Semaan & 2 Ors v Integral Energy [2007] NSWSC 517

New South Wales Supreme Court

CITATION : Semaan & 2 Ors v Integral Energy [2007] NSWSC 517

HEARING DATE(S) : 21/05/2007

JUDGMENT DATE : 25 May 2007

JUDGMENT OF : Associate Justice Malpass

DECISION : The proceedings are dismissed. The plaintiffs are to pay the costs of the proceedings.

CATCHWORDS : Appeal brought by a non party - findings of fact based on credibility and reliability of witnesses - sufficiency of disclosure of reasoning process for preference of version of one witness

LEGISLATION CITED : Local Courts Act (1982) (NSW)

Yvonne Semaan PARTIES : Joyce Semaan Rebecca Semaan Integral Energy

FILE NUMBER(S) : SC 15079/06

COUNSEL : Mr J. Azzi (Pl's) Mr J. Watts (Def)

SOLICITORS : Maclarens Lawyers (Def)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : Z3744 427/06

LOWER COURT JUDICIAL OFFICER : E Corbett LCM

LOWER COURT DATE OF DECISION : 28/07/2006

LOWER COURT MEDIUM NEUTRAL CITATION : Rebecca Semaan and Joyce Jane Semaan v Integral Energy

- 9 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

25 MAY 2007

15079/06 Yvonne Semaan & 2 Ors v Integral Energy

JUDGMENT 1 HIS HONOUR: Rebecca and Joyce Semaan (who are children of Yvonne Semaan) are the owners of premises upon which stood a mature cotton palm tree. Yvonne Semaan (together with another child, Basil) were occupiers of the premises. The defendant employed contractors (Asplundh) to remove the tree from the premises. This was done because it was regarded as a danger (there was contact with power lines). 2 Proceedings were brought in the Local Court against the defendant. The claim was founded on trespass and the recovery of damages was sought (in the order of $15,000). The plaintiffs were Rebecca, Joyce and Yvonne Semaan. 3 The plaintiffs and the defendant were legally represented. There were many amendments to the Statement of Claim. The proceedings came to a hearing, which took in the order of five days. Prior to the hearing, Yvonne Semaan ceased to be a party to the proceedings (presumably, because she was not an owner and it was thought that she lacked locus standi to recover damages). 4 The Magistrate (Corbett LCM) found in favour of the defendant. She delivered her judgment on 28 July 2006. 5 The defendant relied on two defences. Firstly, it was said that it had consent to remove the tree. Secondly, it was said that in any event, because of statute, it was lawfully entitled to enter upon the premises and remove the tree. 6 There were two aspects to the consent defence. One relied on a document signed by Basil Semaan. It was found to be not binding upon the plaintiffs (he being a minor). The other was said to arise from a conversation had between Yvonne Semaan and Mr Johnson (an employee of the contractor) on the morning of the tree removal (30 July 2004). It was common ground that Yvonne Semaan could bind the owners. 7 There was conflict between the evidence given by Yvonne Semaan and Mr Johnson. The Magistrate preferred the evidence given by Mr Johnson and proceeded to make a finding of consent by Yvonne Semaan. 8 The Magistrate also made an additional finding of implied consent. This finding relied on other conduct of Yvonne Semaan. 9 Because of these findings, the Magistrate did not proceed to deal with the other defence. It remains as a potential answer to the claim advanced by the plaintiffs in the Local Court. 10 The Magistrate delivered a lengthy and detailed judgment. It referred to the pleadings and identified the issues. She then referred to each witness and the evidence given by each of them. 11 The judgment contains the following:- "Mrs Semaan states that two persons from Integral Energy came to the house and spoke to her on 27 July 2004, saying that they were going to be doing work on the electricity on Friday. Although she was, in cross-examination, unsure of the date she adhered to her evidence otherwise. It is not clear with whom she had that conversation. It was not suggested that no-one from Integral Energy spoke to her before 30 July, nor that she did not have that conversation. It was put to her that prior to the removal of the tree she was aware that work was going to be done on the tree. The defendant referred Mrs Semaan to a letter of demand, exhibit 3, annexure D, which states, "At all material times I believe you intended to trim the tree as you have done periodically over the past nine years." Mrs Semaan stated, somewhat confusingly, that by the time she wrote the letter her belief was that the tree would be trimmed as it had been on prior occasions. The defendant relies upon the evidence of Mr Johnson and his version of the conversation on the morning of 30 July 2004. He states that he spoke to Mrs Semaan and twice mentioned "removal" of the tree. He also, in asking for cars to be moved, claims he said, "This is where we intend to drop the trunk of the palm once we have the head out." It was not challenged that the decision had been made by Mr Munro from Integral Energy that the tree was to be removed, and that decision had been conveyed to Asplundh. Mr Johnson made notes on 3 August of the conversation he had with Mrs Semaan on 30 July. They are, therefore, reasonably contemporaneous. Mrs Semaan asserts that there was no conversation in relation to the tree on the morning of 30 July. She said the men from Integral Energy said, "Good morning," and there was no further conversation. Whilst Mrs Semaan denies that she had any knowledge about work on the tree, her letter of demand suggests that there must have been some indication prior to the removal of the tree about work to be done on it. Her evidence in cross-examination, with respect to her prior knowledge, is unsatisfactory. Moreover, the conversation she had the day after the removal, according to Mr Johnson, is consistent with the letter; that is, Mrs Semaan is alleged to have asked why the whole palm had been cut down and said, "I thought you were just trimming it." I accept that there was conversation regarding work on the tree. Mr Johnson had in his view gained consent for removal of the tree from Mr Semaan (sic). There is no issue that his direction from Integral Energy had always been to remove the entire tree. The only rational inference to draw, therefore, is that Mr Johnson's conversation with Mrs Semaan about his work on the tree did refer to a removal of the tree. Neither party has contemplated the following issue in submissions, so I refer to it just in passing. There is authority to the effect that in certain circumstances a mistake of fact or law is not a defence to an intention or tort, which includes trespass. However the mistake, if a mistake there was, was not the defendant's but Mrs Semaan's. I am satisfied on the balance of probabilities that by not challenging or not commenting upon Mr Johnson's reference to removal of the tree and removing the cars that Mrs Semaan gave implied consent to the tree's removal. There was, therefore, no trespass." 12 What has happened since then could be described as mind boggling (involving misconception and a chaotic state of affairs). The action commenced with a Summons filed in this Court on 19 October 2006. It was brought by Yvonne Semaan only, as an appeal against the decision of the Magistrate. The only appeal ground was "Evidence not previously presented in Court". Yvonne Semaan was then acting in person. 13 On 14 December 2006, an Amended Summons ("Ammended (sic) Summons") was filed. It named three plaintiffs (Yvonne Semaan and her two daughters). The one ground of appeal remained (it was expressed to be "Evidence not previously presented to the Court but challenges the decision of the Court"). The plaintiffs continued to be unrepresented. 14 A hearing date was allocated (21 May 2007). On 26 April 2007, Yvonne Semaan filed a Notice of Motion. She was then legally represented. The Notice of Motion sought a number of orders (including that she be given leave to commence the proceedings solely in her name and to file a Further Amended Summons). The proposed process named three plaintiffs. The defendant was advised that it was proposed to move on the Notice of Motion at the hearing date. 15 At the commencement of the hearing of the appeal, a state of confusion was rampant. Counsel (Mr Azzi) appeared for Yvonne Semaan. The defendant was also represented by Counsel (Mr Watts). The other plaintiffs were unrepresented (one of them later came to attend Court and remain for a part of the hearing). 16 Initially, Mr Azzi appeared for Yvonne Semaan to move on the Notice of Motion and to prosecute an appeal, on her behalf, pursuant to s73 of the Local Courts Act 1982 (NSW). 17 After some debate, this course was wisely abandoned. Yvonne Semaan had ceased to be a party in the Local Court proceedings and the section only entitles a party to those proceedings to bring an appeal as of right. 18 Following much further debate, steps were taken which ultimately avoided further delay and enabled a hearing of this relatively modest appeal to take place. 19 The Notice of Motion was dismissed. A Further Amended Summons was filed in Court (it had not been served prior thereto). It had as parties the original three plaintiffs in the Local Court. It contained grounds of appeal different to the one appearing in the "Ammended (sic) Summons". 20 There were three grounds of appeal. The grounds are as follows:- "1. The Magistrate erred in law in concluding that the "only rational" inference to draw, therefore, is that Mr Johnson's conversation with Mrs Semaan about his work on the tree did refer to a removal of the tree without adequately explaining how such critical conclusion was arrived at. 2. The Magistrate also erred in law in finding there was implied consent in circumstances where such was not contemplated by either party in submissions and the reasons propounded by the Magistrate do not adequately explain how such a critical conclusion was reached. 3. The Magistrate also erred in law by failing to consider the totality of the evidence in circumstances where the Magistrate identified certain inconsistencies and adverse admissions on behalf of the defendant that were crucial in establishing the veracity of the defendant's evidence." 21 Ground one had lengthy Particulars appended to it (a-n). Ground two relied upon the same Particulars. Ground three also relied upon the same Particulars, together with additional ones (b-e). 22 Whilst there was no legal basis for her so remaining, Mr Azzi insisted that Yvonne Semaan stay as a plaintiff (despite her exposure thereby to an adverse order for costs). He appeared for her and presented the submissions relied on in support of the grounds of appeal. The two daughters relied on him as their spokesman (the Court was so informed by the one daughter that was present). 23 There have been detailed written submissions. Mr Azzi has supplemented his written material with lengthy and detailed oral argument. 24 The ambit of appeal provided by s73 is restricted to error in point of law. An onus is borne to demonstrate that any such error justifies the disturbing of the decision of the Magistrate. 25 In the course of his argument, Mr Azzi took the Court to a number of decided cases. This appeal can be disposed of without express reference to any of those cases. 26 What is challenged in this case is a decision made by a Magistrate on a question of fact. In the determination of that question, the Magistrate was required to resolve a conflict of evidence. Her decision turns on questions of credibility and reliability. She resolved the conflict by preferring the evidence of Mr Johnson to that of Yvonne Semaan. 27 The thrust of the submissions seemed to be a dual attack on the expression of reasoning process. It was said that not only was there error in the reasoning process that led to the decision, there was also insufficiency in the disclosure of that process. 28 Generally speaking, save as to where there is a lack of supporting evidence (which is not the case in this appeal), it is well established that error in the fact-finding process does not give rise to error in point of law. Accordingly, error in the reasoning process does not assist the plaintiffs in this case. I shall put that matter aside and proceed to deal with the other avenue of attack. 29 It is also well established that what will suffice, as a disclosure of reasoning process, will vary from case to case. Each case will turn on its own particular circumstances. Statements made by Judges in other cases cannot be transposed and applied mechanically to another case. 30 The first and third grounds are said to be inter-related. The second (which only relates to an observation made in passing) does not need to be addressed, if the plaintiff fails on the other grounds. 31 The language employed by the grounds gave rise to some confusion. Certain of them gave a "rolled up" presentation. The Particulars did not really resolve the confusion. Ground three seemed to be regarded as operating in the same territory as ground one. In its own terms, it did not identify an error of law. It appeared that the error of law intended to be identified by ground one was a failure to give sufficient reasons (nothing else could be gleaned from the submissions). In this context, I will now turn to ground one. 32 Minds may differ on the appropriateness of the words "only rational inference to draw" (the choice of these words appeared to excite challenge). Be that as it may, it seems to me that what the Magistrate was seeking to do was little more than express her preference for Mr Johnson's version of the conversation. 33 Broadly, two matters were advanced in the attack on the sufficiency of disclosure of the reasoning process. Firstly, it was said that there was a failure to adequately explain why the evidence of Yvonne Semaan was regarded as unsatisfactory (in fact the word "unsatisfactory" was only used by the Magistrate in respect of evidence given in cross-examination concerning her prior knowledge). Secondly, it was said that there was a failure to deal with what might be described as unsatisfactory features of the evidence given by Mr Johnson. 34 In my view, neither of those challenges was made out. It is clear that the judgment identified a number of matters (including the letter of demand, Yvonne Semaan's evidence concerning it, her unsatisfactory evidence in cross-examination with respect to her prior knowledge, the reasonably contemporaneous notes made by Mr Johnson and the conversation had on the following day) which led the Magistrate to preferring the evidence of Mr Johnson concerning the disputed conversation. It appears to me that she had regard also to other circumstances (such as, inter alia, the moving of the cars). There was material thrown up by these matters that could be regarded as being in conflict with the version of the conversation given by her in Court. Further, it seems to me to be clear that the Magistrate had regard, inter alia, to all of the evidence recorded in her judgment (including inconsistencies between the evidence of Yvonne Semaan and other evidence). The matters so recorded are matters which are the subject of complaint in the submissions made on behalf of the plaintiff (including what are said to be sub-issues). It needs to be borne in mind that the Magistrate did no more than prefer Mr Johnson's version of the conversation. She did not purport to make a finding on other matters. It also needs to be added that the authorities demonstrate that it was not necessary for her to make an exhaustive examination of any inconsistencies in other evidence given by Mr Johnson or to make findings on other evidence. 35 I consider that what was said by the Magistrate was sufficient to enable Yvonne Semaan and the plaintiffs in the Local Court to understand why the evidence of Mr Johnson was preferred and the case was lost on that question. It may be added that the plaintiffs were not presented with any difficulty in drafting appeal grounds or in the conduct of the appeal because of the content of the reasons.