Graham Barclay Oysters Pty Ltd v Ryan - [2000] FCA 1099

FEDERAL COURT OF AUSTRALIA
Graham Barclay Oysters Pty Ltd v Ryan [2000] FCA 1099
TORT – Negligence – non-feasance by public authorities – non-exercise by local government council and State government to minimise faecal contamination of lake where oysters grown commercially – oysters carrying hepatitis A virus – consumer of oysters contracting hepatitis A – whether duty of care owed to be discharged by exercise of statutory powers – causation – whether local government council and State government required to carry out sanitary survey of shore of lake.
TORT – Negligence – whether duty of care owed by commercial farmer of oysters to consumers of them breached where oysters carrying hepatitis A virus due to faecal contamination of lake in which oysters grown – oyster farmer’s depuration plant not shown to be working unsatisfactorily – whether discharge of oyster farmer’s duty required it to carry out sanitary survey of shore of lake or to urge public authorities to do so – causation of oysters contaminated with hepatitis A virus as a result of faecal contamination of lake where oysters grown – whether circumstances show it was unreasonable for consumer to rely on skills or judgment of grower – whether oysters were as fit for purpose as reasonable to expect.
TRADE PRACTICES – Trade Practices Act 1974 (Cth) s 74B – liability of oyster farmer to consumer where consumer contracted hepatitis A from virus carried by oysters – whether unreasonable for consumer to rely on skill or judgment of oyster farmer.
TRADE PRACTICES – Trade Practices Act 1974 (Cth) s 74D – liability of oyster farmer to consumer where consumer contracted hepatitis A from virus carried by oysters – whether “reasonable to expect” that oysters would be free of virus – whose expectation relevant – relevance of impossibility of ensuring absolutely that oysters free of virus.
TRADE PRACTICES – Trade Practices Act 1974 (Cth) ss 75AD, 75AK – liability of oyster farmer to consumer where consumer contracted hepatitis A from virus carried by oysters – whether “state of scientific or technical knowledge” enabled defect (virus) to be discovered – only test available would destroy the oysters – impossibility of extrapolating from sample to bulk.
Trade Practices Act 1974 (Cth) ss 52, 74B, 74D, 75AD, 75AK, 82
Clean Waters Act 1970 (NSW) ss 5, 16, 27, 27A, 29
Environmental Offences and Penalties Act 1989 (NSW)
Fisheries Management Act 1994 (NSW) ss 8, 189
Health Administration Act 1982 (NSW) s 5(1)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s5
Local Government Act 1993 (NSW) ss 7, 56-66, 124
Public Health Act 1991 (NSW) s 7
Fisheries Management (Aquaculture) Regulations 1995
Sutherland Shire Council v Heyman (1985) 157 CLR 424 discussed
Parramatta City Council v Lutz (1988) 12 NSWLR 293 distinguished
Stovin v Wise [1996] AC 923 discussed
Pyrenees Shire Council v Day (1998) 192 CLR 330 distinguished
Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 followed
Hill v Van Erp (1997) 188 CLR 159 cited
Perre v ApandPty Ltd (1999) 164 ALR 606 discussed
Caparo Industries plc v Dickman [1990] 2 AC 605 discussed
Romeo v Conservation Commission of (NT) (1998) 192 CLR 431 discussed
Crimminsv Stevedoring Industry Finance Committee (1999) 167 ALR 1 discussed
Nagle v Rottnest Island Authority (1993) 177 CLR 423 cited
Caltex Oil (Australia) Pty Limited v The Dredge “Willemstad” (1976) 136 CLR 529 referred to
Buckle v Bayswater Road Board (1936) 57 CLR 259 referred to
Trade Practices Commission v Manfal Pty Ltd (No 3) (1991) 33 FCR 382 referred to
Schiller v Mulgrave Shire Council (No 2) (1972) 129 CLR 116 referred to
Fitzgerald v Penn (1954) 91 CLR 268 cited
March v Stramare (1991) 171 CLR 506 referred to
Doyle, Redwood The Common Law Liability of public Authorities: The Interface between Public and Private Law (1999) 7 Tort Law Rev 30 at 34
Fleming The Law of Torts 9^th ed 1998 at 210
Aronson, Whitmore Public Torts and Contracts 1982 at 34-35
P W Hogg Liability of the Crown 2^nd ed 1989 at 2
Trindade, Cane The Law of Torts in Australia 3^rd ed 199 at 696-697
Davies Common Law Liability of Statutory Authorities 27 (1998) UWAL Rev 12
Justice Sopinka The Liability of Public Authorities: Drawing the Line (1993) Tort Law Rev 123
Street on Torts 10^th ed 1999 at 182
K M Hogg The Liability of a Public Authority for the Failure to carry out a Careful Exercise of its Statutory Powers: The Significance of the High Court’s Decision in Sutherland Shire Council v Heyman (1991) 17 Mon L R 285
GRAHAM BARCLAY OYSTERS PTY LIMITED & ORS v GRANT RYAN & ORS
N 219 OF 1999
N 234 OF 1999
N 298 OF 1999
LEE, LINDGREN, KIEFEL JJ
9 AUGUST 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 219 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:

GRAHAM BARCLAY OYSTERS PTY LIMITED
FIRST APPELLANT

GRAHAM BARCLAY DISTRIBUTORS PTY LIMITED
SECOND APPELLANT

AND:

GRANT RYAN, SCOTT CALLAGHAN, KEVIN GOWER, DAVID HOLNESS, GEOFFREY BENNETT, BRYAN HOCKING, BROSOW HARDY
FIRST RESPONDENTS

GREAT LAKES COUNCIL
SECOND RESPONDENT

STATE OF NEW SOUTH WALES
THIRD RESPONDENT

AND BETWEEN:
AND:

GRANT RYAN
CROSS APPELLANT

GRAHAM BARCLAY OYSTERS PTY LIMITED
CROSS RESPONDENT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 234 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:

GREAT LAKES COUNCIL
APPELLANT

AND:

GRANT RYAN
FIRST RESPONDENT

GRAHAM BARCLAY OYSTERS PTY LIMITED
SECOND RESPONDENT

GRAHAM BARCLAY DISTRIBUTORS PTY LIMITED
THIRD RESPONDENT

STATE OF NEW SOUTH WALES
FOURTH RESPONDENT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 298 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:

STATE OF NEW SOUTH WALES
APPELLANT

AND:

GRANT RYAN, SCOTT CALLAGHAN, KEVIN GOWER, DAVID HOLNESS, GEOFFREY BENNETT, BRYAN HOCKING, BROSOW HARDY
FIRST RESPONDENTS

GREAT LAKES COUNCIL
SECOND RESPONDENT

GRAHAM BARCLAY OYSTERS PTY LIMITED
THIRD RESPONDENT

GRAHAM BARCLAY DISTRIBUTORS PTY LIMITED
FOURTH RESPONDENT

CLIFT OYSTERS PTY LIMITED
FIFTH RESPONDENT

M W & E A SCIACCA PTY LIMITED
SIXTH RESPONDENT

TADEVEN PTY LIMITED
SEVENTH RESPONDENT

THE OYSTER FARMERS ASSOCIATION OF NEW SOUTH WALES PTY LIMITED
EIGHTH RESPONDENT

R A KING (WHOLESALE) PTY LTD
NINTH RESPONDENT

MANETTAS LIMITED
TENTH RESPONDENT

SHONID PTY LIMITED (TRADING AS “TIM & TERRY OYSTER SUPPLY PTY LIMITED”)
ELEVENTH RESPONDENT

VICTORIAN FROZEN FOOD DISTRIBUTORS PTY LIMITED (TRADING AS “RICHMOND OYSTERS”)
TWELFTH RESPONDENT

SMITHS OYSTER SERVICE PTY LIMITED
THIRTEENTH RESPONDENT

GEORGES OYSTERS PTY LIMITED
FOURTEENTH RESPONDENT

JUDGES:

LEE, LINDGREN, KIEFEL JJ

DATE OF ORDER:

9 AUGUST 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
In appeal N 234 of 1999 (the Council’s appeal):
1. The appeal be allowed.
2.Orders 1, 2, 3, 4, 5 and 6 made on 5 March 1999 in proceeding NG 183 of 1997 be set aside and in lieu thereof it be ordered and declared as set out in the schedule hereto.
3.The respondents pay the appellant’s costs of the appeal. The liability of the respondents to contribute inter se to those costs be apportioned as follows: one-third to the first respondent, one-sixth to the second respondent, one-sixth to the third respondent, and one-third to the fourth respondent.
In appeal N 298 of 1999 (the State’s appeal):
1.The appeal be allowed in part.
2.Orders numbered 1, 2, 3, 4, 5 and 6 made on 5 March 1999 in proceeding NG 183 of 1997 be set aside and in lieu thereof it be ordered and declared as set out in the schedule hereto.
3.The appellant pay the costs of the appeal of the first, second, third, fourth, sixth, seventh and fourteenth respondents, the costs of the third and fourth respondents to be the one set of costs.

In appeal N 219 of 1999 (the Barclay companies’ appeal):
1.The appeal be allowed in part.
2.Orders 1, 2, 3, 4, 5 and 6 made on 5 March 1999 in proceeding NG 183 of 1997 be set aside and in lieu thereof it be ordered and declared as set out in the schedule hereto.

3.        The appellants pay the first respondent’s costs of the appeal.
4.        The cross-appeal be dismissed with costs.
In appeals N 234 of 1999, N 298 of 1999 and N 219 of 1999:
If submissions in respect thereof are lodged within fourteen days, the orders for costs, including the orders for costs set out in the schedule hereto, are not to take effect until further order.
Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

SCHEDULE
1.The application be dismissed against the first respondent with costs.
2.There be judgment for the first applicant against the second, nineteenth and twentieth respondents in the sum of $27,000 in respect of the first applicant’s personal claim (and their liability to contribute inter se be apportioned one half to the nineteenth respondent and one quarter to each of the second and twentieth respondents).
3.In respect of so much of the first applicant’s representative claim that alleges negligence, the first applicant is entitled to succeed against the second, nineteenth and twentieth respondents on behalf of those group members who prove that damage has been suffered by them, and in respect of the remaining respondents the claim be stood over for determination.
4.In respect of so much of the first applicant’s representative claim that alleges an entitlement to recover loss or damage under ss 74B and 74D of the Trade Practices Act 1974, the claim be stood over for determination.
5.The cross-claims be stood over for determination.
6.The second, nineteenth and twentieth respondents pay the costs of the first applicant, whether in relation to his personal or representative claim (and their liability to contribute inter se be apportioned one half to the nineteenth respondent and one quarter to each of the second and twentieth respondents), and the nineteenth respondent indemnify the first applicant in respect of costs payable by the first applicant to the first respondent pursuant to item 1 of these orders.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 219 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:

GRAHAM BARCLAY OYSTERS PTY LIMITED
FIRST APPELLANT

GRAHAM BARCLAY DISTRIBUTORS PTY LIMITED
SECOND APPELLANT

AND:

GRANT RYAN, SCOTT CALLAGHAN, KEVIN GOWER, DAVID HOLNESS, GEOFFREY BENNETT, BRYAN HOCKING, BROSOW HARDY
FIRST RESPONDENTS

GREAT LAKES COUNCIL
SECOND RESPONDENT

STATE OF NEW SOUTH WALES
THIRD RESPONDENT

AND BETWEEN:
AND:

GRANT RYAN
CROSS APPELLANT

GRAHAM BARCLAY OYSTERS PTY LIMITED
CROSS RESPONDENT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 234 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:

GREAT LAKES COUNCIL
APPELLANT

AND:

GRANT RYAN
FIRST RESPONDENT

GRAHAM BARCLAY OYSTERS PTY LIMITED
SECOND RESPONDENT

GRAHAM BARCLAY DISTRIBUTORS PTY LIMITED
THIRD RESPONDENT

STATE OF NEW SOUTH WALES
FOURTH RESPONDENT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 298 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:

STATE OF NEW SOUTH WALES
APPELLANT

AND:

GRANT RYAN, SCOTT CALLAGHAN, KEVIN GOWER, DAVID HOLNESS, GEOFFREY BENNETT, BRYAN HOCKING, BROSOW HARDY
FIRST RESPONDENTS

GREAT LAKES COUNCIL
SECOND RESPONDENT

GRAHAM BARCLAY OYSTERS PTY LIMITED
THIRD RESPONDENT

GRAHAM BARCLAY DISTRIBUTORS PTY LIMITED
FOURTH RESPONDENT

CLIFT OYSTERS PTY LIMITED
FIFTH RESPONDENT

M W & E A SCIACCA PTY LIMITED
SIXTH RESPONDENT

TADEVEN PTY LIMITED
SEVENTH RESPONDENT

THE OYSTER FARMERS ASSOCIATION OF NEW SOUTH WALES PTY LIMITED
EIGHTH RESPONDENT

R A KING (WHOLESALE) PTY LTD
NINTH RESPONDENT

MANETTAS LIMITED
TENTH RESPONDENT

SHONID PTY LIMITED (TRADING AS “TIM & TERRY OYSTER SUPPLY PTY LIMITED”)
ELEVENTH RESPONDENT

VICTORIAN FROZEN FOOD DISTRIBUTORS PTY LIMITED (TRADING AS “RICHMOND OYSTERS”)
TWELFTH RESPONDENT

SMITHS OYSTER SERVICE PTY LIMITED
THIRTEENTH RESPONDENT

GEORGES OYSTERS PTY LIMITED
FOURTEENTH RESPONDENT

JUDGES:

LEE, LINDGREN, KIEFEL JJ

DATE:

9 AUGUST 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT
LEE J:

The matter before the Court involves appeals and cross-appeals from a decision of a Judge of this Court. The content of that decision, the parties to the appeal proceedings and the grounds of appeal and cross-appeal relied upon are described in the reasons of Lindgren J which also set out the relevant facts and an outline of the pertinent arguments submitted by the parties to the appeals and cross-appeals. In those respects the reasons of Lindgren J are to be read with the reasons which follow.
Liability of public authority
The liability in tort of the Crown and public authorities is said to raise vexed issues, (see: Pyrenees Shire Council v Day (1998) 192 CLR 330 per Kirby J at 397; Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 per Kirby J at 463-465), in particular whether the Crown and public authorities are to be treated differently from private litigants. (See: Doyle, Redwood The Common Law Liability of Public Authorities: The Interface Between Public and Private Law (1999) 7 Tort Law Rev 30 at 34; Fleming The Law of Torts 9^th ed 1998 at 210; Aronson, Whitmore Public Torts and Contracts 1982 at 34-35; P W Hogg Liability of the Crown 2^nd ed 1989 at 2; Trindade, Cane The Law of Torts in Australia 3^rd ed 1999 at 696-697; Davies Common Law Liability of Statutory Authorities 27 (1998) UWAL Rev 21; Justice Sopinka The Liability of Public Authorities: Drawing the Line (1993) Tort Law Rev 123.) Whatever arguments may be raised in that regard neither the Crown nor a public authority has immunity from suit in negligence unless that immunity is provided by statute. (See: Street on Torts 10^th ed 1999 at 182.) The liability in tort of a public authority is determined by application of the ordinary rules. As Hogg states (at 2):
“…my review of the law leads me to the conclusion that, for the most part, the ‘ordinary’ law does work a satisfactory resolution of the conflicts between government and citizen. Indeed, the parts of the law that seem to me to be most unsatisfactory are those when the courts have refused to apply the ordinary law to the Crown. In short, I conclude that Dicey’s idea of equality provides the basis for a rational, workable and acceptable theory of governmental liability.”
In particular circumstances however, the scope, or existence, of a duty of care has been confined or excluded by application of concepts such as “justiciability”, “incrementalism” or “policy”. (See: Fleming at 213-215; Doyle at 42-45.)
The relevant principles to be applied in determining whether a public authority is liable in negligence were stated by the High Court in Sutherland Shire Council v Heyman (1985) 157 CLR 424 and subsequently refined in Nagle v Rottnest Island Authority (1993) 177 CLR 423; Pyrenees; Romeo; and Crimmins v Stevedoring Industry Finance Committee (1999) 167 ALR 1.
It was accepted in Heyman that there was no reason why general principles of negligence should not apply to public authorities and no reason in principle, or policy, why liability in negligence of a public authority should be limited to the negligent exercise of powers vested in it and not extend to the negligent non-exercise of a power exercisable at the discretion of the authority. (See: K M Hogg The Liability of a Public Authority for the Failure to Carry Out a Careful Exercise of its Statutory Powers: The Significance of the High Court’s Decision in Sutherland Shire Council v Heyman (1991) 17 Mon L R 285.)
In Heyman, a case involving financial loss, the existence and nature of the duty of care was confined by application of principles of proximity and reliance. In Nagle, where the plaintiff suffered personal injury, the liability of the public authority was rooted in the breach of a duty of care concomitant with the statutory duty of the Board to control and manage the Rottnest Island reserve for the benefit of the public, there being a relationship of proximity between the Board and visitors to the Island. The duty of care imposed on the public authority was to avoid foreseeable risks of injury to visitors to the Island. Although general reliance was put forward as part of the plaintiff’s case in Nagle, it was not held to be necessary that the plaintiff show that the Board knew there would be general reliance upon the Board exercising its powers.
In Pyrenees, where the plaintiff parties sought compensation for property damage suffered by reason of the alleged negligence of the public authority in failing to exercise its powers, the reasons of each of the majority (Brennan CJ, Gummow and Kirby JJ) rejected the concept that general reliance, or dependence, upon a public authority performing its statutory functions was a necessary element in establishing that a duty of care was owed by an authority to those said to rely upon the performance of those functions.
Brennan CJ based the liability of the public authority on a “public law duty” to enforce compliance with requirements the authority, in exercise of powers vested in it, had imposed on the occupier of premises in which was situated, to the knowledge of the authority, a risk of harm to persons and property.
Gummow J found the liability of the authority was to be established by application of the principles of common law negligence and stated as follows (at 391-392):
“A public authority which enters upon the exercise of statutory powers with respect to a particular subject matter may place itself in a relationship to others which imports a common law duty to take care which is to be discharged by the continuation or additional exercise of those powers.”
Kirby J also held that liability was established under a common law duty of care the principles for which were those set out by the House of Lords in Caparo Industries Pty Ltd v Dickman [1990] 2 AC 605 at 617-618, namely:
·     was the prospect of harm to the person who suffered damage reasonably foreseeable?
·     was there a relationship of “proximity” or neighbourhood between the party sued and the party who suffered damage?
·     was it “fair, just and reasonable” that the law impose a duty of care on the party sued for the benefit of the party who suffered damage?
Toohey and McHugh JJ, in dissent, also determined liability according to the general principles of negligence at common law, but held that to establish a duty of care there must be general reliance on the performance of functions not performed by a public authority and that a relationship of proximity be apparent.
In Hill v Van Erp (1997) 188 CLR 159 the respective reasons of the majority (Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ) described the relationship of proximity, previously regarded as the “control mechanism” for the tort of negligence (See: Caltex Oil (Australia) Pty Limited vThe Dredge “Willemstad” (1976) 136 CLR 529) as a factor to be considered in determining whether a duty of care existed, particularly where the loss claimed by reason of alleged breach of duty of care was “pure” economic loss, but stated that it was not an overriding requirement for a right to recover damages in negligence.
In Romeo, which, like Nagle, involved a claim for damages for personal injury, the liability in negligence of a public authority to which functions of protection and management of a public reserve had been delegated by statute, was determined by application of the ordinary principles of common law. The majority (Toohey, Gaudron, McHugh, Gummow, Kirby and Hayne JJ) rejected the opinion of Brennan CJ expressed in Pyrenees and repeated in Romeo, that liability of a public authority was grounded in the breach of a “public law duty” and not common law negligence. The reasons of the majority reflected views expressed in the dissenting opinion of Lord Nicholls, supported by Lord Slynn, in Stovin v Wise [1996] AC 923. In particular, the reasons of the majority in Pyrenees and Romeo do not support the proposition set out in the opinion of Lord Hoffmann in Stovin v Wise, adopted as the opinion of the majority, that, in effect, a public authority had to be under a statutory duty to act before a common law duty of care could arise where the authority had failed to act.

In Romeo the majority held that by reason of the functions vested in the public authority it was under a duty of care to persons entering the reserve to take reasonable care to avoid reasonably foreseeable risks of injury to such persons. The risk of such a person falling over a cliff in the reserve was held to be reasonably foreseeable but in all the circumstances failure of the public authority to erect a fence or barrier at the edge of the cliff was found not to be a breach of the duty of care. The majority rejected the submission that the duty of care of a public authority could be differentiated in some way from the nature of the general duty of care applied by the general law of negligence.
The joint reasons of Toohey and Gummow JJ stated that it was unnecessary to deal with the submission of the public authority that there was a distinction between “policy and operational factors” and that “policy decisions” of public authorities were not “justiciable” and, therefore, incapable of grounding a finding in negligence, but the reasons of Kirby J, and by implication the reasons of the other members of the Court, rejected that submission. The common law of Australia does not restrict determination of public authority liability in negligence to “justiciable” matters and accords with the following view expressed by Lord Nicholls in Stovin v Wise at 938-939:
The exclusionary approach presupposes an identifiable boundary, between policy and other decision, corresponding to a perceived impossibility for the court to handle policy decisions. But the boundary is elusive, because the distinction is artificial, and an area of blanket immunity seems undesirable and unnecessary. It is undesirable in principle that in respect of certain types of decisions the possibility of a concurrent common law duty should be absolutely barred, whatever the circumstances. An excluded zone is also unnecessary, because no statutory power is inherently immune from judicial review. This has not given rise to any insuperable difficulties in public law. Nor should it with claims in tort if, very exceptionally, a concurrent common law duty were held to exist in an area of broad policy. Courts are well able to recognise that reasonable people can reach widely differing conclusions when making decisions based on social, political or economic grounds: see, for instance, Reg. v. Secretary of State for the Environment, Ex parte Nottinghamshire County Council [1986] A.C. 240. Similarly with competing demands for money. Indeed, the courts have recognised that sometimes it may be necessary in private law to look into competing demands for available money. As already noted, this is inherent in the very concept of a common law duty to take positive action. Thus this feature does not of itself exclude the existence of a concurrent common law duty.”
Perhaps in Heyman Mason J (at 469) gave qualified support to a contrary view (referred to by McHugh J in Perre v Apand Pty Ltd (1999) 164 ALR 606 at 631 and in Crimmins (at [84]), but when analysed the views expressed by Mason J do not differ markedly from those stated by Lord Nicholls. In Crimmins (at [131]) McHugh J stated that considerations of convenience, discretion and budgetary allocation pertaining to the exercise of powers by a public authority are considered as part of the question whether there has been a breach of a duty of care not the question whether a duty of care exists.
Crimmins v Stevedoring Industry Finance Committee (1999) 74 ALR 1 declares the current state of the common law in respect of the liability of a public authority in negligence. The relevant passages in the respective reasons of the members of the Court are as follows:
“[5] Acceptance that a statutory authority, in the discharge of its functions, owed a duty of care to a person, or class of persons, is only the first step in an evaluation of the Authority’s conduct for the purpose of determining tortious liability. In some cases, the difficulty of formulating the practical content of a duty to take reasonable steps to avoid foreseeable risks of harm, for the purpose of measuring the performance of an authority against such a duty, may be a reason for denying the duty. In other cases, of which the present is an example, recognition of the existence of a duty is consistent with the need, when dealing with the question of breach, to take account of complex considerations, perhaps including matters of policy, resources, and industrial relations.”
(per Gleeson CJ)
“[25] It is not in issue that a statutory body, such as the Authority, may come under a common law duty of care both in relation to the exercise and the failure to exercise its powers and functions. Liability will arise in negligence in relation to the failure to exercise a power or function only if there is, in the circumstances, a duty to act. What is in question is not a statutory duty of the kind enforceable by public law remedy. Rather, it is a duty called into existence by the common law by reason that the relationship between the statutory body and some member or members of the public is such as to give rise to a duty to take some positive step or steps to avoid a foreseeable risk of harm to the person or persons concerned.
[26] In the case of discretionary powers vested in a statutory body, it is not strictly accurate to speak, as is sometimes done, of a common law duty superimposed upon statutory powers. Rather, the statute pursuant to which the body is created and its powers conferred operates ‘in the milieu of the common law’. And the common law applies to that body unless excluded. Clearly, common law duties are excluded if the performance by the statutory body of its functions would involve some breach of statutory duty or the exercise of powers which the statutory body does not possess.
[27] Legislation establishing a statutory body may exclude the operation of the common law in relation to that body’s exercise or failure to exercise some or all of its powers or functions. Even if the legislation does not do so in terms, the nature or purpose of the powers and functions conferred, or of some of them, may be such as to give rise to an inference that it was intended that the common law should be excluded either in whole or part. That is why distinctions are sometimes drawn between discretionary and non-discretionary powers, between policy and operational decisions and between powers and duties. Where it is contended that a statutory body is not subject to a common law duty in relation to the exercise or non-exercise of a power or function because of the nature or purpose of that power, what is being put is that, as a matter of implication, the legislation reveals an intention to exclude the common law in relation to the exercise or non-exercise of that power.
…
[42] Various tests have been propounded as to the factors which will stamp a relationship as one which calls a duty of care into existence. In some cases, emphasis has been placed on the notion of ‘general reliance’…
…
[43] The notion of general reliance has been the subject of some criticism and more recent decisions of this Court have tended to focus on the vulnerability of the person who suffers injury, on the one hand, and, on the other, the knowledge of risk and the power of the party against whom a duty of care is asserted to control or minimise that risk. And those precise considerations appear to underpin the notion of general reliance as explained by Mason J in [Heyman].”
(per Gaudron J)
“[62] There is one settled category which I would have thought covered this case: it is the well-known category ‘that when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered’. Similarly, in [Heyman] at 458 Mason J, citing Caledonian Collieries Ltd v Speirs, (1957) 97 CLR 202 at 219-220 said that ‘[i]t is now well settled that a public authority may be subject to a common law duty of care when it exercises a statutory power or performs a statutory duty’.
…
[79] Common law courts have long been cautious in imposing affirmative common law duties of care on statutory authorities. Public authorities are often charged with responsibility for a number of statutory objects and given an array of powers to accomplish them. Performing their functions with limited budgetary resources often requires the making of difficult policy choices and discretionary judgments. Negligence law is often an inapposite vehicle for examining those choices and judgments. Situations which might call for the imposition of a duty of care where a private individual was concerned may not call for one where a statutory authority is involved. This does not mean that statutory authorities are above the law. But it does mean that there may be special factors applicable to a statutory authority which negative a duty of care that a private individual would owe in apparently similar circumstances. In many cases involving routine events, the statutory authority will be in no different position from ordinary citizens. But where the authority is alleged to have failed to exercise a power or function, more difficult questions arise.
…
[87]…It may be that functions and powers which can be described as part of the ‘core area’ of policy-making, or which are quasi-legislative or regulatory in nature, are not subject to a common law duty of care. Outside this narrowly defined policy exception, however, as Professor Todd has argued, it seems preferable to accommodate the distinction at the breach stage rather than the duty stage. He has argued:
‘While the issue as to the ambit of a public body’s discretion and whether it has acted reasonably or rationally certainly needs to be addressed, it is better taken into account in determining whether the public body is in breach of a duty independently held to exist…Indeed, it is significant that the decisions purporting to use the exercise of policy or discretion as a duty concept sometimes themselves lapse into the language of breach.
The question whether a decision was made within the ambit of a statutory discretion seemingly has a direct analogy with the question whether a professional or skilled person took reasonable care in exercising his or her professional judgment. The professional person is not bound to ensure that he or she has made the right decision or to guarantee success in any particular venture. Rather, his or her obligation is to speak or to act within the boundaries reasonably to be expected of a person claiming skill and competence in the particular area. Whether a public or a private defendant is involved, the same kind of question can be asked in relation to any acts or decisions involving the exercise of judgment...’
[88] He went on to say:
‘And the degree of care expected of a public body in meeting the standard of reasonableness must be determined in the light of its obligation to carry out various statutory functions and its inability simply to desist from any exercise of its responsibilities…So the funding and other resources which are available to meet the demands which are made upon the public body are very relevant…’
[89] In Pyrenees, I said:
‘[T]he fact that the authority owes a common law duty of care because it is invested with a function of power does not mean that the total or partial failure to exercise that function or power constitutes a breach of that duty. Whether it does will depend upon all the circumstances of the case including the terms of the function or power and the competing demands on the authority’s resources.’
[90] To highlight the different position of statutory authorities therefore, it also seems best to formulate an authority’s duty by reference to what a ‘reasonable authority’ – rather than a ‘reasonable person’ – would have done (or not done) in all the circumstances of the case.
…
[93] In my opinion, therefore, in a novel case where a plaintiff alleges that a statutory authority owed him or her a common law duty of care and breached that duty by failing to exercise a statutory power, the issue of duty should be determined by the following questions:
1.Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests? If no, then there is no duty.
2.By reason of the defendant’s statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm? If no, then there is no duty.
3.Was the plaintiff or were the plaintiff’s interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? If no, then there is no duty.
4.Did the defendant know, or ought the defendant to have known, of the risk of harm to the specific class including the plaintiff if it did not exercise its powers? If no, then there is no duty.
5.Would such a duty impose liability with respect to the defendant’s exercise of ‘core policy-making’ or ‘quasi-legislative’ functions? If yes, then there is no duty.
6.Are there any other supervening reasons in policy to deny the existence of a duty of care (eg, the imposition of a duty is inconsistent with the statutory scheme, or the case is concerned with pure economic loss and the application of principles in that field deny the existence of a duty)? If yes, then there is no duty.
…
[96] In Stovin v Wise Lord Nicholls of Birkenhead (dissenting, Lord Slynn of Hadley agreeing) said:
‘Parliament confers powers on public authorities for a purpose. An authority is entrusted and charged with responsibilities, for the public good. The powers are intended to be exercised in a suitable case.’
[97] Similarly, in Pyrenees Kirby J said:
‘The Council of the Shire had relevant powers to require the owners of the shop and residence containing the dangerous chimney and fireplace to repair or remove the danger. The powers existed for the protection against fire of persons such as the claimants.’
[98] His Honour then went on to say:
‘The statutory power in question is not simply another of the multitude of powers conferred upon local authorities such as the Shire. It is a power addressed to the special risk of fire which, of its nature, can imperil identifiable life and property.’
[99] These statements bring out the point that some powers are conferred because the legislature expects that they will be exercised to protect the person or property of vulnerable individuals or specific classes of individuals. Where powers are given for the removal of risks to person or property, it will usually be difficult to exclude a duty on the ground that there is no specific class. The nature of the power will define the class – eg. an air traffic control authority is there to protect air travellers. Furthermore, a finding that the authority has powers of this type will often indicate that there is no supervening reason for refusing to impose a duty of care and that no core policy choice or truly quasi-legislative function is involved.”
(per McHugh J)
“[165] Statute may establish a relationship between the parties which is said to be so analogous to a relationship to which the common law attaches duties that the common law should act in like manner with respect to the relationship flowing from the statute. An example is the position of statutory bodies which have power to manage, and do manage, land which the public uses as of right; the position of the statutory authority is seen as analogous to that of an occupier of private land and a duty of care may arise as to members of the public who go to the areas managed by the authority.
[166] In other cases, the powers vested by statute in a public authority may give to it such a significant and special measure of control over the safety of the person or property of the plaintiff as to oblige it to exercise its powers to avert danger or to bring the danger to the knowledge of the plaintiff. The powers of the appellant with respect to fire prevention in [Pyrenees] were in this category.”
(per Gummow J)
“[221] In these circumstances, the proper approach for a court to take is that explained by Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 739:
‘If the plaintiff’s complaint alleges carelessness, not in the taking of a discretionary decision to do some act, but in the practical manner in which that act has been performed…the question whether or not there is a common law duty of care falls to be decided by applying the usual principles ie those laid down in Caparo Industries Plc v Dickman. Was the damage to the plaintiff reasonably foreseeable? Was the relationship between the plaintiff and the defendant sufficiently proximate? Is it just and reasonable to impose a duty of care?’
…
[223] Reasonable foreseeability: The approach to foreseeability, as applied to the ascertainment of the existence of a duty of care, is that stated by this Court in Wyong Shire Council v Shirt (1980) 146 CLR 40. Where what is in question is the existence of a duty of care, the decision maker is obliged to conduct a ‘generalised inquiry’ to ask whether a reasonable person in the defendant’s position would have foreseen that the conduct involved a risk of injury to the plaintiff, or to a class of persons including the plaintiff. The test is described as ‘undemanding’. This is because it is not necessary that the defendant should have foreseen the precise injury which has occurred, or that such injury would have occurred to the plaintiff in particular or that it was likely to eventuate. Lord Reid in C Czarnikow Ltd v Koufos [1969] 1 AC 350 at 385 stated that liability extended to ‘any type of damage which is reasonably foreseeable as liable to happen even in the most unusual case’. Later in his speech the words ‘likely to happen’ were clarified as meaning ‘not unlikely’ to happen, so as to include even an event that could be described as ‘a very improbable result’ of the acts or omissions in question. It is this approach that was adopted by this Court in Wyong Shire Council v Shirt. Because the foreseeability test is so ‘undemanding’, it cannot afford a universal criterion of the existence of a duty of care. The proper approach needs to be supplemented by the additional considerations of proximity and policy.
…
[226] Relationship of proximity or ‘neighbourhood’: A number of ‘proximity’ factors satisfy the second consideration. Many of these factors have been mentioned already in the description of the statutory functions of the Authority and the relationship between it and registered waterside workers such as the deceased. The fact that such workers were not employed by the Authority is by no means determinative of the duty question or even of the question about the ‘proximity’ of the relationship in issue. If the deceased had been employed by the Authority, there would have been no need to consider the three-stage approach to ascertain whether a duty of care existed. It is indisputable that such a duty exists as between an employer and its employees. That has long since been decided by the courts. What must be determined here is whether, in the circumstances, that duty existed in the more limited relationship created by the 1956 Act between the Authority and registered waterside workers.
…
[230] Imposition of a duty: policy considerations: It is the third consideration which is likely, in cases such as the present, to provide the greatest obstacle to a claim by an individual plaintiff who seeks to establish a duty of care against a statutory body for failure to exercise its statutory powers…”
(per Kirby J)
“[270] The fact that the Authority is a statutory body given statutory discretions does not prevent the application of ordinary principles of the law of negligence. But the courts have often found the task of identifying the duty of care that is owed by a statutory body to be difficult. To whom is the duty owed? What is the content of the duty?
[271] There are several reasons why the task is difficult. As Gummow J pointed out in [Pyrenees] a person claiming against a public body with statutory powers seeks ‘to translate the public law “may” into the common law “ought”’. Should the courts (and can the courts) distinguish between policy and operational decisions of statutory bodies? Is the distinction between non-feasance and misfeasance relevant? Does it matter that the constituting statute gives a body some statutory duties and then, in different language, gives it some statutory powers? Is the body to be liable in negligence when it does not use the powers it was given but was under no statutory duty to use them (or perhaps even to consider their use)? All these, and more, are questions that may arise.
[272] None of these questions is answered by the adoption of the three-stage test said to have been expressed by Lord Bridge of Harwich in Caparo Industries Plc v Dickman and requiring reference to (a) foreseeability, (b) proximity or neighbourhood and (c) whether it is ‘fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other’…
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[299] [The] arguments of the appellant are all founded in allegations that the Authority failed to exercise its powers, not that it exercised them carelessly. I do not, however, consider that the classification of the alleged breaches as non-feasances rather than misfeasances concludes whether the Authority owed the deceased worker a duty of care to exercise the powers in question. The distinction between non-feasance and misfeasance is often elusive and even if that were not so, adopting that distinction as an exclusive test for deciding whether a duty was owed may well be inconsistent with Pyrenees. The majority of the Court held in that case that the Council owed a duty to exercise its statutory powers and was liable for failing to do so.”
(per Hayne J)
“[359] It is necessary now to consider the nature and extent of the duty of care owed by the respondent to Mr Crimmins in light of the statutory role conferred on it. It is important to remember that s 17(1)(o) speaks in terms of the encouragement of ‘safe working in stevedoring operations’ and that s 18 recognises that a relationship of master and servant exists between the workers and the stevedoring companies. The duty owed by the respondent must take account of and yield to these matters and other contextual indications that the Authority cannot be precisely equated with an employer.
[360] That duty I would define as a duty to take such reasonable care for the safety of Mr Crimmins in the workplace as the respondent was reasonably capable of taking as a matter of practicality in the performance of its functions, and which the actual employer could not be expected to, or did not itself have the capacity to take, or was flagrantly failing to take, in circumstances in which measures available to the respondent, if taken, would have been likely to be effective in preventing or alleviating the harm done to Mr Crimmins.”
(per Callinan J)

The following principles may be extracted from the foregoing. The Crown, or a public authority, will owe a duty of care in the exercise or non-exercise of its powers or functions to take reasonable steps to avoid the foreseeable risk of harm to a person, or class of persons, that may arise from the exercise or non-exercise of those functions, the existence and scope of that duty being dependent upon the nature of the powers and functions able to be exercised and the relationship between the authority and the person, or class of persons, in respect of whom such a risk of harm is foreseeable. Determination of whether such a duty of care has been breached may involve consideration of matters of policy and competing demands on the resources of the authority.
The powers delegated by the legislature to the Council, and to State departments, were directed to protection of public health with the expectation that the powers would be exercised whenever circumstances demonstrated a need for that to be done. It was inherent in the nature of the powers that their exercise be given priority if a public authority was balancing the exercise of such powers against the performance of other obligations. In providing appropriate powers for local authorities and Crown officers to maintain and protect public health, the legislature did not intend that the prospect of costs being incurred would make the exercise of the powers wholly discretionary. The risk to health represented by the introduction of human faecal pollution in waters used for the production of oysters was exposure of a section of the public, namely, the consumers of those oysters, to the risk of contraction of disease, and in the case of HAV an extremely debilitating disease. If such a risk materialised in the outbreak of a disease, substantial cost would be incurred by the community in providing medical treatment to persons who contracted the disease and in rectifying the cause of the outbreak. Declining to exercise the relevant powers was not a choice to be made to provide a cost-saving option.
In providing such powers the legislature recognised that the oyster industry was not conducted on the basis that all risks be eliminated and that the community would require and expect pollution controls to be implemented to minimise the risk of harm arising from the sale to the public of oysters grown in waters known to be contaminated from time to time by human faecal material. The legislature was aware that any aggravation of circumstances that bore hazards for the oyster industry was likely to have significant impact on the level of risk that harm may result from the harvesting and sale of oysters.
The statutory powers provided by the legislature reflected the public will that they be exercised. If a member of the public suffered harm by reason of a failure to carry out those powers, it would not be contrary to community expectation that such a person be compensated by a public authority in default and that the person not be required to bear the consequences of the harm inflicted, notwithstanding that such an entitlement would occasion public expense.
The imposition of a duty of care on a relevant public authority would be unlikely to inhibit the authority carrying out other duties and would do no more than reflect the intent of the legislature that steps necessary for the protection of public health be undertaken by authorities empowered to act for that purpose.
The position of the Council
The Local Government Act 1993 (NSW) (s 7) provided that it was the purpose of the legislation to give the Council the ability, inter alia, to carry out activities appropriate to the current and future needs of local communities and the wider public, and a role in management of the resources of the area of the municipality. In particular, (ss 56-66) the Council had the care and management of water supply and sewerage. Section 124 of the Local Government Act provided that the Council may give orders to bring sewerage systems into compliance with relevant standards and to order that premises be connected to a sewer of the Council. Furthermore, under the Clean Waters Act 1970 (NSW) (s 27) the Council was empowered to take action to remove, disperse, destroy or mitigate pollution in polluted waters and may recover the expense of such action.
“Pollute”, in relation to waters, was defined in the Clean Waters Act (s 5) as, inter alia:
“to place in or on, or otherwise introduce into or on to, the waters (whether through an act or omission) any refuse, litter, debris or other matter, whether solid or liquid or gaseous, so that the change in the condition of the waters or the refuse, litter, debris or other matter, either alone or together with any other refuse, litter, debris or matter present in the waters makes, or is likely to make, the waters unclean, noxious, poisonous or impure, detrimental to the health, safety, welfare or property of persons, undrinkable for farm animals, poisonous or harmful to aquatic life, animals, birds or fish in or around the waters or unsuitable for use in irrigation, or obstructs or interferes with, or is likely to obstruct or interfere with persons in the exercise or enjoyment of any right in relation to the waters…”
Section 16 of the Clean Waters Act provided “inter alia” that a person shall be deemed to pollute waters if:
“the person places any matter (whether solid, liquid or gaseous) in a position where:
(i)it falls, descends, is washed, is blown or percolates, or
(ii)it is likely to fall, descend, be washed, be blown or percolate,
into any waters, on to the dry bed of any waters, or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, or causes or permits any such matter to be placed in such a position,…
…
and the matter would, had it been placed in any waters have polluted or have been likely to pollute those waters.
…”
Contravention of s 16 of the Clean Waters Act by any person was an offence against the Environmental Offences and Penalties Act 1989 (NSW).
Before determining whether the scope of these powers permitted a duty of care to arise at common law, it is necessary to consider the findings of fact made by his Honour in respect of matters known to the Council or of which it ought to have been aware.
The oyster-growing industry was a substantial resource within the Council area and the Council knew that the consumption of disease-free oysters produced from the waters of Wallis Lake (“the Lake”) depended upon the maintenance of pollution-free waters in the Lake. His Honour found that the Council knew that numerous sites within the catchment area of the Lake represented potential sources of human faecal contamination of the waters of the Lake. The Council was aware of numerous failures of septic tank systems within the catchment area and of the risk those circumstances presented of polluting substances entering the waters of the Lake. The Council was also aware that human waste may be deposited directly into the Lake from vessels such as houseboats using the waters of the Lake for recreation purposes. The Council knew from the results of tests it had carried out that the faecal coliforms could be found in the waters of the Lake from time to time and in watercourses leading into the Lake. In August 1994 the Council had been informed by the report prepared by Professor Brown that pollution of the Lake was occurring by sewage effluent being washed into the waters of the Lake by stormwater drains and by rain, and by raw sewage being deposited directly into the Lake from pleasure craft.
By May 1996 that position had not changed and evidence continued to be put before Council officers of numerous septic systems not operating according to “environmental public health” requirements from which they could conclude that such circumstances had to be corrected “[i]f we are to protect the quality of water in our catchments”. For example, it was known by Council that sewage effluent produced at Nabiac would be carried by stormwater run-off to the Wallamba River which emptied into the Lake. The situation at Nabiac with respect to appropriate disposal of human waste seems to have been deplorably deficient for a number of years before 1996. In June 1995 a Council officer reported that the level of sewage pollution revealed in water samples taken from a creek at Nabiac was caused by “the failure of effluent disposal systems throughout Nabiac”. In January 1990 the Council had resolved to investigate the possibility of providing a reticulated sewerage system for Nabiac but by November 1996 no work had commenced. The number of residences, and the type of soil in which septic tank systems were situated, resulted in unsatisfactory operation of the septic systems. Council officers stated that it was “very difficult to retain the liquid on the site that you’re disposing it onto”. After heavy rain a large flow of effluent would be carried in the stormwater drainage system at Nabiac and lids of septic systems “popped” dispersing raw sewage over surrounding ground. The primary school at Nabiac had to have a daily “collection” from its septic tank because of the inadequacy of the system installed.
The Council was aware that two caravan parks on the Wallamba River, midway between Nabiac and the Lake waters, irrigated or discharged effluent from septic systems conveyed by rainfall run-off or seepage to a creek leading to the Wallamba River. In 1990 samples taken by the Council from the Wallamba River near one of the caravan parks had “revealed high readings in both faecal and total coliform bacteria”.
In addition to the foregoing the Council was aware of the failure from time to time of the pumping system on a holding tank serving public toilets on the foreshore of the Lake. Waste matter was pumped from the tank to the reticulated sewerage system serving the town of Forster. From time to time the pump did not operate; on such occasions sewerage may overflow from the holding tank onto the foreshore land and make its way into the Lake.
The Council was also aware that people camped on, or visited, islands in the Lake where no toilet facilities were provided. With respect to most of the oyster sheds and depuration plants situated on those islands no toilet facilities had been constructed. Basic irregular facilities such as drums and pits were used to collect human waste close to the shoreline of the islands.
In August 1996 five of ten samples taken from street gutters in unsewered areas showed faecal coliforms exceeding 10,000 cfu/100ml which, although most of the sample locations were outside the Lake catchment area, confirmed the inability of septic tank systems to provide acceptable disposal and treatment of human waste. Indeed, one sample taken within the catchment area at Cooloongoolook showed a faecal coliform reading of 3,780,000 cfu/100ml, the sample site being described by the relevant council officer as “grossly polluted with septic tank effluent”.
The Council was aware that pollution of waters of the Lake by introduction of human waste presented the risk of a viral-borne disease being contracted by persons using the waters for recreation or consuming oysters grown in such waters. The material before his Honour also suggested that being charged with responsibility for management of the Lake for the protection of public health the Council should have been aware that the HAV virus in human faecal waste could exist for significant periods of time: in excess of three months in septic tank systems and sediments of lakes and watercourses.
The Council was aware that oysters accumulate deleterious organisms present in polluted water and that depuration methods used by oyster producers would not protect consumers of polluted oysters from the risk of contracting a viral-borne disease.
It is obvious that it was reasonably foreseeable that if the Council did not exercise relevant powers available to it appropriate for the management of the waters of the Lake for protection of public health it would not control the risk to which a person consuming oysters produced from waters of the Lake would be exposed, of suffering harm by contraction of disease. The magnitude of that risk was known to the Council in that the Council was aware that faecal matter was entering the Lake and was aware of a number of sites that could be the source of such pollution of the waters of the Lake.
The powers available to the Council under the Local Government Act (s 124) and the Clean Waters Act (s 27) were directed to protecting persons who consumed oysters produced from the Lake and if properly exercised those powers were sufficient to reduce the risk of harm arising from the consumption of oysters to a level regarded as reasonable or acceptable, although not eliminating the risk entirely. Such a consumer was not in a position to take any step to safeguard himself or herself from harm and would rely upon the fact that oysters from the Lake were being offered for sale as confirmation that such steps as were necessary to keep the risk of harm resulting from the consumption of oysters to a minimum had been taken by those responsible for the management of the waters of the Lake.
It cannot be said that exercise of the powers already invested in the Council for the purpose of reducing the risk of harm to consumers of oysters involved the exercise of a “core policy-making” or “quasi-legislative” function out of which no breach of the duty of care could arise. Neither the use of, nor the omission to use, the statutory powers provided, involved considerations beyond the reach of the law. In so far as the administration of the finance of the Council was relevant, his Honour found that no undue financial burden would have been imposed on the Council if it had acted to exercise the powers provided to it for reducing the risk of harm arising from the consumption of oysters. The law does not support the proposition that before a breach of a duty of care may be demonstrated, the financial impact on a public authority of the performance of all of its duties must be examined and the ability of the public authority to meet the cost thereof duly assessed. It may be assumed that a public authority empowered to finance its obligations, at least in part, by the collection of rates, will be able to make appropriate provision from year to year in respect of the reasonable steps it may be required to take to meet the duties of care under which it operates.
The circumstances of this case meet the requirements of the test or tests set out in Crimmins for determining whether a duty of care is imposed on a public authority.
In my opinion, his Honour did not err in determining that the Council had a duty of care to Mr Ryan to exercise the statutory powers vested in it so as to reduce or minimise to the acceptable level the risk of harm being caused to Mr Ryan by the consumption of oysters from the Lake.
The remaining questions, therefore, are what steps were reasonably required of the Council to discharge that duty of care and did the Council meet those requirements.
His Honour found that well before the occurrence of the events in which Mr Ryan contracted the HAV disease, the Council should have conducted a sanitary survey to identify all potential, and actual, point-pollution sources. Implicitly, his Honour found that the Council was obliged to take whatever steps were necessary to fix the pollution problems of which it was aware or were revealed by the survey. That is, the Council had to act to remove the risk of human faecal material entering the Lake from the dispersal of sewerage effluent at Nabiac, Cooloongoolook, Wallamba River caravan parks, the public toilet on the Lake foreshore and from pleasure craft using the Lake. As his Honour noted, no material was put before him to suggest that the steps of sanitary survey and rectification of human faecal pollution sources, in respect of water in, or leading to, the Lake, were beyond the resources of the Council. Indeed his Honour could have concluded that such a circumstance was most unlikely given that evidence before him showed that the Shoalhaven Council had taken such steps under its Environmental Monitoring Plan in 1991 for the management and control of the development of land for residential purposes in the catchment areas of waters in which oysters were grown on a significant scale and for the prevention of pollution of those waters.
It seems that the steps to be taken by the Council would have entailed the issue of compliance orders, and in default, work by the Council to rectify non-conforming septic and effluent disposal systems and to recover the costs thereof from persons on whom such notices had been served. If the long-term solution to the problems at Nabiac was the installation of a sewerage system, then the Council should have commenced that work in addition to carrying out remedial work to prevent effluent reaching watercourses.
It is clear that his Honour recognised that the HAV outbreak that resulted from the consumption of polluted oysters from the Lake in late 1996, early 1997, was an event that in the circumstances may have been anticipated to occur earlier than it did. Given the numerous sources of pollution from sewerage effluent and the extent to which the introduction of such pollution to the waters of the Lake was accepted without action being taken to identify and remove any source of that pollution, the eventual occurrence of the transmission of HAV from oysters taken from the Lake was inevitable. As the evidence before his Honour showed, the number of persons who contracted the disease and the spread of oysters that were affected throughout the Lake show that the amount of human faecal material polluting the Lake must have been substantial and must have involved various sources.
In my opinion, on the facts found by his Honour it could be concluded, as determined by his Honour, that the Council had breached the duty of care it owed to the class of persons that included Mr Ryan. It was not submitted that any overwhelming “policy” consideration existed in this matter to prevent the conclusion being formed that the duty of care had been breached.
If it were necessary to distinguish between “misfeasance” or “non-feasance” in determining the liability of a public authority, it may be said that the conduct of the Council was a combination of inadequate performance of its powers as well as non-performance thereof, but such a distinction no longer determines the liability of a public authority in negligence. Concepts of misfeasance and non-feasance have been overtaken by regard being given to questions such as the state of knowledge of the authority, the vulnerability of the person harmed and the purpose of the powers vested in the authority. A public authority cannot assert that no duty of care can arise where the authority has neglected to exercise powers vested in it, particularly where the powers delegated are for the purpose of furtherance or protection of public health or safety. (See: Crimmins per McHugh J at [99].) If non-feasance has any remaining role in determining whether a public authority owes a duty of care, it could only apply to a “highway authority”, (see: Buckle v Bayswater Road Board (1936) 57 CLR 259 per Latham CJ at 271) and having regard to the general principles set out in Crimmins for determining the liability in negligence of public authorities, it should be assumed that that distinction is no longer recognised. The questions now relevant to establishing whether a “highway authority” owes or has breached a duty of care are the extent to which the state of a highway makes risk of injury foreseeable; the knowledge of the authority, actual or constructive, of the condition of the highway; and whether the authority has had reasonable opportunity and the resources to take action to mitigate or remove that risk.

I would dismiss the appeal by the Council in respect of the finding of liability.
The position of the State
The relevant statutory provisions setting out the powers exercisable by the State are numerous.
Section 5(1) of the Health Administration Act 1982 (NSW) empowered the Minister to formulate general policies in accordance with which the functions of the Minister, the Department and relevant officers are to be exercised. The subsection stated that the purpose of the exercise of such policies was for, inter alia, “…protecting…the health and well-being of the people of New South Wales to the maximum extent possible having regard to the needs of and financial and other resources available to the State.”
Section 7 of the Public Health Act 1991 (NSW) expressly empowered the Minister to take such action and give such directions as the Minister considers to be necessary to restrict or prevent the use of water in, or flowing from, any source if the Minister suspects on reasonable grounds that a risk to public health is likely to arise because of that water. Such orders and directions of the Minister also had to bring the water, as nearly as practicable, to a condition under which the circumstance that caused the water to be water to which the section applied no longer exists. Furthermore, the State, through the Environmental Protection Authority, may exercise the same powers as a local authority under ss 27, 27A and 29 of the Clean Waters Act.
In addition to the responsibility imposed on a Minister to act if the Minister suspects that a risk to public health exists in water, the provisions of the Fisheries Management Act 1994 (NSW) provide express powers in the relevant Minister (s 189) to impose a “fishing closure” to prohibit the taking of oysters cultivated in the area of an “aquaculture permit” during a specified period where the Minister is satisfied that the area is in such a condition that the taking of oysters therefrom ought to be suspended or that the oysters are likely to be unfit for human consumption.
Under the Fisheries Management Act the State managed the oyster industry by requiring the farming of oysters to be authorised by the grant of an aquaculture permit and by providing for “operational controls” on oyster producers to be endorsed as conditions of the permit.
Under the Fisheries Management (Aquaculture) Regulations 1995 (“the Aquaculture Regulations”) Regulations were introduced which had the object of ensuring that shellfish taken for sale for human consumption from estuarine waters in New South Wales were of the highest quality and free from disease and pollutants. The Aquaculture Regulations required the Minister to determine the New South Wales Shellfish Quality Assurance Program (“the Program”) as a commercial aquaculture industry development plan to assure the quality of such shellfish, compliance with such a plan to be a condition endorsed on aquaculture permits. An object of the Program was to ensure that shellfish taken from estuarine waters (such as the Lake) met quality standards specified in the Program and the waters met specified environmental standards.
Although his Honour was not persuaded that the failure of the State to prepare and implement by November 1996 the Program the Minister had been instructed to establish, his Honour was satisfied that the nature of the relevant powers exercisable by the State brought with it correlative responsibilities, a conclusion confirmed by the content of the Aquaculture Regulations.
The waters of the Lake were vested in the State and the State could control the use thereof. It permitted an oyster industry to be established in the Lake and managed and controlled the industry by endorsement of conditions on, firstly, oyster leases and later, aquaculture permits. The State was aware that the depuration process it had implemented and supervised did not make oysters safe to eat if the oysters had been taken from waters affected by viral organisms introduced by human faecal material. A corollary to the powers the State had promulgated to be exercised for the protection of the health and well-being of, inter alia, the consumers of oysters taken from waters under State control, was the exercise of sufficient vigilance to determine if the powers had to be exercised to meet the objects of the legislation under which the powers had been provided.
His Honour, correctly in my opinion, rejected the submission that the manner in which the State approached the foregoing responsibilities was the implementation of a “policy” to stand back from involvement in day-to-day control of the condition of waters in which oyster farms operated, such expression of “policy” being the outcome of a determination of how the resources of the State were to be applied, not being a matter subject to examination at law or out of which a duty of care could arise.
On the facts found by his Honour no question arose of restriction of the State’s activity according to a “policy” determination. The relevant fact was that the decision whether the appropriate powers would be exercised was left to the judgment of departmental officers. Failure to implement steps that, reasonably, the State should have taken was a matter of misjudgment not the application of a “policy” in respect of the use of the financial resources of the State.
Mr Bird, on behalf of the Department of Health, held the opinion that it was unnecessary to incur the obligation to take steps to reduce the risk of harm to consumers of oysters produced from estuarine waters of the State.
In 1987 the National Health and Research Medical Council had produced a “Code of Hygienic Practice for Oysters and Mussels for Sale for Human Consumption”, a document that may be taken to have reflected an informed view on appropriate standards to be applied to the management of oyster production in estuarine waters. The standards recommended were similar to those applied internationally, that is to say, in the United States of America and in the European Union. The evidence before his Honour was to the effect that the States of Australia involved in the production of oysters, other than New South Wales, had moved to control the industry by applying such standards.
The basic requirements for management of oyster-growing areas by responsible authorities involved regular sanitary surveys to identify sources, or potential sources, of pollution; action to eliminate those sources; regular monitoring of water quality; and classification of oyster-growing areas according to the assessment of the level of risk.
In 1991 Mr Bird took the position that the classification of estuaries by application of the foregoing steps would be “extremely expensive and take several years”. The following extract from a paper published by Mr Bird in that year encapsulated his position on the level of risk the State should regard as being acceptable:
“The majority of estuaries would probably not be classified as ‘approved areas’ in which oysters could be harvested all year round with no controls irrespective of weather patterns.
Many would be classified as ‘Conditionally Approved’ which requires certain restrictions and controls when conditions are adverse such as heavy rainfall. Some areas would be ‘Restricted’ which means that oysters must be treated prior to sale.
And others may be classified as ‘Prohibited’ which means no oysters can be harvested at all!
Once such a ‘Classification’ system is established, the cost in monitoring the areas within the 34 different estuaries for changes in classification and enforcing compliance with the classification requirements in terms of administration and laboratory support would be prohibitive.”
The comments, particularly those emphasised by use of an exclamation mark, displayed failure by the State to recognise and address the nature of the risk posed to consumers of oysters produced in estuaries of New South Wales. Mr Bird was not called to give evidence before his Honour and his Honour noted that in so far as it was suggested by Mr Bird that the cost of managing a classification system would be “prohibitive”, no reasons had been offered to support that assertion, such costs being borne by other Australian States and many overseas countries.
His Honour recorded that there was no evidence capable of supporting a conclusion that it was reasonable for the State to adopt a lesser standard for the protection of consumers of oysters than was required in comparable countries in which the production of oysters was carried on.
The State was aware that oyster growers may harvest oysters during or after heavy rain and that no controls had been implemented by the State to prevent such action. In 1981 the State had imposed the depuration system on growers after oysters contaminated by the Norwalk virus had harmed the health of approximately 2,000 people in 1978. The State was aware that depuration alone was not a sufficient safeguard against harm resulting from oysters taken from polluted waters. In 1989/1990 1,200 people suffered harm to health after consuming oysters contaminated by Norwalk or Parvo viruses taken from the waters of the Tweed River. The State understood that pollution of the waters of the Tweed River from which the oysters were taken was caused by human sewage originating either from sewerage systems and septic tanks adjacent to the waters or from vessels navigating the waters. The State closed the Tweed River for a period of not less than two months after the outbreak.
The foregoing amply supports conclusions that the risk of harm being caused to consumers of oysters taken from the Lake was foreseeable; that the State had knowledge of or ought to have known facts that defined the magnitude of that risk; and that in the absence of action by the State to reduce that risk of harm by steps available to it and reasonable in the circumstances, consumers would be exposed to a greater risk of harm than they would either expect or be able to ascertain. No question of “core policy” was involved in the foregoing nor any decision by the State not to legislate in respect of the matter.
Accordingly, it was open to his Honour to conclude, as he did, that the State was under a duty of care to ensure that powers it had created were exercised to reduce the risk of harm being caused to consumers of oysters and further, to find that the State had breached that duty of care by reason of its failure to manage the waters of the Lake by taking steps to have sanitary surveys of oyster-growing waters undertaken and sources of pollution, or potential pollution, identified and rectified and to implement controls on the harvesting of oysters in conditions known to increase the risk of oyster contamination and, in particular, in failing to close the Lake fishery when those conditions occurred in 1996 and keep the fishery closed until circumstances existed that made it safe for the harvesting of oysters for sale to the public to resume.
Further, it was open to his Honour to conclude that on the balance of probabilities it was the failure of the State to act as described and meet the duty of care imposed upon it, that caused Mr Ryan to suffer injury.
In determining whether a duty of care exists in the circumstances described, it is not appropriate to speculate whether a duty of care may exist in other circumstances for which the State has responsibility in the management of public health and safety, and, if so, whether resources of the State will be adequate for the State to meet the various duties imposed upon it. In each case in which it is claimed that a duty of care is owed to a claimant by a public authority and that the duty has been breached, disposition of that claim at law will require consideration of the particular facts of that case and application to those facts of the principles of law relevant to a finding of negligence.
In the instant case the attitude of the State to the management of a known risk to public health, being the attitude adopted by Mr Bird, was that a level of risk higher than that mandated elsewhere would be acceptable to the State. That was a position not countenanced by the objects and powers exercisable under the relevant statutes the State had enacted. That approach involved inadequate performance of statutory duties the State had created not a “policy” choice not to legislate to create appropriate powers. The State could not stand back and ignore, or inadequately perform, powers provided by statute for the purpose of reducing, as far as possible, known risks to public health. Furthermore, when the State decided in 1994/95 that a system of industry-based control was to be implemented to meet the obligations of the State to safeguard public health that was not a “policy” decision based on limitations of the resources of the State. It was a course undertaken as a consequence of a failure to appreciate the nature of the risk to public health represented by continuing the production of oysters from the waters of the Lake without the imposition of further controls. As stated earlier, when considering the liability of the Council in negligence, on the facts found by his Honour, the events that occurred were not merely foreseeable, they were inevitable.
The steps to be taken by the State were obvious and reasonable, and necessary to meet the obligations of the State reflected in the purpose and content of the statutory powers created to safeguard consumers of oysters from harm. The State cannot submit that such obligations were either met or negated by a “policy” that management of the oyster industry be “industry-based” and that the State could decline to take further steps pending the formation of such a management system over a number of years.
I would dismiss the appeal by the State in respect of the finding of liability.
The position of the Barclay companies
I agree with Kiefel J, that the appeal by the Barclay companies against his Honour’s finding that those companies were liable in negligence to Mr Ryan should be dismissed. The substance of his Honour’s finding (at [351]) was that the duty of care owed by the Barclay companies was to be exercised by refraining from harvesting and selling oysters from the Lake when conditions had arisen that to the knowledge of the Barclay companies increased the risk of the oysters being contaminated. Implicitly, his Honour found that until the Barclay companies had taken the steps that were necessary to show it was safe to resume the harvesting and sale of oysters, no sales of oysters to the public should have been made. If, however, his Honour intended to limit the scope and performance of the duty of care to the Barclay companies providing notice to consumers of the nature of the risk at the time of sale of the oysters, I would agree with Kiefel J that that was an inadequate finding and the proper nature of the duty of care and the breach of it is as set out above. In effect, that is the substance of the notice of contention relied upon by Mr Ryan.
With regard to liability under the Trade Practices Act 1974 (Cth), I agree, for the reasons expressed by Lindgren J, that his Honour did not err in finding that Barclay Oysters was liable under ss 74B and 74D of the Trade Practices Act.
In respect of the cross-appeal by Mr Ryan, I also agree with Lindgren J, for the reasons he has stated, that his Honour did not err in finding the defence provided in s 75AK of the Trade Practices Act, to have been established by Barclay Oysters thereby preventing liability arising under s 75AD of the Trade Practices Act. I would add that if a sample test had been available in this case, destruction of the sample in that test would not make discovery of the defect by destruction of the sample mutually exclusive with the supply of defective goods under s 75AD.
Mr Ryan’s cross-appeal against the Barclay companies, therefore, must be dismissed.
Damages
I agree, for the reasons expressed by Lindgren J, that the quantum of damages was assessed correctly apart from inclusion of a sum which, as the parties agree, represents an excessive calculation of the amount of interest to be awarded. Apart from the interest component, the sum assessed by his Honour was appropriate in all the circumstances. The several appeals, therefore, should succeed only to the extent necessary to correct the error in respect of interest, namely by reducing the judgment sum by $3,000.
Cross-Claims
If orders were made which reflected my reasons, the single judgment entered against the appellants to pay the sum to which Mr Ryan has been found to be entitled would stand. Notwithstanding that the liability of each appellant was distinct, and severally determined, the separate sources of liability became merged in the judgment and, in equity, as judgment debtors, each would be bound to discharge the whole of the judgment and to share the burden of discharging the judgment equally. (See: Trade Practices Commission v Manfal Pty Ltd (No 3) (1991) 33 FCR 382 at 386.)
That would mean that unless an order based on rights at law, or under statute, were made on a cross-claim providing for an indemnity or variation of obligation to contribute, each of the Barclay companies severally would have the same liability as other judgment debtors to make equal contribution to the judgment debt.
On his Honour’s findings, it was not necessary to determine the various cross-claims in that regard. Now that his Honour’s judgment is to be set aside in respect of the finding of liability of the Council and the obligation of the Council to contribute to the discharge of the judgment in respect of Mr Ryan’s personal claim, it will be necessary to determine whether there is to be an apportionment between tortfeasors under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) involving orders for contribution that would alter the liability for equal contribution that would flow from the entry of judgment against the State, Barclay Oysters and Barclay Distributors. Furthermore, it will be necessary to determine whether the Council is liable to indemnify, or to make contribution, under the cross-claims of the State and the Barclay companies and whether, under the Council’s cross-claim against the State, the State is liable to indemnify the Council in respect of any liability the Council may have under the Barclay companies’ cross-claim against it.
Of course, in respect of Mr Ryan’s representative claims, the cross-claims will not be determined until each representative claim is decided. By reason of the foregoing, and also for the reasons stated by Lindgren J, all cross-claims seeking an order for indemnity or contribution in respect of any liability to Mr Ryan personally, or in his representative capacity, should stand over for hearing and determination by his Honour.
Costs
Council Appeal
His Honour’s order that Mr Ryan recover the costs of his application from the Council is to be set aside and instead Mr Ryan is to be ordered to pay the costs of the Council. Mr Ryan should be indemnified by the State in respect of his liability to pay the costs of the Council. It was reasonable for Mr Ryan to take the precaution of joining both public authorities where each would, and did, claim the other was responsible for Mr Ryan’s injury and loss.
With regard to the Council’s appeal, all respondents to that appeal should bear the costs of that appeal. All argued that the finding of liability against the Council should stand. In exercise of a general discretion in relation to costs – and not relying on the Law Reform (Miscellaneous Provisions) Act – the liability to contribute to those costs should be apportioned other than equally to reflect the fact that on the appeal the Barclay companies spoke as one.
State Appeal
The State joined fourteen respondents to its appeal of whom Mr Ryan, the Council, the Barclay companies, Sciacca Pty Ltd, Tadeven Pty Ltd and Georges Oysters Pty Ltd appeared. They all opposed the thrust of the State’s appeal, namely that it be excluded from liability, and they should have their costs of the appeal. There will be no order for costs on Mr Ryan’s notice of contention.
Barclay Companies’ Appeal

The importance of whether the statute was the source of the power to control or manage the area of risk, and therefore of the duty to take care, had been referred to in earlier cases including Schiller v Mulgrave Shire Council (No 2) (1972) 129 CLR 116 (by Barwick CJ, 120). The distinction between statutory powers conferred for the purpose of attaining statutory objects and in respect of which an obligation to act was created and the situation where an authority had a choice whether to exercise powers was discussed by Mason J in Heyman 457, although his Honour went on to conclude that there might then be a public expectation that they would be exercised. It has since been recognised that reference to expectations, or reliance, is unnecessary to a determination as to whether a duty to act arises.
In Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, the existence of a duty of care on the part of the authority, which had statutory powers of control or management, was not in dispute. The principal issue to which the judgments were directed was what was necessary to be undertaken to fulfil the duty. Brennan CJ again equated the scope of the duty with the purpose of the statutory power, so that where it was one to protect persons, what was required was that which would reasonably fulfil that purpose, unless there was some contrary statutory direction. The manner of its exercise was, however, one for the authority to determine (443).
It follows in my view that with respect to the cases against the Council and the State, the principal focus must be upon the statutes which confer power on those entities to determine what they were directed to and the objects sought to be achieved or the protection afforded by them; and consider what measure of control was given to them to effect those purposes. It may also be relevant to consider the relationship or connexion between the Council and the State on the one hand and the applicant, Mr Ryan.
Aspects of the Evidence and Findings
Wallis Lake had been known to be subject to contamination from human faecal material for some time. There had not, however, been an outbreak of any virus attributed to it, although the prospect of that occurring had been adverted to and available scientific knowledge would have confirmed that. The lake and its catchment were, in particular, exposed to contamination from urban run-off. The risk of such contamination carried with it the risk of viral infection, as had been experienced elsewhere. Viruses such as the Hepatitis A virus (“HAV”) were carried in human faeces. The risk of contamination was significantly higher after periods of heavy rainfall. Heavy rainfall occurred between 22 and 25 November 1996. Consistent with its practice adopted in light of the risk, that human faecal material would be brought into the catchment in larger quantities than usual by run-off waters, the grower Barclay Oysters suspended its harvesting between 23 and 27 November. On 26 November, the results of laboratory tests of flesh from a dozen of its oysters, chosen randomly were negative for E. coli. bacteria. It continued to harvest and supply, after a process of cleansing (depuration). It supplied through its distributor, Barclay Distributors. Purchases of oysters from that distributor were made by members of Mr Ryan’s family on 21 December 1996 and 31 December 1996, and he consumed some oysters from each purchase. He became ill on 30 January 1997, and was later diagnosed as suffering from the HAV. There were subsequent notifications of similar diagnoses sufficient to characterise the occurrence as an outbreak of HAV, attributable to the consumption of oysters from Wallis Lake.
A considerable part of the evidence concerned better management practices conducted elsewhere in Australia and overseas. The expert evidence supported the initial undertaking of a sanitary survey of waters in which shellfish were grown, followed by further surveys and water testing to monitor changes in water quality and the presence of bacteria, indicative of the presence of faecal contamination and therefore also of possibly known viruses. It was accepted that it was not possible, on the current state of scientific or technical knowledge, to test directly for HAV. Flesh testing of oysters, whilst direct, was not reliable in a number of respects. The risk of the presence of the virus was ascertained by testing the water for bacteria, and in particular E.coli., and the extent of such contamination. Depuration generally was not considered effective to cleanse oysters of a virus and certainly not depuration undertaken for a period of 36 hours or less. A negative result for bacteria in the water was also understood to be undeterminative of the absence of the virus, as the virus could survive longer than the bacteria. Various ranges were provided, from weeks to three months or longer. In some instances, it had been discovered some years after a pollution event. The latter evidence was given in the context of the possibility that the virus could have survived elsewhere in the catchment area and be redistributed by water flow.
The principal purpose of a sanitary survey appears to be the classification of the waters according to the extent of any pollution first found and the establishment of a data base with which it was possible to monitor changes in water quality. Just what was involved in such a survey, and how variable the information sought and recovered might be, was a matter with which the Council took issue on the appeal; as was the conclusion, drawn by his Honour, that the sources of pollution might be identified by a survey. Where high levels of pollution were discovered in an area surveyed, harvesting from it was generally not permitted, or permitted only after the oysters grown there were relayed to approved waters for a period, or subjected to depuration which was proved to be effective. Where pollution conditions were present but beyond those conditions which formed the basis for a growing area’s classification, it would be closed and re-opening would not occur until the area returned to normal for a sufficient time to allow the shellfish to reduce the coliform group of indicator organisms or reduce other deleterious substances that may be present in the shellfish meat. Growing areas subject to predictable pollution events would have criteria for closure and re-opening.
No sanitary survey, or any extensive testing, had been undertaken in Wallis Lake. Heavy rainfall and run-off however occurred on a regular, if not frequent, basis. The expert evidence was that, in the absence of information to indicate the likely impact of pollution sources; with knowledge of the increase in the risk of human viral contamination after pollution events, such as heavy rainfall; and cognisant of the limits on the effectiveness of depuration; the only option which a prudent person would take would be to close the growing area to harvest until such time as testing confirmed oysters were likely to be fit for human consumption. One expert expressed the view that, for an oyster farmer, the cessation of harvesting after such an event was not just good management, but a necessity.
Testing conducted in early 1997 after receipt of notifications that the virus had been contracted, revealed faecal contamination which was widely dispersed throughout the estuary. It was accepted by his Honour that no one source or even sources could be pointed to and multiple HAV contamination required more than one infected person in the area. His Honour considered that the contamination came from a number of sources, probably land-based.
The case against the Council
No issue can be taken with his Honour’s findings of the Council’s knowledge of the potential for human faecal contamination of the lake and of the possible effects of that upon the oysters grown there. The Council had commenced some limited water testing for faecal coliforms in about 1989 and became aware that levels of contamination in some stormwater drains exceeded the accepted standard. It was also aware of an adverse effect upon the quality of the water at times of high rainfall and that this was attributable to a number of sources, as earlier mentioned. It was in fact aware of problems relating to septic and sewerage effluent. Some specific possible sources of this pollution such as public toilets and caravan parks could be identified, and some complaints in particular areas pointed to the overflow of septic effluent onto the ground. Other possible sources of this pollution were more general, being identified by reference to activities or areas.
No source or sources for the contamination in question could be identified, although it was accepted by the Council in submissions that the period of rainfall referred to above probably brought the contaminants into the lake. The Council took issue with his Honour’s findings as to what the Council should have done. Its principal submission was that a duty of care could hardly be said to arise if its content could not be specified. Further, the difficulty encountered in defining the content of the duty was that no measures could be pointed to which would have been effective to prevent the viral contamination. The duty, described by his Honour as that to take reasonable steps to “minimise” contamination, or the risk of it, was, in the Council’s submission, inconsistent with his Honour’s findings that if any of the three alleged tortfeasors - the Council, the State and the grower - had fulfilled their duty, the HAV outbreak would not have occurred.
It is clear from his Honour’s reasons that it was considered that there was much that the Council could have done. So much can, I think be accepted. That does not however, in my respectful view, answer the question whether it came under a duty to take action.
The Council’s submissions pointed to the lack of efficacy in what his Honour considered was necessary to be undertaken and to other evidence which highlighted the magnitude of any attempt to determine all sources of the pollution in question. His Honour considered that a sanitary survey could first be undertaken and thereafter the water quality monitored. In addition to the possible sources listed by his Honour, those of which the Council knew or ought to have known, it was submitted that the evidence disclosed that there were hundreds of points, in the very large catchment for the lake, which were potential sources for human faecal contamination. In addition to the difficulty of identifying all sources, the evidence clearly showed that water testing, whilst able to detect faecal contamination, could not detect the virus and that an absence of bacteria from the faecal contamination was not conclusive of the absence of the virus.
His Honour’s view was that, nevertheless, water testing was useful and should have been undertaken in conjunction with a sanitary survey. The duty that the Council came under was described as one to “take those steps that were reasonably open to the Council in order to minimise human faecal contamination of the lake”. The description seems to me necessarily to accept that the Council may not have been able to find all sources and that it may not have been able to prevent any outbreak. Some action, in the nature of good management practice, should however have been undertaken and this could have reduced the risk. In what follows, it would appear that his Honour considered that knowledge of a risk of harm gave rise to a duty to act, when it was within the Council’s power to do so.
A conclusion that the Council was under an obligation to use the powers it had to protect oyster consumers from injury cannot, in my view, be reached without ascertaining the nature of those statutory powers and what they were directed to. It will be recalled that in Pyrenees there was coincidence between the action which was necessary to prevent the fire, the powers given to the Council and the purpose for which they were given. In my view the provisions here referable to water pollution and public health, whilst no doubt sufficient to authorise the undertaking of surveys or water testing, were not such as to place the Council in a position where it was obliged to prevent the risk of injury, assuming for present purposes that it could have done so effectively. His Honour set out the relevant statutory provisions. The Local Government Act 1993 (NSW), pursuant to which the Council obtained its wider powers, had amongst its stated purposes the provision of the legal framework for an effective and environmentally responsible local government. More specifically, the Council had the power to approve the carrying out of “sewerage work”, which was defined to include works relating to septic tanks or effluent systems and Council sewers. In that connexion, it was to have regard to “the protection and promotion of public health”. It had power to require compliance to “relevant standards” relating to sewerage systems and to require that owners or occupiers of premises (a term widely defined) do or refrain from doing, specified things “to prevent environmental damage” or to cease an activity which was a threat to public health. It had the power to abate a nuisance, or to require that it be abated. It had powers of entry into premises in aid of its other powers. It had a general power to remove, disperse, destroy or mitigate the pollution of water, at the direction of the Environmental Protection Authority. There was, however, no statutory provision which had as its apparent purpose the prevention of contamination of oysters, the water in which they were grown, or the protection of consumers, and which required the Council to use one or more of its powers in a given circumstance to achieve those ends. The powers given to the Council, referred to above, which allowed it to undertake some action and which might have had some effect upon the risk in question may be contrasted with those in Pyrenees, by which the Council could be said to have been obliged to act so as to ensure the defective fireplace was remedied or not used. It may also be observed that the Council’s argument, concerning the lack of definition of the content of any alleged duty, reflects the lack of an obligation directed to a specific end.
On the view I have taken of the issue, whether the Council was under a relevant duty of care, it is not necessary for me to deal with other questions raised by the Council in submissions, which challenged the finding by his Honour that any surveys or testing it should have undertaken were not, apparently, beyond its financial capability. If the Council was under a duty to undertake a programme of a kind which could be reasonably identified, and it could not be said to have a choice whether to do so, any reasons it may have for not doing so, or deferring it, would need to be taken into account in considering whether its inaction constituted a breach of duty. This was not, the Council submitted, a matter specifically addressed at trial for the reason that what was necessary to be undertaken was not pleaded. Whether the Council was sufficiently appraised of the point during the questioning of witnesses does not need to be determined. In my view, such a duty did not arise. It is, however, necessary for me to refer briefly to the question of causation.
Had the Council undertaken the management strategies referred to by his Honour it would follow from the evidence that the best outcome would have been a reduction of the risk. A finding that it would actually “minimise” is not, with respect, apparent and in any event the Council could not have acted such as to prevent the viral contamination and the injury in question.
In order to involve liability, action or inaction must be sufficiently important and closely connected with the incident in question so as to make it reasonable, on a broad commonsense view, to regard its author as responsible for it in law: Fitzgerald v Penn (1954) 91 CLR 268, 275-6. As to the possibility that any inaction on the Council’s part could be said to have materially increased the risk of injury, the Council referred to the decision of Mason P in Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307, where his Honour held that the law did not equate that situation with one where it could be said the defendant materially contributed to it (as to which see March v Stramare (1991) 171 CLR 506, 532). It does not seem to me that the Council’s position is to be determined by such considerations, for in my view any general omission on its part could only be said to have left oyster consumers exposed to the same risk. The only relevant increase in risk arose not from its conduct, but from the effect of heavy rainfall. Tested another way, one could not say, on balance, that the performance of the duty identified would have averted the harm (Heyman’s case, 467, Mason J).
In my respectful view, the case against the Council should have been dismissed.
The case against the State
A substantial part of the argument relating to the State’s liability concerned its obligations to effectively undertake and enforce an Oyster Quality Assurance Programme for the area and in particular, whether what would be involved on its part was a quasi-legislative activity; by which was meant that it was “operational” in the public law sense. The need for it to take this and other action was said to arise because of the extent of knowledge it had acquired over some years about the risk of faecal contamination of the water and of viral contamination in oysters, including that acquired through various committees set up under State legislation, and also because of the extent of its involvement in the management and practice of the oyster industry. Issue was taken by the State with some of his Honour’s findings in this regard.
Once again, his Honour’s finding as to the State’s knowledge of the foreseeability of the risk of harm through the viral contamination of oysters could not, in my view, be attacked and the State rightly conceded this in its submissions. It pointed out, however, that the risk was one which was not very likely, since it had not occurred in the area despite oyster production over many years. The risk of faecal, and therefore viral contamination, was however known to be higher after heavy rainfall. As earlier indicated, this knowledge, combined with the State’s statutory powers and duties, is in my view, determinative of the existence of a duty of care and its breach. His Honour’s reasons disclose a primary concern with the State’s exercise of its management powers, although not to the extent contended for by the applicant. In that process his Honour also found that it had important responsibilities, one to prohibit the taking of oysters from the lake.
His Honour held that the State, like the Council, had a duty to exercise its powers of management in such a way as to minimise the risk of HAV infection of oyster consumers. His Honour, at an earlier point in his reasons, had determined that the State had responsibilities which its counsel had identified as matters which could have been dealt with in a local Oyster Quality Assurance Program, namely that sanitary surveys be undertaken; that harvesting cease after heavy rainfall, and that there be extreme caution in re-opening after closure. The latter two assume particular importance in my view.
His Honour accepted certain limitations upon the content and timing of such a programme. It is not necessary to detail those findings. His Honour considered that the responsibilities arose by reference to a number of facts, including the State’s statutory powers as well as those given to its agencies; its participation in management and committees involved in management planning relating to the environment and the health of the estuary; and its day to day control over the oyster industry. “Most importantly”, his Honour added, through the Minister for Fisheries the State had the power, at any time, to prohibit the taking of oysters from the lake.

Clause 12B(3)(a) of Div 4 of the regulations to the Fisheries Management Act 1994 (NSW) provided that an objective of the Quality Assurance Programs to be undertaken was to ensure that shellfish taken from estuarine waters was only sold for human consumption if the shellfish and surrounding waters met certain standards. The Act contained even more direct powers, cast in terms which suggest an obligation to act in certain circumstances. Pursuant to s 8 of the Act, the Minister was given power to prevent the taking of fish (including oysters) from any waters and to close fisheries. Other sections permitted the prohibition on the taking of oysters during a specified period if satisfied that they were likely to be unfit for human consumption and the declaration of quarantine areas (ss 189 and 183). There were other powers with respect to the pollution of waters provided by the Clean Waters Act 1970 (NSW) but it is not necessary to list them. Reference can however be made to the Food Act 1989 (NSW), which entitled the Director-General of the Department of Health to prevent the cultivation of oysters and to prevent damage generally to public health (ss 44 and 45). The assumption that the Fisheries Department, and not the Health Department, would act with respect to fish production and harvesting was addressed in evidence and submissions. In any event, the latter’s statutory powers are not addressed to a particular risk or a group of consumers, as I consider the provisions of the Fisheries Management Act to be.
The rainfall in the catchment in November 1996 created a known and significant risk of faecal contamination of oysters, carrying with it a risk of viral infection including HAV. The purpose of the powers given to the Minister to prohibit the harvesting of oysters from an area for a specified period clearly had, as its purpose, the protection of members of the public who might be consumers of oysters, where the Minister had reason to be concerned about the fitness of the oysters for human consumption, as he must have had here if properly informed. In my view, the State thereby came under a duty to exercise its powers and prohibit harvesting until the Minister could be assured of the likelihood of the oysters’ fitness for consumption. It was reasonably able to do so, as the letter from the NSW Shellfish Quality Assurance Program affecting a ban, after reports of the diagnosis of HAV in persons, shows.
In submissions the State complained that, in some respects, his Honour’s findings towards a conclusion of negligence went beyond the case as pleaded by its opponents. The power of the State to effect a closure was, however, squarely raised. There was, in any event, little by way of evidence which could have been addressed to it.
The State’s appeal should be dismissed.
The case(s) against the Barclay Companies
Negligence
A finding of a duty of care on the part of an oyster grower in the area requires considerations of the closeness of the relationship between it and consumers, and of any measures open to the consumers to protect themselves, in addition to the grower’s knowledge of the risk (Perre v Apand, 631; 659; 664). A duty not to expose consumers to the risk of virus is readily satisfied. The existence of a duty of care was conceded at trial. It was submitted on the appeal that this did not, however, spell out the content of the duty. In my view, the above statement of duty is self-explanatory and the means by which it was to be achieved clearly available.
His Honour the primary Judge referred to the evidence of Mr Barclay, that he was aware of the existence of potential sources of viral pollution of the lake; that depuration was not adequate to remove viruses; and that flesh testing would not necessarily detect viruses. His Honour referred to what the Barclays companies should have done and focussed, principally, upon the “significant contribution to risk reduction” it could have made. For the reasons I have given with respect to steps which his Honour found might have been undertaken by others, but which were not likely to amount to prevention or detection, I am respectfully unable to agree that this was the proper measure of the duty owed by the Barclays companies. His Honour however also identified, as an alternative to attempts to prevent contamination, and in the event that it proved impossible to obtain a virus-free growing environment, the requirement that the Barclays companies refrain from selling oysters for human consumption, except perhaps with a warning about the risk in eating them. Ultimately, it was the absence of warning when selling which his Honour held to constitute negligence.
It follows from the view I have expressed above concerning the State’s duty, and the basis for it, that even if the harvesting of oysters had not been prohibited in the circumstances prevailing, as it should have been, the Barclays companies should not have supplied oysters for sale until a sufficient period had elapsed by which the risk of contamination could be regarded as acceptable or tests sufficiently indicated that to be the case. That was the effect of the expert evidence. A cessation of harvesting and supply during and up to a few days after the rainfall could never suffice; nor could 36 hours of depuration thereafter. His Honour determined liability, ultimately, on the basis that a warning was not given of the danger which remained in consuming oysters from the area. The requirement of a warning would of course render nugatory the supply of oysters for sale.
Trade Practices Act Claims
His Honour’s conclusions and reasoning with respect to the claim against Barclays Oysters based upon provisions of the Trade Practices Act 1974 (Cth) are set out in the summary of Lindgren J, and it is not necessary for me to restate them. I propose only to state my views shortly.
His Honour found that ss 74B and 74D were further sources of liability in Barclay Oysters. Section 74B(1) provides that a corporation is liable to compensate a consumer who suffers loss as a result of goods manufactured (which may include produce grown) not being reasonably fit for their purpose, which purpose was made known to the corporation. The purpose here was of course human consumption, of which the grower was aware. Submissions on behalf of Barclay Oysters and some other growers focussed upon s 74B(2)(b), which provides that subsection (1) is not applicable to a circumstance where the consumer did not rely, or it was unreasonable for it to rely, on the skill or judgment of the corporation. In their submission, the question of reliance on the part of consumers cannot be assumed, as his Honour approached the matter.
In my view, it is plain that a consumer will necessarily rely upon the judgment of an oyster grower that oysters are fit for consumption. In the case of oysters, more so than other foods, it may be considered even more likely that consumers will harbour concerns but expect that the goods would not be available for sale if there was a real risk that they were contaminated. It follows from my reasons relating to liability for negligence, that the judgment Barclays Oysters exercised was when to return to harvesting. In my view, his Honour was correct in holding Barclay Oysters (but not Barclay Distributors) liable on this basis and under s 74D. That provision concerns the merchantable quality of goods and whether a purchaser would act reasonably in expecting that they met such standards.
In my view, Barclay Oysters’ appeal should be dismissed. So far as concerns the Barclays companies’ cross-claim against the Council, it should be determined by the primary Judge. As Lindgren J points out, that appears to have been accepted by those parties on the appeal.
The cross-appeal against Barclay Oysters
Section 75AD Trade Practices Act 1974 (Cth) provides a liability for compensation in a corporation which supplies defective goods manufactured by it and a person suffers injury as a result of the defect. Section 75AK(1)(c), however. provides that it is a defence to such a claim if it is established that the defect could not be discovered, having regard to the state of scientific or technical knowledge at the time of supply. His Honour held that the defence was available, since the only test capable of detecting the virus - flesh testing - would destroy the oyster. Discovery and supply were therefore mutually exclusive.
I would respectfully agree with his Honour’s conclusion that the defence was available. The evidence relating to flesh testing was that it was problematic; it often failed to detect a virus; it frequently gave false negatives; and it could only be undertaken by samples which, so far as concerned oysters, could not be assumed to be representative. It is in that latter sense that I understand his Honour to say that the only effective test was to destroy each oyster to be offered for sale. The test could not in any sense be regarded as a proper or sufficient means of detection. In my view, therefore, it could not be said that scientific knowledge was such as to enable the virus to be detected within the meaning of s 75AK.
Quantum and Apportionment
The simple answer, in my view, to the submission with respect to the award of $20,000 for general damages is that it could not be characterised as excessive, given the seriousness and potential outcomes of the virus; the stress associated with those factors; and the debilitating nature of the illness associated with the infection. So far as concerns the interest awarded, I agree with Lindgren J that the period over which the nursing care was provided would not require a further reduction from the agreed rate of 4 per cent. His Honour allowed interest on all heads of claim at 10 per cent and a reduction of $3,000 is necessary.
His Honour, the primary Judge, held that each of the respondents found to be liable should share the burden equally and, in principle, I can see no reason to doubt such an approach. That may, however, be affected by outstanding claims for contribution or indemnity, as Lee J has pointed out.
Conclusion
The appeal by the Council should be allowed on the basis that it was under no duty to prevent the injury suffered. The State and the grower Barclay Oysters were, however, obliged to act to ensure oysters potentially affected were not released to the public and so far as concerned the grower, the applicant can be taken to have relied upon its judgment and expected that oysters sold by it were fit for human consumption. Their appeals are allowed only to correct the amount allowed for pre-judgment interest.
I agree with the orders proposed by Lee J with respect to costs for the reasons given by his Honour; and with the other orders set out in the minute of orders.

I certify that the preceding forty four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.
Associate:
Dated: 9 August 2000
N 219 of 1999

Counsel for the Appellants (the Barclay
Companies) and the Cross-Respondent: Mr C R R Hoeben SC and Mr A Coleman

Solicitors for the Appellants
(the Barclay companies): Dunhill Madden Butler

Counsel for the First Respondents
(Grant Ryan and the representative parties)
and for Grant Ryan as Cross-Appellant: Mr T K Tobin QC and Mr J B R Beach

Solicitors for the First Respondents
(Grant Ryan and the representative parties)
and for Grant Ryan as Cross-Appellant: Slater & Gordon

Counsel for the Second Respondent
(the Council): Mr W H Nicholas QC and
Mr T G R Parker

Solicitors for the Second Respondent
(the Council): Coudert Brothers

Counsel for the Third Respondent
(the State of New South Wales): Mr P W Taylor SC and Mr M J Windsor

Solicitors for the Third Respondent
(the State of New South Wales): Crown Solicitor’s Office

N 234 of 1999

Counsel for the Appellant (the Council): Mr W H Nicholas QC and
Mr T G R Parker

Solicitors for the Appellant (the Council): Coudert Brothers

Counsel for the First Respondent
(Grant Ryan): Mr T K Tobin QC and Mr J B R Beach

Solicitors for the First Respondent
(Grant Ryan): Slater & Gordon

Counsel for the Second and Third
Respondents (the Barclay companies): Mr C R R Hoeben SC and Mr A Coleman

Solicitors for the Second and Third
Respondents (the Barclay companies): Dunhill Madden Butler

Counsel for the Fourth Respondent
(the State of New Wales): Mr P W Taylor SC and Mr M J Windsor

Solicitors for the Fourth Respondent
(the State of New Wales): Crown Solicitor’s Office

N 298 of 1999

Counsel for the Appellant
(the State of New South Wales): Mr P W Taylor SC and Mr M J Windsor

Solicitors for the Appellant
(the State of New Wales): Crown Solicitor’s Office

Counsel for the First Respondents
(Grant Ryan and the representative parties): Mr T K Tobin QC and Mr J B R Beach

Solicitors for the First Respondents
(Grant Ryan and the representative parties): Slater & Gordon

Counsel for the Second Respondent
(the Council): Mr W H Nicholas QC and
Mr T G R Parker

Solicitors for the Second Respondent
(the Council): Coudert Brothers

Counsel for the Third and Fourth
Respondents (the Barclay companies): Mr C R R Hoeben SC and Mr A Coleman

Solicitors for the Third and Fourth
Respondents (the Barclay companies): Dunhill Madden Butler

Counsel for the Sixth and Seventh
Respondents (MW & EA Sciacca Pty Ltd
and Tadeven Pty Ltd): Mr D J Fagan SC

Solicitors for the Sixth and Seventh
Respondents (MW & EA Sciacca Pty Ltd
and Tadeven Pty Ltd): Minter Ellison

Counsel for the Fourteenth Respondent
(Georges Oysters Pty Ltd): Mr K P Rewell and Ms S Thode

Solicitors for the Fourteenth Respondent
(Georges Oysters Pty Ltd): Henry Davis York

Date of Hearing: 30, 31 August 1999; and
1, 2, 3 September 1999

Date Last Submission Received: 17 September 1999

Date of Judgment: 9 August 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 219 OF 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 234 OF 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 298 OF 1999

BETWEEN:	STATE OF NEW SOUTH WALES APPELLANT
AND:	GRANT RYAN, SCOTT CALLAGHAN, KEVIN GOWER, DAVID HOLNESS, GEOFFREY BENNETT, BRYAN HOCKING, BROSOW HARDY FIRST RESPONDENTS GREAT LAKES COUNCIL SECOND RESPONDENT GRAHAM BARCLAY OYSTERS PTY LIMITED THIRD RESPONDENT GRAHAM BARCLAY DISTRIBUTORS PTY LIMITED FOURTH RESPONDENT CLIFT OYSTERS PTY LIMITED FIFTH RESPONDENT M W & E A SCIACCA PTY LIMITED SIXTH RESPONDENT TADEVEN PTY LIMITED SEVENTH RESPONDENT THE OYSTER FARMERS ASSOCIATION OF NEW SOUTH WALES PTY LIMITED EIGHTH RESPONDENT R A KING (WHOLESALE) PTY LTD NINTH RESPONDENT MANETTAS LIMITED TENTH RESPONDENT SHONID PTY LIMITED (TRADING AS “TIM & TERRY OYSTER SUPPLY PTY LIMITED”) ELEVENTH RESPONDENT VICTORIAN FROZEN FOOD DISTRIBUTORS PTY LIMITED (TRADING AS “RICHMOND OYSTERS”) TWELFTH RESPONDENT SMITHS OYSTER SERVICE PTY LIMITED THIRTEENTH RESPONDENT GEORGES OYSTERS PTY LIMITED FOURTEENTH RESPONDENT
JUDGES:	LEE, LINDGREN, KIEFEL JJ
DATE OF ORDER:	9 AUGUST 2000
WHERE MADE:	SYDNEY

Counsel for the Appellants (the Barclay Companies) and the Cross-Respondent:	Mr C R R Hoeben SC and Mr A Coleman
Solicitors for the Appellants (the Barclay companies):	Dunhill Madden Butler
Counsel for the First Respondents (Grant Ryan and the representative parties) and for Grant Ryan as Cross-Appellant:	Mr T K Tobin QC and Mr J B R Beach
Solicitors for the First Respondents (Grant Ryan and the representative parties) and for Grant Ryan as Cross-Appellant:	Slater & Gordon
Counsel for the Second Respondent (the Council):	Mr W H Nicholas QC and Mr T G R Parker
Solicitors for the Second Respondent (the Council):	Coudert Brothers
Counsel for the Third Respondent (the State of New South Wales):	Mr P W Taylor SC and Mr M J Windsor
Solicitors for the Third Respondent (the State of New South Wales):	Crown Solicitor’s Office
N 234 of 1999
Counsel for the Appellant (the Council):	Mr W H Nicholas QC and Mr T G R Parker
Solicitors for the Appellant (the Council):	Coudert Brothers
Counsel for the First Respondent (Grant Ryan):	Mr T K Tobin QC and Mr J B R Beach
Solicitors for the First Respondent (Grant Ryan):	Slater & Gordon
Counsel for the Second and Third Respondents (the Barclay companies):	Mr C R R Hoeben SC and Mr A Coleman
Solicitors for the Second and Third Respondents (the Barclay companies):	Dunhill Madden Butler
Counsel for the Fourth Respondent (the State of New Wales):	Mr P W Taylor SC and Mr M J Windsor
Solicitors for the Fourth Respondent (the State of New Wales):	Crown Solicitor’s Office
N 298 of 1999
Counsel for the Appellant (the State of New South Wales):	Mr P W Taylor SC and Mr M J Windsor
Solicitors for the Appellant (the State of New Wales):	Crown Solicitor’s Office
Counsel for the First Respondents (Grant Ryan and the representative parties):	Mr T K Tobin QC and Mr J B R Beach
Solicitors for the First Respondents (Grant Ryan and the representative parties):	Slater & Gordon
Counsel for the Second Respondent (the Council):	Mr W H Nicholas QC and Mr T G R Parker
Solicitors for the Second Respondent (the Council):	Coudert Brothers
Counsel for the Third and Fourth Respondents (the Barclay companies):	Mr C R R Hoeben SC and Mr A Coleman
Solicitors for the Third and Fourth Respondents (the Barclay companies):	Dunhill Madden Butler
Counsel for the Sixth and Seventh Respondents (MW & EA Sciacca Pty Ltd and Tadeven Pty Ltd):	Mr D J Fagan SC
Solicitors for the Sixth and Seventh Respondents (MW & EA Sciacca Pty Ltd and Tadeven Pty Ltd):	Minter Ellison
Counsel for the Fourteenth Respondent (Georges Oysters Pty Ltd):	Mr K P Rewell and Ms S Thode
Solicitors for the Fourteenth Respondent (Georges Oysters Pty Ltd):	Henry Davis York
Date of Hearing:	30, 31 August 1999; and 1, 2, 3 September 1999
Date Last Submission Received:	17 September 1999
Date of Judgment:	9 August 2000