(6) Ms Lee's case against the Council
187In broad terms Ms Lee contended that the Council was negligent in "approv[ing] the erection of a car parking building which was not fit for its purpose and approved and allowed the use of a non-compliant metal barrier as edge protection throughout the car park". On its face, a case so framed appears straightforward. However it is complicated by four factors. The first is that most of the relevant events surrounding the various approvals given by the Council occurred between 1985 and 1991. The second is that the statutory provisions governing the exercise of the Council's functions changed during that period. The third is that the Council contends that its documentary record is incomplete, yet there is sharp disagreement between the parties concerning what inferences should be drawn from the absence of documents in the Council's records. The fourth is that the Council complains about the adequacy and scope of Ms Lee's pleading against it. In light of those complaints, I address the case against the Council by reference to the pleaded particulars of negligence.
(a) Statutory powers and functions of the Council
188The starting point is to address the statutory context in which the Council exercised five functions during the relevant period, namely the granting of development approvals, the granting of building approvals, the enforcement of the statutory regime, the conduct of inspections and the licensing of car parks.
(i) Environmental Planning and Assessment Act 1979: Development approvals
189At all material times, the Council's power to determine a development application was conferred by s 91 of the Environmental Planning and Assessment Act 1979 (NSW) (the "EPA Act"). The approval power included the power to impose conditions (s 91(1)(a)). Section 90 specified the matters to be considered in granting development approvals. They included such matters as compliance with environmental planning instruments (s 90(1)(a)) and the effect of the development on the "landscape or scenic quality" (s 90(1)(c)). Mr Miller SC's written submissions correctly described these factors as "town planning considerations".
(ii) Local Government Act 1919: Regulation of building work
190At all relevant times from 1981 onwards the regulation of building work was governed by Part XI of the LGA 1919. Section 305 vested the Council with power to control and regulate the erection of buildings within its municipality. Section 306(1) prohibited the erection of buildings in contravention of the LGA 1919 or the ordinances made under it.
191Division 4 of Part XI was entitled "Applications, Plans and Specifications". Within that Division, s 310 provided:
"Subject to the provisions of this Act and of any ordinance every building hereafter erected in the area shall be erected to the satisfaction of the council:
(a) in conformity with this Act and the ordinances; and
(b) in conformity with the application, plans and specifications in respect of which the council has given its approval for the erection of the building." (emphasis added)
192Thus s 310 engaged the requirements of the Ordinances, including Ordinance 70. I discuss the role of s 310 in relation to council inspections below. At this point it suffices to state that, unlike s 311, this section was not directed to granting approvals beforehand, but to a council reaching a state of satisfaction about the building that was being or had been erected.
193Also within Division 4 was s 311. As at 1981 s 311(1) prohibited the erection or alteration of a building unless, inter alia, a council approval was obtained beforehand. The balance of that subsection and the section are not presently relevant. With effect from 2 May 1986 they were repealed and replaced by a s 311 that simply provided that "[a] building shall not be erected unless the approval of the council is obtained therefor beforehand" (Local Government (Building and Construction Industry Long Service Payments) Amendment Act 1986 (NSW) (No 20 of 1986)). With effect from 28 May 1987, s 311 was further amended by the addition of s 311(2) which required a council to keep a register of approvals for the erection of buildings given after the subsection commenced, and s 311(3) which made provision for their public inspection (Statute Law (Miscellaneous Provisions) (No 1) 1987 (NSW) (No 48 of 1987)).
194Section 312(1) enabled "the builder or owner or his architect or structural engineer" to apply for "approval of the Council", being approval under s 311. Such applications were required to be lodged with "two copies of such plans and specifications as may be prescribed" (s 312(1)(b)). Ordinance 70 prescribed what was required (see [207] ff below).
195Section 313(1) provided that where a consent was required under the EPA Act for a development application ("DA"), as in this case, then in respect of an application for approval of the erection of the building (under s 311(1)), a council was obliged to consider, inter alia, the design, materials, stability, building line and height of the building.
196Critically, s 314(1) provided:
"314. (1) The council shall consider each application and the plans and specifications accompanying it, and may subject to the provisions of this Act approve, or approve subject to conditions, or disapprove thereof: Provided that -
(a) the application plans and specifications may at any time be modified in such manner or respects as the council may approve; and
(b) the council shall not approve unless it is satisfied that a building erected in accordance with the application plans and specifications, or any modifications thereof which it approves, would be in accordance with the provisions of this Act and the ordinances and the Environmental Planning and Assessment Act, 1979, and any environment planning instrument; and
(c) the council shall not approve an application for approval of the erection of a residential flat building which would not conform to one of the standards prescribed for residential flat buildings in Schedule 7." (emphasis added)
197Four matters should be noted about this section. First it conferred on a council two powers, namely the power to grant an approval of a building application and accompanying plans and specifications, and a power to approve modifications to the application and its accompanying plans and specifications (s 314(1) and s 314(1)(a)). Second, the form of approval granted under this section was that referred to in s 311, namely the power to grant approval "beforehand" to erect a building. Third, both of the powers could not be exercised unless the relevant council was satisfied that a building erected in accordance with the relevant plans would conform with, inter alia, Ordinance 70. Fourth, the power could be exercised subject to conditions.
198Section 314(1)(c) was repealed with effect from 4 December 1986 (Local Government (Residential Flat Buildings) Amendment Act 1986 (NSW) (No 131 of 1986)), s 4 and Sch 7. It is of no moment. However, with effect from 1 September 1990 the operation of s 314(1) was qualified by the inclusion of s 314(1A) and s 314(1AA), which provided:
"Section 314 (Duty of council) -
After section 314(1), insert:
(1A) Nothing in this Act or any other law precludes the council from being satisfied as to the compliance of the building with a provision of -
(a) an ordinance; or
(b) a publication, the provisions of which have been applied, adopted or incorporated by an ordinance,
which is prescribed for the purposes of this subsection by the acceptance of a prescribed certificate from a person having prescribed qualifications certifying that the building complies with the provision.
(1AA) A council shall not incur any liability in respect of -
(a) any advice furnished in good faith by the council in reliance on a prescribed certificate referred to in subsection (1A); or
(b) anything done or omitted to be done in good faith by the council in reliance on a matter certified in a prescribed certificate referred to in subsection (1A) (including the granting or refusal of an application for the erection of a building)."
(See Local Government (Building Regulation) Amendment Act 1989 (NSW) (No 80 of 1989), Government Gazette No 82 of 29 June 1990 at 5394.)
199The introduction of this provision post-dates most of the relevant events in this case. However, based on the evidence of Mr Glanville summarised below, it appears that it reflected a process already in place at the Council of relying on engineering certificates (although not necessarily a certificate concerning the building as a whole). Otherwise, the location of s 314(1A) is curious. Such certificates were clearly directed to the building as constructed. However, s 314(1) was not directed to a constructed building. It concerned the approval of plans, etc, before a building was constructed. It is difficult to envisage how s 314(1A) could have been of any relevance to the Council in exercising the powers conferred by s 314(1), although it may be that Council could have approved plans in the knowledge that certifications of the kind provided for in s 314(1A) would be provided or on condition that that occur. That said, s 314(1A) appears to have identified a basis upon which the Council could have reached the state of satisfaction referred to in s 310.
200Section 316 dealt with occupation. It provided:
"316. (1) The council may either generally or in any particular case prohibit the use or occupation, without its permission, of any building until it has been completed in accordance with the approved plans and specifications.
(2) Application for permission under this section shall be made as prescribed.
(3) The council may grant or refuse permission, or may grant permission subject to conditions, as it may deem proper in the circumstances of the case."
201It was not suggested that the Council issued any general or particular prohibition in respect of the use or occupation of buildings within its area of responsibility that had not been completed in accordance with approved plans and specifications. Otherwise it should be noted that the power conferred by s 316 was not enlivened by a building that had been erected contrary to Ordinance 70, unless that had also the consequence that the building was not built in "accordance with the approved plans and specifications". As I will explain, in this case the Council approved various plans and specifications, but always subject to compliance with Ordinance 70. In my view the effect of that condition was to enliven the power conferred by s 316 if the building as constructed did not comply with Ordinance 70. A building that did not comply with such a condition attaching to the approved plans would not have been completed "in accordance with" those plans.
202Section 317(1) rendered any person who did or caused to be done work in connection with the erection of a building without approval liable to a penalty.
203Division 4D dealt with Building Certificates. With effect from 1 January 1988. (Local Government (Building Certificates) Amendment Act 1986 (NSW) (No 157 of 1986), Government Gazette No 136 of 28 August 1987 at 4807.) Section 317AB(1) enabled various classes of people, including an owner, to apply for such a certificate. Section 317AD required a council to inspect the building as soon as practicable after it was applied for. The form of certificate that was issued was that specified by s 317AE(2), which provided:
"317AE Determination of application. (1) The council shall determine an application for a building certificate by issuing or by refusing to issue a building certificate to the applicant.
(2) The council shall issue a building certificate if, following an inspection under section 317AD, it appears that at the date of the inspection -
(a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council -
(i) to make an order under section 317B in relation to the building or part;
(ii) to take proceedings for an order or injunction requiring the demolition, alteration, addition or rebuilding of or to the building or part;
(iii) to take proceedings in relation to any encroachment by the building or part onto land vested in or under the control of the council; or
(b) there is such a matter but, in the circumstances, the council does not propose to do any of the things referred to in paragraph (a)(i), (ii) or (iii).
(3) If the council refuses to issue a building certificate, it shall inform the applicant, by notice in writing, of its decision and of the reasons for it.
(4) The reasons shall be sufficiently detailed to inform the applicant of the work that needs to be done to enable the council to issue a building certificate.
(5) The council shall not refuse to issue or delay the issue of a building certificate by virtue of the existence of a matter which would not entitle the council to do any of the things referred to in subsection (2)(a)(i), (ii) or (iii).
(6) Nothing in this section prevents the council from informing the applicant of the work that would need to be done before the council could issue a building certificate or from deferring its determination of the application until the applicant has had an opportunity to do that work."
204Section 317AE(2)(a) refers to s 317B of the LGA 1919. Section 317B(1) of the LGA 1919 empowered a council to order the destruction or demolition of buildings in a "dilapidated or unsightly" condition. Section 317B(1A) conferred a similar power in respect of buildings constructed without council approval being obtained beforehand.
205The effect of a certificate issued under s 317AE(2) was to merely state that certain forms of regulatory actions would not be taken. Section 317AG gave statutory effect to the statement by precluding a council from taking any of the actions specified in s 317AE(2) in respect of anything existing or occurring before the date of inspection or within seven years after that date that arose from deterioration of the building or part of it "solely by fair wear and tear". However, s 317AG(3) provided:
"(3) The issue of a building certificate does not prevent -
(a) the taking of proceedings against any person under section 306, 310, 311 or 317; or
(b) the making of an order under s 317D."
206Section 317D concerned compliance with fire regulations. The other provisions have already been described. Presumably the reference to proceedings "under section 306, 310 ... or 311" means proceedings in respect of a contravention of those provisions. The exclusion of those provisions is somewhat odd in that as a matter of practice it appears that the Council considered compliance issues raised by those provisions when conducting an inspection prior to the issue of a certificate in accordance with s 317AE.
(iii) Ordinance 70: Regulation of building work
207Each of ss 306, 310, 314, and perhaps s 317 and s 317AE, direct attention to the provisions of any relevant ordinance addressing the erection of buildings, which was relevantly Ordinance 70. Five features of Ordinance 70 should be noted.
208First, clause 4.1 of Ordinance 70 created an offence of using or occupying a building which had not been completed in accordance with the approved plans and specifications for the building. Similarly clause 4.2 created an offence of erecting a building in contravention of the Ordinance.
209Second, clause 3.3 of Ordinance 70 made provision for an inspection. It and clause 3.4(1) provided:
3.3 (1) The person by or in consequence of whose order a building is being erected shall give notice in writing to the Council -
(a) forthwith upon completion of any unoccupied building; and
(b) before permitting any person to use or occupy any uncompleted building.
(2) Upon receipt of a notice referred to in subclause (1) the Council shall cause an inspection to be made by its proper servant. Such servant shall inspect and report to the Council whether or not the building has been erected in accordance with this Ordinance and without material deviation from the approved plans and specifications. The servant's report shall not be read to permit any alteration whatever in the position of the building on the site.
(3) The report referred to in subclause (2) shall not be deemed to be evidence (in the event of any prosecution by the Council) that this Ordinance has been complied with.
3.4 (1) Application for permission to use or occupy a building which has not been completed in accordance with the approved plans and specifications shall be made in writing to the Council. The Council may grant permission subject to such conditions as it may deem proper in the circumstances and without prejudice to the foregoing may require that the building shall be completed in accordance with the approved plans and specifications within a period to be fixed by the Council." (emphasis added)
210Third, Ordinance 70 created a system of building classifications and the issue of so-called classification certificates for buildings (see LGA 1919 s 319(e)). As part of that system, clause 6.3 provided:
"6.3 (1) Where, after the commencement of this Ordinance, approval is given for the erection of a building, the Council shall -
(a) on completion of the building; or
(b) where it approves, pursuant to Part 3, the occupation of an uncompleted building,
prepare a certificate of classification, in duplicate, in or to the effect of Form 1.
(2) The original of the certificate shall be issued to the person on whose behalf the building was erected.
(3) The duplicate shall be retained in the Council's office and shall be open to inspection free of charge by any person during the normal office hours of the Council.
(4) This clause does not apply to a Class 1 or Class X building."
211Clause 6.4 provided that the certificate was required to state the class or classes of building for which the building had been designed, constructed or adapted to be used. Clause 6.1 identified various classes. Class III included hotels and class VII included "public garages".
212Clause 6.6(3) provided:
"6.6. (3) A building erected after the commencement of this Ordinance shall not be used for a purpose -
(a) not specified in the certificate of classification; or
(b) for which it is required that a certificate of classification be issued,
unless the building complies with the requirements of the Act and Ordinances applicable to the new purpose and proposed use of the building, or the new purpose and the proposed use of the building have been approved by resolution of the Council under subclause (6)."
213Although it is not clear, in respect of a building for which a certificate of classification is required, this clause appears to preclude the use of that building without a classification certificate being issued.
214Another matter that is not clear is whether a council was obliged to issue a classification certificate even if it considered the building had not been completed in accordance with the approved plans and specifications, or was otherwise non-compliant with Ordinance 70. The concluding words of clause 6.6(3) appear to assume that the relevant council had already concluded the building was so compliant in respect of the uses identified in any existing classification certificate. What is less clear is how the obligation to issue a certificate in clause 6.3 is conditioned on such compliance. The better view is that clause 6.3 needs to be read with clause 3.3 and clause 3.4 so that "completion" in clause 6.3 meant completed in accordance with the approved plans and specifications, and otherwise to the satisfaction of the relevant council that it complied with the Act and the Ordinances. Such a construction is consistent with s 310. The Council did not submit to the contrary.
215Fourth, Part 8 of Ordinance 70 prescribed the matters to be included in a building application (see [194]). Thus the "specifications" of the building that were required to be lodged had to "describe the construction and materials of which the building is to be built" (cl 8.1(5)(a)). Also, proponents were required to provide two copies of a "plan and specification of any fences ... to be erected on the allotment or on the boundaries of the allotment" (cl 8.1(1)(b)), and such specifications were required to "describe in some sufficient manner the height, materials, stability, design and position or proposed position thereof" (cl 8.1(7)(a)).
216Clause 8.2 of Ordinance 70 provided:
"8.2 Where an application for the approval of plans and specifications of a building necessitates the submission of a structural engineer's drawings or other engineering details prepared by a structural engineer, such drawings or details may be omitted from the plans and specifications at the time of lodging the application. If the application is approved by the Council, such approval shall be subject to the following conditions -
(a) work on the footings shall not be commenced until full engineering details relating thereto have been submitted to and approved by the Council; and
(b) no stage of the building work other than footings shall be commenced until full engineering details relating to that stage of the building work and such other stages as may be specified by the Council have been submitted to and approved by the Council."
217This provision modified the need to supply structural diagrams certified by an engineer at the outset. It thus allowed the staged submission of structural specifications on a building.
218Fifth, Group VI of Ordinance 70 was entitled "Structural Provisions". It was subdivided into sixteen parts, each of which addressed a different aspect of building construction including foundations (Part 32) and footings (Part 33). The third part was entitled "Design for Dead and Other Loads". Within that Part, clause 30.1 provided, inter alia:
"(1) Except as permitted by subclause (2), the design of every building shall comply with the relevant provisions of Australian Standard 1170 'SAA Loading Code' -
(a) Part 1 'Dead and Live Loads', except rule 1.5 thereof; and
(b) Part 2 'Wind Forces'."
(The balance of the subclause conferred on the Council various powers to allow exemption and exclusions from subclause (1) which are of no present relevance.)
219Thus, via clause 30.1, the relevant provisions of the 1981 Standard formed part of the structural requirements for the car park imposed by Ordinance 70. I have already discussed the terms of the 1981 Standard and its application to the perimeter railing. It is further discussed below.
220At this point it suffices to note that it is not clear that clause 8.2 of Ordinance 70 was engaged in respect of the construction of the railing. The determination of whether the exterior railing satisfied the loading requirements of the 1981 Standard was quintessentially an assessment for an engineer. This is confirmed by the evidence of Mr Glanville discussed below. However it is not clear whether, of itself, that meant that an application for the approval of plans and specifications "necessitate[d]" the submissions of structural engineer's drawings or other engineering details prior to the work for the purpose of clause 8.2. This is so because, unlike say footings, this was a structural component of the building that could be examined towards or after the completion of the building, and thus could be the subject of an engineering certificate that the work that was done complied with clause 30.1.
(iv) Enforcement
221The above discussion has already touched upon some aspects of the enforcement of the various statutory obligations including s 316, s 317, 317B and the offences created by clauses 4.1 and 4.2 of Ordinance 70. Further, s 632(1) of the LGA 1919 created an offence in respect of: failing to comply with any direction given effect to by the LGA 1919 or a council authorised under the LGA 1919 to give such a direction; or doing something which was forbidden by the LGA 1919 or by a council authorised under the LGA 1919 to forbid some activity.
222As is to be expected councils were conferred with authority to bring prosecution and proceedings to recover penalties (ss 586, 591, 615, 632(2)).
223Further, during 1987 to 1991 the Land and Environment Court was vested with Class 4 jurisdiction in respect of proceedings under Part XI of the LGA 1919 (former s 20(1) of the Land and Environment Court Act 1979). This enabled a council to bring proceedings for an injunction to enforce any obligation imposed by Part XI or Ordinance 70 on another party such as builders or developers or those occupying or using a building contrary to a direction issued under s 316. However, during that period there were no "open standing" provisions of the kind now found in s 674 of the Local Government Act 1993 (NSW). Thus the common law principles concerning standing governed the question whether a private citizen could bring proceedings to enforce an obligation under Part XI or Ordinance 70, including an obligation imposed on a council.
(v) Inspections
224I have already noted that s 317AD required an inspection before a council could issue a certificate under s 317AE of the LGA 1919, and that clause 3.3 of Ordinance 70 also made provision for an inspection.
225Further, s 310 of the LGA 1919 appears to have contemplated, if not necessarily required, inspections of building work to be undertaken by the Council. In Sutherland Shire Council v Heyman [1985] HCA 41; 157 CLR 424 at 435 ("Sutherland Shire") Gibbs CJ held that s 310 could not be construed as imposing a duty upon a council to make any inspection at any particular stage of the work being constructed. However, Mason J stated at 455 to 456:
"Independently of cl 83, the effect of the general scheme of regulation contained in Pt XI and the ordinances is to impose on a council a duty to satisfy itself that a building is erected in conformity with the Act and the ordinances (O'Carroll v Potter (1928) 29 SR (NSW) 393 at 398), and this necessarily extends to the matters mentioned in para (b) of s 310. The words "to the satisfaction of the council" in s 310 indicate that it is for the council in the exercise of its discretion to determine what steps it will take in order to satisfy itself that the relevant requirements have been complied with in relation to the erection of the building. But it is difficult to understand how a council could discharge its responsibility without making inspections. Indeed, the evidence demonstrates that the appellant adopted the practice of making inspections of buildings in course of erection according to a procedure the object of which was to ensure, though it may not have been achieved in this case, that the foundations were checked. We should proceed therefore on the footing that the making of an inspection or inspections of a building in course of erection was a necessary element in the performance by a council of its duty to satisfy itself of the matters already mentioned." (emphasis added)
226The reference to clause 83 in this extract is to clause 83 of Ordinance 71, which does not appear to have been relevantly different to clause 3.3 of Ordinance 70 set out above (see Sutherland Shire at 455).
227This passage from Sutherland Shire does not elevate the role of an inspection to an end in itself. The function of the inspection contemplated in this passage is part of the process by which, inter alia, the council forms a state of satisfaction for the purposes of s 310 of the LGA 1919, As stated by Deane J in Sutherland Shire (at 503):
"The fact that a third party is careless in not observing negligent conduct by another may mean that a failure or omission to protect, warn or rescue the person put at risk by that negligent conduct is itself careless. It does not alter the fact that the relevant operative act or omission is the failure or omission to protect, warn or rescue and not the mere failure to observe which will be relevantly operative only to the extent that it is reflected in the failure or omission to protect, warn or rescue."
228It follows that what must be identified is the relevance of such an inspection to either an exercise of a power by a council or the non-exercise of a power. Section 317AD does not specify the scope of the inspection, although logically it would be directed to the matters in s 317AE(2). Section 317AG(3) would appear to limit the scope of what was necessarily required by such an inspection, although, as I have said, as a practical matter it appears that inspections undertaken by the Council addressed compliance with Ordinance 70.
229In the case of an inspection under clause 3.3(2) it follows from [214] above that an adverse report following such an inspection would warrant the refusal of a classification certificate.
230In its submissions the Council queried whether an adverse report prepared following an inspection under clause 3.3(2) (or s 317AD) should or might lead to a Council taking action under s 316. This may be so, especially given the conclusion in [201] above. It should or might also warrant other form of regulatory action to in effect require compliance with s 306 and s 310.
231At a higher level of abstraction it can be seen that the statutory scheme provided councils with sufficient powers to inspect completed buildings and either permit or prevent their use and occupation depending on a council's satisfaction that the building complied with the Act, the Ordinances (including Ordinance 70), and the approved plans and specifications.
(vi) Parking approval: Ordinance 34B
232Ordinance 34B concerned parking stations. Clause 9(1)(a) precluded any person from conducting or operating a parking station in the City of Sydney after 1 January 1965 unless they were licensed to do so. Clause 3(1) enabled persons to apply to conduct or operate a parking station. Such an application was required to be accompanied by a plan and particulars as to such matters at the hours of operation, the number of vehicles, the means of ingress and egress and the facilities available to vehicles while they await access to the parking station. Clause 3(2) enabled the Council to treat an application for (building) approval to erect a car park as an application for a licence to operate a car park.
233Clause 3(4) conferred on the Council a power to grant an application. Clause 3(3)(a) obliged the Council to consult with the (then) "Traffic Authority of New South Wales. Clause 3(3)(b) obliged the Council to "take into consideration" six matters when determining such an application. Four of those matters were: the views of the Traffic Authority, the effect of the parking station on traffic movement, whether the number of vehicles proposed to be accommodated was excessive, and the adequacy of the ventilation system. The other matters were:
"(iv) whether the means of ingress and egress and means of movement provided or to be provided within the parking station [were] satisfactory;
...
(vi) any other requirement by or under this Ordinance and any requirement relating to the fitness of the premise for the purposes of a parking station."
234Mr Cavanagh SC submitted that the determination of applications for licensing as a parking station also required consideration be given to the requirements of Ordinance 70, including the 1981 Standard. I do not agree. The "requirements" relating to the fitness of the premises are a reference to those parts of Ordinance 34B that impose such conditions. Thus, for example, clause 10(4) of Ordinance 34B required all the ramps, parking spaces and exit driveways to be surfaced with bitumen, tar, concrete or some other material approved by the Council. Clause 10(5) required the land to be used as a parking station to be fenced at a height determined by the Council and using materials approved by the Council. There was no requirement that fencing comply with the load requirements of the 1981 Standard. Ordinance 34B operates on the premise that the requirements of Ordinance 70 have already been addressed.
235Mr Cavanagh SC also appeared to submit that the various powers conferred on the Council, including s 314, in relation to the approval of building applications required the Council to address Ordinance 34B. I doubt that is the case. They occupy different spheres of operation. Section 314 and the surrounding sections were concerned with the erection and construction of buildings. Ordinance 34B was concerned with the operation and use of an already constructed building as a car park.
(b) The railing and compliance with the 1981 Standard
236As noted, clause 30.1 of Ordinance 70 required compliance with the 1981 Standard, including clause 3.3. The relevance of compliance with Ordinance 70 including clause 30.1 to the proper performance by the Council of its functions has just been explained.
237Further I have already recounted the opinions of the engineers that the railing as installed did not comply with the 1981 Standard. In their joint session the three engineers were asked to expand upon this conclusion by considering the position of an engineer during the period of the car park's approval and construction:
"HIS HONOUR: We are not asking about what in fact happened, Mr Taylor, vis-a-vis council. We are asking not the position of the council, just an engineer. What would an engineer, if they were asked to look at this railing in 1986 or 97 and asked whether to certify its compliance with [the 1981 Standard], a competent, or the range of competent engineers?
WITNESS TAYLOR: I would say, as I understand the question, that the barrier appears to be incomplete. The evidence from the photographs that were taken shortly after the accident seems to indicate that the barrier was never fully completed.
CAVANAGH: Does that mean, in your opinion, no competent engineer would have certified it? And I won't repeat the whole question.
MILLER: I object.
WITNESS TAYLOR: Yes, that's right.
MILLER: I object, but I note your Honour's ruling
WITNESS TAYLOR: No competent engineer would have certified it in that condition.
CAVANAGH: Mr Alden?
WITNESS ALDEN: Yes. I think I have said previously that, looking at those photos, there are obvious deficiencies which go to the safety of the railing, and so I don't think a competent engineer could have certified that as structurally adequate.
...
WITNESS JAMIESON: Any competent engineer would be very aware of the strength and nature of crash barriers and would be very aware of the potential on the edge of a slab and would be very aware of the flimsy nature of the handrail." (emphasis added)
238Although these answers incorporate reference to the state of the railing as depicted in the photographs, having heard that evidence I was and am satisfied that these answers were directed to assessing the impact resistance of the railing as installed. It is notable, however that these engineers were not asked to go further and state, firstly, what any structural diagrams of such a railing would necessarily have depicted, and second whether it would be evident on the face of any such drawing that the railing did not comply with the 1981 Standard.
239As noted, the Council submitted that the 1981 Standard suggested or was capable of suggesting that the level of resistance presented by a wheel stop could be taken into account as part of the calculation of the impact resistance of the barrier in question. The Council also submitted that there was evidence that, in the past, at least some engineers, councils or developers may have interpreted the 1981 Standard in that manner. I reject all of these contentions.
240As a matter of construction, given that clause 3.3 contemplated that the height at which vehicle impact forces would act was 450mm or above, I cannot see how the clause could be interpreted to accommodate resistance by wheel stops.
241None of the three engineers accepted that there was any ambiguity in this aspect of the 1981 Standard. More importantly, none of them were aware of any other engineer who had interpreted clause 3.3 in the manner suggested. The curriculum vitae for each of the three engineers indicated they were all engaged in practice in the 1980s. The three engineers were cross-examined on whether they were aware of car parks constructed in the 1980's that used wheel stops as a form of load resistance. Mr Alden was not aware of any. The high point for the Council in the engineers' evidence was that Mr Jamieson recalled a car park in Bondi Junction that had only used wheel stops on some internal ramps (and not on any exterior barriers).
242In part of its submissions dealing with s 43A of the CLA the Council pointed to the subsequent versions of the 1981 Standard which deleted the notation set out in [39] as somehow demonstrating that there were differing views as to the relevance of a wheel stop to the calculation of the load resistance of a barrier. As stated, none of the engineers accepted that there was any such ambiguity or that the subsequent revisions of the 1981 Standard which removed the notation was somehow undertaken in response to a concern that the 1981 Standard was ambiguous. There is nothing in the drafting history that the Court was taken to which supports that.
243This part of the Council's written submissions also contended as follows:
"174. Council was plainly not the only council in NSW with mutli-storey car parks erected in the period 1971 to 1989 that (by reference to the Note to cl.3.3 of AS1170.1 - 1971 and 1981) relied on kerbs (wheel stops) to restrain vehicle loads.
175. So much is plain from the report to Coffs Harbour Council of its Castle Street car park (Ex4D-7), and the report to North Sydney Council concerning four of its car parks (EX4D-8). As the owners of those car parks (which fact is plain from each of the reports) those councils would have responsibility for both their design, and the assessment and approval of those designs."
244The report of Coffs Harbour Council referred to in this submission was part of the agenda for the meeting of that Council on 14 February 2013. The report describes action taken in response to a planning circular issued by the Department of Planning concerning "pedestrian and vehicular safety barriers built before 1989". The report describes the undertaking of an examination of the exterior barrier of a Council owned car park, which found that one part of one of the walls did not comply with the applicable standard. Certain rectification work was proposed. The report also noted that some barriers between car park levels did not meet the relevant standard. It included a picture of a vehicle that had "over-rode the concrete wheel stops and become jammed between floors". There is nothing in this report that suggests that the various instances of non-compliance that were detected were the result of either a developer, an engineer or members of Council staff misconstruing the 1981 Standard in a manner that involved the calculation of resistance load accounting for the presence of wheel stops. The report of North Sydney Council referred to in [175] of the above extract also does not suggest that any Council officer, engineer or developer held a misapprehension to that effect either.
245In any event, I reject the contention in [174] of the above submission that somehow Council "relied on kerbs [wheel stops] to restrict vehicular loads". The evidence demonstrates that neither any engineer or designer engaged on behalf of the developer of the car park or any engineer or officer engaged by Council who turned their mind to this issue construed clause 3.3 of the 1981 Standard in the manner suggested. The car park as ultimately constructed only used wheel stops at the rear of car spaces on the side of the car park. There were no wheel stops at the rear of the car spaces at the end of the aisles of the car park. In his report Mr Alden identified an architectural drawing from the Council's files that shows that was always intended. If the wheel stops were meant or understood to be part of the impact resistance, they would have been installed for all the car spaces.
(c) Mr Glanville's evidence of the Council's usual practice
246Carlton tendered a statement from Steven Glanville. From 1987 until 1999 he was employed by the City of Sydney Council as a Building Surveyor. Mr Glanville did not give expert evidence as to the standard expected of a reasonable building surveyor. Instead his evidence explained the processes that were in fact employed by the Council in giving building approval during the relevant period.
247In his statement Mr Glanville said:
"In my experience, following receipt of a Building Application, the Council would commonly issue Building Approvals on a conditional basis. This meant that at the time that the Building Approval was issued, the Council may not have reviewed all the relevant architectural and structural plans so as to be satisfied that the structure complied with the relevant Australian Standards in place at that time.
However, if a Building Approval was issued on a conditional basis, the Council's practice was to require a structural certificate of compliance from a Structural Engineer prior to certifying the building fit for occupation. The certificate of compliance would always be obtained at the cost of the builder or developer of the structure. The purpose of such a certificate was to demonstrate that the structure complied with the relevant Australian Standards at that time.
Certification that the structure complied with the relevant Australian Standards was required prior to the issue of an occupation certificate.
If a Building Surveyor had any doubt about compliance with the relevant Australian Standard of any aspect of a structure, such doubt was resolved by the requirement of a structural certificate of compliance from a Structural Engineer." (emphasis added)
248In cross-examination Mr Glanville confirmed that in the late 1980s there was no concept of an "occupation certificate", but only a certificate of classification. Otherwise Mr Glanville's evidence as to the process by which a certificate of classification was issued was consistent with the analysis at [214] above, namely that as part of the process of issuing a certificate of classification the Council considered whether the building was erected in conformity with Ordinance 70, and the approved plans and specifications. His evidence as to the nature of the inspections undertaken was also consistent with [225] in that he described various ad hoc inspections being undertaken throughout the course of construction, with further inspections prior to the issue of a certificate of classification.
249Further the effect of the above passage was that the Council addressed the structural compliance of the building that had been constructed against the requirements of Ordinance 70 at the inspection stage prior to the issue of a certificate of classification (and presumably the building certificate) by requiring a "structural certificate of compliance" which "would always be obtained".
250In his written submissions, Mr Miller SC submitted as follows in relation to this aspect of Mr Glanville's evidence:
"It is important to bear in mind exactly the form of certificates that Mr Glanville explained were routinely received, and relied upon. They were not certificates that issued from an engineer to the effect that the engineer had examined the completed structure, or any aspect of the completed structure, and certified that the completed structure was in each and every respect compliant with Ordinance 70 or a particular Australian Standard. Questions posed in re-examination to the engineers by counsel for the plaintiff proceeded however on such a misstated premise."
251This submission cited a lengthy portion of Mr Glanville's cross-examination in support which included the following passage:
"Q. Indeed, the sort of certificates that you ordinarily in your practice would see before you would certify a building or give a certificate of classification would be a certificate from an engineer that would say, firstly, that the design - if the works were carried out in accordance with a particular design, it would comply with the various applicable codes?
A. Correct.
Q. And then obviously the engineer themselves would not be standing behind every piece of work as it was done, so they would, would you agree, usually provide a certificate that said to the effect that the inspections such as they carried out did not give any suggestion that there was any departure from the requirements of the design?
A. That's my understanding.
Q. And you didn't second guess those certificates, did you?
A. No, I relied on it from a qualified expert being a structural engineer.
Q. It was the practice of the council in your experience, those around you, and from the files that you saw, that they too would not issue occupation certificates until that suite, on a complex structure, until that suite of engineering and other certifications were provided, correct?
A. Correct."
252The passage from Mr Glanville's re-examination that the Council's submission referred to was the following:
"Q. Now, in your time at the Council, if you had been making an inspection of the kind I am asking you about for this re-examination, would you have done anything to check whether that metal railing was in compliance with the Australian Standards?
OBJECTION (MILLER)
MILLER: The question is 'in your time at the Council' so it straddles 1987 to -
HIS HONOUR: Yes, in the period 87 to 89 I will allow. It is restricted to that period.
WITNESS: A. Between 87 and 89 with my level of experience, I would have checked that with respect to compliance from an architectural viewpoint with respect to height and spacings for balustrade requirement in accordance with the ordinance 70 requirements at that point in time.
With respect to structure for loadings on them, I would have relied on the engineer's certification." (emphasis added)
253Mr Glanville also explained that on such an inspection he would not have examined all of the metal uprights or base plates on the perimeter railings. However, he also stated that if he had noticed gaps between the base plates and the concrete or the presence of skewed anchor bolts, he would have requested the builder or developer obtain confirmation from an engineer that they were structurally sound.
254The submission extracted above (at [250]) asserts that the question in [252] proceeded from a "misstated premise". The "misstated premise" was not specified and I do not accept that there was any. It is true that the question refers to "an inspection of this kind", but the starting point for this part of the re-examination was a question that stated "Mr Glanville, would you have made any check yourself to see whether a railing of the kind we are concerned with here complied with the Standards?", which assumes nothing contentious about the form of inspections he undertook.
255It is true that under cross-examination by Mr Miller SC, Mr Glanville accepted the general proposition that he regularly obtained a certificate from an engineer to the effect that the "inspections such as they carried out did not give any suggestion that there was any departure from the requirements of the design". However the questions in re-examination were directed to the particular railing in this case which had to specifically comply with clause 30.1 of Ordinance 70. Further, it was a feature that when completed was not hidden in any respect, so that there would not be any restriction on an engineer examining the railing's compliance with the 1981 Standard after it was constructed.
256In these circumstances I see no reason not to accept what Mr Glanville said in his statement, namely that it was the regular practice while he was employed by the Council for it to obtain certification from a structural engineer that the structure complied with the Australian Standards (which would encompass the structural compliance of items such as perimeter railing). Whether the wording of such a certificate would concern the building as a whole, or only part, merely the structural elements or was specifically directed to the railing is not known. However the effect of the totality of Mr Glanville's evidence is that the form of engineering certification that was obtained was such as to enable him to be satisfied that the railing complied with the 1981 Standard. In the absence of such a certificate and building inspectors not having engineering qualifications it is difficult to envisage how the Council could reach the necessary state of satisfaction under s 310 of the LGA 1919.
257Mr Glanville was also asked about the relationship between the imposition of conditions of approval that required compliance with Ordinance 70 and the inspection phase as follows:
"Q. That was a common condition that was put on approvals, that the works were to comply with ordinance 70, correct?
A. Correct.
Q. That it was a condition, as you understood it, as the person later coming to inspect the works, that was requiring the developer to retain the necessary group of engineering disciplines so as to fully develop the design in accordance with ordinance 70, correct?
A. Correct.
Q. And then be in a position to give you the certifications upon the completion we have spoken about?
A. Yes, correct.
Q. There is no way that a builder could build a structure off, for example, building development architectural plans, correct?
A. Correct.
Q. And, indeed, when you come to even structural plans that would be submitted to a building application, you understood at the time from your experience working in building companies or construction companies that these too would have to be taken to the next level, i.e. shop drawings, before anything could be built off them?
A. Correct." (emphasis added)
258Mr Glanville also stated that the Council might review the relevant architectural and structural plans (and any amendment thereto) that were lodged with the Council for compliance with the relevant standards. In his oral evidence Mr Glanville described this as a "spot check of the structural requirements of [the] drawing to determine compliance with the Standards in place at that point in time". He agreed with Mr Miller SC's suggestion that this was a "cursory look ... of the plans to see that there was some indication on the plans that it appeared to comply". He recalled seeing documentation that recorded the undertaking of these checks. This evidence concerning the possibility of lodging such plans, and the nature of spot checking must be considered in light of the statutory scheme outlined above, including clause 8.2. Otherwise, Mr Glanville stated that, during the course of the building's construction, Council's building surveyors would "carry out some checking of the structure in accordance with the structural plans as approved but would ultimately rely on an engineer's inspection certificate".
(d) Council records
259As I will explain, the most critical factual dispute between the parties in respect of Ms Lee's case against the Council is whether the Court should infer from the absence, amongst the Council's response to a discovery notice, of any approved structural plans from an engineer (or otherwise) concerning the railing and any engineering certification for the railing as constructed that no such documents were ever provided to the Council between mid 1987 and 1991.
260Regrettably the resolution of this dispute necessitates a prolonged trawl through the records that were tendered, although they need to be placed in context by reference to three matters. The first is to note that Mr Cavanagh SC tendered the Council's discovery list. Attached to the list is an affidavit from the Council's archivist testifying to the effect that, having made reasonable inquires, he believed that there are no other documents in the Council's possession falling within the categories of document specified in that list. The discovery categories exhaust the boundaries of relevance in this case.
261Both parties sought to use the discovery list and affidavit to their advantage. Mr Cavanagh SC sought to rely on the absence of the documents that I have referred to as evidence that the documents were never received. Mr Miller SC submitted that it was self evident that some documents the Council had originally received were now missing. While not all of the documents were in the discovery list, it was implicit in the parties' submissions that all of the documents relevant to their respective submissions were tendered. I will proceed on that basis.
262The second matter to note is that interrogatories were administered to the Council and tendered. However, other than clarifying the name and qualifications of certain persons who conducted various inspections, the interrogatories did not add anything to the documents that were tendered.
263The third matter to note is that the Council chose not to call any witness, a matter I will return to.
(i) 1983 to early 1987: concrete barrier
264On 22 July 1983 an application for Development Approval ("DA") for a public parking station and office complex was lodged. It was approved on 5 October 1983 subject to conditions. At that time the proposed car park consisted of a 5-storey building. The application was submitted by Tectonic Pty Ltd, but the ultimate proponent was Tai Ping Trading Pty Ltd ("Tai Ping").
265On 25 January 1984, an Application for Building Approval ("BA") was lodged. The standard form application advised applicants of Council's requirements when submitting plans. They included the following:
"9. Two copies of detailed specification shall be submitted when the construction and materials are not fully described on the plan.
10. Where any work of a structural nature is involved (footings, walls, columns, beams, slabs, etc, sufficient details and information shall be submitted to enable a structural check to be carried out. Stress diagrams and computations for structural work may be required."
Condition 10 is consistent with clause 8.2 of Ordinance 70 (see [216] above).
266Thereafter various changes were proposed to the DA. On 23 July 1984, development consent was granted for a replacement DA. This proposal involved the erection of a 10-storey building with a basement for use as a public car park, and for consent to restore the building known as Field House for office use.
267Between July and October 1984, further amendments were made to the proposal for a 10-storey development. By 8 October 1984, consent had been issued for a 10-storey building with a basement for public car parking accommodating 618 cars, with additional tenant parking for 14 cars, and restoration of Field House for office use.
268At some point in late 1984 a second or revised BA was lodged, no doubt as a result of a revision to the DA. No copy of this application was produced but its existence can be inferred from references to it in Council documents concerning its approval.
269On 6 February 1985 Council sent a letter to Tai Ping which stated, inter alia:
"Pursuant to the provisions of Part XI of the Local Government Act, you are hereby notified that the plans numbered GA2 to GA15 submitted with your Building Application to execute the above work have been approved, subject to the conditions contained in the attached Schedule and in accordance with the details listed below, as unconditional consent would be contrary to the provisions of Ordinance No. 70.
...
Upon completion of the building work contained in this application and before any person is permitted to occupy the whole or any portion of the building, notice to the effect in writing shall be given to the Council to enable an inspection to be made to ascertain the extent of completion in accordance with the approved plans and specifications. If it is intended to occupy only a portion of an uncompleted building the notice referred to above should be accompanied by an application pursuant to Part 3.4 of Ordinance 70 to obtain such permission prior to occupation."
(Mr Glanville explained that "GA" meant general architectural drawing.)
270The requirement to give notice referred to in this letter reflected the requirements of clauses 3.3 and 3.4 of Ordinance 70 discussed above.
271The enclosed schedule listed 42 conditions, the first of which was "[c]ompliance with any provisions of the Act and Ordinance No 70", and the fifth of which was "[t]he submission of any structural details for consideration prior to the commencement of any structural work". As I will explain, Mr Cavanagh SC placed particular emphasis on these conditions.
272On 17 June 1985, Everingham Platt & Anthony, Consulting Engineers, sent a letter to the Council submitting structural drawings numbered 9266/1 to 9266/58 for the approved 10-storey car park and restoration of Field House.
273On 24 February 1986 Council wrote to Tai Ping advising that the structural drawings had been approved. The letter advised that approval was subject to, inter alia, "[c]ompliance with the provisions of the LGA 1919 and Ordinance 70. Tendered were copies of some of the plans. They contain a Council stamp stating "Approved", bearing the date "24 Feb 1986". One of these drawings bears the code 9266/31. It includes a diagram entitled "EDGE DETAILS OF CAR PARK SLAB FLRS 1 TO 7". It depicts a concrete barrier on the edge of the car park. In his report at [5.3.8] Mr Alden noted that this was referable to three of the four sides of the car park (and would include the point at which Mr Lee's accident occurred). These structural drawings involved the use of concrete barriers as the exterior barrier for the car park.
274By letter dated 10 July 1986 Tai Pang lodged a further revised DA. The DA bore the date 14 July 1986. The application described the work involved as the "[e]rection of a revised eight storey building over ... [a] ... building under construction and alterations to an existing two storey building". This was the form of development that was ultimately undertaken. The letter refers to a number of accompanying architectural drawings, but they were not tendered.
275On 22 September 1986 Council issued approval for that revised DA. The minute of approval recorded that the proposal involved "the erection of a revised façade to the new building".
276In the meantime it appears that further structural drawings had been submitted. On 16 September 1986 Council wrote to Tai Ping advising that "Structural Plans numbered 9266-1F, 14" had been approved, subject to various conditions including "[c]ompliance with the provisions of the [LGA 1919] and Ordinance No 70". The letter noted that the works were to be in accordance with "submitted plans Nos GA 2-15" submitted in July 1986.
277Tendered in evidence were a number of the Council's internal documents which referred to various structural plans as having been submitted, although the plans were not tendered. One of those notes prepared around December 1986 recorded a recommendation of approval from a checking engineer and a District Structural engineer. The note suggests the imposition of conditions, including compliance with Ordinance 70 and a condition requiring "[c]ompliance with all previous conditions of approval relating to structural engineering details".
278On 5 March 1987, Council wrote two letters to Tai Ping. One stated that (building) approval had been given to "revised plans GA2D, GA3A, GA4, GA5A, GA6 to GA15, M506-1 & M506-2, and structural plans submitted in connection with the above", but that such approval was "subject to the conditions contained in the attached Schedule". The first condition in the Schedule was that "compliance shall be given to any provisions of the Act and Ordinance No 70".
279Tendered with this letter were copies of structural plans GA10 to GA14 and a similar plan whose designation was blanked out but which is clearly GA15. Each of these plans bore a Council stamp stating "Approved - 5 Mar 1987" and "subject to compliance with Part XI of the Local Government Act and relevant Ordinances ...". In answer to an interrogatory Council stated that approval for GA15 was given by the Council's District Structural Engineer and the Chief Structural Engineer.
280The other letter dated 5 March 1987 was in similar terms, but it appears to have specifically related to structural plans. The approval contained the same condition just noted and the plans also bore the same stamp. Six of the structural drawings were tendered. The first of these drawings was 9266/1J, which concerned the footings of the building. The drawing bore a note from the architects stating, inter alia, that "the structural work shown on this drawing has been designed in accordance with the current S.A.A Loading Code". The other five drawings, 9266/48A 9266/49A, 9266/50, 9266/51 and 9266/52, related to the upper part of the proposed structure. They indicated that at that stage the external barriers of the car park were proposed to be constructed of concrete.
281On 8 April 1987 Council wrote to Tai Ping advising that it had provided (building) approval for some further structural plans subject to a number of conditions, including compliance with the Act and Ordinance 70. The listing of the revised structural plans included "48B, 49C, 51B and 53", which depict the exterior of the car park. Copies of plans 49C, 51B and 53 were tendered. They utilised structural concrete exterior perimeter barriers for the car park.
282Curiously, it appears that Mr Alden had access to structural plan 48B. He extracts part of it and discusses it in his report, even though the parties did not tender it. It depicts a concrete barrier on the southern side of the car park. The concrete barrier is a 150mm thick and 600mm high reinforced concrete wall. It is centrally reinforced. In his report Mr Alden addressed whether the proposed barrier complied with the loading requirements in the 1981 Standard. He concluded:
"Accordingly, I consider that the upturn wall as detailed on the structural drawings could have been considered to be a satisfactory vehicle impact barrier, in terms of the requirement of [the 1981 Standard]." (emphasis added)
283This is illustrative of the limits of reviews of structural plans, namely that they may not be definitive as to the compliance of the proposed structure with the relevant structural requirement.
284Internal Council records indicate that in March and April 1987 inspections of the progress of building work on site were undertaken. It seems that by early May 1987 the ground and first floor were substantially complete. On 7 May 1987 Tai Ping applied under clause 3.4 of Ordinance 70 for permission to occupy those areas. By 27 May 1987 the Council had concluded that such permission should be given.
285On 28 May 1987 s 311 of the LGA 1919 was amended in the manner outlined in [193] above.
(ii) 1987 to 1988: metal railing
286On 16 June 1987 Tai Ping wrote to the Council again seeking amendment of its DA. This time it sought to reduce the number of floors devoted to public parking, and to add hotel floors.
287There was tendered an undated document from the Council's files entitled "Transmittal". It is addressed to a Mr Kirch at the Council. I infer that it was sent by Tai Ping's consulting engineers, Everingham Platt & Anthony. It appears to be the late 1980s equivalent of a spreadsheet. I will not describe the document in detail. It suffices to state that it is clearly incomplete in that only pages 1 and 3 of what is said to be a five page document was tendered. The available pages list each structural drawing and appears to record when a particular version of that drawing was provided to the Council.
288Sheet No 3 concerns structural plans for drawings 48 to 53 which concerns the external barriers for the car parks. The last entries for drawings 48 to 51 are on 28 April 1987. In its written submissions the Council accepted that the document shows that on 28 April 1987 "Structural Drawing 48B was generated (the drawing that showed the second floor concrete bottom and top reinforcement) which anticipated that there would still be structural concrete walls around the perimeter of the car park floors". Otherwise the only conclusion that can be drawn from this document is that at no time prior to 14 July 1987 was there issued any structural drawing that involved the use of metal railings as the perimeter barrier for the car park.
289On 4 August 1987 the Council wrote to Tai Ping advising that it had approved the amendment of the DA sought in their letter of 16 June 1987. This letter made reference to "the erection of a revised façade to the new building".
290On 11 September 1987 Tai Ping sent a letter to the Council attaching revised general architectural drawings, which included Drawings "11F, 12E, 13D, 14A and 15A". The description does not suggest they were structural drawings.
291On 13 November 1987 Council wrote to Tai Ping advising that these plans had obtained building approval subject to various conditions, one of which was "compliance shall be given to any provisions of the Act and Ordinance No 70". Mr Glanville stated that it was his understanding that this meant that, as the developer "did their detailed engineering design and their workings, they had to comply with Ordinance 70".
292A further condition was:
"That this approval is for an amendment to the original application and except as modified by the conditions contained herein, in no way relieves the applicant from responsibility for compliance with all previous Council approvals and conditions attached thereto."
The reference to the original application appears to be the original building application lodged on 25 January 1984 and approved on 6 February 1985 (see [269] to [271]).
293Copies of plans GA 11F, GA 12E, GA 13D, GA 14A and GA 15A were stamped by the Council as approved on 13 November 1987. The plans are clearly architectural plans. They show railings being used as the exterior barrier of the car park. The plans bear no marks indicating they were prepared by engineers, much less any statement about compliance with the load bearing requirements in the 1981 Standard. However, one of the plans, GA 11F, refers the reader to various details in respect of the railing on another plan, being "39". Mr Glanville agreed that this was a reference to an architectural plan with more detail on it, and would have to be "reduced into more refined plans to be constructed".
294Also on 13 November 1987 the Council wrote to Tai Ping providing building approval for certain structural plans, although none of those appear to concern the proposed external railing. The approvals again required compliance with the provisions of Ordinance 70 by the developer.
295On 23 December 1987, Council wrote to Tai Ping to again approve an amendment of the DA. The amendment permitted the erection of a 10-storey hotel above the car park, and a new façade in accordance with certain general architectural drawings.
296In its answer to interrogatories the Council stated that inspections were conducted on the site by various inspectors with building qualifications up to 25 November 1987, but not again until March 1989. The Council's submissions noted that the railing was likely to be built during this gap. I regard this as of little significance because, as previously stated, an assessment of the loading resistance of the railing could have been undertaken by inspecting the completed structure.
297The Council documents reveal that it gave building approval to structural drawings in February 1988, June 1988, August 1988 and September 1988, although none appear to relate to the exterior railing. All of the approvals were subject to compliance with Ordinance No 70. Copies of these plans were not tendered, with one exception. The one exception was a structural plan that appears to have been submitted to Council on 4 August 1988, which was given approval on 26 August 1988. It bears the name of Everingham Platt & Anthony Pty Ltd and the statement of compliance with the loading code noted above (at [280]).
(iii) 1989 to 1991: inspections and certification
298A Council file note records that an inspection of the site was undertaken by a Council officer on 9 March 1989. In its answer to the interrogatories Council stated that an inspection was undertaken by Anthony Gleeson, a District Building Surveyor, on 7 March 1989. They appear to be referring to the same inspection. He had technical but not trade qualifications. His note records that numerous finishings "remain incomplete", but the building including the car park "are structurally finished".
299On 8 August 1989, Tai Ping lodged an application for a building certificate (ie s 317AE certificate).
300On 16 August 1989, an inspection was undertaken by Mr Gleeson. His note of the inspection records, inter alia, that: "[a]n inspection has shown that all work contained within this proposal has been carried out in accordance with the conditions of consent as applied herein. ... For your attention re Certif[icate] of Classification". It is not clear whether this was the report referred to in clause 3.3 of Ordinance 70. It appears to be, although I note that the Council's discovery list included an item described as "Classification Report Ordinance 70 DA 288 00931", said to bear the date 18 August 1998.
301Mr Gleeson also prepared a s 317AE Inspection Report stating that the premises were inspected "and ... found to comply with the relevant plans and Ordinance 70".
302A s 317AE certificate was sent to Tai Ping on 12 September 1989.
303A classification certificate under Clause 6.3 of Ordinance 70 was issued on 16 April 1991. The car park was designated as Class VII. No reason for the delay in issuing this certificate is apparent on the material.
304As best as I can ascertain, there appears to have been some uncertainty about whether Tai Ping had been licensed to operate a car park. An application for a licence to operate a car parking station was lodged on 19 March 1990 and was subsequently granted.
305The balance of the material tendered by the Council concerned its licensing and relicensing as a car park in accordance with Ordinance 34B. The records cease around 1997. The documents include records of inspections undertaken on 8 June 1994, 15 November 1995 and 14 May 1997. The notes of those inspections record the satisfaction of the inspector that the car park was being operated in accordance with its "conditions of approval". Generally, the conditions of approval included compliance with the development approval, as well as various conditions specific to parking such as signage, number of car spaces, and inclusion of spaces for disabled cars, etc.
(e) Which powers and functions were exercised by the Council and which were not?
306It follows from the above that Council exercised and re-exercised the power under s 91 of the EPA Act to approve a DA on 23 July 1984 ([266]), 8 October 1984 ([267]), 22 September 1986 ([275]) and on 4 August 1987 ([289]).
307Similarly it exercised the power under s 314(1) of the LGA 1919 to approve a BA subject to conditions on 6 February 1985 (see [269]). It exercised the power to approve plans and specifications subject to conditions on 24 February 1986 ([273]) and on 16 September 1986 ([276]). Thereafter it appeared to exercise the power under s 314(1) to approve, subject to conditions, various modifications to the building application, plans and specifications on a number of occasions including 5 March 1987 ([278], 8 April 1987 ([281]), 13 November 1987 ([291]) and the occasions noted in [297].
308Inspections of the kind envisaged by Mason J in Sutherland Shire appear to have been conducted throughout 1987 and in early 1989. An inspection in accordance with s 317AD and most likely part 3.3 of Ordinance 70 was conducted on 16 August 1989 ([300]).
309A certificate under s 317AE was issued on 12 September 1989 ([302]). A classification certificate was issued pursuant to clause 6.3(1) of Ordinance 70 on 16 April 1991 ([303]). A licence was issued under clause 3(4) of Ordinance 34B on 12 August 1992, although it is not clear whether that was the first licence.
310It follows from the findings that have been made to date that it was open to the Council to issue an order under s 316 of the LGA to prohibit the use or occupation of the car park because it was not completed in accordance with the approved plans and specifications. In particular, all of the relevant approvals required compliance with Ordinance 70, yet the railing did not comply with clause 30.1. Similarly the Council could have, but did not, prosecute Tai Ping for using or occupying a building that did not comply with the approved plans and specifications contrary to clause 4.1, or erecting a building in contravention of the Ordinance pursuant to clause 4.2.
(f) Was a structural diagram or an engineer's certificate for the railing supplied to the Council?
311The focus of Ms Lee's case concerned the change in the development during 1987 from a proposal involving the use of concrete perimeters to the use of metal railings, as disclosed in the general architectural drawings that were approved in November 1987 (see [291]). As the submissions developed it emerged that there was a sharp factual dispute about what inferences, if any, should be drawn from the absence of any approved structural plan and engineering certificate, indicating that the railing (or the building including the railing) complied with Ordinance 70, including the 1981 Standard. Neither a structural diagram for the metal railing nor a certification from an engineer of any kind was tendered. For the sake of completeness, I note that nothing in the Council's discovery list suggests that they were located by the Council's archivist.
312In his oral submissions Mr Cavanagh SC contended in effect that it should be found that no structural drawings were provided ("and then they get the most significant change there could be and there is no structural drawings"). In relation to whether the Council received certification of the railing that was installed, in his written submissions Mr Cavanagh SC contended:
"... according to the expert evidence, any competent engineer would have detected the defects on installation and would not have given any certificate that it complied with Standard AS1170. [The Council] has not adduced any evidence that it obtained such certification and no inference can lie that it would in circumstances where the expert evidence establishes that no competent engineer would have given such certification."
313In his written submissions Mr Miller SC contended that it was "entirely possible (indeed probable) that a complying steel barrier design was provided". I also understood his submissions to also resist the contention than Council was not provided with any formal certification of the building work. I note that both parties also disputed the significance of these findings to their respective cases, a matter to which I will return.
(i) Jones v Dunkel
314I have already referred to the need for the Court to reach a state of "actual persuasion" of a relevant fact's occurrence (see [42]). Further, in G v H [1994] HCA 48; 181 CLR 387 at 391-392, Brennan and McHugh JJ stated:
" ... when a court is deciding whether a party on whom rests the burden of proving an issue on the balance of probabilities has discharged that burden, regard must be had to that party's ability to adduce evidence relevant to the issue and any failure on the part of the other party to adduce available evidence in response."
315This is a restatement of the rule in Blatch v Archer [1774] Eng R 2; 98 ER 969 at 970. In this case the party that bore the burden of proof, Ms Lee, had limited capacity to adduce evidence concerning the actions of the Council in the 1980s. She nevertheless employed that capacity as best she could by administering and tendering answers to interrogatories and tendering documents.
316The Council also tendered documents but, as noted, it chose not to call any witnesses. The Council's answers to the interrogatories identified the names of various Council officers who participated in the various decisions that I have described.
317Mr Cavanagh SC submitted that a Jones v Dunkel ([1959] HCA 8; 101 CLR 298) inference (or inferences) should be drawn against the Council by reason of its failure to call any witness.
318In MSPR Pty Ltd v Advanced Braking Technology Ltd [2013] NSWCA 416 ("MSPR") at [53], Macfarlane JA stated that a "Jones v Dunkel inference may be drawn against a party where the party would be expected to, but does not, call a witness who could give evidence on a relevant matter and that failure is unexplained" (citing Payne v Parker [1976] 1 NSWLR 191 at 201). The requirement that a missing witness would be expected to be called by one party rather than the other has been described in terms that include descriptions of it being "natural for one party to produce the witness" and the witness being "in the camp of one party, so as to make it unrealistic for the other party to call him" (Payne v Parker ibid; MSPR at [54]).
319Mr Cavanagh SC pointed to the absence of any further evidence from the Council's archivist and the former Council employees who supervised the development and conducted the inspections of the project.
320At least so far as the archivist is concerned, I am satisfied that they "could" give evidence on a relevant matter. It appears to me inherently likely that the archivist could be able to give an explanation as to how documents received from a development that was undertaken during the relevant period might no longer be retained by the Council. This was not addressed in the discovery affidavit that I have referred to.
321In relation to the building inspectors and Council engineers involved in this development, due to the passage of time it is inherently unlikely that they could recall any matter concerning this development. At best they might be expected to recall some matters of general practice of the kind testified to by Mr Glanville. The Council submitted that they could not be considered to be in the "camp" of one party or another. Mr Miller SC pointed to the fact that since the answers to interrogatories were provided their identities were known to the parties, so that there was no reason why either party could not have called them. In considering that contention one should not overlook the fact that it is their conduct that is criticised and thus there may be some coincidence of interests between them and the Council. However that does not apply in respect of the matters of general procedure, which are the only matters they are likely to recall. In those circumstances I decline to draw any Jones v Dunkel inference against the Council in respect of its failure to call them. That said, I have already described Mr Glanville's evidence concerning the Council's practice in respect of the receipt of engineering certificates. I have already addressed the debate as to its effect. Beyond that, his evidence was uncontradicted. I accept it.
(ii) Balance of submissions
322Other than relying on Jones v Dunkel, Mr Cavanagh SC made three points. The first has already been outlined, namely the absence of the documents from the Council's possession when it provided discovery. In particular he noted that there was an array of structural plans, especially those concerning the proposed concrete plan, in the period up to the modified DA that was lodged in July 1987, but there was a paucity thereafter.
323Second, Mr Cavanagh SC pointed to the fact that when the general architectural plans were given building approval in November 1987 the letter from the Council did not specifically request the provision of structural plans (see [291]). He contrasted this with the Council's letter of 6 February 1985 which gave building approval to architectural plans but specifically requested the submission of "structural details" prior to the commencement of any structural work (see [269] to [271]).
324Third, he pointed to the evidence of the engineers that I have outlined above, especially the evidence of Mr Taylor, with whom Mr Alden and Mr Jamieson agreed, namely that "[n]o competent engineer would have certified [the railing as compliant with the 1981 Standard] in that condition".
325As noted, Mr Miller SC resisted these findings and sought findings to the opposite effect. He essentially made four points. First, he submitted that the documents that were tendered represented the entirety of the material currently available to the Council, yet it is self evident that there are documents missing.
326Second, he pointed to Mr Glanville's evidence as demonstrating the inherent unlikelihood that there would be an absence of structural plans certified by an engineer as to the compliance by the railing with the loading standard, and the absence of any form of engineering certification of the work that was done. He submitted that would necessarily involve the Council's internal engineers omitting to notice any such structural plans, and the building inspectors failing to notice any such plans or certifications when they conducted their inspections.
327Mr Miller SC developed this by submitting that some analogy may be made with the presumption of regularity, which is to the effect that where a power is exercised a presumption arises that "all conditions necessary to the exercise of that power or the doing of that act have been fulfilled" (Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164). This proposition can be rejected at the outset. The so called presumption of regularity does not take matters very far in proceedings in which the validity of an administrative decision is challenged directly. In such cases the matter falls to be resolved by reference to traditional notions of burden and standard of proof and, depending on the basis of challenge, the application of the principle stated in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. In any event this case is not concerned with the validity of any decision of the Council. The present discussion concerns the occurrence of facts in the course of making a decision and not the existence of any statutory preconditions to the exercise of a power. In this case there is no starting point of regularity or irregularity.
328Third, Mr Miller SC submitted that there was nothing inherently unlikely in there being such certifications, given the potential ambiguity in the 1981 Standard and the concession by the engineers that a barrier constructed of a metal railing could comply with the 1981 Standard.
329Fourth, at least to the extent that he was seeking to resist the finding sought by Mr Cavanagh SC, Mr Miller SC pointed to the passage of time as productive of uncertainty, making it that much more difficult to make a finding that something did not occur 27 years later.
(iii) Resolution
330In relation to both of Mr Cavanagh and Mr Miller's first points, I have already described the available evidence as to the completeness of the Council's records. In my view it is clear that the Council's records such as the document noted in [287] are self evidently incomplete. There are internal documents that record the existence of structural or architectural plans, but the plans do not appear to have been retained by the Council.
331Mr Cavanagh's second point does not of itself advance his contention as to the absence of a structural diagram for the railing. It is true that the initial building approval of the general architectural diagrams given in February 1985 ([269]) was accompanied by a specific condition requiring the submission of structural plans before building work commenced, whereas the building approval given in November 1987 to revised architectural plans did not ([291]). However by November 1987 the situation had changed. As at February 1985 no structural diagrams had been provided and hence no work could be undertaken. As at November 1987 work had been undertaken and a number of structural diagrams had been provided, some of which had not been superseded by the modification to the development. Further, the condition precluding the undertaking of building work pending the provision of structural diagrams was carried over into the building approval given in 1987 by the condition noted in [292] above. Finally, as the above history demonstrates, a number of structural plans were provided after November 1987.
332In relation to both of their third points, I have made the relevant findings concerning the 1981 Standard and the state of mind of Tai Ping and the Council engineer above (at [245]). At this point it is necessary to distinguish between whether a structural plan was provided to the Council in advance of the construction of the perimeter, and whether Council was provided with some form of certification concerning the railings with the 1981 Standard.
333In relation to the former, the evidence of the engineers was not so emphatic that it could be concluded that any set of structural plans that depicted that form of railing would necessarily have revealed that the railing was non-compliant. Further, they accepted that a metal railing might be compliant with the 1981 Standard. Mr Alden's analysis of one of the structural diagrams which proposed the use of a concrete barrier (see [282]) demonstrates that sometimes it cannot be definitively determined on the face of the plans whether the loading requirements will be satisfied if the proposed structure is built.
334Thus, with structural diagrams of the railings, I am left with an absence of a Council record of receipt of a structural plan certified by an engineer, and an unlikelihood that an engineer would prepare a structural diagram depicting the dimensions of the perimeter railing that was installed. However, as noted, given the limits on such structural plans it was not necessarily the case that such plans would have depicted a non-compliant barrier. Further, I have to consider that part of Mr Glanville's evidence that suggested it was not possible to build a perimeter railing simply on the basis of the plans depicted in the general architectural plans that were approved in November 1997 (see [257]). There is in my view a degree of unlikelihood of a developer seeking to build from structural plans that had not been sent to the Council. In the end, even applying Jones v Dunkel, I am left "unpersuaded" that structural plans of some kind were not provided to the Council in advance of the construction of the perimeter railing. Equally, without the application of Jones v Dunkel, I am not positively persuaded that such plans were provided.
335One matter should be noted about this absence of a finding that any structural plans were provided. A critical matter that has left the matter not proved is the possibility, not excluded by the engineers' evidence, that such plans may have been prepared at such a level of generality that they could pass a "spot check" or review by the Council's engineers as to compliance with Ordinance 70, ie it may not have been apparent on the face of any such plans that the railing did not comply. If such a circumstance transpired, then it is to be expected that the Council would have made any approval of such plans "subject to compliance with Ordinance 70". The result is that any such plans would provide an insufficient basis for the Council to reach the state of satisfaction required under s 310. This directs attention to the next question of whether engineering certification was provided.
336I am persuaded that no certificate from an engineer certifying or indicating the compliance by the installed railing with the 1981 Standard was provided to the Council at any time, including during or around the time of the inspections, and especially those that occurred in August 1989. No such certificate appears to have been discovered by the Council. The notes of the inspections did not refer to any Council officer receiving any such certificate. Most significantly, the engineers' evidence was emphatic that no reasonable engineer could have certified the compliance of the railing with the 1981 Standard. While the existence of unreasonable engineers can obviously be countenanced, the combination of such an engineer and a Council that receives but then loses such important documentation while retaining others, strikes me as very unlikely. Mr Glanville's evidence emphasised the importance of obtaining such a certificate. The evidence only emphasised the necessity to document receipt of such certification in the inspection notes and then retain the certificates. The combination of these matters is more than sufficient to ground the inference that no such certificate was provided and I draw it without relying on any Jones v Dunkel inference. However, I derive further confidence in drawing this inference having regard to the Council's failure to call its archivist.
(g) The Plaintiff's pleaded case
337As issue was taken concerning the scope of the case pleaded against the Council, it is necessary to describe it. Paragraph 42 of the ASOC recites that the Council was charged with various statutory powers in relation to the car park under the LGA 1919 including under Ordinance 70, specifically Part 30 and Ordinance 34B including clause 3(3)(vi).
338Paragraph 43A pleaded that the "design and construction" of the car park was "defective and/or negligent" in various respects, including that the perimeter fence was "inadequate and/or of insufficient strength", "[t]he construction of the steel barrier fence and wheel stops did not comply with the loading requirements of the" 1981 Standard, and a number of other particulars to similar effect.
339Both the particulars to this paragraph and the particulars of negligence refer to various aspects of the design and installation of the railing as rendering it "defective". In relation to the installation of the railing I have only accepted that at the time of installation there were two anchor bolts improperly affixed, an inadequately welded base plate, and an unfixed end of the wheel stop in the car space the subject of Mr Lee's accident. Of themselves I do not accept that they render the perimeter railing "defective". However, I also accept that the railing was affixed close to the edge of the car park at the time of installation. That, combined with its other features such as the size of its railings, rendered it significantly non-compliant with the 1981 Standard. It was in that respect "defective".
340Paragraph 48B pleaded that the Council issued a "building approval or like authority" permitting the construction of the car park according to the allegedly defective design. Paragraphs 48C and 49A then pleaded:
"48C Upon completion of construction of the car park the Fourth Defendant inspected the construction work and issued an occupation certificate or like authority permitting the car park to be used by members of the public for the purpose of car parking in circumstances where the design and construction of the car park was defective and/or negligent.
...
49A. In the exercise of its power relating to the approval of the development application, inspection of the works during their construction and authorising the use of the premises as a car park open to the public, the Fourth Defendant owed users of the car park a duty of car recognised by the law of negligence to exercise reasonable care for their personal safety extending to the risk of mental harm."
341Paragraph 50 then pleaded that the Council breached its duty of care "during the approval and construction in 1986/1987 and thereafter until completion of the development". The particulars of negligence are as follows:
"a. It failed or failed to adequately inspect the car park upon its completion and before opening to the public to ensure it was fit for its intended use and safe;
b. It failed or failed to adequately inspect the car park upon its completion and before opening to the public to ensure it was compliant with AS 1170.1 1981;
c. It failed to take into consideration in its exercise of powers under Ordinance 34B the compliance or otherwise of the parking station with AS 1170.1 1981;
d. It failed to exercise powers under section 279 of the Local Government Act, 1919 to inspect the car par[k] upon its completion and before opening to the public to ensure it was fit for its intended use and safe;
e. It failed to exercise its powers under section 279 of the Local Government Act, 1919 to inspect the car park upon its completion and before opening to the public to check it was compliant with the conditions of its grant of the First Defendant's development application;
f. ...
g. It licensed and permitted the First Defendant to operate a car park with wheel stops not secured by mortar which was of sufficient strength, adequate characteristics and sufficient depth and secured by dowels which were deficient for the purpose to be served by the wheel stop;
h. It licensed and permitted the First Defendant to operate a car park without concrete underpinning on the wheel stop (grouting up) and/or adequate filling grout in the dowel holes;
i. It licensed and permitted the First Defendant to operate a car park with a steel barrier fence which did not comply with AS 1170.1 1981;
j. It licensed and permitted the First Defendant to operate a car park with a steel barrier fence which was secured on the concrete edge of the car park with Ramset Dynabolts fixed too close to the outside edge of the concrete;
k. ...
l. It licensed and permitted the First Defendant to operate a car park with a steel barrier fence which had inadequate horizontal rails;
m. It failed to require the replacement or strengthening of the steel barrier fence;
n. ...
o. ...
p. ...
q. With knowledge of the anticipated use of the car park by persons driving vehicles of varying sizes, heights and torque, failing to consider the adequacy and safety of the wheel stop and steel barrier fence situated in the car park;
r. It licensed and permitted the First Defendant to operate a car park with steel barrier fences affixed to a concrete slab which had no longitudinal slab edge reinforcement.
s. Further or in the alternative, permitting a change from the solid reinforced concrete barrier fence originally designed and specified to the steel barrier fence as built with exercising reasonable care that the steel barrier fence complied with AS 1170.1 1981."
342Mr Miller SC submitted that paragraph 49A restricts the plaintiff to mounting a case concerning "development applications and [Council's] inspection processes" and do not extend to its assessment of any building applications. I do not agree. Although it is unfortunate that s 49A does not incorporate any reference to the issue of building approvals, I consider that a fair reading of the pleading, especially paragraphs 42 and 48B and particularly 50(s), reveals that the process of issuing building approvals was part of the plaintiff's pleaded case.
343However not much turns upon this. As noted, I will address the particulars of negligence as pleaded in paragraph 50 and not any possible expansion on those particulars that was made orally. With one exception the particulars of negligence are directed to the inspections undertaken towards the completion of the building's construction, and the actions of the Council in "licensing and permitting the use" of the premises as a car park. The statutory and other bases for the inspections has already been outlined, and the existence of a duty of care in respect of them was clearly pleaded in paragraph 49A. The actions of the Council in "licensing and permitting" the use of the premises are directed towards the issue of a classification certificate, a s 317AE certificate, and a licence to operate a car park, and not taking action under s 316 to prohibit the use and occupation of the car park. As part of the attack on those decisions I accept that Ms Lee may be entitled to make complaint about aspects of the process of issuing building approvals that led to those decisions.
344The one exception concerns particular (s) which appears to be directed to the building approval granted under s 314 to the general architectural plans that contained a railing in November 1987. I address this below.
(h) Duty of care: Negligent exercise of powers
345The next issue that arises is whether any duty of care was owed by the Council in respect of the granting of development approvals, the conduct of inspections, the granting of building approvals, and the authorising of the use of premises as a car park. The first three of these sets of powers were clearly exercised so to that extent Ms Lee's complaint clearly concerns a negligent exercise of power.
346In relation to the fourth, I have just noted that actions of "licensing and permitting" the use of the premises are directed towards the actions of the Council in issuing a classification certificate, issuing a s 317AE certificate, issuing a licence to operate a car park, and not taking action under s 316 to prohibit the use and occupation of the car park.
347At first blush this would appear to involve a mixed allegation of misfeasance and non-feasance, with the latter requiring a consideration of the issues addressed in Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215 ("Stuart") and Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1. However, in circumstances where a regulatory authority embarks upon a process of applying a statutory scheme of regulation, the common law does not generally separate specific instances of the exercise of a power and a failure to exercise a related or connected power into categories of misfeasance and non-feasance. Instead it will be treated as a case of misfeasance.
348Thus, Stuart involved an allegation of non-feasance on the part of two police officers for their alleged negligent failure to apprehend and detain a person suffering from mental illness who later committed suicide. At [117] of Stuart, Gummow, Hayne and Heydon JJ characterised that case as an alleged failure to exercise a power. Their Honours distinguished it from Pyrenees Shire Council v Day [1998] HCA 3; 192 CLR 330 ("Pyrenees Shire Council"). In Pyrenees Shire Council the Council was aware from an inspection of a particular danger posed by a fireplace, and notified the owners of the danger but failed to take action to require its rectification or advise new owners of the problem. In Stuart at [117] Gummow, Hayne and Heydon JJ explained that Pyrenees Shire Council was not a case of non-feasance because "a public authority had entered upon the exercise of its statutory powers with respect to a particular subject-matter (fire prevention)" and thus the "authority was held to have owed a duty to take reasonable care in exercising those powers". In Stuart at [135] Crennan and Kiefel JJ distinguished Pyrenees Shire Council on the same basis.
349The position was explained by Gummow J in Pyrenees Shire Council at [177]:
"The general rule is that 'when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered [citing Caledonian Collieries Ltd v Speirs [1957] HCA 14; 97 CLR 202 at 220 ("Caledonian Collieries")]. A public authority which enters upon the exercise of statutory powers with respect to a particular subject matter may place itself in a relationship to others which imports a common law duty to take care which is to be discharged by the continuation or additional exercise of those powers. An absence of further exercise of the interconnected statutory powers may be difficult to separate from the exercise which has already occurred and that exercise may then be said to have been performed negligently. These present cases are of that kind. They illustrate the broader proposition that, whatever its further scope, Lord Atkin's formulation in Donoghue v Stevenson includes 'an omission in the course of positive conduct ... which results in the overall course of conduct being the cause of injury or damage'." (emphasis added)
350Thus in this case the actions of the Council in issuing a classification certificate and licensing the car park under Ordinance 34B are not to be considered separately from its alleged failure to act under s 316 for the purposes of characterising the case as one of misfeasance or non-feasance.
351Was a duty of care owed in respect of the exercise of the powers and functions noted in [345]? Mr Miller SC submitted that Caledonian Collieries is not authority for the proposition that, without more, the mere existence of a foreseeable loss of any kind from the exercise of a statutory power is sufficient to give rise to a duty of care. He contended that instead I was bound to consider the "salient features" of the case to determine whether a duty was imposed.
352I agree, although the first inquiry for this Court at first instance is to ascertain whether there is any authority establishing the existence of such a duty in the relevant circumstances and, if so, its scope and content (Makawe Pty Ltd v Randwick City Council [2009] NSWCA 412; 171 LGERA 165 at [17] per Hodgson JA ("Makawe"). Surprisingly, none of the parties' searches was able to uncover any authority concerning whether a council owed a member of the public who suffered physical harm (such as Mr Lee) or mental harm (such as Ms Lee) a duty to exercise reasonable care in relation to the power to approve DAs, BAs, conduct inspections and issue classification certificates or license car parks. As that inquiry has not yielded any answer, I am bound to address the matter in the manner stated by Hodgson JA in Makawe at [17] as follows:
"[17] In my opinion, the approach to be taken in determining whether a duty of care exists, in circumstances where there is no authority establishing the existence of a duty of care, and if so its scope or content, is usefully summarised by Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258 at [102]-[105] [("Stavar")] as follows:
[102] This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the "salient features" or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.
[103] These salient features include:
(a) the foreseeability of harm;
(b) the nature of the harm alleged;
(c) the degree and nature of control able to be exercised by the defendant to avoid harm;
(d) the degree of vulnerability of the plaintiff to harm from the defendant's conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;
(e) the degree of reliance by the plaintiff upon the defendant;
(f) any assumption of responsibility by the defendant;
(g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;
(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;
(i) the nature of the activity undertaken by the defendant;
(j) the nature or the degree of the hazard or danger liable to be caused by the defendant's conduct or the activity or substance controlled by the defendant;
(k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;
(l) any potential indeterminacy of liability;
(m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;
(n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one's own interests;
(o) the existence of conflicting duties arising from other principles of law or statute;
(p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and
(q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.
[104] There is no suggestion in the cases that it is compulsory in any given case to make findings about all of these features. Nor should the list be seen as exhaustive. Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content.
[105] The task of imputation has been expressed as one not involving policy, but a search for principle: see especially Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562] at 579 [49]. The assessment of the facts in order to decide whether the law will impute a duty, and if so its extent, involves an evaluative judgment which includes normative considerations as to the appropriateness of the imputation of legal responsibility and the extent of thereof. Some of the salient features require an attendance to legal considerations within the evaluative judgment."
353To this it should be noted that earlier in Stavar at [99] Allsop P discussed the role of foreseeability in the context of determining the existence of a duty of care. It suffices to note that in Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; 211 CLR 317 at [11], Gleeson CJ stated that "[a] necessary, although not sufficient, condition of the existence of a legal duty of care is reasonable foreseeability of the kind of injury that has been suffered by the person to whom the duty is owed". This elevates foreseeability above it merely being a "salient feature".
354I have already identified the form of harm suffered, namely physical harm to Mr Lee and psychological harm to Ms Lee. Ms Lee has overcome all the relevant thresholds concerning that form of harm. It was not submitted that there was any basis for further distinguishing between the harm she suffered and that suffered by her husband as far as the Council is concerned.
355One discrete form of statutory power exercised in this case was the power to grant development approval. I have described the criteria involved in the exercise of that power above. It was not suggested that any aspect of the statutory scheme involves any consideration being given to the personal safety of users or occupants of buildings the subject of the proposed development. In my view it was not reasonably foreseeable that a failure to exercise reasonable care in granting development approval could result in physical or psychiatric injury to a user or occupant of any building constructed as a consequence. It follows that the Council did not owe either Mr Lee or Ms Lee or other potential users of the car park a duty to exercise reasonable care in granting development approval under s 91 of the EPA Act.
356The other statutory powers in question were those concerning the granting of building approval, inspection and the various powers to enable the occupation and use of the building that I have described above. Leaving aside the power to license the premises as a car park, I am satisfied that the Council owed users and potential users of the car park a duty of care in exercising those functions and powers. In my view it was reasonably foreseeable that physical harm may have been occasioned if these powers were not reasonably exercised. The entire point of the provisions is to provide buildings that are reasonably safe for occupants and users. Similarly, the imposition of a duty is not inconsistent with the terms, policy or scope of the statute (factors (o) and (p)). The Council was armed with sufficient powers to exercise the requisite degree of control to avoid the harm (factor (c)).
357Further, and perhaps critically, to the knowledge of the Council, users of the building were clearly vulnerable in the requisite sense to harm from the Council's conduct (factor (d)) and were otherwise highly reliant on the Council to perform its functions (in the sense discussed in Sutherland Shire at [464] per Mason J; see Makawe at [26] per Hodgson JA). Persons seeking casual parking in the centre of Sydney are not in any position to make an assessment of the structural safety of such premises, or the attitude to safety of their owners much less their original developers. Instead, they rely on (owners and) the relevant authorities such as the Council to perform their functions to at least provide a reasonable degree of comfort that such buildings are reasonably safe for occupation and use.
358Section 42 of the CLA provides:
"42 Principles concerning resources, responsibilities etc of public or other authorities
The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies:
(a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions,
(b) the general allocation of those resources by the authority is not open to challenge,
(c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate),
(d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate."
359Nothing in s 42 detracts from the conclusion that the Council owed occupants and users of the building a duty of care in relation to the exercise of its power over building regulation. No suggestion of inadequate resourcing was raised by the Council. A finding that a duty of care was owed does not of itself raise any challenge to the general allocation of resources by the Council.
360While the position is not as clear, I consider the same result follows in respect of the power to license the operation of the car park. The various factors relevant to the exercise of that power extend to some considerations of public safety, such as access and egress (see [232] ff]). The matters I have just noted in relation to building approvals and inspections apply at least in respect of such of the safety matters that must be addressed before issuing a licence, such as accessing, egressing and the surfacing of a car park.
(i) Rejected particulars of negligence
361In view of the approach taken to the pleadings I will address Ms Lee's case against the Council by reference to the particulars of negligence extracted above. In light of the findings that I have made, a number of those particulars can be dealt with relatively briefly.
362Particular (c) in [50] of the ASOC alleges negligence in the exercise of the power conferred by subclause 3(3) of Ordinance 34B, namely a failure to take into account whether the car park "was compliant with" the 1981 Standard. I have found that the Council owed users and occupants a duty to exercise reasonable care in relation to the performance of that function (at [360]). However I have also found that the exercise of the power to grant a licence to operate a car park under clause 3(3) did not involve the Council addressing its compliance with Ordinance 70, including the 1981 Standard (see [234]). It follows that I reject this particular as it would involve the Council having regard to a matter outside the ambit of the power. It also follows that I reject so much of the other particulars that involve a complaint about the exercise of that power as they have the same vice.
363Particulars (d) and (e) allege that the Council failed to exercise powers under former s 279 of the LGA 1919 to inspect the car park. I reject these particulars for two reasons. First, the Council did inspect the car park. The adequacy of the inspection is subject to challenge by other particulars. Second, former s 279 of the LGA 1919 is irrelevant. It conferred on the Council the power to do "all things necessary from time to time for the promotion and preservation of public health, safety and convenience". Section 279 was found within Part X of the LGA which concerned "Public Health, Safety and Convenience" and addressed such matters as sanitation (s 281), rubbish disposal (s 282), disinfection (s 286) and fencing swimming pools (s 288C). However, this case was concerned with Part XI of the LGA, namely building regulation, which conferred a number of separate powers upon the Council. While s 279 may not have been confined to the subject matter of Part X, it was not a free-standing power enabling the Council to do what it wished for the promotion or prescription of public convenience (Paul Dainty Corporation Pty Ltd v Sydney City Council [1983] 2 NSWLR 147, 150), much less was it a basis for supplementing the powers conferred by or under Part XI of the LGA 1919.
364Particulars (g) and (h) concern the state of the wheel stops at the time the building was approved and constructed. These particulars were not addressed in oral submissions. In any event, the only finding I have made as to the state of the wheel stops at that time was that one of the dowels on the wheel stop in the car space where Mr Lee's accident occurred was not installed. I am not satisfied that means that there was any failure of reasonable care in relation to any inspection conducted by the Council, or in the exercise or non-exercise of any relevant power that resulted from so much of the inspection as concerned the wheel stops.
365As noted, particular (s) complains about the conduct of the Council in permitting a change from the concrete barrier to a metal barrier. This appears to refer to the building approval given in November 1987 to the general architectural plans (see [291]). For the reasons already noted, I accept it is open on the pleadings for Ms Lee to attack the issue of building approvals. However, I do not accept that approval involved a failure to exercise reasonable care. The engineers accepted that a metal railing could comply with the 1981 Standard. There was no means of establishing that the railing depicted in the general architectural drawing definitively did not comply. The Council's approval was subject to compliance with Ordinance 70 which meant that this issue was still to be addressed. This particular is not made out.
(j) Upheld particulars of negligence
366The balance of the particulars reflect at least part of the case that Mr Cavanagh SC outlined in his oral submissions, namely the inspection of the building work on the premises ((a) and (b)), the licensing and permitting of its operation as a car park ((i), (j), (l) and (r)) and a concomitant failure to require the strengthening of the external barrier ((m)). Three matters should be noted about those particulars. First, for the reasons already outlined, to the extent that those particulars refer to the Council having to "ensure" something, they are pitched too high (ie (a), (b)) (see [135]). I will treat them as only referring to the need to exercise reasonable care. Similarly, the matter simply cannot be approached on the basis that, because the perimeter railing did not comply with the 1981 Standard, a finding of negligence must follow.
367Second, as previously stated, the reference to licensing and permitting the use of the car park is to be taken as a reference to issuing a classification certificate, issuing a s 317AE certificate, issuing a licence under clause 3(3) of Ordinance 34B, and not taking regulatory action such as exercising the power conferred by s 316 of the LGA 1919. To the extent that these particulars involve a complaint about the exercise of the power conferred by clause 3(3) of Ordinance 34B, I have already rejected it.
368Third, as previously noted, an assessment of whether the Council was negligent in failing to take some particular step must be undertaken prospectively (see [148]).
369I have referred above to the competing factual contentions in respect of the submission of structural plans and engineering certificates. In his written submissions Mr Miller SC also pointed to the fact that there was no pleaded allegation of a breach for failing to require these documents, or proceeding to issue a classification certificate in their absence. That is so, but it is beside the point. The significance of those documents is that they may have provided a basis upon which the Council could have concluded that the relevant requirements of Ordinance 70 were satisfied as was required by s 310.
370In this case the relevant inspections of the building were conducted in 1989. A building inspector can be taken to be aware or should have been aware that the 1981 Standard was applicable to the railing. It is true that I did not positively find that any structural plans for the railing were not provided, but that was only because I accepted that the nature of such a plan was such that it might not have been able to be determined from the plans that the railing was non-compliant. Even if the Council had in its possession structural plans relating to the railings, those plans could have been only approved subject to compliance with Ordinance 70. It follows from my earlier findings and the engineers' evidence that any such structural plans could not have provided a proper basis for the Council to be satisfied that the railing, as constructed, complied with clause 30.1 of Ordinance 70. In the absence of an engineering certificate of some kind, there was no other material upon which to base that conclusion. It appears to be common ground that the inspectors did not have engineering qualifications. However, even if they did, then it follows from the engineers' evidence that any conclusion they reached about the railing's compliance was unreasonable.
371The fact that a building did not in some respect or respects comply with Ordinance 70 does not, of itself, demonstrate negligence on the part of the Council. Further, there maybe some circumstances in which a failure to have material demonstrating compliance with a structural requirement is a mere oversight and not indicative of negligence. However, the history of the development was such that change in the façade of the building warranted scrutiny as to the ability of the proposed railing to withstand the required loads. The metal railing was the external barrier for a significant portion of the car park. It was a significant safety feature for the car park. What is the point of such a barrier in a high rise car park if it is not to provide some resistance to impacts from vehicles that were travelling at low speed?
372Although the submissions did not refer to ss 5B and 5C of the CLA, much less the risk of harm, I am required to address those provisions. I cannot see any reason why the "risk of harm" is any different for the case against the Council as it is for the case against Carlton, namely the risk of physical injury including death, or property damage from a vehicle colliding or coming into contact with an inadequate perimeter railing (see [145]). For the reasons previously noted, in my view the relevant risk was both foreseeable and not insignificant (s 5B(1)(a), (b)).
373Particulars (a) and (b) allege that the Council failed to conduct an "adequate" inspection. Presumably the relevant "precaution" for the purposes of s 5B(1) is the conduct of an inspection of sufficient adequacy to enable the Council to be reasonably satisfied that the car park, including the railing, was compliant with Ordinance 70, including clause 3.3 of the 1981 Standard. In this context "inspection" includes making inquiries of the developer and its advisers about the existence of appropriate certifications. For the reasons already explained, I am satisfied that the Council did not take that step. Other than the unexcluded possibility that some structural plans which did not definitively disclose non-compliance were provided, the Council did not have any material before it to demonstrate that the railing complied with the 1981 Standard. No such material, including an engineer's certificate, was provided during the inspection or at any other time.
374Would a reasonable local council have taken that step (s 5B(1)(c))? In my view it would have. There was a probability of harm eventuating if reasonable steps were not taken by the Council to satisfy itself that the perimeter railing complied with the 1981 Standard (5B(2)(a)). The entire point of such a railing on a high rise car park is to prevent minor accidents involving vehicles on upper levels becoming catastrophic ones. Council could not eliminate the risk of that occurring, and primary responsibility for building an adequate barrier rested with the developer. Nevertheless, that risk could have been significantly mitigated by appropriate checking by the Council.
375Further, I do not consider that the burden imposed on the Council of doing so would be too onerous (s 5(2)(c)). The effect of Mr Glanville's evidence is that the requirement of engineering certificates was standard practice. As noted, perhaps not every single structural feature of a complete car park would require certification by an engineer or similar substantiating evidence. However this was a significant safety feature and it had been changed during the life of the project, and engineering certificates covering it were required.
376In my view, the Council's inspections at the point after the railing was completed were negligent because in the circumstances the Council was required to consider whether it was satisfied that the perimeter railing complied with the 1981 Standard. There was nothing provided to the Council to enable it to be so satisfied, and it could not reasonably reach that opinion on a visual inspection either.
377The next step is to consider the exercise and non-exercise of powers consequential on the finding as to negligence in the "inspection" of the car park on its completion. They can either be addressed as precautions in their own right as contemplated by the balance of the particulars, or on the basis that, but for the negligent inspection, the relevant defect would have been acted upon or the exercise of reasonable care would have required it to be acted upon (see Roads and Traffic Authority v McGregor [2005] NSWCA 388 at [68] to [69]). The result is the same on either approach.
378It follows from my findings that the outcome of an adequate inspection should have been that the Council was left unsatisfied as to the car park's compliance with Ordinance 70. Thus the building would not have been compliant with s 310 (Sutherland Shire at 471 per Mason J). At that point the only sensible "precaution" the Council could have undertaken would have been not to issue a classification certificate (and based on Mr Glanville's evidence it can be expected that it would not have done so). Similarly, notwithstanding the terms of s 317AG(3), it could not reasonably have issued a s 317AE certificate and, based on Mr Glanville's evidence, would not have done so. Further, if the developer threatened to occupy or use those parts of the building that were relevantly affected while the perimeter fencing remained non-compliant, the only sensible precaution that it can be expected to have taken was to prohibit that use or occupation under s 316(1). Again it can be expected that the Council would have in fact done that. In my view the outcome is that the car park would simply not have been able to operate unless barriers that complied with the 1981 Standard were erected.
379Accordingly, I uphold each particular of negligence (a), (b), (i), (j), (l), (m), (q) and (r) to the extent that they contend that the inspections of the car park, and in particular the perimeter railing of the car park, prior to it commencing occupation as a car park were inadequate and that the Council issued a classification certificate, a building certificate and otherwise failed to take action under s 316 as a consequence of concluding that the car park had been constructed in accordance with the approved plans and specifications and Ordinance 70.
(k) Causation
380I have described the operation of s 5D of the CLA above. I am satisfied that, but for the Council's breach of duty, a perimeter railing constructed in accordance with the 1981 Standard would have been installed on the car park prior to it commencing operation. In particular, it can be expected that if Tai Ping was refused a classification certificate and a safety certificate, then it would have taken action to rectify the railing without the necessity for Council to take the further step of, say, issuing a direction under s 316. It clearly had invested a large sum in the redevelopment of the site and I doubt it would have jeopardised obtaining a return by embarking on a stand-off with the Council over the load compliance of the perimeter fencing.
381A proper perimeter railing may have deteriorated between the time of installation and Mr Lee's accident. However, there is nothing to suggest that by 2006 it would have ceased to offer sufficient load resistance to prevent Mr Lee's car falling off the edge. Although the Council does not bear any responsibility for the faulty wheel stop, the deficiency in the perimeter railing was an independent cause of the loss being sued for. Subsection 5D(1)(a) is established. There was nothing raised that would warrant restricting the scope of liability to exclude liability in respect of Mr Lee's death under s 5D(1)(b).
(l) Section 42
382In its defence the Council pleaded reliance on s 42. In his written submissions (at [166] ff) Mr Miller SC clarified that it was only relied on to the extent that it was asserted that the Council had a duty to "ensure" a particular outcome. I have already rejected that aspect of Ms Lee's case.
(m) Section 43
383The Council also pleaded reliance on s 43. However it was accepted that s 43 only concerns actions for breach of statutory duty. Ms Lee did not bring such an action.
(n) Section 43A
384The Council also relied on s 43A of the CLA, which provides:
"43A Proceedings against public or other authorities for the exercise of special statutory powers
(1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority's exercise of, or failure to exercise, a special statutory power conferred on the authority.
(2) A special statutory power is a power:
(a) that is conferred by or under a statute, and
(b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority.
(3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.
(4) In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44."
385In this case, although I have found that the Council was negligent in the inspections it conducted of the building upon its completion, there is no doubt that the suggested liability of the Council is at least based on the exercise of a statutory power for two reasons. The first is that the inspection(s) had a statutory source (see [224]). Second, by reason of those negligent inspections, I have found that the power to issue a classification certificate and a building certificate were negligently exercised (as well as finding they would not have been exercised had the inspections been "adequate"). Whether the liability is "based on" the exercise of the power conferred by s 316 is addressed below.
386The second set of statutory powers I have just referred to were clearly special statutory powers as defined in s 43A(2) (Curtis v Harden Shire Council [2014] NSWCA 314 at [248] per Basten JA). I will assume that the statutory function of inspections also satisfies s 43A(2). The test posed by s 43A(3) requires the Court to "look at the matter having regard to what the authority in question could properly consider a reasonable exercise of power" (Curtis at [6] per Bathurst CJ, and at [224] per Beazley JA and [278] per Basten JA). Otherwise, in Warren Shire Council v Kuehne [2012] NSWCA 81; 188 LGERA 362 at [117] ("Kuehne") Whealy JA stated that the "unreasonableness must be at a high level".
387In my view s 43A has been satisfied in relation to this matter. Even allowing for the possibility that there might have been some structural plans submitted to the Council concerning the perimeter railing, I consider that no council possessing the functions and powers of the Council in this case could have properly concluded that the building conformed with Ordinance 70. As previously noted, if any such structural plans described the railing in detail, then a spot check would have revealed the railing did not comply with the 1981 Standard. Otherwise there was simply no material upon which the Council could properly have reached the state of satisfaction referred to in s 310 of the LGA 1919, at least so far as the perimeter railing is concerned. It is true that the railing was only one component of the overall project. Like an assessment of negligence, s 43A is directed to the relevant decisions all of which concern the building as a whole. However the perimeter railing was a significant safety feature for the general public in the form of users of the car park. This all arose in a context where the Council had approved general architectural drawings changing the façade of the building and where detailed structural drawings of the previous façade had been supplied. This was a significant project involving the construction of a large car park in the middle of a large and busy city. The physical safety of users and occupants of the building (and nearby users) was paramount. It was seriously neglected.
388As previously noted, the Council's written submission in relation to s 43A referred, inter alia, to the alleged ambiguity in the 1981 Standard arising from the notation as a matter justifying the approval of the railing. For the reasons already canvassed, I do not consider that any Council acting reasonably could construe the 1981 Standard in that manner. Further, in light of the matters noted at [245], even if there was any such ambiguity, it is irrelevant in this case.
(o) Section 44
389The Council also relied on s 44 of the CLA. It provides:
"44 When public or other authority not liable for failure to exercise regulatory functions
(1) A public or other authority is not liable in proceedings for civil liability to which this Part applies to the extent that the liability is based on the failure of the authority to exercise or to consider exercising any function of the authority to prohibit or regulate an activity if the authority could not have been required to exercise the function in proceedings instituted by the plaintiff.
(2) Without limiting what constitutes a function to regulate an activity for the purposes of this section, a function to issue a licence, permit or other authority in respect of an activity, or to register or otherwise authorise a person in connection with an activity, constitutes a function to regulate the activity."
390Section 41 defines "exercise a function" as including to "perform a duty", and "function" as including "a power, authority or duty".
391The origins of s 44 appear to be something of a mystery. Chapter 10 of the Review of the Law of Negligence (the "Ipp Report") (Law of Negligence Review Panel, Parliament of Australia, Review of the Law of Negligence Final Report (September 2002) 151-163) recommends various principles as the basis for law reform, including four concerning the liability of public authorities. None of them remotely resembled s 44. Instead s 44 in its enacted form first appeared as s 46 in the "Consultation Draft" of the Civil Liability Amendment (Personal Responsibility) Bill 2002 that was released on 3 September 2002. The notes accompanying that draft simply stated:
"(f) ... (iii) a public or other authority that has functions to prohibit or regulate an activity will not be liable in connection with a failure to exercise the function or to consider exercising the function unless the authority could have been compelled to exercise the function."
392The Consultation Draft led to the tabling of the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) (No 92 of 2002) which introduced the second wave of reforms which commenced with the passage of the CLA on 20 March 2002. Section 46 was reproduced as s 44 of that Bill. It passed through both houses unamended. Both the Premier's second reading speech to the House of Assembly and the Treasurer's second reading speech to the Legislative Council stated as follows in relation to s 44:
"An authority that has not exercised a regulatory power - such as a power to close a fishery - will also not be liable unless it could have been compelled by a court to exercise that power."
393The explanatory note to the Bill made the same statement in relation to this provision as the notes accompanying the Consultation Draft extracted above.
394Section 44 has been referred to in a number of cases, but it appears to have so far successfully evaded interpretation and application (see for example Makawe and Kuehne).
395Three issues appear to be raised by s 44. The first is to determine "the extent [that a public or other authority's] liability is based on the failure of the authority to exercise or to consider exercising any function ... to prohibit or regulate an activity". The second is whether the relevant authority could have been required to exercise the function. The third is whether it could have been required to exercise the function "in proceedings instituted by the plaintiff".
396In relation to the first issue, it seems clear that s 44 is meant to encompass a true non-feasance case at common law. However, what about a case in which part of the complaint concerns the failure to exercise an "interconnected statutory power [from one which] has already occurred" (Pyrenees Shire Council at [177] per Gummow J)? The Council's written submissions carefully parsed the various particulars of negligence in an endeavour to isolate those which involved an assertion that the Council had not exercised a particular power as opposed to having negligently exercised a power. Most of them are no longer relevant, but so much of the case as concerned the non-exercise of the power conferred by s 316 of LGA 1919 remains.
397This issue was touched upon in Makawe where the judge at first instance found that s 44 had no application in circumstances where the Council had exercised a power to grant a development approval because that meant it had embarked upon an exercise of the relevant "function" (at [189] per Simpson J). On appeal it was argued that the relevant failure was to impose conditions on the development approval and that complaint engaged s 44 even if the power to grant approval had been exercised (at [190]). In the end result, the Court of Appeal did not consider this issue as it was not necessary for the resolution of the appeal (at [191]).
398As I have explained, even though one aspect of the conduct of the Council in licensing or permitting the use of the premises as a car park was the Council's failure to prohibit the use or occupation of the car park under s 316, this is not a non-feasance case. The Council embarked upon a detailed consideration of the exercise of its statutory powers by undertaking inspections, as well as issuing a classification certificate and a s 317AE certificate. In these circumstances what would it add to conclude that the Council is not liable to the extent that it did not consider exercising the power conferred by s 316, if it was liable for exercising the power to issue, inter alia, a classification certificate? In light of the finding at [380], the answer is none because I accept that Tai Ping would not have operated or continued to operate the car park in the absence of a classification certificate and without addressing concerns raised by the Council about the loading resistance of the perimeter railing. This is sufficient to support the conclusion that s 44 is not engaged.
399More generally I suspect, but need not decide, that the correct position is that any case that is truly characterised as a misfeasance case at common law is not one that engages s 44. Such a case will be properly characterised as one "based on" the relevant power or act that was negligently performed. The fact that, had it not been performed in a negligent manner, it would or perhaps even should have resulted in the exercise of a further power will not necessarily mean that the case was "based on" the failure to exercise that power.
400In light of this conclusion, it is not necessary to resolve the second and third issues noted in [395] above, but I will briefly comment. In his book, Annotated Civil Liability Act 2002 (NSW), Mr Villa states that s 44 reflects the passage from the judgment of Brennan CJ in Pyrenees Shire Council at [24] to [28] (Dominic Villa, Annotated Civil Liability Act 2002 (NSW) (Thomson Reuters, 2nd Ed, 2013) at [5.44.030]). Presumably the basis for this assertion is that that judgment is the only judicial discussion in this country that invokes public law principles in this context. For present purposes, two matters should be noted about Brennan CJ's judgment in Pyrenees Shire Council. The first is that his Honour observed that, notwithstanding that only a discretionary power may be conferred, circumstances may be such that the public authority can be compelled to exercise it (at [23]). His Honour found that Pyrenees Shire Council was under such a duty in that case (at [28]). The findings I have made warrant that conclusion in relation to s 316 in this case. Second, Brennan CJ repeatedly described the type of powers that were so amenable as those which were directed towards protecting the person or property of a distinct class of people, as opposed to a power which is "to be exercised for the benefit of the public generally" (at [26]). His Honour considered that any person who was within that class had, inter alia, "locus standi to seek a public law remedy" (at [25]).
401I have already noted that during the period 1987 to 1991 there was no open standing regime for the LGA 1919. However, if the judgment of Brennan CJ in Pyrenees Shire Council was dispositive of the second and third issues that arise under s 44(1), then Ms Lee would still succeed. Section 316 is clearly a power conferred on the Council for the protection of persons "of a class of individuals" of which both Mr Lee and Ms Lee were clearly members, namely users and occupants of the building.
402However the drafting of s 44(1) complicates matters. It refers to the "plaintiff" which, in a different context to this case, could represent a difficulty for a claimant under the Compensation to Relatives Act 1897 in that, while the deceased might have had standing, their relative might not. Further the drafting appears to create a temporal problem in a case such as this in that, at the time that action by the Council was required, neither Mr nor Mrs Lee was an occupier or user of the car park and, at the time they were occupiers and users, the statutory regime had changed completely, as had the standing requirements. The proper application of s 44(1) may require the adoption of a hypothesis that the relevant accident occurred at the time the relevant duty was required to be exercised. However in light of the conclusion in [398], it is not necessary to consider this further