Plaintiff v Firstnamed Defendant

2 On Christmas Eve 2008, the plaintiff, Mr Hershall Cohen issued by writ a group proceeding pursuant to Part 4A of the Supreme Court Act on behalf of himself and the "land owners and occupiers of land" who suffered damage as a result of the fires. He sued the State Government of Victoria (later amended to read the "State of Victoria"), Parks Victoria ("PV") and the Department of Sustainability and Environment (later amended to read the Secretary to the Department of Natural Resources and Environment - "DNRE").

3 In essence, the claim bought by Mr Cohen on behalf of land owners affected by the fires, relates to the measures taken by the three defendants to prevent or restrict the spread of the fires from areas of Crown land under their control.

4 The question now is whether Mr Cohen should have leave to rely upon the fourth version (V4) of his statement of claim. The issues raised on the application involve:

(b) Whether a number of the allegations of breach of statutory duty made by Mr Cohen are foredoomed to fail and should not be permitted.

5 A generally indorsed writ was filed by Mr Cohen on 24 December 2008.

6 On 7 April 2009, Kyrou J ordered that a statement of claim be filed by 16 June 2009. It was filed on 19 June 2009 (V1) but, consequent upon correspondence between the parties, Mr Cohen was given leave on 14 August 2009 by Kaye J to file and amend the statement of claim by 25 September 2009. That statement of claim was filed on 9 October (V2).

7 On 13 November 2009, apparently by consent, Mukhtar AsJ ordered that the amended statement of claim be struck out and gave leave to file a further amended statement of claim by 18 December 2009. A proposed further amended statement of claim was served on 5 February 2010 (V3).

8 On 19 February 2010, the defendants issued a summons seeking orders dismissing Mr Cohen's proceeding for want of prosecution and that there be judgment for the defendants.

9 On 13 April 2010 I heard Mr Cohen's application for leave to file V3. I made the following orders:

• Mr Cohen was refused leave to amend the statement of claim in the form of V2;
• He was granted leave to file a further draft amended statement of claim; and
• The summons to dismiss Mr Cohen's proceeding for want of prosecution was adjourned.

10 On 11 June 2010 I heard argument as to whether a further statement of claim (V4) was pleaded with sufficient clarity to enable Mr Cohen's claim to go forward.

Applicable principles in relation to the adequacy of the statement of claim

11 Nearly a century ago the High Court in Gould v Mount Oxide Mines Ltd[1] said:

Undoubtedly, as a general rule of fair play, and one resting on the fundamental principle that no man ought to be put to loss without having a proper opportunity of meeting the case against him, pleadings should state with sufficient clearness the case of the party whose averments they are. That is their function. Their function is discharged when the case is presented with reasonable clearness. Any want of clearness can be cured by amendment or particulars. But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest. There is abundant authority for this even if the matter were required to rest on authority only.

12 Seventy-five years later, in Banque Commerciale SA, En liquidation v Akhil Holdings Ltd,[2] the High Court said:

The function of pleadings is to state with sufficient clarity the case that must be met. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities.

13 In Multigroup Distribution Services Pty Limited v TNT Australia Pty Limited,[3] Burchett J said:

The primary function (of a statement of claim) is to tell the defending party what the claim is that he has to meet. That is a matter of elementary and natural justice; the claim cannot be answered until it is known. When a sufficient defence has been filed to a sufficient statement of claim, a further function will generally have been performed - that of defining the question or questions for decision. This definition is required, of course, from an early stage, or else discovery and other interlocutory procedures are likely to prove misdirected, wasteful and unproductive. In order to achieve these fundamentals, a statement of claim must set out clearly, not just the bare claim that is made, but also 'the material facts on which it is based', including facts that, if not specifically pleaded might take the other party by surprise.[4]

14 In Gunns Ltd & Ors v Marr,[5] Bongiorno J said of the rules of this Court and the role of pleadings:

The fundamental rule of pleading is contained, for this Court, in RSC r.13.02(1)(a) which requires every pleading to contain, in a summary form, a statement of all the material facts upon which a party relies, but not the evidence by which those facts are to be proved. That the pleading must allege material facts is fundamental. That they must be alleged with certainty follows from the principle stated that the pleading must convey a clear conception of the case being made. If it does not, it will be embarrassing in the sense that that word is used in this area of legal discourse and, in particular, for present purposes, in RSC r.23.02 and its predecessors both here and in England. The full Court of this Court has described a pleading as being embarrassing -

where the pleading is unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him.[6]

15 Finally, I should mention the recent scholarly and detailed analysis of the purpose and function of pleadings of Refshauge J in Canberra Data Centres Pty Ltd v Vibe Constructions (ACT) Pty Ltd.[7] In particular, his Honour said:

Whatever the result of this controversy, the system of formal pleadings is currently the way each party is given notice, reasonably precisely, of the case that it has to meet. Further, however, the pleadings do more, much more, than merely give notice of the case of the other party. Second, and equally importantly, they apprise the court of the issues so that it can manage the trial and all pre-trial interlocutory proceedings.[8]

16 In light of these statements of principle, in determining whether to permit Mr Cohen to rely upon V4 I need to be satisfied that:

(a) The defendants and the court have a clear understanding of the causes of action relied upon by Mr Cohen;

(b) The material facts giving rise to Mr Cohen's claim are alleged with sufficient clarity to enable the defendants and the Court to understand the case that is to be made out at trial by Mr Cohen;

(c) That the claim is made out with sufficient precision to enable the defendants not only to know the case that they have to meet, but also to negate any prospect of ambush at trial.

(d) That the "group" represented by Mr Cohen is identified as precisely as is practicable.[9]

17 First, at the hearing on 13 April 2010 in relation to the adequacy of V3, it was clear that the version failed each of the requirements that I have just set out. It did not identify clearly the material facts relied upon, the pleading of particular causes of action was lamentable and the "group" was not identified adequately.

18 Secondly, both PV and DNRE are emanations of the State Government. A detailed report relating to the 2003 north eastern fires was authorised and published by the Government; it was authored by Mr Bruce Esplin, Dr Malcolm Gill and Professor Neal Enright, and was delivered late in 2003 to the then Premier, the Honourable Steve Bracks M.L.A. ("the Esplin Report"). It comprises 333 pages of detailed analysis of the fires in north east Victoria and Gippsland and deals particularly with issues such as "A fire and public land", "Fuel management in the high country", "Agency preparedness", "Development and implementation of fire control strategies" and "The State's emergency management arrangements in action".

19 Subsequently, in June 2008 a committee comprising eight members of Parliament supported by a Secretariat and known as "Environment and Natural Resources Committee" completed a report entitled "Report of the Environment and Natural Resources Committee on the Enquiry into the impact of Public Land Management Practices on Bushfires in Victoria". That report also dealt with aspects of the north east Victorian fires in 2003.

20 I mention both these reports (and particularly the Esplin report), not only because they are referred to in V4, but as they also provide the background to the information available to the two defendants, PV and DNRE, concerning the fires and their own roles in their management and control. Each, it can be readily assumed, are aware both of the contents of the two reports as well as, in general terms, the circumstances surrounding the fires and their management. For instance, in the Esplin report DSE (part of DNRE) is noted as a "respondent"[10]; officers of both PV and DSE were involved in public discussions[11] and consultation with the authors as part of the preparation of that report.

21 I accept that pleadings should, on their face (ie without reference to external matters), provide a coherent account of the claims made. However, it would fly in the face of common sense to think that the State, PV and DNRE, in analysing the claims brought against them, do so upon a blank canvas. In considering the adequacy of V4, it is, therefore, necessary to take into account the fact that each of the defendants has considerable institutional knowledge of the circumstances surrounding the fires. This of course does not relieve Mr Cohen and the group of the obligation to identify the claim with clarity, but arguments relating to the adequacy of the details provided in V4 need to be viewed in the light of the information patently available to the defendants and their familiarity with the subject matter of the claim.

22 There is some force in a number of the criticisms made by counsel for the defendants, of individual aspects of V4; notwithstanding these criticisms, several of which I shall deal with in a moment, I am of the view that this version articulates with sufficient clarity the claim that the defendants have to meet and that the Court has to consider. It identifies:

(a) The nature of Mr Cohen's claim and the group claim;

(b) The causes of action which Mr Cohen and the group members rely upon;

(c) The material facts which give rise to the existence of the common law duty and its scope, as well as the allegations of breach;

(d) The statutory provisions which are said to found allegations of breach of statutory duty and the allegation of breach;

(e) The material facts which give rise to the claim in nuisance and the nature of the claim;

(e) In general terms, the nature of the losses sustained by Mr Cohen and the group members.

(a) registered proprietors of land;

(b) holders of an equitable interest in land as a purchaser pursuant to a contract of sale for land;

(c) licensees or licensors of land;

(d) leaseholders of land; and/or

(e) occupiers of land.[12]

Mr Cohen then purports[13] to bring the proceeding on his own behalf and on behalf of all group members who suffered loss and damage to property "as a result of the escape of fire from the Parks to the Plaintiff's Land and Group Members' Land".

24 The defendants rightly complain that there is no identification in V4 of the particular areas of land said to be effected by the fires. There is no good reason, given the nature of the claim, why the group members should not be geographically defined by reference, at the very least, to the municipalities in which the affected land is located.[14] Without such specificity, identification of the group members is close to meaningless, particularly given the vague allegation contained in V4 of group members suffering loss by reason of "smoke damage".

25 In V4 the particular areas from which the fire escaped and for which the defendants are said to be responsible, are identified in paragraph 5:-

The Mt Buffalo National Park, Alpine National Park, Snowy River National Park, Chiltern-Mt Pilot National Park, Wyperfeld National Park and Wabonga State Park" - collectively referred to as "the Parks".[15]

The nub of Mr Cohen's claim is then set out in paragraph 8:

The plaintiff claims damages for loss and damage arising from the escape of fire from the Parks to the Plaintiff's Land between 7 January 2003 to 8 March 2003 as a consequence of the negligence, breach of statutory duty and/or nuisance of the defendants or one or other of them.

The material facts giving rise to the duty are set out at paragraphs 14 to 18. In essence, it is alleged that the State's duty arises out of its ownership of Crown land and that DNRE and PV also managed and operated the Parks. It is alleged that the DNRE carries out its managerial role pursuant to s 11 of the Conservation, Forests and Lands Act and that PV carries out its function pursuant to agreements with the State.

26 Whilst the pleadings do not specify the precise role of each of DNRE and PV in management and control of particular Parks, in my view that is unnecessary at the present time. As the Esplin report makes clear, beyond dispute, both DNRE and PV had managerial roles and each, it can be assumed, are well aware of those areas under its control.[16]

27 Reduced to its simplest, V4 makes it clear that the management role exercised by one or other of the three defendants over the Parks is the source of the duty. This is sufficient to demonstrate the basis for arguing that a duty of care was owed to Mr Cohen and the group members.

28 I reject the defendants' submissions concerning the inadequacies of this aspect of the claim.

29 Paragraphs 19 and 20 allege the scope of the duty in two ways:

To take reasonable care in managing and operating the Parks to avoid foreseeable risks of damage to the land and property of the Plaintiff and Group Members;

To take reasonable care in the risk assessment of fire, the management of fire, and the control and suppression of fire so as to prevent and/or minimise loss and damage to the Plaintiff and Group Members from any fire that may commence in the Parks and spread to the land. (my emphasis)

Each allegation asserts that the duty existed "prior to and continuing between 7 January 2003 and 8 March 2003".

30 The defendants' criticisms of this form of pleading are (a) that the scope of the duty of each defendant is not identified precisely, but rather it is a rolled up and (b) The scope of the duty, in terms of duration, is imprecise in the extreme.

31 In my view, there is no substance in the complaint relating to the rolled up allegation. Often allegations are made against multiple defendants alleging similar matters in relation to the scope of the duty owed by those defendants. In this case, at paragraph 20, Mr Cohen has identified, with some precision, the relevant aspects of the general duty which, in turn, will give rise to allegations of breach. None, it seems to me, are so imprecise or unclear as to require further amendment.

32 I think, however, that there is more substance in the complaint as to an appropriate delineation of a starting date for the scope of the duty. It is apparent that Mr Cohen will not seek to rely solely upon acts or omissions of the defendants which occurred during the course of the fires, but rather, as I follow the pleading, he will also rely upon decisions, acts and omissions of the defendants prior to the outbreak of the fires as being relevant to aspects of risk assessment and management and/or control of the fires. In those circumstances, the defendants and the Court should know when it is said, that the salient facts giving rise to such an allegation of breach first arose - i.e. the starting point. It is, in the legal sense, embarrassing to require the defendants to plead to an indeterminate allegation such as that contained in V4.[17] Moreover, it is particularly important in ensuring there are reasonable limits on both the discovery obligations of the defendants and the evidence to be adduced at trial.

33 Accordingly, Mr Cohen must, in this version to be filed in Court, identify the date or dates of the acts or omissions falling outside the period during which the fires burnt (January-March 2003). This, I have no doubt, can be done now. I emphasise that the timeframe needs to be realistic and based upon a considered assessment of the claim which will be maintained at trial.

34 The particulars of negligence of each of the defendants are set out under paragraph 22. Those particulars allege a variety of acts or omissions on the part of the defendants such as:-

(c) An inadequate system within the parks to control or suppress the fires.

(d) Too large an amount of combustible material within the parks.

(e) A variety of failures in relationship to development and implementation of a Code of Practice.

(f) Inadequate fire management and suppression activities.

35 Those particulars are sufficient, at the present time, to provide the defendants with enough information to understand which aspects of their operations will be the subject of complaint at trial. However, given the size of the fires and the areas consumed by fire, it will, ultimately, be necessary for Mr Cohen to identify, with some precision, what is the real gist of the complaint. For instance, the allegation of "permitting a build up of fuel in the park" needs to be refined so as to specify the particular areas where it is said such a build up occurred so that the defendants are in a position to meet this allegation. I have similar reservations about several of the other particulars. For my part, I would not permit the matter to proceed to trial until there was sufficient clarity in the particulars to enable the defendants to identify, with reasonable precision, their alleged failings and omissions.

36 However, it would be inappropriate to make orders in relation to provision of particulars in greater detail at this time. One of the problems, as I see it, is that notwithstanding contents of the two reports, until discovery is completed, Mr Cohen is not in a position to provide adequate particulars. If he was compelled to do so now, it would simply involve further obfuscation and delay. Accordingly, I propose to give the defendants leave to seek further and better particulars (subject to my approval) once discovery is completed.

37 The defendants argument on this aspect of the claim differs to their previous complaints. Here they contend that it would be futile to permit Mr Cohen to amend the statement of claim to plead causes of action that are necessarily doomed. In determining this application, I must be satisfied that the asserted claim cannot possibly succeed at trial, otherwise the amendment should be allowed. [18]

38 Before turning to the specific pieces of legislation relied upon by Mr Cohen, the following statement of principle of the High Court in Byrne v Australian Airlines Ltd[19] needs to be borne in mind:

A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of person is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection. The question is one of the construction of the statute, although as Dixon J pointed out in O'Connor v S P Bray Ltd, an examination of the statute "will rarely yield a necessary implication positively giving a civil remedy". One generalisation that can be made is that where the persons upon whom the statutory obligation is imposed are under an existing common law duty of care towards the persons whom the statute is intended to benefit or protect, the statutory prescription of a higher or more specific standard of care may, in the absence of any indication of a contrary intention, properly be construed as creating a private right. Thus it is that Factories and Shops Acts and other legislation designed to protect the health and safety of employees in the workplace have been held to impose duties the breach of which gives rise to a right to sue for damages.[20]

Claim based upon section 67 of the Forests Act

39 Mr Cohen[21] alleges that between 7 January 2003 and 8 March 2003 each of the defendants owed a statutory duty to the plaintiff and group members pursuant to s 67 of the Forests Act 1958

to do everything that was reasonably within their power to prevent fire in the parks from spreading.

40 The particulars of breach adopt the particulars of negligence set out in paragraph 22.

41 The Forests Act is described in the preamble as "an Act to consolidate the law for the management and protection of State forests". Section 67 is located within the division of the Act headed "Prevention of and Protection from fire" which reads:

Duty to prevent spread of fire etc.

(1) Every person who finds any fire burning in any State forest protected public land or national park or in any fire protected area during any period when there is danger of the spread of fire shall do everything that is reasonably within his power to prevent such fire from spreading and shall as soon as practicable report the existence of such fire to the nearest authorised officer or member of the police force.

42 "National Park" is defined as meaning land that forms part of a park within the meaning of the National Parks Act 1975. "Protected public land" means Crown land declared by the Minister to be protected public land in accordance with s 62 of the Forests Act. State Forest also includes Crown land and particularly reserved forests and protected forests as defined in the Forests Act.

43 Section 97(1) and (2) of the Forests Act then read as follows:

97 General penalty for offence against Act

(1) Every person who contravenes or causes the contravention of or neglects or fails to comply with any of the provisions of this Act shall be guilty of an offence against this Act and shall for every such offence be liable on conviction to a penalty expressly imposed in this Act for such offence.

(2) Any person guilty of an offence against this Act for which no penalty is expressly imposed shall be liable to a penalty of not more than 50 penalty units or to imprisonment for a term of not more than one year or to both such penalty and imprisonment.

44 In my view, s 67 does not cast a statutory duty upon the State, PV or DNRE. Rather, as its terms make manifest, the relevant obligation is cast upon every person (a) who may be present in a designated area of Crown land and (b) who finds a fire burning. This could hardly be said to impose an obligation upon a particular class - it is a requirement that anyone (citizen of the State, the Commonwealth, or otherwise) must act to prevent the spread of the fire within the designated areas. Moreover, the damage which the statute is designed to afford protection against is that, it can be reasonably assumed, of damage to land managed under the provisions of the Forests Act by the responsible authorities. Finally, it is, I think, impossible to extract out of the statute an intention to provide a ground of civil liability in the event of a failure to carry out the obligations imposed by s 67(1).

45 In my view, the claim is untenable. This amendment will not be permitted.

Claim based upon sections 31 and 39 of the Conservation, Forests and Land Act 1987

The State, pursuant to s 31 of the Conservation Forests and Land Act 1987, created the code which specified standards, procedures, policies, plans and practices and for the implementation of the objects and purposes of the Conservation, Forests and Land Act 1987;

Parks Victoria and the Department owed a statutory duty to the Plaintiff and Group Members to comply with the Code pursuant to s 39 of the Conservation, Forests and Land Act 1987.[23]

The particulars of breach allege a failure to comply with the code and repeat the particulars of negligence set out in paragraph 22.

1. Approval and preparation of Codes of Practice

(1) The Minister may approve any Code of Practice which specifies practical procedures for the carrying out of all or any of the objects or purposes of a relevant law.

(2) A Code of Practice must be approved in writing by the Minister for publication.

(3) The Minister or the Secretary may prepare a Code of Practice for approval under this section.

(4) If the Minister so directs the Secretary must prepare a Code of Practice for approval under this section.

(5) A reference in this Part to a draft Code of Practice is a reference to a Code of Practice which has not been approved under this section.

Secretary to make available and consider report

(1) The Secretary must make the panel's report available at its principal office during office hours for any person to inspect free of charge until the end of 2 months after the draft Code of Practice is approved and comes into operation or lapses.

(2) The Secretary must consider the panel's report before deciding whether or not to adopt the draft Code of Practice.

As only a cursory reading of the two sections makes clear, this allegation of statutory duty has no foundation. The purpose of s 31 is to enable a code of practice to be drawn up and approved by the minister. It is quite beyond me how it can be said that s.39 has any relevance whatsoever to an arguable private right arising out of a statutory obligation. Simply put, neither s 31 nor s 39 can, on any view, give rise to a statutory duty on the part of PV or DNRE. The pleading is misconceived and this amendment will not be permitted.

Claim based upon sections 20 and 21 of the Parks Victoria Act

48 Paragraphs 30 and 31 of V4 make the following allegations against PV.

1. Prior to 7 January 2003, Parks Victoria was empowered to enter into agreements in relation to the prevention and suppression of fire in the parks pursuant to s 9 of the Parks Victoria Act 1998.
2. Prior to 7 January 2003, Parks Victoria owed a statutory duty to the Plaintiff and Group Members pursuant to ss 20 and 21 of the Parks Victoria Act 1998 to prepare an adequate corporate plan and business plan ('the plans') in respect of the prevention and suppression of fire in the Parks.

The statement of claim then alleges a failure to comply with s 20 and s 21 of the Act and goes on to provide particulars by adopting the particulars of negligence contained in paragraph 22.[25]

49 Section 9 of the Parks Victoria Act reads as follows:

Prevention and suppression of fire

Parks Victoria and the Director-General or Secretary to the Department may enter into agreements or arrangements relating to the prevention and suppression of fire.

50 Sections 20 and 21 of the Parks Victoria Act read as follows:

Corporate and business plans

(1) In each year Parks Victoria must prepare -

(a) a corporate plan for the next 3 years; and

(b) a business plan for the next year.

(2) Parks Victoria must give a copy of the proposed plans to the Minister on or before 31 May in each year, or such other time as the Minister may specify.

(3) The proposed plans must be in or to the effect of a form approved by the Minister.

(4) There must be included in the corporate plan or the business plan -

(a) a statement of corporate intent in accordance with section 21;

(b) a financial statement containing the prescribed information;

(c) estimates of the receipts and expenditure of Parks Victoria for the next financial year or such other period as the Minister may specify.

(5) Parks Victoria must consider any comments on a proposed plan that are made to it by the Minister within 2 months after the plan was submitted to the Minister.

(6) Parks Victoria must -

(a) consult in good faith with the Minister following communication to it of the comments; and

(b) make such changes to the plans as are agreed between the Minister and Parks Victoria; and

(c) deliver the completed plans to the Minister within 2 months after the commencement of the financial year.

(7) The plans, or any part of a plan, must not be published or made available, except for the purposes of this Part, without the prior approval of Parks Victoria and the Minister.

(8) A plan may be modified at any time by Parks Victoria with the agreement of the Minister.

(9) If Parks Victoria, by written notice to the Minister, proposes a modification to a plan, Parks Victoria may, within 14 days, make the modification unless the Minister, by written notice to Parks Victoria, directs Parks Victoria not to make it.

(10) The Minister may from time to time, by written notice to Parks Victoria, direct Parks Victoria to include any specified matters in or omit any specified matters from a statement of corporate intent, a business plan or estimates.

(11) Before giving the direction under subsection (9) or (10), the Minister must consult with Parks Victoria as to the matters referred to in the notice.

(12) Parks Victoria must comply with a direction under this section.

(13) At any particular time, the statement of corporate intent, the business plan, the financial statements or the estimates for Parks Victoria are the statements, plan and estimates last completed, with any modifications or deletions made in accordance with this Part.

21 Contents of statement of corporate intent of Parks Victoria

A statement of corporate intent of Parks Victoria must specify, in respect of the financial year to which it relates and each of the following 2 financial years, the following information -

(a) the objectives of Parks Victoria;

(b) the main undertakings of Parks Victoria;

(c) the nature and scope of the activities to be undertaken by Parks Victoria;

(d) the accounting policies to be applied in the accounts;

(e) the performance targets and other measures by which the performance of Parks Victoria may be judged in relation to its stated objectives;

(f) the kind of information to be provided to the Minister by Parks Victoria during the course of those financial years, including the information to be included in each annual report;

(g) any agreements entered into by Parks Victoria with the Secretary to the Department;

(h) any agreements or arrangements entered into under section 8 for the provision of services;

(i) such other matters as may be agreed on by the Minister and Parks Victoria from time to time.

51 On no rational view could s 20 or s 21 be regarded as laying the foundation of a statutory duty owed by PV to Mr Cohen or the group members. The provisions require the preparation of a corporate and business plan, and a Statement of Corporate Intent - no more. It is not necessary to waste anymore time on this point. This amendment will not be permitted.

Claim based upon section 62 of the Forests Act 1958

52 Paragraph 33 of V4 makes the following allegation against DNRE

Prior to and continuing between 7 January 2003 and 8 March 2003 the Department owed a statutory duty to the plaintiff and Group Members, pursuant to s 62 of the Forests Act 1958, to carry out proper and sufficient work for the prevention and suppression of fire in the Parks.

The statement of claim goes on to allege a failure to comply with s 62 and repeats the particulars of negligence sub-joined to paragraph 22.

53 Section 62(2) of the Forests Act reads as follows:

Notwithstanding anything to the contrary in any other Act or law it shall be the duty of the Secretary to carry out proper and sufficient work for the prevention and suppression of fire in every State forest and national park and on all protected public land but in any national park or protected public land proper and sufficient work for prevention of fire shall be undertaken only by agreement with the person or body having the management and control thereof and in case of failure to reach any such agreement as determined by the Governor in Council whose determination shall be final and conclusive.

54 The obligation cast upon DNRE by this provision is twofold:

(a) To reach an agreement with any other organisation or person having control of a national park or protected public land in relation to the carrying out of proper and sufficient work for the prevention of fire.

(b) To carry out proper and sufficient work for the prevention and suppression of fire in respect of the balance of the land under the direct control of DNRE.

55 In my view, the purpose underpinning s 67 is to ensure as far as is practicable the protection from fire of areas under the direct control of the DNRE or, alternatively, those areas of Crown land managed by others. It is not, by its terms or implication, intended to protect a particular class of person - and certainly is not intended to protect land owners of areas adjoining public land. The clear purpose, I suggest, of this provision is to protect the forest itself and ensure that both DNRE and any managing agency is aware of the need to do so. Nor do I think that it is intended to prevent damage to properties adjoining the subject land - no doubt that would be a worthwhile consequence of carrying it out fire suppression measures within the areas covered by the obligation - but that is not its primary function.

56 In summary, there is no tenable argument in relation to the creation of a statutory duty by s 62 to benefit Mr Cohen or the group members. This amendment will not be permitted.

Claim based upon section 71 of the Forests Act

Between 7 January 2003 and 8 March 2003, pursuant to s 71 of the Forests Act 1958, the Department was liable for any damage caused by a fire which was negligently permitted to spread from the parks.

The Department is liable pursuant to s 71 of the Forests Act 1958 for the damage caused by the Escape of fire from the Parks to the land between 7 January 2003 and 8 March 2003 as a consequence of the Department negligently permitting such fire to spread from the parks.

The particulars of breach adopt the particulars of negligence contained in paragraph 22.

58 Section 71 reads as follows:

Liability of Secretary for damage caused by fire

(1) The Secretary shall be liable for any damage caused by any fire which was lit kindled or maintained by or on behalf of the Secretary or any authorised officer and which was negligently permitted to spread.

(2) Where any person incurs any liability in consequence of damage caused by any fire lit kindled or maintained by such person on the direction of the Secretary or of any authorised officer the Secretary shall indemnify such person from such liability if such person -

(a) obeyed and complied with the regulations and all directions of the Secretary and of any authorised officer with respect to such fire; and

(b) did not cause or permit the spread of such fire by any wilful or negligent act or omission.

Unlike the other provisions relied upon by Mr Cohen, s 71, by its terms, arguably creates a statutory duty with correlative liability on the part of DNRE in respect of which Mr Cohen and the group members can rely. This is because:

(a) A class of persons is identified - namely those who have sustained damage as a result of the fire "lit, kindled or maintained" and who have been affected as a result of the spread of such fire.

(b) The reference to "the Secretary being liable for damage" makes it clear that it was intended to provide a ground for civil liability; and

(c) The provision is designed to afford protection to those affected by damage caused by fire provided the conditions within s 71 are established.

59 This conclusion, I observe, is reached in the context of whether leave to amend should be granted; it is not a final determination as to the existence of the duty which will be determined at trial.

60 Finally, the defendants rightly argue that the pleading of the particulars of the breach (which simply repeat the particulars of negligence by reference to paragraph 22)[26] is inadequate. Mr Cohen will need to identify, in due course, (a) the particular fire of fires which were "lit, kindled or maintained" and (b) then state with some precision how those fires were negligently permitted to spread. As with the particulars of negligence, this aspect can be deferred until discovery is completed.

61 Only the claim made pursuant to s 71 of the Forests Act is tenable. The balance should not form part of V4 and paragraphs 23-34 should be excised.

62 Paragraphs 38 and 39 allege nuisance in the form of escape of fire and smoke from the park.

63 The nub of Mr Cohen's claim is set out in paragraph 39:

Between 7 January 2003 and 8 March 2003, the Defendants and each of them, knowing that a nuisance would be or was occurring by reason of the Escape of fire and smoke from the Parks to the Land, failed to take reasonable steps to prevent and/or abate such nuisance.

No complaint is made by the defendants in respect of this allegation.

64 The particulars, relevant to such failure and/or abatement adopt the particulars of negligence contained in paragraph 22. The defendants, rightly in my view, argue that those particulars (encompassing allegations of acts or omissions both prior to January 2003 and during January 2003) do not address the real issue, namely what steps should have been taken by the respective defendants in relation to preventing or abating the spread of the fire and smoke. The defendants are entitled to be provided with such particulars. However, as with the claims in negligence and the breach of statutory duty, the provision of further particulars can be deferred until the completion of the discovery process.

65 Mr Cohen should be permitted within 14 days to file and serve V4 in a form consistent with this ruling.

66 The defendants will be required to file their defences within 28 days of service of V4.

67 In the event that the defendants wish to agitate the remaining matters contained in their summons of 19 February 2010, they should do so prior to the filing of the defence.

[1] [1916] HCA 81; (1916) 22 CLR 490, 517.

[2] [1990] HCA 11; (1990) 169 CLR 279, 286-287.

[3] [1996] FCA 1758; [1996] ATPR 41-522.

[5] [2005] VSC 251.

[7] [2010] ACTSC 20.

[9] Consistent with the provisions of Part 4A of the Supreme Court Act.

[14] For instance as identified by municipalities pursuant to Local Government Act 1989.

[17] Meckiff v Simpson [1968] VicRp 7; [1968] VR 62, 70.

[18] See State of Victoria v Richards [2010] VSCA 113, Wickstead v Brown (1992) 30 NSWLR 1, 5-6, Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 124 ALR 685, 695, Kruisselbrink v Nationwide Maintenance Services Pty Ltd [2010] VSC 260. [54] - [61].

[19] [1995] HCA 24; (1995) 185 CLR 410; see also Sovar v Henry Lane Pty Ltd [1967] HCA 31; (1967) 116 CLR 397, 424.

[24] Of the Forests Act as in force as at January-March 2003.