Classic Constructions (Aust) Pty Limited v Conservator of Flora and Fauna [2006] ACTSC 3 (30 January 2006)

Last Updated: 6 April 2006

CLASSIC CONSTRUCTIONS (AUST) PTY LIMITED v CONSERVATOR OF FLORA AND FAUNA

[2006] ACTSC 3 (30 January 2006)

TREE PROTECTION - Appeal of decision of ACT Administrative Appeals Tribunal - whether application to undertake "tree damaging activity" ought be refused - whether "unacceptable risk" exists where, although tree limbs not likely to fall immediately, it is probable that limbs will fall in the foreseeable future

Tree Protection (Interim Scheme) Act 2001 (ACT), ss 6, 10, 12

Tree Protection (Interim Scheme) Redetermination of Criteria 2002

Jaensch v Coffey (1984) 155 CLR 349

Donoghue v Stevenson [1931] UKHL 3; [1932] AC 562

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

No. SCA 63 of 2005

Judge: Higgins CJ

Supreme Court of the ACT

Date: 30 January 2006

IN THE SUPREME COURT OF THE )

) No. SCA 63 of 2005

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: CLASSIC CONSTRUCTIONS (AUST) PTY LIMITED

Appellant

AND: CONSERVATOR OF FLORA AND FAUNA

Respondent

ORDER

Judge: Higgins CJ

Date: 30 January 2006

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed and the decision of the ACT Administrative Appeals Tribunal of 9 August 2005 affirming the decision under review be set aside; and

2. The appellants be granted approval to remove the eucalyptus pauciflora on Block 3 Section 154 Nicholls.

1. On 24 March 2005, Mr George Tanchevski on behalf of the appellant, a builder/developer, sought from the respondent permission to undertake "a tree damaging activity", namely, the removal of a hideously unaesthetic and dangerous tree situated upon Block 3 Section 154, Hendry Place, Nicholls in the Australian Capital Territory.

2. A report from "Skyline Tree Surgery" stated -

The gum on this block is in very poor condition with a large hollow near the base that appears to have had termites. The branches of this tree are unstable and dangerous as there is not much holding wood. It is our opinion that this tree should be removed.

3. On 7 April 2005, the respondent received a report from a Mr Mark Carmody, described as "Tree Adviser". He reported -

This is a very old tree. It has significant cultural value and it is believed to be [one] of the last remaining examples of the species [eucalyptus pauciflora] in the area. It is small and does not pose a risk. The termites, if there now, pose not [sic] risk at all. The tree is growing in a designated no build zone. In the past the tree has been managed by a tree maintenance company.

4. The "management" apparently consisted of felling the tree to a stump about two metres above the ground with a branch of about 1 metre higher. The branches which, miraculously, sprouted reached a height of about 10.5 metres with a canopy area of about 12 metres. The assessment report, prepared for the respondent's consideration, described the "previous pruning" as "minor", but agreed there was trunk damage, evidence of termite infestation and "stress fractures". The "General Health" of the tree was assessed as only "fair". The tree, it was agreed, posed an "unacceptable risk to public/private safety" and was "causing/threatening to cause substantial damage" but, even so, "fails criteria" for removal.

5. The respondent accepted that advice and so notified the appellant on 8 April 2005.

6. On 4 May 2005, the appellant made application to the Administrative Appeals Tribunal (AAT) to review that decision. The hearing occurred on 26 and 27 July 2005. A decision was handed down on 9 August 2005. It is useful to set out the AAT's decision in full.

REASONS FOR DECISION

9 August 2005 Ms P O'Neil, Senior Member

Dr E McKenzie, Senior Member

Mr J Ashe, Member

The application

Classic Constructions ("the applicant") has applied to the Tribunal for review of a decision of the Conservator of Flora and Fauna ("the respondent"). The decision was to refuse to approve the removal of a tree on Block 3 Section 154 Nicholls ("the subject block"). The subject block is 1,290 m². The applicant stated that it is the proprietor under a crown development lease of land at Section 154 Nicholls, including the subject block. The decision was made under the Tree Protection (Interim Scheme) Act 2001 ("the Act").

Background

2. The tree is a Eucalyptus pauciflora, a Snow Gum ("the tree"), about 10m. high. It is not contested that it is a significant tree. It is estimated to be at least 200 years old and is described as "an important edge of frost hollow remnant". Remnant Snow Gums are not common in Canberra. The tree was identified in 2001 when Harcourt Hill Estate Stage 10E was being planned. In August 2001, Mr Robert Mann, a consultant aborist of Canopy The Tree Experts, in consultation with Dr Robert Boden who was then Advisor to the Conservator, undertook pruning of the tree including lopping of the eastern leader to just above the original stump. It was hoped that lopping of the eastern leader would promote regrowth on that side of the tree, keeping the cambium alive and thus maintaining the butt of the tree intact for longer.

3. In March 2002 Lease Conditions and Development Requirements were signed by the Estate Manager. These were part of the development approval of the Harcourt Hill Estate Stage 10E subdivision given under the Land (Planning and Environment) Act 1991. Among other things, they required the preservation of identified trees in accordance with specified guidelines. The Snow Gum was one such tree and it was required to be surrounded by a "no build zone" of approximately 14m by 12m and by a protective fence of similar dimensions. The "no build zone" and fence are shown as being predominantly on the subject block but also overlapping the neighbouring block to the north. A house has since been constructed on that neighbouring block but the subject block remains vacant. The lease conditions show that the protective fencing around the tree is to be installed by Harcourt Hill Pty Ltd and is to be maintained by the lessee during construction of the dwelling.

Legislative framework

4. Under section 15 of the Act the Conservator may approve the removal of a significant tree only if satisfied on reasonable grounds that the relevant Criteria for approval determined under section 12 are satisfied. On 20 December 2002 the Minister for Urban Services determined revised Criteria for the purposes of section 12, which came into effect on 11 January 2003. The relevant Criteria are that:

(1) The Conservator of Flora and Fauna (the Conservator) may give an approval, under subsection 15(1) of the Tree Protection (Interim Scheme) Act 2001 to remove a tree when:

(a) the tree is in decline and its life expectancy is short; or

(b) the tree represents an unacceptable risk to public or private safety; or

(c) the tree is shown to be causing or threatening to cause substantial damage to a substantial building, structure or service; or

(d) the location of the tree is inappropriate given its potential size and growth habit (excluding remnant eucalypts); or

(e) the tree represents a serious plant disease;

...

and all other reasonable remedial treatments and measures have been determined to be ineffective.

...

(3) The Conservator of Flora and Fauna (the Conservator) may give approval under subsection 15(1) of the Tree Protection (Interim Scheme) Act 2001 to tree damaging activities other than removal of a tree when:

(a) the work will have minimal adverse affect on the health of a tree; or

(b) the work is required for the removal of dead wood, treatment of disease, or is in the general interests of the health of the tree; or

(c) the work is required due to an unacceptable risk to public or private safety; or

(d) the tree is shown to be causing or threatening to cause damage to a substantial building, structure or service; or

...

(8) Examples of reasonable remedial treatments or measures are:

(a) Thinning, selective pruning or reduction pruning of trees to lessen wind resistance, to reduce weight of limbs, to reduce competition, to increase light penetration and air circulation through the crown every three years.

(b) General pruning to remove dead, diseased, dying, defective and conflicting branches or foreign matter deemed to be dangerous or detrimental to the tree every two years.

...

(f) Annual inspection by a qualified arboriculturist to undertake risk and hazard assessment.

Witnesses

5. The applicant called a number of witnesses to give oral evidence. They were Mr Philip Selmes, Mr John Ambrus and Mr Alan Mann, who are arborists, and Mr Kelvin Lawrie, a pest control expert. The respondent's witnesses were Dr Robert Boden and Mr Mark Carmody, who are respectively the former and the present Advisor to the Conservator of Flora and Fauna, appointed under section 21 of the Act. The Tribunal found the evidence of Mr Mann and Dr Boden particularly helpful as both had been involved in examination and treatment of the tree in 2001. The Tribunal also had the benefit of inspecting the tree.

Whether the tree is in decline and its life expectancy is short

6. This criterion is in two parts - the tree must be both in decline and have a short life expectancy. Most, if not all, of the expert witnesses are of the opinion that the tree is in decline. This is demonstrated by the evidence of major termite attack in the past which has contributed to the destruction of heartwood at the base of the tree, leaving a large hollow. The cambium at the base is incomplete, with the healthy tissue concentrated on the western side of the tree and generally absent on much of the eastern side, so that it lacks cylindrical integrity. Further, the tree failed to respond to the lopping of the eastern leader in 2001 which did not produce the hoped for epicormic growth. While it is difficult to know how much of the tree's poor performance in recent times has been due to immediate factors such as the drought and the effect of nearby building activity, nevertheless the picture is of a tree past its prime.

7. On the other hand, none of the expert witnesses was prepared to say that the tree had a short life expectancy. Naturally occurring Snow Gums are long-lived trees and the experts were unable to predict how long this particular specimen would live. Mr Mann concluded that the tree is over-mature and in decline but that the rate of decline of the tree may be slow and he was not able to put a figure on its life expectancy. Mr Selmes opined that it could take 50-100 years for recovery of the damaged cambium and there is visual evidence of the cambium growing in some places so as to repair earlier damage.

8. Since the evidence does not support a finding that the tree's life expectancy is short, we cannot find that this criterion is met.

Whether the tree represents an unacceptable risk to public or private safety

9. The applicant's case rests substantially on this criterion and in particular on the evidence of Mr Mann. He drew attention to a number of elements which combined, in his view, to raise concerns about the tree's safety. There are two vertical cracks inside the hollow which he thought were most likely caused by the twisting force of the wind on the unevenly distributed branches. He also noted some old damage to the tension wood of one of the major branches, the loss of sections of the cylindrical trunk on the eastern side, the presence of decay there and the likely absence of living roots on that side of the tree. In his written statement, Mr Mann concluded that "the combined effects raise doubts about the strength and stability of the tree and as the processes of decay and cracking continue there will be a time when the tree becomes an unacceptable risk". At the hearing, Mr Mann was prepared to bring that risk forward to a present risk, particularly to children.

10. Mr Mann identified possible remedial measures. One was a light pruning of the canopy to reduce weight and remove dead branches. The second was major pruning to remove some branches so as to reduce the effect of wind forces on the tree and the possibility that a branch might fall. It would constitute tree-damaging activity for which approval under clause (3) of the Schedule would be required. The third was by the use of landscaping solutions or fencing to discourage access to the area of possible risk under the tree. While the second option would appear to be most apt to reduce the risk he perceived, Mr Mann did not support that option. It would, he said, reduce the canopy by about 50 percent and thus contribute to the tree's decline by reducing its capacity to generate through photosynthesis the energy needed for repair and growth.

11. Dr Boden did not perceive the same level of risk as Mr Mann. He favoured light pruning, retaining the western branches and protecting the tree with fencing and landscaping with native grasses beneath the canopy to discourage people approaching close to it. He used as an example the landscape treatment around a remnant Eucalyptus rubida in the grounds of the Australian National University. Light pruning is covered by Australian Standard 4373: Pruning of Amenity Trees and does not constitute tree-damaging activity for the purposes of the Act.

12. Our attention was drawn to the work of Professor Claus Mattheck who is an expert on the application of engineering mechanics to hollow trees in order to develop rules to quantify the risk of breakage. While much of his work has been done on European and American species, a 1994 paper reported on its application to several species of Eucalyptus in southern Tasmania and south-west Western Australia. It concluded that where the ratio of the minimum wall thickness of a stem hollow to the total radius of the hollow exceeds 0.3 - 0.35 and at least one-half of the girth of the tree stem is intact, it is extremely unlikely that the stem of the hollow tree will break. Those rules appear to apply to a wide range of tree species throughout the world.

13. Measurements of the tree were taken quickly during the site inspection, from which a ratio of 0.36 was derived. We were urged to accept that figure as reinforcing the opinion that the tree would not break. We cannot do so for the following reasons. We do not know whether the rule applies to Eucalyptus pauciflora in general given their particular growth habit, or to this tree in particular, given its unusual form. Moreover we understand Mr Mann's concern to relate to possible breakage of a branch above the stem of the tree rather than of the stem itself. Importantly, we cannot accept the ratio of 0.36 as a reliable figure, given the difficulty, at least using the methodology adopted in this case, of accurately measuring the thickness of the wall of the hollow in order to derive its ratio to the radius of the total cross-section. In these circumstances it seems to us that a margin of error would need to be allowed and a difference of 0.1 would not be significant. It follows that we do not rely on that measurement as indicating anything about the likelihood of the tree's failure.

14. At present the subject block is vacant and we have no evidence of current activity by any persons on the block for whom the tree could represent an unacceptable risk. Although it is currently vacant we infer that the applicant proposes to commence construction on it in the near future, possibly including a boundary fence between it and the block to the north. The lease conditions require the applicant to maintain a fence around the tree during construction of the dwelling. The remains of a wire fence were evident during the site inspection. It is not currently standing and would need to be replaced. While the purpose of the fence is to protect the tree during construction, it will serve equally to protect people from the possible risk of failure of a branch of the Snow Gum. The evidence suggests that any failure is more likely to occur slowly than suddenly. Given the size of the "no build" zone within the fence, if a branch fell it would do so substantially, if not wholly, within the fenced "no build" zone. We find that that the tree does not represent an unacceptable threat to public or private safety in these circumstances.

15. The applicant argued that the landscaping treatment advocated by Dr Boden would be inadequate to ensure the protection of those people, possibly including children, living or visiting the subject block in the future. At that time the requirement for a protective fence as set out in the lease development conditions will no longer apply. We are persuaded by the submission of Dr Jarvis, for the respondent, that since this criterion is expressed in the present tense it is not appropriate to speculate as to who might reside on the block in the future. We cannot know whether the landscape treatment outlined by Dr Boden, or some other solution, will be appropriate or otherwise. If it appears necessary to do so once construction is complete, major pruning as outlined by Mr Mann might be considered preferable to removing the tree entirely. But we make no judgment as to whether tree-damaging activity other than removal, or reasonable remedial treatments or measures, will be necessary in the future. That would be a matter for a decision-maker at that time.

16. We find that the tree does not represent an unacceptable risk to public or private safety.

Whether the tree is shown to be causing or threatening to cause substantial damage to a substantial building, structure or service

17. There is no building, structure or service existing on the subject block and the applicant conceded that the tree is not threatening the neighbour's house to the north. The house to the north is agreed to be about 10m. from the trunk of the tree.

18. Evidence was heard about termite infestation. While there was some discussion as to whether the evidence is relevant to this criterion or to another criterion, it is convenient to deal with it here. All witnesses agree that the tree suffered a major termite attack many years ago. Mr Lawrie was concerned that termites could still be living in the roots of the tree and explained that termites tend to be less visible in winter as they withdraw underground. He did not consider that termite barriers placed in buildings in accordance with AS 3660 would completely protect against termite attack, but felt that any colony should be eliminated.

19. However, we do not know that there is a colony in the tree roots. Certainly there is no evidence of one now. Termites have not been seen by any observers during any site inspections over an extended period. Mr Lawrie agreed that a termite colony usually consists of several interconnecting nests and termite nests could be located elsewhere in the neighourhood.

20. It follows that removing the tree on the basis that it harbours termites is not justified on the evidence. Moreover it is likely to be ineffective as other termite nests could exist. We think that the usual practice of placing termite barriers in buildings and baiting for termites wherever and whenever they are observed provides more appropriate protection than removing the tree.

21. We find that this criterion is not met.

Whether the tree represents a serious plant disease threat

22. The respondent submitted, and we agree, that this criterion is meant to deal with diseases of plants such as Dutch Elm disease or Die-back and not to the risk posed by termites, if any, living in the tree. We have dealt with termites separately above.

23. We find that this criterion is not met.

Conclusion

24. The requirements of the Act are rigorous and are aimed to protect significant trees. This Snow Gum has been recognised as a significant tree since the subdivision was first planned several years ago. Lease conditions were inserted to reinforce the tree's status and to help protect it during construction. This was known to the lessee. While it is unfortunate that the fence has been allowed to fall and that the tree has not been protected by it in recent times, we must anticipate that those lease conditions will be observed. We find that the Criteria that would allow the tree to be removed have not been satisfied.

7. On 21 October 2005, the appellant filed a Notice of Appeal to this Court. It cited six grounds of appeal -

a. That the Tribunal failed to determine whether the tree itself constituted an unacceptable risk to public or private safety.

b. The Tribunal erroneously relied upon a contractual condition, in Lease and Development conditions, which required a fence to be maintained around the tree as grounds to conclude that the tree did not represent an unacceptable risk to public or private safety.

c. If the Tribunal implicitly held that the erection of a fence was a "reasonable remedial measure" under clause 1 of the Tree Protection (Interim Scheme) Determination of Criteria 2002 it erred in that the erection of a fence is not contemplated as a "reasonable remedial measure" under the Determination.

d. If contrary to ground c above, the erection of a fence can constitute a "reasonable remedial measure", the Tribunal erred in reaching any such conclusion by failing to make findings as to the dimensions and location of the fence required to afford protection from the tree.

e. The Tribunal erred in failing to take into account the effect of the tree on the neighbouring Crown Lease and the inability of the Appellant to place a fence on the neighbouring Crown Lease.

f. The Tribunal erred in interpreting Section 15(1)(b) of the Tree Protection (Interim Scheme) Act 2001 and clause 1 of the Tree Protection (Interim Scheme) Determination of Criteria 2002 as only relating to present circumstances.

8. As the appeal was argued before me, it appeared that there was little, if any, factual dispute. The tree, it was agreed, had been undisputedly characterised as being in decline and likely to shed limbs.

9. However, the Tribunal was not persuaded that the tree represented an unacceptable risk to public or private safety, being persuaded that as the block, though approved and intended for residential development, was then vacant, a fence erected to protect the tree from damage during building works would suffice to protect any residents or visitors, including workers, from such an eventuality. Nor were there any structures close enough to be threatened by a falling limb.

10. As the Tribunal expressed the position -

We are persuaded by the submission of Dr Jarvis, for the respondent, that since this criterion [whether the tree represents an unacceptable risk to public or private safety] is expressed in the present tense it is not appropriate to speculate as to who might reside on the block in the future.

11. In other words, the Tribunal, as did Dr Jarvis for the respondent, proceeded on a view that "risk" referred to a current not future likelihood of harm. Thus, if the block was to be occupied, the risk might then be adjudged "unacceptable" but not in the then current circumstances.

The Legislative Background

12. The legislation itself was not in contention. Under the Tree Protection (Interim Scheme) Act 2001 (ACT) (s 10) -

(1) A person must not do anything that damages, or is likely to damage, a significant tree except in accordance with an approval under section 15 (Approval by conservator).

13. Section 6 defines a "significant tree". It includes any tree 12 metres or more high, or having a trunk 1.5 metres or more around and 1 metre or more high or a canopy of 12 metres or more in width on leased land. This tree clearly fell within that definition. The "protection zone" for such a tree is an area 2 metres beyond the canopy area in a vertical plane. That was an area, the canopy being 12 metres across, 16 metres across or 8 metres from the centre of the tree in all (or most) directions.

14. Under s 12 "the Minister" is empowered to determine the criteria for approving such activity.

15. The relevant criteria were those approved by Minister Wood MLA on 20 December 2002. Those criteria, relevant for present purposes, were -

(a) The tree is in decline and its life expectancy is short; or

(b) The tree represents an unacceptable risk to public or private safety; or

(c) The tree is shown to be causing or threatening to cause substantial damage to a substantial building, structure or service, ...

And all other reasonable remedial treatments and measures have been determined to be ineffective.

16. The Tribunal agreed that the tree was "in decline" but could not conclude that its "life expectancy" was "short". The Tribunal also concluded, from the evidence presented, that the risk posed by the tree was not of total collapse but of substantial limbs breaking off. Those factual conclusions were not disputed.

The Argument

17. The appellant agreed that the tree fell within the definition of "a significant tree". That was an appropriate concession. It was common ground that the appellant had acquired the subject land to build a residential unit upon it. The tree was within a "no-build" zone. That stipulation was clearly for the purpose of protecting the tree. The "no build" and the fencing requirement ancillary thereto was, clearly, intended to protect the tree during construction and did not apply post-development. The tree was only three metres from the northern boundary. The block beyond that boundary had already been developed with a residential unit thereupon, though not beneath the tree. That unit was not yet occupied at the time this application was brought.

18. The Tribunal accepted that, as one expert, Mr Mann, reported, the tree suffered the following defects -

* The trunk is hollow

* The trunk had two vertical cracks thought to be caused by twisting from the wind and the uneven distribution of the tree's branches

* Damage to the tension wood of one of the main branches

* Loss of sections of the cylindrical section of the trunk on the eastern side

* Presence of decay

* Likely absence of living roots on the eastern side

* Past major termite attack

19. The appellant contended that the Tribunal avoided answering the question posed by criterion (b) at [15]. If it had correctly answered that question the appellant then submitted it would be apparent not only that the tree posed an "unacceptable risk" but that there were no reasonable remedial treatments or measures to avert that risk, short of removal of the tree.

20. The respondent, in reply, contended that the Court should not, in reviewing the Tribunal's decision, adopt a view attuned to finding error. I agree.

21. The essence of this contention was that the Tribunal was entitled to confine its assessment of risk to the current but not foreseeable circumstances.

The Conclusion

22. I respectfully disagree with the latter contention. Indeed, in argument, Mr Jarvis conceded that it was untenable. The risk in the present case was of injury to persons or property from a falling limb. The likelihood of such an occurrence was conceded by all relevant experts to be high. It could not be predicted when it would occur, whether before or after occupation by the resident to whom the developer would sell. Thus, "risk" in the present context is a real, not fanciful, chance of injury in the foreseeable future. It is impossible, in my view, not to view "risk" as being of injury or damage such that the person owning or controlling the tree would be negligent if he, she or it failed to take reasonable measures to avoid that risk of injury or damage. It is unnecessary to look further than Jaensch v Coffey (1984) 155 CLR 349 per Deane J at 585-6, applying the principle expounded by Lord Atkin in Donoghue v Stevenson [1931] UKHL 3; [1932] AC 562.

23. There could be no doubt but that the condition of this tree enlivened a duty to protect persons who might lawfully be expected to be proximate to it when it shed a branch or branches.

24. The Tribunal was, therefore, in error so confining the concept of "unacceptable risk" to the end of the construction phase.

25. That being the case, the question is whether there appeared any reasonable alternative to the removal of the tree to avert that risk. The risk was, of course, unacceptable by reason of the danger of substantial injury to any person or domestic animal or property (even if not a building) on which a tree limb might fall.

26. The contending experts who addressed this issue were Mr Mann and Dr Boden.

27. Mr Mann offered three possible solutions (see par 10 Tribunal decision) but considered that removal was the only viable option.

28. Dr Boden's solution seemed to concede the validity of Mr Mann's assessment. He agreed with Mr Walker, for the appellant, that the only viable solution he could think of to protect people (and by inference, domestic animals and property resting under it) would be a fence to surround the tree, distant 9 metres from the trunk to the northern, western and southern side and 7 metres to the east. He agreed it would need to be of a "pool fencing" construction so that children could not enter. That would trespass on the neighbouring eastern block by about 4 metres at the widest point of that intrusion.

29. The Tribunal did not need to consider if such a measure would be "reasonable". It declined to consider "future" risk. It was in error. I have no hesitation in characterising such a decision as impracticable and unenforceable. There is no power, as there is in the context of development conditions, to require such a fence. True, the occupier might be in breach of a duty to proximate persons in failing to take such a measure but there is no law requiring the occupier so to fence such a tree. Nor can an occupier of one block fence the neighbour's yard, or require the neighbour to do so, so as to protect the neighbour (or relevant other persons) from the tree. Again, it may be that the neighbour would be subject to and breach a duty of care if no remedial steps were taken but that is not something the tree-owner can regulate.

30. To my mind, the decisive consideration is that to allow the tree to remain in any substantive form is simply to perpetuate a hazard, once the protective fence is removed, to persons and property which cannot reasonably be sufficiently mitigated by any reasonable means. To leave it appropriately isolated, even if that was practicable, would render so much of the leased area of the subject block a "no go" zone as to seriously derogate from the Crown grant.

31. The appeal is allowed. In lieu of the decision appealed from the appellant's application is to be granted. I will hear the parties as to costs and consequential orders.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 30 January 2006

Counsel for the appellant: Mr P Walker

Solicitor for the appellant: Meyer Vandenberg

Counsel for the respondent: Mr D R Jarvis

Solicitor for the respondent: ACT Government Solicitor

Date of hearing: 30 November 2005

Date of judgment: 30 January 2006