Wyndham City Council v Terra Culture Pty Ltd
[2018] VSC 81
•7 MARCH 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
TECHNOLOGY ENGINEERING AND CONSTRUCTION LIST
S CI 2014 01699
| WYNDHAM CITY COUNCIL | Plaintiff |
| v | |
| TERRA CULTURE PTY LTD (ABN 95 089 279 283) | Defendant |
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JUDGE: | VICKERY J |
WHERE HELD: | MELBOURNE |
DATES OF HEARING: | 1-3, 7-11, 14-15, 17 AUGUST 2017, 31 JANUARY 2018 (view) |
DATE OF JUDGMENT: | 7 MARCH 2018 |
CASE MAY BE CITED AS: | WYNDHAM CITY COUNCIL v TERRA CULTURE PTY LTD |
MEDIUM NEUTRAL CITATION: | [2018] VSC 81 |
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ABORIGINAL CULTURAL HERITAGE – Aboriginal Cultural Heritage Act 2006 (the Act) - Aboriginal Cultural Heritage Regulations 2007 (the Regulations) – Cultural heritage expert retained by a Council in construction of road works – Whether breach of implied term in contract of retainer to exercise reasonable care, skill and diligence in providing advice – Whether negligent in providing advice and services – Whether conduct of the cultural heritage advisor in breach of s 18 Australian Consumer Law (ACL) – Whether Council guilty of contributory negligence – Operation of Act and Regulations considered – Scope of retainers considered – Implied term of reasonable care, skill and diligence in professional retainer considered – Standard of professional care and skill considered – Application of s 18 ACL considered - Whether a cultural heritage management plan (CHMP) under the Act and the Regulations required – Whether a body of water a ‘waterway’ under the Regulations – Conduct of cultural heritage advisor in carrying out retainers considered – Whether a voluntary CHMP under s 45 of the Act should have been recommended by cultural heritage advisor.
CONTRACT - Cultural heritage expert retained by a Council in construction of road works – Whether breach of implied term in contract of retainer to exercise reasonable care, skill and diligence in providing advice – Use of evidence of post-contractual conduct considered.
NEGLIGENCE - Whether Council guilty of contributory negligence – Sections 26, 62 and 63 of the Wrongs Act 1958 considered – Astley & Ors v Austrust Ltd (1999) 197 CLR 1 considered and applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R B C Wilson with Ms K Dovey | Macquarie Local Government Lawyers |
| For the Defendant | Mr J P Slattery | Norton Rose Fulbright |
HIS HONOUR:
Introduction
The Indigenous First Peoples of this country have occupied the continent of Australia and its adjacent islands for more than 60,000 years.[1]
[1] See: Uluru Statement from the Heart', May 2017, and the Final Report of the Referendum Council dated 17 June 2017, which notes '60,000 years or more' [ago] as the period when Indigenous occupation of Australia first began. Further, the 60,000 years plus period has also recently been confirmed by a team of archaeologists and dating specialists led by Associate Professor Chris Clarkson from The University of Queensland School of Social Science, as detailed in the issue of the journal Nature published 20 July 2017. This discovery arises from the analysis of evidence derived from the Madjedbebe rock shelter, Kakadu: (20 July 2017) 547 Nature 306.
Moving forward from these ancient beginnings: on 28 May 2006 the Aboriginal Heritage Act 2006 (Vic) came into operation in Victoria. Regulations were made under the Act, the Aboriginal Heritage Regulations 2007 (Vic).
Between 2008 and 2010 the Plaintiff, Wyndham City Council (the ‘Council’) planned, and in part implemented, works (the ‘Works’) within Werribee, Victoria. The Municipal Works involved two elements:
a.the construction of a sealed extension of McGrath Road within an existing road reserve extending from Black Forest Road to Bulban Road (the ‘Construction of McGrath Road’); and
b.the development of land to the east of this area, to accommodate a wetland, and some excavation under the road and land to the west to accommodate a series of culverts (the ‘Associated McGrath Road Works’).
The Council engaged the Defendant, Terra Culture Pty Ltd (‘Terra Culture’), a cultural heritage advisor, to conduct certain due diligence investigations in respect of the proposed Works (the ‘Cultural Heritage Retainer’).
In the performance of the Cultural Heritage Retainer, it is alleged by the Council that Terra Culture:
(a) Breached its Cultural Heritage Retainer by failing to exercise reasonable care, skill and diligence in providing advice and services to the Council;
(b) Was negligent in carrying out its cultural heritage services for the Council and in providing advice to the Council; and
(c) Engaged in conduct that was misleading and deceptive, or was likely to mislead and deceive contrary to s 52 of the Trade Practices Act 1974 (Cth), s 9 of the Fair Trading Act 1999 (Vic), or insofar as the conduct occurred after 1 January 2011, s 18 of the Australian Consumer Law (being Schedule 2 of the Competition and Consumer Act 2010 (Cth).
The Council claims substantial damages from Terra Culture.
Terra Culture claims that the Council was guilty of contributory negligence.
The Court ordered that the trial should be split between liability issues (which includes the allegations of contributory negligence on the part of the Council) (together called the ‘Liability Issues’) and the questions as to quantum, which include causation issues (together called the ‘Quantum Issues’).
On 31 January 2018 the Court, at its instigation and in the company of representatives of the parties, conducted a view of the site. The Court also received into evidence samples of Aboriginal artefacts which are later described. The case was re-opened for these purposes.
These reasons are the Court’s reasons as to the Liability Issues. Reasons in relation to the Quantum Issues will be delivered following a further hearing, should that become necessary.
Works Site Prior to Commencement
The Council in its submissions well described the part of Werribee which was the subject of this proceeding as at 2008, when it was largely undeveloped land. With the aid of the view conducted on 31 January 2018, I accept this description.
At this time McGrath Road came down from the north and stopped at Black Forest Road. Bulban Road lay 1.2 km to the south. The Council proposal was to construct a new sealed road between Black Forest Road and Bulban Road which would then become an extension of McGrath Road.
Within this 1.2 km activity area was a road reserve which was fenced by farm fences.
From the top to the bottom of its 1.2 km length, the road reserve and the surrounding land to the west had a gentle gradient, being slightly higher at the north and lower at south.
At the northern end of the road reserve (just below Black Forest Road), an unformed road or dirt track followed a path down from higher ground past open areas on both sides. A section of that unformed road had been paved with cobblestones at some earlier time, possibly in the latter part of the 19th century.
To the east was a large open area known as ‘Gordon O’Keefe Reserve’, which included a large and old river red gum tree at some distance from the road reserve. Further east of the Gordon O’Keefe Reserve, on higher ground there were some dwelling houses on Melbourne’s suburban fringe.
To the west of the road reserve was a vast expanse of open land. There were no buildings visible on the far side of that land. Expansive views to the south west extended uninterrupted to a low lying range of hills on the horizon. This area was flat to the eye.
At the north on the west of the road reserve, below Black Forest Road, was a large artificially constructed mound. Lower down, south of the mound and to the west of the road reserve was an area known locally as ‘Black Swamp’.
Within the road reserve further south, there was a fence and the road then became an unsealed road.
Within the road reserve and on the sides of track at the north and the unsealed road further south, ‘swampy vegetation’ was visible.
On the far side of Black Swamp, around 300m to the west and running north to south parallel to the road reserve was a watercourse called ‘Lollypop Creek’. Lollypop Creek also extended to the north of Black Forest Road.
Lollypop Creek travelled under Black Forest Road from the north. Its section south of Black Forest Road had been modified at some earlier time as part of drainage works. In 2008, Lollypop Creek in this section was open watercourse in the nature of a constructed open drainage channel which had trees alongside it. Further to the west were two scarred trees which had been identified and registered.
The Works
The relevant section of the proposed new McGrath Road comprising part of the Works was approximately 1.2 kilometres long. It ran in a straight line between Black Forest Road to the north and Bulban Road to the south.
The ‘Black Swamp’ area lay to the west, adjacent to the new section of McGrath Road and extended into the works construction area.
From the north-west, Lollipop Creek fed into Black Swamp (and following a re-alignment undertaken some time earlier, ran from north to south about 300m to the west of the proposed new section of McGrath Road).
To the north east of Black Forest Road an area of open space and floodway extended into the east of the works area, running from Presidents Park to the north and the Werribee River further to the north west.
The Council contended that both Black Swamp and Lollypop Creek were each a ‘waterway’ within the meaning of the Regulations under the Act.
At the time before the Works commenced, the area of the road reserve where the proposed new road was to be built was little more than a farm track at the northern end extending from Black Forest Road. There were open paddocks on either side used for horse agistment. An equestrian club used a horse ring and building on the eastern side. Extending from the west in this area was a high mound used as part of a BMX bicycle track. The northern section of the road reserve was fenced off. At the southern end, near Bulban Road, there was a bitumen surface extending for about 10 metres. This surface then became an unsealed dirt road which provided access to a car club racing track and a model aircraft club grounds.
In its early stages, this engineering project was planned merely as the construction of the road in the existing McGrath Road reserve.
Following consideration of hydrological issues, and the need to accommodate a floodway which crossed part of the area of the proposed new road, by at least July 2009 the design and scope of the McGrath Road Activities were extended to include:
(a) a 7 metre wide strip along the full 1.2 km length of the new road which was required to batter back from the higher road level to the existing level on the west;
(b) a new wetland to be excavated to the east and west of the new road (extending through the culverts under the road), partway down from Black Forest Road at the northern end; and
(c) large culverts to be excavated under the road which would allow for the flow of water between the wetland areas and which would pass under the new road.
Map of Area
Below is a map of the area depicting the main features of significance:
Aboriginal Heritage Act 2006 (Vic) and Regulations
On 28 May 2006 a new Victorian Act, the Aboriginal Heritage Act 2006 (Vic), came into operation to protect Aboriginal cultural heritage (the ‘Act’). The Act repealed the Archaeological and Aboriginal Relics Preservation Act1972 and imposed new requirements for the protection of Aboriginal cultural heritage in the State.
The version of the Act (No. 16 of 2016) as at 28 May 2007 was accepted as the version which is relevant to this proceeding. The Act was amended on 1 November 2009, but in ways which are not relevant to the proceeding. The Act has since been further substantially amended, with the amendments coming into operation on 1 August 2016.
Regulations were made under the Act, the Aboriginal Heritage Regulations 2007 (Vic) (the ‘Regulations’). The Regulations came into force on 28 May 2007. They were amended on 28 May 2009.
Prior to 28 May 2009 the definition of ‘high impact activity’ in reg 43 was different. This change has no bearing on the issues in dispute because both parties accept that the McGrath Road Project works were a high impact activity.
The 28 May 2009 definition changes were as follows:
·In reg 43(1)(xxiii) ‘high impact activity’ is defined to include works for a utility installation, other than a telecommunications facility, if … the works affect an area exceeding 25 square metres’; and
·In reg 44(e) ‘high impact facilities’ includes construction of a road, [new insertion]: ‘with a length exceeding 100 m’.
Other amendments to the Regulations which are irrelevant to these proceedings also came into force on 28 May 2009.
At all relevant times, the Act provided by s 1 as its main purpose: ‘to provide for the protection of Aboriginal cultural heritage in Victoria’.
The objectives of the Act by s 3 provided for the following:
(a)to recognise, protect and conserve Aboriginal cultural heritage in Victoria in ways that are based on respect for Aboriginal knowledge and cultural and traditional practices;
(b)to recognise Aboriginal people as the primary guardians, keepers and knowledge holders of Aboriginal cultural heritage;
(c)to accord appropriate status to traditional owners, including a preference to appoint traditional owner bodies corporate as registered Aboriginal parties;
(d)to promote the management of Aboriginal cultural heritage as an integral part of land and natural resource management;
(e)to promote public awareness and understanding of Aboriginal cultural heritage in Victoria;
(f)to establish an Aboriginal cultural heritage register to record Aboriginal cultural heritage;
(g)to establish processes for the timely and efficient assessment of activities that have the potential to harm Aboriginal cultural heritage;
(h)to promote the use of agreements that provide for the management and protection of Aboriginal cultural heritage;
(i)to establish mechanisms that enable the resolution of disputes relating to the protection of Aboriginal cultural heritage;
(j)to provide appropriate sanctions and penalties to prevent harm to Aboriginal cultural heritage.
The Act made it an offence to do an act likely to harm ‘Aboriginal cultural heritage’[2] unless the person doing the harm had a legitimate defence.[3] One such defence was if the harm occurred while the person was acting in accordance with a Cultural Heritage Management Plan (‘CHMP’),[4] or was preparing a CHMP and the act of harm occurred in the process of its preparation.[5] Having a permit to disturb (or other permit provided for under the Act) was another possible defence.[6]
[2]Aboriginal Heritage Act 2006 (Vic) s 4(1).
[3]Ibid ss 27–29.
[4]The term ‘Cultural Heritage Management Plan’ is defined at ibid s 42.
[5]Ibid ss 29(a)(i), (b).
[6]Ibid s 29(a)(i).
Part 4 of the Act (ss 42-67) is devoted to a management document called a Cultural Heritage Management Plan (CHMP). This is an important document in the scheme of the Act.
Amongst other things, as noted above, it provides a defence to a charge of knowingly causing harm to Aboriginal cultural heritage, where the harm occurred while the person was acting in accordance with a CHMP, or was preparing a CHMP and the act of harm occurred in the process of its preparation.[7]
[7]Ibid ss 29(a)(i), (b).
Further, pursuant to s 49 of the Act, a CHMP must be prepared by a proponent before commencing any works which require an Environment Effects Statement under the Environment Effects Act 1978.
Further still, s 52 of the Act, which is cast in wide terms, requires that a CHMP must be prepared, where a CHMP is required under Part 4 of the Act, prior to a decision maker, such as a municipal council for example, granting a permit to use or develop land under the Planning and Environment Act 1987. By sub-section 52(3) the decision maker must not grant a statutory authorisation for the use or development if the activity would be inconsistent with the approved CHMP.
Section 42 of the Act provided for what was involved in the preparation of a CHMP in the following terms:
(1)For the purposes of this Act, the preparation of a cultural heritage management plan for an area involves—
(a)an assessment of the area to determine the nature of any Aboriginal cultural heritage present in the area; and
(b) a written report setting out—
(i) the results of the assessment; and
(ii)conditions to be complied with before, during and after an activity to manage and protect the Aboriginal cultural heritage identified in the assessment.
(2) The written report is the cultural heritage management plan.
Section 43 of the Act provided for the procedure for the assessment of a CHMP, in the following terms:
(1)An assessment for the purposes of a cultural heritage management plan must comply with the prescribed standards.
(2)Without limiting the range of activities that may be undertaken during an assessment of an area for the purposes of a cultural heritage management plan, the assessment may include—
(a)research into information relating to Aboriginal cultural heritage; and
(b) a survey for Aboriginal cultural heritage; and
(c)the disturbance or excavation of land to uncover or discover Aboriginal cultural heritage.
Section 44 of the Act provided that a municipal council (such as Wyndham City Council), among other specified persons, may sponsor a CHMP.
The Act provided for a CHMP to be undertaken voluntarily. Section 45 of the Act provided:
A person may prepare a cultural heritage management plan even if the plan is not required under this Act.
[Emphasis added]
The Act also specified when a CHMP was mandatory.[8] Included in s 46 of the Act was a requirement that preparation of a CHMP was mandatory where ‘the regulations require the preparation of the plan for an activity’.
[8]Ibid s 46.
Section 58 of the Act provided for the engagement of a cultural heritage advisor in the preparation of a CHMP in the following terms: ‘The sponsor of a cultural heritage management plan must engage a heritage advisor to assist in the preparation of the plan.’
A ‘cultural heritage advisor’ was defined under s 4 of the Act to mean a ‘person who has the qualifications or experience (or both) required under section 189.’ Section 189 of the Act provided for to qualifications of cultural heritage advisors in the following terms:
(1)A person may only be engaged as a heritage advisor under this Act if the person—
(a)is appropriately qualified and experienced in a discipline directly relevant to the management of Aboriginal cultural heritage, such as anthropology, archaeology or history; or
(b)has extensive experience or knowledge in relation to the management of Aboriginal cultural heritage.
(2)The Minister may make guidelines specifying appropriate qualifications and experience for the purposes of this section.
(3)The Minister must consult with the Council before making any guidelines under this section.
(4) The guidelines must be published in the Government Gazette.
The Act also provided (under Division 3 of Part 4) for the establishment of a register called the Victorian Aboriginal Heritage Register (‘VAH Register’).[9] The VAH Register is required to record details of all places in Victoria of cultural heritage significance to the Aboriginal people of Victoria[10] and all known private collections of Aboriginal objects in Victoria[11] Among the persons permitted access to the VAH Register were cultural heritage advisors.[12]
[9]Ibid ss 144–147.
[10]Ibid ss 5, 145.
[11]Ibid s 4 (definition of ‘Aboriginal object’).
[12]Ibid ss 146(1)(c), (g).
The Regulations made pursuant to the Act provide that a CHMP is mandatory in respect of certain activities (described in Division 1 of Part 2 of the Act). The purpose of this Part was defined by reg 5 to: ‘prescribe the circumstances in which a cultural heritage management plan is required for an activity.’ An ‘activity’ is defined in s 4 of the Act to mean ‘the development or use of land’.
Regulation 6 in Part 2 provided:
A cultural heritage management plan is required for an activity if—
(a)all or part of the activity area for the activity is an area of cultural heritage sensitivity; and
(b) all or part of the activity is a high impact activity.
Note
See regulation 4 for definitions of area of cultural heritage sensitivity and high impact activity.
Regulation 4 provided the following definitions of relevance:
area of cultural heritage sensitivity was defined to mean:
(a)an area specified as an area of cultural heritage sensitivity in Division 3 of Part 2; or
(b)if Division 4 of Part 2 applies, an area specified as an area of cultural heritage sensitivity in that Division;
high impact activity was defined to mean:
an activity specified as a high impact activity in Division 5 of Part 2;
Also relevant to the present case, Division 3 of Part 2 of the Regulations provided in relation to waterways:
Waterways
(1)Subject to sub-regulation (2), a waterway or land within 200 metres of a waterway is an area of cultural heritage sensitivity.
(2)If part of a waterway or part of the land within 200 metres of a waterway has been subject to significant ground disturbance, that part is not an area of cultural heritage sensitivity.
Examples
1An activity area consists of the whole of a lot. A waterway passes through the lot. All of the land within 200 metres of one side of the waterway has been subject to significant ground disturbance. The land within 200 metres of the other side of the waterway has not been subject to significant ground disturbance and is an area of cultural heritage sensitivity.
2A school proposes to demolish an old hospital and to build a new school in its place. The activity area is the footprint of the existing building, because the new building will have the same footprint. The activity area has been subject to significant ground disturbance when the foundations were dug many years ago. Although the existing building is located within 200 metres of a waterway, it is not an area of cultural heritage sensitivity because all of the activity area has been subject to significant ground disturbance.
A ‘waterway’ was defined in reg 4 of the Regulations to mean:
(a)a river, creek, stream or watercourse the name of which is registered under the Geographic Place Names Act 1998; or
(b)a natural channel the name of which is registered under the Geographic Place Names Act 1998 in which water regularly flows, whether or not the flow is continuous; or
(c) a lake, lagoon, swamp or marsh, being—
(i)a natural collection of water (other than water collected and contained in a private dam or a natural depression on private land) into or through or out of which a current that forms the whole or part of the flow of a river, creek, stream or watercourse passes, whether or not the flow is continuous; or
(ii)a collection of water (other than water collected and contained in a private dam or a natural depression on private land) that the Governor in Council declares under section 4(1) of the Water Act 1989 to be a lake, lagoon, swamp or marsh; or
(d)land which is regularly or intermittently covered by water from a waterway as described in paragraph (a), (b) or (c) but does not include—
(i)any artificial channel or work which diverts water away from such a waterway; or
(ii) an area covered by the floodwaters of a waterway; or
(iii)an area, other than the waterway, designated on a planning scheme as being a floodway or liable to flooding or as being subject to inundation; or
(e)if any land described in paragraph (d) forms part of a slope rising from the waterway to a definite lip, the land up to that lip.
Relevant to the present case, Division 5 of Part 2 of the Regulations provided in reg 44 included the following as a high impact activity:
Constructing specified items of infrastructure
(1)The construction of any one or more of the following is a high impact activity if the construction would result in significant ground disturbance—
(a) …
(e) a roadway with a length exceeding 100 metres;
[Emphasis added]
Issues arose in the present case as to the application of the Regulations in relation to: works to be undertaken in an area of ‘cultural heritage sensitivity’;[13] the prescription of land within 200 metres of a waterway being an area of cultural heritage sensitivity,[14] and the definition of a ‘waterway’ to include a swamp.[15]
[13]Aboriginal Heritage Regulations 2007 (Vic) reg 6.
[14]Ibid reg 23.
[15]Ibid reg 4 (definition of ‘waterway’).
Areas 50 metres around a ‘registered cultural heritage place’ are prescribed by the Regulations as areas of cultural heritage sensitivity.[16] An exception to this is if the land has been subject to ‘significant ground disturbance’ it is no longer an area of cultural heritage sensitivity under the Regulations.[17] Significant ground disturbance is defined as disturbance by ‘machinery’ (through grading, excavating, dredging, digging or deep ripping), but not including ploughing.[18]
[16]Ibid reg 22.
[17]Ibid regs 22(3), 23(3).
[18]Ibid reg 4 (definition of ‘significant ground disturbance’). As discussed below, the proponent for any development seeking to rely on this exemption must be able to establish this.
Regulation 22 in Division 3 of Part 2 of the Regulations provided in relation to registered cultural heritage areas:
Registered cultural heritage places
(1)A registered cultural heritage place is an area of cultural heritage sensitivity.
(2)Subject to sub-regulation (3), land within 50 metres of a registered cultural heritage place is an area of cultural heritage sensitivity.
(3)If part of the land within 50 metres of a registered cultural heritage place has been subject to significant ground disturbance, that part is not an area of cultural heritage sensitivity.
The Act provides for an Aboriginal party to be registered as a Registered Aboriginal Party (‘RAP’) in respect of an area, with the right (amongst other things) to be involved in the consideration and approval of CHMPs and permits to disturb.[19] The McGrath Road Activities fell within the territory of the Wathaurung Aboriginal Corporation (the ‘Wathaurung’), which was the relevant RAP for the purposes of the Act.
[19]Aboriginal Heritage Act 2006 (Vic) s 148.
The McGrath Road Activities were ‘high impact activities’[20] which, as a matter of practicality, called for assessment by an expert in the field of cultural heritage to determine whether a CHMP should be prepared.[21]
[20]Aboriginal Heritage Regulations 2007 (Vic) reg 44(1)(e). See also Webb at [14].
[21]Ibid reg 6 required a CHMP as mandatory for an activity or class of activity (under ss 46 and 47 of the Act) if all or part of the activity area is an area of cultural heritage sensitivity and all or part of the activity is a high impact activity. See also the note to s 42.
The Victorian Civil and Administrative Tribunal (‘VCAT’) is given jurisdiction under the Act to hear and determine a number of matters arising under the legislation. In 2009 some important cases, described as ‘Red Dot’ cases, provided some guidance to Councils, cultural heritage advisors, and the public, as to the operation of the Act and the Regulations. Notable decisions in this category were the Mainstay decision,[22] which was affirmed and later applied in the decision of Azzure.[23]
[22]Mainstay Australia Pty Ltd v Mornington Peninsula Shire Council & Ors [2009] VCAT 145 (24 February 2009) (‘Mainstay’).
[23]Azzure Investment Group Pty Ltd v Mornington Peninsula Shire Council [2009] VCAT 1600 (14 August 2009) (‘Azzure’).
To achieve its main purpose, the Act establishes a variety of measures designed to:
(a)Promote the management of Aboriginal cultural heritage as an integral part of land and natural resource management;[24]
(b)To establish processes for the timely and efficient assessment of activities that have the potential to harm Aboriginal cultural heritage;[25] and
(c)To provide appropriate sanctions and penalties to prevent harm to Aboriginal cultural heritage.[26]
[24]Aboriginal Heritage Act 2006 (Vic) s 3(d).
[25]Ibid s 3(g).
[26]Ibid s 3(j).
The Act rightly recognises Aboriginal people as the primary guardians, keepers and knowledge holders of Aboriginal cultural heritage.[27]
[27]Ibid s 3(b), see also Part 2.
These propositions are accepted.
However, the Plaintiff then proceeded to submit that:
(a)the cultural heritage advisor’s role in this process of ‘management of Aboriginal cultural heritage as an integral part of land and natural resource management’ is to identify the potential for the existence of Aboriginal cultural heritage in a given area, and to identify the potential that a client’s proposed works will have to harm that Aboriginal cultural heritage;
(b)their role then extends to develop management recommendations for the client that avoid or reduce the risk of harm that project works will have on Aboriginal cultural heritage;
(c)cultural heritage advisors are entrusted by the Act with this singular role under Victorian law because of their specialised training and knowledge;
(d)it is a client’s cultural heritage advisor who is in a position to identify where Aboriginal cultural heritage might be within an activity area proposed for development and how proposed works could be managed to avoid or minimise harm to Aboriginal cultural heritage;
(e)once a risk is identified, the cultural heritage advisor should work in partnership with the relevant Aboriginal community to address that risk. But if the risk is not first properly assessed and identified by the client’s cultural heritage advisor then the Aboriginal cultural heritage may well be harmed or destroyed. Once that occurs, the damage cannot be undone;
(f)for the client, the cultural heritage advisor’s investigation and advice and any management recommendations given by the advisor enable the client to manage risk in the project and to avoid delays, and they enable the client to comply with the Act’s prescription to protect Aboriginal cultural heritage in Victoria and ‘promote the management of Aboriginal cultural heritage as an integral part of land and natural resource management’; and
(g)cultural heritage advisors in the state of Victoria therefore have a special role under the Act and hold a position of significant responsibility in the protection of Aboriginal cultural heritage.
However, none of these suggested roles of a cultural heritage advisor as contended for by the Council in propositions (a) to (g) above, are prescribed as general duties of a cultural heritage advisor under the Act, and no authority was provided to support any of them as general legal duties.
Further, none of these suggested roles assumed the status of general duties of the cultural heritage advisor in the present case pursuant to implied terms in the contract of retainer or duties alleged to arise in the tort of negligence, and none were alleged as such.
Outline Factual Background
First Due Diligence Report
In March 2008, the Plaintiff (the ‘Council’) approached the Defendant (‘Terra Culture’) to provide cultural heritage advice prior to the Council constructing the new sealed road in place of the old McGrath Rd between Black Forest Rd (to the north) and Bulban Rd (to the south) (the ‘Original McGrath Rd Works’).
On 14 March 2008 Mr Vince Demaria of the Council’s Roads Department sent an email to Terra Culture, addressed to Terra Culture’s then office manager Pamela Smith,[28] stating:
Subject: Proposed McGrath Road design and construction
Hi Pamela,
As discussed, please find attached melway [sic] map showing the location of McGrath Road, Werribee.
We are currently preparing a design for the construction of McGrath Road between Black Forest Road and Bulban Road.
As this section of road is adjacent to the black swamp [sic], is flood prone, and approximately 300m from lollypop creek, do we require an archaeological survey/report?
Please advise at your earliest convenience.
[28]T 822.15-17.
On 31 March 2008, Ms Smith from Terra Culture replied to Mr Demaria by email attaching the Fee Proposal which stated that it was from Monica Marshall of Terra Culture (an office manager at Terra Culture).
In the Fee Proposal, Terra Culture recommended that it be engaged to undertake a ‘due diligence’ study (the ‘Due Diligence Proposal’). The Fee Proposal letter read in full:
RE: Proposed McGrath Road Design & Construction
I must ... apologise if the following letter presents a lot of information that may seem confusing, or strong, but I do wish to provide you with as much information as possible so you can make an informed decision.
Under the Aboriginal Heritage Act 2006, a development is required to have a Cultural Heritage Management Plan before works proceed if all or part of the Activity Area falls within an area of Cultural Heritage sensitivity [sic] and if it is a ‘high impact activity’. The building of a road is seen as a high impact activity.
An area of Cultural heritage sensitivity [sic] is generally defined as being an area within 200m of a named waterway, or within 50m of a previously registered Aboriginal Site (This is a very simplified way of expressing the definition of Cultural Heritage Sensitivity but for current purposes it will suffice.) This unfortunately does leave an inconsistency where previous archaeological works have not been done, i.e. the presence of unregistered Aboriginal sites, where archaeologists have not looked previously.
Aboriginal Affairs Victoria can legally stop works on any activity if they believe that a site (unregistered or registered) has been disturbed. They can also fine individuals or organizations in this case as well. All disputes are settled at VCAT.
Please see attached map generated by GeoVic regarding the areas of Culture [sic] Sensitivity on and around McGrath Road, Werribee. The map was generated as a response to your request for guidance in regards the need for Archaeological works for the McGrath Road upgrade.
Interpretation of the map is as follows:
1.The Map, from GeoVic data, shows that the area where you wish to develop does not fall in an Area of Cultural Heritage Sensitivity, thus does not require any additional archaeological works before development under the Aboriginal Heritage Act 2006.
2.The Map does show however, that sites have been found around the area, that the area is indeed itself almost imbedded within areas of Cultural Heritage Sensitivity, and thus may be sensitive for Aboriginal archaeological sites even though under the regulations it does not seem to fall within an area of Cultural Heritage Sensitivity.
Terra Culture is not sure of the accuracy of the data which GeoVic use, and as a result we cannot be sure that the attached map can be used as evidence at the VCAT. We generally use GeoVic as a guide, however we would, as a company, not make conclusions based on this data. This, of course, is your decision.
It is our suggestion that a Due Diligence study be undertaken for the site, which would provide you with a letter a report on the outcomes of the study from a suitably qualified Archaeologist. If the above conclusions that the area does not fall within an area of Cultural Heritage Sensitivity are correct, we will express this in the letter.
Due Diligence studies provide the following:
·Background research including Register Searches to locate known sites on and around the subject land;
·Outline of Legislative Requirements for the study area covering the Aboriginal Heritage Legislation 2006 and Aboriginal Heritage Regulations 2007 as well as any historical archaeological requirements;
·Site Visit to determine possible landform sensitivity; and [sic]
·Letter report outlining the results of the investigation;
·Assess landform disturbance.
On 1 April 2008 Vince Demaria replied to Ms Smith at Terra Culture stating that the Council accepted the Fee Proposal ‘for a Due Diligence study for McGrath Road, between Black Forest Road and Bulban Road Werribee’.
Subsequently, Terra Culture provided a due diligence report dated 30 April 2008 (the ‘First Due Diligence Report’).
In the First Due Diligence Report, Terra Culture concluded that ‘it is highly unlikely that the proposed works will harm Aboriginal cultural heritage’ and that the Regulations) did not require the preparation of a CHMP under the Act.
Second Due Diligence Report
On 27 July 2009, Ms Falkenberg of the Council sent to Dr Webb of Terra Culture an email informing it that the scope of the McGrath Rd works had been expanded to include ‘land to the east, which will accommodate a wetland, and some excavation under the road and to the west to accommodate a series of culverts’ (the ‘Expanded McGrath Rd Works’) and requesting that Terra Culture update the First Due Diligence Report to include these works.
The email relevantly stated:
Hi Catherine,
Back in 2008 you prepared a due diligence letter for Vince Demaria of this office regarding upcoming roadworks along McGrath Rd, Werribee (see attached scan). Since that time the scope of works has extended to include land to the east, which will accommodate a wetland, and some excavation under the road and to the west to accommodate a series of culverts.
As these additional areas were not covered by your original letter I thought it would be best to request an update to your original letter to include them. Could you please review these areas and update the due diligence letter? I understand there will be a fee involved with this work.
The Council attached a map showing the area of the Expanded McGrath Rd Works shaded in pink below (the ‘Pink Map’):
Terra Culture provided a due diligence report dated 5 August 2009, which took into account the revised activities and activity areas (the ‘Second Due Diligence Report’). Terra Culture expressed the same conclusion as the First Due Diligence report, repeated the statement that ‘it is highly unlikely that the proposed works will harm Aboriginal cultural heritage’, and concluded that a mandatory CHMP was not required.
Telephone Conversation 14 January 2010
In or around September 2009, the Council engaged another cultural heritage advisor, Dr Luebbers, to prepare a CHMP for land on the immediate west of McGrath Rd for the purpose of construction of a recreation reserve including sports ovals (the ‘Ovals Project’) on Wyndham Vale South Reserve (the ‘Ovals Project Site’).
On 12 January 2010, Melissa Falkenberg of the Council sent Dr Catherine Webb of Terra Culture an email stating that the Council had received a report that Dr Luebbers had ‘found 33 sites with disturbed artefacts’ in Wyndham Vale South Reserve and that she had ‘heard that a piece of land located on the east side of the McGrath Rd works had also located artefacts’.
Ms Falkenberg’s email attached a rough hand drawn sketch of McGrath Rd and its surrounds, which contained handwritten notations indicating that artefacts had been found along a strip to the east of McGrath Rd. The map also showed the area of the proposed ovals. The map did not indicate any artefacts on the west side of McGrath Rd where Dr Luebbers conducted his survey. Terra Culture was not provided with the findings of Dr Luebbers’ survey.
Ms Falkenberg followed up that email with a telephone call to Dr Webb on 14 January 2010 (the ‘Telephone Conversation’). There is a dispute as to what was said in the course of the Telephone Conversation. However, at the end of that Conversation, Dr Webb indicated that she remained of the opinion that a CHMP was not required for the Expanded McGrath Rd Works.
Road Construction Commences June 2010
On 11 May 2010, the Council entered into a contract with Excell Gray Bruni Pty Ltd (the ‘Contractor’) for the construction of certain works including the Expanded McGrath Rd Works (the ‘Works Contract’). In addition to the Expanded McGrath Rd Works, the Works Contract included construction of a wetland on the west side of McGrath Rd (the ‘West Wetland’). The Contractor commenced earthworks in early June 2010.
Discovery of Potential Compromise of Artefact Sites
By 16 July 2010, the Council had become aware that the construction works had encroached well into the Wyndham Vale South Reserve land and potentially compromised several of the artefact sites identified by Dr Luebbers.
On 19 July 2010, the Council informed Aboriginal Affairs Victoria (‘AAV’) that it had unknowingly harmed Aboriginal heritage objects and places.
Dr Brad Duncan, Manager – Metropolitan Heritage Programs of AAV advised the Council to apply for a cultural heritage permit to disturb on 22 July 2010. Subsequently, the Wathaurung determined to reject the Council’s application for a permit, and the AAV Secretary declined the permit.
On 6 September 2010, AAV advised the Council that ‘no further activity should be undertaken in the vicinity of the registered Aboriginal Places until a cultural heritage permit has been issued and/or a [CHMP] has been approved for the current activity’.
Work on all McGrath Road Activities was shut down for some time. However, it was determined that work on the culverts under the road area and on McGrath Road itself could continue without risk of further harm to Aboriginal cultural heritage.
The Council engaged Dr Luebbers to apply for a cultural heritage permit under s 36 of the Act (the ‘Permit’) to continue work on the West Wetland. The application for the Permit was received by the AAV on 29 September 2010. The Permit was formally refused on 12 November 2010.
Work on the wetlands construction was ultimately suspended until CHMP 11557, covering the wetland areas on either side of the road and the landscaping in the Gordon O’Keefe Reserve on the east was undertaken and approved (‘Wetland CHMP’).
Thereafter, the Council decided to change the boundary of the CHMP that Dr Luebbers was preparing for Wyndham Vale South Reserve by removing the West Wetland and including it in a separate CHMP for both the West Wetland and the wetland to the east of McGrath Rd (the ‘East Wetland’), as well as Gordon O’Keefe Reserve which surrounded the East Wetland.
Dr Luebbers submitted the CHMP for the Ovals Project on the Wyndham Vale South Reserve (‘CHMP 11019’) on 19 September 2011 and it was approved on 23 October 2011.
Dr Luebbers submitted the CHMP for the Gordon O’Keefe Reserve site (including the East and West Wetland) (‘CHMP 11557’) on 16 April 2012, and it was approved on 23 April 2012.
Artefacts found at the Ovals Project Site and the Gordon O’Keefe Reserve Site
Artefacts were found by Dr Luebbers at both the Ovals Project Site and the Gordon O’Keefe Reserve Site.
Dr Luebbers found some artefacts on the surface at the Ovals Project Site on the Wyndham Vale South Reserve, and some in the sub-surface following excavation. He initially attempted to conduct a survey of the land covered by CHMP 11019, namely the Ovals Project Site on the Wyndham Vale South Reserve site, in or around October 2009. He was hampered by standing water, but considered that a proper assessment of the site could be conducted when ‘the land dried out sufficiently’. He conducted an initial survey on 2 November 2009 with Ms Bonnie Fagan from the Wathaurong community, and found a number of artefacts lying on the ground. Subsequently, Dr Luebbers attended the site on several occasions with Ms Bonnie Fagan, and sometimes Mr Bert Fagan, and continued searching for artefacts.
A point of ambiguity arose during cross-examination. Dr Luebbers suggested that he, along with Mr Bert Fagan, located 13 individual stone artefacts during their ground survey, which was conducted over three or four days in November 2009. This is inconsistent with CHMP 11019, in which it was recorded that 35 artefacts were found during the ground survey. The reason for this discrepancy is unclear. It is possible that Dr Luebber’s figure of 13 artefacts refers to the number found during an initial site inspection, rather than the total number of artefacts found during the survey process, but no concluded view can be arrived at on the evidence.
Photographs of twelve samples of the artefacts found at these sites were tendered in evidence. Four of these photographs (with short descriptions) are reproduced below:
Oval Project Site
VAHR No: 7822-2968 TP 10.2.1 Where: sub-surface.[29]
[29]CHMP 11019, 58.
VAHR No: 7822-2907 A24.0.1 Where: surface.[30]
[30]CHMP 11019, 57.
Gordon O’Keefe Reserve Site
Artefact ID: GOK67.0.1 Type: flake. Material: metamorphosed sandstone..[31]
[31]CHMP 11557, 89.
Artefact ID: GOK129. Type: block. Material: quartz.[32]
[32]CHMP 11557, 95.
Agreed Issues
The parties agreed upon issues for determination in this part of the proceeding (the ‘Agreed Issues’).
However, by reason of the findings and determinations that I have made on Issues 2 and 3, insofar as they relate to the First and Second Due Diligence Reports as set out in these reasons, in order to resolve the liability issues this proceeding it will be unnecessary to make findings and determinations on all of the remaining issues and sub-issues, and in the order in which they have been presented.
Nevertheless, and for completeness, I set out the Agreed Issues below.
The Contract Claim
Contract and Tort Claims
Issue 1: Did Terra Culture at all material times hold itself out as providing expertise of persons having the qualifications and experience of a ‘cultural heritage advisor’ under the Aboriginal Heritage Act 2006 (Vic), s 189?
Issue 2: What was the scope of Terra Culture’s retainer by the Council during 2008 to 2010? Including:
(a)What was the scope of Terra Culture’s retainer in relation to the areas marked in pink to the west of the road reserve in the map attached to the email from Ms Falkenberg to Dr Webb on 27 July 2009?
(b)Was the scope of Terra Culture’s retainer limited to advising on whether a mandatory CHMP was required under the Act?
(c)Did Terra Culture’s retainer extend to the advice provided to the Council in relation to the requests made in January 2010?
Issue 3: Did the activities for the construction of McGrath Road and associated wetlands and culverts (the McGrath Road Activities) require the preparation of a Cultural Heritage Management Plan (CHMP) under the Aboriginal Heritage Act 2006 (Vic) (the ‘Act’) and the Aboriginal Heritage Regulations 2007 (Vic) (the ‘Regulations’)? Including:
(a)Was the Black Swamp a ‘waterway’ within the meaning of the Regulations?
(b)Was the whole of the McGrath Rd Activity Areas subject to ‘significant ground disturbance’ within the meaning of the Regulations?
Issue 4: Did Terra Culture fail to conduct proper or reasonable enquiries about the McGrath Rd Activities and the areas in which the McGrath Rd Activities were to take place (McGrath Rd Activity Areas) in connection with the due diligence advice contained in the letter dated 30 April 2008 from Terra Culture to the Council (the First Due Diligence Report)? Including:
(a)Did Terra Culture properly investigate and assess whether there were areas of cultural heritage sensitivity within the proposed McGrath Road Activity Areas at that time?
(b)Did Terra Culture properly establish that there had been significant ground disturbance in respect of the whole of those McGrath Road Activity Areas for the purposes of the First Due Diligence Report?
Issue 5: Did Terra Culture fail to conduct proper or reasonable enquiries about the McGrath Rd Activities and McGrath Rd Activity Areas in connection with the due diligence advice contained in the letter dated 5 August 2009 from Terra Culture to the Council (the Second Due Diligence Report)? Including:
(a)Did Terra Culture properly investigate and assess whether there were areas of cultural heritage sensitivity within the proposed McGrath Road Activity Areas at that time?
(b)Did Terra Culture properly establish that there had been significant ground disturbance in respect of the whole of those McGrath Road Activity Areas for the purposes of the Second Due Diligence Report?
Issue 6: Did Terra Culture fail to conduct proper or reasonable enquiries about the McGrath Rd Proposed Activities and McGrath Rd Activity Areas in connection with:
(a)the emails dated 12 and 13 January 2010 from the Council to Terra Culture; and
(b)the telephone Conversation between Dr Webb of Terra Culture and Ms Falkenberg of the Council on 14 January 2010 (the Telephone Conversation)?
(c)What was said in relation to the location of the artefacts during the Telephone Conversation?
Issue 7: Did Terra Culture provide erroneous or materially incomplete or materially unqualified advice in the First Due Diligence Report, the Second Due Diligence Report or the Telephone Conversation about the requirements of the Act affecting the McGrath Rd Activities?
(a) in the First Due Diligence Report;
(b) the Second Due Diligence Report; and/or
(c) the Telephone Conversation?
Issue 8: In the Telephone Conversation, did Dr Webb of Terra Culture fail to warn or advise the Council that the discovery of Aboriginal artefacts by Andrew Long & Associates and/or Roger Luebbers & Associates necessitated further cultural heritage assessment work before the Council put the contract for the project out to tender or entered into or committed itself to a contract for the McGrath Rd Activities?
Issue 9: By reason of the answer to Issues 1 to 8 above, did Terra Culture breach a term of its retainer with the Council to exercise reasonable care, skill and diligence in providing advice and services to the Council?
Issue 10: If so, did the Council rely upon:
(a)Terra Culture’s expertise as a company engaged in the business of providing heritage consultancy services in Victoria, and, if found in Issue 1 above, as having the qualifications and experience of a ‘cultural heritage advisor’ under the Aboriginal Heritage Act 2006 (Vic), s 189;
(b) the Second Due Diligence Report; and
(c) the Telephone Conversation,
in proceeding to tender and then enter into a contract for the McGrath Rd Activities on 11 May 2010?
Issue 11: If so, did the Council suffer loss and damage by reason of delay in works caused by the need to obtain a CHMP for parts of the McGrath Rd Activities after the Council had entered into a contract for the McGrath Rd Activities?
Issue 12: Did Terra Culture owe the Council a duty of care in tort to take reasonable care in carrying out cultural heritage services for the Council and in providing advice to the Council?
Issue 13: If so, by reason of the answer to Issues 1 to 8 above, did Terra Culture breach that duty of care in tort?
Issue 14: If so, did that breach cause the Council to suffer the loss and damage in Issue 11 above?
The Misleading and Deceptive Conduct Claims
Issue 15: In providing the Second Due Diligence Report and in the Telephone Conversation, did Terra Culture engage in conduct that was misleading and deceptive or likely to mislead or deceive within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (‘TPA’), s 9 of the Fair Trading Act 1999 (Vic) (‘FTA’) or, in respect of conduct after 1 January 2011, s 18 of the Australian Consumer Law (‘ACL’) (which is schedule 2 to the Competition and Consumer Act 2010 (Cth) (‘CCA’)) by reason of the fact that:
(a)the McGrath Rd Activities required the preparation of a CHMP under the Act and the Regulations before the McGrath Rd Activities could proceed in the McGrath Rd Activity Areas;
(b)the statements in the Second Due Diligence Report about the requirements of the Act and the Regulations in relation to the McGrath Rd Activities in the McGrath Rd Activity Areas were erroneous or materially incomplete or materially unqualified;
(c)the advice in the Telephone Conversation about the requirements of the Act and the Regulations in relation to the McGrath Rd Activities in the McGrath Rd Activity Areas was erroneous or materially incomplete or materially unqualified?
Issue 16: If so, did that contravention cause the Council to suffer the loss and damage in Issue 11 above?
Contributory Negligence
Issue 17: If the Council suffered the loss and damage in Issues 11, 14 and/or 16 above by reason of the conduct alleged against Terra Culture, should the amount of any damages award be reduced pursuant to Part V of the Wrongs Act 1958 (Vic), s 82(1B) of the TPA and s 137B of the CCA?
(i) Was the Council contributorily negligent by:
(A)not informing the defendant of the precise or accurate locations of the artefacts located by Roger Luebbers & Associates in or around November 2009?
(B)providing incomplete and/or unclear and/or misleading information as to the locations of artefacts located by Roger Luebbers & Associations in or around November 2009?
(ii)What did the plaintiff know about the existence of ‘an Aboriginal site in McGrath Road’ in or around October 2009? Was the Council contributorily negligent by failing to pass on that information to Terra Culture?
(iii)Did the Council fail or fail adequately to coordinate or manage the projects it was undertaking under the Council’s ‘Master Plan’ for Wyndham Vale Reserve (South) including the Ovals Project, the McGrath Road and associated wetlands and culverts Project and the Gordon O’Keefe Reserve Project? If so, did that failure amount to contributory negligence?
(iv)Did the works the subject of Roger Luebbers & Associates’ CHMP include the construction of the west wetland? If so was the Council contributorily negligent in entering into the Contract with Excell Gray Bruni Pty Ltd for works that included the west wetland and the east wetland works before Roger Luebbers & Associates had completed its survey and the CHMP for works that included the west wetland even though the east wetland could not be constructed until after the west wetland had been constructed?
(v)Did the Council’s decision to conduct a single CHMP for the wetland area and the Gordon O’Keefe Reserve area to later wrap around the eastern wetland increase the project delays? If so, was the Council contributorily negligent in deciding to do so?
Legal Principles
The facts present a number of legal issues for consideration.
Implied Term of Due Care and Duty in Tort in a Professional Engagement
Both parties agreed that it was an implied term of Terra Culture’s contract with the Council that it would exercise reasonable care, skill and diligence in performing the contract.
A finding to this effect would be consistent with the law as to implied terms set out by the majority of the Privy Council in BPRefinery (Westernport) Pty Ltd v Shire of Hastings[33] (‘BP Refinery’), and adopted by Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW)[34] (‘Codelfa’). This formulation was more recently discussed and applied by the Victorian Court of Appeal in Grocon Constructors (Victoria) Pty Ltd v APN DF2 Project 2 Pty Ltd[35] (‘Grocon’), and approved further by the Court of Appeal in Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd[36] (‘Masters’).
[33](1977) 180 CLR 266, 282-3.
[34](1982) 149 CLR 337, 347.
[35][2015] VSCA 190 [139]–[146] (Santamaria, Kyrou and McLeish JJA).
[36][2017] VSCA 88 [58] (Santamaria, Ferguson and Kaye JJA).
I find that it was an implied term of Terra Culture’s contract with the Council that it would exercise reasonable care, skill and diligence in performing the contract.
The scope of the implied term is to be defined by the scope of the work to be undertaken under the contract of engagement.[37] The terms of the retainer determine the work to be done and the scope of the duty in tort as well as in contract.[38]
[37]See, eg, Goddard Elliott v Fritsch [2012] VSC 87 [415]; Carmody and Ors v Priestley and Morris Perth Pty Ltd and Anor (2005) 30 WAR 318 [93]; Curnuck v Nitschke [2001] NSWCA 176 [6] (Davies AJA, Meagher JA agreeing) and followed in Keddie v Stacks/Goudkamp Pty Ltd (2012) 293 ALR 764; [2012] NSWCA 254 [104] (Beazley JA, Barrett JA and Sackville AJA agreeing).
[38]Hill v Van Erp (1997) 188 CLR 159, 167 (Brennan CJ); See also Midland Bank Trust Co Ltd v Hett, Stubbs and Kemp [1979] Ch 384, 402–3, cited with approval in Hawkins v Clayton (1988) 164 CLR 539, 544 (Mason CJ and Wilson J).
It follows that a court should not impose obligations which go beyond what is requested of the professional and beyond what the professional undertakes to do.[39]
[39]Daniels v Anderson (1995) 37 NSWLR 438, (1995) 16 ACSR 607, 645, citing Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp (a firm) [1979] Ch 384, 402–3; [1978] 3 WLR 167; and Hawkins v Clayton, above n 41, 544 (Mason CJ and Wilson J).
In Midland Bank Trust Co Ltd v Hett, Stubbs and Kemp[40] Oliver J said in the context of considering the duty of a solicitor:
The extent of [a solicitor's duties to his client] depends upon the terms and limits of [the] retainer and any duty of care to be implied must be related to what he is instructed to do. Now no doubt the duties owed by a solicitor to his client are high, in the sense that he holds himself out as practising a highly skilled and exacting profession, but I think that the court must beware of imposing upon solicitors - or upon professional men in other spheres - duties which go beyond the scope of what they are requested and undertake to do.
[40][1979] Ch 384, 403.
These observations of Oliver J in Midland Bank were cited with approval by the High Court in Hawkins v Clayton.[41]
[41](1988) 164 CLR 539, 544 (Mason CJ and Wilson J).
The High Court reinforced this approach in Hill v Van Erp,[42] where Brennan CJ said:
There is no reason to refrain from imposing on a solicitor who is contractually bound to the testator to perform with reasonable care the work for which he has been retained a duty of care in tort to those who may foreseeably be damaged by carelessness in performing the work. The terms of the retainer determine the work to be done by the solicitor and the scope of the duty in tort as well as in contract.
Standard of Care and Skill
[42](1997) 188 CLR 159, 167.
Where a professional owes a duty of care to a client, the basic rule is that the professional is required to exercise the care and skill of the ordinarily skilled professional in the same profession.[43]
[43]Stephen Walmsley et al, Professional Liability in Australia (Thomson Reuters, 3rd ed, 2016) 57.
In Voli v Inglewood Shire Council,[44] Windeyer J stated the general rule, in that case as it related the architects, as follows:
An architect undertaking any work in the way of his profession accepts the ordinary liabilities of any man who follows a skilled calling. He is bound to exercise due care, skill and diligence. He is not required to have an extraordinary degree of skill or the highest professional attainments. But he must bring to the task he undertakes the competence and skill that is usual among architects practising their profession.
[44](1963) 110 CLR 74, 84.
This principle was more recently stated by the High Court in Rogers v Whitaker[45] where a further observation was made as to how a court should approach the application of the standard [in this case in the context of medical treatment]:
In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill. But, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade … [I]n the field of non-disclosure of risk and the provision of advice and information [in relation to medical treatment] … the courts have adopted the principle that, while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to “the paramount consideration that a person is entitled to make his own decisions about his life”.
Misleading and Deceptive Conduct - Statutory Provisions - Giving Professional Advice
[45](1992) 175 CLR 479, 487.
Section 18(1) of the Australian Consumer Law (ACL) provides:
A person must not, I trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
In the present case, no issue was taken by the Defendant that conduct relied upon by the Plaintiff in support of its statutory cause of action was ‘in trade or commerce’, either in the defence pleaded or in submissions. This, no doubt, was for good reason.
Chapman v Luminis Pty Ltd (No 4)[46] was a case arising from a professional report provided under s 10(4) of the Aboriginal and Torres Strait Islander Heritage and Protection Act 1884 (Cth) (the ‘Commonwealth Act’).
[46]Chapman v Luminis Pty Ltd (No 4) (2001) 123 FCR 62 [176]–[178]. The circumstances arose from a professional report provided under s 10 of the Aboriginal and Torres Strait Islander Heritage and Protection Act 1884 (Cth).
The Commonwealth Act made provision, under s 9, at the instigation of an Aboriginal or a group of Aboriginals, for an emergency short term declaration to be made by the relevant Minister for the preservation or protection of a specified area from injury or desecration. Further, under s 10, where the Minister is satisfied (i) that the area is a significant Aboriginal area; and (ii) that it is under threat of injury or desecration, and has received a report under subsection in relation to the area from a person nominated by him or her and has considered the report and any representations attached to the report; and has considered such other matters as he or she thinks relevant; he or she may, by legislative instrument, make a declaration in relation to the area, including for a longer period of operation. The person nominated is required to provide a report which must deal with a number of matters, including:[47]
[47]Aboriginal and Torres Strait Islander Heritage and Protection Act 1884 (Cth) s 10(4).
(a) the particular significance of the area to Aboriginals;
(b)the nature and extent of the threat of injury to, or desecration of, the area;
(c) the extent of the area that should be protected;
(d) the prohibitions and restrictions to be made with respect to the area;
(e)the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a);
(f) the duration of any declaration; and
(g)the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law.
The Federal Court found that the conduct of the nominated person, Dr Saunders, in preparing the report, was not conduct in ‘trade or commerce’. Von Doussa J reasoned, in the paragraphs with follow, that Professor Saunders was carrying out the statutory function of a reporter under s 10(4) of the Commonwealth Act. As such, it was not a function which is itself was of a trading or commercial character. Rather, it was found that the reporter carried out work of a professional nature in performing that function. In this regard, his Honour said:
Mr Tickner is sued as the former Minister. Professor Cheryl Saunders is sued as the person nominated by Mr Tickner under the Heritage Protection Act to receive representations from interested members of the public and to prepare the report required by the Act concerning the application for protection (at [5]);
The third respondent, Professor Cheryl Saunders, is a Professor of Law who was nominated by the Minister to prepare a report in accordance with s 10(4) of the HPA. She is also the Director of the Centre for Comparative Constitutional Studies at the University of Melbourne. Professor Saunders submitted a report (the Saunders Report) to the Minister on 7 July 1994 (at [10]);
In making her report, and in gathering information through the receipt of representations made by interested persons, or otherwise, Professor Saunders was carrying out the statutory function of a reporter under s 10(4) of the HPA. In my opinion that is not a function which is itself an aspect or element of activities or transactions which bear a trading or commercial character. That the reporter is carrying out work of a professional nature in performing that function, and is being remunerated for doing so, does not transform the function into an activity which bears a trading or commercial character (at [178]).
Here however, given the nature of the engagement of Terra Culture, which was not directed to performing a statutory function, namely the preparation of a CHMP under s 58 of the Act, but rather advising Wyndham City Council whether a CHMP was necessary or not, did not amount to the performance of a statutory function, in my opinion. Rather, the engagement was of a trading or commercial character, in that it was an engagement to provide professional advice which would assist the Council to make a commercial decision as to whether or not to expend funds and engage a cultural heritage advisor to assist it to prepare a CHMP.
The conduct relied upon by the Council in the present case, following entry into the engagement, is appropriately characterised as the provision of an expression of a professional opinion, or the making of statements which incorporate opinions.
It is well established that a statement of opinion is not misleading or deceptive, merely because it turns out to be inaccurate. A statement of opinion will only be misleading or deceptive if it conveys a meaning which amounts to a false representation.[48]
[48]Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82, 88; MGICA (1992) Ltd v Kenny & Good Pty Ltd Pty Ltd (1996) 140 ALR 313, 356.
As to when a statement of opinion may be actionable under the ACL, I adopt the statement of the law found in Professional Liability in Australia,[49] where the learned authors say:
A statement of opinion ordinarily conveys a representation that the maker of the statement holds the opinion: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd at 88; MGICA (1992) Ltd v Kenny & Good Pty Ltd (1996) 140 ALR 313 at 356. Where a statement of opinion conveys such a representation and the maker does not hold the opinion, the statement of opinion will be misleading. Where a person expressing an opinion knows or should know that another person will or may act in reliance on the opinion, or professes to have expertise in forming and giving opinions of the kind, the statement of opinion commonly also conveys a representation that the opinion is based on rational or reasonable grounds and is the product of the exercise of due care and skill: MGICA (1992) Ltd v Kenny & Good Pty Ltd (1996) 140 ALR 313 at 356-357. In ‘determining whether a person had reasonable grounds for expressing an opinion … it is necessary to judge the matter as at the date of the representation’ and ‘guard against hindsight illusion’: City of Botany Bay Council v Jazabas Pty Ltd (2001) ATPR ¶46-210 at [83].
[49]Stephen Walmsley et al, Professional Liability in Australia (Thomson Reuters, 3rd ed, 2016) 92.
The present case focussed on the question as to whether Terra Culture, through Dr Webb, represented that her opinions were based on rational or reasonable grounds and were the product of the exercise of due care and skill.
This position necessarily gives rise to an overlap between the cause of action founded in negligence and that founded in misleading conduct. However, differences arise in this case in the application of the causes of action to the facts. To the extent that Dr Webb is alleged to have failed to advise the Council of an alternative course of action which may have been open to it to protect its position, even if this was inadvertent, it is difficult to see how a cause of action based on misleading conduct can be made out on this basis. In Yates Property Corporation Pty Ltd v Boland & Ors,[50] Branson J said this in on the issue in the course of analysing the facts before him:
However, even if my findings with respect to the allegations of negligence had been otherwise, it is, in my view, doubtful that the onus of establishing how that which was left unsaid during the course of that conduct had the potential to mislead or deceive could be found to have been satisfied in the circumstances of this case.
First, the evidence does not support …
Secondly, the applicant's case pursuant to s 42 of the FTA was presented on the basis that professional negligence necessarily involves conduct that is misleading or deceptive or likely to mislead or deceive within the meaning of s 42 of the FTA. The authorities, in my view, suggest against this contention, particularly where the conduct relied upon is inadvertent and constituted by the negligent failure to act or advise in certain ways.
The requirement in the case of conduct constituted by silence for the circumstances to be such as to give rise to a reasonable expectation that if particular matters existed they would be disclosed, will in most, if not all, such cases, in my view, fail to be met.
It will rarely, if ever, be objectively reasonable to expect disclosure of a matter or opinion not adverted to and contrary to an allegedly negligently formed opinion. In short, I do not see s 42 of the FTA as an automatically available statutory alternative to every common law claim alleging professional negligence.
[Emphasis added]
[50](1997) 145 ALR 169, 214–215.
Contract and Tort Claims
Issue 1: Terra Culture a ‘Cultural Heritage Advisor’
Issue 1: Did Terra Culture at all material times hold itself out as providing expertise of persons having the qualifications and experience of a ‘cultural heritage advisor’ under the Aboriginal Heritage Act 2006 (Vic), s 189?
Both parties agreed that this was the case, and should be answered Yes.
I find that Terra Culture at all material times held itself out as providing expertise of persons having the qualifications and experience of a ‘cultural heritage advisor’ under the Aboriginal Heritage Act 2006 (Vic), s 189.
Issue 2 – Scope of Terra Culture Retainer
Issue 2: What was the scope of Terra Culture’s retainer by the Council during 2008 to 2010? Including:
(a)What was the scope of Terra Culture’s retainer in relation to the areas marked in pink to the west of the road reserve in the map attached to the email from Ms Falkenberg to Dr Webb on 27 July 2009?
(b)Was the scope of Terra Culture’s retainer limited to advising on whether a mandatory CHMP was required under the Act?
(c)Did Terra Culture’s retainer extend to the advice provided to the Council in relation to the requests made in January 2010?
In this part of the reasons I will deal only with the scope of the Terra Culture retainer in relation to the First Due Diligence report of 2008 and the Second Due Diligence Report of 2009. The retainer arising from the Telephone Conversation of 14 January 2010 will be dealt with separately below.
Implied Term
Both parties agreed that it was an implied term of Terra Culture’s contract with the Council, in connection with the First Due Diligence report of 2008 and the Second Due Diligence Report of 2009, that it would exercise reasonable care, skill and diligence in performing the contract.
I find that it was an implied term of Terra Culture’s contract with the Council that it would exercise reasonable care, skill and diligence in performing the contract. The question then relates to the scope of the duty. This in turn is defined by the scope of the contract of retainer.
Summary of Defendant’s Submissions
The First Due Diligence Report
It was submitted that the scope of the retainer for the First Due Diligence Report is to be defined by reference to the email that Mr Demaria, a design engineer of the Council, emailed to Terra Culture on 14 March 2008 and the Due Diligence Proposal that Terra Culture sent to the Council on 31 March 2008.
The email of 14 March 2008 read:
Hi Pamela,
As discussed, please find attached melway map [sic] showing the location of McGrath Road, Werribee.
We are currently preparing a design for the construction of McGrath Road between Black Forest Road and Bulban Road.
As this section of road is adjacent to the black swamp, is flood prone, and approximately 300m from lollypop creek [sic], do we require an archaeological survey/report?
Please advise at your earliest convenience.
Thank-you.
It was submitted that Mr Demaria wanted advice on was whether an archaeological survey/report was ‘required’.
Terra Culture responded to the email by providing the Due Diligence Proposal of 31 March 2008. In the Due Diligence Proposal, it was submitted that Terra Culture proposed that it be engaged to undertake a due diligence study for the Original McGrath Rd Works in order to determine whether a CHMP was ‘required’. It was submitted that this is evident from the following passages of the Due Diligence Proposal which was sent to Mr Demaria.
Under the Aboriginal Heritage Act 2006, a development is required to have an approved Cultural Heritage Management Plan before works proceed if all or part of the Activity Area falls within an area of Cultural Heritage sensitivity and if it is a ‘high impact activity’. A building of a road is seen as a high impact activity.
…
It is our suggestion that a Due Diligence study be undertaken for the site, which would provide you with a letter report on the outcomes of the study from a suitably qualified Archaeologist. If the above conclusions that the area does not fall within an area of Cultural Heritage Sensitivity are correct, we will express this in the letter report.
Due Diligence studies provide the following:
·background research in two Register Searches to locate known sites on and around the subject land;
·outline of Legislative Requirements for the study area covering the Aboriginal Heritage Legislation 2006 and the Aboriginal Heritage Regulations 2007 as well as any historical archaeological requirements;
·site visit to determine possible landform sensitivities; and
·letter report outlining the results of the investigation;
·assess landform disturbance. [Emphasis added]
On this basis it was submitted that the appropriate conclusion to draw from the Due Diligence Proposal is that what was proposed was a due diligence to determine whether the area in question was subject to cultural heritage sensitivity such that a CHMP was ‘required’ or ‘necessary’.
The Second Due Diligence Report
It was submitted by Terra Culture that the scope of the Second Due Diligence retainer was set out in the email request that the Council sent Terra Culture on 27 July 2009 asking Terra Culture to review and ‘update’ the First Due Diligence Report to include the Expanded McGrath Rd Works.
It was submitted that the email from the Council to Terra Culture of 27 July 2009 did not ask Terra Culture to advise in relation to the West Wetland as there was no mention of the West Wetland. Further, the Pink Map attached to that email, while showing a pink shaded area to the west of McGrath Road, described the works planned for that area as ‘excavate for culverts’. Again, there was no mention of the West Wetland in the Pink Map.
It was further submitted that the fact that the scope of the Second Due Diligence Report did not include the West Wetlands is also evident from the terms of the Second Due Diligence Report itself.
Accordingly, it was submitted, the Second Due Diligence Report did not make any reference to the West Wetland.
It was submitted that this evidence is consistent with other evidence as to the extent of excavation for the culverts.
It was submitted that the evidence also reveals that the cultural heritage issues that the Council encountered on the west side of McGrath Road did not actually stop construction of the road or the culverts.[51] Work on the culverts was able to continue because it was essentially in the road reserve.[52]
[51]T 473.18 – T 473.21.
[52]T 473.29.
Accordingly, the Defendant contended that the scope of the retainer for the Second Due Diligence Report was to ‘update’ the First Due Diligence Report for the additional proposed activities in the additional proposed area being ‘land to the east, which would accommodate a wetland, and some excavation under the road and to the west to accommodate a series of culverts’ in the area shaded pink on the map accompanying the email of 27 July 2009.
It was further submitted that, for the reasons set out in relation to the First Due Diligence Report, this involved advising the Council as to whether a CHMP was ‘required’ or ‘necessary’ limited to such works in the pink shaded area of the Pink Map.
Summary of Plaintiff’s Submissions
First Due Diligence Report
The Council submitted that it was clear from the exchanges in March to April 2008 that the Council’s request was broad and not subject to restrictions or limitations. Under cross-examination, Dr Webb agreed that the Council had asked Terra Culture in general and unlimited terms what it needed to do in relation to the McGrath Road Activities, and on receiving Terra Culture’s recommendation to conduct a due diligence investigation and prepare a report and advice, it accepted that advice. Accordingly, it submitted that the Defendant’s characterisation of a limited retainer should be rejected.
The Council submitted that it never asked Terra Culture to limit its advice to whether a mandatory CHMP was required. On the contrary, it pointed to Ms Falkenberg’s evidence under cross-examination, to the effect that she would not have been aware of the difference between a voluntary and a mandatory CHMP, but rather that she needed to know whether the Council needed a CHMP for the project, as she ‘didn’t want to damage any cultural heritage material’.
The Council submitted that Terra Culture did not at any time put the Council on notice that it was advising only in relation to the strict legislative requirement for a CHMP. In particular, Terra Culture did not warn the Council that it had limited its advice, or that there were relevant considerations (such as the potential for the risk of harm if a voluntary CHMP was not conducted) on which it had chosen not to provide advice. It submitted that Terra Culture was the party with the relevant specialised knowledge and expertise. Indeed, it had been engaged by the Council for that reason. It contended further that if Terra Culture intended to limit its advice in this way it should have informed the Council of this limitation to ensure that the Council had an opportunity to consider whether it wanted further advice in respect of those relevant matters on which Terra Culture had chosen not to advise.
In the alternative, it was submitted that Terra Culture’s advice provided to the Council was not in fact limited to whether a mandatory CHMP was required. Rather, Terra Culture advised the Council in broad terms, stating that it was ‘highly unlikely’ that the proposed works would cause harm to Aboriginal cultural heritage.
Having said this, I find that both Ms Falkenberg and Dr Webb gave their evidence honestly and directly as best they could, given the inevitable loss of memory as to detail, given the passage of time.
Having reviewed the evidence, I find that the implied term of the retainer which obliged Terra Culture to exercise reasonable care, skill and diligence in performing the contract arising from the Telephone Conversation of 14 January 2010 was breached.
I make the following findings which support this conclusion:
(a)Dr Webb was informed in the Telephone Conversation by Ms Falkenberg that there had been stone artefacts found to the west and to the east of McGrath Road;
(b)Dr Webb tried to ascertain how close the artefacts were to the proposed road works;
(c)Dr Webb knew the importance of ascertaining whether any of the discovered artefacts were within 50m of the proposed road works. If there were any which had been discovered within this zone, it would automatically trigger the requirement for a CHMP, without which the Council could not could not legally commence the McGrath Road works and it could be prosecuted for an offence under the Act;
(d)The emails of 12 and 13 January were clearly imprecise as to the whereabouts of the locations where the artefacts had been discovered. The text of the emails provided no assistance, and the sketch map provided showed only a location on the east side of McGrath Road where it was noted as to a hatched area which abutted McGrath Road ‘Artefacts located within this site’. There were no precise locations shown as to the east side discoveries. The map provided no locations at all where artefacts had been discovered by Dr Luebbers on the west side of McGrath road (whereas a survey showing the location of the artefacts found by Dr Luebbers located on the north-west end of McGrath road, provided to Terra Culture by an email of 16 July 2010, showed the precise location of the artefacts, with some clearly within 50 metres of McGrath road).
Further, in the Telephone Conversation with Dr Webb on 14 January Ms Falkenberg at best provided an obviously imprecise description of the location of the artefacts. The conversation did not descend to detail on the precise whereabouts of these artefacts, and certainly did not expressly give provide instructions that none of the artefacts found by Dr Luebbers or anybody else were discovered 50 metres or less from the proposed expanded McGrath road works and culvert works;
(e)Dr Webb did not ask to be provided with any further written information which would identify with precision where the artefacts were found, and in particular, she did not ask to be provided with the descriptions of the locations set out in the reports prepared by Dr Luebbers and Andrew Long & Associates. This is in spite of the fact that, by the emails of 12 and 13 January, Dr Webb was advised of the existence of a written report prepared by the cultural heritage advisor ‘Roger Luebbers and Associates’ which had ‘found 33 sites with disturbed artefacts within the study area’. Dr Webb was also notified in the emails of the fact that ‘a piece of land located on the east side of the McGrath Rd works has also located artefacts. This study is being conducted by Andrew Long & Associates and is still underway’;
(f)Nevertheless, Dr Webb proceeded to provide her advice in the Telephone Conversation based on plainly inadequate instructions as to the precise location of the discovered artefacts;
(g)Dr Webb gave unqualified advice in the Telephone Conversation that the newly found artefacts did not change the advice given in the Second Due Diligence Report and that a CHMP was not ‘required’;
(h)Further and in addition, before providing her advice in the Telephone Conversation there is no evidence that Dr Webb conducted any further search of the VAHR register, and I find that she did not do so, in spite of the passage of time since conducting her last search of the register in relation to this area on the earlier occasions of the First Due Diligence Report in 2008 (30 April 2008), when Dr Webb did conduct a search of the VAHR register, and the Second Due Diligence Report in 2009 (5 August 2009), when Dr Webb conducted fresh searches of the VAHR in the course of preparing the Second Due Diligence Report. Had she done so in January 2010 before delivering her advice, the registered Biosis Artefact would have revealed itself to her, and her advice undoubtedly would have been that a CHMP was necessary. Dr Berelov said in his evidence on the subject, which I accept:
The likelihood of Aboriginal heritage being present was signalled by the discovery of sites adjacent to the activity area regardless of whether or not such sites had yet been registered.
The likelihood of Aboriginal heritage being present signalled by the discovery of sites adjacent to the activity area should have prompted Dr Webb to conduct a further search of the VAHR register in January 2010 before giving her advice.
Dr Webb gave evidence that had she been informed of the Biosis Artefact it would have changed her advice as the Biosis Artefact was located close to the area proposed for excavation for the culverts.[163]
[163]T 818.13 – T 819.4
I further find that the likelihood of Aboriginal heritage being present signalled by the discovery of sites adjacent to the activity area should also have prompted Dr Webb to advise the Council, as a matter of prudence, to undertake a voluntary CHMP to protect itself. Dr Berelov said in his evidence on this matter, which I accept:
Therefore a voluntary CHMP should have been recommended at that stage by TerraCulture [sic]. Such advice would have been in line with generally accepted industry practice with respect to protecting one's client from possible prosecution as well as protecting potential Aboriginal heritage.
Dr Webb herself acknowledged that a voluntary CHMP may be required under the Act, where there is Aboriginal cultural heritage in the area but it is not yet registered.[164]
[164]T963.16-23.
These failures, whether taken individually or cumulatively, resulted in a breach of the implied term of Terra Culture’s retainer to exercise reasonable care, skill and diligence in performing that part of the Second Due Diligence Report retainer arising from the Telephone Conversation of 14 January 2010.
Whether Negligent Misstatement
I find that, for the reasons earlier expressed, Terra Culture had a duty of care to exercise reasonable care, skill and diligence in giving the advice it did.
Terra Culture failed in its duty of care to the Council in advising as it did in the course of the Telephone Conversation of 14 January 2010. It failed to exercise reasonable care, skill and diligence in giving this advice, which was both wrong and deficient in failing to advise of the prudence of conducting a voluntary CHMP.
Whether Breach of s 18 Consumer Law
I further find that, for the reasons earlier expressed, Terra Culture, in giving the advice it did in the course of the Telephone Conversation of 14 January 2010, amounted to misleading conduct in trade and commerce in breach of s 18 of the AustralianConsumer Law. As I have found that advice to be, it was wrong.
Whether Council Guilty of Contributory Negligence
Applicable Law
The Wrongs Act 1958 (Vic) makes provision for contributory negligence in the following important sections:
26 Liability for contributory negligence
(1)If a person (the claimant) suffers damage as the result partly of the claimant's failure to take reasonable care (contributory negligence) and partly of the wrong of any other person or persons—
(a)except as provided in section 63, a claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant; and
(b)the damages recoverable in respect of the wrong must be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.
(1A)Subsection (1) does not operate to defeat any defence arising under a contract.
(1B)If any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages awarded to the claimant by virtue of subsection (1) is not to exceed the maximum limit so applicable.
(1C)If a claim is brought in a court of limited jurisdiction, the court may award damages up to the limit of its jurisdiction even though the amount of damages has first been reduced under subsection (1) or (1B).
(2)Where damages are recoverable by any person by virtue of subsection (1) subject to such reduction as is therein mentioned, the court shall find and record the total damages which, apart from any limitation referred to in subsections (1B) and (1C), would have been awarded, if the claimant had not been guilty of contributory negligence.
(4)Where any person dies as a result partly of his or her failure to take reasonable care (contributory negligence) and partly of the wrong of any other person or persons an action brought by the dependants of the first-mentioned person under Part III of this Act shall not be defeated nor shall any damages recoverable by those dependants under that action be reduced by reason of that first-mentioned person's contributory negligence.
(5)Where, in any case to which subsection (1) of this section applies, one of the persons responsible for the damage avoids liability to any other such person or his personal representative by pleading any enactment limiting the time within which proceedings may be taken, he shall not be entitled to recover any damages from that other person or representative by virtue of the said subsection.
(6)Where any case to which subsection (1) of this section applies is tried with a jury, the jury shall determine the total damages which would have been recoverable if the claimant had not been guilty of contributory negligence and the extent to which those damages are to be reduced.
62 Standard of care for contributory negligence
(1)The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose—
(i)the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
(ii)the matter is to be determined on the basis of what that person knew or ought to have known at the time.
63 Contributory negligence can defeat claim
In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.
The High Court in Astley & Ors v Austrust Ltd (‘Astley’)[165] dealt with South Australian legislation relating to contributory negligence[166] which, so far as is relevant for present purposes, was materially in the same as the provisions of the Victorian Act. The Court decided two things of importance to the present case:
(a)There is no rule that apportionment legislation such as the Wrongs Act, s 27A(3) does not operate in respect of contributory negligence of a plaintiff where the defendant, in breach of its duty, has failed to protect the plaintiff from damage in respect of the very event which gave rise to the defendant's engagement. Although, in many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty, the defendant's duty is only one of the many factors that must be weighed in determining whether the plaintiff so conducted itself that it failed to take reasonable care for the safety of its person or property (by the whole Court);[167] and
(b)An award of damages for breach of contract may not be reduced under apportionment of liability legislation such as the Wrongs Act, s 27A(3) for contributory negligence where the plaintiff has sued in contract whether or not the plaintiff has or could have also sued in tort (by the plurality).[168]
[165](1999) 197 CLR 1, 11, 14 (Gleeson J, McHugh, Gummow and Hayne JJ).
[166]Wrongs Act 1936 (SA) s 27A.
[167]Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ.
[168]Gleeson CJ, McHugh, Gummow, and Hayne JJ, with Callinan J dissenting.
As to the first proposition, the High Court observed:[169]
There is no rule that apportionment legislation does not operate in respect of the contributory negligence of a plaintiff where the defendant, in breach of its duty, has failed to protect the plaintiff from damage in respect of the very event which gave rise to the defendant's employment. A plaintiff may be guilty of contributory negligence, therefore, even if the “very purpose” of the duty owed by the defendant is to protect the plaintiff's property. Thus, a plaintiff who carelessly leaves valuables lying about may be guilty of contributory negligence, calling for apportionment of loss, even if the defendant was employed to protect the plaintiff's valuables.
A finding of contributory negligence turns on a factual investigation of whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases the nature of that duty may reduce the plaintiff's share of responsibility for the damage suffered; and in yet other cases the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of the many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property.
[169]Astley (1999) 197 CLR 1, 14 [29].
As to the second proposition, the plurality concluded:[170]
Absent some contractual stipulation to the contrary, there is no reason of justice or sound legal policy which should prevent the plaintiff in a case such as the present recovering for all the damage that is causally connected to the defendant's breach even if the plaintiff's conduct has contributed to the damage which he or she has suffered. By its own voluntary act, the defendant has accepted an obligation to take reasonable care and, subject to remoteness rules, to pay damages for any loss or damage flowing from a breach of that obligation. If the defendant wishes to reduce its liability in a situation where the plaintiff's own conduct contributes to the damage suffered, it is open to the defendant to make a bargain with the plaintiff to achieve that end. Of course, the result of such a bargain may be that the defendant will have to take a reduced consideration for its promise to take reasonable care. But the bargain will be the product of the parties' voluntary agreement to subject themselves to their respective obligations.
In an action in tort, however, the duty of the defendant to take reasonable care and the obligation of the plaintiff to take reasonable care for his or her own safety or interests are imposed on the parties by law. Absent a contractual stipulation varying the rights of the parties, it is the general law that defines their rights and liabilities …
Conclusion
For the above reasons, a construction applying the apportionment legislation to contract cases is contrary to the text, history and purpose of the legislation. That means in this case that, although the learned trial judge was correct in finding that Austrust [the original Plaintiff] was guilty of contributory negligence, that finding could only apply to the assessment of damages in the tort claim. It had no application to Austrust's claim for breach of contract. It follows that, for different reasons, we are of the opinion that the Full Court was correct to allow Austrust's appeal from the order of the learned trial judge.
[170]Ibid 37–38 [86]–[89].
It is accepted that, where a client fails to communicate a relevant fact to the professional, such a failure may constitute contributory negligence.[171] As the High Court stated in Astley:[172]
A person may also be guilty of contributory negligence even though the negligence of the plaintiff did not contribute to the accident which caused the damage. That is because contributory negligence is concerned with the failure of the plaintiff to protect his or her personal property against damage and not with whether the failure contributed to the accident.
…
There is no rule that a portion of legislation does not operate in respect to the contributory negligence of a plaintiff where the defendant, in breach of its duty, has failed to protect the plaintiff from damage in respect of the very event which gave rise to the defendant’s employment. A plaintiff may be guilty of contributory negligence, therefore, even if the ‘very purpose’ of the duty owed by the defendant is to protect the plaintiff’s property.
[171]Carradine Properties Ltd v DJ Freeman & Co (a firm) (1982) 5 Const LJ 267 as quoted in in Rybak v Senneh Pty Ltd (1997) ANZ Conv R 74, 78–9, [1996] NSWCA 460 (Priestly JA, with whom Beasley AJA and Brownie JA agreed). See also Stephen Walmsley et al, Professional Liability in Australia (Thomson Reuters, 3rd ed, 2016) 187.
[172](1999) 197 CLR 1, 11, 14 (Gleeson J, McHugh, Gummow and Hayne JJ).
However, I find that the Council was not guilty of any contributory negligence in the course of giving instructions and seeking advice in relation to the Telephone Conversation of 14 January 2010.
This is one of those cases where the conduct of the plaintiff Council in this case, when all the relevant circumstances are weighed, does not result in a conclusion that it has so conducted itself that it failed to take reasonable care to protect its own interests in the management of the McGrath Road construction works.
Terra Culture claims that the Council failed to take reasonable care to protect its own interests in a number of ways.
In particular, the Council failed to provide Terra Culture with accurate information during the Telephone Discussion of 14 January 2010 in relation to the exact location of the artefacts that had recently been found by Dr Luebbers, notwithstanding the fact that Dr Luebbers had provided such information to the Council by at least 8 January 2010.
Further, the Council is claimed to have failed to take reasonable care to protect its own interests as a product of organisational failure perpetrated under its management. It is alleged to have done this principally by failing to adequately coordinate and manage the projects it was undertaking under the its Master Plan for the Wyndham Vale South Reserve such that it entered into the Works Contract and commenced works on the West Wetland on land that was subject to the CHMP 11019 that Dr Luebbers was preparing for Wyndham Vale South Reserve, before Dr Luebbers had completed CHMP 11019.
I will deal with each of the heads of contributory negligence alleged by Terra Culture.
Inadequate Instructions in and around the Telephone Conversation
Two sub-issues arise under this head: Was the Council contributorily negligent by:
(a)not informing the defendant of the precise or accurate locations of the artefacts located by Roger Luebbers & Associates in or around November 2009?
(b)providing incomplete and/or unclear and/or misleading information as to the locations of artefacts located by Dr Luebbers in or around November 2009?
Dr Webb gave evidence that had the Council provided her with an accurate map of where Dr Luebbers had located the artefacts in question her advice on 14 January 2010 would have been different.
However, and although another officer, Ms Sytema, did have a map showing the precise location of the artefacts found by Dr Luebbers in her possession by 8 January 2010 – six days before the Telephone Discussion occurred – I find that Council was not contributorily negligent.
The Council was entitled to rely upon the skill and expertise of Dr Webb of Terra Culture. It should have been obvious to Dr Webb that the information provided to her as to the precise location of the artefacts found by Dr Luebbers was far too vague and uncertain for her to have expressed there and then an unqualified opinion about the subject of the inquiry. Dr Webb did not request the Council to provide more information, which as things turn out, it had in its possession through Ms Sytema. Ms Falkenberg was entitled to rely on the advice given by Dr Webb, which implicitly represented that she had sufficient information to give a reliable opinion based upon the information provided by Council in the course of the conversation.
I accept that Dr Luebbers became aware of the Biosis Artefact and communicated with Ms Sytema in relation to that artefact,[173] a week or so after 22 October 2009.[174] He told her that the Biosis Artefact appeared to be located in the McGrath road reserve.[175] Ms Sytema did not have any recollection of specifically informing Ms Falkenberg of this Biosis Artefact.[176] I find that Ms Falkenberg was not informed of the Biosis Artefact at the time of the Telephone Conversation of 14 January 2010.
[173]T 453.27 – T 459.2.
[174]T 1243.
[175]T 458.30 – T 459.2.
[176]T 552.22 – T 552.31.
Terra Culture submitted that Ms Sytema should have provided the Biosis Artefact information to Ms Falkenberg and she should have provided it to Dr Webb. By failing to pass on the information the Council exposed itself to reasonably foreseeable and avoidable risk of loss or injury and was contributorily negligent.
However, and for these reasons, I find this not to be the case.
The harm to be averted was this: the risk of artefacts being discovered within 50 metres of the extended McGrath Road works resulting in the requirement for a CHMP prior to the works commencing.
To avert the risk of this harm, the Council engaged Terra Culture in the emails of 12 and 13 January 2010 and by the Telephone Conversation of 14 January 2010 to advise it, in the events that had happened, whether the previous advice in the Second Due Diligence Report remained correct.
The information imparted to Dr Webb was of critical importance to the Council, as was made plain to Dr Webb. The emails of 12 and 13 January ought to have communicated to Dr Webb that the Council was about to tender for the McGrath Road works. It was seeking the advice of its expert as to whether, in the light of the discoveries of artefacts which had been made, it could proceed with the tender and the construction.
Further, the Council was at risk of prosecution under the Act if it disturbed artefacts in situ, as was well known to Dr Webb.
The Council was entitled to expect that the appointed cultural heritage advisor, Terra Culture, acting through an expert of the calibre and experience of Dr Webb, would make all necessary enquiries, undertake all necessary searches of the VAHR register and request the provision of all necessary information from the Council, including details of the precise location of the artefacts found in the vicinity of the proposed works which were likely to be in the possession of the Council in the form of the written report from Roger Luebbers and Associates which Terra Culture had been advised of, sufficient to give accurate and reliable advice to the Council, on the best information then available.
Further, given the discoveries of artefacts which had then been made, in the vicinity of the proposed works and given the risk of further artefacts being discovered within 50 metres of the extended McGrath Road works, it was clearly the duty of the cultural heritage advisor to recommend that a voluntary CHMP should be prepared to discharge its duty of care to the Council, as this was not excluded by the retainer, either expressly or implicitly, and indeed within the scope of the retainer as it had then become.
Ms Falkenberg of the Council did in fact take reasonable steps to avoid exposing itself to harm by contacting Dr Webb on 12, 13 and 14 January 2010 and seeking her expert advice.
The Council received the advice of terra Culture, which was unequivocal and unqualified.
Further, in accepting the advice and acting upon it, I infer that the Council, through its officer Ms Falkenberg, believed that Dr Webb had sufficient information before her to give that advice. In the circumstances it was reasonable for the Council to act upon the advice of its appointed expert.
I find that the allegation of contributory negligence on this basis has not been made out.
Did the Council fail or fail adequately to coordinate or manage the projects it was undertaking under the Council’s ‘Master Plan’?
As another element of the allegation of contributory negligence, Terra Culture submitted that the Council failed or failed adequately to coordinate or manage the projects it was undertaking under the Council’s ‘Master Plan’ for Wyndham Vale Reserve (South) including the Ovals Project, the McGrath Road and associated wetlands and culverts Project and the Gordon O’Keefe Reserve Project.
Terra Culture submitted that the Council, by not take reasonable steps to avoid exposing itself to harm by failing to properly co-ordinate and manage the planning and development of the Wyndham Vale South Reserve ovals project run by Ms Sytema of the Council (the ‘Ovals Project’), the McGrath Rd and wetlands project run by Ms Falkenberg of the Council (the ‘Roads and Wetlands Project’) and the GOK Reserve project run by Ms Lazdins of the Council (the ‘GOK Project’). In particular, and as a result of that lack of co-ordination, it was alleged that:
(a)Ms Sytema failed to inform Dr Luebbers of the works that were going to occur on the West Wetlands so he could include it within the scope of his CHMP 11019;
(b)Ms Sytema failed to inform Ms Falkenberg of the exact location of the artefacts that Dr Luebbers had found on the west side of McGrath Rd;
(c)Ms Sytema and Ms Falkenberg both failed to inform the site supervisor, Mr Brigandi, of the fact that artefacts had been found on the west side of McGrath Rd and the exact location of those artefacts until approximately five weeks after works had started on that area by which time deep excavations had encroached well into the area of Dr Luebber’s unfinished CHMP 11019.
However, and for these reasons, I find this not to be the case.
The Council was entitled to manage the three projects within the financial and human resources available to it.
However, in doing so, I am unable to conclude that the Council did not take reasonable steps to avoid exposing itself to harm arising from the failure to take into account the presence of artefacts on or near to the McGrath Road works, such that a CHMP was required in January 2010 before those works could commence.
If an expert cultural heritage advisor is engaged for such a purpose, a Council in the position of Wyndham, and different sections and managing officers within the Council, were entitled to expect that an experienced cultural heritage advisor engaged on a professional retainer would undertake all necessary enquiries to establish the facts before giving the required advice. Given that there were three connected projects afoot at the same time, with different cultural heritage experts undertaking different research activities on sites in relatively close proximity to one another, it was reasonable for the Council to expect that a cultural heritage advisor, faced with an inquiry of the type made in the emails of 12 and 13 January, and the Telephone Conversation of 14 January 2010, would have made all relevant inquiries of the other cultural heritage experts engaged on adjoining projects, and requested instructions from the other Council managers for those projects, had such inquiries and instructions in the considered opinion of the appointed expert, been necessary to fulfil the requirements of the retainer.
I find that the allegation of contributory negligence on this basis is also not made out.
Was the Council contributorily negligent in entering into the Contract with Excell Gray Bruni for works including the west wetland and the east wetland?
Terra Culture submitted that the Council was contributorily negligent in entering into a contract with Excell Gray Bruni Pty Ltd for works that included the west wetland and the east wetland works before Dr Luebbers, through his firm Roger Luebbers & Associates, had completed its survey and the CHMP for works that included the west wetland, even though the east wetland could not be constructed until after the west wetland had been constructed.
The Council appointed Dr Luebbers to prepare a CHMP for the Wyndham Vale South Reserve in September 2009.[177] The Notice of Intention to prepare CHMP 11019 for the Wyndham Vale South Reserve was lodged on 12 October 2009. Ms Sytema of the Council was the sponsor of that CHMP. The area of CHMP 11019 included the whole of the Wyndham Vale South Reserve west of McGrath Road.[178] It included the area on which the West Wetland was subsequently built.
[177]T 530.25 - T 530.31.
[178]T 536.3 – T 536.6.
Ms Sytema had a reasonable understanding of cultural heritage regulations. She knew that areas within 200 metres of waterways were areas of cultural heritage sensitivity and that a cultural heritage management plan would be required if there is ground disturbance within such areas.[179] She was aware that high impact activity within 50 metres of registered heritage material was prohibited without first preparing a CHMP.[180] She knew that if the Council did earthworks and excavation in an area requiring a CHMP before the CHMP was finalised, there was a risk of harming Aboriginal cultural heritage.[181] She knew that if the Council did something to harm Aboriginal heritage there could be serious consequences including fines for the Council[182] and project delays.[183]
[179]T 532.14 – T 532.21.
[180]T 533.16 – T 534.1.
[181]T 534.24 – T 534.29.
[182]T 534.7 – T 534.9; T 534.20 – T 535.1; T 559.31; T 559.31 – T 560.2.
[183]T 535.9 – T 535.16.
Ms Sytema agreed that she knew by at least 8 October 2009 that the planned West Wetland works were going to be happening in the area of her CHMP 11019.[184] She knew ‘there were going to be excavation works associated with the wetlands on the west side of McGrath Road’.[185]
[184]T 544.14 – T 544.18.
[185]T 544.7 – T 544.13.
In maintaining this allegation, of contributory negligence, Terra Culture called upon a lengthy history of internal co-ordination meetings within the Council relating to the co-ordination of cultural heritage matters.
However, the allegation boils down to this: it was submitted that the Court should conclude that Ms Sytema of the Council should have informed Dr Luebbers that West Wetland excavation works were planned in the area of his CHMP and accordingly, the Council should not have started those works until his CHMP 11019 was completed. Further, Ms Sytema should have told Ms Falkenberg and Mr Brigandi the exact location of the artefacts that Dr Luebbers had found prior to the start of works on the McGrath Rd and Wetlands Project. Had she done that, Mr Brigandi could have informed the contractor and protected the artefacts. The failure to do so was due to a lack of co-ordination of the various projects between the different departments within the Council.
However, having considered the detail of the conduct alleged against the Council, and for the reasons already considered under the previous head, principally that the Council had engaged an expert cultural heritage advisor, amongst other things, implicitly to make all necessary inquiries and seek all necessary instructions before giving the advice sought in January 2010, I am unable to conclude that the Council did not take reasonable steps to avoid exposing itself to the relevant harm.
I find that the allegation of contributory negligence on this basis is also not made out.
Conclusion as to Contributory Negligence
As was determined in Astley, a finding of contributory negligence turns on a factual investigation of whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case.[186]
[186]Ibid 14 [29].
I am not satisfied that it was reasonably foreseeable for the Council, in the context of this case, where a well-qualified cultural heritage advisor was appointed to advise it on averting the risk of the very harm which subsequently ensued, that the harm would have occurred.
To my mind, it has not been proven on the balance of probabilities that the Council in the present case contributed to its own loss by failing to take reasonable care in the respects alleged against it.
The conduct relied upon by Terra Culture to establish a failure to take reasonable care, for the purposes of its claim in contributory negligence, centred essentially upon organisational failures alleged against the Council to provide information to the appointed cultural heritage advisor which was in the possession of different officers within the organisation of the Council and failures to sufficiently coordinate management of the three projects then being undertaken so that relevant information would be collated and passed on to any appointed cultural heritage advisor.
This is a case where it was proper for the plaintiff Council to have relied on the defendant heritage advisor to perform its duty. The advice sought was of a very technical nature. Terra Culture had been retained as an expert in the field.
In this respect, I take into account what was said by the High Court in Astley, that a plaintiff may be guilty of contributory negligence even if the ‘very purpose’ of the duty owed by the defendant is to protect the plaintiff’s property.[187]
[187](1999) 197 CLR 1, 11, 14 (Gleeson J, McHugh, Gummow and Hayne JJ).
In any event, applying the second Astley principle, to the effect that a plea of contributory negligence is not available in a contractual claim, and given my findings that the Telephone Conversation of 14 January 2010 was part of a contract, the terms of which were breached by Terra Culture, contributory negligence has no application to the Council’s claim on that basis.
Reliance
Issue 10: Did the Council rely upon:
(a)Terra Culture’s expertise as a company engaged in the business of providing heritage consultancy services in Victoria, and, if found in Issue 1 above, as having the qualifications and experience of a ‘cultural heritage advisor’ under the Aboriginal Heritage Act 2006 (Vic), s 189;
(b) the Second Due Diligence Report; and
(c) the Telephone Discussion,
in proceeding to tender and then enter into a contract for the McGrath Road Activities on 11 May 2010?
The only element of reliance which remains relevant by reason of my findings to this point is the reliance by Council on the Telephone Conversation of 14 January 2010.
It was Ms Falkenberg’s evidence that:
(a)she had limited knowledge in relation to the requirements of the Act at that time and was reliant on professional advice to confirm what these were; and
(b)in January 2010 she needed professional advice to check whether the situation had changed.
For this reason, on hearing of the artefacts discovered on both sides of the road in January 2010, Ms Falkenberg sought further advice from Terra Culture. It is clear from the terms of the email sent by Ms Falkenberg to Dr Webb in January 2010, which asked Terra Culture ‘whether we need to take further action or whether we are still OK to proceed’, the decision as to whether to proceed to advertise for tenders for the McGrath Road Works was dependant on Terra Culture’s advice.
In cross-examination, Ms Falkenberg expressly stated that she was reliant on Dr Webb’s advice for the McGrath Road Project, stating ‘Your Honour, she was the professional. I was reliant on her advice’.[188]
[188]T 286.13-16.
It is therefore clear that the Council relied on:
(a) Terra Culture’s position as a cultural heritage advisor; and
(b)Terra Culture’s advice, including the Second Due Diligence Report and the Telephone Conversation,
in entering into the Works Contract in May 2010.
I am satisfied that the Council relied upon the advice given by Terra Culture in the Telephone Conversation of 14 January 2010, in proceeding to tender and then enter into a contract for the McGrath Road Works on 11 May 2010.
Loss and Damage Caused
Issue 11: Did the Council suffer loss and damage by reason of delay in works caused by the need to obtain a CHMP for parts of the McGrath Rd Activities after the Council had entered into a contract for the McGrath Rd Activities?
Issue 14: Did the breach of duty of care in tort cause the Council to suffer the loss and damage in Issue 11 above?
Issue 16: Did the contravention of s 18 of the Australian Consumer Law (ACL) cause the Council to suffer the loss and damage in Issue 11 above?
Issues 11, 14 and 16 are not dealt with at this stage of the proceeding.
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