87 The passage cited from the majority in Byrne shows how that case is distinguishable from the legislative scheme being considered in this case. In Byrne the reason why it was held that a breach of the award did not give rise to a private claim for damages was because the Industrial Relations Act expressly provided for an alternative form of compensation that in effect exhausted or took over any private right that may accrue by implication from the Act. In this case there are two sections that give private rights of action.
85 They are ss123 and 124 which provide:
Restraint etc of breaches of this Act
123 (1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.
(2) Proceedings under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.
Orders of the Court
124 (1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.
(2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may:
(a) where the breach of this Act comprises a use of any building, work or land-restrain that use,
(b) where the breach of this Act comprises the erection of a building or the carrying out of a work-require the demolition or removal of that building or work, or
(c) where the breach of this Act has the effect of altering the condition or state of any building, work or land-require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed.
88 These sections do not however give a private right to damages.
89 In the present case the regulation making power in the present Act is as follows:
"157 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular, for or with respect to:
(a) any function conferred by this Act on any person, or
(b) requiring information, particulars, returns and statistics to be furnished to the Director-General by councils and the time and mode of furnishing and the manner of verifying them, or
(c) the form, time, manner and mode of giving notices under this Act, or
(c1) the content, form, erection, maintenance and removal of signs relating to the carrying out of development or persons involved with the carrying out of development, or
(d) obligations on persons regarding fire safety, or
(d1) temporary structures, or
(d2) places of public entertainment, or
(e) the purposes, objectives, provision and maintenance of affordable housing, including:
(i) means for determining whether a household is a very low income, low income or moderate income household (for example, by reference to income statistics produced by the Australian Bureau of Statistics), and
(ii) means for determining affordable housing costs payable in respect of affordable housing (for example, by reference to percentages of household income), and
(iii) enabling the Minister by order to determine matters relating to affordable housing (including the matters referred to in subparagraphs (i) and (ii)), or
(f) procedural matters in relation to the making of local environmental plans.
(2) A provision of a regulation may:
(a) apply generally or be limited in its application by reference to specified exceptions or factors,
(b) apply differently according to different factors of a specified kind, or
(c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body,
or may do any combination of those things.
(3) A regulation may apply, adopt or incorporate any publication as in force from time to time."
90 This regulation making power is quite different to the power in s318 of the Local Government Act 1919 which supported the ordinance in Anderson. In Mcdonald v Girkaid [2004] NSWCA 297 the court made reference to the comments of McHugh J and Gummow J in Byrne in these terms:
"171 The proposition to which their Honours referred was one which enjoyed currency prior to the decision in Australian Iron and Steel Pty Limited (1957) 97 CLR 89 in which Kitto J's judgment made it plain (at 98) that it was based on the fallacy that the question whether a private cause of action was created depended on discerning a "disclosure of a positive intention to create such a right." Following that decision, as was pointed out in The Liability of Employers , Glass, McHugh and Douglas (The Law Book Company Limited, second edition at 115), "[a]ctions for breach of duties created by regulation … proliferated". McHugh and Gummow JJ's observation had particular significance in Byrne v Australian Airlines Limited where it was being contended that "the silent statute operates upon an award made by an arbitral body established by the statute". It cannot, however, resolve the outcome of the question whether regulations 18 and 19 created a private cause of action."
91 After referring to the nature of the Dangerous Goods Act under consideration in that case the Court said:
"174 However, the question whether a statutory duty confers a correlative private right of action also turns on whether the statute imposes a duty to take "a specific precaution" ( O'Connor v S P Bray Limited ) or "measures for the safety of others" ( John Pfeiffer Pty Limited v Canny ).
175 In Storozuk v Commissioner for Railways (1963) 63 SR (NSW) 581 at 593 - 594, Brereton J (with whose reasons Else-Mitchell J agreed) doubted whether regulations which expressed an obligation in terms of a requirement to take "all practicable precautions" founded a civil action. This was because the phrase did not "prescribe or define precisely the means that must be taken …" (referring to Windeyer J in General Constructions Pty Ltd v Peterson (1962) 108 CLR 251 at 257). In Slivak v Lurgi (Australia) Pty Limited [2001] HCA 6; (2001) 205 CLR 304, however, all members of the High Court held, respectively, that a provision of the Occupational Health, Safety & Welfare Act 1986 (SA) which turned on the phrase "ensure so far as reasonably practicable" created a private cause of action (at [27] - [29] per Gleeson CJ, Gummow and Hayne JJ, at [50] per Gaudron J, at [87] per Callinan J).
176 Although the question whether a statute confers a private cause of action ultimately turns on the terms of the particular legislation, Slivak v Lurgi (Australia) Pty Limited is persuasive authority supporting the view that the requirements in regulations 18(e) and 19(e) to take "all practicable steps" and "all practicable precautions" sufficiently identify specific precautions or measures to support the primary judge's conclusion that, taken with the purpose of the dangerous goods legislation, those regulations created a private cause of action. I would, therefore, reject ground 6(a) of McDonald's grounds of appeal insofar as it relates to regulations 18(e) and 19(e).
177 Regulation 19(g) is in a different category. It prescribes the end but not the means. It does not identify any specific precaution or measure which the occupier is to take for the safety of others. It is a blanket prohibition on doing the act in question. It does not tell the occupier what measures must be taken: cf Utah Construction & Engineering Pty Limited v Pataky [1966] AC 629 at 641. In my view, the absence of identification of specific precautions means that regulation 19(g) should not be construed as conferring a correlative private cause of action on Girkaid and Inghams. I would, therefore, uphold ground 6(a) of McDonald's notice of appeal insofar as it related to regulation 19(g).
178 The conclusion that one out of several clauses in the enactment does not create a private right is not inconsistent with a conclusion that other clauses in the same enactment do create such a right: see O'Connor v S P Bray Limited , above, at 479."
92 The words with which I am concerned "must preserve and protect the building from damage" are even more specific than the words with which the Court was concerned in McDonald.
93 The prescribed conditions in Part 7 of the Environmental Planning and assesment regulations 1994 which must by force of law be included in a development consent include a range of conditions directed towards matters which fall within the rubric of health and safety requirements to protect the public or certain classes of the public. In this case there are a substantial number of other conditions of the consent imposed by the Council which have nothing to do with these prescribed conditions and which are in a different category. Like Giles J in Pantalone v Alaouie I find the reasons advanced by Jacobs JA in Anderson v Mackellar County Council at p 448 compelling. Those reasons were:
"It seems to me that the underpinning and shoring of adjoining buildings is a subject matter which initially has the character of a provision which the legislature might well intend for the special benefit of the limited class of adjoining owners and occupiers and in which it might well intend to give those owners and occupiers private rights of action in the case of a breach. The terms of the actual Ordinance in the present case add much support to this view because, after the provisions of par. (a) and par. (b) as set out in the declaration, there are further provisions which specifically deal with the relationship between a building owner and an adjoining owner in terms which I have no doubt create private rights and obligations between them. There is the further significant fact in the Ordinance that this clause made pursuant to par. (17) of s. 318 is limited to cases where the adjoining building is in different ownership.
I therefore do not find a context of the legislation to the contrary of any intention to create private rights, and in addition I find many of those circumstances from which an intention to create private rights can be inferred. The statutory penalty provided under the Local Government Act for breach of an Ordinance is quite inadequate when the damage from a breach in this particular case may be of an especial magnitude. The primary benefit of a provision made pursuant to this paragraph of the Ordinance is for the adjoining owner or occupier. It is true that there may be a general benefit to the community not to have buildings in the community made ruinous by building works of adjoining land, but this benefit is quite secondary to the enormous benefit conferred by the legislative provision on the adjoining owner and occupier There is the further fact that in this same field there is an analogous, but by no means identical, common-law duty. The adjoining owner has a natural right to the support of his land and he may acquire a right to the support of his buildings. The fact that the common-law right is limited to support for the land may possibly be regarded as the reason for the legislative intention to confer rights in respect of support of buildings on those lands. The importance in the present context is that the common-law right to support for the land itself is in the same general field as the rights intended to be conferred by the legislation. In the circumstances, therefore, I am of the opinion that it sufficiently appears that there was a legislative intention in s. 318 (17) to permit the creation by Ordinance of private rights of action in respect of breach of any statutory duty imposed pursuant thereto, and that there sufficiently appears from the terms of the relevant Ordinance an intention that thereby a private right on the adjoining owner should be conferred by virtue of the statutory duty created pursuant to the terms of cl. 44 of Ordinance 71.
"
94 Given that the legislative scheme requires the imposition of the particular condition I would not liken the legislative scheme to one where a silent statute operates upon an award by an arbitral body established by the statute. In this case the "arbitral body", namely the council, is obliged to include the conditions. It has no choice in the matter as the statute and regulations command what must be done. The scheme of the Act which provides for the safety of buildings and those working or living within them, its penalty provisions for breach of condition and the identical wording employed in ordinance 31.4 and cl 78 F of the Regulation in force at the time of consent, lead me to conclude that the Regulation and the Act does give a private cause of action for damages in respect of a breach of this condition.
95 The relevant condition imposed by regulation refers to "the person causing the excavation to be made". Giles J dealt with this expression in Pantalone v Alaouie in these terms:
"Clause 31.4 differs significantly from cl 44(b). It does not impose the obligation specifically upon the building owner. It seems to have been thought that there may be situations in which the building owner would be so remote from the carrying out of the work that it would be inappropriate to impose the obligation upon him and subject him to liability for its breach; and conversely, that there may be situations in which some person other than the building owner would be so responsible for the carrying out of the work that the obligation should be imposed on him and he should be subjected to the liability for its breach. The more flexible criterion has therefore been used of the person causing the excavation to be made. The flexibility carries with it uncertainty. In one sense, the owner who lets a building contract to a
builder, who sublets an excavation contract to an excavator, causes the excavation to be made. In another sense, the plant operator working the excavator causes the excavation to be made.
I do not think that it was intended that there should be multiple liability. Clause 31.4 refers to "the person" not "any person", and requires that person to give the notice and particulars to which cl 31.4(2) refers. Quite apart from what flows from the use of the definite article, it is unlikely that it was intended that each one of those who might be considered as causing the excavation to be made, ranging from owner to contractor to sub-contractor to labourer, should have to give the notice and particulars. Rather, it seems to me that it was intended that one person must be identified as the person causing the excavation to be made, and that person must be identified primarily by asking who was thought to be in a position to give seven days notice of his intention to excavate, in a position to give particulars of the work he proposes to do, and in a position to take the protective measures to which cl 31.4 refers."
96 In the present case the first and second defendants were the owners as well as the developers of No 44. They employed design engineers and various contractors to do the piling work and the excavation. They coordinated all those activities. In these circumstances plainly they were the ones who caused the excavation and, accordingly, would be liable at the suit of the plaintiffs.
97 The statutory duty is one of strict liability and, accordingly the first and second defendants are liable for breach of the terms of the consent as they caused an excavation to be made below the level of the base of the footings of the building next door and they "failed to preserve and protect such building from damage". Plainly this has occurred in the present case and they are liable. However, it is necessary to continue with a consideration of their negligence for the purposes of the cross-claims and any necessary apportionment of liability.
Whether there was in an implied term of Piling's contract that Prynew would act carefully
98 In paragraph 84 of the Report the Referee concluded that the piling contract between Piling on the one hand and Prynew and Tsu on the other contained an implied term that Prynew and Tsu carry out " its work using proper skill and care". The reasons given by the Referee for implying the term was that a similar term was implied into the piling contract in respect of piling work carried out by Piling.
99 It appears that such later term was implied because there was a concession made by Piling to that effect. Prynew made no similar concession. The relevant item of work that was done was the setting out for the placement of the piles. Prynew and Tsu or others that they had engaged, did that work. The contractual provisions in the piling contract were to the effect that the setting and maintaining of survey pegs and levels for piles and checking after driving were to be provided and maintained by others than Piling at no cost to Piling and in such a manner that Piling's operations were not delayed.
100 The basis of an implied term is referred to by Mason J in Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 347 where the court approved the statement in BP Refinery ( Westport) v Shire of Hastings (1977) 16 ALR 363 at p.376:
"Their Lordships do not consider it necessary to review exhaustively the authorities on the implication of a term in a contact which the parties have not thought fit to express. In their view, for a term to be implied, the following conditions (which may overlap) must be satisfied.
(1) It must be reasonable and equitable;
(2) It must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it;
(3) It must be so obvious that 'it goes without saying';
(4) It must be capable of clear expression;
(5) It must not contradict any express term of the contract".
101 Given that the work could be performed by others I do not think that the implied term was necessary to give business efficacy to the contract. In addition, as the express term of the contract recognized that others rather than Prynew or Tsu would do the relevant work the implied term would seem to contradict that term. This is not to say however that in the circumstances where Prynew and Tsu did the work (if that be the case) the relevant duty of care might be found and breached as indeed the Referee decided at paragraph 419.
102 It is useful to turn to some of the main factual matters which were the subject of submissions before me.
Whether, as found by the Referee, excavation occurred in the immediate vicinity of the short pile after sand had been pushed against it on 23 July and before the first subsidence
103 There were a number of breaches of duty of care found by the Referee in respect of the setting out of the piling work and in respect of the steps that should have been taken in the period between when the short pile was first discovered on 21 July and the evening of the 26 July when the subsidence occurred on the first occasion. The relevant breaches found by the Referee in respect of these areas were as follows: