Falamaki v Wollongong City Council

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 On 26 June, 2003 Masood Falamaki (the plaintiff) filed a Notice of Motion in which he sought to have his action against Wollongong City Council and a Judge of the Land and Environment Court heard by a jury of twelve. Later he sought leave to amend the Statement of Claim that had been filed in the action. 2 When the motion initially came on for hearing, the plaintiff's solicitor informed the Court that his client no longer pressed his claim to have the action heard by a jury of twelve, but did seek to have it heard by a jury of four. A Further Amended Statement of Claim was filed in Court on 22 September 2003 when the plaintiff sought a determination on two claims, namely whether there should be a trial of his action by a jury and whether he should be permitted to amend his Statement of Claim so as to conform to the document filed in Court on 22 September 2003. 3 Both claims were dealt with in a judgment delivered on 1 October 2003 ([2003] NSWSC 890, unreported). The plaintiff's claim to have the action tried by a jury was dismissed. Substantial parts of the Further Amended Statement of Claim of 22 September 2003 were disallowed, namely the whole of paragraphs 9, 10, 11 14, 15, 16, 17 and 18, and parts of paragraphs 7, 8.1 and 8.2.1. The plaintiff was given leave to effect amendments to what had been paragraph 18 (described in the Further Amended Statement of Claim as "Fourth particular of negligence") within 21 days, so as to plead facts which supported a cause of action of the kind sought to be made in such paragraph.

Details of the factual background to and history of the plaintiff's action, including the discontinuance against the Australia and New Zealand Banking Group Limited as defendants on 5 March 2003, are set out in the judgment referred to in paragraph 3 above and in an earlier judgment (17 September 2003, unreported). A Notice of Discontinuance of the action against the Judge of the Land and Environment was filed on 14 October 2003. 4 No amendments were forthcoming from the plaintiff in respect of paragraph 18 of the Further Amended Statement of Claim of 22 September 2003 and no application for leave to appeal against the decision of 1 October 2003 was filed. 5 Between the date of the decision referred to in paragraph 3 above and the date of the resumed hearing, the solicitors for the defendant sought particulars concerning the allegations that had been contained in paragraphs 16, 17 and 18 of the Further Amended Statement of Claim. These were requested on the basis that the defendant believed that the plaintiff would seek to act on the leave given on 1 October 2003 in relation to paragraph 18. However the solicitor for the plaintiff did not supply such particulars, although on 17 December 2003 he telephoned the solicitor for the defendant to discuss the matter and in the course of the conversation declined to supply such particulars. 6 Because of the exigencies of the list it was not possible for the further hearing of this matter to take place until 8 March 2004. Shortly after the matter was called on for further hearing on that date the solicitor for the plaintiff sought to effect yet another amendment to the Further Amended Statement of Claim. This related to paragraph 9.2 of the Further Amended Statement of Claim and alleged that the report to the defendant referred to in such paragraph was sought by the defendant, and prepared, for purposes that included, but went beyond, the litigation that was on foot in the Land and Environment Court between the plaintiff and the defendant at the material time. The proposed amendment was designed to overcome a problem that the plaintiff saw as confronting him, namely that on the pleadings as they stood to that date, the claim against the defendant was based on alleged deficiencies in the report that the defendant had commissioned from its expert witness for the purposes of the proceedings in the Land and Environment Court. It was indicated in the course of the hearing that the amendment sought on 8 March 2004 should be allowed. 7 Later in the course of argument the solicitor for the plaintiff sought yet another amendment to the Further Amended Statement of Claim. This related to paragraph 17, notwithstanding that such paragraph had been disallowed on 1 October 2003. The amendment consisted of adding to the end of paragraph 17 the following: ", as the defendant expected it would." 8 In my opinion this proposed amendment should not be allowed for each of the following reasons: (i) there is no extant paragraph 17 in the Further Amended Statement of Claim to which the proposed amendment could be added; (ii) the addition that is sought would relevantly add nothing to paragraph 17 of the Further Amended Statement of Claim as it stood before 1 October 2003; (iii) the proposed amendment comes too late to cause me to exercise the discretion in favour of allowing it. 9 There is yet another reason for not allowing the proposed amendment to paragraph 17 of the Further Amended Statement of Claim. It is independent of the reasons referred to in paragraph 8 above. 10 Paragraphs 17 and 18 of the Further Amended Statement of Claim, as they stood prior to 1 October 2003, alleged that the defendant "certified" certain things to the WorkCover authority. It is alleged that they were wrong and that the defendant had no reasonable basis to believe them to be correct. This is alleged to have "caused WorkCover to place a stop-work order" on the plaintiff's building work. The "stop-work order", or more precisely the Prohibition Notice, which ordered the cessation of work was tendered by the plaintiff. It shows that on 13 October 1997 an inspector of the WorkCover Authority, Anthony Cassel, issued Prohibition Notice No. 103576 in respect of the plaintiff's premises at 12 Arter Avenue, Figtree. Up to that date, as was conceded by the plaintiff and is common ground, work on the plaintiff's land had been continuing. 11 The basis of the Prohibition Notice was expressed to be that: "In the opinion of the Inspector: an activity which involves… an immediate risk to the health or safety of any person is occurring… at a work place. The activity giving rise to this opinion is: Working in vicinity of non-protected excavation approximately 6 metres at face. It is the opinion of the Inspector that this activity involves a contravention or likely contravention Section 15 & 17 of the Occupational Health and Safety Act 1983… The issue of the prohibition notice requires that the activity (as described above) cease immediately and not be resumed until the matters giving rise to the risk have been remedied." (Note: italics indicate handwriting). 12 The form of the Prohibition Notice includes a box in which "Reasons for Issue" are to be inserted. In the relevant Notice those reasons were stated as follows: "Excavation of site is not in accordance with, nor retained in accordance with, nor drained in accordance with geotechnical report by Coffey Partners International Pty Ltd, and your letters dated 2.11.95, and 22.10.96 in which these work methods on site were adopted. Danger and risk to human life and limb." (Note: italics indicate handwriting). 13 Before a Prohibition Notice can lawfully be issued under the Occupational Health and Safety Act, 1983 an inspector must form the opinion that there is an activity occurring at a place of work which involves or will involve an immediate risk to the health or safety of any person. When an inspector has formed such a view he is empowered to issue a Prohibition Notice to the person who has, or may be reasonably presumed to have, control over the relevant activity (s 31S). The effect of such a Notice is to prohibit the carrying on of the activity until the matters which give rise to the risk are remedied. The measures to be taken in this regard are required to be specified in the Notice. The Occupational Health and Safety Act 1983 (the 1983 Act) then provides for penalties in the event that the person on whom the Prohibition Notice is served fails to comply with it (s 31S(3)). 14 The 1983 Act mandates that the Notice state the opinion of the Inspector, the reasons for that opinion, the activity in respect of which the opinion is held and, where the inspector is of opinion that the activity involves a contravention of any of the provisions of the 1983 Act, to specify the provision and state the reasons for the opinion (s 31S(2)). 15 Section 31S of the 1983 Act confers a discretionary power on a WorkCover inspector. Before that power can be exercised the inspector must make a judgment as to whether the activity at the relevant workplace involves or will involve an immediate risk to the health or safety of a person (Re ANI Corporation Ltd T/as ANI Engineering (1987) 24 IR 119 at 131) and to form an opinion as to the matters on which the issue of a prohibition notice is predicated. These are independent acts on the part of the relevant public official. They are not acts for which the defendant is vicariously liable. Although the 1983 Act was repealed by the Occupational Health and Safety Act 2000 (s 139, Schedule 1), it was in force at all times material to the events on which the plaintiff relies in the present action. 16 The form of the Prohibition Notice issued by Inspector Cassel conformed to the requirements of the 1983 Act. The maxim omnia praesumuntur rite et solenniter esse acta (all acts are presumed to have been done rightly and regularly) applies. In Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 McHugh JA (as he then was) said in relation to the maxim: "The natural home of the maxim is public law. Where a public official or authority purports to exercise a power or to do an act in the course of its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled… And a council which must form an opinion as to whether there will be any detriment upon the granting of a planning permit is presumed to have formed the opinion before granting the permit: Pearce v City of Coburg (1973) VR 583" (at 164) and: "A particular application of the maxim which is relevant to this case is stated in Broom's Legal Maxims 10th ed (1939) at 642 as follows: '… where acts are of an official nature, or require the concurrence of official persons, a presumption arises in favour of their due execution. In these cases the ordinary rule is omnia praesumuntur rite et solenniter esse acta donec probetur in contrarium - every thing is presumed to be rightly and duly performed until the contrary is shown.'" (at 164)

See also Cassell v The Queen (2000) 201 CLR 189 at 198 para 35; Ousley v The Queen (1997-1998) 192 CLR 69 at 89; Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (1985) 184 CLR 620 at 629; Halsbury's Laws of England 4th ed Vol 17 para 118; Broom's Legal Maxims 10th ed (1939) 640-648. 17 The issue of the Prohibition Notice was the act of a public official charged by statute with performing a particular function for the purposes of ensuring health and safety. It is presumed, in the absence of proof to the contrary, that the public official acted within the limits of his authority and did so with honesty and proper discretion (Minister for Natural Resources v New South Wales Aboriginal Land Council (supra); Derby v Bury Improvement Commissioners (1869) LR 4 Ex 222 at 226 per Willes, Keating, Hannen, Brett and Hayes JJ; Davies v Pratt (1855) 17 CB 183 at 188, 139 ER 1039 at 1041 per Jervis CJ; Price v Humphries (1958) 2 QB 353 at 358 per Devlin J, discussed in Verdes Estates Pty Ltd v Carbon (1990-1991) 72 LGRA 414 at 419-420 by Malcolm CJ). Furthermore, where a public official is required to do an act, the failure to do which could render him guilty of a criminal neglect of duty, it is presumed that he has duly performed such duty unless the contrary be shown (Slade v Drake Hob. 295 at 297, 80 ER 439 at 441; Demerara and its Dependencies 1 Dods. R 263 at 266, 165 ER 1305 at 1306) 18 The defendant sought to avoid the consequences that flow from the above presumption by pleading that the action of the defendant in "certifying" certain things to WorkCover "caused" WorkCover to place a stop-work order on the building work. This allegation, as expanded in argument, is, in my view, no more than an assertion that the notification by the defendant of the situation to the WorkCover Authority was the trigger that gave rise to, i.e. caused, WorkCover to exercise its statutory functions under the 1983 Act. In an endeavour to show that the matter went beyond this, the plaintiff tendered and relied on a letter of 15 October 1997 from the defendant to an owner or occupier of land that was near the plaintiff's land. That letter stated that the defendant Council had "been in contact with the WorkCover Authority … drawing their attention to various safety concerns. As a result, that Authority has served a number of notices on the owner/builder, one of which requires that building work on the site cease." (italics added) On any reasonable construction this letter does no more than state that the situation at the plaintiff's land had been drawn to the attention of the relevant authority and that as a result of its attention being so drawn such authority took action in accordance with the relevant statute. 19 There is nothing in the pleadings that asserts that the defendant acted other than in good faith for the purposes of executing the provisions of the Local Government Act 1993 in drawing the attention of the WorkCover Authority to the situation on the plaintiff's land or that it caused the WorkCover inspector to act other than properly in the performance of the duties cast on him by the 1983 Act. 20 It was argued on behalf of the plaintiff that there may have been a practice that any notification by a council to the WorkCover Authority was taken at face value and acted on without the Authority or its inspectors forming its or their own opinion in relation to a situation involving risk to the health or safety to a person at a place of work. The argument advanced is, and was conceded to be, pure speculation. There is nothing to suggest that this speculation is based in fact and certainly nothing to this effect has been pleaded. 21 It was further submitted on behalf of the plaintiff that it is of no help to the defendant if the WorkCover inspector does not carry out his function or form his opinion in accordance with law. But no such case is pleaded. Furthermore even if an inspector in a particular case did not carry out his function or form his opinion in accordance with law, it would be necessary in a case against a third party to plead and ultimately to prove that any such failure on the part of the inspector was as a result of actions taken by the third party that were intended to bring about such a consequence. Again nothing of such a kind has been pleaded. 22 It should be remembered in relation to the plaintiff's claim based on the actions of the defendant in bringing the situation at the plaintiff's land to the attention of WorkCover that there was no injunction in favour of, or other restraint by, the defendant that prevented the plaintiff from proceeding with work on his land. As indicated above, this was conceded by the plaintiff and is common ground. It was not until Inspector Cassel issued the Prohibition Notice that work ceased on the plaintiff's land. There is thus no nexus between the actions of the defendant in informing WorkCover of the situation on the plaintiff's land and the cessation of work on such land that is at the heart of the plaintiff's claim for damages because the exercise of a statutory discretion by the WorkCover inspector was interposed between the two. The true analogy is that of the citizen who informs the police of observations that he or she has made that are suggestive of criminal conduct and the subsequent arrest of the person whose activities have been so drawn to attention. 23 For the foregoing additional reasons paragraphs 16, 17 and 18 of the Further Amended Statement of Claim filed on 22 September 2003 should be disallowed. However, notwithstanding the disallowance of paragraphs 16,17 and 18 on 1 October 2003, the solicitor for the plaintiff filed another Further Amended Statement of Claim on 22 October 2003. It wrongly included paragraphs numbered 16,17 and 18 that were in essentially the same form as those disallowed on 1 October 2003. The defendant has filed a motion for them to be struck out. They should be struck out, as they should not have been included in the document filed on 22 October 2003. In view of the absence of amendment to the Fourth particular of negligence in the Further Amended Statement of Claim of 22 September 2003 within 21 days of 1 October 2003, such a consequence flows from the judgment of 1 October 2003. 24 For the foregoing reasons I make the following orders:

A. As to the plaintiff's Notice of Motion: (i) Amendment to paragraph 9.2 of the Further Amended Statement of Claim, as advanced on 8 March 2004 allowed. (ii) Amendment to paragraph 17 of the Further Amended Statement of Claim as advanced on 8 March 2004 refused. (iii) The plaintiff is to pay half the costs incurred on its Notice of Motion since 1 October 2003. B. As to the defendant's Notice of Motion: (i) Paragraphs 16, 17 and 18 of the Further Amended Statement of Claim filed on 22 October 2003 are struck out. (ii) The plaintiff is to pay the costs of defendant's Motion. (iii) The plaintiff is to file a Further Amended Statement of Claim conforming with these orders within 28 days.

Last Modified: 03/16/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.