Notice of contention
61 The Council contended that the trial Judge's decision should be affirmed because his Honour wrongly failed to find that no Council officer attended Mr and Mrs Timbs' property and gave advice in relation to trees on either of the occasions about which Mrs Timbs gave evidence. Mrs Timbs' evidence to the contrary was said to be glaringly improbable and should have been rejected. The notice of contention pointed to specifics of Mrs Timbs' evidence as incredible.
62 The Council contended:
"1. There was no person, in the employ of the [Council] at the time, who might have made a tree assessment (including someone not employed in the appropriate department of the [Council] and including anyone no longer employed by the [Council]) who matched the physical description given by [Mrs Timbs].
2. [Mrs Timbs'] evidence was incredible when she asserted that despite the fact that [Mrs Timbs'] husband, on the first occasion asked that the trees be inspected and, on the second occasion, said he wanted to cut trees down, he was twice put in contact on the telephone with the same person who did not normally deal with Tree Preservation Orders or trees on private land [and that] that person, rather than referring the matter to the appropriate officer, attended the property.
3. [Mrs Timbs'] evidence was incredible when she asserted that notwithstanding that the officer visited the [Timbs'] property twice and, at least on the second occasion, he brought with him some kind of file which he had open during the visit, no file was ever opened in the [Council's] records and no paper record was made of either of the visits.
4. The matters referred to in 1-3 above, together with the matters referred to by His Honour [such as the absence of any Council records and the fact that Council officers who dealt with trees and wore uniforms would not assess trees on private property], when taken as a whole, must necessarily result in a finding that [Mrs Timbs'] evidence was incredible."
63 Further, it was contended that the trial Judge ought not to have taken into account that it was likely that the Council officer, who attended the property, and who was no longer employed by the Council, destroyed the relevant file and when, after the accident, an officer of the Council stated "you can now cut down the trees", that must be a reference to the earlier visits.
64 The Council expanded on these grounds of contention in its submissions ably put by Mr Davies SC. It was said that his Honour's acceptance of Mrs Timbs' evidence about the description of the Council officer and how he came to her property on two occasions involved a rejection of the evidence of Mr Papworth and other Council witnesses. Their evidence was that there was no person of this description who could have attended the property at the times nominated by the appellant. This must be considered against the background of a failure on behalf of Mrs Timbs' to object to the evidence and the lack of cross-examination on the issue. The evidence was inherently probable. Further, it was said that the trial Judge had failed critically to analyse Mrs Timbs' evidence. The uncontradicted evidence could only be fitted into a pattern if a different view was taken of the credibility of Mrs Timbs. The Council submitted that in the circumstances, the primary findings by the trial Judge based on the credibility of the appellant should be displaced.
65 Mr Papworth, the Council's Environmental Services Manager, who at the relevant time was the Manager of Health and Community Services, had worked in the Nowra office of the Council since about 1994 or 1995. He gave evidence that between 1994 and 1998 the department responsible for assessing any Tree Preservation Order was called "Health and Community Services" and that there had never been a department known as "Health and Building" which had been nominated by Mrs Timbs as being the department which her husband telephoned. Mr Papworth's evidence, which was not controverted, was that if someone telephoned asking to speak to an officer in "Health and Building" about a tree it would ordinarily have been referred to his department.
66 Mr Papworth gave evidence about who worked in the department during that time and about the fact that those assessing trees did not wear a uniform at all as Mrs Timbs' asserted. The Council claimed that this evidence was never really challenged.
67 In any event, Mr Papworth gave unchallenged evidence that the only person working in his department during the relevant period "who even came close" to fitting the description Mrs Timbs gave was one, Ian Cockburn. Mrs Timbs stated she knew Mr Cockburn and he was not the officer who came to the property. Mrs Timbs was provided with a list of names of all those in the department during the relevant time. She never suggested that any of those people fitted the description.
68 Mr Papworth stated, in the unlikely event that someone outside his department attended the site, that the only person who could have attended in the uniform described by Mrs Timbs to assess the tree was someone from the Asset Construction and Maintenance department. This evidence was not challenged. Martin Upitis, the Acting Manager of the Asset Construction and Maintenance department, gave evidence. He was working in that department during the relevant period. His evidence was that the only people in his department who might be working with trees in any capacity would be those in the Roads and Maintenance section and that those officers wore the uniform as described by Mrs Timbs. However, he said that in the ordinary course of events, if an officer from his department received a telephone call wanting a tree assessed during the relevant period they would not assess it if the tree was located on private land (the present case) and that ordinarily they would refer the matter to the Health and Community Services department. If, for some reason, they were unable to ascertain that the tree was on private land they might attend the site. If, upon attending the site, they found the tree was on private land they would decline to deal with it and refer the matter to the Health and Community Services department. Mrs Timbs did not controvert this evidence.
69 In any event, Mr Upitis stated that the only person who had worked in his department during the relevant period who in any way fitted the description provided by Mrs Timbs was Trevor Maloney. It was suggested that Mr Maloney did not fit the description well but it was never suggested that anyone else in the department fitted the description at all. Mr Maloney gave evidence and stated that he had never been to Mrs Timbs' property and that in January 1998 he was on holidays. Mrs Timbs did not suggest that Mr Maloney had come to the property.
70 Mr Papworth gave evidence of the Council's computer records in relation to both requests for actions or complaints received by it and in relation to applications for Tree Preservation Orders in particular. He described three data bases as being the relevant ones which might have any information about complaints, requests for action by Council or tree requests and visits. He gave evidence that if Mr Timbs had telephoned the Council asking that any tree be looked at, it was consistent with its practice to enter this information into its computer data base as it was a request for action by the Council. There was no record of either of the two calls being made.
71 Mr Papworth conducted computer searches using all spellings of the name Timbs, BTU Road and any tree applications. He produced printouts from the records regarding other matters which arose out of complaint or a request for action by the Council including the slashing of grass and wandering cattle. Mrs Timbs conceded that those matters had in fact occurred. Mr Papworth was cross-examined to the effect that in certain circumstances entries were not made on to the computer system. However, he said that records might not be entered if someone came to the Council and sought general advice if there was no complaint or request for action. None of the examples put to him in cross-examination were examples of complaints or requests for action by the Council.
72 Further, Mr Papworth and later Mr Bryce gave credible explanations as to why those entries would not be recorded. Mrs Timbs led no evidence to the effect that the particular enquiry had been made such that anything would be recorded.
73 Mr Papworth said that, if a visit had been made to the property on either occasion to assess a tree, in the ordinary course of events a paper record would also be created. However, no such files had been able to be located in relation to either of the visits. He said that, if there had been a file, a file number would have been created from the data base and could have been retrieved. He said that no such file number was recorded. This evidence was not controverted.
74 The trial Judge's finding on the lack of any paper file was made without any evidence to support it. He found that the officer had made a paper file in respect of the application even though it was not entered into the computer, that the officer destroyed the file out of fear of blame for Mr Timbs' death and that by the time notice was given on 23 February 2001 of this intended action he was not employed by the Council. Not only was this finding not supported by any evidence and was not advanced by Mrs Timbs, it was inconsistent with all of the Council's largely unchallenged evidence in calling any officer who met the description Mrs Timbs gave.
75 The trial Judge also attempted to deal with the issue of there being no documentary evidence of the visits by speculating that the only record might have been a diary in the possession of the officer who attended. The Council submitted that this ignored the unchallenged evidence from Mr Papworth and others effectively accounting for anyone who in any way came close to matching the description Mrs Timbs provided and the uncontested evidence that it was none of the persons called to give evidence. The trial Judge, it was asserted, incorrectly, assumed that the officer did go to the property as described by Mrs Timbs and that he could not be identified. It was submitted that the evidence established that no such officer existed.
76 The trial Judge did not reject the Council's evidence. His reasons for accepting the appellant were that she appeared to be telling the truth and there were two matters which supported her. First, there was evidence that on the day of the accident a person from the Council stated "you can now chop down the trees, they should not have been 20 metres to the house". Mrs Timbs' son became very angry and stated "it is a bit late for that now". The Council submitted that this evidence did not assist in determining whether or not the Council had previously refused permission to have the trees removed. The second matter was the fact that shortly after the accident it was reported in the Sydney daily newspaper The Daily Telegraph that the Council had been approached for permission to remove the trees and that had been refused. His Honour found that this information could only have come from one or more members of the Timbs' family. The Council submitted that, first, there was no evidence from Mrs Timbs or any family member about having ever spoken to anyone from the newspapers and secondly, while it supported the contention in a general sense that permission had previously been refused, it did not assist Mrs Timbs in the assertion that visits were made in the particular way she asserted.
77 Most importantly, in order to accept Mrs Timbs it was said that the trial Judge must necessarily have come to the view that it was more probable than not that all (emphasis added) of the following events occurred:
"(i) On two separate occasions, the appellant's husband telephoned the respondent, about a matter that would normally be logged into the computer system, provided name and address details and the telephone call was not logged on either occasion.
(ii) Despite the fact that Mr Timbs, on the first occasion, asked that the trees be inspected and, on the second occasion, said he wanted to cut trees down, he was twice put in contact with the same person who did not normally deal with TPO's or trees on private land.
(iii) Notwithstanding the fact that Gordon did not give the name of the person he had spoken to up to 2 years previously, when he telephoned on the second occasion and there was no written record of his previous call, he spoke to the same person (who was not a usual TPO assessor).
(iv) Notwithstanding that what the appellant and Gordon were, in effect, seeking, was TPO ruling, for which there was a formal application process, which attracted a fee for the respondent's benefit, no written application or fee was sought by the respondent.
(v) Notwithstanding that the officer visited the appellant's property twice and, at least on the second occasion, he brought with him some kind of file and which he had open during the visit, no file was opened in the respondent's records and no paper record was made of either of the visits.
(vi) Notwithstanding the fact that it was never put to them in cross-examination, Mr Papworth and Mr Upitis were mistaken or lying when they gave evidence that there was no person at Council who might have made a tree assessment, other than Maloney and Cockburn, who could possibly have fitted the appellant's description."
78 The Council submitted that whilst each of those matters might be possible or even probable, the likelihood that more than one or all of the above accounts took place was extremely unlikely. It was said to be more telling of concoction by Mrs Timbs and supported the conclusion that no one from Council attended the site in the circumstances she gave. It was submitted that the factual matrix was such that they could only be fitted into a pattern if a different view of the credibility of Mrs Timbs was taken. The Council submitted that the trial Judge should have analysed the evidence on the basis that it was Mrs Timbs' case that a particular person as described by her attended the property in particular circumstances as described by her.
79 Further, in light of her evidence as to the circumstances of the calls and the visits, her evidence could not fit with the pattern of the rest of the unchallenged evidence. As there was suggestion by her that she could have been mistaken about whom her husband telephoned and what he said or the description of the uniform or the officer it was submitted that on the whole of the evidence it was established that the visits could not have happened in the way Mrs Timbs asserted. There was no other evidence. It was submitted that this lack of evidence pointed to concoction by Mrs Timbs. If this person existed in 1998 when the accident took place the person would have been relatively easy to identify and locate. He had been at the Council at least between July 1996 and January 1998. Mrs Timbs said that although she did not know his name she would know him if she saw him again. She was able to provide a clear and detailed description of the man and the fact that he wore a uniform. However, she made only one enquiry with Mr Bryce as to who the man might be and upon being told that the Council had no file on the matter made no further enquiries at all as to who the person was who had attended the property. She stated she did not think she gave the description of the officer to Mr Bryce. Mr Cockburn, who worked for the Council, had known Mrs Timbs for twenty years and yet despite the fact that she said her motivation for suing the Council was to find out who assessed the trees, she made no enquiries of him as to who the person might have been. Her reason for not doing so was not credible. She stated that it was because he was in some other department. First, he was not in another department at the relevant time and second, if Mrs Timbs were genuinely trying to find out who had come to the property, the fact that he was in a different department would not have deterred her.
80 The Council relied upon the decision of the High Court in Fox v Percy [2003] 77 ALJR 989. In that case a trial Judge had to determine whether the appellant, who had been seriously injured on a public road when the horse she was riding collided head on with a vehicle being driven in the opposite direction by the respondent, was on her correct side of the road and the respondent on his incorrect side. The attending police gave incontrovertible evidence that the respondent's car and skid marks were found on the correct side of the road at the accident site. Notwithstanding this the trial Judge entered a verdict for the appellant and found that the collision occurred because the respondent's vehicle was on the wrong side of the road. This Court upheld an appeal from that decision. On further appeal to the High Court at 997 [42] Gleeson, Gummow and Kirby JJ said:
"Nevertheless, in our view, within the stated principles, the majority in the Court of Appeal did not err in giving effect to the conclusion that they reached. The skid marks on the respondent's correct side of the road were incontrovertibly established. Their position, length, direction and terminus are inconsistent with the appellant's version of events. Having come to that conclusion, the majority in the Court of Appeal were correct to give effect to their conclusion and to set aside the judgment in the appellant's favour."
81 At 1005 [90] McHugh J said:
"It is a serious mistake to think that anything said in Abalos v Australian Postal Commission (1990) 171 CLR 167 or Devries v Australian National Railways Commission (1993) 177 CLR 472 necessarily prevents an appellate court from reversing a trial judge's finding when it is based, expressly or inferentially, on demeanour. Those cases recognise - in accordance with a long line of authority - that it may be done. But there must be something that points decisively and not merely persuasively to error on the part of the trial judge in acting on his or her impressions of the witness or witnesses. Recently in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) (1999) 73 ALJR 306, for example, this Court held that undisputed and documentary evidence was so convincing that no reliance on the demeanour of witnesses could rebut it."
82 It should be observed that in Fox v Percy, as Callinan J mentioned at 1018 [154], one of the props of the trial judge's decision, the appellant's evidence, was itself suspect by reason of her inevitably reduced capacity to observe and recount what had happened by reason of her earlier intake of alcohol.
83 The Council's case is that Mrs Timbs' account of events was a concoction. This must have been deliberate. Moreover, the publication in The Daily Telegraph at the time suggests that at least the idea behind that concoction had been developed at about the time when Mr Timbs was killed. Furthermore, Mrs Timbs was, according to the argument, prepared to lie on oath in court. Unfortunately, experience teaches that there are people capable and willing to lie in the witness box and some, no doubt, are good at it. In the present case, there is no suggestion nor could there be any, if the Council's argument is right, that Mrs Timbs had forgotten something or misunderstood something or simply made a mistake in the evidence she gave. It all had to be deliberate and planned.
84 The trial Judge heard Mrs Timbs' evidence and remarked that she was a person "who could not readily invent false evidence and, if she did, there would be tell-tale signs of this. That did not occur." Moreover, it was open for his Honour to conclude that Mr Hedger's statement to Damien Timbs corroborated what Mrs Timbs said. This evidence calls for a little analysis. Mr and Mrs Timbs' son, Damien, arrived back at the property at about 6.15 am on the morning of the accident, 29 July 1998. He said that when he arrived he saw "the SCC personnel, police and the ambulance on the site." After he arrived, others, including members of the family, arrived as he described. He said that he was with his uncle Colin and Mr Edwards when a man came to them dressed in ordinary clothing with a tie. He spoke to people there as a group and identified himself. Damien gave the following evidence:
"Q. Did he tell you, as a group, that he was from the council? A. Yes.
Q. Was there some conversation? A. Yes.
Q. Doing the best you can, as if we're listening to it happen, what did the gentleman say to the group? A. He come over to us and asked if we're related to the victim. Me and uncle Colin both replied yes we were.
Q. Steady down, I know you're getting upset. Take your time. You and your Uncle Colin said yes, and did the gentleman say anything else to the group? A. Yes.
Q. What did the gentleman say? A. He said 'You can now chop down the trees' that they shouldn't have been 20 metres to the house.
Q. Would you repeat that slowly please? A. That we could now chop down the trees, that they should not have been 20 metres, like to the house.
Q. How did you react when the gentleman said that to the group? A. Very angrily. I grabbed, like, yeah. Very angry.
Q. Did you do something to the man? A. Yes I grabbed him.
Q. With one hand or both hands? A. One hand.
Q. How did you grab him sir? A. On the shirt, at the front.
Q. With the right hand? A. Left hand.
Q. Left hand? A. Yes.
Q. On the front of his shirt? A. Yes.
Q. Did you release him? A. Yes.
Q. Did you say something to the man after he had uttered those words? A. Yes.
Q. What did you say? A. It's a bit late for that now.
Q. Then did your uncle Colin tell you to go away? A. Yes."