New South Wales v West - [2008] ACTCA 14

STATE OF NEW SOUTH WALES v WAYNE KARL WEST & ANOR
[2008] ACTCA 14 (5 September 2008)

APPEAL – leave to appeal from an interlocutory judgement dismissing an application to strike out the statement of claim – whether the statement of claim discloses no reasonable cause of action – whether no amendment to the statement of claim could disclose any reasonable cause of action – cause of action in negligence – claim against the Crown in right of State of New South Wales – relationship between the pleading of material facts and the provision of particulars – whether the material facts relied upon give rise to a duty of care.

NEGLIGENCE – whether and when a statutory authority owes duty of care in the exercise of statutory power – statutory regime – purpose served – control – knowledge of risk – vulnerability of the plaintiff – whether the imposition of a duty to act or to make a decision not to act is inconsistent with, or distort the functions of, the statutory body – intended sphere of protection - political sanctions – where the duty to act may be capable of enforcement only by reference to government policy – decisions on resource allocation - whether the duty is not capable of producing liability by reason of the operation of s128(1) of the Rural Fires Act 1997 (NSW) – scope of Crown immunity – onus of proving acts or omissions in good faith.

Rural Fires Act 1997 (NSW), ss 3, 8, 9, 11, 28, 44, 64, 125, 127, 136
Mental Health Act1986 (Vic)
Local Government Act 1993 (NSW), s 731
Court Procedures Rules 2006 (ACT), rr 406, 425, 432, 480, 482, 507, 1147
National Parks and Wildlife Act 1974 (NSW)
Court Procedures Act 2004 (ACT), ss 7, 21, 22
Statute Law (Miscellaneous Provisions) Act (No 2) 1997 (NSW)
Bush Fires Act 1949 (NSW), s 48
Civil Liability Act 2002 (NSW), ss 59-66 Part 9
Rural Fires Act 1997 (NSW)
Medical Practitioners Act 1938 (NSW), s 27
Rural Fires Bill 1997 (NSW) [Act 1997 No 65]

Gardner v Northern Territory of Australia [2004] NTCA 14
Anns v Merton London Borough Council [1978] AC 728
Puntoriero v Water Administration Ministerial Corporation (2000) 199 CLR 575
Kent v Griffiths [2001] QB 36
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Lowns v Woods (1996) Aust Torts Reports 81-376
Pyrenees Shire Council v Day (1998) 192 CLR 330
Timbs v Shoalhaven City Council (2004) Aust Torts Reports 81–738
Hunter Area Health Service v Presland (2005) 63 NSWLR 22
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Brodiev Singleton Shire Council (2004) 206 CLR 512
Kirkland-Veenstra v Stuart & Ors [2008] VSCA 32
Shaloub v Buchanan [2003] NSWSC 681
Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Board of Fire Commissioners v Ardouin (1961) 109 CLR 105
Southern Cross Exploration NL v Fire & All Risk Insurance Co Ltd (1985) 2 NSWLR 340
Bruce v Odhams Press Ltd [1936] 1 KB 697
State of New South Wales v Klein (2006) Aust Tort Reports 81-862
O’Malley v Keelty, Australian Federal Police Commissioner [2004] FCA 1688
Regina v Commissioner of Police of the Metropolis; Ex parte Blackburn [1968] 2 QB 118
Thompson v Vincent [2005] Aust Torts Reports 67,674
Rylands v Fletcher [1866] L.R. 1 Ex. 265
Hargrave v Goldman (1963) 110 CLR 40
Goldman v Hargrave (1966) 115 CLR 458
Australian Safeway Stores Propriety Limited v Zaluzna (1987) 162 CLR 479
Dovuro Pty Limited v Wilkins (2003) 215 CLR 317
Capital & Counties PLC v Hampshire County Council [1997] QB 1004
Anns v Merton London Borough Council [1978] AC 728
Jaensch v Coffey (1984) 155 CLR 549
The Council of the Shire of Sutherland v Heyman (1985) 157 CLR 424
Donoghue v Stevenson 1932 AC 562
Hill v Van Earp (1997) 188 CLR 159
Perre v Apand Pty Limited (1999) 198 CLR 180
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Sullivan v Moody (2001) 207 CLR 562
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Brodie v Singleton Shire Council (2001) 206 CLR 512

Eburn, M ‘A case study of tort liability for fire damage’, (2007) 22(1) Australian Journal of Emergency Management 44
Eburn, M Emergency Law (2^nd Ed, The Federation Press, 2005)
NSW Rural Fire Service Manual dated 1 September 1999

Rural Fires Bill 1997 (NSW) [Act 1997 No 65], Explanatory Note
Second reading speech, Rural Fires Bill 1997 (NSW), Legislative Assembly, 28 May 1997 (Bob Debus, Minister of Corrective Services, Minister for Emergency Services, and Minister Assisting the Minister for the Arts)

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 21 - 2007
No. SC 10 of 2006

Judges: Higgins CJ, Penfold and Graham JJ
Court of Appeal of the Australian Capital Territory
Date: 5 September 2008

IN THE SUPREME COURT OF THE       )          No. ACTCA 21 - 2007
  )          No. SC 10 of 2006
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STATE OF NEW SOUTH WALES
Appellant

AND:WAYNE KARL WEST
First Respondent

AND:LESLEY ANNE WEST
Second Respondent

ORDER

Judges:  Higgins CJ, Penfold and Graham JJ
Date:  5 September 2008
Place:  Canberra

THE COURT ORDERS THAT:

Leave to appeal from the judgment of Justice Connolly given on 6 July 2007 be granted.

Leave be granted to the applicant to file a Notice of Appeal in accordance with the draft Notice of Appeal dated 11 July 2007.

The appeal be dismissed.

IN THE SUPREME COURT OF THE       )          No. ACTCA 21 - 2007
  )          No. SC 10 of 2006
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STATE OF NEW SOUTH WALES
Appellant

AND:WAYNE KARL WEST
First Respondent

AND:LESLEY ANNE WEST
Second Respondent

Judges:  Higgins CJ, Penfold and Graham JJ
Date:  5 September 2008
Place:  Canberra

REASONS FOR JUDGMENT

HIGGINS CJ:

I have had the advantage of reading in draft form the reasons for decision of Graham J.

His Honour has most usefully and clearly set out the history of the matter. The particular issue was whether the appellant owed a duty of care to the respondent landowners to protect them from loss or damage through the agency of the officers of the Rural Fire Service who, it is alleged, failed to exercise their statutory powers under the Rural Fires Act 1997 (NSW) (‘the Rural Fires Act’) with reasonable care, so that a fire, referred to as the McIntyre’s Hut fire, spread and damaged their property.

It is, of course, more difficult to establish liability for inaction as opposed to negligent action. There is also an issue as to whether, even if a duty would otherwise be imposed, such as here alleged by the respondents, it is nevertheless not capable of being productive of liability by reason of the operation of s 128(1) of the Rural Fires Act.

It is also the case that, generally, action or inaction by government agencies give rise to political rather than legal sanctions. I acknowledge, in that respect, the authorities referred to by Graham J at [177] and following.

I would observe however that in Gardner v Northern Territory of Australia [2004] NTCA 14, a case factually analogous to the present, recovery was denied but on the basis of failure to prove a breach of a duty of care rather than a denial of its existence. Certainly such a duty was denied in Anns v Merton London Borough Council [1978] AC 728 but not, as Kirby J noted in Puntoriero v Water Administration Ministerial Corporation (2000) 199 CLR 575, 597–8, on the basis of any supposed distinction between negligent action and negligent inaction.

However, in Kent v Griffiths [2001] QB 36 an ambulance service was held to owe a duty of care to a potential patient to respond to an emergency call.

Duties have been recognised as imposed on statutory authorities at common law (see, for example, Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1). In that case, the Committee had a common law duty to lay down standards to protect stevedores from risk arising from hazardous practices by employers it had statutory power to regulate.

It is also generally true that there is no general legal duty to go to the aid of another in distress or peril, but additional factors may be called in aid to give rise to such a duty. The case of Lowns v Woods (1996) Aust Torts Reports 81-376 exemplifies such a situation.

A statutory authority, such as the Rural Fire Service, is in a situation where, as Graham J points out in [220] – [223], the duty to act may in many circumstances be capable of enforcement only by reference to government policy.

Thus, if the Rural Fire Service had decided to devote resources to other areas of the State other than those proximate to the respondents, that decision would not be productive of a duty of care of the kind alleged.

It is accepted by the respondents that their statement of claim must be re-pleaded. So much was conceded before Connolly J. The question is whether the material facts relied upon, set out by Graham J [234], give rise to a duty of care by the Rural Fire Service to the respondents.

It may also be noted that, in attempting fire suppression, the Rural Fire Service had appropriated the respondents’ available water resources, thus increasing, even if only marginally, their vulnerability.

It is also apparent from the assumed facts that the appellant, through the Rural Fire Service, was aware of the risk to the respondents if fire suppression action was not undertaken.

It seems to me that two issues arise which ought not to be conflated. The first is whether the Rural Fire Service had a duty to the respondents to take reasonable care to suppress the fire foreseeably threatening the respondents’ property. It may, of course, be that, even if there was such a duty to the respondents, other priorities and resources rendered it not unreasonable for it to refrain from acting. However, that goes to the issue of breach, not duty.

The Court has been referred to three other decisions.

Gardner v Northern Territory (supra) does not deny the existence of a duty to act reasonably on the part of fire fighting authorities, but did find that there was no negligence demonstrated (for a discussion of the case see Eburn, Michael, ‘A case study of tort liability for fire damage’, (2007) 22(1) Australian Journal of Emergency Management 44).

Nevertheless, in Pyrenees Shire Council v Day (1998) 192 CLR 330 and Timbs v Shoalhaven City Council (2004) Aust Torts Reports 81–738, the Councils were held liable for failing to exercise statutory powers; in the first case to remove a fire hazard; in the second to remove a dangerous tree.

In each case officers had inspected the premises in question and, by doing so, assumed a degree of responsibility to assess the situation and remove or ameliorate the hazard. That was sufficient to enliven a legal duty of care.

In Hunter Area Health Service v Presland (2005) 63 NSWLR 22, a psychiatric patient was discharged rather than being compulsorily detained. He killed his brother’s fiancée. He did so deliberately as a result of his mental dysfunction. His claim, however, was for damages for his consequent detention as a forensic patient.

In the Court of Appeal, Spigelman CJ, Sheller JA and Santow JA all agreed that the authority had a duty to act to protect either the plaintiff or a potential victim from harm. Sheller and Santow JJA did not consider that that duty extended to the indirect harm suffered by the respondent/plaintiff.

Spigelman CJ set out, in terms that both Sheller and Santow JJA agreed with, the test for determining whether a common law duty rested upon the Hunter Area Health Service to act positively in the circumstances. His Honour noted and adopted the test propounded by the High Court in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540. That is, per Gummow and Hayne JJ at 597-8:

[149]An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multi-faceted inquiry. Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial. It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute.
(footnotes omitted)

That was distilled by his Honour into four principal considerations (at [11]):

For the purpose of determining whether the relationship between a statutory decision-maker and an individual is such as to create a duty of care with respect to the exercise of the power, a court must consider a range of circumstances. As the above passage from the joint judgment of Gummow J and Hayne J indicates, four matters are of significance:
·the purpose to be served by the exercise of the power;
·the control over the relevant risk by the depository of the power;
·the vulnerability of the persons put at risk; and
·coherence.

As to the first consideration, the question is whether (at [12]):

… the person asserting the existence of a duty is a person whose welfare or safety is to be protected by the exercise of the power.

That, if answered in the affirmative, supports the existence of a duty.

The factor of control depends on whether the repository of the power has “… a significant and special measure of control over the safety of the person or property of citizens …” (Brodiev Singleton Shire Council (2004) 206 CLR 512, 559 [102]).

For the Rural Fire Service each of those factors must be resolved in favour of the existence of a duty to act. A bushfire hazard is clearly a danger to persons and their property and only an organised, trained and equipped service such as the Rural Fire Service could have any prospect of averting danger from a serious bushfire.

The vulnerability of the prospective victims is self-evident, particularly if they are or may be assumed to lack the resources to protect themselves.

The final matter is more difficult. Would the imposition of a duty to act or to make a decision not to act be inconsistent with, or distort the functions of, the statutory body?

If it was clear that acting negligently or negligently failing to act would expose the agency to legal action that would not, in the opinion of Spigelman CJ, have any arguable effect if the clearly focussed objective of avoidance of physical harm to the patient or another was concerned, which clearly falls within “the intended sphere of protection” (at [29]).

The issue of “coherence” his Honour approached in the following terms:

[35]On the issue of coherence, there is no direct inconsistency or incompatibility between the statutory duty and a common law duty. Nevertheless, as noted above, there may still be inappropriate tension if a common law duty were superimposed on the statutory powers.
[36]The appellants contend that it is undesirable to create a situation in which medical practitioners or medical superintendents are given any incentive to practice a form of defensive medicine. The fear of civil liability may create an increased likelihood that a person will be the subject of an involuntary admission. Relevantly, the focus of the statutory inquiry on “serious physical harm”, could be distorted if the decision making process takes into account the full range of categories of foreseeable damage that may be recoverable in tort.
[37]There is evidence to suggest that in many spheres of medical practice the fear of liability has led to defensive practices. Nevertheless, the court ought to be slow to conclude that a medical practitioner, acting true to his or her profession, would permit the process of formulating a professional opinion to be distorted by the prospect of civil liability. In this regard, any such tendency would already exist if a common law duty of care existed in favour of the mentally ill person, with respect to self-inflicted harm, or in favour of third parties upon whom the mentally ill person may inflict serious physical harm. In each of these cases, as I have indicated above, the case for imposing civil liability is stronger.

Sheller JA did not differ from Spigelman CJ on his Honour’s general exposition of the duty of care, merely as to the occasion for it. He declined to extend the duty of care to the consequences of a failure or refusal to detain the respondent, namely, that the respondent was, after killing his victim, detained as a forensic patient.

Santow JA had no doubt that an action would lie for damage done to the respondent’s victim but not to the respondent, whilst agreeing, also, with Spigelman CJ’s exposition of principle.

His Honour, as did Sheller JA, did not consider the duty to embrace the risk of detention of the respondent. Nor was that consequence “properly attributable” to the failure to compulsorily detain the respondent. In any event, to find a duty would cause a distortative fear of legal action.

I have to say that I prefer the conclusions arrived at by Spigelman CJ. It does seem to me to be a declaration of lack of faith in the integrity of relevant public officials to assume they will refrain from doing their duty because their employer might suffer legal liability if they make a negligent choice, even more so where that extends merely to a consequential rather than immediate effect.

The authorities do not rest there. Analogous, save for the indirect nature of the damage complained of, is the case of Kirkland-Veenstra v Stuart & Ors [2008] VSCA 32.

Police officers found Mr Veenstra, the plaintiff’s spouse, in a vehicle, apparently planning suicide. Police had power to detain him if they formed that view. They failed to do so.

The trial judge denied a duty of care to prevent Mr Veenstra’s subsequent suicide and consequential nervous shock to the plaintiff, the deceased’s widow.

Warren CJ adopted the principles proposed by McHugh J in Crimmins (supra) and of Spigelman CJ in Presland (supra). The question, her Honour considered, was whether a duty of care existed to exercise reasonably the statutory power of detention for the purpose of the protection of those whom the statute sought to protect (at [39]).

Her Honour further concluded that Pyrenees (supra) was analogous. The duty arose, adopting the judgment of McHugh J, in that case, from (at [43]):

… the extensive powers of the council given to it to prevent fires; that the council had ‘entered the field’ by the inspection of the property and the letter sent to the owners of the premises; the council’s knowledge of the danger; and its imputed knowledge that residents generally relied upon it to protect them from such dangers.

That, her Honour considered, was almost on all fours with the police officers’ position in relation to Mr Veenstra.

It is equally analogous with the position of the Rural Fire Service in relation to the McIntyre’s Hut fire and its potential to threaten the respondents’ property.

That there is a duty, of course, does not assert that the failure to act was negligent, nor, even if it was negligent, that it was a cause of the damage sustained. It may be that, even if all reasonable steps had been taken to suppress the fire, the damage would have been sustained. However, those are questions of fact to be determined at trial.

Her Honour then considered whether a duty of care was enlivened in the circumstances.

First, it was reasonably forseeable that if the power to detain Mr Veenstra was not exercised, he might attempt suicide.

Second, the Mental Health Act1986 (Vic) (‘Mental Health Act’) gave the officers the powers and they had the resources to detain Mr Veenstra if he was considered to be at risk of self-harm.

Third, as a person who appeared to be mentally disturbed, as evidenced by his apparent contemplation of suicide, Mr Veenstra was vulnerable to harm from which he could not protect himself.

Fourth, the officers were aware of the risk.

Fifth, the exercise of the statutory power was an operational matter not a policy function. The distinction would be between deciding whether police should be empowered to detain such persons and the decision, when so empowered, to do so.

Sixth, the imposition of a duty of care, the preceding matters favouring it, was not precluded by the terms and the objectives of the Mental Health Act. One of those objectives was to protect the health and safety of mentally ill persons.

The next question was the point at which the duty was enlivened. That, in her Honour’s opinion, was at the point the officers became aware that Mr Veenstra was at risk of self-harm. That did not, of course, mean they had to exercise their powers, merely that it might be a breach of their duty not to do so. As her Honour said (at [73]):

Breach is a question of fact determined by what was subjectively known and what was reasonable in the circumstances.

That case had the additional issue of damage sustained by the plaintiff, as spouse of the deceased, in coming across his body immediately after his suicide.

Maxwell P agreed, succinctly opining (at [111]):

In the present case, the respondents had ‘entered upon the exercise of statutory powers’ in the sense that they were - quite properly – considering whether or not to exercise the power which they knew they had. To impose a duty to exercise reasonable care in that setting is in no way to ‘constrain’ the proper performance of their functions under the Act.

Chernov JA dissented. Such a duty was, his Honour considered, inconsistent with the lack of a duty to protect a person from self-harm at common law and to the scheme of the Mental Health Act which created a duty, not to the deceased, but to the public generally.

I consider the approach of the majority to be a more correct exposition of the law.

It follows that I would respectfully differ from Graham J insofar as his Honour’s reasoning is to the contrary.

That does not, however, conclude the issue. It was the appellant’s contention that, whatever may be the position otherwise, the express provisions of the Rural Fires Act precluded any duty or, at least, provided a legislative bar to suit so that, given the appellant will rely upon that bar, amendment to assert such a cause of action would be futile. That contention relies upon the provisions of s 128 of that Act, that is:

128 Protection from liability
(1) A matter or thing done or omitted to be done by a protected person or body does not, if the matter or thing was done in good faith for the purpose of executing any provision (other than section 33) of this or any other Act, subject such person personally, or the Crown, to any action, liability, claim or demand.
(2)In this section:
"protected person or body" means the following:
(a)the Minister,
(b) the Commissioner and any person acting under the authority of the Commissioner,
(c)any member of the Service,
(d)a member of the Advisory Council or Bush Fire Co-ordinating Committee,
(d1)a member of a Bush Fire Management Committee,
(e)the Commissioner of NSW Fire Brigades, the commissioner constituting the Forestry Commission, the Director-General of National Parks and Wildlife and any person acting under the authority of those persons,
(f)an interstate fire brigade acting in pursuance of section 43.

Note:See section 731 of the Local Government Act 1993 in respect of protection from liability of councils, councillors and employees of councils.

Clearly each of the persons alleged to have acted or failed to act to protect the respondents’ property is, or was, a “protected person or body”. The Crown, that is, the State of New South Wales, is the defendant in these proceedings.

The immunity provision is similar in terms to s 731 of the Local Government Act 1993 (NSW).

In interpreting that provision, Levine J in Shaloub v Buchanan [2003] NSWSC 681 considered whether the immunity applied to allegedly defamatory statements.

His Honour noted that the provision was intended to provide legal protection for persons, in that case public office holders and their agents or employees “in the discharge of that office” (at [10]).

Reference was made to Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105 in relation to an analogous provision. There Kitto J, at 116, warned that:

… [the] presumption therefore arises that the Legislature, in enacting it, has chosen its words with complete precision, not intending that such immunity, granted in the general interest but at the cost of individuals, should be carried further than a jealous interpretation will allow.

In other words, such provisions are to be given that interpretation which least deprives the individual of lawful remedies otherwise available to him or her. Thus Levine J did not find that immunity would extend to slander uttered during a debate on a development application. As his Honour viewed it (at [13]):

The general outline of the area of principle points to the extraordinary difficulties lying in the path of the defendant in his present motion. It is not known, for example, whether in fact there is an express power given to councillors to speak in a debate over and above the availiability of any express power merely to vote on the motion that is before the Council. If the defendant has any power to speak or authority so to do, does it arise from some general power or as a matter of general law? These questions are in contradiction to the implication of a power to that which was done in purported performance of the duty being something which the person performing the act, apart from the statute, was otherwise lawfully entitled to do. All of this points to both a legal and factual ambience that has yet to be established.

Section 731, it is true, refers only to immunity for “things done” rather than omissions. Whilst a failure to act is less likely to attract liability it can, in my view, amount to a “thing done”. It seems unlikely that an omission would be less protected than an act performed.

Accordingly, in approaching s 128 of the Rural Fires Act, it seems to me that it is intended to make it clear that it extends the immunity to both acts and omissions. That omission on the part of emergency services might well attract liability, though it may have been at one time doubted that it could, is clearly open from the example of Lowns v Woods (supra) as well as the cases of Presland and Kirkland (supra). It follows from the abolition of any arbitrary distinction, at one time thought to exist, between misfeasance and nonfeasance.

There is some question as to the scope of the Crown immunity conferred by s 128. In my view, the scope and effect of immunity proved at trial depends on the facts and circumstances should that immunity be relied upon. The appellant would carry the onus, should it be in issue, of establishing that it acted or omitted to act in good faith.

Accordingly, I do not agree that the respondents’ case is not able to succeed on the allegations relied upon by them. As I have noted, it is not for the respondents to allege or prove lack of good faith. Their cause of action is established if negligence is proved, though such a case is not without difficulty. If it is so proved, the appellant may seek to rely on s 128 and must then prove that the act and omissions causative of the loss and damage to the respondents were done or omitted to be done “in good faith”, whatever that may, in context, mean.

In the result I would grant leave to appeal and to file the Notice of Appeal in accordance with the draft Notice of Appeal dated 11 July 2007 but dismiss the appeal.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 5 September 2008

IN THE SUPREME COURT OF THE       )          No. ACTCA 21 - 2007
  )          No. SC 10 of 2006
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STATE OF NEW SOUTH WALES
Appellant

AND:WAYNE KARL WEST
First Respondent

AND:LESLEY ANNE WEST
Second Respondent

Judges:  Higgins CJ, Penfold and Graham JJ
Date:  5 September 2008
Place:  Canberra

REASONS FOR JUDGMENT

PENFOLD J:

INTRODUCTION

I have read in draft form the reasons of both Higgins CJ and Graham J. The background to this matter is set out in the reasons of Graham J.

On 6 July 2007, on application by the first defendant in the substantive proceedings, Connolly J made the following orders:

(a) The application to strike out the statement of claim be dismissed.

(b) The first defendant pay the plaintiffs’ costs of the application.

This matter consists of an application for leave to appeal from those orders, and the appeal itself, which were heard together.

The appellant asks this court to set aside Connolly J’s orders and to make the orders sought from Connolly J. As conceded by counsel for the appellant at the hearing, to obtain both the striking out of the statement of claim and the summary dismissal of the proceedings, the appellant needs to establish both that the statement of claim “discloses no reasonable cause of action” (Court Procedures Rules 2006 (ACT), r 425(1)(a)) and that no amendment of the statement of claim could disclose any reasonable cause of action.

LEAVE TO APPEAL

The first matter to be decided is the application for leave to appeal. If leave is not granted, then the respondents’ action remains on foot, and the substantive issues argued in the appeal hearing remain to be determined in a trial of that action. If it is true that the respondents’ claim is ultimately going to fail because the law does not recognise any duty of care in the circumstances the subject of this case, then there may be some efficiency, of benefit both to the parties and the broader community, in dismissing the proceedings without a full trial. However, it is not clear to me that a matter as complex as this one, and of such broad significance (not just to the parties in this case), is best resolved through argument in an appeal on a procedural application. On that basis, I might have been minded simply to refuse leave to appeal and leave the matters covered in this appeal to be argued in the trial and, if necessary, on appeal from the decision following the trial. However, the substantive issues having been argued, it seems appropriate for me to agree to a grant of leave and comment briefly on some of those substantive issues.

THE APPEAL

The substantive issues in the appeal can be narrowed down to two fundamental questions.

First, does the statement of claim disclose any duty of care by the defendant to the plaintiffs and, as a secondary question, if it does not in its current form, is there any scope for re-pleading the action so as to disclose any such duty?

Secondly, if there is a duty of care disclosed, or if such a duty may conceivably be disclosed through a re-pleading, is the action in any case futile because of s 128 of the Rural Fires Act 1997 (NSW) (the Rural Fires Act)?

Is there a duty of care?

It is apparent from the range of authorities quoted by Higgins CJ and Graham J in their judgments that the current Australian position on the duty of care owed by statutory authorities in general is not straightforward, and it is no surprise that the principle of “coherence” in the law of negligence has been identified as a significant factor in examining novel problems (see, for instance, Sullivan v Moody (2001) 207 CLR 562 at [53] and [55], quoted by Graham J at [203]).

The case of Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 (Graham Barclay Oysters) is a useful starting point from which to examine the common law liabilities of a statutory body whose role is established by legislation. The respondents can take little comfort from Gleeson CJ’s conclusion at [32] that:

A legislative grant of power to protect the general public does not ordinarily give rise to a duty owed to an individual or to the members of a particular class.

In the same case, however, McHugh J set out matters to be examined by a court in deciding whether a public authority owed a plaintiff a duty of care, as follows (at [84]-[85]):

Where a plaintiff claims that a public authority owed him or her an affirmative duty of care in a situation that has not yet been recognised by the common law, the court must examine a number of matters to determine whether the duty existed ….
·   Would a reasonable public authority reasonably foresee that its act or omission, including a failure to exercise its statutory powers, might result in injury to the plaintiff or his or her interests?
·   Was the authority in a position of control and did it have the power to control the situation that brought about the harm to the injured person?
·   Was the injured person or his or her interests vulnerable in the sense that the injured person could not reasonably be expected to adequately safeguard himself or herself or those interests from harm?
·   Did the public authority know, or ought it to have known, of an existing risk of harm to the plaintiff or, in some cases, to a specific class of persons who included the plaintiff (rather than a risk to the general public)?
·   Would the imposition of the duty of care impose liability with respect to the defendant’s exercise of “core policy-making” or “quasi-legislative” functions?
·   Is there any supervening policy reason that denies the existence of a duty of care?
If the first four of these questions are answered in the affirmative and the fifth and sixth questions in the negative, the court will ordinarily hold that the authority owed a duty of care to the plaintiff. Conversely, if any of the first four questions are answered in the negative or either of the fifth and sixth questions are answered in the affirmative, ordinarily no duty of care will arise.
(Footnotes omitted)

The tests articulated by McHugh J indicate that Gleeson CJ’s summary of what will “ordinarily” be the case for a body exercising statutory powers to protect the general public allows for a range of exceptions depending significantly on the facts of the particular case.

Higgins CJ and Graham J both refer to the case of Kent v Griffiths [2001] QB 36 (Kent v Griffiths), in which the court found a duty of care owed by an ambulance service to an individual on whose behalf a request for help had been made. In that case, the Master of the Rolls noted that the position of the ambulance service differed from that of the fire brigade, relevantly on the grounds that “the duty to fight fires remains throughout a duty owed to the public at large” (at [9]), with the effect that the court was able to grant relief to the plaintiff against the ambulance service.

It is possible that distinguishing between the ambulance service and the fire brigade by reference to the services they provide might not find the same favour in Australia. In Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, the High Court noted at [534] that, having regard to the differences between the effects of escaping fires in contemporary Australia compared with medieval England:

… any liability of [the defendant] to [the plaintiff] must be founded otherwise than on some special rule dealing only with liability for the escape of fire.

Of course, considerations relating to the escape of fire (which may not even involve a fire brigade) are not necessarily relevant to questions of the liability of fire brigades with statutory powers. On the other hand, the High Court’s rejection of an approach based on issues specific to fires rather than other kinds of threats to public safety might weaken an attempt to distinguish in all circumstances, simply because of the nature of the different services provided, the duties owed by a fire brigade from the duties owed by an ambulance service.

By analogy with Kent v Griffiths, then, the making of a specific request to a local fire authority might produce a different result, in terms of duty of care, from the result in a case where a range of people whose identities and circumstances are unknown to the fire-fighting authorities might possibly be affected, in unknown ways, by any of the infinite number of decisions available to those authorities from moment to moment.

A result of that kind would not necessarily be inconsistent with the range of possibilities left open under Graham Barclay Oysters. It may be possible, by reference to Graham Barclay Oysters, to say, for instance:

(a) that there is no common law duty to any individual member of the community to manage the Rural Fire Service in a particular way, to allocate resources such as funding for fire fighting equipment in a particular way, or to issue or not issue particular delegations in connection with particular fires; but

(b) that in some cases, having regard to the tests articulated by McHugh J, there might be a common law duty owed by the Rural Fire Service to a particular landholder onto whose land Rural Fire Service officers had entered in the course of their fire fighting activities.

The current case, it seems to me, falls somewhere between those two extremes. The acts or failures to act pleaded by the plaintiffs were not matters of high policy or principle, or of long-term resource allocation. They were specific actions, including some decisions not to take certain actions, in relation to an identified fire in an identified location, and in a situation in which, the plaintiffs allege, the defendant had been specifically asked for help by the plaintiffs, and knew that the plaintiffs were potentially affected by whatever decisions were made and whatever action was taken or not taken in relation to the McIntyre’s Hut fire.

I have already referred to the search for coherence in the Australian law on negligence, and to the tests proposed by McHugh J in Graham Barclay Oysters for finding that a duty of care that has not previously been recognised is owed by a public authority, and I also note in this context the comment of the Master of the Rolls in Kent v Griffiths at [37] about the law of negligence in England:

In these difficult cases it is necessary to examine the facts in detail. They are therefore usually not suitable for determination before the facts have been fully investigated. Before you can apply one case by analogy to another you need to be clear as to the facts to which you are applying it.

It is accordingly, in my view, not possible to say at this stage that there is no way in which the plaintiffs could plead their case that would take the case over the threshold into that category of cases in which a statutory authority owes a duty of care to a member of the public for whose benefit it might have acted, especially where there has been a specific request for action. Nor is it apparent that such coherence as the law has achieved in this area would be threatened by such an outcome.

For these reasons, I do not think it can safely be said that the statement of claim, in its current form or in any possibly re-pleaded form, does not and could not disclose a reasonable cause of action.

Of course, even if a common law duty to the plaintiffs is found, the plaintiffs still face two substantial obstacles in making out their claims.

The first is the need to establish a breach of that duty, and in the particular circumstances of the case (a major bushfire threat affecting substantial areas of NSW, and the apparent difficulties of gaining access to the McIntyre’s Hut fire), it may be that the Rural Fire Service would not be found to have breached any duty to the plaintiffs in deciding on 9 January 2003 not to apply fire-fighting resources directly to the McIntyre’s Hut fire.

Does s 128 bar the action?

The second obstacle is s 128 of the Rural Fires Act, which is as follows:

128Protection from liability
(1)A matter or thing done or omitted to be done by a protected person or body does not, if the matter or thing was done in good faith for the purpose of executing any provision (other than section 33) of this or any other Act, subject such person personally, or the Crown, to any action, liability, claim or demand.
(2)In this section:
“protected person or body” means the following:
(a)the Minister,
(b)the Commissioner and any person acting under the authority of the Commissioner,
(c)any member of the Service,
(d)a member of the Advisory Council or Bush Fire Co-ordinating Committee,
(d1)a member of a Bush Fire Management Committee,
(e)the Commissioner of NSW Fire Brigades, the commissioner constituting the Forestry Commission, the Director-General of National Parks and Wildlife and any person acting under the authority of those persons,
(f)an interstate fire brigade acting in pursuance of section 43.

Note. See section 731 of the Local Government Act 1993 in respect of protection from liability of councils, councillors and employees of councils.

I read s 128 as clearly intended to bar claims arising, among other things, out of decisions taken by authorities under the Rural Fires Act in the course of dealing with individual fires. As a matter of policy, the bar may be particularly important as it applies to individual volunteer fire fighters, but the provision also expressly covers non-volunteer fire fighters, the Commissioner, the Minister and the Crown. There is nothing in the section to require or indeed to permit reading it narrowly to protect only individual fire fighters or individual volunteer fire fighters.

Furthermore, the plain words of the provision are supported by a convincing policy reason, namely that fighting fires requires decisions to be made quickly in what may be a rapidly changing environment. In particular, it may require decisions to be made sacrificing some areas or property (including that of individuals) to a fire in the interests of containing the fire so as to protect other areas, other property or human life. Not only do decisions have to be made about where to direct available resources (personnel, equipment and water), but decisions may also have to be made to take positive action to destroy vegetation or property, for instance to create a firebreak by bulldozing or burning existing vegetation that might provide fuel for an approaching fire.

Such decisions must be able to be made quickly, without concern for the impacts on individual landholders or others, and certainly without requiring specific justifications to be prepared in relation to the impact of each decision on each potentially affected member of the community.

However, there are two reasons why s 128 might not provide a complete answer to the respondents’ claims.

First, it is possible that s 128, in its application to actions taken “for the purpose of executing any provision … of [this] or any other Act”, would be interpreted narrowly.

Statutory provisions excluding liability for acts done by authorities “exercising powers conferred” by an Act have been held not to apply to acts for which no express statutory authority is needed or given (see, for instance, Board of Fire Commissioners v Ardouin (1961) 109 CLR 105 (Ardouin)). Provisions referring, as s 128 of the Rural Fires Act does, to actions taken “for the purpose of executing” provisions of an Act may be found to bar action against fire brigades more broadly and more effectively than the provisions considered in Ardouin, but this is yet to be settled (see Michael Eburn, Emergency Law (2^nd Ed, 2005) 141), and would not appropriately be settled in an appeal of this nature.

Secondly, as pointed out by Higgins CJ, s 128 is limited, as far as actions are concerned, to actions taken in good faith. The plaintiffs have not so far pleaded bad faith, but the opportunity to raise such matters, and if necessary to put the defendant to proof of good faith, should not be excluded at this stage.

As to the operation of subs 128(1) in relation to omissions by protected persons or bodies, I do not consider that the absence of a reference to matters or things being omitted in good faith means that all omissions, including those in bad faith, are protected in the way that acts in good faith are protected. Rather, if a failure to act is the result of a conscious or deliberate decision, as in this case, then I do not see that there would be any difficulty in examining whether that decision was made in good faith for the purpose of s 128. On the other hand, if an omission is entirely inadvertent or unconscious or otherwise has no mental element, an examination of whether it occurred as a result of good faith or bad faith would seem to be unproductive—this may explain the form of subs 128(1).

In summary, s 128 of the Rural Fires Act might emerge as a complete bar to the plaintiffs’ actions in this case, but this cannot properly be determined without a hearing as to the facts.

CONCLUSIONS

The orders that I would make are:

(a) that leave to appeal be granted;

(b) that leave be granted to the applicant defendant to file a Notice of Appeal in accordance with the draft Notice of Appeal dated 11 July 2007;

(c) that the appeal be dismissed.

I certify that the paragraphs numbered [68] – [101] are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 5 September 2008

IN THE SUPREME COURT OF THE       )          No. ACTCA 21 - 2007
  )          No. SC 10 of 2006
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STATE OF NEW SOUTH WALES
Appellant

AND:WAYNE KARL WEST
First Respondent

AND:LESLEY ANNE WEST
Second Respondent

Judges:  Higgins CJ, Penfold and Graham JJ
Date:  5 September 2008
Place:  Canberra

REASONS FOR JUDGMENT

GRAHAM J:

The matter that is presently before the Court is an application for leave to appeal from an interlocutory judgment of Justice Connolly given on 6 July 2007.

In the event that leave to appeal is granted, the applicant, identified in a draft Notice of Appeal dated 11 July 2007 as the appellant, seeks orders as follows:

(a)That the appeal from the interlocutory judgment given and orders made by his Honour Justice Connolly on 6 July 2007 be allowed.
(b)That the Court dismiss the proceedings or enter judgment in favour of the appellant pursuant to Rule 425(3)(a) of the Court Procedures Rules 2006, or in the alternative that the respondents’ statement of claim be struck out pursuant to Rule 425(1)(a) of the Court Procedures Rules 2006.
(c)That the respondents pay the appellant’s costs of and incidental to this appeal, the application for leave and the application filed on 15 May 2007 in respect of which judgment was given and orders were made by his Honour Justice Connolly on 6 July 2007.

The application for leave to appeal has been listed for hearing concurrently with the appeal in the event that leave be granted.

The proceedings were commenced by an Originating Application dated 6 January 2006 in matter No. S.C. 10 of 2006. The first respondent was identified as the first plaintiff, the second respondent as the second plaintiff, the applicant/appellant as the first defendant and Philip Koperberg as the second defendant.

In his reasons for judgment the primary judge said:

3.The claim was originally also brought against Mr Philip Koperberg, who was the Commissioner of the Rural Fire Service. The plaintiffs indicated at this application that they would consent to the removal of the second defendant from the proceedings by way of a consent to a judgment for the second defendant with no order as to costs.

At the conclusion of the hearing on 20 June 2007 the primary judge ordered that there be judgment for the second defendant with no order as to costs.

In the Originating Application the nature of the plaintiffs’ action was identified as ‘Negligence and breach of statutory duty’ and the relief claimed was identified as ‘Damages’.

In a preamble to the Statement of Claim dated 6 January 2006 the following appeared:

In an Originating Application dated 6 January 2006, the first and second plaintiffs claim damages for personal injury and property loss in relation to the negligence of each of the defendants.

The respondents acknowledge that no cause of action for breach of statutory duty has been pleaded. Furthermore, they concede that no private action for breach of statutory duty is available to them.

The ‘PARTICULARS OF LOSS AND DAMAGE’ at the end of the Statement of Claim do not indicate that any claim is relevantly made for damages for any personal injuries sustained by the plaintiffs or either of them. Their case is confined to one for damage to their property and economic loss.

In a Defence dated 14 December 2006 and expressed under the heading ‘Defence of the first defendant’, the defences of the two defendants were recorded.

By an Application filed 15 May 2007 the defendants sought relief as follows:

1.That the Statement of Claim dated 6 January 2006 in these proceedings be struck out pursuant to r 425 (1) (a) of the Court Procedure (sic) Rules 2006; and
2.That the court dismiss the proceedings or in the alternative enters judgment in favour of the defendants pursuant to r 425 (3) (a) of the Court Procedure (sic) Rules 2006; and
3.That the plaintiffs pay the defendants’ costs of this application and of the proceedings; and
4.Any other orders that the Court considers appropriate.

The orders made by the primary judge on 6 July 2007 were as follows:

1.The application to strike out the statement of claim be dismissed.
2.The first defendant pay the plaintiffs’ costs of the application.

Notwithstanding that the negligence complained of is said to have occurred in the State of New South Wales these proceedings were brought in this Court, the only relevant connection with the Australian Capital Territory being that the plaintiffs reside in the Australian Capital Territory.

It would appear to be common ground that the plaintiffs were the co-proprietors of a rural property in the State of New South Wales having an area of about 860 acres. The property was situated on the western side of the Goodradigbee River. The plaintiffs contended that the property known as ‘Wyora Station’ was:

… burnt out on 18 January 2003 as a result of fire ignited by lightning at about 1541 hours on 8 January 2003 by a lightning strike in the Brindabella National Park approximately 100 metres west of the McIntyre’s Hut trail on the slope above and to the east of the Goodradigbee River in [the] State of New South Wales… .

The plaintiffs further contended that Wyora Station was ‘approximately 1.7 kilometres south of McIntyre’s Hut’.

The plaintiffs pleaded that Wyora Station was within a Rural Fire District for the purpose of the Rural Fires Act 1997 (NSW) (‘the Rural Fires Act’), a fact which was not admitted by the defendants. Further, the plaintiffs pleaded that at all material times McIntyre’s Hut and the surrounding area in the Brindabella National Park were within the ‘administrative jurisdiction’ of the NSW National Parks and Wildlife Service. The defendants admitted that McIntyre’s Hut was within the Brindabella National Park and say that the Brindabella National Park was at all material times reserved as a National Park in accordance with the National Parks and Wildlife Act 1974 (NSW). Otherwise they did not make any admissions about the relevant area being within the ‘administrative jurisdiction’ of the NSW National Parks and Wildlife Service.

The plaintiffs pleaded that a meeting of ‘RFS [Rural Fire Service] officers and NPWS [National Parks and Wildlife Service] officers’ had been held at the ‘NPWS Headquarters Queanbeyan’ on the evening of 8 January 2003 at which it had been agreed ‘by the officers’ at the Queanbeyan meeting ‘not to undertake direct suppression of the McIntyre’s Hut fire’.

The Statement of Claim further alleged that at a 9 January 2003 meeting at the NSW National Parks and Wildlife Service Headquarters in Queanbeyan at about 1000 hours, attended by officers of the New South Wales Rural Fire Service, including a Mr Bruce Arthur, and officers of the New South Wales National Parks and Wildlife Service, including a Ms Julie Crawford, it was ‘again resolved not to undertake direct suppression activity action against the McIntyre’s Hut fire and to adopt a broad containment indirect attack strategy’.

The ‘PARTICULARS OF NEGLIGENCE OF THE FIRST DEFENDANT’ at the end of the Statement of Claim included 16 subparagraphs identified as (a) – (p) (see [233] below). Thirteen of the sixteen paragraphs commenced with the word ‘Failing’, indicating acts of omission as opposed to commission. These included:

d)Failing to act upon advice and opinion that the McIntyre’s Hut fire could be attacked directly and immediately.

The three paragraphs which did not commence with the word ‘Failing’ were as follows:

i)Endorsing on 9 January 2003 an RFS, FCO recommendation that the McIntyre’s Hut fire and derivatives were burning slowly in ‘shit country’ and could be allowed to burn whilst an indirect strategy was developed and implemented
j)Adopting an indirect fire strategy with no realistic time frame.
…
l)Resolving to allow the fire to burn on the basis that it was burning in ‘shit country’ without giving adequate weight to the risk of the fire spreading across the Goodradibee (sic) River and westwards.

Further and better particulars of the plaintiffs’ claim were provided by Collaery Lawyers, the solicitors for the plaintiffs, to the New South Wales State Crown Solicitor’s office on 21 June 2006. Those particulars revealed that the officers of the Rural Fire Service and the National Parks and Wildlife Service who were said to have agreed ‘not to undertake direct suppression of the McIntyre’s Hut fire’ on the evening of 8 January 2003 were Julie Crawford, Scott Seymour, Robert Hunt and Anthony (Tony) Fleming from the National Parks and Wildlife Service and Bruce Arthur and Jim Lomas from the Rural Fire Service.

In relation to the meeting on the evening of 8 January 2003, further and better particulars were to the effect that:

…the Incident Management Team … decided upon a strategy for an indirect attack that allowed the McIntyre’s Hut Fire to burn into less accessible areas near the Eastern bank of the Goodradigbee River where there was no vehicle access.

The particulars further revealed that the officers of the NSW Rural Fire Service and the officers of the NSW National Parks and Wildlife Service who ‘again resolved not to undertake direct suppression activity against the McIntyre’s Hut fire and to adopt a broad containment indirect attack strategy’ at the meeting at about 1000 hours on 9 January 2003 were said to be Julie Crawford, Bruce Arthur, Peter Lucas-Smith, Adrian Carey, Peter Cathles and ‘other persons known to Mr Koperberg’.

In relation to the matter referred to in particular (d) referred to above the plaintiffs provided further and better particulars as follows:

The First Plaintiff telephoned the Fire Controller Bruce Arthur at 0022 hours 9 January 2003 and expressed concern about the McIntyre’s Hut fire and requested RFS attendance. The First Plaintiff telephoned Bruce Arthur or his deputy on five further occasions on 9^th January 2003 expressing the same concerns and requesting RFS deployment. The First Plaintiff said on each occasion to the effect (sic) “If the fire is not attacked and if the wind blows from the North West it will be a danger. We should get the crews onto it now.”

The defendants admitted that ‘the property owned by the plaintiffs … was burnt on or about 18 January 2003’, admitted that McIntyre’s Hut was within the Brindabella National Park and that the Brindabella National Park was a National Park in accordance with the National Parks and Wildlife Act 1974 (NSW).

The defendants say that a fire approximate to McIntyre’s Hut in the Brindabella National Park was first reported by officers manning the Mt Coree Fire Tower in the Australian Capital Territory at about 1606 hours on 8 January 2003 and that at or about 2030 hours a meeting took place between members of the New South Wales Rural Fire Service, the New South Wales National Parks and Wildlife Service, the Australian Capital Territory Emergency Services Bureau and others at the National Parks and Wildlife Service headquarters at Queanbeyan. The defendants say that at the meeting those present considered steps for the engagement of the fire approximate to McIntyre’s Hut in the Brindabella National Park.

The defendants say that on 9 January 2003 at or about 1000 hours, a meeting of the Yarrowlumla/Queanbeyan District Bushfire Committee took place and that those present at the meeting considered steps for the engagement of the fire approximate to McIntyre’s Hut in the Brindabella National Park.

The defendants further say that at about 1300 hours on 9 January 2003 the second defendant issued a declaration, pursuant to s 44 of the Rural Fires Act, that the second defendant delegated his functions under Part 3 Division 1 of the Rural Fires Act 1997 to Superintendent Bruce Arthur of the NSW Rural Fire Service pursuant to s 44(2) of the Rural Fires Act 1997, that Superintendent Bruce Arthur of the NSW Rural Fire Service was appointed as Incident Controller in respect of the fire fighting operations and bushfire prevention measures identified in the s 44 declaration and further that Julie Crawford, Regional Manager of the National Parks and Wildlife Service was appointed as Deputy Incident Controller in respect of the fire fighting operations and bushfire prevention measures set out in the s 44 declaration.

The defendants say that on the morning of 9 January 2003 a direct attack on the eastern flank of the Baldy Range spot fire was undertaken and that at approximately 0600 hours on Friday 10 January 2003 a further direct attack on the Baldy Range spot fire was undertaken.

The above facts seem to be uncontentious although there has been no express acceptance by the plaintiffs of the matters pleaded by the applicant. Indeed, under rules 480 and 482 of the Court Procedures Rules 2006 (ACT) (the ‘Court Procedures Rules’) there was an implied joinder of issue on the Defence on or about 28 December 2006.

In the Statement of Claim the plaintiffs did not plead any precise duty of care, acts or omissions constituting breaches of any relevant duty of care or any damage said to have been suffered as a result of any breaches of any relevant duty of care. Paragraph 16 of the Statement of Claim simply provided:

16.The property losses sustained by the first and second plaintiffs resulted from the negligence of both defendants.

This paragraph was supported by ‘PARTICULARS OF NEGLIGENCE OF THE FIRST DEFENDANT’, ‘PARTICULARS OF NEGLIGENCE OF THE SECOND DEFENDANT’ and ‘PARTICULARS OF LOSS AND DAMAGE’. Amongst other things, the defendants denied paragraph 16 of the Statement of Claim.

Section 21 of the Court Procedures Act 2004 (ACT) (the ‘Court Procedures Act’) relevantly provided in respect of proceedings against the Crown in right of State of New South Wales:

21Proceedings by and against the Crown generally
(1)Subject to this part and any relevant rules of court and subject to the Judiciary Act 1903 (Cwlth) –
(a)a proceeding may be brought by or against the Crown in the same way as a proceeding between subjects; and
(b)the same procedural and substantive law applies to such a proceeding as in a proceeding between subjects.

(2)Subject to the regulations, a proceeding may be brought … against the Crown –
(a)for the Territory Crown – under the name of the ‘Australian Capital Territory’; or
(b)in any other case – under the name in which the Crown could … be sued in the courts of its own jurisdiction.

…

Section 22 of the Court Procedures Act provided:

22This division does not affect any immunity from, or limitation on, liability that the Crown enjoys by statute.

The rules in relation to the practice and procedure of this Court made under s 7 of the Court Procedures Act included Rules of pleading in Division 2.6.2, Rules in relation to the striking out of pleadings (see rule 425) and Rules in relation to Summary Judgment (see Division 2.11.5).

Relevantly, the Rules of Pleading included the following:

406(1)Each pleading must –
(a)be as brief as the nature of the case allows; and
(b)contain a statement in a summary form of the material facts on which the party relies but not the evidence by which the facts are to be proved; and
(c)state specifically any matter that if not stated specifically may take another party by surprise; and
(d)subject to rule 419 (Pleadings – other relief), state specifically any relief the party claims; and
(e)if a claim … under a statute is relied on – identify the specific provision of the statute

(2)A party may raise a point of law in a pleading if the party also pleads the material facts in support of the point.
407(1)Without limiting rule 406, the following matters must be specifically pleaded:
…
(c) breach of statutory duty;
…
(m)negligence …
…

(2)Also, any fact from which any of the matters mentioned in subrule (1) is claimed to be an inference must be specifically pleaded.
…
432(1)If a party pleads negligence … or breach of statutory duty, the particulars must state the facts and circumstances of the negligent act or omission or breach of statutory duty.
(2)Also, if the party alleges 2 or more negligent acts or omissions or breaches of statutory duty, the particulars must, as far as practicable, state separately the facts and circumstances of each negligent act or omission or breach of statutory duty.

Part 2.7 of the Court Procedures Rules made provision for amongst other things the amendment of pleadings. Rule 507 provided that a party may amend the party’s pleadings after the close of pleadings only with the Court’s leave.

The relationship between the pleading of material facts and the provision of particulars was addressed by Waddell J, as his Honour then was, in Southern Cross Exploration NL v Fire & All Risk Insurance Co Ltd (1985) 2 NSWLR 340 where his Honour indicated that the authorities made it clear that a party is not entitled, in effect, to amend a pleading by giving particulars of further material facts. His Honour, at 350, cited with approval a passage from the judgment of Scott LJ in Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712-3 as follows:

The cardinal provision in [the rules] is that the statement of claim must state the material facts. The word “material” means necessary for the purpose of formulating a complete cause of action; and if any one “material” fact is omitted, the statement of claim is bad; it is “demurrable” in the old phraseology, and in the new is liable to be “struck out” …; or “a further and better statement of claim” may be ordered …
The function of “particulars” under [the rules] is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim – gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiff’s cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial. Consequently in strictness particulars cannot cure a bad statement of claim but in practice it is often difficult to distinguish between a “material fact” and a “particular” piece of information which it is reasonable to give the defendant in order to tell him the case he has to meet; hence in the nature of things there is often overlapping. And the practice of sometimes putting particulars into the statement of claim and sometimes delivering afterwards either voluntarily, or upon request or order, without any reflection as to the true legal ground upon which they are to be given has become so common that it has tended to obscure the very real distinction between them.
…

Rule 425 of the Court Procedures Rules provides for the striking out of pleadings in certain circumstances and for the possible making of supplementary orders staying or dismissing the relevant proceeding or entering judgment. The primary judge quoted that part of rule 425 which dealt with the striking out of pleadings but then proceeded to address the matter as one in which summary judgment had been sought by the defendants.

Rule 1147 of the Court Procedures Rules deals with summary judgment for a defendant. It provides:

1147(1)A defendant may apply to the court for summary judgment against a plaintiff at any time after filing a notice of intention to respond or defence.
(2)The court may give judgment for the defendant against the plaintiff for the plaintiff’s claim for relief (or part of it) if satisfied–
(a)that the claim (or part of it) is frivolous or vexatious; or
(b)that there is a good defence to the claim (or part of it) on the merits; or
(c)that the proceedings should be finally disposed of summarily or without pleadings.

(3)The court may make any other order it considers appropriate.

Rule 425 of the Court Procedures Rules, under which the applicants applied for relief before the primary judge, relevantly provided:

425(1)The court may, at any stage of a proceeding, order that a pleading or part of a pleading be struck out if the pleading –
(a)discloses no reasonable cause of action …; or
(b)may tend to prejudice, embarrass or delay the fair trial of the proceeding; or
(c)is frivolous, scandalous, unnecessary or vexatious; or
(d)is otherwise an abuse of the process of the court.

(2)The court may receive evidence on the hearing of an application for an order under this rule.
(3)If the court makes an order under this rule, it may also make any other order it considers appropriate, including, for example –
(a)if the court makes an order under subrule (1)(a) – an order staying or dismissing the proceeding or entering judgment; and
…

The orders sought in the defendants’ application filed 15 May 2007 accorded precisely with the powers conferred on the court under Rule 425. The same cannot be said for order (b) which the applicant sought in the draft Notice of Appeal. Additional relief under rule 425(3)(a) of the Court Procedures Rules can only be granted if an order is first made that, relevantly, the Statement of Claim be struck out.

The applicant accepts that this is so and advances its case on the basis that the Statement of Claim discloses no reasonable cause of action. Accordingly, the applicant contends that the Statement of Claim should be struck out and, given that the respondents could not, in the circumstances, plead facts which would disclose a reasonable cause of action, there should also be an order made dismissing the proceeding or entering judgment for the first defendant/applicant.

It is convenient, at this stage, to turn to the provisions of the Rural Fires Act as they were in January 2003. There were eight separate Parts to the Act which were headed as follows:

Part 1       Preliminary
Part 2       NSW Rural Fire Service
Part 3       Co-ordinated bush fire fighting
Part 4       Bush fire prevention
Part 5       New South Wales Rural Fire Fighting Fund
Part 6       Rural Fire Service Advisory Council
Part 6A      Application of other legislation
Part 7       Miscellaneous.

The objects of the Rural Fires Act were stated in s 3 as follows:

3… The objects of this Act are to provide:
(a)for the prevention, mitigation and suppression of bush and other fires in local government areas (or parts of areas) and other parts of the State constituted as rural fire districts, and
(b)for the co-ordination of bush fire fighting and bush fire prevention throughout the State, and
(c)for the protection of persons from injury or death, and property from damage, arising from fires, and
(d)for the protection of the environment by requiring certain activities referred to in paragraphs (a) – (c) to be carried out having regard to the principles of ecologically sustainable development described in section 6(2) of the Protection of the Environment Administration Act 1991.

By s 8 of the Rural Fires Act the NSW Rural Fire Service was established, comprising the Commissioner of the NSW Rural Fire Service and other staff of the Service and volunteer rural fire fighters meaning:

8(3)(a) officers and other members of rural fire brigades, and
(b)any person other than a member of a rural fire brigade who, without remuneration or reward, voluntarily and without obligation engages in fighting (or in activities associated with fighting) a fire with the consent of or under the authority and supervision of an officer of a rural fire brigade.

It is common ground that the majority of the NSW Rural Fire Service operates in a volunteer capacity.

By s 9(1) of the Rural Fires Act the NSW Rural Fire Service had the following functions:

9(1)(a) to provide rural fire services for New South Wales [including:
(a) services for the prevention, mitigation and suppression of fires in rural fire districts,
(b) the protection of persons from dangers to their safety and health, and property from destruction or damage, arising from fires in rural fire districts,
(c)the provision of services referred to in paragraphs (a) and (b) throughout the State in accordance with Part 3,
(d) any other service prescribed by the regulations],

(b)to assist other emergency services organisations at incidents and at emergencies under the control of those organisations,
(b1)to provide advisory services (whether within or outside the State) relating to fire fighting and other matters with respect to which it has expertise,
(c)to carry out such other functions as may be assigned to it by or under this or any other Act,
(d)to do anything necessary for, or incidental to, the exercise of its functions.

By s 11 the Commissioner was, in the exercise of the Commissioner’s functions, subject to the control and direction of the Minister.

Section 44 which was referred to in the statement of claim provided:

44(1)The Commissioner is to take charge of bush fire fighting operations and bush fire prevention measures and to take such measures as the Commissioner considers necessary to control or suppress any bush fire in any part of the State if, in the opinion of the Commissioner:
(a)a bush fire has assumed or is likely to assume such proportions as to be incapable of control or suppression by the fire fighting authority or authorities in whose area or locality it is burning, or
(b)the prevailing conditions are conducive to the outbreak of a bush fire likely to assume such proportions, or
(c)a bush fire is not being effectively controlled or suppressed by the fire fighting authority or authorities in whose area or locality it is burning, or
(d)a bush fire is burning in a place that is not the responsibility of any fire fighting authority.

(2)The Commissioner may delegate the Commissioner’s functions under this Division … to an officer or member of a rural fire brigade, an officer or member of New South Wales Fire Brigades, officers of the Forestry Commission, officers of the National Parks and Wildlife Service or any other person.
(3)The Commissioner is not subject to the control and direction of the Bush Fire Co-ordinating Committee in exercising the Commissioner’s functions under this Division but must, in exercising those functions, take into consideration any relevant bush fire management plan and, in the case of managed land, any relevant plan of the authority responsible for the managed land of which the Commissioner is aware.

Section 64 of the Rural Fires Act provided for offences by occupiers. It may be assumed, favourably to the respondents, without deciding the issue, that the National Parks and Wildlife Service under the National Parks and Wildlife Act 1974 (NSW) was the occupier at the relevant time of the Brindabella National Park by reason of the fact that it had the management of that park. Section 64(1) of the Rural Fires Act relevantly provided:

64(1)If a fire … is burning on any land at any time during a bush fire danger period applicable to the land [generally 1 October – 31 March] the occupier of the land must:
(a)immediately on becoming aware of the fire … take all possible steps to extinguish the fire, and
(b)if the occupier is unable without assistance to extinguish the fire and any practicable means of communication are available, inform or cause to be informed an appropriate officer of the existence and locality of the fire if it is practicable to do so without leaving the fire unattended.’

By s 125 the Crown in right of New South Wales was bound by the Rural Fires Act. However, s 128 provided protection from liability for the Crown. Section 128 relevantly provided:

128(1)A matter or thing done or omitted to be done by a protected person or body does not, if the matter or thing was done in good faith for the purpose of executing any provision … of this or any other Act, subject such person personally, or the Crown, to any action, liability, claim or demand.
(2)In this section:
‘protected person or body’ means the following:
(a)the Minister,
(b)the Commissioner and any person acting under the authority of the Commissioner,
(c)any member of the Service,
…
(d1)a member of a Bush Fire Management Committee,
…

The respondents place some reliance on s 127 of the Rural Fires Act. It provided:

127Except as expressly provided in this Act, nothing in this Act and no conviction, payment of penalty or proceeding taken under this Act affects or prejudices any civil claim, action or proceeding in respect of any loss or damage caused by any bush or other fire to which this Act relates or for any trespass committed.

The express protection from any action, liability, claim or demand for which s 128 provided would seem to me to fall within the expression ‘except as expressly provided in this Act’ in s 127.

It is significant that the ‘good faith’ requirement in s 128(1) of the Rural Fires Act need only be satisfied in respect of a matter or thing ‘done’ as opposed to a matter or thing ‘omitted to be done’. The protection from any

· claim or demand

· liability

· action

seems to me to be absolute in respect of omissions by protected persons and such protection extends to the Crown which may otherwise be vicariously liable for such omissions.

There is a logical distinction to be drawn between acts and omissions in relation to the provision of rural fire services. An actor’s purpose in doing something which, in other circumstances, may be seen to be dangerous, such as starting a fire, which may be justified as a back-burning operation to contain another fire, or cutting a fence surrounding a paddock in which precious stud cattle are depasturing, which may be justified to allow a bull-dozer to cut a firebreak or to permit fire trucks to enter, could be open to question. Take, for example, a situation where (say) there was a history of ill-will between the actor and the person on whose property the arguably dangerous act was done. Questions of motive are unlikely to arise in the case of inaction.

Section 128 of the Rural Fires Act was itself amended by the Statute Law (Miscellaneous Provisions) Act (No 2) 1997 (NSW). The amendment had the effect of adding category (d1) to the list of protected persons or bodies as defined in subsection (2).

The Explanatory Note in respect of the Bill which became the Rural Fires Act 1997 (NSW) relevantly provided in respect of clauses 127 and 128:

Clause 127 preserves the rights of persons to take action for loss or damage or trespass unless otherwise expressly provided by the proposed Act.
Clause 128 protects various persons exercising functions under the proposed Act from personal liability.

The scope and purpose of the Rural Fires Act was revealed in the Minister for Corrective Services, Minister for Emergency Services, and Minister Assisting the Minister for the Arts’ Second Reading speech delivered in the New South Wales Legislative Assembly in relation to the Rural Fires Bill, on 28 May 1997 (see Hansard pp 9467-9472). In his Second Reading speech the Minister described the Bush Fires Act 1949 (NSW), which was repealed by s 136 of the Rural Fires Act, as a ‘steam-driven Act in a post-nuclear age’, in the context of a Department of Bush Fire Services, with a State-wide staff at the time of over 100, and a bush fire emergency in December 1993 – January 1994 where 800 individual fires raged across 800,000 hectares of land over a period of 20 days and where, at the height of the campaign to suppress the fires, and to save property, lives and the environment ‘some 20,000 people – most of them volunteers – were involved in the most complex and intensive emergency operation in the State’s modern history’.

The Minister recorded the need for new legislation which would be expressed in language which could be understood by ordinary people and which provided for a cohesive and integrated management structure for the delivery of fire services to rural fire districts throughout New South Wales. The Minister’s Second Reading speech included:

… The bill will put in place a cohesive command structure for bush fire brigades, while preserving the best traditions of local autonomy, which are the hallmark of the volunteer bushfire fighting movement.
…
On 28 February 1996 the then Senior Deputy State Coroner … presented his wide-ranging report to the Government on the 1994 emergency. … The deputy coroner’s principal recommendation was that the Government should introduce a more cohesive and integrated command structure under the umbrella of a Rural Fire Service. He specifically suggested that local government should be removed from any role in the administration and management of the Rural Fire Service, and that ultimately the rural and urban fire services should be amalgamated. The Government immediately rejected the last two propositions, however. To have adopted them … would have undermined the very essence of the volunteer bush fire fighting movement, and removed the local administrative and community autonomy that goes hand in hand with the volunteer spirit and culture.
…
The bill establishes the New South Wales Rural Fire Service as an entity and provides a cohesive and integrated management structure for the delivery of fire services to rural fire districts throughout New South Wales. The service comprises the commissioner and staff, fire control officers, deputy fire control officers and volunteer rural fire fighters. Furthermore, any casual volunteer who engages in fire fighting or associated activities with the consent of or under the authority and supervision of an officer of a rural fire brigade will also be regarded as a member of the New South Wales Rural Fire Service. All these categories will receive workers compensation coverage and protection from liability as they currently do under the Bush Fires Act. Even a casual citizen who stops to put out a fire on the side of the road will receive workers compensation coverage.

Ordinarily, people owe a duty of care to others when they know or ought reasonably to foresee that their conduct may cause physical damage to those persons or their property. Reasonable foreseeability of physical harm is generally enough to impose a duty of care on a person who knows or ought reasonably foresee that physical harm is a likely result of his or her conduct. Liability will arise when the duty is breached and where there is a causal relationship between the breach and the harm. But even reasonable foresight of harm is not always sufficient to give rise to a duty of care. For example, the duty that a landlord of a shopping centre owes does not extend to conducting its operations so that persons leaving the centre are protected from physical attacks by third parties. In the case of such an exception to the general rule, that reasonable foresight of physical harm will simply give rise to a duty of care, the law negates liability for reasons of policy. The common law refuses to impose a duty because if people were simply under a legal duty to prevent foreseeable harm to others, the burden imposed would be intolerable (see per McHugh J in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [101]-[102]).

In Lowns v Woods (1996) Aust Torts Reports 81-376, the New South Wales Court of Appeal by a majority comprising Kirby P, as his Honour then was, and Cole JA, Mahoney JA dissenting, held that a general practitioner owed a duty of care to a person with whom he had no prior relationship in circumstances where that person’s sister knocked on the door of his surgery and said ‘My mother sent me down here. My brother is having a bad fit. We need a Doctor. Can you come up?’ To which he replied ‘Can you bring him down here?’ The sister said ‘He is having a bad fit, we can’t bring him down’ to which the doctor replied ‘Get an ambulance’. The sister then said ‘We need a Doctor, we have already got an Ambulance’. Whereupon the doctor said ‘No, I won’t come’.

Applying the then test to determine whether or not a duty of care arose, Kirby P expressed his agreement with the analysis of the primary judge, Badgery-Parker J, and with the reasons of Cole JA for holding that, in the special circumstances, the relationship of proximity between Patrick Woods and Dr Lowns was established, notwithstanding their lack of previous professional association.

Cole JA at 63,175 posed the question:

…whether the implicit request to Dr Lowns made by Joanna Woods for him to go with her to treat her brother gives rise to such a relationship of proximity as to give rise to a duty of care, and if so what was the content of that duty.

At 63,176 Cole JA expressed his opinion that the trial judge was correct to find negligence against Dr Lowns. However, his Honour did not address his own question as to what was the content of Dr Lowns’ duty.

Both Kirby P and Cole JA were significantly influenced by s 27(2) of the Medical Practitioners Act 1938 (NSW), as then in force, and Dr Lowns’ acknowledgement that if the conversation referred to earlier had taken place, which he denied, he should have attended upon Patrick Woods at the place where he was residing.

State of New South Wales v Klein (2006) Aust Torts Reports 81-862 (‘Klein’) was a case concerning action taken by the police. The Court of Appeal in New South Wales ordered that the plaintiffs’ claim in that case be dismissed with costs. An earlier application to a Master to strike out and dismiss the plaintiffs’ claim had been refused by the Master and her refusal had been affirmed on appeal to a single judge.

Two police officers shot Klein dead after they had been summonsed to his grand-mother’s home and were informed that he was armed with a knife, was under the influence of drugs and was acting irrationally. Klein refused to comply with directions given to him by the police. He also set a fire in the house. He was in possession of two knives and was inflicting injury to himself. In his leading judgment in the Court of Appeal, Young CJ in Eq set out parts of the Statement of Claim at [12]-[13] of his reasons for judgment as follows:

12.The kernel of the statement of claim is para 24 as follows:
In all the circumstances set out above the police owed a duty of care to the plaintiffs to avoid negligently inflicting psychiatric harm on the plaintiffs by reason of the manner in which Paul Klein met with his death.

13.I should also set out paras 25 and 26 for completeness:
25.In the said circumstances it was foreseeable that negligence by the police might cause the plaintiffs to suffer psychiatric damage by reason of nervous shock.
26.By reason of the events pleaded above the police breached the duty of care owed to the plaintiffs.

There then followed particulars (a) to (w).

Counsel for the respondent relatives acknowledged that the word ‘negligently’ ought not to have been included in paragraph 24 of the Statement of Claim.

Young CJ in Eq observed at [15] that ‘particularly in cases where there is an application to strike out pleadings, the plaintiffs’ case must be precisely pleaded.’

His Honour concluded at [45] that the matter was so plain, that there was no duty of care owed by the police officers, that the Court ‘must strike out the present claim’. His Honour said at [42]-[43]:

42… In a case where the authorities show that there is only a very small gap in the rule excluding a duty of care, then a plaintiff seeking to fit within that gap must plead it.
43The cases … make it clear … that there is no duty of care on a police officer to people such as the plaintiffs/respondents in the present situation unless they can fit themselves within either a case of express or implied assumption of responsibility or one of the possible extraordinary situations. The pleadings and the facts show neither.

In Graham Barclay Oysters McHugh J said at [81]:

81Ordinarily, the common law does not impose a duty of a care on a person to protect another from the risk of harm unless that person has created the risk. And public authorities are in no different position. A public authority has no duty to take reasonable care to protect other persons merely because the legislature has invested it with a power whose exercise could prevent harm to those persons. Thus, in most cases, a public authority will not be in breach of a common law duty by failing to exercise a discretionary power that is vested in it for the benefit of the general public. But if the authority has used its powers to intervene in a field of activity and increased the risk of harm to persons, it will ordinarily come under a duty of care. So also, if it knows or ought to know that a member of the public relies on it to exercise its power to protect his or her interests, the common law may impose a duty of care on the authority. If the authority comes under a duty of care, the failure of the authority to exercise a discretionary statutory power may give rise to a breach of the common law duty of care. But subject to these exceptions, ordinarily the common law will not impose an affirmative duty of care on an authority which would have the result that a failure to exercise a statutory power constitutes a breach of that duty.
(Footnotes omitted)

In his judgment Gleeson CJ referred to his judgment in Brodie v Singleton Shire Council (2001) 206 CLR 512 (‘Brodie’). In Graham Barclay Oysters his Honour said at [7] in relation to the issues raised in Brodie:
… Raising and spending money for road repairs involves setting priorities, not only between parts of the road system, but also between all the claims upon an authority’s resources, and between the interests of taxpayers and those of road users. My view remains that setting priorities by government for the raising of revenue and the allocation of resources is essentially a political matter, and that, if the reasonableness of such priorities is a justiciable issue, that can be so only within limits. …
In Graham Barclay Oysters at [9] Gleeson CJ indicated that reasonable foreseeability of harm of the kind suffered by one of the affected oyster eaters, whilst a necessary condition for the existence of a duty of care on the part of the State, was not of itself sufficient. He continued by saying:

… In the case of a governmental authority, it may be a very large step from foreseeability of harm to the imposition of a legal duty, breach of which sounds in damages, to take steps to prevent the occurrence of harm. And there may also be a large step from the existence of power to take action to the recognition of a duty to exercise the power. Issues as to the proper role of government in society, personal autonomy, and policies as to taxation and expenditure may intrude. Even where a statute confers a specific power upon a public authority in circumstances where mandamus will lie to vindicate a public duty to give proper consideration to whether to exercise the power, it does not follow that the public authority owes a duty to an individual, or a class of persons, in relation to the exercise of the power. In the case of … the State … it is failure to exercise those powers, not negligence in the manner of their exercise, that is said to constitute the breach [alleged in Graham Barclay Oysters].

At [15] the Chief Justice continued:

Here we are concerned with the problem of deciding, in a case where the government had certain powers, whether it is accountable, through the law of negligence, for not exercising its powers, or for not exercising them sufficiently. To apply that form of legal accountability requires the identification, not merely of a power, but also a duty; a duty of care owed to a citizen or a class of citizens. A conclusion that such a duty of care exists necessarily implies that the reasonableness or unreasonableness of the inaction of which complaint is made is a legitimate subject for curial decision. Such legitimacy involves questions of practicality and of appropriateness. There will be no duty of care to which a government is subject if, in a given case, there is no criterion by reference to which a court can determine the reasonableness of its conduct. …

Gummow and Hayne JJ, with whose reasons for judgment Gaudron J agreed, said in Graham Barclay Oysters at [146]:

146The existence or otherwise of a common law duty of care allegedly owed by a statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime. The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence.

Leave to appeal

Given the manner in which the primary judge approached the matter as indicated at [139] above, it seems to me that the decision of the primary judge was attended with sufficient doubt to warrant its consideration on appeal and that substantial injustice would result if leave were refused.

If the Statement of Claim discloses no reasonable cause of action, it should be struck out. Furthermore, if the respondents cannot construct a relevant duty of care out of the facts, however pleaded, then the parties ought not be put to the expense of what would, no doubt, be a protracted and expensive trial.

The Appeal itself

Senior counsel for the respondents accepted that the Statement of Claim should be amended so as to stipulate within it greater details of the failures by the defendant/applicant in respect of the fire, rather than providing those details by way of particulars.

Having said that, he submitted that the Statement of Claim in its present form should not be struck out. However, if the Court considered that the Statement of Claim did not disclose a reasonable cause of action, the respondents should have leave to replead.

After having taken the Court, as presently constituted, through the facts as pleaded in the Statement of Claim, senior counsel for the respondents was invited to state what the duty was that the facts as pleaded established. The response given was, ‘a duty to take reasonably practicable steps to extinguish the fire with the resources they reasonably had available to them’.

Senior counsel for the respondents rejected the suggestion that, given the detailed statutory scheme, including a fairly broad immunity provision for people operating within that statutory scheme, as embodied in the Rural Fires Act, implied that no common law duty of care could be found in the circumstances. He submitted that the Rural Fires Act made provision for many functions to be performed in relation to obligations, functions, procedures and the like and that ultimately the Rural Fire Service was, like any other government department, doing a job. As he put it ‘if they do the job badly and cause loss in the circumstances recognised by the laws of negligence they are liable for the negligence of those officers’.

He submitted that reliance could be placed upon the decision-making process referred to at [121] above to justify a finding that there were acts, as opposed to omissions, which justified the finding of a duty of care. However, he readily accepted that what was pleaded amounted to no more than saying that the inaction was deliberate.

Senior counsel for the respondents submitted that the relevant decision-making indicated an opportunity to address the matter, where someone else was in a vulnerable situation, and that such opportunity was a relevant matter going to the existence of a duty of care. He submitted that if one assembled all the facts in the various paragraphs of the Statement of Claim and read them together in the context of the relevant legislation, one could understand why a duty of care was being alleged.

He submitted that the Rural Fire Service was under a duty to take all reasonable steps to use all reasonably available means to suppress the relevant fire of which the Rural Fire Service was aware, where loss or damage to a class of persons including the plaintiffs was foreseeable.

Whilst not pleaded within the Statement of Claim itself, it is appropriate to note the ‘PARTICULARS OF NEGLIGENCE OF THE FIRST DEFENDANT’ as follows:

PARTICULARS OF NEGLIGENCE OF THE FIRST DEFENDANT
The particulars of negligence of the first defendant are as follows:
a)Failing on 8 January 2003 to take charge or delegate responsibility for the McIntyre’s Hut fire in breach of section 44 of the RFA [Rural Fires Act].
b)Failing to conduct investigate or otherwise obtain the prerequisite information to establish a competent direct attack strategy on the McIntyre’s Hut fire and its derivatives.
c)Failing on 8 January 2003 to deploy Brindabella and Wee Jasper RFS [Rural Fire Service] Brigades when both were standing to and capable of safely assessing the McIntyre’s Hut fire.
d)Failing to act upon advice and opinion that the McIntyre’s Hut fire could be attacked directly and immediately.
e)Failing in a timely manner to form the opinion that the McIntyre’s Hut fire was likely to assume such proportions as to be incapable of control or suppression if allowed to burn into less accessible terrain.
f)Failing on January 8 2003 to deploy Rural Fire Service Brigades and readily available aerial fire fighting resources to the McIntyre’s Hut fire and the spot fire at Baldy Range.
g)Failing to properly estimate the perimeter of the main McIntyre’s Hut fire west of the McIntyre’s Hut trail and the perimeter of the spot fire east of the Baldy Range trail.
h)Failing, after the declaration, to take reasonable measures to control or suppress the McIntyre’s Hut fire.
i)Endorsing on 9 January 2003 an RFS [Rural Fire Service], FCO [Yarralumla Fire Control Officer] recommendation that the McIntyre’s Hut fire and derivates were burning slowly in ‘shit country’ and could be allowed to burn whilst an indirect strategy was developed and implemented.
j)Adopting an indirect fire strategy with no realistic time frame.
k)Failing to marshal adequate resources by way of appliances and fire fighters to effectively complete an indirect fire strategy including back burning.
l)Resolving to allow the fire to burn on the basis that it was burning in ‘shit country’ without giving adequate weight to the risk of the fire spreading across the Goodradibee (sic) River and westwards.
m)Failing to identify in a timely manner an emergency which required significant and coordinated response.
n)Failing to warn each of the plaintiffs that there had been a decision not to mount a direct attack on the McIntyre’s Hut fire.
o)Failing to provide a rural fire service or to allocate adequate fire fighting services to protect Wyora Station.
p)Failure to ensure the development and implementation of a Bush Fire Park Management Plan for Brindabella National Park and the Rural Fire District for Wyora Station.

A somewhat rudimentary summary of the alleged facts upon which the respondents rely to establish a duty of care is as follows:

(a) the respondents owned a rural property in New South Wales having an area of approximately 860 acres which was located on the western side of the Goodradigbee River;

(b) the National Parks and Wildlife Service was the occupier of the Brindabella National Park;

(c) during the afternoon of Wednesday 8 January 2003 a lightning strike caused a bushfire to be ignited at a location in the Brindabella National Park to the east of the Goodradigbee River and to the north of the respondents’ property;

(d) within half an hour after the lightning strike, the fire was observed and reported;

(e) no direct action was taken to suppress the fire;

(f) on the evening of 8 January 2003 a meeting of officers of the Rural Fire Service and of the National Parks and Wildlife Service constituting an Incident Management Team met and decided upon a strategy for an indirect attack that allowed the fire to burn into less accessible areas near the eastern bank of the river where there was no vehicular access;

(g) early in the morning of Thursday 9 January 2003 the respondents contacted the Rural Fire Service and requested the attendance of fire crews;

(h) at about 10.00 am on that day, a further meeting took place attended by officers of the Rural Fire Service and of the National Parks and Wildlife Service at which it was resolved not to undertake direct suppression activity action and to adopt a broad containment indirect attack strategy;

(i) early in the afternoon of 9 January 2003, the Commissioner of the Rural Fire Service (the second defendant) issued a declaration pursuant to s 44 of the Rural Fires Act and delegated his functions under Part 3 Division 1 of the Rural Fires Act to Superintendent Arthur of the Rural Fire Service who was appointed as Incident Controller in respect of the fire fighting operations and bushfire prevention measures identified in the declaration and also appointed Julie Crawford, the Regional Manager of the National Parks and Wildlife Service, as Deputy Incident Controller in respect of the fire fighting operations and bushfire prevention measures set out in the declaration;

(j) on the evening of Friday 17 January 2003 the fire jumped across the river; and

(k) on Saturday 18 January 2003 the respondents’ property was burnt out.

Evidence tendered on the hearing of the strike out application included a topographical map marked with contours, which became part of Exhibit 1 before the primary judge and indicated that the terrain on both sides of the river was steep.

It seems to me that, on the facts as pleaded, no duty of care:

· owed by the Rural Fire Service or any members or officers of the Rural Fire Service, for which the State of New South Wales could be said to be vicariously liable to the respondents or to any class of persons of which the respondents were members, or

· owed by the National Parks and Wildlife Service or any officers of the National Parks and Wildlife Service, for which the State of New South Wales could be said to be vicariously liable to the respondents or to any class of persons of which the respondents were members, or

· owed by the State of New South Wales to the respondents or to any class of persons of which the respondents were members

could be found to have arisen.

In my opinion the Statement of Claim discloses no reasonable cause of action and should be struck out.

Furthermore, in my opinion the facts upon which the respondents rely could not be re-pleaded so as to allow a finding that a duty of care of one or other of the types mentioned had arisen. In the circumstances it would not be appropriate to grant leave to the respondents to amend the Statement of Claim.

This is not a case where any physical action, as opposed to a decision on appropriate action, if any, was taken by the Rural Fire Service or any of its members or officers, such as the cutting down of burning trees, the starting of fires by way of back-burning, cutting fences to allow firebreaks to be established with bulldozers or undertaking direct suppression activities with fire hoses or tree branches. The matters relied upon by the respondents are all matters of inaction and/or decisions taken on the question of whether or not to take action.

Amongst the salient features to be taken into account in determining whether the Court should find a duty of care owed to the respondents or to a class of persons of which the respondents are members, were, as Gummow and Hayne JJ have said, ‘the terms, scope and purpose of the relevant statutory regime’.

Whilst s 44 of the Rural Fires Act provides for the Commissioner to ‘take charge’ of bushfire fighting operations and bushfire prevention measures and to ‘take such measures’ as he or she considers necessary to ‘control or suppress’ any bushfire in certain circumstances and s 127 contemplates the possibility of civil claims being made in respect of loss or damage caused by bushfires, nevertheless it seems to me that the scope and purpose of the Rural Fires Act, including the Parliament’s regard for the volunteer spirit and culture of the volunteer bushfire fighting movement, (see [159] and [160] above) and the fact that:

· in the exercise by the Commissioner of his functions, he is subject to the control and direction of the Minister

· the Rural Fire Service is heavily reliant upon volunteer rural fire fighters for the discharge of its functions

· under s 128 of the Rural Fires Act the Minister, the Commissioner and any person acting under the authority of the Commissioner, any member of the Rural Fire Service and members of Bush Fire Management Committees, are immune from liability for matters and things omitted to be done and also for matters or things done in good faith

· there have been no allegations made by the respondents of lack of good faith in respect of any protected persons or bodies in regard to matters or things done for the purposes of executing any provisions of the Rural Fires Act or any other Act

militate against the finding of any duty of care.

I do not consider that the terms of the NSW Rural Fire Service Manual of 1 September 1999 referred to at [164]-[165] above lead to a different conclusion.

Whilst s 64(1)(a) of the Rural Fires Act casts an obligation on occupiers of land to ‘take all possible steps’ to extinguish fires burning on their land, this does not, in my view, support a finding that occupiers owe common law duties of care to nearby property owners in respect of the extinguishment of fires burning on their land. It should be noted that the statutory obligation is not expressed to be a year-round obligation, but rather one which would arise during a ‘bush fire danger period applicable to the land’ and s 64(1)(b) clearly contemplates that occupiers may be unable to discharge their relevant extinguishment obligations in which case alternative obligations in respect of the making of communications about the existence and locality of the fires arise, which are themselves qualified, generally speaking, by the words ‘if it is practicable to do so’.

As McHugh J has said, ‘ordinarily, the common law does not impose a duty of care on a person to protect another from the risk of harm unless that person has created the risk. And public authorities are in no different position.’

Other salient features to be taken into account in determining whether or not a duty of care can arise in the present case and which I have considered in conjunction with the terms, scope and purpose of the relevant statutory regime are:

(a) for the purpose of the present application/appeal, it may be assumed favourably to the respondents that on 8-9 January 2003 there was reasonable foreseeability of the risk of loss or injury to the respondents if the fire which was ignited by the lightning strike on the afternoon of 8 January 2003 was not extinguished. However, the time separation between the ignition of the fire on 8 January and the fire jumping the Goodradigbee River some nine days later, may lead to a different conclusion;

(b) there was a measure of physical proximity between the apparent source of the fire and the respondents’ property;

(c) there was, relatively speaking, only limited control capable of being exercised by instrumentalities of the State of New South Wales over the risk of loss that eventuated;

(d) it may be assumed, for present purposes, that the respondents were in a position of vulnerability of which the applicant and its instrumentalities were aware. However such a situation was no different from that of other property owners within the general vicinity of bushfires ignited by natural means across the State during the bushfire season;

(e) the nature of the activities of the Rural Fire Service and the competing demands that may be placed upon it at any time of bush fire activity are likely to give rise to questions of practicality and appropriateness. For example, questions may arise as to whether resources should be deployed to fight fire ‘A’ or fire ‘B’; should volunteer fire fighters be called upon to engage in hazardous activities in the hope that a fire may be suppressed where their lives may be put at risk, etc;

(f) the primary responsibilities of the Rural Fire Service and, insofar as they are relevant, the National Parks and Wildlife Service, are public law duties. They were required to make appropriate judgments in respect of the deployment of their resources in the context of the location of the outbreak of the fire, the surrounding terrain and the other demands upon their available manpower and other facilities.

Taking all these matters into account I am of the opinion that, however the facts are pleaded, a duty of care, such as the duty/duties for which the respondents contend, could not arise.

At the conclusion of his submissions senior counsel for the respondents indicated that in the event that the Court ordered that the Statement of Claim be struck out his clients would wish to be heard on the issue of costs. He said:

Our position is that if that is the outcome, we have succeeded both before Connolly J and here in relation to a very significant matter that the defendant was seeking, that is to have the case summarily dismissed.
Secondly, we would argue insofar as we suffer any negative outcome in relation to striking out of the pleading because of the lack of pleading of more detail in the paragraphs as distinct from the particulars, we would wish to put on [an] affidavit as to the course of proceedings between the parties in support of an application that we get the costs in any event in relation that part of the case which concerns the strike out. However, our submission is although strike out is the route you’ve got to go through in order to get summary dismissal, this has always been a case about seeking summary dismissal … . Connolly J certainly treated it that way, that’s how the case was argued, and that’s really how the applicant presents [itself in its] application for leave to appeal.

In relation to these foreshadowed submissions on costs, it is appropriate to note, as previously observed, that an order dismissing a proceeding under Rule 425(3)(a) of the Court Procedures Rules is a different matter from the Court giving judgment for a defendant against a plaintiff for a plaintiff’s claim for relief when satisfied, inter alia, that the proceedings should be finally disposed of summarily or without pleadings in accordance with Rule 1147 of the Court Procedures Rules.

In the foregoing circumstances, the orders which I would propose are:

1. Leave to appeal from the judgment of Justice Connolly given on 6 July 2007 be granted.

2 Leave be granted to the applicant to file a Notice of Appeal in accordance with the draft Notice of Appeal dated 11 July 2007.

3. The appeal be allowed.

4. The orders made by Justice Connolly on 6 July 2007 be set aside.

5. The Statement of Claim dated 6 January 2006 be struck out.

6. The proceedings be dismissed.

7. Costs of the hearing at first instance, of the appeal and of the proceedings generally be reserved.

8. Direct that the parties file and serve such submissions in respect of costs as they may be advised within 14 days of the date of making the above orders.

I certify that the paragraphs numbered [102] – [249] are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.
Associate:
Date: 5 September 2008

Counsel for the Appellant: J E Maconachie QC with C M Erskine
and P D A Mallon

Solicitor for the Appellant:  I V Knight, Crown Solicitor for New
  South Wales by his town agent, Meyer
  Vandenberg

Counsel for the Respondents: B Gross QC with B J E Collaery

Solicitor for the Respondents:  Collaery Lawyers
Date of hearing:  18-19 February 2008
Date of judgment:  5 September 2008