Pyrenees Shire Council v Day & Anor- Eskimo Amber & Ors v Pryenees

[1997] HCATrans 139

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M57 of 1996

B e t w e e n -

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

Appellant

and

WILLIAM ROSS DAY & LEANNE CHRISTINE DAY

Respondents

Office of the Registry
  Melbourne  No M59 of 1996

B e t w e e n -

ESKIMO AMBER PTY LTD, GEORGE STAMATOPOULOS & VOULA STAMATOPOULOS

Appellants

and

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

Respondent

BRENNAN CJ

TOOHEY J
McHUGH J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 3 JUNE 1997, AT 10.05 AM

(Continued from 2/6/97)

Copyright in the High Court of Australia

__________________________

BRENNAN CJ:   Yes, Mr Ritter.

MR RITTER:   If the Court pleases, I will be hopefully very brief.  The brief points I wish to make are these.  In relation to the appeal by Pyrenees Shire against the next door neighbours Days, I had dealt with paragraph 16 of our submission and was about to go to Stovin v Wise.  Our submissions are at page 7 paragraph 17.  Our submissions are set out at pages 7 and 8.  However, I wish to say something about that and that is this, that at page 953 to 4 in the judgment of Lord Hoffmann ‑ ‑ ‑

McHUGH J: That is (1996) AC 923.

MR RITTER:   Yes, it commences at 923, I beg your pardon, your Honour, and at page 953 going across to page 954 Lord Hoffmann deals with what he describes as a convenient expression “particular and general reliance” and refers to the judgments of Justice Brennan and of Justice Mason in the Sutherland Shire v Heyman Case.  After setting out a passage from the judgment of Justice Mason - and that appears in this Stovin report at pages 953 going over to 954 - his Lordship says this:

This ground for imposing a duty of care has been called “general reliance.”  It has 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.

We would rely on that passage which continues down for the remainder of the page.  However, without, as it were - finally dealing with the question of whether it ought or ought not be regarded as part of the common law of Britain, his Lordship says this at the foot.  He concludes:

I think that there are no grounds upon which the present case can be brought within it.

Then he merely passes from that.  His Lordship does not say anything about the Australian position or anything which harms the Australian position, we would say.

KIRBY J:   I would hope not.

MR RITTER:   And nor could he, but the position ‑ ‑ ‑

TOOHEY J:   Do you draw any comfort from any of that, Mr Ritter?

MR RITTER:   Certainly it is significant that he does not criticise the approach taken by Justice Mason in the Sutherland Case and we say that the concept of general reliance to the extent that it ought be one particular facet of proximity on which we rely here is certainly not disapproved in any sense in that case.  We have accordingly in our first submission on page 7 paragraph 17 simply pointed to this feature and we have said that he considered that general reliance was not applicable on the facts of the case or in the circumstances of the case or perhaps not at all, but we say that there is nothing there that detracts from the position that we say would otherwise obtain in Australia.

McHUGH J:   You are relying on it as a matter of authority and the source of the doctrine is Justice Mason in Heyman and I adopted it when I was on the Court of Appeal, but the argument we heard yesterday and my own thinking about it makes me wonder whether or not it is a doctrine that ought not now to be buried.

MR RITTER:   Yes.

McHUGH J:   It seems to have some very difficult problems about it.  How would you go about supporting it as a matter of policy or principle?

MR RITTER:   Well, only in the way that has been done in the past.  We would not try to introduce any novel suggestion that there is another basis that does not appear from the authorities applying to date that we can think of for its retention.  We simply say that though the authorities that have resorted to it - we include within that Swan and Alec Findlayson and a range of authorities, but the authorities which have either - there have been cases where it has been said that the High Court now has given general approval to it because of the joint judgment, but it does not matter - I am sorry, the majority of the High Court.  I apologise, your Honour.

We do not have any basis to suggest - any additional bases, other than those we have already advanced.  We do say, however, that we succeed, in any event, on whatever other test ought be applied for proximity because of what we said yesterday going to control, and I will not go back through those.  We say that, on any view, one would discern here proximity such as would give rise to a duty.

TOOHEY J:   But you have got a decision of the House of Lords that arguably stands in the way of a successful claim.  How do you invite us to deal with that case?

MR RITTER:   We invite you in two ways.  The first is as we have set out in paragraph 17.  We simply say that applying that decision, and there being nothing in the way of it, there are the distinguishing features of improvements and defects that appear in Lord Hoffmann’s judgment, and the budgetary considerations that go with highway authorities do not go in the same way in the case of known fire dangers. 

We say there are not those budgetary considerations.  That is our argument at the top of page 8.  That is what we have already submitted.  We also say that the Court ought prefer the spectrum approach which found favour with Lord Nicholls, of course in the minority.  We say that if one looks to that, we fit - and I hate to say this again - at the operational end of the spectrum.  Our other submissions appear at page 9 and I do not think we can say more than that.

BRENNAN CJ:   Would you see any distinction to be drawn between the obligation of a local authority in relation to the escape of fire from a fireplace and the escape of fire on a pastoral property?

MR RITTER:   As a matter of general principle rather than in specific cases.  As a matter of general principle fire is a particularly hazardous thing; it has the capacity to burn acres of land as much as it has the capacity to burn down centres of population.  We do not say that one has the propensity to extend further than another.  Each can go a long way in the Australian environment.  I do not know whether your Honour has Hargrave’s Case in mind, but we do see that the ‑ ‑ ‑

BRENNAN CJ:   No, I do not have Hargrave’s case in mind; I have a case against a local authority in mind.

TOOHEY J:   You might have the situation of a local authority that serves a fire‑break notice on the occupier but takes no further steps to enforce that notice by himself going in and creating a fire‑break or by prosecuting the occupier.

MR RITTER:   Yes.  I think it would be very different where there had been a situation just before that where there had been an actual outbreak on that very property or from that very property.  The fact that a local authority has knowledge of a fire which has occurred in a particular way and is, as it were, bound to happen again by the mere lighting of any fire, in those circumstances the hazard is massive; it is a time bomb ticking away.

We would draw a distinction between a bomb.  If the local authority had powers to remove bombs we draw as much a distinction as that, that there are some occasions where - and it is not a matter of policy or otherwise - we say that there are some occasions where you can read into the powers and policy you could draw the distinction, yes.  I do not know that I can say much more about that, if the Court pleases.

BRENNAN CJ:   Do I  understand you to say that the duty arises because of knowledge?

MR RITTER:   I am sorry?  In those circumstances we do say that awareness or knowledge or having the information of the imminent danger is a highly critical factor.

BRENNAN CJ:   To the creation of what you call proximity?

MR RITTER:   Yes, indeed.  That is as much as we say in relation to Stovin.  There has been a published article; we have provided the Court with a copy of that this morning.  It is simply a published case note on the general reliance point.  It is an article by Professor Rogers.  It is a case note by Professor Rogers, volume 4 of the Torts Law Journal 1996 at page 204.  The only relevant passage to which we draw the Court’s attention is that which appears at 209, at about point 4, commencing with the words:

In Lord Hoffmann’s view it might lie in the notion of “general reliance” -

Sorry, commencing with the words:

The case has, after all, implications going beyond the confines of liability for highways.

That is in the major paragraph, from the second sentence on, and continuing down to note 42, which is about point 6 on the page.  It is a separate decision as to whether anything should be done to improve it.

BRENNAN CJ:   What is the reference to this article?

MR RITTER:   It is 1996 volume 4 of the Torts Law Journal and the page is 204.  The other document we produced overnight for the purposes of the Court is one which deals with the matters in paragraph 18 of our submission, in any event, but we amplify those, to some extent; we have provided copies of the relevant legislation that goes with it.  This is a document which is headed “Respondent’s (Days’)Submissions Concerning Shire’s Powers Of Inspection and Enforcement”.  Perhaps we ought to add to that, “and of carrying out the work”; it is not merely enforcement.  We have in each case provided the relevant legislation, that is this Shire, and the sections on which we rely are there as well.  The powers of inspection appear in the second page, powers to execute the works, that is the Shire’s powers to execute the works.

BRENNAN CJ:   Yes, we can read those sections.

MR RITTER:   Yes, thank you.  If the Court pleases, I do not want to trouble the Court any further on that if I may. 

KIRBY J:   Is there any other academic or textual source that you have found that attempts any reconceptualisation of this area that you are aware of?

MR RITTER:   I think the answer to that is we have looked and we have not found any text or article which seeks to deal with the statutory powers, whether in Victoria or elsewhere, of fire ‑ ‑ ‑

KIRBY J:   I was not thinking so much of the statutory position because one can work that out, but the common law position on proximity.

MR RITTER:   No.  We can say we have not.  The next matter to which I take the Court is that which appears on page 10 of our submission and our submission is that the submissions concerning the Housing Act and the Housing (Standard of Habitation) Regulations put before the Court are submissions that were not put below and by that we mean in argument before the trial judge, put at any stage during the course of the trial before the trial judge and were not put in argument before the Court of Appeal nor here. 

We say those arguments should not be raised now and the suggestion having been made against us is that there were other authorities to which resort might be had by people in the community of Beaufort and we say as to that that those were not matters put and, in fact, Justice Brooking was at pains to point that out at the Court of Appeal level before.  We say it should not be raised right now.  Our other submissions appear in an outline ‑ ‑ ‑

BRENNAN CJ:   Why should it not be raised, because you are disadvantaged in some way?

MR RITTER:   Yes.  If the Court pleases, I can take the Court to our complete submission in relation to this.

BRENNAN CJ:   What is the evidence that you might have adduced, to prove what?

MR RITTER:   Well, first of all, there are facts that we might have relied on to persuade the court otherwise.  Local fire brigade engineers referred their concerns to the Shire, not to some other unidentified authority.  That would suggest that at least within the Shire of Beaufort we say there is evidence quite to the contrary, that there would not be a referral to the CFA, whatever it is.  We say that that is not ‑ ‑ ‑

BRENNAN CJ:   But what has that got to do with the issue here?

MR RITTER:   Of there simply being in existence some other authority?

BRENNAN CJ:   The question is whether there is a duty of care owed by the local authority. 

MR RITTER:   Yes.

BRENNAN CJ:   Now, in order to establish that, you point to the existence of statutory powers, amongst other things.

MR RITTER:   We do, exercisable  by the statutory authority, that is so.

BRENNAN CJ:   That is right.

MR RITTER:   And that, we say, was the only issue; not the existence ‑ ‑ ‑

BRENNAN CJ:   And what is said against you is, well, it is not the only repository of statutory powers, there are others.

MR RITTER:   If it is put purely to cut down the effect of the statute, that would be one thing.  But it is put to suggest that there would not be general reliance.  We say you cannot do that, because we might have called all sorts of evidence to demonstrate that there would be - such as evidence of actual reliance by others in relation to the CFA.

BRENNAN CJ:   But we are not concerned with actual reliance, are we?

MR RITTER:   For the purpose of establishing general reliance, we might be in the case of the others.  If there was actual reliance in the case of other authorities over a period of time, or demonstrable non‑reliance, that might be done by evidence, not by - that might have been put in that way.  There might have been evidence to ‑ ‑ ‑

BRENNAN CJ:   But it is not a question of any reliance being placed on a local authority, it is reliance ‑ ‑ ‑

MR RITTER:   It is the lack of reliance.

BRENNAN CJ:   So far as the plaintiffs are concerned, their case does not depend upon any reliance on the local authority’s exercise of power.

MR RITTER:   Precisely.

BRENNAN CJ:   All it depends upon is the existence of the power in the local authority and, as a countervailing force, what is put against you is that there are other repositories of like powers.

MR RITTER:   Well, then if I can go a little further to demonstrate other facts that might have been relevant to whether these powers may or may not have been exercisable.  Reliance is placed against the respondents in this case on the Housing Act and Housing (Standard of Habitation) Regulations.  Those regulations and those Acts seem concerned with houses, not shops or commercial premises.  We say as to that, the question of whether these premises - and having regard to their nature as possibly combined premises - whether they were a house, or a shop, or commercial premises not subject to the Act, has not been examined and evidence has not been called along those lines to see whether the lines is crossed, and in respect of which parts, simply because ‑ ‑ ‑

BRENNAN CJ:   Well, you can make that point.

MR RITTER:   That is all we do.

BRENNAN CJ:   And that might be some answer to those who wish to raise the housing legislation against you.

MR RITTER:   Yes.  Well, it is only the two Acts.  I will come to the other one, but that is the major one.  That is the new one.  The new one is the Housing Act and the Housing Standards Act, and the other one is the Country Fire Authority Act, and our submissions are set in an outline that we provided to the Court today.  It is a document headed “Respondent’s submissions concerning legislation not referred to below.”  We rely on those submissions. 

In relation to the Country Fire Authority Act provisions, we simply say that one can never, as a matter of fact, in this case, work out what resort there might have been to the Country Fire Authority for the purpose of judging whether one would rely on the Shire or not, because there is no evidence in this case to suggest one way or the other whether the Country Fire Authority has a presence in or near Beaufort, whether people would ordinarily resort to it or not, and we simply rely on what Justice Broking said in that regard.  He said, “Well, no one has taken me to the powers in the CFA legislation.  It is not being examined, so I go no further.”

We say in relation to that here there may or may not have been evidence as to the location and the likely resort that people in Beaufort might have had to the CFA in actual terms having regard to distance, location - all sorts of things.  That was not called and we simply say that that is not something we can deal with now.  So that in relation to the Country Fire Authority Act as well we simply, I suppose, repeat what Justice Brooking had to say below.

We rely, of course, on paragraphs 20 and 21 of our submission and the authority is well known to the Court in that regard which are set out there.  I do not return to paragraph 22 of our submission; we rely on it but they are matters with which I have already dealt save to rely on the submissions as they stand.  I do not think I need to say anything more in relation to the appeal by the Pyrenees Shire in the Days’ matter.  The next matter to which we turn is the submissions made in the Eskimo Amber appeal, that is in the appeal by the tenants.

BRENNAN CJ:   Yes.

MR RITTER:   Our submissions appear at - we have already provided written submission - we take the Court, however, to page - what we say in relation to it first of all is that Justice Brooking, having found that a duty was owed to the next door neighbour declined to find that a duty - by reason of the absence of proximity that a duty was owed to the new tenant ‑ ‑ ‑

BRENNAN CJ:   To the occupier, yes.

MR RITTER:   ‑ ‑ ‑ and he did so on the bases which - we say the distinction he drew, we say, were on bases which either were not available on the evidence or were not established at all.

TOOHEY J:   What do you say was the distinction he drew, Mr Ritter?

MR RITTER:   We have set them out at paragraphs 3 and following on page 6 of our submission but essentially his Honour said first that the occupier was to be treated in the same way as the owner and accordingly he was in as good a position to inspect and the like as was the owner and ought to have done so, presumably.  We say because of the findings of the trial judge, that is the latent nature of the defect, that the position of the tenant is not to be treated as analogous in that regard and if any analogy is to be drawn the position of the tenant is much more akin to that of the neighbour next door.  We say that for several reasons, but essentially the sort of damage which a visitor, first of all, a customer to the fish and chip shop is going to suffer if he has his computer when he walks in the door, the sort of damage he is going to sustain if a fire suddenly breaks out might be the loss of his computer, it is direct property or personal damage, he might suffer personal injury, perhaps.

The sort of damage which the Days did suffer and for which they recovered was property damage direct and we say that if the invitee was entitled to recover for his loss, then so too would a short‑term visitor, so too would a short‑term tenant, so too would a long‑tenant.

TOOHEY J:   But it is not the character of the damage that is critical here, is it?

MR RITTER:   No, it is not, because even the owner in this case probably suffered direct property damage rather than diminution in value of his property by reason of some other earlier defect, so it is not to be distinguished in that way.  We have set out the way in which we say the analogy was inappropriate and the way in which his Honour, we say, in drawing the distinction erred.  We say first of all at page 6 of our submission that he found that the company and its controllers did not know or have means of knowing of the defective fireplace.  The trial judge found that the dangerous defect was latent and that the company and its controllers did not know of the defective fireplace and that the defect was unlikely to be detected by an occupier of the premises unless the occupier was versed in the condition of fireplaces.  We set out the passage.

GUMMOW J:   What do you mean on page 10, Mr Ritter, right at the end of the last paragraph:

The Council was in a position of control or responsibility and the uninformed occupiers and residents were vulnerable and dependent.

Dependent upon whom?

MR RITTER:   On the Shire.  I am sorry, that ought to have appeared there - on the Council.

GUMMOW J:   For what?

MR RITTER:   To remove the risk.  I am sorry about that, your Honour, because I was not in fact intending to go any further on that.  I thought we had dealt with that question yesterday and I was not intending to go further into the three authorities and particularly this concept of control with which we dealt yesterday.

KIRBY J:   Is your submission that the Council should have noted the card and notified each successive purchaser or lessee, or is it that the Council’s obligation, having discovered this latent defect, was to remove the defect?

MR RITTER:   No.

KIRBY J:   Or required that the defect be removed?

MR RITTER:   Notification would protect and it would operate as reasonable steps for a certain time, but it does not solve the problem.  Notification to the occupier might be sufficient, and by that I mean the succeeding occupier.  If someone walks in the door and you tell them they have a dangerous fireplace, “It must not be used”, and you do that for every succeeding occupier, then it may be that that could even operate as a discharge of the duty in those cases.  It may be also in the case of the owner that you discharge your duty to the owner by informing him of the danger to him and that he ought remedy it.  It would not ever provide a sufficient discharge ultimately of the duty to people who might visit, to next door neighbours, because they are obliged to go to the next stage and take reasonable steps to bring about the termination of the danger.  That will vary according to the nature of the threat.

BRENNAN CJ:   So the Council had the obligation to ensure that the lessor of the premises informed the lessee and that the outgoing tenant informed the incoming tenant of the existence of a danger?

MR RITTER:   No.  It had the overall duty to bring about the removal of the threat, but if it did take the reasonable steps that might be taken in discharge of the duty might be simply successive informing if you choose to do it that way, but it is not the way that ultimately be seen as the best way to discharge it.  It is one of the several ways in which the duty might be discharged, we would say.  So that, yes, your Honour, if they were to have someone standing at the door telling every person who walked in, “This is a massive fire risk going in there.  Don’t take your property inside,” that might be such as to operate as a sufficient discharge of the duty so far as those who are otherwise - those people who were at risk was concerned, it would not suffice.

BRENNAN CJ:   Once the present appellants found their way into the premises as lessees, what remedies were then open to the Council or what steps were then open to the Council other than informing them?

MR RITTER:   Informing in their case would have been sufficient.

BRENNAN CJ:   What else was available?

MR RITTER:   The Council could have first given them notice, a statutory notice if need be, but it could have first notified them in any informal or formal way.  That would have sufficed.  They could have then given notice of the defect in a formal way.  The Council could have carried out the works as we have indicated in the statutory provisions to which we have adverted today.  It could have required the owner to carry out the works.  It could have required the owner to carry out the works - sorry, it could have required the occupier to carry out the works at the owner’s expense.

BRENNAN CJ:   Now, it had discharged its duty to the previous tenant; is that right?

MR RITTER:   Yes.

BRENNAN CJ:   What reason was there for the Council to believe that that was not sufficient notification to future tenants?

MR RITTER:   Certainly the trial judge made a positive finding that they were quite insufficient in relation to the succeeding occupiers, but that is perhaps not a question of fact.  To notify one tenant, we say, does nothing to notify visitors or the next.  It does nothing to discharge the duty at all.  That simply would not protect - it is a partial discharge and an inadequate one.  We simply say there is a different duty owed to each of the persons within the class.  It might be discharged in the case of some by one means and in the case of others by other means, but it does not in any way absolve them.  To simply point to the discharge of your duty to Smith does not answer the duty that you owe to Jones.

TOOHEY J:   But what was the duty in this case?  I mean, how do you express it?  I mean, in your particulars of negligence on page 9 you assert various failures to advise relating to the first fire in the fireplace, failure to check whether the work had been done, failing to ensure that the work had been done.

MR RITTER:   Yes.  Well, that might have discharged it in itself in the case of ‑ ‑ ‑

TOOHEY J:   But it is not a matter of discharge.  It is a matter of the acts which are said to constitute negligence.  I mean, you are looking at the discharge of an obligation, but how do you express ‑ ‑ ‑

MR RITTER:   Yes, and how do we express the duty I think is your ‑ ‑ ‑

TOOHEY J:   Yes, by way of particulars.

MR RITTER:   Do you mean how were they expressed in the pleading itself?

TOOHEY J:   No, how do you - well, yes, or if you want to depart from them for the purpose of argument.  I mean, you have to say that the local authority was negligent because it either did or failed to do something.  Page 9 of volume 1.

MR RITTER:   Thank you.  Yes, it is expressed in terms of specific steps that ought be taken, but the duty that was owing is simply expressed as a duty of reasonable care to do those things.  We say that the duty in fact is really one of a duty to exercise reasonable care.

TOOHEY J:   That is meaningless, is it not, unless you give it some content?

MR RITTER:   Yes, we would have said, to prevent damage caused by the outbreak of fire by reason of the defects.

KIRBY J:   Is that not a problem?  That is a theory of the Council’s obligation which is effectively making it an insurer.  That it has to not just warn people so that they can take their own responsibility with their own property to fix things up, but they have got to actually get in there and make sure they do it, police it and no doubt inspect it later to make sure it has been done correctly, and all of this in a little borough Council in Victoria, with large cost implications.

McHUGH J:   Population 3,300.  It seems a little unreal.

MR RITTER:   We say that it was a duty to exercise reasonable care to prevent damage caused by the outbreak of fire by reason of the defect; not to bring about the result, but to exercise reasonable care in that regard.

BRENNAN CJ:   By doing what?

MR RITTER:   By giving notice, by notifying the parties, by requiring, as best they could, that the work be urgently carried out, nothing more.  Our submissions appear at page 6 and following.  The findings of Justice Brooking, we say, are at odds with the finding of the latent nature of the defect in this case, that is that there was no opportunity to inspect, and to suggest that an inspection ought to have been carried out is one thing, to suggest that an inspection would have revealed the defect is another.  We simply say there was no basis for that and there was no suggestion in the reasons of the trial judge that indicated there was failure in that regard.  The trial judge did not find - he simply regarded tenants as in a different position.  Certainly they are in a different position but the nature of that difference is, we say, immaterial in this case; they are in the same position as the next door neighbour.

We rely on the matters on pages 7 to 9 of our submission as it stands; that is, that we simply say that to point to section 695(1A) and say that a notice may be given to the occupier and, therefore, you are not someone whom ought benefit under the legislation - that is, that the legislative scheme contemplates that you are not a protected person in some way - we say quite the contrary.  The very fact that any obligations which might arise under the statutory scheme that the occupier might have depend, in fact, on the very giving of a notice; that is, his awareness might come through that very fact.  We say that one cannot use the fact that a notice might be given to an occupier against him in terms of denying him his otherwise ordinary protection.

KIRBY J:   Was there any evidence in the trial relating to the practice of the Council in giving notices and following them up?

MR RITTER:   Not in relation to notices of a fire preventive kind.

KIRBY J:   Was any reason given by any of the witnesses as to why they did not do these things?

MR RITTER:   Mr Walschots gave evidence that he had never given one before.  He was new to the Shire.  He was the Shire building inspector who, I think, had been there a very short time indeed.

KIRBY J:   And presumably he took the view that giving the notice to the owner and the then occupier, it was really their responsibility to do something about it.  You say that fell short of what was required?

MR RITTER:   In relation to the then occupiers, he did quite a lot, and one would have said that the Council owed no duty to Tzavaras and that was - we would say we would go along with that, because what occurred there was that he not only arranged for a loose form of notice to be given, “That will be good enough.”  The notice itself he thought he was giving under the - he tried to adapt the building regulation notices and gave evidence that he thought he was following the notices under Regulation 57, I think it was, of the building regulations.  He gave such a notice.  It was not a very good attempt, but it was, we would say, sufficient so far as Tzavaras was concerned.  He went to the premises, he spoke to Tzavaras and told him not to light the fire again, not to use it again.

But he then decided not to follow that up at all, and the reason he offered in relation to not following that up was because he did not want to, as it were, insult the intelligence of someone who was also from Europe, as he put it, or words like that.  I can certainly find - so there was almost a positive decision not to go any further because he thought, having told him that, that would be enough.  Now, it was enough in the case of Mr Tzavaras, and we do not quibble with that.  We say it is not enough in relation to anyone else, and future occupiers are people you have to have in mind as much as you have to have other people such as invitees.

KIRBY J:   And the essence of it is, you say that attaches because (a) the defect was seen by getting up the chimney and it was latent, and (b) it was enough to raise the spectre of burning down the whole town?

MR RITTER:   Yes.

KIRBY J:   That should have required more than was done.

MR RITTER:   Yes.  I do not think, apart from the submissions we have made already in our written outline - we have identified the precise passages by reference to appeal book page numbers.  I do not think there is another matter I wish to put in relation to the question of whether the Court of Appeal erred in not making an adequate distinction between the occupier and the owner and whether the Court of Appeal ought to have considered the occupier to fall within much the same class as the tenant.

The only other matter which we again wish to raise now is that on receiving the submissions of the respondent Shire, again on page 6 of our learned friend’s submissions the Housing Act is raised as suggesting that an obligation was cast on the occupier to be at least as liable to comply with the law as the lessor.  Those provisions were not raised below.  We have made our point in relation to that.  We say that whether or not this was a house within the meaning of those Acts and the habitation regulations is a matter that cannot be tested now.

Our submissions are in writing, our latest ones are - we have prepared a - the submissions are simply that first the argument has not been raised before; secondly, whether or not a Beaufort fish and chip shop is a house within the meaning of the Act was not the subject of any evidence at the trial and we say that that would be necessary considering whether this is a house at all.  For those purposes we say that the provisions themselves seem concerned not with the wider community and fire protection but fire protection in terms of standards of habitation, more a quality thing, and we repeat our submissions that we have already made in the earlier appeal.

In relation to the building regulations, the Form 10 was relied on by our learned friends.  They submit that there ought to have been some inquiry made of the Council by application by Form 10 for a certificate which might have revealed Council’s informal notice to Mr Tzavaras.  As to that, our submissions are set out on page 2 of the Day documents.  We say first certificates under those regulations can only be obtained by the owner or by the ‑ ‑ ‑

KIRBY J:   But were we not told the practice is not to secure this except in change of title?

MR RITTER:   That is so.

KIRBY J:   It is not a new lessee; it is simply when you change the ownership.

MR RITTER:   That is right.

KIRBY J:   So it is a little unrealistic to say that they should have got it simply because there was a new lessee.

MR RITTER:   It is also unrealistic to assume that they should have assumed that there would be a defect of this kind and therefore taken the unusual step of getting permission to apply for such a certificate - permission from the owner to apply for a certificate for a defect about which no one knew anything at the time other than the Council.  We would say as to that the only evidence given also was by the solicitor.  The solicitor said that he did not request details by Form 10.  There was no evidence called to suggest that another solicitor acting properly in Victoria for a tenant would apply for such a certificate or that another solicitor acting properly would seek the permission of the owner to apply.  So that we simply say that the regulations point is a bad one in any event and it is also contrary to the judge’s finding that the solicitor was not negligent in not so applying.  That is what we say as to that.

The last matter I wish to address is this question of structural work, because to the extent that Justice Brooking and the Court of Appeal gave weight to the provisions of the lease which required the tenant, our clients, to carry out any work whatever under the lease, we would say as to that, that one thing that was accepted was structural work.  Our submissions are that, first of all, having regard to the decision that we have cited, that is Granada Theatres v Freehold Investment, we say, first, the work in this case was structural.  If one needs further to be reassured or further reassurance, the fact that it was structural work and the nature of the work is set out in the letter which appears in the judgment.  It is described as structural work by the Council and it was, for that reason, the lessee certainly had no obligation to carry out structural work of any kind. Moreover, the lessee in this case had no means of knowing, or did not know what structural work

was required; it was concealed.  So that, if the Court pleases, they are the ‑ ‑ ‑

BRENNAN CJ:   Could I just ask you one further question.

MR RITTER:   I was afraid of that, your Honour.

BRENNAN CJ:   We have heard a great deal about the statutory provisions that contain all these powers.  Are you able to put your case in any way which corresponds with the formulation of the liability for negligence expressed by Lord Atkin in Donoghue v Stevenson?

MR RITTER:   I would need to take some time to do so, but I would think we could.  We would be happy to do so.  But instantly, no, your Honour.

BRENNAN CJ:   Thank you.

MR RITTER:   We would we happy, if permitted, we would do that in writing.

BRENNAN CJ:   Yes.  That can be done within seven days.

MR RITTER:   If the Court pleases. 

BRENNAN CJ:   Yes, Mr Bongiorno?

MR BONGIORNO: If I might take the Court briefly to the last point my learned friend raised. The Form 10 procedure was not put by the Shire as raising any obligation on the tenant to use the procedure, it is put simply in the same way as Justice Mason used section 317A of the Local Government Act of New South Wales in demonstrating that the Heymans had a problem concerning general reliance.  At page 471 of Heyman, or at the bottom of 470, his Honour said:

Moreover, the respondent did not by evidence or argument at any stage of the proceedings advance a case of general reliance or dependence stemming from the existence of the legislative regime of control contained in Pt XI of the Act. No doubt this approach reflected a recognition of the obstacles which such a case would encounter. An intending purchaser of a building can apply for a certificate under s. 317A and make inquiries of a council for information concerning the erection of a building and the inspections of it which the council has made. He can, if he wishes, retain an expert to inspect the building and check its foundations - a task which I assume to be within the competence of an appropriate expert. These considerations would complicate the presentation by a person in the position of the respondents of a case based on general reliance or dependence.

KIRBY J:   Yes, but all of that is posited on the terms of the section and on a purchaser, whereas here this is not a new purchaser.

MR BONGIORNO:   It is, your Honour, but, in our submission, it is based on the possibility, not the probability.  The question of duty, we say, when one looks at - the duty of care or the proximity between the Council and the purchaser or the purchaser of the business, the new lessee, is destroyed by the fact that there could have been, had he wanted to, an inspection or a Form 10 request of the Council.  The fact that he did not do it, it is not suggested, as my learned friend said, that the solicitor was in some way negligent or something of that nature.  It is simply the possibility that he could have done that, which, in our submission, at least detracts from, if not destroys the question of proximity.

If I could turn to two or three other points.  Our learned friends complained about the question of the Housing Act not having been raised below.  The purpose of raising the Housing Act and regulations, we say, is simply to demonstrate that if one is seeking to put a case of general reliance on one authority, it is relevant for the Court to understand what, as a matter of law, other authorities had the power or the duty to perform.  Now, in this instance, all we are saying is that as a matter of law there were at least two other bodies in Victoria - there may well have been more that we have not thought of, but there were at least two others and one of them was the Director of Housing.

TOOHEY J:   Well, that is what you are saying in relation to your own appeal.  Do you say anything more than that in relation to the Eskimo Amber appeal?

MR BONGIORNO:   No, I think not, your Honour.  I think it is the same point.  I cannot see that there is a distinction.

TOOHEY J:   I was thinking in terms of the argument that arises from some of these statutes that there was an obligation on the occupier to do things.

MR BONGIORNO:   Yes, I am sorry.  Yes, in relation to the appeal against the lessee, whilst the statute and the regulations are silent as to the onus of compliance, certainly the director can serve a notice requiring either the owner or the occupier to comply with the regulations.

Now, our learned friend made a point that evidence might have been called in relation to whether a fish and chip shop was a house.  We did not foresee that this would become an issue, but we have copies of the relevant definition of “house” and we would submit - we have given this to our learned friend - from section 4 of the Housing Act.

BRENNAN CJ:   Is there any evidence as to whether these premises were used, or intended to be used as a dwelling?

MR BONGIORNO:   Yes, your Honour, the evidence of Stamatopoulos himself as to the fact that that is where they lived.  At page 490 of the appeal book, there is a sketch of the premises which clearly demonstrates that there is a dwelling attached to the shop.  This is the sketch done by the building inspector which shows bedroom, kitchen, bedroom, living room, bathroom, behind the shop.  So that, in our submission, there could be no argument, and no evidence could have altered the situation as to that falling within the statute.

The next matter that I turn to is the - my learned friend conceded, in answer to a question from Justice Toohey yesterday, that enforcement is a critical element, or the power to enforce is a critical element in the construction of the argument which goes to the duty of care.  Here the only ultimate enforcement which he relies on in the document that he tendered to the Court this morning setting out the statutory provisions is the power to prosecute.  Now, if ever there is a discretionary power, it is the power of prosecution.  So that, in order to found the argument that he is putting, he has really got to say that the Council had a common law duty, or that the discharge of its duty of care involved it having to prosecute someone.  Now, in our submission ‑ ‑ ‑

TOOHEY J: That is not what he says, does he? At least, that is not what he says in entirety. He points to section 883 of the Local Government Act, the power to enter upon premises.

MR BONGIORNO: That is if in fact section 883 has the meaning, “goes as far as giving the Council the power to enter upon the premises”. We, in our submission, made the point that it may not go that far.

TOOHEY J:   That may be right, Mr Bongiorno, but as a matter of the argument that was put to us it was not quite as narrow as the way you have expressed it.

MR BONGIORNO:   Perhaps I should rephrase it.  In so far as it relies upon the other enforcement provisions, it suggests that the Council would have to discharge its duty; it had to prosecute the owner or the occupier.  That has the difficulties that I have raised.  They are the only matters that I would seek to raise in reply.  If the Court pleases.

BRENNAN CJ:   Thank you, Mr Bongiorno.  The Court will consider its decision in this matter. 

AT 11.00 AM THE MATTER WAS ADJOURNED