Galea v Farrugia [2013] NSWCA 164

Case Note: Galea v Farrugia [2013] NSWCA 164 

Facts and Background 

The appellants, Mr and Mrs Galea, had arranged with the third respondent, Mr Cauchi (or through him, the fourth respondent, J and L Cauchi Pty Ltd) to supply landfill to build a platform on their property on which they wished to erect a machinery shed (at [2]). The first respondent, Mr Farrugia was an earth moving contractor who Mr Galea had contracted with to level out and compact the landfill to make the platform, and who placed the Galea's in contact with Mr Cauchi (at [8]). The third appellant, Lepipi Pty Ltd, a company controlled by the Galeas, also contracted with Mr Cauchi to deliver landfill to a separate property (at [3]).

The landfill was not authorised by Council though, and it made an order under the Environmental Planning and Assessment Act 1979 (NSW), s. 121B requiring its removal (at [12]). Officers of the Council subsequently took samples of the landfill to to test and detected the presence of asbestos fibres (at [19]-[21]).

However, at the time of these events (30 March 2002 to 30 April 2002) there was was also evidence that third parties had been dumping asbestos contaminated fill on private semi-rural land in the surrounding area, and therefore it was unclear where the contaminated fill had originated from (at [28]-[29]).

Nonetheless, the Galeas sued Mr Cauchi, and the other respondents, for the costs of removing the landfill from both properties, alleging they were the parties responsible (at [4]). The trial judge, Hislop J, in Galea v Farrugia [2012] NSWSC 77 found the evidence did not establish, on the balance of probabilities, that the contaminated landfill had originated from the fill delivered by Mr Cauchi; the evidence relating to cross-contamination of samples via the compacting and removal work cast too much doubt on where the asbestos came from.

One of the bases upon which the Galeas sought to establish their claim was tendency evidence introduced pursuant to the Evidence Act 1995 (NSW), ss. 97 and 98, that Mr Cauchi (and/or his company) had delivered fill to other properties in which asbestos was also detected (at [33]). The trial judge treated this evidence as admissible without recourse to ss. 97 and 98, however, his Honour rejected this evidence established anything in relation to the Galeas' properties on the grounds that those other properties were unsecured (thus vulnerable to third parties), with one also having been a building site, and another containing a large amount of building material ([2012] NSWSC 77 at [120]).

The Galeas appealed to the NSW Court of Appeal, challenging the trial judge's findings of fact, and relevantly here, his rejection of the tendency evidence (at [44]-[52]).

The Galeas' case – Tendency Evidence

The Galeas submitted before the Court of Appeal (Bathurst CJ, Macfarlan and Ward JJA) that when considering evidence admitted as tendency evidence, the court must evaluate that evidence and determine whether or not two or more events, along with the circumstances in which they occurred, are substantially and relevantly similar (at [83]). The court must then determine whether these similarities are purely coincidental or “whether it is so improbable that they are coincidental that the only conclusion could be that they are not” (at [83). As the Galeas submitted (at [83]),

“In determining whether the evidence has significant probative value a trial judge may take into account the time, context and essential critical content of the evidence: see Twynam Pastoral Co Pty Limited v AWB (Australia) Ltd [2008] FCA 1922 per Jagot J at [13]; whether the evidence establishes a pattern of behaviour or even a modus operandi per Simpson J in Fletcher at [67]; whether the person was, at or about the time in question, engaged in a special kind of business, line of conduct or manner of living per Evatt in Martin v Osborne (1936) 55 CLR 367 at 402. See also R v Smith [2008] NSWCCA 247.”

In other words, in evaluating whether the evidence has significant probative value, the court is to consider the context and circumstances, including the time frame in which the conduct adduced as evidence took place, and the business or activities the relevant person was engaged in at the time (at [83]). The Galeas argued that the trial judge had failed in this task (at [83]).

The Decision

The decision of the Court of Appeal dismissing the appeal was delivered by Macfarlan JA (Bathurst CJ at [1] and Ward JA at [104] agreeing). Macfarlan JA could find no error in the trial judge's findings of fact relating to the conclusion that the evidence did not establish the origin of the contaminated fill (at [78]-[79], [95]).

As to the tendency evidence, MacFarlan JA accepted the authorities advanced by the Galeas, but not their application to the facts. His Honour held that even if Mr Cauchi delivered contaminated fill to a few other properties (which the evidence in relation to those properties did not establish), such could only, taken at its highest, show that he was the kind of person who was prepared to deliver contaminated fill if the opportunity arose; not that he actually did so here (at [85]). This finding was further supported by the fact that over the relevant period (30 March 2002 to 30 April 2002), Mr Cauchi delivered “hundreds of truckloads of fill from a wide variety of sources.” (at [87]). What would have helped the Galeas' case was if they could show that the source of the fill delivered to their properties was the same as the fill delivered to the other contaminated properties. This would have assisted in establishing, on the balance of probabilities, that the material delivered to their properties was contaminated by the fill delivered by Mr Cauchi (even if their land was also contaminated by third parties) (at [86]).

The test, as stated by Dixon J in Martin v Osborne (1936) 55 CLR 367 at 375, is whether, “[A]ccording to the common course of human affairs, the degree of probability that the occurrence of the facts approved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot be reasonably supposed.” (at [89]). Therefore, proof of deliveries without proof of their source, established neither a pattern of behaviour (R v Fletcher [2005] NSWCCA 338 at [67]), nor “any special kind of business, line of conduct or manner of living where the proved acts would ordinarily be accompanied by the further act” (Martin v Osborne (1936) 55 CLR 367 at 392) (at [88]).

Conclusions

The decision highlights the hurdles plaintiffs face in proving that respondents/defendants should be held liable for environmental harm. This is particularly salient as it occurs in the context of asbestos, a material greatly feared in Australia for its deleterious health effects, and rightly so. In this case, Mr Cauchi was effectively saved by the fact that someone else did something wrong (third party dumping) and the fact that the soil analysis could pick up even minute traces of asbestos fibres, thus cross-contamination was a real factor.

As regards tendency evidence, the decision illustrates that showing a person performed acts contemporaneously is not sufficient. As Macfarlan JA held, even if Mr Cauchi delivered contaminated fill to other properties (which there was no evidence he did so), the most that could show was that he would do it, not that he did here. In order to overcome the hurdle of the previous acts establishing that, on the balance of probabilities, a person performed an alleged act now, the court/jury must be convinced the person probably did it, because the previous acts show they have done it before. In this sense, the characterisation, adopted by Macfarlan JA, of showing that someone is willing to do something in the past is not sufficient to show they have done something now, is problematic. The reason is because the way a party would show someone is willing to do something would be by their actually doing it; thus they have done it. That is why his Honour considered the importance of the Galeas needing to demonstrate the source of the fill material, as absent that evidence, sufficient similarity between the circumstances could not be established.

Finally, the discussion of tendency evidence leads me to one other conclusion. What plaintiffs must demonstrate is that a person performed similar acts in similar circumstances and those acts must disclose a similar mental element. Tendency evidence must evince a mental state that would convince a court/jury that physical acts performed elsewhere would compel such acts alleged to be performed here. The reason for the use of the word 'compel' rather than stating something like 'referable to' is that being willing to do something in a similar situation is referable to the previous acts, but it does not show actual performance of the alleged act. The circumstances must show that such a willingness would probably be carried out, not possibly. As the decision illustrates, this requires a careful comparison of all the facts and circumstances; not just the previous actions of a person, but a minute and careful examination of the context in which they took place.