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Shoalhaven City Council v Timbs [2005] HCATrans 92 (4 March 2005)

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Shoalhaven City Council v Timbs [2005] HCATrans 92 (4 March 2005)

Last Updated: 15 March 2005

[2005] HCATrans 092


IN THE HIGH COURT OF AUSTRALIA


Office of the Registry
Sydney No S162 of 2004

B e t w e e n -

SHOALHAVEN CITY COUNCIL

Applicant

and

CARLENE TIMBS

Respondent

Application for special leave to appeal


GLEESON CJ
McHUGH J


TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 MARCH 2005, AT 9.52 AM


Copyright in the High Court of Australia


MR D.L. DAVIES, SC: May it please the Court, I appear with my learned friend, MS P.M. SIBTAIN, for the applicant. (instructed by Phillips Fox)

MR D.F. JACKSON, QC: If the Court please, I appear with my learned friends, MR R.I. GOODRIDGE and MR N. OWENS, for the respondent. (instructed by Firths)

GLEESON CJ: Yes, Mr Davies.

MR DAVIES: Your Honour, the special leave point concerns the scope of the duty of the Council and its officers when making decisions under tree preservation orders, where permission is sought to remove those trees. We say that there is a clear distinction made between what the trial judge found at first instance on the scope of that duty and what the Court of Appeal impermissibly found on appeal. The trial judge found that the statements of the council officer were his honest opinion and that the advice he gave was neither wrong nor negligent. The basis for that holding was that at the time of the inspection, which was in January 1998, the tree having then fallen in July 1998, that there was in fact no evidence that there was anything wrong with the trees. The basis for the trial judge’s holding in that regard was that he accepted the evidence of Mr Castor, who was the expert for the Council in the matter.

That highlights the fundamental flaw that we say was in the plaintiff’s case that there was no evidence led to show that there was anything wrong with the tree when it was inspected in January 1998, notwithstanding that, when it was subsequently inspected after it fell, or, more particularly, when Mr Castor examined detailed police photographs of it, he was able to determine that the cause of the fall was the fact that the tree roots were decayed and that the soil in which the tree was sitting at the time was wet and waterlogged from a leaking septic tank and other reasons.

Now, the Court of Appeal then, impermissibly, we say, drew an inference that because it was shown that the tree roots were decayed in July, they must have been in that condition in January. There was absolutely no evidence about that, how long it would take for rot to appear, how long it would take to show that decay that was existent in July would have been there.

GLEESON CJ: Well, we are not going to pass upon any principle about how long it takes tree roots to decay.

MR DAVIES: No, I understand that, your Honour, but that forms part of the way that the trial judge came to view the scope of the duty.

GLEESON CJ: What is the question of principle involved that makes it a proper case for special leave to appeal? It sounds like a case about facts.

MR DAVIES: The principle is, to what extent is a council officer supposed to go when he is asked to determine one of these applications? Here it was an informal application - - -

McHUGH J: That is not a question of principle, it is just a question of fact, depending upon the particular circumstances of the case. This surely is just a fact case. We cannot be taking on these fact cases.

MR DAVIES: Your Honour, there is no doubt that the Council owed a duty of care of some sort. That has been clearly established in - - -

McHUGH J: And it was held that the officer’s statement constituted a negligent statement. That seems to have been the cause of action relied upon. The trial judge found in your favour, the Court of Appeal reversed, but that is just a fact case. Parties have just got to learn to accept that fact cases end in the intermediate courts of appeal. I know we have made some exceptions. We have looked at a number of cases in the last two or three years, but there has to be a limit. We just cannot be taking on cases that we think are erroneously decided, Mr Davies, unless there is some question of principle involved.

MR DAVIES: Your Honour, we say the point of principle is this, that it is a matter that concerns councils certainly throughout New South Wales, and more widespread, because tree preservation orders exist - - -

GLEESON CJ: Yes, and people are saying to councils, “These trees ought to be cut down, because if they fall down they are going to cause a lot of damage”, and here the evidence was that the Council were requested to look at these trees because of the concern that they might fall.

MR DAVIES: But a concern based on nothing more than where they were located, relative to the property. It was not suggested by the respondent, for example, that there was any evidence of the trees not being in good health or likely to fall other than the fact that they stood at a certain distance from the house.

McHUGH J: Yes, but after Mr Timbs was killed, you quickly said the tree could be cut down, did you not?

MR DAVIES: Your Honour, that is not a surprising thing to have happened in all of the circumstances.

McHUGH J: After all, they are asking for the tree to be cut down and the officer goes out and says, “No, it need not come down”, and then, when he is killed, you say they can bring it down. It is a fact case.

MR DAVIES: What your Honour has said really highlights the point of duty. They asked, can they cut down the tree, show no evidence why it ought to be cut down other than they have this fear, an ungrounded fear. The council officer comes out. What is he supposed to do to determine the health of the tree? Mr Castor, the expert for the Council, says what the common practice of council officers in that position is. Mr Papworth, who was the head of the relevant department in the Council and who had long experience in two other councils in New South Wales, gives similar evidence about what the usual course of practice for council officers in those positions to do was. That evidence is accepted by the trial judge.

There was no evidence to the contrary. The expert evidence for the respondent said nothing about the matter. The Court of Appeal, on the other hand, by some deft footwork, if I may say, purports to accept the evidence from the respondent’s expert and ignores Mr Castor’s evidence and the evidence of the head of the section in the Council who had the long experience about what ought to be done on these occasions.

McHUGH J: Well, if it is any comfort to you, as far as I am concerned the case is an authority for nothing except the facts of that particular case. It lays down no principle whatever. If it had been decided by a jury, what would your point be? It is just a question of fact. It is not an authority for anything except the facts of that particular case.

MR DAVIES: Your Honour, we say that what the decision has left undetermined, and at the moment against us, in a sense, is that council officers have a higher duty than ought to be imposed upon them in the circumstances of these sort of applications. That is simply based on the lack of any evidence on the respondent’s side about what was appropriate and the evidence that we had led on the matter. Now, it is a question of fact in that sense, but it also touches directly on the scope of duty point. If the matter had been a formal approach, even, as Shaddock has discussed, the question would still arise.

McHUGH J: Your point is that there was no evidence that his statement was negligent. Well, that is all the case is about. The Court of Appeal said there was evidence. They may have been wrong.

MR DAVIES: Well, your Honour, they purported really to lay down the obligation on a council in the circumstances of the case and against the evidence, because they said what the council officer ought to have done to determine whether or not the tree was safe. When that finding is against the
evidence of what the common practice was, it raises a point of principle, we say, for councils generally. This was not just the practice of Shoalhaven Council. It had been the practice in other councils that Mr Papworth had been involved with prior to that time. That, we say, is a matter of principle and a matter of general importance for councils.

When it is coupled with the other particular overturning that the Court of Appeal engaged in on the trial judge’s second basis, which was in relation to whether or not the trees would have been paid to be removed in any event, we suggest that there is sufficient injustice involved in the decision to justify this Court hearing the matter. If your Honour pleases.

GLEESON CJ: Thank you, Mr Davies. We do not need to hear you, Mr Jackson.

This case involved the application of settled principle to the facts and circumstances of the particular case and we are not persuaded that the interests of justice require a grant of special leave to appeal. The application is dismissed with costs.

AT 10.03 AM THE MATTER WAS CONCLUDED


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