Luck v Townsville City Council

[2001] FCA 468

FEDERAL COURT OF AUSTRALIA

Luck v Townsville City Council [2001] FCA 468

GAYE LUCK (FORMERLY KUPERMAN) v TOWNSVILLE CITY COUNCIL, WOLF SETZINGER, MICHAEL COLLARD, GRANT STEEN, STATE OF QUEENSLAND DEPARTMENT OF HEALTH, STATE OF QUEENSLAND DEPARTMENT OF ENVIRONMENT AND CHRIS MCNAMARA

V 541 OF 2000

DOWSETT J
26 APRIL 2001
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	V 541 OF 2000

BETWEEN:

GAYE LUCK (FORMERLY KUPERMAN)
APPLICANT

AND:

TOWNSVILLE CITY COUNCIL
FIRST RESPONDENT

WOLF SETZINGER
SECOND RESPONDENT

MICHAEL COLLARD
THIRD RESPONDENT

GRANT STEEN
FOURTH RESPONDENT

STATE OF QUEENSLAND DEPARTMENT OF HEALTH
FIFTH RESPONDENT

STATE OF QUEENSLAND DEPARTMENT OF ENVIRONMENT
SIXTH RESPONDENT

CHRIS MCNAMARA
SEVENTH RESPONDENT

JUDGE:	DOWSETT J
DATE:	26 APRIL 2001
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. These proceedings arise out of a tenancy agreement entered into by the applicant over residential premises, namely unit 7 at 12 The Avenue, Hermit Park in Townsville.  The tenancy agreement was executed on 20 March 1997.  The first respondent is the local authority for the area in which the unit is situated and the second, third and fourth respondents are employees.  The fifth and sixth respondents appear to be different departments of the Queensland Government.  The seventh respondent is an employee of the fifth respondent.  This is an application by the first, second, third and fourth respondents to strike out the statement of claim as against them and for other associated relief.

2. At some time after entering into possession, the applicant became concerned that there was fibreglass in the premises which was potentially injurious to her health.  On 7 and 10 July 1997 the applicant contacted the first respondent, asking that it intervene to investigate the matter and take steps in connection with it.  On 18 July a health inspector inspected the premises.  On 28 July the applicant was advised that any risk to public health was very low, if indeed there was any risk at all.  Notwithstanding this, on 30 July 1997, the applicant and other residents of the premises again requested intervention.  On 12 August they were advised that council inspections indicated that there was no risk to public health.  On 16 August another resident wrote to the first respondent seeking a further inspection, or rather denying that any inspection had yet been undertaken.  On 16 September the first respondent replied to the effect that an inspection had taken place and that there was no risk to human health.  The applicant alleges that she vacated the premises on 22 August 1997.  I should say that in associated proceedings, (V393/2000) the applicant alleges that she vacated the premises on 8 June 1997, returning on 25 July but residing in the garage. 

3. The applicant alleges that as a result of her occupation of the premises she was exposed and “will in the future be exposed” to toxic and hazardous substances emanating from the ceiling material of the premises.  She claims to have suffered serious impairment of her health as a result.  In par 24 of the statement of claim the applicant asserts that the various respondents “owed a duty of care to the Applicant, all the Applicant’s visitors, all inhabitants of the premises and the public environment, and in the circumstances, could reasonably foresee and knew or ought to have known” certain matters.  This duty of care is alleged to arise under the provisions of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), Disability Discrimination Act 1992 (Cth), National Occupational Health and Safety Commission Act 1985 (Cth), Health Act 1937 (Qld), Environmental Protection Act 1994 (Qld), Workplace Health and Safety Act 1995 (Qld), Building Act 1975 (Qld) and the Anti-Discrimination Act 1991(Qld).  No further particulars are provided as to the provisions of any of these Acts which may apply or of the circumstances giving rise to any such duty.

4. It is said that the respondents ought to have known that the premises were unfit for occupation, that the contaminated premises were injurious to health and to the environment, that failure to make proper inspection could cause injury and that the applicant was relying upon the respondents as experts:

   (i)to exercise all due care, skill and diligence in performing statutory duty and making any representations and giving advice;

   (ii)to know that the Applicant was likely to act upon any representation;

   (ii)to know that if the Applicant acted upon the representations and they proved to be untrue, the Applicant would suffer injury, loss and damage.

5. It is also alleged that:

   … failure to serve an abatement notice on the Owner/Landlord would result in, continued exposure to the hazardous and carcinogenic contaminant by the Applicant, the Applicant’s visitors, all inhabitants and the public environment and could cause an injury of the kind which is suffered by the Applicant … .

6. It is further alleged that in the circumstances the respondents were obliged to:

   … respond to notifications of serious environmental harm …; to ensure all reasonable and practicable measures are taken to protect environmental values …; to monitor the impact of the release of contaminants …; to exercise all due care, skill and diligence in performing statutory duties …; to make proper inspection, …; to take any or any adequate precautions …; not to expose the Applicant, all the Applicant’s visitors, all inhabitants of the premises and the public environment to a risk of danger or injury; to give ... adequate or timely warning as to the dangers associated with using the premises; to carry out statutory duties without discrimination.

7. In par 26 it is alleged that the applicant relied upon the truth of representations made by the respondents and was further exposed to serious health hazards and was unable:

   … to obtain condemnation of the premises and thereby unable to seek an order of the court to terminate residential lease and compensation for professional decontamination and relocation.

8. It is said that the representations were made in trade or commerce within the meaning of that term in the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1989 (Qld) and that the respondents engaged in conduct which was misleading and deceptive and in contravention of Parts IV and V of the Trade Practices Act and the Fair Trading Act.  It is also alleged that the representations were negligent.  It is then alleged that by reason of the various breaches of contract, breaches of duty of care, negligence, misrepresentation and unconscionable, misleading or deceptive conduct in trade or commerce, the applicant has suffered injury.  Particulars of the injury constitute a long list of health complaints.

9. Clearly enough, there is no claim in contract against the first, second, third or fourth respondent.  To the extent that the applicant pleads that the first respondent or any of its employees is in breach of any statutory duty (excluding misleading and deceptive conduct) there is no sufficient identification of the appropriate statute, nor of the facts giving rise to the duty or breach thereof.  I am of the view that no cause of action for breach of statutory duty is made out.  There is also nothing to justify any allegation of unconscionability.  That leaves only the issues of misleading or deceptive conduct and negligent misstatement. 

10. The only “representations” appear to be as to the safety of the premises.  Such statements were made on 28 July, 12 August and 16 September.  According to the pleading, the applicant vacated the premises on 22 August 1997 although, as I have pointed out, in other proceedings she alleges that she vacated at an earlier date, prior to any representation by the council or its employees.  Any action based upon representations by the council or its employees must therefore depend upon injury having been suffered as a result of continued occupation from 28 July 1997 (when the first respondent advised that the risk, if any, was very low) until the applicant vacated the premises on 22 August as she alleges in these proceedings.  Not only is it difficult to see how such a short period of occupancy could have caused the serious injury to her health of which she complains, but it is also most unlikely that she will be able to demonstrate that she relied upon the council’s advice.  I also see no reason why I should overlook her inconsistent allegation in the other proceedings.  This is not a case of a party who has acted on a false representation.  It is rather a case in which the alleged representor has simply not agreed with the opinion of the applicant as to relevant facts. 

11. A further problem which the applicant faces in this regard is her assertion that the first respondent was acting in trade or commerce.  It seems most unlikely that in acting as a local authority with responsibility for health matters it was so doing. However I assume this matter in her favour for present purposes.

12. The statement of claim is further complicated by the applicant’s repeated references to the health of other residents of the premises, visitors and the public generally and to the environment.  These allegations further confuse the otherwise imprecise pleading of circumstances giving rise to a duty of care. 

13. In summary the pleading:

    ·fails to allege any contract as between the applicant and any of the first to fourth respondents;

    ·fails to allege any facts creating a duty of care other than the first respondent’s position as a local authority, the second, third and fourth respondents’ respective positions as employees of the first respondent and the applicant’s expectations;

    ·demonstrates that the applicant did not rely on any representation or advice received from the first to fourth respondents;

    ·appears to base the allegation of loss upon an assertion that the applicant suffered serious injury to health as a result of her remaining in the premises from 28 July until 22 August 1997, which allegation is, in any event, inconsistent with her pleading in an associated matter; and

    ·is rendered embarrassing by gratuitous references to duties of care owed to visitors and the public in general and to the environment. 

14. In the circumstances I consider that the statement of claim is vexatious and embarrassing and fails to disclose any cause of action as against any of the first to fourth respondents.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             26 April 2001

There was no appearance for the Applicant:
Counsel for the First, Second, Third and Fourth Respondents:	Mr Perry
Solicitor for the First, Second, Third and Fourth Respondents:	Bowdens Lawyers
Date of Hearing:	7 December 2000
Date of Judgment:	26 April 2001