Proprietors of Strata Plan 17226 v Drakulic - [2002] NSWCA 381 - NSWCA 2002 case summary — Zoe

NSWNSWCA

Proprietors of Strata Plan 17226 v Drakulic

[2002] NSWCA 381

Court of Appeal (NSW)|2002-05-22|Before: Mason P, Heydon JA, Hodgson JA, Mr J

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Source facts

Court

Court of Appeal (NSW)

Decision date

2002-05-22

Before

Mason P, Heydon JA, Hodgson JA, Mr J

Source

Original judgment source is linked above.

Judgment (75 paragraphs)

[1]

Background 12 From 1983, the plaintiff owned Unit 1 in a building, 105 High Street, Mascot. That building comprised fifteen units on three floors above garages at ground level. The first defendant was the body corporate owning the building and its members were the proprietors of the units. The second defendant was the manager of the building. At all material times the principal of the second defendant was Mr Warren Platt, its only other employee being his step-daughter, Mrs Beverly McKeown. 13 The trial judge described the building thus. "The building comprised fifteen units on three floors, there being a number of garages at ground level off a common driveway between it and 103 High Street. There were also some open car parking spaces at the rear of the building, one of which was available for and used by the plaintiff. The building had two entrances from doors into foyers and upstairs and landings to the units. The first entry from the street, off the driveway, was to units 1 to 6 comprising three floors with two units per floor and the second entry was to units 7 to 15. There was no way a person could get from inside the building from units 1 to 6 to units 7 to 15 and vice versa." 14 The trial judge made the following findings about the entry doors to the building. "The building was constructed somewhere about the late 1950s to mid-1960s. When constructed, the entry doors were lockable from the inside by pressing a knob or button on a circular handle which contained a lock. Egress was obtained by turning the circular knob handle which, if it was locked, would automatically unlock the door which would be pulled open. If it was then closed without touching the knob in the middle of the handle it would not lock. If that knob was pressed before it was closed the door was locked on closing. To gain entry, if the door was not locked, the handle merely had to be turned and the door pushed open. If it was locked a key had to be used. After gaining entry the door could be locked by pressing the knob in the handle. If this was not done the door remained unlocked. Consequently, the only time a key was needed to open the door was to gain entry if it had been locked from inside by pressing the knob on the handle; this being either on entry to or egress from the building. I infer that, when the units were originally sold, the owner of each unit was provided with at least one key to the door giving entry to the foyer for that particular unit and, on leasing or re-sale of any unit, it was expected the key or keys would be provided to the tenant or purchaser in the same way as a key to the particular unit itself would be provided. On her purchase of unit 1 the plaintiff was provided with at least one key to the foyer door which she still has." 15 On 3 May 1993 Mr Platt requested a locksmith to disarm the locking mechanisms. On 6 May 1993 this was done by removing the knobs from the handles and the internal locking mechanisms. 16 From 1987 the plaintiff was employed in a bookbinding business. She worked in the afternoon shift and often did overtime. On those nights she habitually returned as late as 2.30-2.45am. On 9 September 1993 at 2.45am the plaintiff returned from work, parked her car, came through the front door and was attacked by a very tall and strong male intruder with considerable brutality. He came down the stairs as she began to go up them. He was wearing a dark stocking over his face. He had a cloth in his hand smelling of "something similar to methylated spirits", which the plaintiff also described as "some rag with some poison", and which police documents suggest was ammonia. He put the rag on her mouth and this made her dizzy. He had a large knife with which he threatened her and which cut her hand in the course of the struggle. He robbed her of her handbag and injured her badly.

[2]

The trial judge's reasoning 17 The trial judge considered the evidence in detail. He stated that the plaintiff was a credible and reliable witness, though mistaken on some aspects; that Mr Platt was not generally credible or reliable; and that Mr Islam, the occupier of Unit 2, was credible but in some respects unreliable. He then made certain findings of fact about hotly contested questions. 18 The trial judge found that the plaintiff telephoned the office of the second defendant at least a few times between May and September 1993 to complain about the fact, as she perceived it, that the lock was broken and to seek to have it fixed; that Mrs McKeown told her that Mr Platt was unavailable and that she would give him the message; that Mrs McKeown gave the messages to Mr Platt; but that he did not contact the plaintiff or do anything about the complaints before the plaintiff was assaulted. The trial judge said that the plaintiff saw Mr Platt and asked him to send someone to fix the door, and that he said they were going to make it a security door: but in fact this incident took place a couple of months after the attack, not before it. 19 The trial judge also found that there was a notice near the entry door to the plaintiff's part of the building purporting to be from Mr Platt stating that the door was to be locked from 9pm. 20 The trial judge found that the entry door was probably locked on most nights before 6 May 1993, although on occasions it probably was not. The accuracy of this important finding was challenged by the defendants in a significant way. 21 Finally, the trial judge found that no meeting of the body corporate or its executive committee ever took place at which a decision to disarm the lock was made. The decision had been made by Mr Platt and Mr Cavar, the occupant of Unit 5, who had complained to Mr Platt that the main entrance door lock was defective in that on occasion it stuck and would not turn, thus preventing entry. 22 The trial judge then set out what he called "important facts". "At all times prior to 6 May 1993 the building was what can properly be described as a 'security building' because the entry door, for which all six occupiers of the relevant part of the building could have been provided with keys and for which the plaintiff had and used keys, was lockable. Admittedly, if it was locked all the time, this would cause some inconvenience for some of the occupants who had visitors because there was no direct contact available from outside the building to the various units. This, however, could have been eliminated completely, at reasonable expense, by the installation of a radio-controlled chimes system to each unit where the cost for chimes locks and keys was in the vicinity of four hundred dollars for those six units. At all relevant times this system was known to Platt who referred to it at the AGM of the Body Corporate held on 21 September 1993; that is only twelve days after this assault on the plaintiff and which caused Platt to raise it at that meeting. A number (not known on the evidence) of the proprietors of units and Platt, the one who managed the building, did not have a key to the entry door. However, all of them should have and this should have been insisted upon by the first and second defendants. On 6 May 1993, without authorisation of a general meeting of the Body Corporate or its executive committee, but by arrangement between Cavar, the proprietor of unit 5 on the top floor of the building, and Platt, who contacted the locksmith, the lock to the entry door was disarmed so that it was impossible for it to be locked. A number (unknown) of proprietors were apparently not unduly concerned about intruders entering the building through an unlocked door, probably because they felt secure in their units and did not give thought to what could have happened as a result of the entry door being unlocked; that is people gaining entry to the building and knocking on unit doors to see if anyone was home or with a person such as the one who assaulted the plaintiff, if the door to a unit happened to be answered, forcing his way in and the consequences of course could be grave for any occupant. The assault upon the plaintiff occurred inside the building. It could not have happened if the entry door had been locked and would probably not have happened if, as it would probably have been prior to 6 May 1993, the door had been capable of being locked and particularly after 9pm in accordance with the notice near the door. It also could not have happened if the chimes system had been installed; even if only as a cheap temporary measure before an intercom system as was later installed. I am convinced that the lock to the entry door ought not to have been disarmed and rendered useless unless a reasonably safe alternative system such as the chimes or intercom system was installed at the time. I am also convinced that, as later happened, any alteration to the building, especially affecting security to the occupants and their guests, should be an agenda matter on a notice of the meeting so that all unit proprietors, or their proxies, who are interested in that particular item, can take part in discussions and any decision relating thereto and the defendants, that is the Body Corporate and manager, would only act on a resolution of such a meeting. The disarming of the lock to the entry door was such a matter and ought not to have happened without such consideration and decision. It was not in the category of urgent repair or maintenance within the discretion of the manager. It having happened, urgent attention should have been given to rectifying that situation, particularly after receiving complaints from the plaintiff about it. These complaints ought not to have been ignored as they were, no doubt because Platt realised he should not have arranged for the lock to be disarmed and hoped nothing, such as the assault on the plaintiff or any vandalism to the common property inside the entry door, would happen." 23 The trial judge then analysed the judgments in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254. The first plaintiff in that case was the employee-manager of a video shop conducted by a tenant in a shopping centre owned by the defendant. The second was his wife. On leaving at about 10.30pm, the first plaintiff was attacked by three men in the shopping centre car park, the lights to which had been turned out no later than 10pm. The majority of the High Court held that there was in general no duty on occupiers to prevent harm to lawful visitors from criminals unless there was some special relationship; that there was no such relationship in this case; that there was no sufficient forewarning of the attack being likely; and that the failure to have the lights on had not caused loss. In the course of the trial judge's analysis of the Modbury case, he indicated that the causation difficulties in that case did not arise in this, because he considered that if the entry door had been locked the plaintiff would not have been injured. He also said, after drawing attention to the stress in that case on control as a factor leading to liability, that a locked entry door would have enabled control of the assailant. 24 The trial judge then expressed his conclusions as follows. "Home unit occupation has been an integral part of living in our society for many years. Indeed, this building was probably built about forty years ago. For a long time it has been common knowledge that a desirable feature of home unit buildings is for access to them to be secure and this has been virtually taken for granted. The reason is obvious. There has also, for a long time unfortunately, been in our community a real fear that intruders, usually bent on some form of criminal activity including assaults, robberies, break enter and steal and the like upon occupiers and/or their guests and/or their property could gain access to the common property of the building and also even one or more of the units by forcing open the door to such unit or, as I have previously mentioned, merely by knocking on the door or ringing the door bell and, when it is opened, gaining entry to it. It is also well known that mere vandalism to parts of the common property can occur if such entry is available generally. Consequently, there can be no doubt that, if an intruder can gain entry to a block of home units such as the building in this case merely by turning the handle on the door and pushing it open, there is a foreseeable risk that, if the occasion arose, such an intruder would assault a person such as the plaintiff who is lawfully on the common property. Having regard to all the relevant principles I am satisfied, as owner and manager of the building, each of the defendants owed a duty of care to the plaintiff. To comply with this duty they must avoid acts and/or omissions which they can reasonably foresee would be likely to cause injury to the plaintiff. In the circumstances of this case, having regard to the special relationship which existed between the plaintiff and the defendants - that is as a unit proprietor and occupier and the owner and manager of the common property of the building - the law does impose on the defendants a duty to prevent harm to the plaintiffs from the criminal conduct of a third party, particularly within the common property of the building where a risk of such conduct is reasonably foreseeable. The defendants did give consideration to and acted upon their duty to the occupiers as far as they reasonably could by installing Vandalites and ensuring that the outside lighting was in reasonable condition. This would not only assist the occupiers in seeing any danger, such as a defect in the pathway or driveway or if there was some obstruction such as a ball left by a child which could result in injury to any of them and could also deter unauthorised persons from trespassing thereon or waiting outside the building to attack someone such as the plaintiff on returning to it from work or an outing, particularly at night. But the defendants did not give proper or any consideration, other than of convenience, to the risk of an intruder unlawfully entering the building, as happened here, and attacking an occupant lawfully returning to his or her unit or indeed, any of the guests of such an occupant. If the criminal conduct had occurred outside the building there would probably be no claim against the defendant for such an assault. This may also be the case if there had been no means of locking the entry door at any time and no suggestion that there should have been, but that is not the situation here. The act of arranging for the disarming of the lock to the entry door of the building was no doubt a matter of convenience to some of the occupiers, but it also made them all, including the plaintiff, vulnerable to the attack which did occur to her. The mere fact that there is no evidence of such an assault occurring previously is irrelevant. There should have been no such assault in the first instance and, if the entry door was locked - as it probably would have been - the assault on the plaintiff would not have happened. The plain fact is that between 6 May 1993 and 9 September 1993 the door could not be locked because of the act of the defendants in immobilising the locking device on the entry door in circumstances where, prior to that, there was a system in place that could, and in fact at times did, prevent entry of persons, especially unauthorised persons, into the building. The entry of the intruder and the assault on the plaintiff was the very kind of occurrence which could happen by reason of the acts of the defendant. The immobilisation of the lock and/or the failure to put in place a safe alternative system, such as the chime system which could be cheaply obtained, left the occupants, including the plaintiff and their guests, vulnerable to what in fact happened to her. This constituted a breach by the defendants of its duty of care to the plaintiff, allowed the intruder to gain entry to the stairwell of the common property of the building and caused the intruder to gain access to the building which he could not have done if the defendants had not breached their duty of care to the plaintiff. In the circumstances the defendants were negligent as alleged and there will be a verdict for the plaintiff against them." 25 In its references to a "special relationship" and to the irrelevance of there having been no evidence of any earlier assaults, the passage is plainly written with the reasoning in Modbury Triangle Shopping Centre Pty Ltd v Anzil in mind.

[5]

That, in focussing on a single positive act, naturally raises causation inquiries as to whether the retention of a lock mechanism in place would have saved the plaintiff from injury. 29 These two different ways in which the plaintiff's case was pleaded correspond with two separate strands in the trial judge's reasoning. 30 At times the trial judge proceeded on the basis that the case before him should be treated as a case like the Modbury case, namely a case posing the issue: "Are the defendants liable for failing to install a satisfactory security system after 6 May 1993 and before 9 September 1993?" It is convenient to call this the "non feasance" basis. 31 At other times the trial judge proceeded on the basis that the case was different from the Modbury case, and was a case posing the issue: "Are the defendants liable for interfering on 6 May 1993 with a security system which was satisfactory up to that date?" It is convenient to call this the "misfeasance" basis. 32 The indications that the trial judge was proceeding on the non feasance basis include passages in which he describes the relationship between the plaintiff and the defendants as "special" in the Modbury sense of "special relationship". They also include the trial judge's quotation of passages in which Hayne J posed and left open the question whether a failure to control entry by criminals onto premises creates liability: the trial judge answered that question affirmatively. 33 The indications that the trial judge was proceeding on the misfeasance basis include passages such as the following: "… The lock to the entry door ought not to have been disarmed and rendered useless unless a reasonably safe alternative system such as the chimes or intercom system was installed at the time …. . The immobilisation of the lock and/or the failure to put in place a safe alternative system, such as the chimes system which could be cheaply obtained, left the occupants, including the plaintiff and their guests, vulnerable to what in fact happened to her… . … if there had been no lock at any time on the entry door handle and no suggestion that there should have been, there probably would have been no liability in the present case … . [There may have been no claim against the defendants] if there had been no means of locking the entry door at any time and no suggestion that there should have been, but that is not the situation here. … … The immobilisation of the lock and/or the failure to put in place a safe alternative system, such as the chimes system which could be cheaply obtained, left the occupants, including the plaintiff and their guests, vulnerable to what in fact happened to her." 34 The third and fourth of these passages, in particular, contradict the non feasance case, and suggest that the heart of the trial judge's reasoning turns on a narrow point - namely, the proposition that if there had never been a locking system the defendants would not have been liable, but that to interfere with a workable locking system without providing a substitute generated liability. The trial judge himself does not appear to have been conscious of the two possible paths to liability or of their tendency, as expounded by him, to conflict. The defendants' arguments to this Court in outline 35 It is convenient to take the defendants' submissions in a different order from that in which they were advanced. 36 First, the defendants submitted that "the unpredictable criminal behaviour of the intruder" was not reasonably foreseeable. 37 Secondly, the defendants submitted that even if the intruder's behaviour was reasonably foreseeable, there was no duty of care owed to the plaintiff in relation to it, because the case did not fall within the limited category of circumstances in which the law of negligence imposed liability for omissions to prevent harm caused by third parties. There had been no "high level of recurrent, predictable criminal behaviour" in the language of Gleeson CJ in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at [33]. In that case, there had been a break in to a restaurant near the car park, two attempts to break into an automatic teller machine and the break in of the window of a car parked in the car park. There was no equivalent in the present case, apart from evidence of two or perhaps more break ins from the plaintiff's balcony into her unit: she was vague as to the precise number. Though there had been break ins, there had been nothing to put the defendants on notice of any criminal conduct in the common areas. While the trial judge appeared to infer that the defendants had assumed control for the safety of occupants and their visitors by reason of the fact that until 6 May 1993 there had been a locked door (since he assumed that his conclusions would have been different if there had never been a lock), and by reason of the fact that on his characterisation, the building was a "security building", that inference was unsound. Whatever the position had been soon after the building was constructed, at no relevant time had the door been kept securely locked, and no relevant person ever regarded the block as a security block. 38 Thirdly, even if there was a duty of care, it had been discharged by measures short of locking the premises and providing security intercoms, such as external lighting. 39 Fourthly, even if there had been a breach of a duty of care, it was not causative of the plaintiff's injuries. The only evidence was that when the plaintiff entered the building the intruder was on the stairs above her coming down. The intruder, seeking to avoid being seen in the hallway, may have gained entry by other means, such as an unlocked window or a balcony, as intruders had before. Even if the door had been locked, the lock could have been picked, or the door forced open in some way, or the door could have been left open by an occupant stepping outside for a short time, or the door could have been left ajar so that a lawful visitor might gain entry, or the assailant could have walked in behind an occupier who had opened the door. If the door were locked permanently as the trial judge said it should have been, that fact would become known to any would-be assailant, who in consequence would either take one of the above steps to gain entry or would attack victims as they approached the door from the driveway. If the duty was as high as the plaintiff said, it could only be met by the provision of a fulltime security officer at the door at all times, and this technique had not been investigated at the trial.

[6]

The plaintiff's arguments to this Court in outline 40 The plaintiff's written submissions did not advance independent arguments for the dismissal of the appeal. Instead they relied on the trial judge's reasoning, relevant parts of which may be set out in the following order. 41 First, the risk of the criminal conduct of third parties within the common property was reasonably foreseeable since they could gain entry merely by turning the handle of the door and pushing it open. 42 Secondly, "having regard to the special relationship which existed between the plaintiff and the defendants - that is as a unit proprietor and occupier and the owner and manager of the common property of the building - the law does impose on the defendants a duty to prevent harm to the plaintiff from the criminal conduct of a third party." In that regard the plaintiff relied on the trial judge's conclusion that "The building can properly be described as a 'security building' because the entry door, for which all six occupiers of the relevant part of the building could have been provided with keys and [for] which the respondent had and used keys was lockable [up to May 1993] … ." 43 Thirdly, the duty to prevent harm was breached by the disarming of the lock, since it created an increased risk of unauthorised entry. That act was not consented to by the members of the first defendant. It should not have been carried out unless a reasonably alternative safe system such as chimes or an intercom system was installed at the same time. 44 Fourthly, the plaintiff's injury was caused by the breach because a locked door is a line of resistance to an intruder, the disarming of the lock created an increased risk of unauthorised entry, the assault would not have happened if the door had been locked and probably would not have happened if it had been capable of being locked, and the illegal entry followed by the assault on the plaintiff was the very kind of occurrence which could happen by reason of the defendants' acts. 45 The plaintiff concluded: "The respondent submits that his Honour's findings and conclusions were open to him on the evidence. There was a clear breach of duty. As Dixon J pointed out in Betts v Whittingslowe (1945) 71 CLR 637 at 649: 'breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach'."

[17]

Let Mr Platt, then, whose position was in various respects a difficult one, be put on one side. 51 Let it also be assumed that the plaintiff did believe the door was locked on many occasions and indeed that it was. There can be no doubt that it was if only because Mr Cavar complained about it. 52 It is not easy to put aside Mr Islam's evidence. Not only was it very strong in chief, but it remained so in cross-examination. One passage is as follows: "Q. Well you didn't have any problems during the period that the lock worked properly did you? A. There wasn't any lock. … Q. And from time to time the front door was locked up until about 6 May 1993, is that right? A. When I, in - when I was in a unit, when I moved in, I didn't have any key for the lock, I didn't have to open any, any time to get in. Q. We'll come to that. But up until 6 May 1993, from time to time the front door was locked wasn't it? A. That's what I'm saying like, when I moved in I didn't -- HIS HONOUR: Q. No, you're not being asked that, whether or not you had a key, were there occasions on which the front door was locked? A. I don't remember. DUPREE: Q. You don't remember? A. No. Q. But it's possible from time to time, up until 6 May 1993, from the time you moved in, it's possible that from time to time the front door was locked? OBJECTION A. I haven't seen any, any time." 53 Another passage was: "Q. In 105, you purchased a unit? A. Right. Q. And when you bought your unit you were given a number of keys, is that right? A. Yeah. Q. And how many keys were you given? A. I don't remember how many keys. Q. A number was it? A. A number of keys, yeah. Q. And it may well be that one of those keys fitted the front door? OBJECTION. QUESTION WITHDRAWN. Q. Is it possible that one of those keys was a key to the front door? OBJECTION. QUESTION PRESSED. QUESTION ALLOWED. A. We never needed a key for the front door. Only one abnormal key was there, I remember that was after the outside door there was a storeroom, big storeroom, there was a key for that, I remember because it's a big room and later Solid Strata took that key from me and other people to make that area as a meeting place. Q. But when you purchased the property you were given a number of keys? A. Yes. Q. Is that right? A. Yes. Q. And is it possible that one of those keys that you were given was a key to the front door? A. Of course it might [be] possible, but I never, I never had to open the door with the key or anything. Q. And it's quite clear isn't it, in your mind, that there was a locking device on that front door from the time when you moved in to at least 6 May 1993? A. Whether there is a locking device or not, I don't remember, because never needed. Q. Just have a look at photo 10 in exhibit C? A. Yes, but I never needed it, that's why I didn't notice. Q. You see that is photo 10 in exhibit C - just have a look on the back of it Mr Islam? A. Yeah. You're talking about the knob? HIS HONOUR: Yes that's what he's talking about. WITNESS: Or this top, the top lock. HIS HONOUR: Q. Show me? A. There's a lock. Q. He's talking about the bottom one? A. The bottom one? Q. The top one's the new one isn't it? A. Yeah. Q. The old one is the bottom one? A. Yeah, the bottom one looks like a key slot there, yeah. DUPREE: Q. And that key slot was there from the time when you moved in throughout the period to when you moved out, that's right isn't it? A. Now I can notice the thing, but I never, I never had to open with the key." 54 The trial judge said of Mr Islam: "Generally speaking Islam was a credible witness but was lacking in reliability on some aspects which I consider he regarded as minor, no doubt because he was endeavouring to recall matters which did not really concern him, at short notice, from a long time previously. However he did demonstrate a recollection of some matters which were discussed at meetings attended by him but did not give specific details of any such discussions." 55 It is difficult to believe that when the trial judge said that, he was treating as a "minor" matter the question whether Mr Islam could gain access without a key. It was potentially a major matter. After the trial judge made the finding that the entry door was probably locked on most nights, he said that for a long time after 6 May 1993 it could not be locked "and this could lead anyone to forget that there were many times before then that it was locked". But it is difficult to believe this was an oblique rejection of Mr Islam's evidence about his ability to enter without a key, particularly after 11pm a quarter of the time. If Mr Islam's evidence on a potentially major matter was to be rejected, one would have expected this to have been done specifically, and with reasons. Further, earlier in the reasons for judgment, under the heading "Undisputed Facts", the trial judge said: "Not all occupants of the building had front door keys. Indeed Mr Islam, whose family comprised himself, his wife and two children, did not use a key to the front door and no-one complained to him about not having a key. He occupied unit 2, on the same floor as the plaintiff's unit, from about June or July 1992 until about 1997. Islam worked during the relevant period and occasionally on late shift, about quarter of the time, he returned home about 11pm."

[27]

Did the defendants owe the plaintiff a duty of care? 62 The defendants submitted that, leaving aside contractual cases, it was only in exceptional categories - employer/employee, school/pupil, bailor/bailee, parent and person whom the parent's child might injure - that defendants owe a duty to plaintiffs to prevent injury by reason of the criminal conduct of third parties; that the present facts did not fall within any of these categories; and that no new exceptional category should be created to cover the present facts. The relationship of occupier and lawful entrant alone did not suffice. Nor did the relationship between the owner of the home unit on the one hand and the body corporate or the building manager on the other. Whatever might be the position if the locking system had been secretly deactivated, in fact all the unit holders knew it had been deactivated or was not working months before the assault, and the plaintiff had complained of this. The defendants criticised the trial judge for never analysing the issue of whether a relevant duty existed. 63 Two possibilities were left open in the Modbury case for liability outside existing categories, but according to the defendants neither applied. The first was raised thus by Gleeson CJ at [30]-[34] (see also Hayne J at [117]): "There may be circumstances in which, not only is there a foreseeable risk of harm from criminal conduct by a third party, but, in addition, the criminal conduct is attended by such a high degree of foreseeability, and predictability, that it is possible to argue that the case would be taken out of the operation of the general principle and the law may impose a duty to take reasonable steps to prevent it. The possibility that knowledge of previous, preventable, criminal conduct, or of threats of such conduct, could arguably give rise to an exceptional duty, appears to have been suggested in Smith v Littlewoods Ltd . It also appears to be the basis upon which United States decisions relating to the liability of occupiers have proceeded. A leading American textbook states that: The duty to take precautions against the negligence of others … involves merely the usual process of multiplying the probability that such negligence will occur by the magnitude of the harm likely to result if it does, and weighing the result against the burden upon the defendant of exercising such care. … There is normally much less reason to anticipate acts on the part of others which are malicious and intentionally damaging than those which are merely negligent; and this is all the more true where, as is usually the case, such acts are criminal. Under all ordinary and normal circumstances, in the absence of any reason to expect the contrary, the actor may reasonably proceed upon the assumption that others will obey the criminal law. That does not represent an accurate statement of the common law in Australia. The factor most commonly taken into account in the United States in determining whether criminal activity was reasonably foreseeable is knowledge on the part of the occupier of land of previous incidents of criminality. It could not reasonably be argued that the present is such a case. There had been illegal behaviour in the area. A restaurant near the car park had been broken into. During a period of a year before the incident in question, there had been two attempts to break into an automatic teller machine. About a year before the incident, the car window of an employee of the video shop had been smashed. This does not indicate a high level of recurrent, predictable criminal behaviour. It is unnecessary to express a concluded opinion as to whether foreseeability and predictability of criminal behaviour could ever exist in such a degree that, even in the absence of some special relationship, Australian law would impose a duty to take reasonable care to prevent harm to another from such behaviour. It suffices to say two things: first, as a matter of principle, such a result would be difficult to reconcile with the general rule that one person has no legal duty to rescue another; and secondly, as a matter of fact, the present case is nowhere near the situation postulated." 64 Even if Gleeson CJ's doubts about reconciling recovery even where there was a high degree of foreseeability and predictability of criminal behaviour with the absence of a legal duty on one person to rescue another are put on one side, together with Callinan J's similar doubts at [143], in the present case the foreseeability and predictability of the assault was not of a high order. There had been two, or perhaps more, prior break ins through the balcony of the plaintiff's unit, but not through the front door. There had not been "a high level of recurrent, predictable criminal behaviour". 65 The other possibility left open in the Modbury case was put thus by Hayne J at [117]: "Established principle provides the answer to the present problem because it reveals that there is no duty to control the criminal conduct of others except in very restricted circumstances. Being an occupier of land should not be added to those exceptional cases, at least where the complaint that is made by the plaintiff is not about the occupier failing to control access to or continued presence on the premises. I would wish to reserve for consideration in a case in which they are raised the questions that are presented by a complaint of that last kind."

[28]

66 Here the plaintiff's complaint does not turn on the defendants' failure to control the assailant's continued presence on the premises. In one sense it does turn on their failure to control the assailant's access to the premises. However, the defendants submitted that the contemplated "exception" should not be recognised in this case because it would not be a true exception: it would be contrary to the principle itself. The principle itself rests on the capacity of a defendant to control a third party, but the present defendants were not in a position to control access to premises by persons seeking to carry out erratic, antisocial, unpredictable, irrational and criminal behaviour. 67 Counsel for the plaintiff argued that the last two paragraphs quoted from the trial judge's reasons for judgment in [13] above, and the passages quoted in [15] above, constituted a satisfactory analysis of whether and why there was a duty of care. In effect the trial judge held that the system of locking the door was effective to ensure that it was locked on most nights. That system was terminated by a positive act, an act of commission, not a mere omission, and the defendants ignored the plaintiff's complaints. That created a reasonably foreseeable risk of entry by a criminal through the unlocked door. 68 Counsel for the plaintiff submitted that the Modbury case was not adverse to the conclusion of a duty of care based on those circumstances. He submitted that the essential basis of the Modbury doctrine was that defendants were not to be made liable for failure to act; these defendants were not made liable for failure to act but for their positive action in interfering with a viable system of security. He submitted that the occupier owed a duty to take reasonable care to avoid a reasonably foreseeable risk of injury to the plaintiff arising out of the physical condition of the premises, and the plaintiff's injury arose from the defendants' change in the physical condition of the premises.

[34]

Control 74 It is necessary to say something about the issue of "lack of control" in view of certain observations of the trial judge. The trial judge said "the defendants did have control and failed to exercise that control by the act of disarming the lock without installing some other satisfactory means of locking the door". He also said "a locked entry door would have controlled the assailant". And he said "a lockable and locked door would control" criminal conduct. 75 To some extent those conclusions are relevant to the avenue of liability left open by Hayne J which is based on controlling the access of persons to the premises, which is considered below. However, for other purposes those conclusions are questionable in several senses. First, for reasons given in more detail later, they are questionable if read as referring to the issue of "control in fact". The locked door could not have controlled the assailant so far as he chose to attack persons connected with the units outside the building, or after following them in, or after breaking the door. Secondly, the trial judge's conclusions are questionable as a matter of characterisation. At some parts of the majority judgments in the Modbury case, the word "control" is used to refer not to "control in fact", but "right to control". The defendants lacked "control" over the assailant, because he was not in the same position as a child in the care of a parent, or a prisoner who might attack another prisoner. A parent controls a child even if the child is behaving badly, because the parent has a right to control the child, and, as Hayne J said at [111], is "expected to be able to control the child." That is what Dixon J meant in Smith v Leurs (1945) 70 CLR 256 at 262, quoted by Gleeson CJ at [20], when he said: "it is incumbent upon a parent who maintains control over a young child to take reasonable care so to exercise that control as to avoid conduct on his part exposing the person or property of others to unreasonable danger."

[37]

In none of these senses can it be said that the defendants here had control over the assailant: they had no power to assert control over him, they could not assert authority over him, they were not expected to be able to control him as of right. 76 Thirdly, the trial judge's assertions are questionable if they are meant to be taken into account in relation to the non feasance basis of liability as distinct from the misfeasance basis. If, in considering the non feasance case, it is right to say that the defendants had control over the assailant because a locked entry door would have controlled him, it would have been equally right to say that the defendant in the Modbury case had control over the criminals because a system of denying unauthorised access to the car park could have controlled them. The High Court, which analysed the Modbury case as a non feasance case, did not regard that latter possibility as a relevant form of control. So here, considering the instant case as a non feasance case, the possibility of returning to a locking door after 6 May 1993 is not a relevant form of control. The present discussion concerns the issue whether the defendants were liable for failing to act at some time after 6 May 1993 by reason of not installing some security system. Later the separate question, probably central to the trial judge's reasoning, of whether the positive interference on 6 May 1993 was actionable, will be considered. The trial judge's assertion that control is to be found in the existence of the lock is irrelevant to the present inquiry, which examines whether there is liability in not having any lock. 77 Fourthly, the trial judge's reasoning in this context also begs the question to be decided. The question is whether there is a duty to provide a locked door. The proffered answer is affirmative, because there is control. But whence does control come? From the ability to provide a locked door. It cannot be right to infer a duty to do something merely from the fact that it is possible to do it.

[38]

Similarities between the present circumstances and the circumstances pointing against the existence of a duty in the Modbury case 78 In the Modbury case at [17] and [29], Gleeson CJ pointed out that if a duty were owed by the defendant shopping centre owner to the employee of one of its tenants who was attacked in the shopping centre car park, it would also have been owed to other employees of tenants, visitors to the shopping centre (including customers of tenants and users of the automatic teller machines) and perhaps any member of the public using the car park at any time for any lawful purpose. If a duty were owed in the instant case by either of the defendants to the plaintiff, it must also have been owed to persons leasing or licensing units from unit holders. And it must also have been owed to lawful visitors of the plaintiff, lawful visitors of other unit holders and lawful visitors of their lessees or licensees - members of their families, friends, and other lawful visitors such as persons calling to deliver goods, supply services, attract business and solicit support for charitable, sporting, artistic or other activities. The trial judge accepted that among the objects of the relevant duty were not only the occupiers but also their "guests". 79 A further key matter mentioned by Gleeson CJ in the Modbury case at [29] was that if there were a duty on the defendant to prevent a physical attack on the plaintiff, the duty would have extended also to a duty to prevent criminal damage to property and to prevent the stealing of property. Similarly, Hayne J said at [109] that if the defendant owed the plaintiff a duty, "it was to take whatever steps were reasonable in all the circumstances to hinder or prevent any criminal conduct of third persons which injured the first respondent or any person lawfully on the premises" [emphasis in original]. So here, if there was a duty on the defendants to take reasonable steps to have a security system to hinder or prevent physical attacks on potential plaintiffs, there would also be a duty to have one to hinder or prevent criminal damage to the units and their contents and to hinder or prevent the stealing of their contents. 80 Indeed, if the defendants had a duty to prevent criminals entering via the front door to commit crimes, they must have had a duty to prevent criminals entering units through their balcony or window and thence moving into the common area of the building. 81 On the other hand, in the Modbury case it was accepted that the shopping centre owner could not be liable for criminal conduct occurring outside the premises it owned. In the instant case there would be no liability for criminal conduct outside the area of land owned by the body corporate on which the plaintiff's building stood. (The trial judge went further and said that if the criminal conduct had occurred outside the building but on the land owned by the body corporate, "there would probably be no claim": but if, as he thought, there was a duty relating to the inside of the building, that is questionable.)

[45]

Callinan J required "something special in the circumstances, or the nature of the relationship between the plaintiff and the defendant" (at [147]). The search is for some defined relationship like employer-employee or bailor-bailee, or for circumstances which are "special". 89 If new categories of "special" relationship are to be created within which a defendant is to be liable for the criminal acts of third parties, the step is not merely factual. It would involve a matter of law - indeed a change in the law. A change in the law of that order of significance is not something which this Court should undertake. It is a matter for the High Court. That conclusion is fortified by the fact that Gleeson CJ was not prepared, because it was not necessary to do so, "to express a concluded opinion as to whether foreseeability and predictability of criminal behaviour could ever exist in such a degree that, even in the absence of some special relationship, Australian law would impose a duty to take reasonable care to prevent harm to another from such behaviour": at [34]. It is also fortified by the fact that Hayne J specifically left the matter open: at [117]. And it is fortified by Hayne J's decision to reserve consideration of a different question, namely whether an occupier owes a duty of care to control the criminal conduct of third parties by failing to control their access to or continued presence on the premises: [at 117]. When judges of the High Court decide to leave matters open for consideration in future cases, they do so because of a consciousness that to create an exception to the principle precluding recovery for the criminal acts of third parties is to take an important step not to be embarked on without careful consideration in a particular case requiring the step. The making of significant changes in the law by taking steps of that kind is, if not beyond the competence of intermediate appellate courts, something not to be done lightly. It is better for these matters to be left open for the consideration of the High Court. 90 There is one type of "special" relationship which may in future call for examination - the fiduciary relationship. In Pyrenees Shire Council v Day (1998) 192 CLR 330 at [102] McHugh J said: "In the absence of a contract, fiduciary relationship or statutory obligation, the common law makes a person liable in damages for the failure to act only when some special relationship exists between the person harmed and the person who fails to act."

[48]

The relationship between the content of an appropriate duty and the propriety of its recognition 93 The trial judge held that the content of the relevant duty owed by the defendants was to avoid acts or omissions which they could reasonably foresee would be likely to cause injury to the plaintiff, and included "a duty to prevent harm to the [plaintiff] from the criminal conduct of a third party". A duty to prevent harm is a duty embodying an extremely high standard. There would be no way of fulfilling that duty short of engaging armed guards. However, the trial judge's formulation of the duty, assuming one existed, must be wrong. The duty of a landlord of residential premises is only to take such steps as are reasonable in the circumstances, it is not to make the premises as safe for residential use as reasonable care and skill on the part of anyone can make them: Jones v Bartlett (2000) 205 CLR 166 at [90] and [92] per Gaudron J. Similarly, if there is a duty in relation to criminals, it is only a duty to take those steps to prevent harm from criminals which are reasonable in the circumstances, not an absolute duty to prevent harm. The circumstances relevant to reasonableness are those which control the response of a reasonable man to the risk: he would consider the magnitude of the risk; the degree of probability of its occurrence; the expense, difficulty and inconvenience of taking alleviating action; and any other responsibilities which the defendant may have. The outcome of that process of consideration might be that no response was called for. 94 But when assessing the response of the reasonable man, what goal is the court to take as the object of the response? What is the goal to be aimed at in defining a standard of care in particular circumstances? Sometimes it is described as eliminating the risk of harm: Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The "Wagon Mound") (No 2) [1967] 1 AC 617 at 642. Sometimes it is described as "alleviating" the risk: Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47. The latter approach is sounder, since a contention that reasonable precautions have been taken is not invalidated by showing that if some other course of action had been followed the harm would not have occurred: Bressington v Commissioner for Railways (New South Wales) (1947) 75 CLR 339 at 348. Hence Fleming, The Law of Torts (9th ed, 1998) p 130, formulated the goal as deciding upon precautions or alternatives "that might eliminate or minimise the danger". But the goal of minimisation cannot be taken literally. As Callinan J said in the Modbury case at [136] n 162, "To require minimisation would literally be to require reduction in risk to the point almost of elimination". That will often be an impractical goal. Hence there is some attraction in Hayne J's view in the Modbury case at [109] that, at least in the present context, the inquiry into the content of the duty must be influenced by a search for reasonable steps to "hinder or prevent" injurious criminal conduct. 95 The verb to "hinder" has in various other contexts been construed to mean "to affect to an appropriate extent the ease" of conduct: Tennants (Lancashire) Ltd v C S Wilson and Co Ltd [1917] AC 495 at 514 per Lord Dunedin; Devonish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32 at 45-46 per Mason J (the judgment was a dissenting one, but apparently not in this respect); The Australian Builders' Labourers' Federated Union of Workers - Western Australia Branch v J-Corp Pty Ltd (1993) ATPR 41-245 at 41,307-41,308 per Lockhart and Gummow JJ. "Hinder" can also mean "interposing obstacles which it would be really difficult to overcome"; or making an outcome "more or less difficult, but not impossible"; or interference with an outcome short of preventing it: Tennants (Lancashire) Ltd v C S Wilson and Co Ltd at 510, 518 and 522 per Lords Loreburn, Atkinson and Shaw of Dunfermline respectively. The goal of the reasonable man, then, is to consider how to eliminate the risk of harm or how to hinder the occurrence of the risk in the sense of significantly or substantially reducing it. 96 In assessing whether a duty of care should be recognised, which is the enterprise which the plaintiff requests the court to carry out, it must be relevant to inquire whether the content of the duty to be recognised would, if complied with, hinder harm in the sense of reducing, significantly or substantially, the chance of harm, even if compliance would not wholly eliminate the chance of harm. A precaution which significantly or substantially reduced the chance of harm would be a precaution which, depending on all other relevant factors, would be valuable. A precaution which only minimally reduced the risk of harm would not be worthwhile. At least in areas like the present, where it is controversial whether or not to take the step of creating a duty of care, if compliance will not reduce substantially the chance of the harm, what is the point of recognising the duty? 97 It is futile to recognise a duty of care where compliance would not at least reduce the risk of harm significantly or substantially. This requires consideration of the question whether having a door lockable in the way the door was locked before 6 May 1993 was enough, or whether some superior means of obtaining security should have been employed. 98 The evidence establishes that before 6 May 1993 the door was not always locked, and indeed that it was often not locked. It is highly questionable whether it would have significantly or substantially reduced the risk of the plaintiff suffering the injury which she in fact suffered, particularly since on one week in every month Mr Islam found the door open late at night, the time when the plaintiff was attacked. 99 Even if the door had always been locked, it is questionable whether it would have significantly or substantially reduced the risk of injury. One may leave out of account relatively far-fetched possibilities raised by the defendants, namely that a determined criminal could have obtained entry through the plaintiff's balcony or someone else's balcony to a unit and thence to the hallway, or obtained entry through the front door with a lawful entrant equipped with a key: these are not plausible events late at night, while the occupants of units were in all probability asleep, and at a time when it would not be easy to provide a lawful entrant with some apparently legitimate excuse for entering the building. But a determined criminal - and a tall strong man wearing a face mask, possessing cloth impregnated with a substance which appeared to be poisonous or to smell like methylated spirits or to be ammonia, and armed with a knife, who had somehow obtained entry onto the stairwell and lay in wait for the plaintiff was a determined criminal - could have waited outside the body corporate's land on which the building stood. While the plaintiff returned home on the night in question by car, so that she could not have been attacked off the premises, an attack on a person in the position of the plaintiff returning home late on foot, or after alighting from a taxi, could not possibly have created liability in the defendants if it took place off the premises, but the areas surrounding the premises may have offered suitable places to wait. Another possibility is that the assailant could have waited inside the land on which the building stood but outside the door - he could have waited inside the recessed part of the building in front of the door, and on hearing the plaintiff's approaching footsteps have coerced her inside the building through the door. Indeed, he could have waited in the garage and attacked persons in the position of the plaintiff returning by car from there or from parking areas to the rear of the building, or attacked persons in the position of the plaintiff approaching the front door on foot from there. If the movements of any potential victim were too fast and enabled the closing of the door before the criminal entered, he could have broken the glass in the door and followed the victim. 100 Of course, each of these possibilities carries potential dangers for the criminal. An attack carried out outside the premises, and an attack on the premises but outside the door, might be seen by a passer-by, but these would have been very few in number at 2.45am. An attack inside the garage might have been visible, but persons moving about the premises would have been even fewer in number than passers-by outside them. To follow the plaintiff through the door might cause noise, but no more noise than the criminal was prepared to risk in any event when he attacked the plaintiff by coming down the stairs. To break the glass and follow the plaintiff would cause noise, but the criminal's modus operandi obviously depended on speed - the speedy administration of some noxious substance or the speedy procurement of cooperation by the use of the knife. Even after the assailant departed, the plaintiff's screams and attempts to get assistance by knocking on unit doors did not, unsurprisingly, elicit immediate responses from the other unit holders. The difficulties facing her in that respect had no doubt been taken into account by the criminal. In these circumstances, if the duty to be recognised is one which would eliminate the risk of the type of harm which the plaintiff suffered, or substantially or significantly reduce it, what steps could satisfy it? The substitution of a door without glass and with a foolproof locking system would not significantly reduce the risk. The only remedy which would do so would be the employment of a night watchman, perhaps armed. Though the matter was not investigated at the trial, it seems safe to conclude that to engage a night watchman seven nights a week would cost significant sums of money - at least $20,000 per annum. The sum might be much greater. But if the duty is to take reasonable steps significantly to reduce the risk of criminal conduct, the duty would extend to taking appropriate measures in the daytime as well. Though no doubt in daylight the risk of armed robbery outside the building, in the garage, or on the stairs, might be reduced, it would not necessarily be reduced significantly. There would also arise new risks: many more people would be likely to pass through the building between the early morning and the early evening than would be likely to at 2.45am; the temptation to criminals to carry out burglaries by posing as lawful entrants would increase; the chances of break ins to units while their occupiers were out at work or engaged in other daytime activities away from the building would rise. A determined attempt to deal with all relevant risks - risks of injury to persons, risks flowing from malicious damage to property, risks flowing from offences of dishonesty in relation to property, would call for much more than simply restoring the locked door. It might call for twenty-four hour guards, at an expense likely to be well beyond the capacity of a body corporate and the fifteen unit owners, many of them no doubt not enjoying high incomes, to pay. 101 In the United States the courts have declined in general to recognise a duty to provide "armed, visible security guards to deter criminal acts of third parties". That is a duty to provide police protection, which is the duty of the State: to compel defendants to supply police protection is to compel a safer regime on the occupier's premises than the beneficiaries of the duty would experience in the community at large: Nivens v Hoagy's Corner 943 P 2d 286 (1997). In Ann M v Pacific Plaza Shopping Centre 863 2d 207 (1993) at [13]-[14] it was said that the duty to have security guards only arose if there was a "high degree of foreseeability", because of their cost, because it was difficult to assess how many patrols were sufficient to deter, and because "the social costs of imposing a duty on landowners to have private police forces are … not insignificant". This reasoning has little application in Australia. In the United States the threshold which must be passed before a duty is created is low, and the courts are understandably reluctant to hold that in the wide range of cases where there is a duty its content generally calls for the provision of guards. In Australia it is very difficult to pass the threshold which lies before a finding of duty; but once it is passed there is no point in having done so unless the content of the duty, if complied with, would eliminate or significantly or substantially reduce the risk of harm. 102 Further, the consequences of recognising a duty to take reasonable steps to eliminate or substantially or significantly reduce the risk of harm being caused by criminals might call for even more expense. It might call for the inspection of the totality of the premises by an expert in home security. It might call for the fortification of all external windows and all balcony doors: the sole past experience of criminal conduct had been of criminal entries through balcony doors. Yet the effectuation of such fortifications would not only cost more, but would raise aesthetic problems. It would also collide with the desires of any particular unit owner to preserve his or her property unchanged. See generally Jones v Bartlett (2000) 205 CLR 166 at [15], [19] and [23]-[25]. 103 In Sullivan v Moody (2001) 183 ALR 404 at [42] Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ said that reasonable foreseeability of harm was not the sole condition for the recognition of a duty of care. "If it were otherwise, at least two consequences would follow. First, the law would subject citizens to an intolerable burden of potential liability, and constrain their freedom of action in a gross manner. Secondly, the tort of negligence would subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms." 104 The recognition here of a duty to eliminate or substantially reduce the risk of harm flowing from criminal conduct outside existing criteria for the recognition of duties of that kind might be said to subject the defendants, and behind them the unit holders, to "an intolerable burden of potential liability" if they did not take appropriate measures, and "constrain their freedom of action in a gross manner" by reason of the large expenditures called for if they did take appropriate measures. It might also be said to subvert statutory provisions "which strike a balance of rights and obligations, duties and freedoms". The legislation which permits citizens to own strata units balances the rights and freedoms of each unit owner to deal with his or her unit as desired with the obligations and duties to conform to decisions of relevant organs of the body corporate. If the imposition of a tortious duty would compel the overriding of the balance which would otherwise exist, or expose the body corporate to liabilities which it could not avert because it could not compel unit holders to cooperate, these consequences point against the conclusion that the law recognises the existence of that duty. 105 Under the Strata Titles Act 1973, in force in 1993, a "lot" was a cubic space designated as such on a strata plan. Which parts of the building were common property, over which the body corporate had a duty and a power to effectuate changes to improve security pursuant to s 68(1)(b) of the Act, and which were "lots", over which only the relevant unit holder had that power? That is not a question on which the evidence throws light, because it was not a question seen as relevant at the trial. The strata plan designating the units is not in evidence. After the assault on the plaintiff, a question arose at an annual general meeting of unit holders as to whether the plaintiff had received permission from an earlier manager to install security bars blocking outside access to her unit. This implies a view by those present either that the outside of the plaintiff's unit was not part of her lot or that even if it was the body corporate could control what was done on it. But there is no other material casting light on the correctness of that view, apart from the not necessarily well instructed understanding of Mr Platt that the volume inside the coat of paint covering the walls of a unit was the unit holder's property, while what was outside that coat of paint was common property. 106 However, the lack of material evidence does not matter for present purposes. If security measures required attention to the windows and doors and balconies of individual units, and those windows and doors and balconies were part of each lot, the body corporate could not compel work to be done to them. If they were part of the common property, it could, but only if a majority of unit holders voted that way in a meeting of the body corporate or some other relevant organ of the body corporate reached a decision to that effect, which decision would require, from a practical point of view, some unit holder support. The courts should be reluctant to impose legal duties which would either collide with unit holder autonomy, or create a topic of dissension amongst unit holders.

[52]

He went on to say that those powers of control established the relationship between occupier and entrant which sufficed to create a duty of care. 109 Counsel for the plaintiff did not seek to rely on Hayne J's reservation at [117], being content to argue that the facts of this case fell literally outside the Modbury prohibition on liability because the defendants were responsible for wrongs of commission in relation to the physical state of the premises, not mere omission. However, the trial judge appeared to rely on what Hayne J said, and to arrive at an answer to Hayne J's question favourable to the plaintiff. The trial judge quoted the passage just quoted from [106] and said: "in this case the allegation is about a third party coming onto and remaining on the premises when he ought not to have been permitted to do so. There seems to me, therefore, to be a real connection between the state of the lock to the entry door and the assault by the assailant on the plaintiff." 110 It is therefore necessary to deal with the trial judge's reliance on what Hayne J said, or at least on one answer to the issue which he posed. 111 At the point in his reasoning where he reserved the question of whether a failure to control access to or continued presence on the premises, Hayne J referred to two cases which give guidance as to what he had in mind. These were Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 and Public Transport Corporation v Sartori [1997] 1 VR 168. 112 Sartori's case concerned the duty of an employer to an employee to prevent the employee from being injured on premises which were supposed to be closed so as to exclude members of the public. It was only in that sense that the case was about "the occupier failing to control access to" the premises. The case involved the well-established "special relationship", namely that of employer-employee. It does not illustrate any wider or more novel proposition about failure to control access. 113 Cases like the Chordas case are remote from present circumstances. They deal with a special factual position. They recognise that the duty to take reasonable care to avoid a reasonably foreseeable risk of injury to lawful visitors owed by the occupier or person in control of a restaurant or other outlet for the on-site consumption of alcohol extends to the injuries caused by tortious or criminal acts of other lawful visitors. A justification for this is that it is highly foreseeable that some patrons may either arrive intoxicated or become intoxicated, and a segment of these may become violent. Hayne J suggests that justification lies in a duty of the publican to supervise the behaviour of patrons, to desist from serving them while intoxicated, and in the last resort to eject them. In most jurisdictions there is usually a statutory duty to eject intoxicated persons, and there is usually a statutory defence to criminal prosecution and tortious proceedings if no more than reasonable force is used. In the Chordas case at 99 Davies, Kelly and Neaves JJ said: "Particularly in the case of an hotel, which provides a facility pursuant to a licence authorising the provision of liquor and pursuant to Acts and regulations which require or imply that the facility be open to the public, it is necessary to keep in mind that the licensee may have no control over his patrons save the power to eject them for good cause. As we have said, the manager of an hotel, like the manager of other facilities, must take reasonable care for his patrons and, if cause is shown which requires that a patron be closely supervised or ejected or that another patron be warned, the manager should take whatever may be the appropriate step in the interests of the safety of his patrons. However, what is the appropriate course in a particular case obviously depends upon the circumstances of the case."

[53]

See also Oxlade v Gosbridge Pty Ltd (NSWCA, unrep, 18 December 1998). 114 Normally the duty is owed to one patron to prevent injury caused by another: eg Wormald v Robertson (1992) Aust Torts Rep 81-180; Guildford Rugby League Football and Recreational Club Ltd [2001] NSWCA 139. One case which is arguably an extension of the principle is Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447, in which a police officer injured in a drunken brawl at a social club was held entitled to recover from the club. The Victorian Court of Appeal, however, at [45] treated the case not as being of the Chordas type or as suggesting any particular answer to the question reserved by Hayne J, but as one involving a "special relationship" between the club and the officer. At [44] the Court of Appeal also raised an interesting possibility of characterising the case not as one of harm arising from criminal conduct, but rather as one of: "harm arising from disorder - a commotion, a human eruption or convulsion or conflagration - not to be analysed in terms of the particular criminal acts which injured the plaintiff but to be viewed more broadly as a state of affairs , and as one created by the club. On this approach, the plaintiff was injured as a result of that state of affairs, the actual criminal kicks and blows being no more than the particular vehicles of injury. On this analysis, the club's position, as regards duty of care, might be no different if, instead of being attacked by a trouble-making ruffian, the plaintiff had been unintentionally struck by a peaceable patron defending himself against an assault, or accidentally knocked to the ground by non-violent patrons trying to avoid the melee. We think there is much to be said for this approach; but we need not pursue the question." 115 The duty of those who run establishments serving alcohol to avoid injury being caused by drunken patrons to other patrons (and perhaps other persons such as police officers, if that solution to Ritchie's case, not in terms adopted by the Victorian Court of Appeal, is available) has not in this State been widened into a duty to avoid injury being caused to drunken patrons by reason of their drunkenness: South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205. 116 The authorities referred to by Hayne J do not point to any body of law which would make it right for this Court to answer the question he reserved in a manner favourable to the interests of the plaintiff in this case. To do so would be to change the law, and the law at least in this particular field should only be changed by the High Court.

[57]

The misfeasance case 118 In one sense the failure on 6 May 1993 to employ some alternative security system was only non feasance - a failure to act. But it was not pure non feasance, because it was coupled with the positive act of deactivating the lock. Similarly, failure to brake while driving a car is not non feasance, because it is coupled with positive acts which put the car into motion: Pyrenees Shire Council v Day (1998) 192 CLR 330 at [102] per McHugh J. 119 While in a general sense the distinction between liability for failure to act and liability for positive acts, and the distinction between duties to abstain from causing harm and duties to carry out positive acts which will prevent harm can be important, it is difficult to see much merit in them in the particular circumstances of this case. If there had never been a locking system before or after 6 May 1993, but the plaintiff had complained about its absence a few times before 9 September 1993, she would have been injured in the same way as she was. If there had been a locking system up to 6 May 1993, but it wore out or broke on that day and the defendants failed to repair it, which the plaintiff thought had actually happened, she would have been injured in the same way as she was. It would be a reproach to the law if she could not recover in either of those two cases but could recover merely because the defendants had deliberately deactivated the locking system. It might make a difference if they deactivated it without the plaintiff becoming aware that the system had ceased to work, because the plaintiff might then have been able to mount a negligence case based on reliance: but in fact she knew that the system no longer worked and did not rely on it working. Counsel for the plaintiff attempted to negate the above argument by refusing to concede that there would have been liability if there had never been a locking system but the plaintiff had requested one. It would not follow from a mere request that the duty urged existed. Counsel for the plaintiff also contended that if the locking system had simply worn out or broken there would have been a statutory duty on the body corporate to have it repaired. He referred to s 68(1)(b) which imposed on the body corporate a duty "properly [to] maintain and keep in a state of good and serviceable repair … the common property …." However, the cause of action would not have been in negligence. No attempt was made to demonstrate that a cause of action for breach of statutory duty would have lain, nor that any other identifiable cause of action would have lain. 120 A further anomaly is that counsel for the plaintiff conceded that if there had never been a locking system and no requirement by unit holders that there be one had ever been made, there would be no duty; yet counsel for the plaintiff said that if at some point in the period a locking system was installed, and at a later time removed, there was a duty not to remove it. It is anomalous that the defendants are not liable if they do nothing, but are liable if they do something and then reverse what they did. Counsel for the plaintiff said there was no anomaly, because the plaintiff relied on the existence of the locking system. She may have until the point of time after 6 May 1993 when she concluded that it was not working, but after that time there was no reliance. 121 Yet a further difficulty in the misfeasance case is that it depends in an adventitious way on the point of time selected. If the plaintiff had been injured by a criminal attack immediately after the system was deactivated, the matter could be characterised as a piece of misfeasance on the part of the defendants. But as time passed after 6 May 1993, and as the plaintiff made her successive complaints without effective response, the conduct of the defendants is more to be characterised as non feasance: assuming all other matters in the plaintiff's favour, the defendants had a duty to respond to her requests but they did not respond to them. It would be a further reproach to the law if the plaintiff could recover in relation to an assault soon after 6 May 1993, but not some months after. 122 While Gleeson CJ in particular stressed that one reason why the plaintiff should fail in the Modbury case was that the law does not favour the creation of positive duties to act, and while Gaudron J and Hayne J agreed with his reasons for judgment, there were many other elements in his reasoning and the reasoning of Hayne J and Callinan J adverse to the plaintiff's success - lack of a high degree of foreseeability, lack of control, lack of reliance, lack of an assumption of responsibility, and absence of any general duty to prevent harm to plaintiffs arising from the crimes of third parties whether one element in the harm was non feasance by the defendant or misfeasance by the defendant. 123 What Gleeson CJ actually said about non feasance and misfeasance was: "the general rule that there is no duty to prevent a third party from harming another is based in part upon a more fundamental principle, which is that the common law does not ordinarily impose liability for omissions."

[59]

Allowing for the fact that in the Modbury case what was in issue was a system pursuant to which lighting automatically went off by reason of the operation of timing devices, while what is in issue in the present case is a physical locking system, these facts reveal a close parallel with the present case. Until July 1992 the system conformed to what, according to the plaintiffs in the Modbury case, the defendant's duty of care required and to what would have averted the injury. It then changed, more than once, but it never took a form which would have complied with the plaintiffs' contention as to the defendant's duty. If the difference between the defendant in the Modbury case being liable and not liable turns on a difference between a failure to ensure that the lights were on and a positive act of changing the system with the result of the lighting being turned off earlier, the defendant ought to have lost. It was not the case that the defendant had simply failed to guard against the harm. At one stage it had guarded against the harm, but it engaged in positive conduct to change that so that thereafter it ceased to guard against the harm. 125 Though one strand in the reasoning in the Modbury case turns on the law's dislike of compelling positive conduct by defendants to prevent harm to plaintiffs, that was not a decisive part of the reasoning. The reasoning which caused the plaintiffs in the Modbury case to lose and which stands in the path of the plaintiff in this case is reasoning which applies as much to misfeasance as non feasance. 126 The matters mentioned in [109]-[116] indicate difficulties in the plaintiff's argument. See also W D & H O Wills (Australia) Ltd v State Rail Authority of New South Wales (1998) 43 NSWLR 338 at 355. However, it is not necessary to decide conclusively whether a duty of care was owed in relation to misfeasance, because it is possible to decide the misfeasance case on causation grounds, and reject it for the reasons given in [121]-[134] below. Since it is not necessary to decide whether a duty of care was owed in relation to misfeasance, it is desirable not to attempt to decide that difficult question.

[69]

(e) that no would-be assailant desiring to rob someone moving towards the building late at night, would effectuate the robbery just outside the front door, or in the garage, or wherever else in the common property outside the door seemed convenient. 135 Even if assumption (a) is sound in many instances, it is not likely to be universally true. Assumption (b) is likely to be true in many, but fewer, instances: it is harder for a visitor gaining entry to prevent another person coming in than for a unit occupant to refuse entry to that other person. The occasions when assumptions (a) and (b) will not apply are likely to be daylight or early evening occasions, since persons without keys attempting to gain entry from unit holders late at night are not likely to be numerous, and if they lack sound justification, are not likely to succeed in their attempts. Assumptions (c)-(e) are much more likely to be falsified late at night: the chances of daylight attacks are lower than night time attacks because more people are likely to be about in the daytime than late at night. Each of assumptions (c), (d) and (e) is unlikely to be universally true, depending on the determination of the assailant and depending on his perception of the best way in the particular circumstances to effectuate his desires. 136 The person who attacked the plaintiff was professional and determined: he had already gained entry, he was disguised, he was equipped with a means of subduing victims (the cloth smelling of something like methylated spirits), and he was armed with a dangerous weapon. 137 Even if the door were locked, it is probable that the assailant would have waited outside in a dark place and attacked there, or adopt one of the other methods described above of achieving his goal. In the Modbury case at [152] Callinan J said: "What strikes me as very likely, and at least as likely as the competing inference, is that the assailants, having brought their bat with them to commit an assault, would not take it home without first using it for that purpose, lighting or not. In short, in my opinion, the respondents' case should have failed on the issue of causation as well as the issue of duty of care."

[70]

So here, the plaintiff's attacker, having brought his mask, cloth and knife to commit a robbery, would not have gone away without using them, locked door or no locked door, chimes or intercom or no chimes or intercom. The trial judge did not make findings excluding the possibility of an assailant finding some dark area in the garage or elsewhere on the premises or near them in which to wait until a victim came in sight. Nor was that possibility excluded by the evidence. 138 The plaintiff argued that breach of duty coupled with harm of the type that might flow from it was enough to justify an inference of causation, "in the absence of any sufficient reason to the contrary", in the words of Dixon J in Betts v Whittingslowe (1945) 71 CLR 637 at 649. The present discussion proceeds on the assumption that there was a breach of duty of the type described by the trial judge, and that the attack which occurred was of the kind which might flow from that breach. However, there are sufficient reasons to conclude that the breach did not cause the harm. Those reasons, in a nutshell, turn on the feeble nature of the measures prescribed by the trial judge when measured against the evident determination and skill of the assailant. 139 The plaintiff has not demonstrated that the measures which the trial judge held would satisfy the defendants' duty of care would, on the balance of probabilities, have prevented the attack. 140 One strand in the trial judge's reasoning on breach was that the defendants had a duty to give consideration to the interests of the occupiers and visitors so far as physical safety from attack by criminals was concerned and act on that consideration. The trial judge found that this duty of consideration and action was performed in part but not in whole. The defendants performed it by considering whether to install, and installing Vandalites and considering whether to maintain, and maintaining, outside lighting in reasonable condition. These measures inter alia served to deter criminals from waiting to attack persons on their way into the building. But according to the trial judge the defendants did not perform their duty of consideration in relation to the risk of an intruder unlawfully entering the building and attacking an occupant or other lawful visitor. They should have extended the consideration to the point of deciding upon the introduction of chimes or an intercom. 141 There is force in the view that if the defendants owed a duty of care, it required compliance with a duty of consideration entailing a general survey of security problems, perhaps with expert assistance, since security measures sufficient to overcome the skills of determined criminals are not necessarily obvious to lay people or to managers such as Mr Platt. There was no evidence of what an expert would have recommended or what a general survey would have suggested as desirable. However, in view of the determination and skill of the assailant, the wide range of potential victims, the wide range of interests of potential victims which might be damaged by an assailant, and the real possibility of damage being caused before the victim ever passed through the front door, it cannot be said that the plaintiff has shown on the balance of probabilities that compliance with a duty of consideration would exclude much wider safety measures than chimes or an intercom, and in particular that it would exclude security guards. 142 Further, if there was a duty to have carried out a survey of security measures resulting in the maintenance of a locked door together with chimes or an intercom, the duty would probably extend more widely. See Jones v Bartlett (2000) 205 CLR 166 at [15] and [19]. The duty of consideration and the survey of problems would include a search for other reasonably foreseeable risks of harm caused by criminals intruding into the building or criminals attacking persons near the building. Indeed, the trial judge appeared to accept that the duty extended as far as criminals operating near the building, because of his acceptance that the relevant duty was fulfilled by installing Vandalites and maintaining outside lighting. That appears to be why he said that if the criminal conduct had occurred outside the building there would probably be no claim against the defendants. That the duty of consideration extends to the position of the guests of occupiers outside the building as well as occupiers flows from the trial judge's application of the duty to the guests of occupiers inside the building. 143 But why should the duty of consideration and expert survey stop there? If the defendants owed a duty of care to persons in the common areas who might be injured by assailants coming through the front door, why is there not a duty owed to persons in those areas who might be injured by assailants gaining entry through the units? The duty of consideration and expert survey would thus extend to an examination of windows, balconies, the doors to units, the area outside the front door, the drive, and the garage. If the standard of care required is to take measures which will prevent or substantially eliminate a risk of injury, guards at least at night time and probably all the time would be called for. That would call for considerable expenditure, and the level of that expenditure would make it unlikely that a failure to provide guards would be a breach of duty. In that event the breach of duty, and in particular the breach of duty found by the trial judge, would probably not have prevented the attack.

[74]

The respondent is to pay the appellants' costs of the appeal and is to have a certificate under the Suitors Fund Act 1951 if qualified. 146 HODGSON JA: I agree with the orders proposed by Heydon JA and with his reasons concerning the non feasance case. As regards the misfeasance case, I also would prefer to rest my decision on the question of causation. 147 In the light of the primary judge's acceptance of Mr. Islam's evidence that the front door was always unlocked on those occasions when he entered the premises about 11pm, being one week in four, a finding that, but for the appellants' interference with the front door lock, it would more probably than not have been locked on the night of the assault, would be an unreasonable finding. If the door had been locked on average as often as one night in two, it is improbable in the extreme that Mr. Islam would always have found it unlocked on one night in four or five. 148 Furthermore, even if the front door had been locked on that night, it is for reasons given by Heydon JA far from certain that this would have prevented the assault; and accordingly, in my opinion, a marginal preponderance of probability that the door would have been locked (even if this had been established) would not have been enough to establish on the balance of probabilities that, but for the interference with the lock, the assault would not have occurred. 149 Accordingly, the finding that the assault was relevantly caused by the interference with the lock was wrong and should be overturned. 150 If the evidence had established that an existing security system, on the balance of probabilities, had been consistently used and would have prevented the assault, the question would then have arisen whether removal of that system breached a duty to the respondent. I would prefer not to decide that question. I think it does raise different issues from the non feasance case. I think it also raises different issues from those decided in Modbury: although in one sense, the change from leaving lights on until 11pm to turning them off at 10pm was a positive act, it can also be regarded as non feasance in not paying the extra cost of keeping the lights on for the additional hour.

Parties

Applicant/Plaintiff:

Proprietors of Strata Plan 17226

Respondent/Defendant:

Drakulic

Cases Cited (20)

CITATION : Proprietors of Strata Plan 17226 v Drakulic [2002] NSWCA 381 FILE NUMBER(S) : CA 40481/01 HEARING DATE(S) : 22 May 2002 JUDGMENT DATE : 27 November 2002

COUNSEL : Mr W P Kearns SC/Mr A G Jamieson (Appellants) Mr J D Hislop QC/Mr R K Weaver (Respondent) SOLICITORS : W R Ghioni (Appellants) Graham Jones (Respondent) CATCHWORDS : Tort - negligence - duty of care - existence - breach - personal injury - misfeasance - nonfeasance - plaintiff victim of crime - assault occurring on common property - application of principle in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2001) 205 CLR 254 - D LEGISLATION CITED : Strata Titles Act 1973 Ann M v Pacific Plaza Shopping Centre 863 2d 207 (1993) Ashrafi Persian Trading Co Pty Ltd v Ashrafinia (2002) Aust Torts Rep 81-636 Betts v Whittingslowe (1945) 71 CLR 637 Bressington v Commissioner for Railways (New South Wales) (1947) 75 CLR 339 Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 Devonish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32 Dorset Yacht Co Ld v Home Office [1970] AC 1004 Frances T v Village Green Owners Association 723 P 2d 573 (1986) Holley v Mt Zion Apartments Inc 382 So 2d 98 (1980) Jones v Bartlett (2000) 205 CLR 166 Kline v 1500 Massachusetts Ave Apartment Corp 439 F 2d 477 (1970) Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 Nivens v Hoagy's Corner 943 P 2d 286 (1997) CASES CITED: O'Hara v Western Seven Trees Corporation Intercoast Management 142 Cal Rptr 487 (1978) Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The "Wagon Mound") (No 2) [1967] 1 AC 617 Oxlade v Gosbridge Pty Ltd (NSWCA, unrep, 18 December 1998) Public Transport Corporation v Sartori [1997] 1 VR 168 Pyrenees Shire Council v Day (1998) 192 CLR 330 Smith v Leurs (1945) 70 CLR 256 South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205 Sturbridge Partners Pty Ltd v Walker 482 SE 2d 339 (1997) Sullivan v Moody (2001) 183 ALR 404 Tame v New South Wales [2002] HCA 35 Tennants (Lancashire) Ltd v C S Wilson and Co Ltd [1917] AC 495 The Australian Builders' Labourers' Federated Union of Workers - Western Australia Branch v J-Corp Pty Ltd (1993) ATPR 41-245 W D & H O Wills (Australia) Ltd v State Rail Authority of New South Wales (1998) 43 NSWLR 338 Wyong Shire Council v Shirt (1980) 146 CLR 40 DECISION : See paragraph 145

Held (Heydon JA, Mason P and Hodgson JA agreeing), allowing the appeal, As to foreseeability of injury to the plaintiff:

In view of past incidents and in view of the general risk of robbery late at night, there was a risk that an assault might occur. The risk was real and not far-fetched. Hence it is hard to avoid the conclusion that it was reasonably foreseeable. But while reasonable foreseeability is a necessary condition for liability in negligence, it is not sufficient. That is particularly so where the cause of injury is the criminal act of a third party: [61]. Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; Sullivan v Moody (2001) 183 ALR 404, applied. As to existence of a duty of care:
Leaving aside contractual cases, it was only in exceptional categories - employer/employee, school/pupil, bailor/bailee, parent and person whom the parent's child might injure - that defendants owe a duty to plaintiffs to prevent injury by reason of the criminal conduct of third parties. The facts did not fall within any of these categories. Indeed, the position advanced by the plaintiff was inconsistent with many key elements in the majority reasoning in the Modbury case. That reasoning rested on: (a) the unpredictability, wantonness and randomness of criminal behaviour, and the corresponding difficulty of eliminating it or greatly reducing the risk of it; (b) the lack of knowledge which the occupier is likely to have about that behaviour; (c) the lack of control which occupiers have over criminal third parties, which stands in particular contrast to the control they have over the capacity of the physical condition of the premises to cause physical injury to visitors; (d) the irrationality of making a defendant liable for not preventing conduct which the efforts of society as a whole through the legislature, the police force and the criminal courts are directed to preventing; (e) the relatively minor role of civil defendants in contributing to the loss suffered by the plaintiffs at the hands of criminals; and (f) the highly exceptional character of those cases in which a duty of care to avoid harm from the criminal acts of third parties is recognised in earlier authority. All these bases pointed against the existence of a duty of care: [70], [72]-[73]. Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, applied.
Reliance was not a possible source of duty because the plaintiff did not rely on the defendants to ensure that the foyer door was locked. She knew it was not locked: [82]. Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 105 CLR 254, applied.
Assumption of responsibility was not a possible source of duty because the defendants did not assume any responsibility for keeping the door locked, and had in fact unlocked it, prompting the plaintiff to complain about the matter: [83]-[84]. Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, applied.

(2002) 55 NSWLR 659

(2001) 205 CLR 254

(1945) 71 CLR 637

(1947) 75 CLR 339

(1988) 20 FCR 91

(1991) 172 CLR 32

(2000) 205 CLR 166

(2000) 205 CLR 254

(1998) 192 CLR 330

(1945) 70 CLR 256

(2001) 183 ALR 404

(1998) 43 NSWLR 338

(1980) 146 CLR 40

(2000) 105 CLR 254

(2001) 3 VR 447

[2002] NSWCA 205

[2002] HCA 35

The present case did not fall within either of the two possible exceptions to the Modbury doctrine, based on (a) criminal conduct attended by such a high degree of foreseeability, and predictability, that it is possible to argue that the case would be taken out of the operation of the general principle so as to impose a duty to take reasonable steps to prevent it; or (b) a duty to control the criminal conduct of others where the complaint that is made by the plaintiff is not about the occupier failing to control access to or continued presence on the premises. Nor did it warrant recognition of a duty of care on grounds of a special relationship or special circumstances. a. Even if a high degree of foreseeability of harm would suffice for the recognition of a duty of care, the evidence here would not permit a conclusion that a test for such foreseeability was met: [92]. W D & H O Wills (Australia) Ltd v State Rail Authority of New South Wales (1998) 43 NSWLR 338; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, considered. b. Authorities supporting the existence of a duty to control the criminal conduct of others where the complaint that is made by the plaintiff is not about the occupier failing to control access to or continued presence on the premises did not point to any body of law which would make it right for the Court of Appeal to affirm this possible exception to the Modbury principle in a manner favourable to the interests of the plaintiff in this case. To do so would be to change the law, and the law at least in this particular field should only be changed by the High Court: [114]-[116]. Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91; Wormald v Robertson (1992) Aust Torts Reports 81-180; Public Transport Corporation v Sartori [1997] 1 VR 168; Guildford Rugby League Football and Recreational Club Ltd [2001] NSWCA 139; Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447, distinguished; South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205, considered. c. It is plain that the relationship of unit owner and body corporate, and the relationship of unit owner and manager, are not relationships of the type recognised as "special" under the existing case law. If new categories of "special" relationship are to be created within which a defendant is to be liable for the criminal acts of third parties, the step is not merely factual. It would involve a matter of law - indeed a change in the law. A change in the law of that order of significance is not something which this Court should undertake. It is a matter for the High Court: [87], [89]. Pyrenees Shire Council v Day (1998) 192 CLR 330; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, considered. Per Heydon JA, Hodgson JA agreeing: