Pyrenees Shire Council v Day - [1998] HCA 3

HIGH COURT OF AUSTRALIA

BRENNAN CJ,
TOOHEY, McHUGH, GUMMOW AND KIRBY JJ

PYRENEES SHIRE COUNCIL
(previously known as THE PRESIDENT,
COUNCILLORS & RATEPAYERS OF THE
SHIRE OF RIPON) APPELLANT

AND

WILLIAM ROSS DAY & ANOR RESPONDENTS

Pyrenees Shire Council v Day;
Eskimo Amber Pty Ltd v Pyrenees Shire Council (M57/1996) [1998] HCA 3
23 January 1998

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of Victoria

Representation:

B D Bongiorno QC with M L Warren for the appellant (instructed by Maddock Lonie & Chisholm)

G R Ritter QC with P J Riordan for the respondents (instructed by Oakley Thompson & Co)

Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

HIGH COURT OF AUSTRALIA

BRENNAN CJ,
TOOHEY, McHUGH, GUMMOW AND KIRBY JJ

ESKIMO AMBER PTY LTD & ORS APPELLANTS

AND

PYRENEES SHIRE COUNCIL
(previously known as THE PRESIDENT,
COUNCILLORS & RATEPAYERS OF THE
SHIRE OF RIPON) RESPONDENT

23 January 1998
M59/1996

ORDER

1. Appeal allowed with costs.

2. Set aside paragraph 2 of the Orders of the Court of Appeal of the Supreme Court of Victoria and in lieu thereof order that:
(a)The appeal to that Court be allowed with costs;

(b)Order 4 of the Order of Judge Strong be set aside and in lieu thereof order:

(i)judgment for Eskimo Amber Pty Ltd against the Pyrenees Shire Council for the sum of $110,218 together with interest and costs of the proceedings before the County Court; and

(ii)judgment for George and Voula Stamatopoulos against the Pyrenees Shire Council for the sum of $58,000 together with interest and costs of the proceedings before the County Court; and

3.

3.Remit the matter to the Supreme Court of Victoria to make such order as it sees fit with respect to the interest and costs referred to in paragraph (b) of this Order.

On appeal from the Supreme Court of Victoria

Representation:

G R Ritter QC with P J Riordan for the appellants (instructed by Oakley Thompson & Co)

B D Bongiorno QC with M L Warren for the respondent (instructed by Maddock Lonie & Chisholm)

Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Pyrenees Shire Council v William Ross Day & Anor
Eskimo Amber Pty Ltd & Ors v Pyrenees Shire Council

Negligence – Duty of care – Omission by public authority to exercise statutory powers – Absence of statutory duty – General reliance – Control – Reasonable foreseeability – Proximity – Policy considerations – Public duty – Mandamus – Whether municipal council under a public or common law duty to neighbouring property owners to take positive action to exercise its discretionary powers to notify of or remove fire-risks of which it is aware in order to prevent injury or property damage – Whether such duties are owed to occupiers.

Local Government Act 1958 (Vic), ss 695 (1A), 885, 891.

BRENNAN CJ. Shortly after midnight on 22 May 1990, Mr Stamatopoulos woke to discover that there was a fire in the premises which he and his family occupied in Beaufort, a small township in Victoria. He succeeded in getting his family out of the premises. Part of the premises was a fish and chip shop and part was a residence. The entire premises were destroyed by the fire. The fire also spread to the shop next door owned by Mr and Mrs Day, the respondents in the first appeal.
The tenant of the premises occupied by the Stamatopoulos family was their family company, Eskimo Amber Pty Ltd ("Eskimo"). Eskimo and Mr and Mrs Stamatopoulos are the appellants in the second appeal. Eskimo had gone into possession of the premises in January 1990 under an assignment of the tenancy by Mr and Mrs Tzavaras, the previous tenants. At all material times, the owners of the premises were Mr and Mrs Nakos.
The fire which destroyed the premises and damaged the Days' shop escaped from a fireplace in which Mr Stamatopoulos had lit a log fire before he went to bed. Beaufort has a cold climate in the winter and Mr Stamatopoulos had previously lit fires in the fireplace to warm the residential section of the premises during the night. He used a firescreen to prevent the escape of sparks. But the chimney of the fireplace was defective. At the trial of actions arising out of the fire before the County Court of Victoria, it was assumed that the fire escaped because of defects in the chimney that had been found there in August 1988.
The defects had been found in August 1988 as the result of the summoning of the Country Fire Authority ("the CFA") to the premises on 9 August when Mr Tzavaras' assistant became alarmed by what he thought was a fire in the chimney. The fire or smoke was quickly doused by the CFA. The CFA officer who attended saw that there was some mortar missing from the bricks in the back and bottom of the fireplace. He advised the assistant that the fireplace was unsafe to use. The CFA notified the Pyrenees Shire Council as it is now called ("the Council") of the occurrence. The Shire Engineer, Mr Humphries, then requested Mr Walschots, a recently appointed building and scaffolding inspector, to inspect the premises.
On the morning of 11 August 1988, Mr Walschots inspected the premises and found that the back wall of the fireplace in the residence and the back wall of the fireplace in the shop were parallel, with a space between them. There was a hole connecting the two fireplaces and hence allowing flame to enter the space between the two back walls. The side walls of the fireplace in the residence were fragmented and spalled. These defects created a substantial risk of fire. Mr Walschots pointed out the defects to Mr Tzavaras and told him he should not use the fireplace unless it was repaired.
This advice was followed by a letter written by Mr Walschots on the instructions of the Shire Engineer to "P. Tsavaros & S. Nakos" at the address shown on the Council's rate card, which was the address of the premises. The letter read as follows:
"At the request of the Shire of Ripon, Beaufort, I inspected two open fire places at the above location on 11th August, 1988 at 10.15 p.m. (sic).
During the inspection the following items were notes (sic) and are of some concern.
1.     A possible fire hazard and unsafe structural condition has occurred on both fire places that are constructed back to back.
(a)The near (sic) fireplace brickwork wall of both the rear habitable room and the shop and (sic) damaged and have partially collapsed into the front disused fireplace.
(b)The side walls of brickwork in the recently used fireplace located in the habitable room, have broken and there is missing brickwork, damaged mortar jointing and pargetting.
2.     The products of combustion can now enter the front fire place in the shop as well as enter into the wall cavity that is part of the dividing partition wall. This cavity could act as a flue for the smoke and fire to enter into the ceiling of the shop.
3.     Smoke can now enter the main shop area and the possibility of fire and health risk is great.
It is therefore imperative that the abovementioned fireplaces be not used under any circumstances unless:-
(a)Structurally sound repairs are made to make the chimneys and fireplaces safe.
(b)General repairs are made to mortar and brickwork to make the walls heat resistant and prevent smoke leakage.
(c)Alternatively repair the fireplaces structurally and seal both fireplace openings permanently and discontinue use.
Yours faithfully,
(Sgd)
Chris Walschots,
BUILDING INSPECTOR."
Judge Strong, the trial judge, found that Mr Tzavaras received the letter but did not inform Mr Nakos of either the contents of the letter or the warning which Mr Walschots had earlier given him not to use the fireplace. Nor did he communicate that information to Mr or Mrs Stamatopoulos when they were negotiating with him to buy the business and the lease of the premises in January 1990. To the contrary, when Mr Stamatopoulos enquired whether the fire place was in use, Mr Tzavaras misled Mr Stamatopoulos (as Judge Strong found) by telling him that it was. Consequently, when Mr Stamatopoulos lit the fire on 22 May, he had no knowledge of the defects in the fireplace. The defects were latent.
The damage and its cause
Eskimo, Mr and Mrs Stamatopoulos and Mr and Mrs Day all suffered property damage. Eskimo lost plant, equipment and stock and, in consequence, loss of profits of its business. Its damages were agreed at $110,218. Mr and Mrs Stamatopoulos lost property which was assessed at $58,000. Mr and Mrs Day suffered loss in consequence of the damage to their shop which was agreed at $38,062. None of the damages suffered was in respect of pure economic loss. In each case, the cause of the loss in question was the escape of the fire from the fireplace. The trial judge found Mr Tzavaras guilty of negligence and judgments were entered against him in favour of Eskimo, Mr and Mrs Stamatopoulos, Mr and Mrs Day and Mr and Mrs Nakos respectively but the only claim which succeeded against the Council was the claim made by Mr and Mrs Day. Appeals to the Court of Appeal by Eskimo and Mr and Mrs Stamatopoulos against the Council and by the Council against Mr and Mrs Day were dismissed. In the appeals from the Court of Appeal to this Court, the question for determination is whether the Council was under a duty, to Eskimo and Mr and Mrs Stamatopoulos in one case and to Mr and Mrs Day in the other, to take some step which it unreasonably failed to take which, if taken, would have avoided the property damage which those parties respectively suffered as the result of the escape of the fire.
The starting point in answering that question is the identification of the damage which occurred and which, it is said, the Council had a duty to take some step to avoid. It is property damage, not pure economic loss. When the damage in issue is "pure economic loss which is not parasitic upon physical damage"[1], its immediate cause is frequently the action or inaction of the plaintiff who suffers the damage. To sheet home liability to the alleged wrongdoer in cases of that kind, it is necessary to show that some act or omission on the part of the alleged wrongdoer induced the plaintiff to act or to refrain from acting in the way which caused the damage. Thus the chain of causation is established between the act or omission of the alleged wrongdoer and the particular loss. To prove inducement, it is necessary to show that the plaintiff acted or refrained from acting in reliance on the alleged wrongdoer's act or omission. Reliance becomes a critical link in the chain of causation and a necessary element in the plaintiff's cause of action[2]. This is not such a case. The losses which the plaintiffs seek to recover in the present proceedings were caused by the escape of fire from the fireplace in the residence occupied by the Stamatopoulos family, not by any action or inaction on the part of the plaintiffs. They did not know of any action or inaction on the part of the Council on which they might have relied to prevent the occurrence of the loss they respectively suffered.
[1] Lord Goff's description in Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 at 178.
[2] Reliance is used in another sense when a defendant has assumed some responsibility to perform a particular task. Reliance in that sense is discussed below.
The preventive steps which might have been taken to prevent the occurrence of the plaintiffs' respective losses were (i) repair of the defects in the fireplace or blocking it up so that it could not be used; (ii) informing Mr Stamatopoulos, representing Eskimo, that the fireplace was dangerous and was not to be used; and (iii) action which might have been taken by the Council under its statutory powers to eliminate the danger of escape of fire. We are not concerned in these appeals with the duty of Mr and Mrs Tzavaras (who knew of the danger) or Mr and Mrs Nakos (who did not) to take any of steps (i) and (ii); we are concerned only with the duty of the Council.
The Council's statutory powers
The Local Government Act 1958[3] (Vic) ("the Act") contains a number of provisions that are material to the taking of action to prevent the risk of fires that might cause damage. The first is s 695(1A):
"For the purpose of preventing fires the owner or occupier of any land upon which is erected any chimney or fire-place which is constructed of inflammable material or which is not adequately protected so as to prevent the ignition of other adjacent material of an inflammable nature may by notice in writing be directed by the council of the municipality within the municipal district[4] of which such land is situated to alter the fire-place or chimney so as to make it safe for use as a fire-place or chimney, as the case may be."
The introductory phrase of this sub-section prescribes the purpose for which the Council is armed with the power to give the notice requiring the owner or occupier to make a fireplace or chimney safe for use as a fireplace or chimney. In sending the letter of 12 August 1988, Mr Walschots presumably exercised or intended to exercise on the Council's behalf the power conferred upon the Council by s 695(1A) of the Act.
[3] The title of the Act was amended to the Local Government (Miscellaneous) Act 1958 (Vic) by s 4(4) of the Local Government (Consequential Provisions) Act 1989 (Vic), effective from 23 September 1992. The Act was repealed by s 25 of the Local Government (Amendment) Act 1994 (Vic), effective from 1 January 1996 but it is convenient to describe its provisions as though they are in the form in which they stood at all relevant times.
[4] Section 3(2)(a) of the Act provides, inter alia, that the corporation of every shire "shall be deemed to be a municipality" and that "the district under the local government of a municipality shall be called its municipal district".
When a notice is given under s 695(1A), the person to whom it is given is bound to comply with it. Section 890 of the Act provides, inter alia:
"Where ... any authority is given by this Act to any person to direct any matter or thing to be done or to forbid any matter or thing to be done and such act so directed to be done remains undone or such act so forbidden to be done is done in every such case every person offending against such direction or prohibition shall be deemed guilty of an offence against this Act."
A penalty is provided by s 891 for failure to comply:
"Every person guilty of an offence against this Act shall for every such offence be liable to the penalty expressly imposed by this Act or by any by‑law or regulation in force in that behalf and if no other penalty is imposed to a penalty of not more than 10 penalty units."
Where the owner of a building makes default in complying with a notice that requires work to be executed by the owner, s 885 authorises the occupier with the approval of the council to -
"cause such work to be executed and the expense thereof shall be a debt due to such occupier by the owner of the building or land, and such occupier may deduct the amount of such expense out of the rent from time to time becoming due from him to such owner."
And, if neither the owner nor the occupier complies with the notice requiring work to be done to prevent fire, s 694(1) of the Act provides:
"The council of any municipality may carry out or cause to be carried out any works or take any other measures for the prevention of fires."
The fire-prevention powers of the Council were adequate, if fully exercised, to ensure that the defect in the fireplace which Mr Walschots had found was remedied and that, until it was remedied, no fire would be lit in that fireplace. But the Council did not bring the defect which Mr Walschots had discovered to the attention of the owners, Mr and Mrs Nakos nor, on the change in tenancy, did they bring the defect to the notice of Mr and Mrs Stamatopoulos or otherwise to the notice of Eskimo. Mr Walschots' letter was addressed to "P. Tsavaros & S. Nakos" at 70 Neill Street, Beaufort, because those were the only names and the only address shown on the rate card at the time. The Council did not enquire whether the owners, Mr and Mrs Nakos, received the notice.
After Mr Walschots' visit to the premises on 11 August 1988, it was clear that the defect in the premises constituted a serious fire threat if the fireplace were used without the defect being remedied. There was evidence of the practice which ought to be followed by a council to bring the attention of an owner and occupier to their legal obligations to remedy defects of the kind discovered by Mr Walschots, to follow up a notice requiring remedial work to be done and to ensure that the work is done. But that practice was not followed by the Council or its officers. No further inspection of the premises was made. Nothing was done to check whether the directions contained in Mr Walschots' letter were carried out. No attempt was made, whether by threatening prosecution or otherwise, to enforce compliance with those directions. No work on the premises for the prevention of fire was carried out or authorised to be carried out by the Council. These were steps which the Council could have taken to prevent the risk to life and property posed by the defective fireplace. It was a serious risk which, if it eventuated, might have seen the destruction of a large part of the township. If the Council was under any statutory or common law duty to take these steps, it was guilty of negligence; if it was not under any such duty, its carelessness does not expose it to liability in damages.
The basis of liability
In Sutherland Shire Council v Heyman[5], I adopted a passage from the judgment of Kitto J in Sovar v Henry Lane Pty Ltd[6] in holding that, before a right of action in damages for breach of statutory duty arises, "the statute must (either expressly or by implication) impose a duty to exercise the power and confer a private right of action in damages for a breach of the duty so imposed". Kitto J said:
"The intention that such a private right shall exist is not ... conjured up by judges to give effect to their own ideas of policy and then 'imputed' to the legislature. The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation".
[5] (1985) 157 CLR 424 at 482.
[6] (1967) 116 CLR 397 at 405.
Breach of statutory duty is a cause of action distinct from the cause of action for common law negligence. The former is the creature of statute; the latter of the common law. However, the same set of circumstances may give rise to either cause of action. In the present case, the statute imposes no general duty on a council to exercise its fire-prevention powers irrespective of the circumstances. For example, if a council has no knowledge of circumstances which create a risk of fire, it is not under a statutory duty to take action to prevent the risk eventuating. Take the present case. If nothing had occurred prior to 22 May 1990 to alert the Council to the defect in the fireplace of the residence occupied by the Stamatopoulos family, the escape of fire from the fireplace on that night would not have exposed the Council to liability for failing to discover the defect and taking action to prevent the fire of that night occurring. The Act leaves the decision whether to take official fire-prevention action to the council in which the powers are reposed. A council or its authorised officers may decide that the only risk of loss from fire is the risk of destruction of property of an owner-occupier who prefers to run that risk. In such a case, it may be officious for the council to interfere. Or the risk of fire or of consequential damage may be so small and the cost or difficulty of rectifying the defects may be so great that it would not be reasonable to require the defect to be rectified or for the council itself to carry out the rectification. No action lies against a council for failing to exercise its fire prevention powers in such cases. The decision not to exercise those powers would be a lawful exercise of the council's discretion.

Yet, as the escape of fire frequently exposes neighbouring persons and their property to the risk of damage or destruction, the provision of a measure of protection for those individuals is at least one of the purposes, if not the chief purpose, of arming a council with fire-prevention powers. Consistently with that purpose, a council that knows of a risk by fire to persons or property cannot refuse to exercise its fire-prevention powers where an exercise of those powers would protect those persons or property unless the council has some good reason for not exercising those powers so far as they are needed to prevent the risk from eventuating. If a council unreasonably fails to exercise its powers to prevent a known risk of fire and a fire occurs which an exercise of the fire-prevention powers would have avoided and if the fire causes loss or damage to the person or property of an individual, does that individual have any remedy against the council?
The basis of an action for damages
Mason CJ supported an action at common law against a public authority for damages that could have been avoided by an exercise of statutory power on a basis stated in his Honour's judgment in Sutherland Shire Council[7]:
"In the case of a public authority, the foreseeability of the plaintiff's reasonable reliance is a sufficient basis for finding a duty of care, subject to such dispensations as may arise from the special character of a public authority exercising statutory functions ...
If this be accepted, as in my opinion it should be, there will be cases in which the plaintiff's reasonable reliance will arise out of a general dependence on an authority's performance of its function with due care, without the need for contributing conduct on the part of a defendant or action to his detriment on the part of a plaintiff. Reliance or dependence in this sense is in general the product of the grant (and exercise) of powers designed to prevent or minimize a risk of personal injury or disability, recognized by the legislature as being of such magnitude or complexity that individuals cannot, or may not, take adequate steps for their own protection. This situation generates on one side (the individual) a general expectation that the power will be exercised and on the other side (the authority) a realization that there is a general reliance or dependence on its exercise of power[8]. The control of air traffic, the safety inspection of aircraft and the fighting of a fire in a building by a fire authority ... may well be examples of this type of function."
At this point in his judgment, his Honour was not speaking of reliance induced by a practice adopted by a public authority in repeatedly or regularly exercising its statutory powers[9]. Nor was he speaking[10] of the kind of reliance that a particular plaintiff may place upon a particular defendant who has assumed a responsibility to exercise due care and skill in the conduct of the plaintiff's affairs[11] or in his medical treatment[12]. Nor does his Honour use "reliance" in this context in the same sense as it is used to describe a causal link connecting a defendant's conduct with a loss produced immediately by a plaintiff's own act or omission. Mason J used "reliance" to indicate an expectation by the community at large that a defendant would act in a particular way in order to perform a statutory function. This basis for imposing a duty of care was said by Lord Hoffmann in Stovin v Wise[13] to have -
"little in common with the ordinary doctrine of reliance; the plaintiff does not need to have relied upon the expectation that the power would be used or even known that it existed. It appears rather to refer to general expectations in the community, which the individual plaintiff may or may not have shared."
[7] (1985) 157 CLR 424 at 463-464.
[8]      See Shapo, The Duty to Act, (1977) at 95-96.
[9]      See the judgment at 461.
[10]    See the judgment at 461-462.
[11]    See, for example, Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 at 180, 182; Spring v Guardian Assurance Plc [1995] 2 AC 296 at 316, 324.
[12]    Thomsen v Davison [1975] Qd R 93.
[13] [1996] AC 923 at 954.
If the "general expectations of the community" were to be the touchstone of liability, the proof of that fact would present considerable difficulty. The test seems to invite consideration of a general expectation of the exercise of a statutory power rather than an expectation referable to particular circumstances which might invite consideration of an exercise of the power. If community expectation that a statutory power will be exercised were to be adopted as a criterion of a duty to exercise the power, it would displace the criterion of legislative intention. In my respectful opinion, if the public law duty of a public authority to exercise a power is relevant to its liability in damages for a failure to exercise that power, the appropriate criterion is legislative intention. I am respectfully unable to accept "general reliance" as the basis of such a liability.
In Parramatta City Council v Lutz[14] McHugh JA (as his Honour then was) stated his support for another basis, namely,
"that a public authority should be under a duty to take affirmative action when the control of conduct or activities has been ceded to it by common understanding or when it receives some benefit from the conduct or activities. If in addition to the right of control the authority knows or ought to know of conduct or activities which may foreseeably give rise to a risk of harm to an individual, the authority should be under a duty to prevent that harm."
Although his Honour thought that "the concept of general reliance as expounded by Mason J in [Sutherland Shire Council v Heyman] is not far removed from the concept of control"[15], a difference can be seen in his Honour's reference to the scope of the power: it must be a power of control over risk-producing conduct or activity. With respect, I am unable to adopt his Honour's requirement of "common understanding" as a criterion of the existence of a duty to exercise the power. If a statute confers such a power on a public authority, it would seem that the requirement that the power be ceded to the authority "by common understanding" is satisfied simply by operation of the statute. It would be anomalous to impose a common law duty to exercise the power because of a "common understanding" where the statute gives the public authority a discretion to refrain from its exercise. To my mind, both the "general reliance" and the "control" bases of a common law duty of care seem to treat the conferral of a statutory power as the equivalent of an assumption by the repository of responsibility to exercise reasonable care in the performance of the statutory function. Of course, a public authority may act so as to assume a responsibility to exercise the power and to exercise it with reasonable care, in which case it may be held liable for a failure to discharge that responsibility. But the duty of care arises in such cases from the conduct of the public authority, not from a community expectation or a common understanding as to the nature of the statutory power.
[14] (1988) 12 NSWLR 293 at 328.
[15] (1988) 12 NSWLR 293 at 330.
In Stovin v Wise[16], a more cautious approach was taken by Lord Hoffmann in a speech which commanded the concurrence of Lord Goff of Chieveley and Lord Jauncey of Tullichettle:
" In the case of a mere statutory power, there is the further point that the legislature has chosen to confer a discretion rather than create a duty. Of course there may be cases in which Parliament has chosen to confer a power because the subject matter did not permit a duty to be stated with sufficient precision. It may nevertheless have contemplated that in circumstances in which it would be irrational not to exercise the power, a person who suffered loss because it had not been exercised, or not properly exercised, would be entitled to compensation. I therefore do not say that a statutory 'may' can never give rise to a common law duty of care. I prefer to leave open the question of whether the Anns case was wrong to create any exception to Lord Romer's statement of principle in the East Suffolk case and I shall go on to consider the circumstances (such as 'general reliance') in which it has been suggested that such a duty might arise. But the fact that Parliament has conferred a discretion must be some indication that the policy of the act conferring the power was not to create a right to compensation. The need to have regard to the policy of the statute therefore means that exceptions will be rare.
In summary, therefore, I think that the minimum preconditions for basing a duty of care upon the existence of a statutory power, if it can be done at all, are, first, that it would in the circumstances have been irrational not to have exercised the power, so that there was in effect a public law duty to act, and secondly, that there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised."
[16] [1996] AC 923 at 953.
I respectfully agree that if a decision not to exercise a statutory power is a rational decision, there can be no duty imposed by the common law to exercise the power. I further agree that if it be contrary to the policy of the statute to confer a private right to compensation for non-exercise of a statutory power, the common law cannot create that right. A statutory power and its incidents are creatures of the legislature and the common law must conform to the legislative intention.
But the existence of a discretion to exercise a power is not necessarily inconsistent with a duty to exercise it. As Earl Cairns LC said in Julius v Lord Bishop of Oxford[17]:
"[t]here may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so."
In Padfield v Minister of Agriculture, Fisheries and Food[18], Lord Reid cited this passage and proceeded:
"Lord Penzance said that the true question was whether regard being had to the person enabled, to the subject-matter, to be general objects of the statute and to the person or class of persons for whose benefit the power was intended to be conferred, the words do or do not create a duty,[19] and Lord Selborne said that the question was whether it could be shown from any particular words in the Act or from the general scope and objects of the statute that there was a duty.[20] So there is ample authority for going behind the words which confer the power to the general scope and objects of the Act in order to find what was intended."
And in Commissioner of State Revenue (Vict) v Royal Insurance Australia Ltd[21], I said with the concurrence of Toohey and McHugh JJ:
"When the power exists and the circumstances call for the fulfilment of a purpose for which the power is conferred, but the repository of the power declines to exercise the power, mandamus is the appropriate remedy even though the repository has an unfettered discretion in other circumstances to exercise or to refrain from exercising the power[22]."
[17] (1880) 5 App Cas 214 at 222-223.
[18] [1968] AC 997 at 1033.
[19] (1880) 5 App Cas 214 at 229-230.
[20] (1880) 5 App Cas 214 at 235.
[21] (1994) 182 CLR 51 at 88.
[22] Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, esp at 1033-1034.
Thus a duty to exercise a power may arise from particular circumstances, and may be enforceable by a public law remedy. Where a purpose for which a power is conferred is the protection of the person or property of a class of individuals and the circumstances are such that the repository of the power is under a public law duty to exercise the power, the duty is, or in relevant respects is analogous to, a statutory duty imposed for the benefit of a class, breach of which gives rise to an action for damages by a member of the class who suffers loss in consequence of a failure to discharge the duty. The general principles of public law establish the existence of the statutory duty to exercise the power and the statute prescribes the class of individuals for whose benefit the power is to be exercised.
Where the power is a power to control "conduct or activities which may foreseeably give rise to a risk of harm to an individual" (to use a criterion stated by McHugh JA in Parramatta City Council v Lutz[23]) and the power is conferred for the purpose of avoiding such a risk, the awarding of compensation for loss caused by a failure to exercise the power when there is a duty to do so is in accordance with the policy of the statute. An individual who is among the class whose interests are intended to be protected by exercise of the power has both locus standi to seek a public law remedy[24] and a right to compensation for damage suffered as the result of any breach of the duty to exercise the power in protection of that individual's person or property. It was on the basis of a public authority's breach of its statutory duty properly to control a scenic reserve that this Court held in Schiller v Mulgrave Shire Council[25] that a visitor to the reserve was entitled to damages for personal injury when struck by the falling of a dead tree.
[23] (1988) 12 NSWLR 293 at 328.
[24] Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 at 557-558.
[25] (1972) 129 CLR 116 at 120, 124, 134.
No duty breach of which sounds in damages can be imposed when the power is intended to be exercised for the benefit of the public generally and not for the protection of the person or property of members of a particular class. And I doubt whether a duty breach of which sounds in damages would be held to exist if the power were conferred merely to supervise the discharge by a third party of that party's duty to act to protect a plaintiff from a risk of damage to person or property.
The care and diligence needed to discharge the duty vary according to the circumstances that are known. The measure of the duty owed to members of the relevant class is no greater than the measure of the public law duty to exercise the power. Where, as in the present case, there is a risk of fire that could destroy a large part of a township, the care and diligence to be exercised are greater than where the risk is of an escape of a fire that poses a threat only to an isolated structure or to crops, trees or pasture within a confined area.
In the present case, although there was no public expectation that the Council would exercise its powers to enforce compliance with the requirements set out in Mr Walschots' letter, nor was any reliance placed by the respective plaintiffs on the Council's doing so, the Council was under a public law duty to enforce compliance with the requirements in Mr Walschots' letter. The risk of non-compliance was extreme for lives and property in the neighbourhood of the defective chimney and there was no reason which could have justified the Council's failure to follow up the letter, even to the extent of prosecuting for any default. It is unnecessary to determine whether the Council would have been under a duty itself to rectify the defects in the fireplace if the owners and occupiers all failed or refused to do so. The likelihood is that no more would have been needed to be done than to ensure that the owners and occupiers knew of the danger and to ensure that they knew of the request to remedy the latent defect which Mr Walschots' inspection had revealed. The Council failed to exercise its powers with the care and diligence demanded by the circumstances and, as a result, Mr Stamatopoulos lit the fire which escaped and destroyed Eskimo's premises and damaged the Stamatopoulos' property and the Days' Shop.
I would allow the appeal by Eskimo and Mr and Mrs Stamatopoulos and order that judgment be entered in favour of Eskimo against the Council for $110,218 damages together with interest and costs and in favour of Mr and Mrs Stamatopoulos for $58,000 damages together with interest and costs. I would give Eskimo and Mr and Mrs Stamatopoulos leave to bring in short minutes of order by consent within 14 days to give effect to this judgment, otherwise I would remit that matter to the Supreme Court of Victoria to enter such judgment as is consistent with the judgment of this Court. I would dismiss the appeal by the Council against Mr and Mrs Day.

TOOHEY J. The circumstances giving rise to this litigation are detailed in the judgment of Kirby J. I accept his Honour's recital of the facts. Some reference to those facts is, however, unavoidable.
The Court has before it two appeals from the Court of Appeal of the Supreme Court of Victoria relating to the liability of a local authority in a situation where the local authority knew of a dangerous situation existing in premises but failed to exercise a statutory power or powers available to it which might have prevented damage sustained by the occupiers of the premises and the owners of adjoining premises.
Although I am concerned to avoid repetition of the facts, it is necessary before proceeding further to identify those who featured at various times in the events which led to litigation and eventually to these appeals.
The parties to the litigation
The Pyrenees Shire ("the Shire") is the result of the amalgamation in 1994 of several Victorian local authorities, including the Shire of Ripon where the relevant events took place. Within the Shire is the town of Beaufort with a population of about 1,500. On 22 May 1990 Mr and Mrs Day, the respondents in the first appeal, were the owners of 72 Neill Street, Beaufort. On that day a fire broke out in 70 Neill Street which spread to the adjoining premises and caused considerable damage to both premises. At that time Mr and Mrs Nakos were the owners of No 70. Those premises had been earlier let to Mr and Mrs Tzavaras but in or about January 1990 they had assigned their lease to Eskimo Amber Pty Ltd ("Eskimo Amber"), the family company of Mr and Mrs Stamatopoulos. Eskimo Amber and the Stamatopoulos' are the appellants in the second appeal.
There were three actions in the Supreme Court of Victoria and three appeals to the Court of Appeal[26]. The reason why there are only two appeals to this Court is that in one action Mr and Mrs Nakos sued Mr and Mrs Tzavaras for damages sustained in the fire which broke out on 22 May 1990. They succeeded at first instance against Mr Tzavaras but not against the Shire[27]. Their appeal against the dismissal of their action against the Shire failed and they have not challenged that result. Nor did Mr Tzavaras appeal against the judgment obtained against him by Mr and Mrs Nakos.
[26] Pyrenees SC v Day [1997] 1 VR 218.
[27] It is convenient to refer to "the Shire" but it is the Pyrenees Shire Council which is the party to each of these appeals.
In one of the other two actions, Mr and Mrs Day claimed damages against Mr and Mrs Tzavaras and against the Shire. They recovered against Mr Tzavaras and the Shire. The Shire unsuccessfully appealed to the Court of Appeal and now appeals to this Court. In the other action Eskimo Amber and Mr and Mrs Stamatopoulos succeeded against Mr Tzavaras but not against the Shire[28]. Their appeal to the Court of Appeal was unsuccessful and they now seek to bring liability home to the Shire as well.
[28] Eskimo Amber claimed damages for destruction of plant, equipment and stock and loss of profits. Mr and Mrs Stamatopoulos claimed damages for loss of personal property.
The 9 August 1988 incident

On 9 August 1988 there was an incident in the premises at 70 Neill Street which caused the Country Fire Authority brigade to be summoned. The details of this incident appear in the judgment of Kirby J but, briefly, a fire lit in one of two fireplaces caused a fire in the chimney or perhaps an escape of smoke which suggested a fire in the chimney.
When the Beaufort Brigade of the Country Fire Authority attended at No 70, one of its officers, Mr Gerard, formed the opinion that the fireplaces, which were back to back, were unsafe to use. The brickwork had collapsed and in the fireplace which was used there was missing brickwork and damaged mortar jointing. In consequence, if a fire were lit in that fireplace, smoke could enter the main shop area with the possibility of a fire breaking out.
On 11 August Mr Walschots, a building inspector with the Shire, attended the premises at 70 Neill Street at the instance of his superior, Mr Humphries. Mr Walschots' evidence was that the fire bricks were "spalled", that is, they would disintegrate early. In this sense the fireplace was dangerous though the trial judge described the danger as "latent, at least to the extent that it was unlikely to be detected by an occupier of the subject premises who was not versed in the condition of fireplaces". Mr Walschots also gave evidence (which was accepted by the trial judge) that he told Mr Tzavaras not to use the fireplace unless it was repaired or sealed, that he (Walschots) would make a report to the building surveyor and that Mr Tzavaras would soon hear from the Shire Council. Mr Tzavaras undertook not to use the fireplace. However Mr and Mrs Tzavaras continued to use the fireplace and when they assigned their lease to Eskimo Amber, Mr Tzavaras indicated to Mr Stamatopoulos that the fireplace was serviceable.
On 22 May 1990, with a fire burning in the fireplace in question, the building caught on fire causing the damage to 70 and 72 Neill Street to which reference has been made. What action, if any, had the Shire taken in the meantime? What are the legal consequences, if any, by reason of failure to take action? These questions are at the heart of these appeals.
The issues before the Court
At trial Mr and Mrs Day, Mr and Mrs Nakos, Eskimo Amber and Mr and Mrs Stamatopoulos pleaded both breach of statutory duty and negligence against the Shire. The trial judge dismissed the claims for breach of statutory duty but held the Shire liable in negligence to Mr and Mrs Day. As already noted, he held the Shire not liable in regard to Eskimo Amber and Mr and Mrs Stamatopoulos. Those results were affirmed on appeal. While the Shire has appealed to this Court against the finding of negligence, there has been no notice of contention by the Days in respect of the finding of no breach of statutory duty. Nor have Eskimo Amber and the Stamatopoulos' relied upon a breach of statutory duty in their appeal to this Court. However the statutes to which reference will be made are relevant to an assessment of whether any common law duty of care existed on the part of the Shire.
Duty of care
The trial judge held that a common law duty of care on the part of the Shire arose from the fact that a "rate payer in the position of the Days" must be able to "rely upon his local council to appropriately address a significant fire hazard, of which the rate payer is entirely ignorant, in an adjoining shop ... which, it was acknowledged, had the potential to 'raze Beaufort'". His Honour concluded that liability arose because there was sufficient "general reliance of a kind which ... produced the requisite proximity".
In the Court of Appeal Brooking JA, with whom Ormiston and Charles JJA agreed, made his approach clear when he said[29]:
"    In my opinion these appeals are to be resolved by use of the notion of general reliance, first put forward by Mason J in Heyman[30], developed by McHugh JA in Lutz[31] and applied or at least recognised in a number of other decisions."
He continued[32]:
"    Neighbouring owners and occupiers have no rights of entry or inspection, and in general have no expertise and no special means of knowledge which equip them to deal with dangers of the kind which existed in this case. In my view a duty of care was owed by the Shire to the Days. ... The general reliance on the Shire was reasonable and the Shire ought to have foreseen that reliance."
[29] [1997] 1 VR 218 at 237.
[30]    Sutherland Shire Council v Heyman (1985) 157 CLR 424.
[31]    Parramatta City Council v Lutz (1988) 12 NSWLR 293.
[32] [1997] 1 VR 218 at 238.
However Brooking JA upheld the decision of the trial judge in rejecting the claim by Eskimo Amber and Mr and Mrs Stamatopoulos that the Shire owed a duty of care to them. They were in possession of 70 Neill Street and were able to inspect the chimney. He concluded[33]:
"I do not think that the occupiers of a building with a defect of this kind may be said to rely or depend on the municipality to take reasonable care to safeguard them against loss of the kind here in question, or that any such reliance could be said to be reasonable".
[33] [1997] 1 VR 218 at 240.
Brooking JA reached these conclusions after an examination of relevant legislation and decisions. It is to the legislation that I now turn.
The legislation and its application
The principal statute for consideration is the Local Government Act 1958 (Vic)[34]. Section 694(1) reads:
" The council of any municipality may carry out or cause to be carried out any works or take any other measures for the prevention of fires."
This empowering provision is in broad terms[35]. It is to be read along with s 883 which authorises the council of a municipality
"for the purposes of this Act ... by itself or its officers to enter at all reasonable hours in the day‑time into and upon any building or land within the municipal district for the purpose of executing any work or making any inspection authorized to be executed or made by them under this Act without being liable to any legal proceedings on account thereof".
[34] All the provisions of the Act relevant to these appeals remained in force until 1 October 1992: see [1997] 1 VR 218 at 229.
[35] Section 40(a) of the Interpretation of Legislation Act 1984 (Vic) provides that, unless the contrary intention appears, where an Act or subordinate instrument confers a power, the power may be exercised "from time to time as occasion requires".
Counsel for the Shire submitted somewhat equivocally that the Shire did not have a power of entry in the circumstances. This was said to be because s 695(1A) did not permit a power of inspection. That sub‑section reads:
" For the purpose of preventing fires the owner or occupier of any land upon which is erected any chimney or fire‑place which is constructed of inflammable material or which is not adequately protected so as to prevent the ignition of other adjacent material of an inflammable nature may by notice in writing be directed by the council of the municipality ... to alter the fire‑place or chimney so as to make it safe for use as a fire‑place or chimney, as the case may be."
Brooking JA noted a suggestion that s 694(1), on its own:
"might be interpreted as not empowering the council to enter upon private land against the will of the person entitled to possession or to direct an owner or occupier to carry out works"[36].
Be that as it may, Brooking JA went on to say[37]:
"all parties to these appeals accept that subs (1A) of s 695 was available to the council in the present case as a means of dealing with the incident of August 1988. It is clear, however, that subs (1A) was not invoked in this case".
[36] [1997] 1 VR 218 at 229.
[37] [1997] 1 VR 218 at 230.
In my view s 694(1), at least when read with s 883, does empower entry on to premises. And, in my further view, a direction requiring a chimney to be made safe is the taking of a measure within s 694(1). There are other sections of the Local Government Act which may be noted. Section 885 is a provision whereby, if default is made by the owner of a building or land in the execution of any work required to be executed by him, the occupier may with the approval of the council cause the work to be executed. The expense constitutes a debt owing by the owner which the occupier may deduct from rent due from time to time. Sections 890 and 891 provide for prosecution and penalties on default in compliance with a direction by the council.
Furthermore, I do not agree that s 695(1A) was not invoked. On 12 August 1988 Mr Walschots, as building inspector, wrote to "P Tsavaros (sic) and S Nakos" a letter, the terms of which are set out in the judgment of Brennan CJ. The letter refers to Mr Walschots' inspection of two open fireplaces at 70 Neill Street and identifies a possible fire hazard and unsafe structural condition in both fireplaces. The letter concludes with a firm direction that the fireplaces be not used under any circumstances unless repairs are carried out to make the chimneys and fireplaces safe. Although Mr Tzavaras denied receiving the letter, the trial judge rejected his denial.
Brooking JA took the view that the letter of 12 August could not be regarded as a notice given under s 695(1A). He said[38]:
"In the first place, its terms are not such as to make it clear to the addressee that he is being directed to do something: the words 'it is therefore imperative that' in the letter might reasonably be read as nothing more than a strong exhortation. In the second place, even if the letter may be viewed as containing a direction to alter the fireplace so as to make it safe for use as such, the addressee is given the option of sealing up the fireplace permanently and discontinuing use as an alternative to complying with the direction, so depriving the direction of its necessary mandatory effect."
With respect to his Honour, that view of the letter is overly narrow. It is true that, in one sense, the recipients of the letter could meet its terms by not using the fireplace. But on a reasonable construction of the letter, they were being directed either to repair the chimneys and fireplaces or alternatively repair the fireplaces and seal their openings. And they were being directed to do so "[f]or the purpose of preventing fires", the language of s 695(1A), even if those concerned with the composition and sending of the letter did not consciously direct their attention to that particular provision[39].
[38] [1997] 1 VR 218 at 230.
[39] Lockwood v The Commonwealth (1954) 90 CLR 177 at 184; Brown v West (1990) 169 CLR 195 at 203.
There was also some discussion at trial and on appeal as to whether the letter could have constituted a notice under reg 57.2 of the Victoria Building Regulations 1983 which empowered the Shire building surveyor to serve a notice on the owner of a dangerous building[40]. It seems that Mr Walschots and Mr Humphries had this provision in mind when they prepared the letter of 12 August 1988. However this raises an issue as to whether the building was "dangerous", a matter that was not entirely resolved in the courts below and which it is not necessary to resolve here[41].
[40] This regulation, made under the Building Control Act 1981 (Vic), was in force from 1 August 1988.
[41] See [1997] 1 VR 218 at 228‑229.
The Court of Appeal was also referred to provisions of the Health Act 1958 (Vic) and the Building Control Act 1981 (Vic). It was accepted by the Court of Appeal that these Acts had no application to the appeal by Mr and Mrs Day. In passing it may be noted that s 165 of the Building Control Act contains a power of entry by a council "at any time where the safety of the public or the occupants is at risk".
Although the plaintiffs included in their statements of claim reference to the Building Control Act, doubts were expressed by both the trial judge and the Court of Appeal as to its application[42]. No particular argument in this regard was addressed in this Court and as the application of the Act involves questions of law and fact that were not determined in the courts below, this legislation can be put to one side.
[42] See [1997] 1 VR 218 at 226‑227, 236‑237.
In this Court the Shire relied upon the Housing Act 1983 (Vic) and the Housing (Standard of Habitation) Regulations 1985 (Vic) as precluding a duty of care. This was because the regulations require that "every fireplace, hearth and chimney or other heating appliance in a house shall be maintained in a safe condition"[43]. The Housing Act contains provision for the Director of Housing to take various steps if the regulations are not complied with[44]. The Shire's argument was that the existence of these provisions destroyed any duty of care on the part of the Shire as it placed an obligation on occupiers to "look out for themselves".
[43] reg 38(i).
[44] See generally regs 37, 38 and ss 64‑68.
Counsel for the Shire also referred to the Country Fire Authority Act 1958 (Vic) which vests the "control of the prevention and suppression of fires in the country area of Victoria" in the Country Fire Authority and vests various powers in the Authority[45]. No argument on behalf of the Shire was addressed to this Court concerning these provisions. Counsel for Mr and Mrs Day argued that the Shire could not rely upon any of these provisions because they had not been relied upon at trial and that to raise them now would involve issues of fact and law that previously had not been considered.
[45] See ss 14, 20, 20AA, 28 and 29.
In any event, as is discussed later in these reasons, the existence of powers, even of duties on the part of other statutory authorities does not of itself preclude a duty of care on the part of the Shire.
Thus it is appropriate to approach the issue of the liability of the Shire on the footing that, by reason of ss 694 and 883 of the Local Government Act, it was empowered to direct the owners and occupiers of 70 Neill Street to make safe the chimneys and fireplaces and, if necessary, to enter upon the premises and carry out the work itself. Furthermore, the letter of 12 August 1998 constituted a direction under s 695(1A).
At the same time, it cannot be said, nor was it contended before this Court, that the legislation in question imposed upon the Shire an obligation to take action in circumstances such as were found to exist on 9 August 1988.
General reliance
The presence of a statutory power which may provide the basis for a duty of care on the part of one statutory authority does not preclude such a duty arising, by reason of another statutory power, on the part of another statutory authority. The point has some relevance when, as here, it is alleged that there was general reliance upon the Shire. In that regard Brooking JA observed[46]:
"even if it could be said that some neighbouring owners or occupiers would rely on the Shire while others would rely on the Country Fire Authority, and that others again might place reliance on one or the other indifferently, this would in my view not prevent a duty of care from arising. General reliance may be on an unidentified public authority."
[46] [1997] 1 VR 218 at 238.
The Shire's answer to this observation was that if general reliance is to be a criterion of liability in negligence on the part of a public authority, not only must it be possible to define precisely what the authority was supposed to do, but there must be no ambiguity as to the body upon whom it is said the public generally relies. Were it otherwise, the answer continued, a large authority with a high profile might be rendered liable even when a smaller authority with a lower profile actually possessed greater relevant powers so that reliance upon that authority by a potential plaintiff would be more reasonable.
Whether a duty of care arises in circumstances such as occurred here involves ascertaining whether the statutory body in question had power to take the steps which, it is said, would have prevented the loss. Where more than one authority has the relevant power to act, general reliance may be said to be reposed in both unless it can be shown that such reliance upon one is unreasonable. This may be where one of the authorities, whether by reason of its size and financial resources or otherwise, has always been the one to exercise the power. Whether there has been general reliance is a legal concept which necessarily requires careful definition.
In this regard it must be stressed that none of the plaintiffs argued specific reliance upon the Shire. None of the plaintiffs relied upon any relevant contact with the Shire in relation to the hazard created by the fireplace in 70 Neill Street.
The notion of general reliance has been criticised on the ground that it is a "fiction". Whether the criticism is well founded depends on the sense in which it is intended. What does it mean to say that general reliance is a fiction? It may be a fiction in the sense that it does not involve actual reliance. In the same way, proximity does not involve a person actively assuming responsibility for the safety of another. But if either is a fiction, it is only in the sense that the fiction "forces upon our attention the relation between theory and fact, between concept and reality, and reminds us of the complexity of that relation"[47]. More accurately, general reliance is a concept. Concepts have been developed in this area as in other areas of the law; here they direct attention to the considerations which are relevant in order to determine whether a duty of care exists in situations which do not involve "ordinary physical injury or damage caused by the direct impact of [a] positive act"[48].
[47] Fuller, Legal Fictions, (1967) at ix.
[48] Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 495.
As to whether the notion of general reliance is sufficient to impose liability on the Shire in the present appeals, in Sutherland Shire Council v Heyman Mason J said[49]:
"[I]f the judgment is to be sustained, it is on the footing that the appellant was in breach of a duty of care based on a general reliance or dependence on the appellant having investigated the building and having satisfied itself that the building complied with the Act and ordinances. It is clear enough that this was not a case in which the respondents specifically relied on the appellant's exercise of its power."
[49] (1985) 157 CLR 424 at 470.
In Heyman the Council was held not liable in negligence in circumstances where it had inspected premises, approved plans and issued a building permit and where defects appeared in the building due to subsidence of inadequate footings. Gibbs CJ and Wilson J held that a duty of care did arise on the part of the Council but that there was insufficient evidence of negligence. Mason, Brennan and Deane JJ held that no duty of care arose because there was no evidence that the respondent, a subsequent purchaser of the house, relied specifically upon any of the acts of the Council. Mason J said[50]:
"[T]here will be cases in which the plaintiff's reasonable reliance will arise out of a general dependence on an authority's performance of its function with due care, without the need for contributing conduct on the part of a defendant or action to his detriment on the part of a plaintiff. Reliance or dependence in this sense is in general the product of the grant (and exercise) of powers designed to prevent or minimize a risk of personal injury or disability, recognized by the legislature as being of such magnitude or complexity that individuals cannot, or may not, take adequate steps for their own protection. This situation generates on one side (the individual) a general expectation that the power will be exercised and on the other side (the authority) a realization that there is a general reliance or dependence on its exercise of power".
[50] (1985) 157 CLR 424 at 464.
However, Mason J noted that at no stage was a case of general reliance advanced "by evidence or argument"[51]. In any event his Honour considered that the relevant legislative regime presented an obstacle to general reliance since an intending purchaser could apply for a certificate that a building complied with legislative requirements and could make inquiries of the Council for information or could retain an expert to inspect the building and check its foundations[52]. There is no support for the notion of general reliance in the other judgments in Heyman [53]. It was accepted in those judgments that the negligent exercise of power may give rise to a liability but that a duty to exercise the power was a prerequisite of liability. In the present cases the Shire submitted that it had done nothing to create or increase the risk of fire. This is clearly correct and was not challenged on appeal.
[51] (1985) 157 CLR 424 at 470‑471.
[52] (1985) 157 CLR 424 at 471.
[53] There is a passage in the judgment of Deane J at 508 which arguably is concerned only with specific reliance.

I agree in the orders proposed by Gummow J.