was joined to the action because of its powers to control the development of land and the removal of trees. 6 The case was tried in the District Court where it occupied 11 days of hearing time. The trial judge, in reasons which are criticised by the appellants as being wholly inadequate, found for the defendants, dismissed the proceedings and ordered the Pollards to pay the respondents' costs. If he had found the respondents liable his Honour indicated that he would have awarded damages in the sum of $16,500. The Pollards originally claimed a total sum of $125,228.10. 7 The trial judge made only limited factual findings. With respect to Mrs Wilson his Honour ruled that she was not properly a party to the proceedings. His Honour indicated that there was no dispute that Mrs Wilson did not herself carry out any work on the jacaranda tree or the pistachio nut tree and accordingly had not herself performed a negligent act. 8 His Honour also considered whether Mrs Wilson may be liable by reason of her husband's actions as her agent. He further considered whether as an owner-builder Mrs Wilson owed a non-delegable duty of care to the appellants. His Honour determined that Mr Wilson "did not have a capacity to create or effect legal relations on behalf of Mrs Wilson and that the relationship between them did not create the legal relationship of agency." His Honour also rejected the submission that there was a non-delegable duty of care and referred to the decision of the High Court in Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 230 CLR 22 ("Montgomery"). 9 Finally, in relation to Mrs Wilson his Honour held that she was not in the present circumstances vicariously liable for the acts of others who were carrying out activities which had a benefit to her by improving her property at Tamworth Street. His Honour found that the two contractors who carried out the work, Mr Maas and Mr MacKillop, were independent contractors. His Honour found that Mrs Wilson neither owed a duty of care to the Pollards nor, if she did, that it had been breached. 10 With respect to the Council the trial judge concluded that the Pollards had "failed to prove their case on the balance of probabilities". His Honour's reasons consisted of the adoption verbatim of the entire written submissions by counsel for the Council at the trial. 11 As I will discuss there are some inadequacies in the trial judge's reasons. However, his Honour did consider whether the Pollards had proved that the lopping of the jacaranda tree or removal of the pistachio nut tree had been undertaken negligently and whether either action had occasioned damage to the Pollards' house. His ultimate finding was that the Pollards had not established that the work on the Wilson land was the cause of any relevant damage to the Pollard house. This finding is ultimately determinative of the case. In the course of giving reasons in relation to these questions his Honour made some findings of fact. But it is necessary, as the parties accept, to examine other factual matters.

a. The species of the trees and their general horticultural characteristics; b. The characteristics of the trees' feeding root zone extending beyond the canopy of the trees; c. The characteristics of feeding roots (fine) and water seeking roots (major structural); d. The characteristics of the root system that may develop in temperate regions (very significant); e. The likely maturity of the trees; f. The characteristics of root system by trees in competition with other trees (large and roots extending further); g. The characteristics of root systems vis-à-vis impervious clay (do not penetrate and run laterally); h. The characteristics of the soil (sandy loam to 450mm and then clay) at the locality of the trees and its effect on the roots; i. At the locality of the trees any structure within 10m of the drip line could be influence and affect [sic] by the roots; j. At the locality of the trees the probable leaking of earthenware pipes would encourage and promote root development in and around the buildings and foundations; k. Disturbance of roots affects the pipes and structures and changes the characteristics of the previously stable environment; l. The former tree preservation regime and the current significant tree register and their operation; m. The manner in which the significant tree register is administered by an authority; n. The criteria for inclusion on the register and the evaluation process; o. The appropriateness of the Council's employee in refusing to accept the application for inclusion of the register; p. The probability of inclusion onto the register of the tree; q. Other similar trees on the register in the area of the locality of the trees; r. The appropriateness of the omission of notification of the removal of the trees in the development application process; and s. The tearing pressure applied to break roots would not be localised and would extend along the root system. 84 It was further submitted that Mr Botfield's opinion was clearly based on his training, study and experience and that his assumptions and reasoning process were sufficiently disclosed. It was submitted that by rejecting the report his Honour denied the Pollards procedural fairness. 85 The requirements of s 79 of the Evidence Act were authoritatively considered in Makita by Heydon JA (with whom Powell and Priestley JJA agreed). His Honour identified at [59] the requirement that the report comply "with a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions." In a passage which has been referred to many times his Honour said at [85]: "In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of 'specialised knowledge'; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be 'wholly or substantially based on the witness's expert knowledge'; so far as the opinion is based on facts 'observed' by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on 'assumed' or 'accepted' facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v The Queen (1999) 197 CLR 414 on 'a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise' (at [41])." 86 His Honour's remarks have not gone uncriticised. In particular in the Full Court of the Federal Court in Sydneywide Distributions Pty Ltd v Red Bull Australia [2002] FCAFC 157; (2002) 55 IPR 354 at 356-357 Branson J suggested that the criteria adopted by Heydon JA may impose a "counsel of perfection." It is unnecessary to explore that debate in this appeal. 87 In my opinion in the present case, from either perspective, the evidence was rightly rejected. I accept that Mr Botfield does have specialised knowledge in relation to horticultural matters, including the relationship between the growth habit of trees and the micro climate and characteristics of the soil in the location where they have been planted. I also accept that he has experience in the assessment of the significance of trees and the process of assessing that significance for the purposes of the prospective inclusion of a tree on the Council's Significant Tree Register. But the document he prepared has more fundamental problems. 88 After a brief discussion of some of the issues at the conclusion of his report Mr Botfield purports to give an opinion about six separate matters. They were stated in the following terms: "(i) There is a significantly high probability that the physical activities associated with the removal of the trees impacted on the structure of the house at 63 Tamworth Street. (ii) The trees at 61 Tamworth Street should have been considered to be part of the heritage landscape of the area. (iii) In all probability the value of the property at 63 Tamworth Street has been diminished by the removal of the trees at 61 Tamworth Street in terms of its heritage context and the physical consequences. (iv) It is my opinion that there are notable gaps and discrepancies in the manner of assessment, applied process and operation of Council's procedures in regard to the Significant Tree Register and the Development Application Procedures in relation to this locality. (v) It is my opinion that in all probability had the Development Application Procedure and the Significant Tree Register process been properly adhered to, Council would have placed the trees on the Significant Tree Register. (vi) Forgoing the above, it is my opinion that proper due diligence was not carried out to determine the most appropriate manner of removal to be applied to this location which resulted in significant disturbance to the surrounding terrain." 89 In my judgment Mr Botfield does not provide in his report an appropriate basis for any of these opinions. Although he may have been qualified to give an opinion about the relationship between tree roots, drainage problems and the foundations of buildings, there are virtually no facts identified which could provide a foundation for his opinions. To the extent that he seeks to explain the basis for his opinion it is confined to theory built upon assumptions as to the nature of the building foundation, drainage arrangements and soil type. He expresses opinions as to value, although he is not a valuer. He offers opinions as to actions which he says the Council would have taken which are nothing more than speculation framed out of his own belief as to the action the Council should have taken. 90 In my judgment his Honour was correct to reject Mr Botfield's evidence. 91 Apart from a submission that Mr Botfield's report should have been admitted into evidence counsel for the Pollards submitted that his Honour failed to give proper consideration to its admission. It was submitted that because he did not read every page of the report his Honour failed to give the Pollards a proper hearing in relation to its admissibility. 92 It may be that his Honour did not read all of the report, although given its relative brevity it is not difficult to quickly peruse and acquire an understanding of its form and contents. Even a cursory reading is sufficient to reach the conclusion that the opinions Mr Botfield expressed could not be admitted. This complaint by the Pollards is without substance.

Ground 6 - application for disqualification 93 The test which must be applied in Australia to determine whether a judge is disqualified for the appearance of bias (the apprehension of bias principle) is whether a "fair-minded lay observer" might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: see Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11] ("Johnson") and the authorities cited therein. The "fair minded lay observer" is not completely unaware of the trial process. He or she will be aware that modern judges in the interests of effective case management may intervene and may engage in robust dialogue with the bar: Johnson at [13], [46]. The observer is also assumed to understand that when, during the course of proceedings, a judge expresses views which suggest that he or she may be inclined to a particular view of any issue, judges are not taken, on that account alone, to have prejudged any outcome: Johnson at [13], [46]. 94 The relevant principles were further discussed and explained in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337. The joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ at [8] explains that there is a two step process: "First it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits". 95 When pressing the application that his Honour disqualify himself, the Pollards relied upon eight matters, or incidents, which occurred during the course of the trial. However, the first and second matters can be dealt with together. I have set them out below together with my conclusions in relation to each matter.

[1998] HCA 3

(1997) 48 NSWLR 430

(2006) 66 NSWLR 325

(1925) 37 CLR 1

(1925) 31 ALR 465

(2000) 205 CLR 337

(1982) 44 NSWLR 421

(2001) 207 CLR 21

(1958) 100 CLR 644

(1958) 32 ALJR 160

(2000) 201 CLR 488

(1997) 42 NSWLR 307