Walker v City of Adelaide; Adelaide Civil Pty Ltd v Walker - [2005] SASC 206

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
WALKER & ANOR v CITY OF ADELAIDE & ORS; ADELAIDE CIVIL PTY LTD v WALKER & ORS
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice White)
9 June 2005
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - PROFESSIONAL PERSONS
STATUTES - ACTS OF PARLIAMENT - ENFORCEMENT OF STATUTORY RIGHTS AND REMEDIES - BREACH OF STATUTORY DUTY
PROFESSIONS AND TRADES - OTHER PROFESSIONS, TRADES OR CALLINGS - ENGINEERS
First appellant owned, and second appellant operated a business on, land with a building the western wall of which was adjacent to land owned by Estoril Developments Pty Ltd – First respondent approved development application for subdivision of Estoril’s land - Estoril engaged fifth respondent as consulting engineer and engaged third appellant to carry out some excavation – Plan for subdivision included a public road – Part of Estoril’s land transferred to first respondent for public road – Third appellant dug public lighting conduit trench adjacent to western wall on first appellant’s land – Third appellant discovered concrete protrusions from base of wall – Fifth respondent told third appellant to stop excavation of the trench – Third appellant removed protrusions – Western wall on first appellant’s land collapsed into trench – Trial Judge found third appellant liable in negligence – First and second appellants appealed against dismissal of their claim against first respondent – Consideration of requirement of s 60 of the Development Act 1993 (SA) that notice be given where a building owner proposes to carry out building work involving an excavation of a prescribed kind – First respondent did not propose to carry out building work – First respondent did not authorise third appellant to excavate trench adjacent to wall – First respondent not required to give notice – Third appellant appealed against dismissal of the claim against second respondent as supervising engineer – Second respondent had not given final approval for excavation of trench – Plans indicating position of trench were indicative only – Second respondent owed no duty of care to first and second appellants or if it owed such a duty it did not breach that duty – Third appellant argued that Estoril was a building owner proposing building work and therefore was required to give notice under s 60 of the Development Act – Regulations promulgated for the purpose of s 60 did not add to the definition of building work applicable to s 72 – Excavation of the trench did not constitute building work – Appeals by first and second appellants, and by third appellants, dismissed.
Development Act 1993 s 4, s 33, s 34, s 60 and s 72; Development Regulations 1993 reg 75; Local Government Act 1934; Local Government Act 1999 s 208 and s 212; Wrongs Act 1936 s 25, referred to.
Pantalone v Alaouie (1989) 18 NSWLR 119, discussed.
Voli v Inglewood Shire Council (1963) 110 CLR 74; Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598; Multicon Engineering Pty Ltd v Federal Airports Corporation (1977) 47 NSWLR 631, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"building owner", "proposes to carry out", "building work"

WALKER & ANOR v CITY OF ADELAIDE & ORS; ADELAIDE CIVIL PTY LTD v WALKER & ORS
[2005] SASC 206
Full Court: Doyle CJ, Vanstone and White JJ

DOYLE CJ: I would dismiss the appeal by the appellants Arthur Thomas Walker and Gilbert Motor Bodies Pty Ltd. I would also dismiss the appeal by Adelaide Civil Pty Ltd. I agree with the reasons given by White J for dismissing each of those appeals. There is nothing that I can usefully add to those reasons.
VANSTONE J: I agree.
WHITE J
In 1999 the first appellant, Mr Walker, owned the land at 30-40 Gilbert Street Adelaide (“the Walker land”). The second appellant, Gilbert Motor Bodies Pty Ltd, conducted a business of motor vehicle body repair in the building on the Walker land. The western wall of the building (“the western wall”) was contiguous with the western boundary of the Walker land.
On 26 November 1999, the western wall partially collapsed, resulting in substantial damage. The trial Judge found that the cause of that collapse was the excavation of a deep trench on the land adjoining the Walker land (“the adjoining land”), immediately adjacent to its boundary with the Walker land.
The appellants sued five defendants for the loss and damage resulting from the collapse.
The first defendant was the Corporation of the City of Adelaide (“the Corporation”). The Corporation had approved a development application for a residential subdivision and development on the adjoining land. Furthermore, in circumstances to which I will refer later, on 21 September 1999 the Corporation had become the registered proprietor of a portion of the adjoining land, including that portion on which the trench had been excavated.
On 26 November 1999, the second defendant, Estoril Developments Pty Ltd (“Estoril”), now in liquidation, was the registered proprietor of the adjoining land except for that portion of the land which had been transferred to the Corporation on 21 September 1999.
The third defendant, Performa Real Estate Pty Ltd (“Performa”) was a real estate agent which, on Estoril’s behalf, made the application to the Corporation for approval of the residential subdivision and development on the adjoining land.
The fourth defendant, Allan Gilbert & Associates Pty Ltd (later known as ABG Consulting Engineers Pty Ltd) (“ABG”) was engaged by Estoril as the consulting engineer for the development.
The fifth defendant, Adelaide Civil Pty Ltd (“ADCIV”), was engaged by Estoril to carry out some earth works and road works on the adjoining land. ADCIV made the excavation which led to the collapse of the wall.
The appellants sued each of the defendants in negligence, the Corporation and ADCIV in nuisance and the Corporation for an alleged breach of statutory duty. The defendants sought contribution from each other with respect to any liability to the appellants found against them.
Prior to trial, the quantum of the appellants’ damages in the event that they were entitled to judgment was agreed by all parties to be $700,000. No differentiation was made between the appellants in that agreed quantum.
ADCIV also sought contribution from a partnership trading as Core Engineering. A few days before the collapse, Mr Goldie, an engineer and member of the partnerhsip, had, at the request of Estoril, provided a report on the western wall. ADCIV claimed that in the preparation of the report, Core Engineering had breached a duty of care owed to the appellants and to it and claimed to be entitled to be indemnified by Core Engineering to the extent of any liability it had to the appellants.
A Judge of this Court found ADCIV to have been negligent and entered judgment against it for the sum of $700,000. The Judge dismissed the appellants’ claims against all other defendants, dismissed ADCIV’s claim against Core Engineering and, made no order on the contribution notices issued by the defendants. In the light of those orders, it was not necessary for the Judge to consider the application of s 72 of the Development Act 1993.
The appellants now appeal against the Judge’s dismissal of their claim for breach of statutory duty against the Corporation. No complaint was made about the decision of the Judge with respect to the alleged negligence of, or nuisance by, the Corporation. ADCIV appeals against the amount of the judgment in favour of the appellants entered against it, or alternatively, against the dismissal of its claim to contribution from ABG. ADCIV’s submission was that the Judge should have found that ABG had breached a duty of care which it owed to the appellants. Both appeals were heard together.
Background Circumstances
It is appropriate to set out some of the factual circumstances and some of the Judge’s findings which are common to both appeals.
In February 1999 Estoril purchased the adjoining land. Shortly afterwards Performa, on behalf of Estoril, lodged with the Corporation the development application to which I referred earlier. As the Walker land and the adjoining land were located within the City of Adelaide, the Corporation was the “relevant authority” from which approval for the subdivision and development had to be obtained.[1]
[1] Development Act 1993, ss 33 and 34.
The application proposed the demolition of an existing building and the subdivision of the site into 20 residential allotments, together with an internal private road and a public road, Myers Lane, on the eastern boundary of the land. It was proposed that Myers Lane would run in a northerly direction from Gilbert Street and that its eastern boundary would be contiguous with the western boundary of the Walker land (and therefore with the western wall of the building on that land).
On 5 May 1999 the Corporation issued an approval for the development but subject to certain conditions. Condition No 7 specified:
The proposed public road shall be constructed to the Corporation’s specification and satisfaction, and at the cost of the applicant prior to acceptance as a public road and will be subject to [a] defects liability period of 12 months from the date of completion.
The public road referred to in Condition No 7 is Myers Lane.
Prior to obtaining the approval, Estoril had engaged ABG as its engineer for the project. There was no written contract between Estoril and ABG specifying the scope of the work which ABG was to perform. The trial Judge found that the scope of ABG’s work was “in substance”:
§Designing and documenting the works, including preparation of plans and specifications.
§Obtaining and advising on tenders or quotations.
§Preparation of contract documents and seeing to their execution.
§Furnishing such other drawings and details as ABG deemed necessary.
§Monitoring construction with a view to ensuring compliance with “design intent”.
The trial Judge found that the role of ABG in monitoring the construction was to involve periodic inspection and attending, where appropriate, meetings with contractors and suppliers, but that it did not include continuous or detailed supervision such as would be provided by a resident engineer or clerk of works.
Having obtained the development approval from the Corporation, Mr Gilbert, a civil engineer and director of ABG, commenced preparation of the necessary engineering drawings. In the course of this work he corresponded with the Corporation to ascertain its requirements for the design and construction of the proposed public road.
On 21 June 1999 the Corporation specified to ABG that Myers Lane was to have a footpath 1.5 metres in width on its western side and 0.6 metres wide on its eastern side. The roadway itself was to provide for one way traffic and was to be 3.7 metres in width. The Corporation again specified that Myers Lane was to be designed and constructed to its approval and at the cost of Estoril prior to the Corporation accepting it as a public road. A 12 month defect liability period was again specified. The Corporation provided to ABG its “Specification for Excavation Work in Roads, Footpaths and Parklands”.
It was clear that Myers Lane would require street lighting. The Corporation provided ABG with design specifications for public lighting and suggested that its requirements be discussed with nominated officers of the Corporation.
Subsequently, ABG prepared a set of five drawings of the works which sought to incorporate the Corporation’s requirements and specifications. One of these (“Plan 1”) contained the detail for Myers Lane showing the dimensions which the Corporation had specified in its documentation. It also showed that the eastern footpath of Myers Lane would be contiguous with the western wall of the building on the Walker land. These drawings were submitted to the Corporation for its approval.
None of the five drawings prepared by ABG contained details of the street lighting for Myers Lane. In particular, none of the drawings contained any specification for the location of the conduits containing the cabling for the street lighting. When he prepared his drawings, Mr Gilbert expected that the cabling for the street lighting could be located in the common services trench which would run underneath Myers Lane and in which provision would be made for gas, telephone and electricity lines. Mr Gilbert expected that the common services trench would be positioned underneath the wider western footpath of Myers Lane rather than under the eastern footpath.
At about the same time that ABG prepared its drawings, NormTec Electrical Services (“NormTec”) provided to a Mr Demetlica, a person associated with Estoril, a report concerning the public lighting of Myers Lane together with a plan (“Plan 6”) showing the amount of illumination required to meet the Corporation’s minimum requirements and the proposed location for the light poles. Plan 6 specified that the trench which would have to be dug for the cabling for the public lighting should be in accordance with a standard specification previously issued by the Corporation. Plan 6 contemplated that the trench could be under either the footpath or the roadway of Myers Lane but, in either event, close to its eastern kerb. If under the footpath, a trench of 900mm depth would have to be excavated in the area marked for the footpath. If under the roadway, a trench of one metre depth would have to be excavated in the area marked for the roadway.
Plan 6 included what the trial Judge described as “a simple diagrammatic representation of Myers Lane, showing the street lighting positioned on the eastern side, that is, near the western wall”. The Judge found that Plan 6 was indicative only and did not contain a specification of the distance which the conduit for the lighting was to be from the western wall of the building on the Walker land. However, if the trench for the public lighting conduit was excavated in the place shown indicated on Plan 6, it was inevitable that it would be excavated underneath the proposed footpath on the eastern side of Myers Lane. Further, given that the Corporation’s standard specification for excavation of such a trench specified an excavation of 600mm wide, it was inevitable that an excavation in the place indicated by Plan 6 would be contiguous with the foundation of the western wall of the building on the Walker land.
On 16 August 1999 ABG wrote to ETSA Utilities, confirming “that our client requires ETSA Utilities to prepare the Electrical Layout Design Plan for the … Development”. ABG enclosed with the letter a copy of the NormTec Report and drawings regarding “the lighting design for this development” and asked ETSA Utilities to “liaise with the Council and NormTec when preparing your Electrical Layout Design Plan”. Although NormTec had provided a report concerning the street lighting, ETSA Utilities had been contracted to prepare the electrical layout plan for the subdivision more generally.
On 25 August 1999, the Corporation endorsed each of the five plans submitted by ABG (including Plan 1) and the plan prepared by NormTec (Plan 6) with an “Authority to Proceed”.
In the letter by which ABG had provided to the Corporation the five plans which it had prepared, ABG said:
We understand that you have the Public Lighting Plan for Myers Lane as prepared by NormTec Electrical Services and it is noted that ETSA Utilities are preparing the “Common Trench Layout Plan” for electrical reticulation works which will incorporate the public lighting.
At about the same time, ABG sought tenders for the construction of the road works, kerbs and gutters, stormwater drainage, sewer and water reticulation and common service trench. ADCIV was the successful tenderer and contracted with Estoril to undertake the specified works. The terms of the tender specified the engineer to be ABG and the “Supervising Officer” to be the person nominated by ABG to supervise the construction and to be at all times acting on behalf of the engineer. Clause 26.1 of the tender document specified as follows:
The Contractor shall execute and complete the works under the direction of and to the complete satisfaction of the Supervising Officer and shall comply with and adhere strictly to his instructions or directions on any matter. The Contractor shall take instructions only from the Supervising Officer.
Under the heading “Protection of Adjoining Properties” Clause 41 of the tender document provided (relevantly):
The Contractor shall be required to take all necessary precautions when working adjacent to existing properties and shall be required to monitor the effect of compaction equipment on adjoining structures and carry out all compaction so as not to cause structural damage to the structures.
It shall be the responsibility of the Contractor to ensure that the “construction methods” adopted by him do not cause any damage to the adjoining properties and structures.
Any damage to these properties and structures that is a result of the Contractor’s activities shall be rectified to the approval of the owner at the Contractor’s expense.
As had been requested of it, ETSA Utilities did provide a plan outlining the cabling required for the public lighting in Myers Lane. That plan showed that the conduits for the public lighting were to be on the eastern side of Myers Lane close to the position for the proposed kerb of the eastern footpath. However, the ETSA Utilities Plan specified “due to the schematic nature of the drawing the position of equipment shown is indicative only. Actual location should be verified on site”. It is not clear whether a copy of the ETSA Utilities Plan was provided to the Corporation.
On or about 19 October 1999, ADCIV commenced work on the adjoining land. The “box-out” or initial excavation of the carriageway which would become Myers Lane began on 26 October 1999. The trial Judge accepted that at least by 23 November 1999 an excavation to a depth of 200mm and extending to the western wall of the building on the Walker land had been completed.
Under cover of a facsimile dated 10 November 1999, ABG sent copies of the NormTec Report and the ETSA Utilities Plan to Mr Finnegan of ADCIV. On the accompanying fax header sheet, Mr Cameron from ABG said:
Tony: please find attached a Preliminary Print of ETSA’s Layout … along with Report and Plans from NormTec Elec. Services which are to be read in conjunction with ETSA’s Plan. Please organise Final Prints from ETSA … Could you also organise a C.S.T. Meeting and advise us of the time”.
The letters “C.S.T.” were an abbreviation for common services trench.
The meeting to which Mr Cameron referred occurred on 18 November 1999. It was attended by three representatives of ADCIV, including a site supervisor, Mr Hesse and the Project Manager, Mr Finnegan, and two representatives from ETSA Utilities. No-one from the Corporation or from ABG attended. The Judge accepted that at that meeting a suggestion was made by the ADCIV representatives that the trench for the public lighting should be moved either into the common services trench or to the western side of the roadway. The Judge also accepted that that suggestion was rejected by the representatives of ETSA Utilities and that ADCIV did not pursue the idea any further.
It is not clear whether Mr Gilbert was informed that ETSA Utilities did not agree to the public lighting conduits being located in the common services trench, but he had been informed shortly before 18 November 1999 that the Corporation did not approve of those conduits being in the common services trench.
The Events of 18 November 1999

Later on 18 November 1999, Mr Hesse of ADCIV was excavating in the region adjacent to the western wall of the Walker building, apparently as part of the boxing-out of the roadway and footpath. He found that there were protrusions of concrete from the footings of the western wall into the adjoining land. As it happened, Mr Cameron from ABG attended the site in the afternoon of 18 November 1999. Mr Hesse showed Mr Cameron the concrete protrusions. The Judge found that Mr Hesse told Mr Cameron that the lighting trench would be constructed in the vicinity of the western wall and that he considered the protrusions to be an obstruction to the digging of the trench.
The Judge found that Mr Cameron told Mr Hesse that he should cease all works against the western wall and that he (Mr Cameron) would take the information back to ABG’s office and let “them” sort it out “with a view to determining precisely where the trench for the lighting should be located, and also as to the adjoining construction of the road”. Mr Hesse accepted in his evidence that a clear instruction had been given to him that ADCIV was not to do any further work against or in the vicinity of the western wall until ABG had had an opportunity to consider the position.
Mr Cameron returned to the ABG office and spoke to Mr Gilbert. He explained to Mr Gilbert that if a trench for the lighting was to be excavated against the western wall the protrusions would have to be removed. Mr Cameron expressed to Mr Gilbert his concern that anything at all should be constructed near the western wall.
Mr Gilbert then contacted Mr Haynes of Estoril and explained the position to him. He advised Mr Haynes that it would be necessary to retain a structural engineer as a sub-consultant to determine the stability of the western wall and its relationship with the works required to construct Myers Lane. Mr Haynes told Mr Gilbert that Estoril would retain its own structural engineer.
The Judge also accepted that, following his discussion with Mr Haynes, Mr Gilbert informed Mr Finnegan that a structural engineer’s report on the western wall would be obtained and reiterated that “no work [was] to be carried out in the immediate vicinity of the western wall of Gilbert Motors”.
The Involvement of Core Engineering
Mr Goldie of Core Engineering was retained by Estoril on the afternoon of 23 November 1999. He attended the site at about 5.30pm that day, accompanied by Mr Demetlica, the person associated with Estoril.
The Judge found that Mr Demetlica did not draw Mr Goldie’s attention to the protrusions. Instead, he drew attention to a collection of building material debris abutting the northern end of the western wall which was approximately four metres in length and approximately half a metre wide. Mr Goldie told Mr Demetlica that this material could be removed. He expressed to Mr Demetlica his concern that the excavation so close to the western wall was “relatively deep”. He explained to Mr Demetlica that, whilst in his view the wall was stable there should be no further excavation. The Judge accepted that Mr Goldie was not told that a trench was to be dug in the area of the excavation.
The Judge considered that the failure of Mr Demetlica to point out the protrusions to Mr Goldie must have been the result of a breakdown in the communication passing between Mr Gilbert, Mr Haynes, Mr Demetlica and on to Mr Goldie. The breakdown was not attributed to Mr Gilbert.
Following his inspection, Mr Goldie prepared a written report which he provided to Estoril on the following day (24 November 1999). Mr Goldie commenced his report by saying “at the request of Mr J Demetlica the existing structure on the eastern boundary of Myers Lane was inspected on 23 November 1999, during the construction of the adjacent road to determine the stability of the wall and make recommendations on any additional work if required”. He then recorded some observations including his opinion that the western wall was structurally stable and had not been undermined by the excavation at its current depth. He then said:
However, it is recommended that the excavation not be deepened, that it be kept drained at all times so that the founding soil under the footing is not allowed to become saturated and any vibrations near the wall be kept to a minimum.
The excavation in its current state shall not be left open for more than one week before any filling or sub-base is placed (ie filling commenced by 1 December 1999). The final placement of filling and sub-base for Myers Lane, designed by others, shall be completed as soon as possible but within a minimum of two weeks (ie filling completed by 8 December 1999).
The Judge regarded the recommendation that “the excavation not be deepened” as being “unambiguous”. It confirmed what Mr Goldie had told Mr Demetlica.
Mr Haynes provided a copy of Mr Goldie’s report to ABG. In turn, Mr Gilbert provided a copy of the report, by fax, to Mr Finnegan of ADCIV on 24 November 1999. The fax header sheet included the following:
Please note the requirements of this report and we request that you speak directly to Owen Goldie (Core Engineering), regarding his requirements etc
…
Please ring me when you get this fax.
Although there was a dispute about whether Mr Finnegan had telephoned Mr Gilbert, the Judge accepted that there had been such a telephone conversation. Mr Finnegan told Mr Gilbert that the Goldie report did not address the protrusions. Mr Gilbert then referred Mr Finnegan to Mr Goldie. The Judge accepted that Mr Gilbert did not in that telephone conversation revoke or vary the earlier instruction given to Mr Finnegan that no further work was to be done against the western wall at that stage.
The Judge also accepted that Mr Finnegan did speak to Mr Goldie and that Mr Goldie had confirmed that the building material debris which he had seen at the time of his inspection could be removed. The Judge accepted that although Mr Finnegan may have been referring in the conversation to the protrusions, there was a misunderstanding and that Mr Goldie was not referring to them as he was not aware of them at that time. Furthermore, the Judge accepted that Mr Finnegan did not say anything to indicate that the digging of a trench in the excavation was contemplated. Mr Goldie was not put on notice that any further excavation, apart from the removal of the building debris, was contemplated.
After speaking to Mr Goldie, Mr Finnegan did not contact Mr Gilbert again before proceeding with further work.
The Judge found that ADCIV was not at any time after 18 November 1999 given any authority to proceed nor any assurance or instruction that it was safe to proceed with trenching in the excavation adjacent to the western wall.
The Events of 26 November 1999
On 26 November 1999 Mr Finnegan gave instructions for the removal of the protrusions. After this had been carried out with a rock breaker attached to an excavator, Mr Finnegan authorised the excavation of the trench for the public lighting conduit. The Judge found that Mr Hesse, who operated the excavator, was left to determine for himself precisely where the trench was to be dug. He did this principally by reference to Plan 6 which, as the Judge found, did not contain measurements, being indicative only. Mr Hesse excavated the trench in the area already excavated and at a distance of 200mm from the western wall.
Whilst he was carrying out the excavation, the western wall collapsed partially, into the trench. The Judge accepted that the failure of the wall was a direct result of the excavation of the trench immediately adjacent to it and below the level of the base of the footing supporting the wall.
The Claim Against the Corporation
As already noted, on the appeal the appellants complained only of the dismissal of their claim for breach of statutory duty. It was submitted that the trial Judge should have found that the Corporation was in breach of an obligation imposed on it by s 60 of the Development Act 1993.
Section 60 of the Development Act provides for notice to be given to an adjoining owner where building work is to be carried out which will affect the stability of the land of the adjoining owner. It provides as follows:
(1)     Where a building owner proposes to carry out building work of a prescribed nature that is, in accordance with the regulations, to be treated for the purposes of this section as building work that affects the stability of other land or premises (the affected land or premises), the following provisions apply:
(a)     the building owner must, at least 28 days before the building work is commenced, cause to be served on the owner of the affected land or premises a notice of intention to perform the building work and the nature of that work; and
(b)     the building owner must (in addition to complying with any condition imposed by a relevant authority at the time of approval) take such precautions as may be prescribed to protect the affected land or premises and must, at the request of the owner of the affected land or premises, carry out such other building work in relation to that land or premises as that adjoining owner is authorised by the regulations to require; and
(c)     nothing in this section relieves the building owner from liability for injury resulting from the performance of any building work.
(2)A building owner who fails to comply with a provision under subsection (1) is guilty of an offence.
Penalty: Division 6 fine.
(3)A building owner may apply to the Court for a determination of what proportion (if any) of the expense incurred by the building owner in the performance of the building work requested by the owner of affected land or premises under subsection (1) should be borne by the owner of that land or premises, and the building owner may recover an amount determined by the Court from the owner of the affected land or premises as a debt.
It was submitted that the excavation of the trench on 26 November 1999 came within the description of work to which reg 75(2)(a) of the Development Regulations 1993, promulgated for the purposes of s 60, applied. This is a matter to which I shall return later in these reasons. It was common ground that the Corporation had not given notice of any kind to the appellants.
The evidence of the appellants was that, had such notice been given, an engineer would have been retained to give appropriate advice. An engineer gave evidence to the effect that, if so retained, he would have advised relocation of the trench so as to avoid compromising the stability of the western wall.
The trial Judge dismissed the appellants claim based on s 60. He concluded that the Corporation was not a building owner proposing to carry out building work of a prescribed nature within the meaning of s 60(1).
Both at trial and on appeal, it was common ground that a breach of s 60, if proved, would give rise to a claim in damages against the Corporation. Given that it was common ground, I intend to consider the matter on that basis without considering whether the position adopted by the parties was appropriate.
Section 60 and the Corporation
Before coming to the submission of Mr Wilkinson, who appeared for the appellants, it is appropriate to note some definitions. The expressions “building owner” and “building work” are defined in s 4(1) of the Development Act as follows:
“building owner” means the owner of land on or in relation to which building work is or is to be performed;
“building work” means work or activity in the nature of –
(a) the construction, demolition or removal of a building; or
(b)the making of any excavation or filling for, or incidental to, the construction demolition or removal of a building; or
(c) any other prescribed work or activity
but does not include any work or activity that is excluded by regulation from the ambit of this definition;”
The appellants’ submissions on appeal assumed that the excavation of the trench on 26 November 1999 was building work as defined. I will first consider the matter on the basis of that assumption, but as will be seen below, I do not consider that the assumption is correct.
As at 26 November 1999 the Corporation was the registered proprietor of the land on which the trench was being excavated and was therefore, in Mr Wilkinson’s submission, a building owner as defined. Hence, in Mr Wilkinson’s submission, the Corporation was obliged to give the notice prescribed by s 60(1)(a) and to take the precautions prescribed by s 60(1)(b) and to carry out such other work as may have been required by the appellants pursuant to s 60(1)(b).
I do not accept the submission. In my opinion, the Judge was correct in concluding that, even though the Corporation had been the registered proprietor of the land since 21 September 1999, it was not a building owner which proposed to carry out building work of the prescribed kind.
In determining whether the Corporation was a building owner proposing to carry out building work of the prescribed kind, regard should be had to its role and function in relation to the development of the adjoining land. The Corporation is a Council exercising functions under the Local Government Act 1999, and, before that Act came into operation, under the Local Government Act 1934. It exercises those functions over an area which includes the City of Adelaide in which the Walker land is located.
By operation of s 208(1) of the Local Government Act, all public roads in the municipal area of the Corporation are vested in it in fee simple. Hence, if Myers Lane was to become a public road, the land upon which it was situated had to be transferred to the Corporation. The Corporation does of course have the power to carry out road works in its own municipal area.[2]
[2] Local Government Act 1999, s 212.
In addition, the Corporation exercises functions under the Development Act 1993 in respect of developments of land within its municipal area. A development of land, which includes a subdivision of the land, building work and the construction of a road[3] may be carried out only with the approval of a relevant authority.[4] The Corporation is a relevant authority for the purposes of the Development Act.[5]
[3] See the definition of “development” in s 4(1) of the Development Act 1993.
[4] Development Act 1993, ss 33 and 34.
[5] See the definition of “relevant authority” in s 4(1) of the Development Act 1993.
In 1999, it was Estoril which proposed development of the adjoining land. It submitted to the Corporation the proposal for the development of the adjoining land, an element of which was the construction Myers Lane. When the Corporation issued its approval for the development on 5 May 1999, and its authority to proceed on 25 August 1999, it was exercising the statutory function vested in it under the Development Act. Although an important element of the development in respect of which Estoril sought approval was the construction of a public road (which would have to vest in the Corporation), the Corporation’s approval of the development did not convert it into the (or an) entity proposing building work. Estoril remained the only entity which proposed building work.
The Corporation’s specification of its requirements for the construction of a public road did not alter the capacity in which it was acting. It is obviously in the public interest that public roads and the infrastructure supporting them, or located beneath them, be constructed so as to comply with minimum standards. All the Corporation did was to stipulate the conditions with which Estoril had to comply if it chose to go ahead with its proposed development.
Mr Wilkinson attached considerable significance to the fact that the Corporation became the registered proprietor of the land which was to become Myers Lane on 21 September 1999. As the Corporation became the owner of the land on that date, the work in relation to the construction of the road was, it was submitted, carried out on its behalf and for its benefit.
In most cases, an owner of land who arranges for another to carry out work on its land will, for the purposes of s 60, be regarded as a building owner proposing to carry out building work. The fact that the work is to be carried out by others, or that another person has agreed to procure the carrying out of the work, will be immaterial. However, in my opinion, although the Corporation did become the registered proprietor of the land on 21 September 1999, it did not thereafter become a building owner proposing to carry out prescribed work to which s 60 refers.
The actions of the Corporation in 1999, both before and after 21 September, in relation to the development were those of an authority exercising statutory powers rather than those of an owner. The Corporation had, pursuant to its statutory responsibilities, done no more than specify the conditions with which Estoril was required to comply if it wished to proceed with a development which it had proposed. Estoril was not obliged to proceed with the development for which it had been given approval. If Estoril did proceed, it was part of the Corporation’s function to ensure that it did comply with the terms of the development approval.
The transfer of the land on 21 September 1999 was no more than a step in the implementation of the larger development being undertaken by Estoril on the adjoining land. As already noted, an element of that development was the construction of Myers Lane. If Myers Lane was to become a public road, then it had to vest in the Corporation.
I accept that the transfer on 21 September 1999, before completion of construction of Myers Lane, was contrary to Condition No 7 of the Development Approval issued by the Corporation on 5 May 2005 and contrary to the condition which the Corporation had communicated to ABG in its letter of 21 June 1999. The reason for the transfer before completion of the construction of Myers Lane was not explained in the evidence. There is a suggestion in the evidence of Mr Haynes that it may have been associated with the subdivision of the adjoining land into the 20 allotments. Be that as it may, the transfer of the land to the Corporation should not have occurred until the construction of Myers Lane had been completed. However, I do not see in the evidence any indication that the parties intended, by the earlier transfer, to alter their respective roles or functions, and in particular to substitute the Corporation as the entity proposing the development of Myers Lane. Nor was there in fact any change in the roles and functions of the participants. The Corporation did not become a party to any contract with any of the persons involved with the development. Neither Estoril, ABG nor ADCIV were bound to the Corporation by contract. As I have said, the Corporation simply continued in its statutory role of ensuring compliance with the conditions of the development which it had approved. The timing of the transfer of the land was really immaterial.
It was submitted that if the Corporation was not, after 21 September 1999, regarded as the building owner for the purposes of s 60, there would have been a lacuna, as there was no-one else after that date who would answer that description. Estoril had ceased to be owner of the land which was to become Myers Lane on 21 September 1999 and therefore ceased, it was said, to be the “building owner” for the purposes of s 60. Because of the undesirability of there being a lacuna, it was submitted that s 60 should not be construed as excluding the Corporation in the circumstances which pertained after 21 September 1999.
It is not self evident that there would be a lacuna. Whilst s 60 imposes an obligation on a building owner, that is, the owner of land on or in relation to which building work is or is to be performed, and whilst in most cases it is to be expected that the work of a prescribed nature to which s 60 refers will be work on the land of the owner, s 60 is not, on its terms, confined to such work. It is capable of being construed as imposing an obligation on a building owner who is carrying out building work on its land and who, as an incident of that work, carries out work on land owned by another. Estoril answers that description in the present case. Construed in this way, there would be no lacuna in the operation of s 60.

If I am wrong about that, and there is a lacuna in the operation of s 60 revealed by the circumstances of this case, then that lacuna will exist as a result of the language of s 60, properly construed. It is a lacuna which, if considered undesirable, should appropriately be addressed by Parliament.
So far I have been considering the position of the Corporation in relation to the construction of Myers Lane generally. When the excavation of the trench which occurred on 26 November 1999 is considered by itself, the same conclusion is reached. In my opinion, the trial Judge was correct in concluding that the Corporation did not intend at any time that the trench was to be excavated so close to the wall so as to attract the operation of Regulation 75(2). The Corporation had no knowledge that the trench was being excavated on 26 November 1999, let alone of its location.
The appellants sought to attribute such knowledge to the Corporation by reference to two matters. The first was the Corporation’s standard specification for the construction of street lighting which showed that the conduits for the cabling underneath a footpath should be at a depth of 900mm. The second was Plan 6, prepared by NormTec, which showed the conduits being located close to the western wall – approximately along the alignment of the eastern kerb of Myers Lane. The Corporation had issued an Authority to Proceed with respect to the NormTec drawing on 25 August 1999. Thus it was said that the Corporation implicitly required the excavation of a trench close to the western wall to a depth of 900mm. It was inevitable, it was submitted, that this would involve an excavation of the kind to which reg 75(2) referred.
I do not accept that submission. Two considerations indicate that when the Corporation issued the Authority to Proceed on 25 August 1999, it was not authorising, let alone specifying, the excavation of a trench so close to the western wall. The first is that Plan 1 approved on 25 August 1999 contained an endorsement in relation to the construction of Myers Lane as follows:
road construction method adjacent to existing brick wall (to prevent structural damage to existing building) to be approved by engineer and council prior to commencing constn.
On appeal, it was accepted that the words “road construction method” included the location of the conduits for the public lighting, and therefore the trench which had to be excavated for that purpose. That endorsement makes it plain that the location of the trench had not, as at 25 August 1999, been finalised and was, in any event, to be subject to further approval both by ABG and by the Corporation. The second consideration is that Plan 6 was found by the trial Judge to be indicative only, ie, as indicating an approximate position only. There was a tendency on the appeal to read Plan 6 as though it was a free standing document which could be read independently of Plan 1. But the Authority to Proceed in respect of each was issued by the Corporation on the same day, 25 August 1999. Both had to be read together. It is not appropriate to regard Plan 6 which contained no specification of the distance of the public lighting trench from the western wall as impliedly negating the express stipulation that the construction method had to be approved by the engineer and council prior to the commencement of construction. When Plan 6 is read together with Plan 1 it is plain that the final position of the trench was a matter for further consideration.
The Corporation was not involved in the meeting with ETSA Utilities on 18 November 1999. It was not otherwise asked to approve or authorise the location of the trench.
In those circumstances it cannot be said that the Corporation proposed to carry out the excavation of the trench which occurred on 26 November 1999. As the trial Judge found, it is difficult to see how the Corporation could possibly have given any notice. At best it could have given a notice to the appellants to the effect that a developer had been entrusted with the responsibility of constructing a public road which might or might not involve an excavation of a kind to which reg 75(2) applied. The failure to give a notice of that kind was not in breach of s 60.
For these reasons, my opinion is that the appellant’s appeal should fail. In those circumstances, it is not strictly necessary to consider for the purposes of this appeal whether the work excavating the trench which was carried out on 26 November 1999 comes within the definition of “building work” contained in s 4(1) of the Development Act, but I will return to this topic below.
The Liability of ABG to the Appellants
As noted above, ADCIV contended that ABG should have been found to have breached a duty of care which it (ABG) owed to the appellants. Such a finding would have been advantageous to ADCIV as it would have meant that there was more than one tortfeasor liable to the appellants. It was submitted that in that circumstance, either s 72 of the Development Act would have been applicable or alternatively, ADCIV would have been entitled to contribution from ABG pursuant to s 25 of the Wrongs Act 1936.
ADCIV referred to ABG’s role as the designer and supervising engineer of the development. ABG was retained by Estoril to design the subdivision and development, to obtain tenders, to let out the contract for the earthworks and roadworks, and to superintend the works. Not only did it prepare a design which included the construction of a relatively narrow public road with a very narrow footpath on its eastern side, it was in charge of the implementation of that design. ADCIV contrasted ABG’s role with its own role. As the contractor for the earth works and road work for the development, it was obligated by its contract to work under the direction of ABG in implementing its design.
ADCIV emphasised that ABG knew of the existence of the western wall on the boundary of the Walker land and knew that a lighting trench in close proximity to the western wall was contemplated. In fact, in ADCIV’s submission, the drawings provided by ABG to ADCIV (Plan 6 and the ETSA Utilities Plan) each specified that the lighting trench should be located under the narrow eastern footpath of Myers Lane. Furthermore, ADCIV pointed to the evidence that Mr Gilbert knew that the Corporation had refused to allow the street lighting conduits to be located in the common services trench.
ADCIV put its submission as to ABG’s duty of care in various ways. In the first place, it was submitted that as the designer of the road which required the excavation of a trench for street lighting conduits underneath the narrow footpath abutting the western wall, and as the supervisor of the development, ABG owed a duty of care to the appellants as neighbouring owner and occupier respectively. It was said that the duty required ABG to warn the appellants that their building may be damaged by the excavation, or alternatively, to advise Estoril of that risk and of the remedial steps which should be taken to obviate the risk. Those remedial steps might have involved the relocating of the street lighting conduits and therefore of the trench which had to be excavated for that purpose.
Alternatively, it was submitted that, even if Plan 6 was not to be construed as containing a specification that the street lighting conduits were to go under the footpath there was a prospect, given Plan 1, Plan 6 and the ETSA Utilities Plan, that they might in fact be located under the footpath so that the same duty to the appellants arose.
Alternatively again, it was submitted that, even if one put to one side the role of ABG as designer, its role as superintendent of the development meant that it owed a duty of care to the neighbouring owner and occupier. Knowing of the location for the street lighting conduits indicated in Plan 6 and having learnt of the existence of the protrusions which would have to be removed if the trench for the lighting was to be excavated under the eastern footpath, it was submitted that ABG owed a duty of care to the appellants which required it to be involved actively in the discussions between Mr Finnegan and Mr Goldie and to ensure that ADCIV was properly instructed in relation to the work it would carry out in close proximity to the western wall.
It may be accepted that in some circumstances a designer or a supervising engineer may owe a duty of care to an adjoining owner or occupier.[6] Mr Whitington QC, who appeared for ADCIV, relied very much on the decision of Giles J in Pantalone v Alaouie.[7] That decision concerned the liability of an engineer to a neighbouring owner when the neighbour’s wall collapsed in consequence of an excavation on the land of the engineer’s principal. The excavation, which was immediately adjacent to the neighbour’s land, had been in accordance with the design of the engineer and under his supervision. In the circumstances found by Giles J, the engineer’s design involved a first stage excavation to a depth of up to one metre, thereby wholly exposing the footings of the neighbour’s wall. Thereafter, further excavation was made for the footings of the proposed building.
[6] Voli v Inglewood Shire Council (1963) 110 CLR 74 at 85 per Windeyer J.
[7] (1989) 18 NSWLR 119.
Giles J found the engineer liable to the neighbour because he had prepared the engineering design which required the deep excavation immediately adjacent to the neighbour’s wall, had participated in the obtaining of the Council approval of the design, and had given instructions for the further excavation even after the first excavation had exposed fully the footings of the neighbour’s wall. The engineer knew of the owner’s inexperience in building matters and had encouraged the owner’s reliance on him. Furthermore, the engineer knew of the risks involved and considered that advice given by a Council officer about the safety of the situation may have been inaccurate.
Giles J considered that the engineer owed a duty of care to the neighbour which required him (the engineer) to alert his client to the true nature and extent of the risk of harm to the neighbour’s property so that the owner could take action to obviate that risk. The question of whether or not the engineer’s duty required him to give a warning to the neighbour was not discussed in Pantalone.
Pantalone shows that there may be circumstances which give rise to a duty in an engineer designing and supervising a development to exercise reasonable care in the performance of its contractual obligations so as not to cause its principal to cause harm to a neighbour’s property by the execution of the contract works.
I return to the duty of care for which ADCIV contended in the present case. The duty which was the subject of ADCIV’s first submission requires for its existence a finding that there was a requirement in the plans prepared by ABG, NormTec or ETSA Utilities for the excavation of a trench very close to the appellants’ property. It was that requirement which was said to enliven the duty of care. If such a requirement existed, ABG either did know, or should have known, that the work proposed involved risk of harm to the appellants’ property.
The difficulty with a formulation of a duty of care on this basis is that the factual foundation for its existence has not been shown to exist. I have referred already to the note on Plan 1 to the effect that the construction method adjacent to the western wall had to be approved by the engineer and by the Corporation prior to the commencement of construction. As at 26 November 1999, no such approval had been given. That meant that the position of the trench had not yet been finally determined and there was no requirement for ADCIV to excavate the trench in the position in which it did. Likewise, the ETSA Utilities Plan stated that the position of the equipment shown on it should be regarded as indicative only with actual locations to be verified on site. ADCIV accepted that the ETSA Utilities Plan was indicative only.
Further, the trial Judge found that Plan 6 prepared by NormTec was indicative only and that one could not, by reference to it, calculate the location of the lighting trench in relation to the western wall. Although not raised by its grounds of appeal, ADCIV submitted at the hearing that this finding was an error. I do not accept that submission. On its face, Plan 6 does not specify a distance for the lighting trench from the western wall. It is not a trenching plan at all. Furthermore, the trial Judge indicated relatively early in the trial a view that Plan 6 appeared to be indicative only of the position of the street lighting conduits. There was no evidence led from any of the engineers who gave evidence in the trial (and there were several) to indicate that the Judge’s view of the Plan 6 was wrong. The author of the plan, Mr Asquith from NormTec, was not called to give evidence.
At its highest on the plans, there was a possibility that the trench for the street lighting conduits would be excavated underneath the footpath and therefore very close to the western wall.
That possibility, together with evidence that it was usual for the public lighting conduits to be located underneath a footpath, form the basis for ADCIV’s second submission as to the duty of care. It may be, in the circumstances of this development, that the possibility that the street lighting conduits would be located under the eastern footpath did give rise to a duty of care of the kind for which ADCIV contended. But even if a duty of care of the kind alleged in either the second or third of ADCIV’s formulations did exist, the evidence accepted by the trial Judge indicates that there was no breach by ABG of such a duty. It is convenient to consider together the submissions relating to the breach of these respective duties.
Save in one respect, the trial Judge accepted that Mr Gilbert was a reliable witness. He did not regard the evidence of Mr Finnegan from ADCIV as being reliable. It was not submitted that the Judge was wrong in either respect. The Judge accepted that Mr Gilbert contemplated that any construction work in the area adjacent to the western wall would be the subject of approval both by him and the Corporation before construction commenced. That belief on Mr Gilbert’s part was consistent with the note on Plan 1 and the note on the ETSA Utilities Plan.
Although the location of the trench and the construction method had not been approved by either ABG or the Corporation, Mr Hesse of ADCIV apparently contemplated carrying out trenching work in close proximity to the western wall on 18 November 1999. Indeed, it seems that he would have carried out that work had it not been for the concrete protrusions. He drew to the attention of Mr Cameron from ABG the existence of the protrusions and the difficulty which they presented for the proposed trenching. Mr Cameron then told Mr Hesse immediately that he should cease all work against the western wall and that he (Mr Cameron) would have his office determine precisely where the trench for the lighting should be located. Mr Hesse understood the direction and, at least until 26 November 1999, complied with it. The Judge also accepted that on 18 November 1999, Mr Gilbert told Mr Finnegan from ADCIV that no work was to be carried out in the immediate vicinity of the western wall. ADCIV was bound by the terms of its contract with Estoril to comply with those directions.
The Judge accepted that Mr Gilbert had responded appropriately to the information which he received from Mr Cameron on 18 November 1999. Mr Gilbert had recommended to Estoril that a structural engineer be retained to report, amongst other things, on the stability of the western wall and its relationship with the works required to construct Myers Lane. Secondly, at the same time, he had instructed ADCIV that no work was to be carried out in the immediate vicinity of the western wall until the position had been clarified. By those two actions, Mr Gilbert did what ADCIV submitted was required of him under the duty of care alleged. As it happened, Estoril chose to retain its own structural engineer. It chose to have its own representative meet Mr Goldie on site. In short, Estoril chose to act independently of ABG in this respect. It would not be reasonable to hold in those circumstances that ABG owed a duty of care to the appellants which required Mr Gilbert, notwithstanding the attitude taken by Estoril, to attend on site at the same time as Mr Goldie, or to check the instructions given by Estoril to Mr Goldie. Nor would it be reasonable to hold that ABG breached a duty of care by not attending on site at the same time as Mr Goldie, or by not checking that Mr Demetlica gave appropriate instructions to Mr Goldie.
Next it was submitted that the breach of duty lay in what was said to be the inactivity of ABG after receipt of Mr Goldie’s report. As already noted, ABG provided a copy of Mr Goldie’s report to Mr Finnegan on the same day that it was received. It asked Mr Finnegan to speak directly to Mr Goldie and also to telephone Mr Gilbert. When Mr Finnegan spoke to Mr Gilbert, he drew attention to the fact that Mr Goldie had not referred at all to the concrete protrusions. Mr Gilbert then referred Mr Finnegan to Mr Goldie. The Judge accepted that Mr Gilbert was not required to do more at that stage. In my opinion he was correct in doing so. In the first place, Mr Gilbert was entitled to think that if removal of the protrusions might cause a problem for the stability of the western wall then Mr Goldie, the expert retained for that purpose, would so advise. Secondly, his direction to ADCIV not to carry out any further work in the vicinity of the western wall still stood. Mr Goldie could not countermand that direction. Furthermore, Mr Gilbert knew that Mr Finnegan had Mr Goldie’s report in which Mr Goldie had explicitly recommended that the excavation not be deepened.
In his evidence, Mr Gilbert denied receiving any telephone call from Mr Finnegan following his provision of a copy of Mr Goldie’s report to ADCIV. He said that had he received such a call, he would then have suggested a meeting for the purpose of discussing the report fully. He said that the Corporation, Mr Goldie, ADCIV as well as ABG would have been involved in such a meeting. Despite Mr Gilbert’s denial, the trial Judge found that such a conversation with Mr Finnegan had occurred. Thus the submission of ADCIV was that the trial Judge should have found that Mr Gilbert’s failure to call the meeting which he himself considered to be appropriate constituted a breach of the duty of care owed to the appellants.
The trial Judge made the following findings:
Had the course of events proceeded as Mr Gilbert reasonably expected them to, and if ADCIV had suggested that they were obliged to dig the trench up against the wall, given Mr Gilbert’s knowledge of the contents of Mr Goldie’s report he would have arranged a meeting and endeavoured to work out a means by which the trench could be dug without threatening the stability of the foundation to the wall. There were means by which that could done, if there was no alternative but to put the trench down against the wall
However, it was the precipitate action of ADCIV, based on an inadequate understanding of the import of the report of Mr Goldie, and Mr Finnegan’s preoccupation with the removal of the protrusions at the expense of a proper consideration of the dangers inherent in digging the trench up against the foundation, which threw what Mr Gilbert had in mind would eventuate, off course.
Those findings have not been shown to be wrong. Mr Gilbert did say that he envisaged that Mr Finnegan would contact him after speaking to Mr Goldie, and that he would then arrange the meeting, involving Mr Goldie and the Corporation to discuss the work to be carried out immediately adjacent to the western wall.

ABG was not required to contemplate that ADCIV might ignore the explicit instruction given to it by Mr Cameron and later by Mr Gilbert, and furthermore ignore the explicit recommendation contained in Mr Goldie’s report. Mr Gilbert said that he did not know that ADCIV was intending to excavate a trench adjacent to the Walker land on 26 November 1999, and did not know that ADCIV believed the public lighting trench had to be excavated against the western wall. ABG was not required to be on site continually. The evidence accepted by the Judge showed that it carried out regular inspections of the works. Less than 24 hours elapsed from the time of Mr Gilbert’s telephone conversation with Mr Finnegan concerning Mr Goldie’s report, and the collapse of the wall. It could not be held that ABG was not fulfilling its contractual duty to monitor the work, let alone that, in failing to detect ADCIV’s breach of its directions, it thereby breached a duty of care owed to the appellants.
The Judge expressly rejected the evidence of Mr Finnegan that he had mentioned proceeding with a trench in his discussion with Mr Goldie. It was not submitted that that finding was wrong. Furthermore, Mr Finnegan did not claim that he had in any way been authorised by Mr Gilbert to proceed with any work against the western wall on 25 or 26 November 1999.
As the Judge pointed out, it is possible with the benefit of hindsight to identify actions which Mr Gilbert could have taken which would have prevented the excavation of the trench. But it does not follow from his omission to take those actions that ABG was in breach of a duty of care. Mr Gilbert was entitled to consider that he would have an opportunity to address the issues further after Mr Finnegan had spoken to Mr Goldie.
In short, in my opinion the conclusion of the trial Judge that ABG was not in breach of any duty of care owed to the appellants was correct.
A New Submission on Appeal
The conclusions which I have reached thus far would in the ordinary course lead to the dismissal of both appeals.
However, Mr Whitington QC, who appeared for ADCIV, raised a further submission, namely, that Estoril should have been found in breach of s 60 of the Development Act 1993. If the Corporation was not the building owner at the relevant time, the submission was that Estoril must have been that building owner and it had failed to give the notice required by s 60 to the appellants. If Estoril was liable to the appellants because of its breach of s 60, then s 72 of the Development Act applied to the appellants’ claim so that the damages payable by ADCIV should be reduced so as to reflect justly and equitably the extent to which ADCIV contributed to the loss. Section 72 provides:
(1)     If—
(a)     building work is defective; and
(b)     the defect or defects arise from the wrongful acts or defaults of two or more persons; and
(c)     those persons would, apart from this section, be jointly and severally liable for damage or loss resulting from the defective work; and
(d)     an action is brought against any one or more of those persons to recover damages for that damage or loss,
the court may only give judgment against a defendant, or each defendant, for such amount as may be just and equitable having regard to the extent to which the act or default of that defendant contributed to the damage or loss.
A breach by Estoril of s 60 was not alleged in the pleading of any party at trial. The Court was informed that the Corporation had included in its final submission at trial a submission that it was Estoril, and not it, which was the building owner at the relevant time liable to give the notice to the appellants. The trial Judge made no reference to the submission of the Corporation on this aspect. It seems that he may well have taken the view that the liability of Estoril arising from a breach by it of s 60 was not an issue raised for his determination.
Although ADCIV raised the point on appeal, no application to amend any of the pleadings was made by any party. On the appeal, as at the trial, Estoril was not represented. There was no indication in either notice of appeal that any order or decision affecting its interests would be sought on the hearing of the appeal.
In all these circumstances, there is a real question as to whether this Court should even consider ADCIV’s submission concerning the liability of Estoril.[8] However, as I am satisfied that there is any event no merit in ADCIV’s submission, I will address the matter raised by it. I will state my reasons shortly.
[8]Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598; Multicon Engineering Pty Ltd v Federal Airports Corporation (1977) 47 NSWLR 631.
Was the Excavation “Building Work”?
ADCIV accepted that for s 72 to apply, it was necessary that the excavation work which was carried out be “building work” within the meaning of s 72(1)(a).
I have earlier set out the definition in s 4 of the Development Act of “building work”. ADCIV accepted that the excavation work in this case was not work or activity within the scope of subparagraphs (a) and (b) of that definition. ADCIV therefore relied upon subparagraph (c) of the definition of “building work”, namely, “any other prescribed work or activity”.
The Court was told that there are no regulations prescribing any work or activity as “building work” for the purpose of s 4.
In the absence of a prescription of specified work as “building work”, ADCIV sought to bring the excavation work within the ambit of s 72 by reference to the prescription of work for the purposes of s 60 of the Development Act. As already noted, s 60 refers to a “building owner [proposing] to carry out building work of a prescribed nature”. The relevant prescription for the purposes of s 60 is contained in reg 75(2) of the Development Regulations 1993, which provides as follows:
Pursuant to section 60 of the Act, work of the following nature is prescribed as building work which is to be treated for the purposes of that section as building work that affects the stability of other land or premises, namely:
(a)an excavation which intersects a notional plane extending downwards at a slope of 1 vertical to 2 horizontal from a point 600 millimetres below natural ground level at a boundary with an adjoining site (as depicted by the example shown as figure 1 in Schedule 15); or
(b)an excavation which intersects any notional plane extending downwards at a slope of 1 vertical to 2 horizontal from a point at natural ground level at any boundary between two sites (not being a boundary with the site of the excavation), where the boundary is within a distance equal to twice the depth of the excavation (as depicted by the example shown as figure 2 in Schedule 15); or
(c)any fill which is within 600 millimetres of an adjoining site, other than where the fill is not greater than 200 millimetres in depth (or height) and is for landscaping, gardening or other similar purposes.
Although reg 75(2) was promulgated for the purposes of s 60, ADCIV submitted that the intention disclosed by the Act was, in effect, to import the work to which reg 75(2) refers into s 72. This was so, it was submitted, because s 72 appears in Part 6 of the Development Act, as does s 60. It was submitted that in that circumstance and, in the absence in s 72 of a specific definition of “building work”, it must have been intended that s 72 would invoke the prescription made pursuant to s 60. In this way effect would be given to what was said to be the “scheme” of the Act.
In my opinion, this submission of ADCIV should be rejected. Regulation 75(2) in its terms identifies only s 60 as the provision to which it relates. There is nothing in the Regulations or in the Act to suggest that reg 75(2) relates to s 72 as well. The fact that s 60 and s 72 are to be found in the same Part of the Act is not sufficient to warrant the conclusion that reg 75 contained, independently of the s 4 definition, a definition of building work for the purpose of s 72.
Further, the Development Act does not authorise the prescription of certain work as building work for the purposes of s 72. Section 72 does not in its own terms envisage the prescription of certain work or activities as “building work” to which s 72 applies. Such a prescription is not necessary in order that s 72 may have a practical operation. Section 72 may be applied sensibly using the definition of building work contained in s 4(1).
Further again, s 60 authorises the making of regulations prescribing certain “building work” as “building work that affects the stability of other land or premises”. That is to say, the only work which may be prescribed pursuant to s 60 is a subset of work which is already within the scope of “building work” as defined. A purported prescription, pursuant to s 60, of work which was not “building work” within the meaning of the definition in s 4, would be ultra vires. Section 60 and reg 75(2) cannot therefore be construed as expanding the meaning of “building work” in s 72 beyond the definition provided in s 4.
In my opinion, s 72 uses the words “building work” with the meaning of those words as defined in s 4. As ADCIV accepted that the excavation on 26 November 1999 was not within paragraphs (a) and (b) of the definition of building work and that there has been no prescription pursuant to subparagraph (c) of the definition, it follows that s 72 of the Development Act could have no application to that excavation. Therefore, even if Estoril was in breach of s 60, it would not have attracted the operation of s 72. The excavation was not building work as defined, whether performed by Estoril or by the Corporation.
Accordingly, even if the Full Court did permit ADCIV’s submission to be entertained on appeal, it would not have availed ADCIV or any other party to the appeal.
Mr Wilkinson adopted the submission of ADCIV with respect to s 72. As I understood it, that included an adoption of ADCIV’s acceptance that the excavation on 26 November 1999 did not come within subparagraphs (a) and (b) of the definition of building work and that there had been no prescription of work pursuant to subparagraph (c). My conclusion in respect of ADCIV’s submission has the further consequence that the excavation work carried out on 26 November 1999 could not be work to which s 60 applied because, as I have already stated, s 60 applied only to a subset of the work which is otherwise within the definition of building work.
Thus, for this further reason, s 60 did not bind the Corporation to give notice to the appellants.
Conclusion
In my opinion, each of the appeals should be dismissed.