Roberts & Anor v Bass

[2002] HCATrans 109

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S258 of 2001

B e t w e e n -

GRAHAM BARCLAY OYSTERS PTY LIMITED

First Appellant

GRAHAM BARCLAY DISTRIBUTORS PTY LIMITED

Second Appellant

and

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

First Respondents

GREAT LAKES COUNCIL

Second Respondent

STATE OF NEW SOUTH WALES

Third Respondent

Office of the Registry
  Sydney  No S259 of 2001

B e t w e e n -

GRANT RYAN

Appellant

and

GREAT LAKES COUNCIL

First Respondent

GRAHAM BARCLAY OYSTERS PTY LIMITED

Second Respondent

GRAHAM BARCLAY DISTRIBUTORS PTY LIMITED

Third Respondent

STATE OF NEW SOUTH WALES

Fourth Respondent

Office of the Registry
  Sydney  No S261 of 2001

B e t w e e n -

STATE OF NEW SOUTH WALES

Appellant

and

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

First Respondents

GREAT LAKES COUNCIL

Second Respondent

GRAHAM BARCLAY OYSTERS PTY LIMITED

Third Respondent

GRAHAM BARCLAY DISTRIBUTORS PTY LIMITED

Fourth Respondent

CLIFT OYSTERS PTY LIMITED

Fifth Respondent

M.W. & E.A. SCIACCA PTY LIMITED

Sixth Respondent

TADEVEN PTY LIMITED

Seventh Respondent

THE OYSTER FARMERS ASSOCIATION OF NEW SOUTH WALES PTY LIMITED

Eighth Respondent

R.A. KING (WHOLESALE) PTY LTD

Ninth Respondent

MANETTAS LIMITED

Tenth Respondent

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

Eleventh Respondent

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

Twelfth Respondent

SMITHS OYSTER SERVICE PTY LIMITED

Thirteenth Respondent

GEORGES OYSTERS PTY LIMITED

Fourteenth Respondent

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 13 MARCH 2002, AT 10.16 AM

(Continued from 12/3/02)

Copyright in the High Court of Australia

GLEESON CJ:   Yes, Mr Tobin.

MR TOBIN:   As your Honours please.  May I deal briefly with the pleading issue that is raised against us by the State.

KIRBY J:   Was it raised in the Full Court or not?

MR TOBIN:   It was raised in the Full Court but not, as it were, successfully.  I think I can explain to your Honours what lies behind that.  At page 111 of the first appeal book – and your Honours have been taken to this – in paragraph 49 Mr Ryan’s case was to plead that the EPA owed duties of care to him and the represented persons:

(a)  to take steps to ensure that the –

Council –

did not pollute the Wallis Lakes region by its sewerage treatment and depot facilities;

(b)  to take steps to ensure that private land owners or users of the waters of the Wallis Lakes region did not pollute the Wallis Lakes region;

(c)  to monitor in conjunction with the First Respondent –

the Council –

the quality of the water and the environment in the Wallis Lakes region.

The “Particulars” in (a), (b) and (c) relate to general and not to specific instances of pollution in the Wallis Lake area.  On page 113, your Honours, the pleading of breach in paragraph 50 mirrors the allegation I have just read, that is, that “the EPA neglected and refused” to take those steps, and section 52 pleads that:

But for the acts of negligence pleaded in paragraph 50 hereof the EPA would have exercised its statutory powers under the said Acts ‑

that is the Clean Waters Act ‑

to ensure that such contamination ceased.

KIRBY J:   But all of this is against the EPA and Justice Wilcox held that the applicant fails against the EPA.

MR TOBIN:   Well, your Honour, that is not strictly accurate for this reason.  If your Honour goes to the judgment of his Honour below, your Honours will see that at 4593 of Mr Justice Wilcox’s judgment in volume 19, paragraph 330 ‑ ‑ ‑

KIRBY J:   I was looking at 4589, paragraph 317.  This is where ‑ I am sorry, that is the applicants’ submissions.

CALLINAN J:   I think page 4595, paragraph 334, seems to be the nub of his Honour’s finding, that and the next paragraph.  But it certainly looks to me, Mr Tobin, like a somewhat different case from that which was pleaded, but you were going to explain to us why it is not.

MR TOBIN:   The holding by his Honour, we submit, is within our pleading.  In paragraph 330 his Honour said, at 4593:

I do not find it necessary to decide whether EPA was negligent in relation to the caravan parks.

So, that is two of the specified sources of pollution that his Honour did not find for us.

CALLINAN J:   I am looking at the last sentence in paragraph 334, page 4595.  In sum total, through various agencies, the government exercised substantial managerial control.  Now, it says:

Through various agencies . . . It exercised that control by day‑to‑day operational decisions.

Then his Honour talks about committees and a program and then in the next paragraph:

It seems to me that the State’s involvement in the management of the Wallis Lake oyster fishery was so extensive –

That is the finding of the duty of care.

MR TOBIN:   Yes.

CALLINAN J:   Where do I find paragraph 336 pleaded?  Where is the paragraph that really pleads that?

MR TOBIN:   It does not plead it in those terms, your Honour, but the origin of the duty is separate from, of course, the breach and dealing with the breach issue his Honour did not determine negligence against the EPA with regard to the two caravan parks in issue but he did find for us on a failure, as he called it, to carry out a sanitary survey, which is the monitoring of the water and the remedial action against the owners of the properties that is pleaded in the paragraphs, including 51, on breach that I have taken the Court to.

CALLINAN J:   The specific finding seems to be at 340, page 4597:

Long before November 1996, the stage had been reached by which the State, as the ultimate manager of the fishery, should either have ensured the making of a comprehensive sanitary survey or closed the fishery.

That seems to be the finding.

MR TOBIN:   Yes, and I would adopt what your Honour puts because importantly that finding is in the alternative.  In other words, we can make the case, as I would perceive the pleadings, by establishing either the negligence of failing to have carried out a competent sanitary survey or close the fishery.  Rather like, your Honours, a situation you either render safe the unsafe machinery or you do not use it.

CALLINAN J:   The survey would not have done that.  There would have been action which would have had to have been taken at expense and in the assessment of priorities following upon the making of a survey.

MR TOBIN:   Your Honour, the point implicit in his Honour’s judgment at first instance is that if you carry out a sanitary survey, you are identifying points of pollution for the purpose of remediating them.  I draw attention, with respect, your Honours, to the notice of contention that we have filed and it leads on to the holdings in the Full Court of the Federal Court, 4906 and 4907 of the last volume of the appeal books.  This is a notice of contention in the case relating to the State.  Relevantly paragraph 2 says:

The Court below ought to have held that the State of New South Wales breached its duty of care to the first respondents by neither:

i)  taking steps to have sanitary surveys of oyster‑growing waters undertaken and sources of pollution or potential pollution identified and rectified ‑ ‑ ‑

HAYNE J:   That notice of contention highlights the obscurity of the pleading.  The obscurity of the pleading which is, if I may so with respect to the drafter of it, exceedingly clever, because the pleading is in terms always of a duty of care to do something and it is there the elision of two very separate ideas.  The notion that someone had a duty of care to determine a program, et cetera.

MR TOBIN:   Or to monitor the water.

HAYNE J:   Where do I find that?  Where do I find that in the pleading?  Not at all.  I find a duty of care to determine a program, to determine something else, to supervise administration, the duty of care to do things.  It is not a duty of care.

MR TOBIN:   Well, your Honour, with deep respect, paragraph 49, which I read to your Honours, page 111, postulates a duty of care, among others, to take steps to ensure private landowners did not pollute the lake and to monitor in conjunction with the Council the quality of the water and the environment.  With respect, your Honour, the argument has gone off on a wrong footing on a pleading point.  His Honour below was entitled to hold, as he did, that the duty of care involved the need to exercise powers to ensure that the environment of the lake in which the oysters were grown was not polluted with viruses inimical to human health.  His Honour’s finding is in the alternative that they should have conducted a sanitary survey.  His Honour makes it clear that the concept of a sanitary survey includes remediation, that is why we have put it in the notice of contention, failing which the lake should have been closed, that is, render the machinery safe or do not use it.

Now the important point that your Honours would not have perceived from the State’s case against us is that when it came to close the fishery in 1997, that was done under the auspices of an officer of the Department of Fisheries, Dr Jackson, but voluntarily.  It was not an invocation of the ministerial powers under the statute, Fisheries Management Act, that my learned friend took the Court to. 

Our case has avoided ‑ and your Honour Justice Hayne referred to “cleverness”.  It was not a desire for cleverness.  We avoided a case based upon a claim of negligence against the Minister for failing to exercise statutory powers in circumstances where it involved the Minister’s satisfaction about certain matters.  We avoided that case but we do not avoid the case that is short of the exercise of ministerial powers.  The State had available to it an armoury which it used, indeed, in February, March 1997 to both carry out a sanitary survey to identify the points of pollution, to remediate them and on the way through to close the fishery and ‑ ‑ ‑

GAUDRON J:   You said “voluntarily”.  I do not understand that.

MR TOBIN:   Voluntarily?  Could I take your Honours to the appeal book, volume 14 your Honours.  It is only a short reference.  Page 3478.

KIRBY J:   What is the point you are trying to get out of the “voluntary” character?

MR TOBIN:   We do not bring an action ‑ ‑ ‑

KIRBY J:   You say what they subsequently secured voluntarily they ought earlier to have secured out of the considerable armoury of powers which they had.

MR TOBIN:   But they did not need, as the events show, to exercise ministerial closure.  If I could explain to your Honours by reference to volume 14:  3478 is Dr Jackson’s letter of 14 February 1997.  She was the State co‑ordinator of the New South Wales Shellfish Quality Assurance Program and she was an official at the Department of Fisheries working as the co‑ordinator of this program.  She says:

Due to recent events in the Wallis Lake area the Wallis Lake Quality Assurance Program in consultation with the New South Wales Shellfish Quality Assurance Program (NSW SQAP) has undertaken that all growers will immediately cease the harvest of any shellfish from leases located within the confines of Wallis Lake. 

GUMMOW J:   What does that mean?  What does it mean to say, “has undertaken that”? 

MR TOBIN:   It was a voluntary closure of the fishery. 

GAUDRON J:   The permit holders agreed to it. 

MR TOBIN:   Yes, on the initiative of the State.  Now, your Honours, if you would go to 3355, to evidence, again, of Dr Jackson’s activities, but of direct operation and managerial involvement in the supervision of the industry at the lake; 3355 is a diary note by Dr Jackson of 18 December 1996.  I will not read it all, but it begins with a note that at 11 am, she had received a call, an anonymous call from a grower at Wallis Lake reporting three growers who were said not to be purifying their product.  The president, Mr Moran, confirmed that more bags of oysters were going out than could go through the purification plant in the designated time. 

Then she discusses her involvement in the dot points.  She has discussed it with a Mr Warner, who has admitted harvesting during a fresh and shipping off the product to Melbourne and Gosford.  She says, at the end of the first dot point: 

I contacted the processors on 2 December 1996 and verified that the product had been recalled. 

Then the second dot point involves a second grower – the third line down.  He said, it was going out:  “not for human consumption” but for what I would understand to be relaying – taking them from one oyster lease and sending to another area where the conditions were safer: 

I contacted the south coast grower (Brian Coxon) to confirm this and was told that the product was indeed purchased for human consumption and that he regularly bought in oysters from other estuaries and purified it himself, to make sure it was purified correctly.  I informed Mr Coxon that the oysters had been harvested during a fresh and that they were not to be purified but be returned to the water.  Mr Coxon was in full agreement with this action. 

So the State direct co‑ordinator effects an agreement by the purchaser not to sell the oysters.  Then, at the bottom of the page, she said: 

I called NSW Fisheries Tuncurry and asked if a staff member would perhaps make an appearance at the sheds.  I fully understood that NSW Fisheries had no authority over purification –

that is a Department of Health function –

but felt that an appearance from an official may have made the growers think twice about flouting purification requirements.  I spoke to Jason at the Tuncurry office –

that is the Health Department –

and was told he would have to get in contact with his supervisor. 

Then a Mr Angle phoned back and said that he did not think there would be much point in that.  So she then says at 2.30, she contacted Mr Bell, the Health Inspector at the Tamworth Public Health Unit: 

informed him of the problem, and named the transport companies that were freighting the product to Sydney and Queensland.  Mr Bell was concerned but would be unable to visit Wallis Lake until Monday 23 December 1996 –

which was roughly a week away – five days away.

At this time the NSW QAP had exhausted all options in regard to purification compliance and left the matter with NSW Health. 

Your Honours, that is a glimpse of the evidence before his Honour at first instance which led to the conclusion that your Honour Justice Callinan put to me about the idea and extent of managerial control.  There is further evidence, and I do not want to ‑ ‑ ‑

HAYNE J:   Before you pass from that, assuming there to be a considerable body of evidence of acts done in persuasion of growers, or even acts done pursuant to compulsory powers, does the argument for the duty now asserted at 4906, namely “a duty . . . to take reasonable care to protect them from reasonably foreseeable risks of injury”, arise from the combination of, one, the existence of statutory power and, two, the fact that from time to time State officers sometimes exercised persuasion or power in relation to the industry?

MR TOBIN:   Not just that, of course, your Honour.  With regard to the second point, we submit that the evidence and the finding of his Honour Justice Wilcox as to substantial managerial control as a finding of‑ ‑ ‑

HAYNE J:   You see, that is an expression that masks much more than it reveals.  Substantial managerial control is, at best, opaque.

MR TOBIN:   Your Honours, I will take the Court shortly to a Canadian decision of the Federal Court of Appeal in Canada to do with an air safety case.  It was Justice Linden at that stage on an appeal bench.  The court there dealt with this sort of question along the old operational policy distinction line and held that there was a duty of care in that the activities of the inspectors who were charged with supervising the permit for the operation of an airline, their activities founded a duty of care in the Crown – the Canadian Government – with regard to the way in which they performed those duties.  There was an air crash and fatalities resulted.

We would draw the parallel here, your Honours, we have a situation where the concept of managerial control used by the learned trial judge reflects not just, as it were, the granting of permits but it reflects the actual supervision, more or less, and on a regular basis of the conduct of these oyster fisheries by officers of the State.  The further evidence – and I will take your Honours briefly to it – is illuminating with respect, for example, to Mr Bird’s conduct, Mr Bird being the Department of Health official in charge of the oyster program.

I will give your Honours the references.  Volume 7 at 1555 is the statement of Mr Brooker, and if I could read three paragraphs from it about the testing program that was conducted by the Council from 1989 to 1993.  Paragraph 39 of Mr Brooker’s statement said:

Establishing the testing program had been suggested by Mr Bird.  I recall that at one point he said to me words to the following effect:

“I am investigating whether we can use salinity as a measure of whether it is safe to harvest oysters.  If you test for salinity and send us the results we can use them to establish whether there is a link between salinity and faecal coliforms in the Lake.”

40.  Mr Bird brought me some computer software in which to enter the results of the tests.  I would do so and send him a disk containing the results . . . 

41.  Some time later (probably about 1992) Mr Bird visited me at the Council Chambers and said to me . . . 

“The testing that you have been doing does indicate that there is a link between salinity and the level of faecal coliforms.  I have discussed this with the growers and they will be incorporating this in their monitoring for the future.  So far as we are concerned, we don’t need you to keep doing the testing, although you might want to do so for general environmental purposes”.

And they did for a while.  Now, from the growers point of view, both Mr Barclay and Mr Ellery, who were in charge, in effect, of the depuration and supervision of the plants from which the oysters were sent out at Graham Barclay companies, they give evidence in volume 4 and there are three or four references that I will give your Honours in that volume.  At 897 ‑ ‑ ‑

GUMMOW J:   Sorry, what page, Mr Tobin?

MR TOBIN:   Page 897, your Honour, of the fourth volume, which is Mr Barclay’s evidence at 10 to 15, he says ‑ that is in the left‑hand numbering:

I always believed from Philip Bird, who is an expert, that testing the meat is more positive and more condensed because an oyster drinks three gallons of water an hour and if there is going to be any E‑coli anything in that water the oysters is going to be in the oyster.  So he believed, he told us that testing the meat is more positive than testing the water and we’ve gone along with his guidelines from the very start.

I see.  So, is that why you say that you have not undertaken tests yourself?---Correct.

As to the quality of the water, is that correct?---That’s correct, yes.

Now, that evidence was not contested by calling Mr Bird to challenge what Mr Barclay said and yet what Mr Bird says there seems to be contrary to what I said in opening yesterday, your Honours, that an essential pre‑condition for successful depuration was the testing of the water and ensuring that it was not so polluted that depuration could not work.

HAYNE J:   Why is it legally significant, Mr Tobin, in assessing the existence or the content of a duty owed by the State to a consumer of oysters to know how the State has, in fact, acted vis-à-vis growers?

MR TOBIN:   The first issue is that of knowledge of the State authority, or the authority, of the risk and in this case there is, on the evidence, I think, incontestable knowledge of the risk.  Secondly, your Honours, it goes, in a sense, as an element of vulnerability, that is to say that if there is knowledge of a grave risk of serious injury, perhaps of any injury, but serious injury in the case of an HAV infection, what the State has done with regard to its actual activity for the control of that risk may reflect on whether or not there should be a duty of care.

HAYNE J:   How?  I can understand it being very relevant to questions of breach but how does it affect existence or content of duty to know, for example, whether the State has relied on persuasion, relied on power, been diligent, not been diligent?

MR TOBIN:   Your Honour, what I had in mind was the decision of the Court in Burnie Port Authority, for example, which is a little bit of a tangent because it dealt with a non‑delegable duty of care.

KIRBY J:   You have moved away from the Canadian authority of Justice Linden.

MR TOBIN:   I am sorry, your Honour, I meant to ‑ ‑ ‑

KIRBY J:   You did not put that on the record and I do not know ‑ ‑ ‑

MR TOBIN:   I meant to dwell on it but if I do not have time to take your Honours to it ‑ ‑ ‑

KIRBY J:   Would you just put the citation on the record at some stage?

MR TOBIN:   We have provided a copy and I would like to be able to take the Court to it if I have time, your Honour.  Now, your Honours, in that decision at 552 ‑ ‑ ‑

GUMMOW J:   We have to know the name of it.

MR TOBIN:   Burnie Port Authority, sorry, your Honour, I am moving between the dominions, I am afraid.  Burnie Port Authority at 552 says this in the first paragraph:

It follows that the relationship of proximity which exists in the category of case into which Rylands v Fletcher circumstances fall contains the central element of control which generates, in other categories of case, a special “personal” or “non-delegable” duty of care under the ordinary law of negligence.  Reasoning by analogy suggests, but does not compel, a conclusion that that common element gives rise to such a duty of care in the first-mentioned category of case.  There are considerations of fairness which support that conclusion, namely, that it is the person in control who has authorized or allowed the situation of foreseeable potential danger to be imposed on the other person by authorizing or allowing the dangerous use of the premises and who is likely to be in a position to insist upon the exercise of reasonable care.  It is also supported by considerations of utility:  “the practical advantage of being conveniently workable, of supplying a spur to effective care in the choice of contractors, and in pointing the victim to a defendant who is easily discoverable and probably financially responsible”.  The weight of authority confirms that the duty in that category of case is a non-delegable one.

Now, in answer to your Honour Justice Hayne, I concede that there is an element of identifying whether the duty which is posited is personal or non‑delegable, but some of the elements in the reasoning in the Burnie Port Authority Case may be of relevance to answer your Honour’s question because the touchstone of a duty of care will be the assumption of responsibility.  The touchstone of it is not to be found solely in the statute.  The touchstone, we would submit, is to be understood by the assumption of responsibility.

GUMMOW J:   To whom?  Assumption of responsibility to whom?

MR TOBIN:   In this case, to the ultimate consumer because the responsibility which is being discharged is directed to the ensuring of safe oysters.

GLEESON CJ:   This is like some kind of theory of intermeddling, is it?  If you keep out of it, you have no duty but ‑ ‑ ‑

MR TOBIN:   No, I do not put it that way, your Honour, because the State certainly did not keep out of it and ‑ ‑ ‑

HAYNE J:   But the consequence is that if the State or a government authority introduces any form of inspection, any form of regulation supported by compulsion, the State then is taking a responsibility, perhaps on one view the prime responsibility, for ensuring safety of product.  That is a large step to take, but it seems one inevitably that your submission would require.

KIRBY J:   I did not take you to be saying that.  I took you to be saying it all depends on the circumstances.  You have to look at the extent of the risk.  You have to look at the armoury of the powers.  You have to look at what they could have done and what they did in fact do, what they did formally and what they did informally.  If you put all those together, you can build a case of a duty of care and a breach.

MR TOBIN:   Yes.

HAYNE J:   Why should assiduous performance by the State put it in a worse position than complete neglect of the area?

MR TOBIN:   With regard to the first question, your Honour, in this case there was no assiduous performance of the duty.

HAYNE J:   I understand that.  That is breach territory.  But we are in duty territory.  Why does the State owe a duty to the consumer?  I would understand if they take on responsibility that they might owe some obligation to the grower, but why to the consumer?

MR TOBIN:   Well, your Honour, if an obligation is owed to the grower with respect to the safe growing of oysters, such a duty has no content if it does not entitle the grower, as it were, to have the benefit of it.  I mean the safe oysters are not eaten by Mr Barclay on his wharf.  They are sold on his wharf and consumed by people who purchase them.  So the notion, your Honour, of a duty of care to the grower, we would submit, is too narrow.

That was a basis upon which Justice Kiefel found against us in the Council case as to the extent of the duty but if your Honour would go, for example, to the Fisheries Management Act, there are two sections of that Act that I should refer to.  Section 156(1), your Honours ‑ Mr Walker I think referred the Court to it ‑ says:

A permit holder must, if the regulations so require, pay to the Minister an annual contribution towards any of the following costs:

and (b) is:

the cost of monitoring the quality of the environment in which aquaculture is undertaken and of testing the quality of the fish or marine vegetation cultivated;

Sub‑section (3):

The payment required by this section is taken to be a condition of every aquaculture permit.

That would suggest on our case, your Honours, that it was in the contemplation of the legislature that as part of the State’s activity would be the monitoring of the quality of the environment of aquaculture and that that cost of monitoring would be borne under the permit system by the growers themselves.  We would submit that because of the public health aspects in the legislation, and they appear clearly in the Clean Waters Act to prevent pollution of the waters and they appear in parts of the Fisheries Management Act, although not expressly in the objects of it, implicit in these two pieces of legislation is the safety of consumers of oysters.  In the Fisheries Management Act and with regard to the Clean Waters Act it is not simply the cleanliness of the water as an aesthetic proposition, it is clearly enough the sanitary and hygienic ramifications of polluted water.

Your Honour Justice Hayne has put to me why the duty would be owed to the consumer and it is for those reasons, that is, those parts of the legislation which have in contemplation the health of the public, either expressly or impliedly.  If I could put the inevitable object of legislation to regulate the oyster industry among other objects, including commercial viability of the fisheries, will be the safety of the product consumed by the public otherwise the fisheries will go out of business and in a sense this case and any before it or after it may well decide the issue as to whether you can conduct safe oyster fisheries in waters prone to pollution in which the State officials and the local councils do not exercise their powers to exercise those waters.

Your Honours, I will read out the references if I may to the evidence relating to Mr Bird and the State’s involvement.  They are at volume 4, pages 897, 902, 913, 921 and 985, and Mr Ellery’s evidence is at pages 970 and 976.

KIRBY J:   I do not just have it clear in my mind ‑ you tried to build your case against the States by reference to the activities or lack of activities by the EPA.

MR TOBIN:   Yes.

KIRBY J:   You pleaded your case against the EPA in certain respects and it appears that in some respects his Honour has rejected that case but he does not deal with some other aspects, so is it your contention that they remained alive and informed his Honour’s decision on the existence of the duty and the breach of the duty, or not?  It is not entirely clear.

MR TOBIN:   We do, your Honour because ultimately, as his Honour found at first instance, it was the failure to conduct a sanitary survey, and it is clear from his Honour’s judgment that he contemplated the remedial action that would follow from it.  It is that failure which is one of the alternatives in the finding of negligence against the State, at 340 of the judgment.

KIRBY J:   That is a failure by its agent.

MR TOBIN:   Yes.

KIRBY J:   Or with power, the EPA.

MR TOBIN:   Yes.  As pleaded the EPA, but of course, your Honour, as the case developed and the sanitary survey was conducted, it was actually managed by the Department of Fisheries as it happened, but that may just be a form of – within the bureaucratic patch, who was responsible for supervising the sanitary survey in February 1997, but the EPA and the Council conducted the sanitary survey.  There is some short reference to it in his Honour’s judgment.

In the judgment itself – I will give your Honour the paragraph numbers; they have been referred to before:  332(e) where his Honour sets out some of the factual bases that result in his findings.  He said:

(e)  through the EPA, the State had powers under the Clean Waters Act to remove, disperse, destroy or mitigate pollution of waters (s27) and to carry out inspections and investigations of premises (s29);

and at 334, in a passage that Justice Callinan referred me to, about halfway down, it says:

The EPA was involved in inspections and directions in relation to premises in the Wallis Lake catchment area.  Decisions by EPA regarding the necessity to inspect premises for the purpose of determining whether they were sources of water pollution were decisions in the operational area.  In sum total, through various agencies, the New South Wales government exercised substantial managerial control over the Wallis Lake oyster industry.

In Pyreness, as your Honours would recall, one of the significant elements in the holding of a duty of care, and the judgment of Justice Gummow, involved whether the Council in that case had embarked upon the use of its powers with respect to the risk in question.  It seems to us, your Honours, that ‑ ‑ ‑

KIRBY J:   That is a much different factual case because it is a small council.  Indeed so small that it was soon afterwards abolished with a very small line of command and particular officers, and specific statutory powers.

MR TOBIN:   Yes.

KIRBY J:   Now, you are building a case which, as it were, has a hydra‑headed monster, the State, which has various agencies, some of whose tentacles get lopped off by his Honour, but you say enough remains.

MR TOBIN:   Your Honour, it is a simple enough process in a modern State, in a modern community, to ensure the purity of waters in which potentially dangerous shellfish are grown commercially.

KIRBY J:   Yes, but it is one into which the State Parliament has intruded with a network of laws which provide a number of different agencies, powers to do things.

MR TOBIN:   But, your Honour, we, in a sense, do not have to disentangle the role of the different agencies.  In that passage from Dr Jackson’s diary note it was very instructive that she as the co‑ordinator of the State Quality Assurance Program spoke to the Department of Fisheries to do something about the purification plant and the oysters leaving it improperly purified.  That was a Department of Health area, so the Fisheries people would not ‑ ‑ ‑

KIRBY J:   And Mr Bird is an officer of Fisheries?

MR TOBIN:   Mr Bird is Health.

KIRBY J:   Health, I see.

MR TOBIN:   Dr Jackson was the State co‑ordinator, so she worked out of the Fisheries Department but when she asked the Fisheries officers to do something about the purification plant, they say, “Well, this is a Health Department problem” and then when she goes to the Health Department about the trucks or truck transporting oysters from Wallis Lake to Sydney and Brisbane, he cannot do anything for five days, so obviously the truck is going to be gone.  So, then she says, “Well, the Quality Assurance Program has done all that it may do – all that it can do”.

In such a circumstance, your Honours, we would submit that it was a correct course for his Honour to pursue to take the agencies of the State as under the State’s then Crown Proceedings Act.  The agencies of the State, whether the Minister or government or instrumentalities of the State, in right of the Crown, as the State of New South Wales and the State of New South Wales is sued in the name of the State of New South Wales pursuant to the then existing legislation.

So, in a sense, where his Honour had before him the conduct of various agencies of State, he has said, “I do not need to hold negligence with regard to the conduct of any of the particular agencies that you have referred to” ‑ the EPA in point – “You would have difficulty on the Bendix principle that his Honour referred to of establishing causation.”  That does raise a significant question about the appropriateness of finding a duty of care and imposing it on the State and it is this:  as in the Burnie Port Authority Case in which the Court recognised the difficulty that a plaintiff may have in identifying the appropriate defendant and the circumstances of fairness which the Court referred to in deciding upon the defendant as the authority rather than the contractor.

So, in these circumstances, your Honours, it would be the common fate of the plaintiff who had eaten oysters somewhere around the country to be unable to trace the grower of the oyster.  There was not extensive evidence given on this point but it would be, your Honours, realistically very difficult for a plaintiff to find the right defendant who was the grower against whom the Trade Practices Act could be invoked.

GAUDRON J:   Could we just stop there on the Trade Practices Act for a moment, Mr Tobin?

MR TOBIN:   Yes.

GAUDRON J:   I have raised this in other contexts, but why is it that in the face of the provisions of the Trade Practices Act there remains in this area any common law liability on the part of the growers?  Why is it that you even get a finding of negligence against the growers once you have a finding?

MR TOBIN:   Because, your Honour, the way the case came to the Federal Court ‑ ‑ ‑

GAUDRON J:   I know how the case came.

MR TOBIN:   It was under the Trade Practices Act with ‑ ‑ ‑

GAUDRON J:   I am asking you why does not the Trade Practices Act in the case of product liability, as it were, cover the field to the exclusion of the common law of negligence?

MR TOBIN:   In the reading of the Trade Practices Act and the holdings of the court as to the availability of common law causes of action in suits pursuant to the Trade Practices Act, there is nothing in the Act itself which is inconsistent with either State legislation or State common law so as to exclude it. 

GAUDRON J:   There is no such thing as State common law.  Let us start with that.  There is ‑ ‑ ‑

MR TOBIN:   Well, the common law as applied by ‑ ‑ ‑

GAUDRON J:   Assuming, as is the case, that you get a judgment under the Trade Practices Act, if other causes of action survive, why are they not merged in that judgment? 

MR TOBIN:   The Barclays companies raise the issue of negligence ‑ ‑ ‑

GAUDRON J:   I know ‑ ‑ ‑

MR TOBIN:    ‑ ‑ ‑ because upon that determination will depend whether they bear the whole burden of the damages or not. 

GAUDRON J:   Well, that is not necessarily right.  I should have thought it was tolerably clear that the Barclay companies could maintain third party proceedings against the Council and the State, and that their prospects of success in such actions on the basis of a duty to care to them were considerably greater than on the basis of a duty of care owed to the consumers.  But what I am really asking you:  why should the judgment against the Barclay companies in negligence stand? 

MR TOBIN:   I raised earlier, your Honour, the difficulty of identification of the grower or the distributor who might be responsible under the Trade Practices Act. 

GAUDRON J:   I know they ‑ ‑ ‑

MR TOBIN:   And the Trade Practices Act finding ‑ ‑ ‑

GAUDRON J:   But you seem not to have had any insuperable difficulty in locating the Barclay companies. 

MR TOBIN:   Well, in this case, that is so, but only one of them is subject to the holding under the Trade Practices Act – not Barclay Distributors, your Honour.  Barclay Distributors is not the subject of the determination below, in favour of Ryan, for breach of the Trade Practices Act. 

GLEESON CJ:   Is there an agreement between counsel on the provision of time for today? 

MR TOBIN:   There is, your Honour.  I am to pass on rapidly to the Council case.  Could I deal with Swanson Estate v Canada (1991), 80 DLR (4^th) 741 very briefly.

GUMMOW J:   Has this been referred to in this Court before? 

MR TOBIN:   I do not know that, your Honour.  We have not put it in our written submissions.  Page 743, at about line c, identifies the statutory power that the ‑ ‑ ‑

KIRBY J:   Justice Linden wrote the standard Canadian text on the law of torts, I think. 

MR TOBIN:   Yes. 

KIRBY J:   Or he is one of the authors. 

MR TOBIN:   Justice Linden, yes.  I think Justice Linden may be now in the Supreme Court – no.  The legislation said that: 

“no air carrier shall operate a commercial air service unless he holds a valid and subsisting certificate issued to him by the Minister, certifying that the holder is adequately equipped and able to conduct a safe operation”. 

Between d and f, there is set out the regulatory powers.  I will not dwell on those, your Honours.  Page 744, f to h, refers to violations of the Air Navigation Orders by the company which lost its plane and lives were lost.  The analysis is in terms of the reports that were made; a finding at the bottom of the page of: 

“total disregard for regulations, rights of others and safety of passengers.” 

And, at the top right, 745, a, the decision:  “to keep a closer watch on Wapiti and collect more evidence”.  The duty question is dealt with from e/f, on page 745 and, if I could go to 751 c, the holding was that: 

Their task was to enforce the regulations and the ANOs as far as safety was concerned to the best of their ability with the resources at their disposal.  This function was clearly operational.  Hence, a civil duty of care was owed to the plaintiffs to exercise reasonable care in the circumstances. 

Then over the page at 752, a and b, his Honour separates out the policy question from the operational question by saying ‑ ‑ ‑

GUMMOW J:   This case was referred to by Justice Toohey in Pyrenees 192 CLR 330 at 360, paragraph 71, and by Justice Kirby in the same case, 480, paragraph 129.

MR TOBIN: Thank you, your Honour. Your Honours, can I summarise our answer to the State’s case. There is one piece of legislation that I will preface my closing comments by reference to, section 152(e) of the Fisheries Management Act, relating to:

conditions requiring the permit holder to maintain public liability insurance and to indemnify the State and its agents in connection with the undertaking of the aquaculture;

That would suggest, 152(e), that the legislature was not closing the door on the existence of common law rights with regard to the activities of officials of the State relevant to the aquaculture permits.  That, of course, does not necessarily extend to the EPA and to other authorities, however, it does indicate that, contrary to the State’s argument, it can hardly be suggested that this is a closed statutory scheme which would not permit the common law to intrude, as it were.

GAUDRON J:   What section, Mr Tobin, I am sorry?

MR TOBIN:   That is 152(2)(e).

GAUDRON J:   Thank you.

MR TOBIN:   Your Honours, what we submit is that applying various elements of test that this Court has applied in the last three or four years, in regard to the State of New South Wales v Ryan, there was a foreseeable risk of physical injury.  The State had power to control the risk through either direct statutory powers or, indirectly, through its supervision of permits and conditions.  That the risk in question was a serious risk and a present risk.  It was not a remote or unlikely risk.  A purpose of the statutory power, impliedly, was to control the risk to obviate illness from consumption of oysters.  The risk was known by the relevant State officials and the nature of the risk and the gravity of the risk.

GAUDRON J:   All of that may or may not be correct, but there is, is there not, another question of principle which requires consideration similar to that which I raised with you before?  But for many, many years, and not just under the Trade Practices Act but to the old Sale of Goods Act, there was something approaching strict liability for failure of merchantable quality of vendors, manufacturers and so forth.  In that area where you have something approaching strict liability, why do you go, as a matter of general legal principle, searching for a further duty to the public or to the consumers on the part of people like the State or the Council?

MR TOBIN:   Well, the short answer, your Honour, and I hope it is an informed answer, is that in circumstances where the injury is caused by a generalised risk in the environment, the carrying of hepatitis virus in the waters, and the identification of the appropriate defendant is likely in those circumstances to be difficult.  The Trade Practices Act is an inadequate weapon, as it were, to protect the rights of the injured consumer, although, of course, it is ‑ ‑ ‑

GAUDRON J:   But even if it may be inadequate in some respects, it is not ordinarily the case that the law goes around imposing duties of care on multiple persons when the primary responsibility is assigned by statute to someone else, for example, the old Factories, Shops and Industries Act, responsibility under the regulations on employers.  No one thought that in addition there was a duty of care on the part of the government to send inspectors out at all times to check on it.

MR TOBIN:   Your Honour, the distinction that we would draw is this, that this is not the type of consumer transaction where the relationship between the purchaser and the consumer is likely to be that which one finds in a shop purchase.  By way of illustration, I do not know the percentages, but a large proportion of oysters consumed will be consumed in restaurants, not by direct purchase of the consumer from the purification plant, for example, at Wallis Lake.  So that this is a category of case, your Honour, where once the distribution process starts to operate, the Trade Practices Act will not protect the interest of the consumer because of the impossibility of identification of the source of the statutory breach.

McHUGH J:   But it has nothing to do with that problem, has it?  The consumer in the restaurant has his cause of action, or her cause of action, against the restaurant proprietor.  If you buy it at David Jones, you have your cause of action against David Jones under the Sale of Goods Act.  It may help you, but my recollection is that Grant v Australian Knitting Mills which extended the law of negligence, Dr Grant also succeeded on a claim under the Sale of Goods Act. 

MR TOBIN:   Yes.  But, your Honour, if one can take the parallels from the Burnie Port decision, the Trade Practices Act is unlikely to be a sufficient answer where you have the widespread dissemination of foodstuffs in circumstances where the defect in the food cannot be identified and, on one argument before the court below, would be unable to be identified, that is, it would not be capable of maintaining the oyster because you would destroy it by the process of testing whether it had a defect in it.  It seems, in our submission, your Honours, that the Trade Practices Act does not operate as a sufficient remedy by ‑ ‑ ‑

GAUDRON J:   No, but there is other legislation.

McHUGH J:   But under the Sale of Goods Act, if they are goods bought by description – and that is what oysters are – there is an implied condition of merchantable quality.  If the plaintiff in a particular case relies on the skill or judgment of the seller, there is an implied warranty that they are fit for the purpose for which they are acquired, but the old section 14 of the Sale of Goods Act with its implied condition of merchantable quality will get most consumers home.  In fact, I would be surprised if there are any that would not get home.  So why should you invent a new cause of action?

MR TOBIN:   It may be for this reason, your Honour, that if you have a serious outbreak of HAV from the diners at a restaurant, as the Burnie Port Authority postulated, it is a relevant factor as to who is the appropriate defendant as to who may be able to bear the cost of that remedy.  That is to say that 20 people suing the local oyster bar is going to send the local oyster bar out of business.

McHUGH J:   No, then it is the local oyster bar’s rights against its supplier.  You go along the chain.  I know that in California the Californian Supreme Court held in the 1940s in the Coca Cola Bottler Case that this was a reason to allow the consumer to sue the manufacturer direct.  That was their equivalent of Donoghue v Stevenson.  I think the name of the case is Escobedo or some name like that.  Roger Traynor was the judge who wrote the leading judgment.  Why should we not take a different approach and say they are rights in contract?  Particularly in the case of consumers, why should we impose these duties of care, particularly having regard to the indeterminacy of negligence laws and the burden on the courts?  Look at this case, volumes of materials when you have simple remedies under the Trade Practices Act and Sale of Goods Act.

MR TOBIN:   Why those remedies do not seem to us to be appropriate, your Honour, is the identification of the chain.  Ryan is not perhaps a good case because he bought it at the Barclay store, but the difficulty when the 400‑odd sufferers from HAV were traced was to find out who was the ultimate supplier.

HAYNE J:   I take it each of them knew the immediate supplier?

MR TOBIN:   I do not believe ‑ ‑ ‑

HAYNE J:   Each of them would have had a simple Donoghue v Stevenson or Goods Act claim against them, would they not?

MR TOBIN:   That would then generate, as it were, a chain reaction of litigation and the Court would need to determine whether six negligence suits up the chain ‑ ‑ ‑

McHUGH J:   No, you have six quick Sale of Goods Act up the chain, nice and simple, no problem at all.  If it is of merchantable quality, end of story.

MR TOBIN:   Well, your Honour, there is a problem.

GAUDRON J:   And if at the end of the day there is a duty of care up the chain, it may well be a very different duty from that which you assert is owed to consumers generally.  You see, at the end of the day it might well be in a case such as this that you would find a duty of care on the Council to warn the growers, a very different duty of care from what you assert, and it is a duty of care which does not really involve any consideration of the Council’s resources.

MR TOBIN:   I say with regard to that, your Honour ‑ I am not going to have much time to deal with the Council ‑ both the State legislation and the powers of the Council under the Local Government Act allowed those governments, State and local, to claw back the cost of remedial work from either the householder or the polluter, in the case of the State legislation.  So the cost issue was one which his Honour was entitled to find in favour of ‑ ‑ ‑

GAUDRON J:   Yes, but we are talking as a general principle.  Unless there is something peculiar about this industry, one has really got to look at it in terms of the generality of cases in which there is asserted a duty of care against public bodies, public statutory bodies, who really are in a somewhat different position, vis-à-vis the consumer, than the immediate supplier or indeed the ultimate manufacturer.

MR TOBIN:   Could I refer to the Council’s position in that respect.  One of the obvious functions of councils is to do with hygiene and sewerage, it is one of its main functions.  Roads is another, of course, and drains, but sewerage is a primary function of the Council and in the case of the Wallis Lake area is was not simply that there was an industry within the Council’s boundaries that carried on a profitable enterprise to the indirect benefit of the Council, not doubt, through rates, but in the position of the Wallis Lake oyster growers the Council had a rather different relationship.  The Council health surveyor was the secretary of the quality assurance program for the oyster industry over a period of time and the Council had active involvement in the activities of the Wallis Lake oyster growers.  So a distinction may be drawn between whether there are obligations attaching to the Council to exercise its public health powers to do with sewage in the case of the oyster industry at Wallis Lake, as against a large manufacturer in any municipality which does not have any particular relationship, other than geographic, with that site.  The relationship with the Council emerges in this way, that the very thing which is likely to cause injury to consumers of the oysters was the sewage which it was charged with under the legislation to prevent entering the waters and to ensure, thereby, public health.  In other words ‑ ‑ ‑

McHUGH J:   It did not have a duty though, to do it, it had power to do it.

MR TOBIN:   It had a power but ‑ ‑ ‑

McHUGH J:   You have to argue for an affirmative duty and the common law has always set its face against affirmative duties.  When the Pharisee passed by on the other side, the common law would not have held him negligent for not going to the aid of the injured man.

MR TOBIN:   Things have changed.

McHUGH J:   You can still walk past an injured person.

MR TOBIN:   The individual can, the aviation regulator cannot, in Canada at least.  Your Honours, the connection between the Council and the growers in this case, is this, that the Council is fitted with all the knowledge of the need for pristine waters to protect consumers.  That is what is knows because a large oyster industry is conducted in its jurisdiction, and it has not just powers with regard to public health but on the admissions of the Council on the pleadings an acceptance of a duty of care with regard to discharge of effluent from its own properties.

McHUGH J:   I know, but you have to argue in effect for a duty to the public and the risk of loss from a person who is just a member of the public is not ordinarily – and I doubt if there is any case which holds that there is a duty of care in such a situation.  I mean why stop at consumers?  Why is it any ‑ ‑ ‑

MR TOBIN:   That is this case.  One would not necessarily stop there.  The issue to be posed is this.  If the Council, with full knowledge of the risks involved, does not exercise its powers with regard to sanitation and even reaches the stage where it says that it will not investigate any complaints about sewage flowing out of septic tanks and the like, will not even investigate them, the question is raised as to the nature of that act by the Council.  Omission or commission does not, as it were, capture it.  It is an element, but it does not capture the real nature of the act.  The real nature of the act is, as we would characterise it, a wilful disregard for the rights, that is ‑ ‑ ‑

McHUGH J:   Maybe you should have sued for misfeasance of office, if you are going to use the term ‑ ‑ ‑

CALLINAN J:   Mr Tobin, do you have to go as far as that?  Could I draw your attention to what Chief Justice Gibbs said in Sutherland Shire Council 157 CLR at 445. Justice Wilson agreed with that, and I do not think it was disapproved in Pyrenees, but his Honour said, at about point 6:

Once it is accepted, as it must be, that the ordinary principles of the law of negligence apply to public authorities, it follows that they are liable for damage caused by a negligent failure to act when they are under a duty to act –

and these words –

or for a negligent failure to consider whether to exercise a power conferred on them with the intention that it should be exercised if and when the public interest requires it.

Now, is that your case?

MR TOBIN:   It is.

CALLINAN J:   Against both the State and the Council?

MR TOBIN:   It is not misfeasance, as Justice McHugh put to me.  It is a failure ‑ ‑ ‑

CALLINAN J:   No, it is negligence and Justice Wilson referred to it.  Now, there is a passage, as I understand it, in Justice Mason’s judgment in Sutherland that was subsequently disapproved by three Justices of this Court in Pyrenees, but there does not seem to have been any disapproval or otherwise of this passage, a very far‑reaching passage, but Justice Wilson agreed in it, and it would seem to me, at first sight anyway, to embrace everything that you are saying.  You do not even have to go as far as you are going if that is right and it is to be understood literally.

MR TOBIN:   Yes.  Your Honour, could I go beyond that and say that on the case that we have made against the Council there is an element that the courts have considered in dealing with allowing a duty of care in the case of statutory entities or government entities, in particular, your Honours, there is an element of prophylaxis, if I can put it that way.  In other words, the very harsh concluding paragraph from Justice Linden that I read reflects what may need to be the intervention of the courts if there is arguably a case for a duty of care by introducing elements of that kind, namely, the ensuring, as best the law of negligence can do, that the standards of sanitation or health or hygiene are maintained.

CALLINAN J:   Accepting all of that, but it seems to me, at least arguably, and very clearly arguably, that you may fall literally within that passage that I have read.  Do you not want to adopt it?

MR TOBIN:   I did, your Honour.  I embraced it, I thought, with passion.

GAUDRON J:   First find your duty though.

McHUGH J:   Yes, and first bring yourself within the facts of the case.  There was no negligent failure to consider whether to exercise a power here.  The Council considered it and said they would not exercise it.

MR TOBIN:   Not quite that, your Honour.  I mean, there is a notice of contention being brewed as we speak in which the Council contests his Honour’s finding that they adopted an approach of not doing anything about complaints on the septic tank front and, in evidence, the Council officer, Mr Brooker, said that it would be ridiculous, he thought, on reflection, to pursue such a course and his Honour did not believe that and found against him on that credit issue.

Now, it seems that that raises pretty squarely the fact that it can hardly satisfactorily fall within a policy ground that the man who has said, “We will not investigate any more complaints” then says that such a policy would be so ridiculous that he would not carry it out.

CALLINAN J:   That was only in an official report to go up the line.

MR TOBIN:   Yes.

CALLINAN J:   It was not his decision.  It was ultimately the Council which had to make the decision whether to act upon that report or as to how it would act upon it.

MR TOBIN:   I think, your Honour, it was the Council bureaucrats.

CALLINAN J:   Exactly.  But, they cannot bind the Council so far as a Council’s decision is concerned.

MR TOBIN:   No, but what they do is they carry out the executive functions of the Council and they did it, I can say, your Honour, confidently, without, as it were, having to get the imprimatur of a session of the Council.  Now, your Honours, I am ‑ ‑ ‑

CALLINAN J:   Just before you go, the words, “if and when the public interest requires it” would rather suggest that if that is negligent ‑ it would suggest to me that the duty may be owed very, very broadly, indeed.  There may be a duty of care owed perhaps as widely to any member of the public who may be affected by the exercise or non exercise.

MR TOBIN:   Yes.  In the case before your Honours, as I have said, both the State and the Council had available to them recourse to the growers to recoup the cost of the sanitary survey that his Honour found was a sine qua non.  Beyond that, of course, is that that sanitary survey was not carried out in circumstances where the area around the lake was overflowing, in a sense, during heavy rain.

CALLINAN J:   Except we do not know how long, of course, it might have taken not only to carry out the survey but also to give effect to any recommendations or to enforce the powers or ‑ ‑ ‑

MR TOBIN:   Perhaps I will give this reference with a note, but Justice Wilcox dealt with that when he analysed the carrying out of the survey immediately after the HAV outbreak.  So, just two or three months after the events of Dr Jackson going to Wallis Lake.  The fishery was closed and at 244 in Mr Justice Wilcox’s judgment he tells us really what a sanitary survey amounted to and it was this:

The Health Department organised a sanitary survey, using personnel supplied by various agencies, chiefly the Council and EPA.  According to Mr Brooker, 14 people participated in a five‑day survey.  Over the following months, 10 people carried out follow‑up inspections.  There were inspects of 319 residences (including at Nabiac), 61 boatsheds and oyster depuration sheds, 31 watercraft and the islands and foreshore reserves ‑ ‑ ‑

CALLINAN J:   I have read that passage.

MR TOBIN:   His Honour then analyses the fact that this would amount to the work, even if it was done quickly in this circumstance.  If you doubled the time one officer could get through this sort of work in five or six months.  We are talking about a period of years leading up to the HAV outbreak in the late ’96 year.  So, the actual burden on the Council was in fact minuscule.

Again, your Honours, what are councils for if they are not, among other things, to ensure the safety of the locale and its waters from sewage?  This is an issue which, of course, has the colour of a pollution case, and that is an element that your Honours might consider in the issue of the duty of care point.  In a pollution case, with the contesting issues of Chappel v Hart and Bendix, for example, you have real problems of proof with regard to, ultimately, negligence if a duty of care is found.

It is our submission that in cases of that kind it may well be appropriate for the Court to consider the duty of care owed by the State or the Council as a resolution of what otherwise might be a pretty impossible problem at common law of identifying the particular source of the pollution.  If I could put it this way.  We could no more identify a resident of Nabiac or at a caravan park as having been responsible for the effluent that caused the HAV infection.  What his Honour found – and this is a finding of fact that we say could not be disturbed – is that the sources of the pollution with the HAV in it came from multiple sources all within the control of the Council under the sewage powers and of the State under the EPA powers.

Now, that seems to us to be a relevant factor in considering whether there is a duty of care, to say, in a pollution case of this kind with the problem of identification of the source, if there is an authority which has relevant control of the area and relevant statutory powers and relevant involvement, it may be that a duty of care placed upon those authorities is the only remedy at common law in environmental pollution cases that will really count.

McHUGH J:   This really means a massive extension of duties of care and liabilities of public authorities.  It seems to be a plea that when powers are not exercised for the benefit of the community, there is a duty of care imposed by the common law.

CALLINAN J:   It strikes me as a very, very far‑reaching proposition, if it is right, with all sorts of ramifications.

MR WALKER:   I shrink from saying Chief Justice Gibbs was wrong because it needs to be read in a full context, but taken in isolation it would not be a complete nor wholly reliable guide to what the common law is, in our submission.  There is another answer at much lower level, namely, that none of that was pleaded, argued or decided below and it is not open now.

CALLINAN J:   It was really found, though, was it not?

MR WALKER:    No, your Honour.

CALLINAN J:   I thought Justice Wilcox’s finding ‑ ‑ ‑

MR WALKER:   One reason why it was not found is one considers the comment that we had breached our duty or our duty had devolved upon us so as to call for us to act some time long before November 1996.  When?  By dint of what circumstances?  Or, worse still, was there meant to be an officer of the State thinking about Clean Waters Act compulsory entry powers continuously – I do not mean from time to time, I mean continuously – for this particular estuary? 

That is absurd, so there needs to be something to call in aid to make reasonable in any sense, be it public law or private law, giving advertent thought to the need to exercise that power.  The State has a panoply of powers which require to be exercised, and thought to be given to their possible exercise, only according to circumstances and those circumstances surely include not thinking in the abstract about all the possible multifarious and infinitely various manners in which they might be exercised.

your Honour Justice Kirby will recall from your Honour’s reasons at 12 NSWLR 299D, the findings there were able to extend so far as a reassurance held out by the relevant officer to the aggrieved citizen that things would be looked after, in effect. Now, that is doctrinally, or conceptually I should say, quite a different concept from simply saying where there is a statutory power it can be enforceable at common law for failure to exercise it by dint of the intermediate reasoning that there must have been a failure to consider its exercise.

It is never to be forgotten, of course, with respect to compulsory entry and what might happen after you have compulsorily entered and suspected that somebody’s septic tank could do with some work.  There can be no guarantee, not least because mechanical breakdowns happen from time to time, and perhaps even gradually.  When one compares the comments by Justice Wilcox at trial, in paragraphs 337 and 338, which are pregnant with his Honour’s acceptance of the possibility – the continuous, that is, the constant possibility – of failure, it is, in our submission, all the more to be rejected that there was some continuing obligation always to be thinking about exercising compulsory entry powers under the Clean Waters Act in the catchment area of Wallis Lake, and presumably everywhere else in New South Wales, so as to render us liable for breach of a common law duty. 

May I next come to the question of the Canadian authority relied upon by my learned friend, Swanson v Canada (1991) 80 DLR (4^th) 741. The passage, already quoted, from 744 to 745, containing what can only be described as pure gold for plaintiffs’ counsel by way of the facts available, fit, in our submission, entirely into the mould set by Pyrenees, and earlier in the Court of Appeal in New South Wales in Lutz.  They are highly special. 
After all, following actual face‑to‑face encounter with the aviators in question, with the aviation company in question, within the inspection service with its statutory mandate, duty or responsibility, the warning was made, “People are going to be killed”.  It did not require branding as post hoc propter hoc for the later connection to be drawn.  In our submission, that is Pyrenees.  In our submission, that is Lutz. 

But there is nothing here, your Honours have not been shown any facts apart from that which was known, general – not only to New South Wales but to the world, namely, that if you have humans who defecate, as they do, in catchment areas where rain may wash into an estuary, which it does, and oysters grow in an estuary, then there is a risk.  No one has ever said, you can eliminate the risk, but what is said against us, that that puts a common law duty on the State which, the more one reflects, must be operating as we speak now, and must be operating not merely for Wallis Lake but for every place where there is aquaculture – and we go further.  It must be operating – when one thinks about the breadth of the Clean Waters Act, which goes far beyond ensuring the cleanliness of water for aquaculture or for swimming – it must be extending to all waters of New South Wales, because one does not have to be a scientist to know that contamination washed from a catchment into a reservoir, creek, river, sea, is liable to hurt people.  In our submission, simply to state that proposition is to reject it. 

Can we exemplify that by reference yet again to the Fisheries Management Act.  As our learned friends spoke about the problems of oysters, the threat of death and the possibility of complete closure of fishery, what springs to mind is section 190 of that Act.  Section 190 starts as if it were declaring oysters to be royal fish.  There are exceptions then created.  Firstly, oysters covered by aquaculture permits are the property of the person farming them.  Secondly, under section 190(3) all of us, the public, have the right to take oysters, that is, outside oyster leases, from public waters.

That is obviously a matter of which New South Wales is aware in the most solemn fashion.  Parliament has enacted the liberty.  Now, section 189 closure powers will not apply to that.  They are restricted to aquaculture permit oysters which are owned by the permit holders.  So, for all of those oysters that one sees at low tide, if they are maritime, or sees in estuaries, and which you are tempted to take and you are permitted to take, what is the common law duty?

We hear, for example, that Mr Ryan is a volunteer, for whatever relevance that is, so one can leave out commerciality as any part of Mr Ryan’s argument here.  What about the person who exercises the statutory right under 190(3) of the Act to take oysters?  We know – that is the State knows – that waters – and these are now all the public waters of New South Wales – are liable to pollution.  It is in the nature of the water and it long precedes human habitation and human habitation is just a form of pollution.

Is there a duty because of the capacity under section 8 which simply becomes available directly for the Minister to forbid the taking of the oysters?  Could there be a common law case in which a plaintiff says, in effect, “You should have criminalised that which I did which caused me injury”.  In our submission, again simply to state the proposition is to reject it, not least because no line appears in any of the argument offered by Mr Ryan in this Court between that position and the position for which he contends in his particular case.

May I then move to the question which gave rise to some of these concerns, namely the possibility of permanently closing the fishery because the risk cannot be eliminated.

We call in aid, of course, already the proposition clear from the facts in the case and the findings in the case not challenged that the risk cannot be eliminated.  We note particularly what Justice Wilcox found, not only at the passages I have already cited, but also paragraph 49.  Paragraph 58 in his quotation of evidence he plainly accepted, appeal book 19, 4498 lines 20 to 25 and, similarly for Europe paragraph 63 at appeal book 19, 4500 line 10.  Justice Lindgren was able, without challenge in this Court, to describe as common ground in his paragraph 392 the fact that you cannot eliminate risk.

In our submission, there is nothing in any of the judgments below that suggest that that was sufficient to render the State liable because we could have prohibited, by an administrative act which is plainly quasi‑legislative, the taking or fishing of oysters in New South Wales, the kind of conduct which you would normally expect, your Honours, to be accomplished by a statute.  Yet of course we are not sued for not legislating.  Rather, we are apparently sued for not carrying out the quasi‑legislative act, which appears very legislative when one considers the means by which, and the result with which, it was supposed to have been exercised.

We also had this factual matter, in answer to what my learned friend says about permanent closure:  we did have the long experience of no such reported problem at this estuary, as opposed, for example, to the Tweed estuary.  Now, that demonstrates at least two things.  First, you cannot equate one estuary with another, and all the science and evidence would suggest that must be right otherwise why have sanitary surveys at particular places.

Second, the risk must have been small, no one can quantify, and suggestions to the contrary are plainly wrong and without evidentiary substantiation, what that risk was.  But it must have been small because whether it is 50 years or 100 years there is no reported outbreak.  Now, one would reject, as a matter of commonsense, that that means that there has been stunningly good luck for 50 or 100 years - that would be contrary to such statistical information as your Honours would take as judicial notice.

GAUDRON J:   You are assuming a static situation though.

MR WALKER:    No, your Honour, I am assuming the dynamic situation whereby there are seasonal influxes of people in holiday places; whereby at some times, in earlier times, seasonal influxes would have been perhaps totally unplumbed whereas nowadays much larger people may be plumbed as to their sewerage.  In other words, lots of dynamic change, but over all of those varieties of experience, no report.  Your Honours will recall in opening I pointed out, no one ever essayed the task which would have been logically evocative of showing that since the last major rainfall and the rainfall which caused Mr Ryan’s downfall, there had been some change in what I will call the sewage watershed of this estuary.  Now, without that it is difficult to put to one side the past record.

GAUDRON J:   But is that not implicit in Justice Wilcox’s finding, that it had been deteriorating over time?

MR WALKER:    If it is implicit, then it is an elementary judicial error because it is a finding without any evidence.  No, his Honour finds facts and they do not support any such inference.

GAUDRON J:   There is some evidence, is there not, there was so many complaints about sewerage that the Council decides not to act on them?

MR WALKER:    No, your Honour is asking about the Council, I am talking about the State at the level of State agency with respect to an HAV risk for the oyster fishery and, your Honour, the very fact that there had been all those complaints and no HAV outbreak is something which only highlights the rarity of the viral contamination.

McHUGH J:   Well, I am not sure that you can say it is rare.  As I said to you yesterday, the most you can say is, it has not been identified, but given the ‑ ‑ ‑

MR WALKER:   Well there is evidence that it is rare.

McHUGH J:    ‑ ‑ ‑period 30 to 50 days, I mean, lots of people may have suffered from eating Wallis Lake oysters, but ‑ ‑ ‑

MR WALKER:   That is speculation, your Honour.

McHUGH J:   No, of course ‑ ‑ ‑

MR WALKER:   We cannot speculate.  The precautionary principles spoken about in, for example, environmental statutes, does not justify us closing down everything because it is risky and certainly does not justify this Court imposing a duty of care on us sounding ‑ ‑ ‑

McHUGH J:   I am not suggesting it is; I am just challenging your statement that it is rare.  I am not sure you can make such an absolute statement.

MR WALKER:   The word is used in the record, your Honour.

McHUGH J:   Well, that does not make it right.

MR WALKER:   No.  Next may I simply observe that we are in the area of tort, which pivots on the concept of reasonableness, which is not suggestive of an elimination of all risk and it may be contrasted, importantly, with the area of warranties in contract or statutory implied terms, which appear to be contract but are really public law and statutory obligations on suppliers, which build on what might be expected in contract, but are really just general public law.  They do require performance with only stipulated exceptions, but the law of tort does not.

The next matter I need to come to is my learned friend Mr Tobin’s statement that the applicant Mr Ryan had been careful to avoid in the presentation of his case the proposition the State had breached the duty of care to exercise actual statutory powers.  We could be forgiven for thinking that the opposite was the case.  My learned friend put that in particular where he drew to your attention the fact of a voluntary closure and there was a suggestion that that was all he was talking about; it needs to be dealt with on several different levels that proposition.

As to the voluntary closure, the facts are found in volume 7, 1670, lines 30 to 35, in Mr Barclay’s evidence.  He talks about the 14 February meeting, the Valentine’s Day meeting, where the closure was determined.  Dr Jackson, who was involved with the QAP, the Quality Assurance Program, signed a memo with the difficult syntax that your Honour Justice Kirby drew to attention in volume 14, 3478.  That is the state of the evidence.  There is no pleading, of course, about the State’s duty to effect a voluntary closure.

There is no real case, according to one’s trace of how the case was presented at trial in Justice Wilcox’s reasons.  May I simply list the references – 332 your Honours are already very familiar with.  One goes back to 102 and 106.  One goes forward to 340.  In the Full Court, Justice Lee, 62, Justice Kiefel, 601 to 604.  These are the familiar passages where section 189 or section 8 are all called in aid.  But, assuming there were an allegation, which is currently properly before this Court, about a failure on our part to effect a voluntary closure, whatever that may mean.

If one thinks of the wedding at Cana, what was the water and what was the wine?  What was the duty?  What was the power that got converted into what duty by the circumstances of this case?  Is it a mere executive power for public servants to talk to people and to encourage them to do the right thing?  That has never been pleaded and certainly not been explored in any evidentiary sense.  If that is the power, what kind of duty does that get turned into?  Is it a duty to be persuasive, especially persuasive or successfully persuasive ‑ ‑ ‑

GUMMOW J:   Or just irritating.

MR WALKER:    ‑ ‑ ‑bearing in mind that the QAP is a matter of policy beyond criticism in this case had been set up with an industry majority.  As it turns out, we have been more or less comforted, one would have thought, in the appropriateness as a matter of policy of enlisting co‑operation from the industry by reason of what actually did happen in this case, but none of the answers to the questions I have just asked are available either from Mr Ryan’s argument here or anywhere below or from any of the findings of fact below.

Finally, we come to the way in which, from Mr Tobin’s address, the complaint against us really falls to be measured.  It really is a complaint that the State’s regulation of the matter was not more stringent.  Of course he must draw short of saying that your legislative means were inadequate or your delegated legislative means were inadequate.  He does not draw short of saying “Your quasi‑legislative means were inadequate”, even though he flirted with the voluntary closure point.  We have already put our arguments as to why the quasi‑legislative means, that is section 189 and section 8, should be rejected.  But if it is not that, what else is it?

In our submission, the answers to all of those questions of principle are to be found in the reasons of Justice Lindgren, which for the second time I state we rely upon subject to reading in the light of Brodie. In particular, there are conclusions at paragraphs 460, 463, 466, 469 and 474 of Justice Lindgren’s reasons upon which, with great respect, we rely. In conclusion, apropos my learned friend Mr Tobin’s reference to paragraph 152(2)(e) of the Fisheries Management Act as some indication of the vigour of the common law at this point, may we make it quite clear what we are not arguing.

We have never argued that the State is not liable at common law for negligence in the discharge of its statutory duties or the exercise of its statutory powers.  In other words, we accept what Lord Blackburn said, in its full application, in Geddis v Bann Reservoir.  There is no difficulty about this.  The difficulty lies in moving from the ordinary case dealt with in Geddis to the case here where we are taxed with not having exercised powers that we possessed.

As to the use of statute, with respect to the imposition of duties and the like, may I simply refer to what your Honours in the majority of the majority of Brodie said in paragraph [132] of Brodie.  For those reasons, may it please your Honours, the State should be held not liable.

GLEESON CJ:   Thank you, Mr Walker.  We will reserve our decision in this matter. 

AT 4.17 PM THE MATTER WAS ADJOURNED