Civil Procedure Act 2005

Human Rights Act 2004, s 21

Lonrho Plc v Fayed (No 2) [1991] 4 All ER 961

Stergiou v Citibank Savings Ltd (1998) 148 FLR 244

Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27, (2006) 226 CLR 256

Kent v Griffiths [2000] EWCA Civ 25; [2000] 2 WLR 1158

Integral Home Loans Pty Ltd v Interstar Wholesale Finance Ltd [2006] NSWSC 1464

State of Queensland v JL Holdings [1997] HCA 1; (1997) 189 CLR 146

New South Wales v Klein [2006] NSWCA 295

D'Orta-Ekenaike v Victoria Legal Aid & Anor [2005] HCA 12, (2005) 223 CLR 1

Giannarelli & Ors v Wraith & Ors [1988] HCA 52; (1988) 165 CLR 543

Capital & Counties Plc v Hampshire County Council [1997] EWCA Civ 3091; (1997) QB 1004

Pyrenees Shire Council v Day & Anor [1998] HCA 3, 1988 192 CLR 330

Anns & Ors v Merton London Borough Council [1977] UKHL 4; (1978) AC 728

Caparo Industries Plc v Dickman & Ors [1990] UKHL 2; [1990] 2 AC 605

Perre & Ors v Apand Pty Ltd [1999] HCA 36, (1999) 198 CLR 180

Sullivan v Moody & Ors [2001] HCA 59, (2001) 207 CLR 562

Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61, (2000) 205 CLR 254

Burnett v Grampian Fire and Rescue Service [2007] CSOH 03

Northern Territory of Australia v Deutscher Klub (Darwin) Incorporated [1994] NTSC 10; (1994) Aust Torts Rep 81-275, 4 NTLR 25

R & W Vincent Pty Ltd v Board of Fire Commissioners (NSW) Pty Ltd (1977) 1 NSWLR 15

Hill v Chief Constable of West Yorkshire [1989] AC 53

Sullivan v Moody (2001) 207 CLR 562

New South Wales v Fahy [2007] HCA 20, 22 May 2007

The Council of the Shire of Wyong v Shirt [1980] HCA 12; (1980) 146 CLR 40

Overriding Purpose of Procedural Acts (2007) 81 ALJ 367

The Canberra Firestorm: Inquests and Inquiry into Four Deaths and Four Fires between 8 January and 18 January 2003, December 2006, Two Volumes - Coroner Doogan

The Judicial Method, (1999) 73 ALJ 37 at 49

1. The application to strike out the statement of claim be dismissed.

2. The first defendant pay the plaintiffs' costs of the application.

1. This is an application to strike out an action for damages for property loss brought by the plaintiffs against the defendants for alleged negligence in bushfire suppression activities during the period shortly before the major bushfires that devastated the Canberra region in January 2003. The plaintiffs operate a rural property, Wyora Station, situated in New South Wales in the Brindabella Ranges adjacent to the Australian Capital Territory and just on the western bank of the Goodradigbee River. The land on the eastern bank of the river is, on the pleadings, land within the control of the State of New South Wales, much of it as a park. It is pleaded, and seems to be common ground as well as notorious knowledge, that a fire commenced within the Brindabella National Park as a result of a lightning strike in the area known as "McIntyre's Hut". It is pleaded that this area is within two kilometres of the boundary of Wyora Station.

2. The claim was pleaded against the State of New South Wales, pursuant to the Crown Proceedings Act 1988 (NSW) in respect of acts and omissions of officers of the New South Wales Rural Fire Service and the National Parks and Wildlife Service. The pleadings in their original form pleaded that "at all material times McIntyre's Hut and the surrounding area in the Brindabella National Park were within the administrative jurisdiction of the NSW National Parks and Wildlife Service". The pleadings have now been amended to clearly plead that the first defendant was the occupier of this area.

3. The claim was originally also brought against Mr Philip Koperberg, who was the Commissioner of the Rural Fire Service. The plaintiffs indicated at this application that they would consent to the removal of the second defendant from the proceedings by way of a consent to a judgment for the second defendant with no order as to costs.

4. Put succinctly, the plaintiffs' claim is that although the McIntyre's Hut fire was known to the defendants, and although the defendants had bushfire resources standing by and ready and able to undertake suppression activities, a decision was taken by the defendants not to undertake direct suppression activities when this fire was still of a small scale. The plaintiffs' claim, by the pleadings, is limited to events on 8 and 9 January, although it is said that these claimed omissions led to the property being destroyed by fire on 18 January 2003, which was the day on which the fires also caused great devastation in the Canberra region. The plaintiffs do not plead acts or omissions on this day. Rather, their claim goes to claimed failure to extinguish the fire in its early stages.

5. By their defence, the defendants admit certain factual matters, but in essence deny the existence of, or breach of, any duty of care. Further, they plead that any acts or omissions were done in good faith and, pursuant to s 128 of the Rural Fire Act 1987, cannot be the subject of any claim.

6. The present application to strike out the claim was brought in May 2007 pursuant to r 425(1)(a) of the Court Procedure Rules 2006. This provides that,

The court may, at any stage of a proceeding, order that a pleading or part of a pleading be struck out if the pleading -

(a) discloses no reasonable cause of action or defence appropriate to the nature of the pleading

...

This is similar in form to the old power pursuant to O 29 r 28, and indeed Rules of Court in all Australian jurisdictions contain a similar power.

7. There are well-established principles of law that must be applied in an application to strike out an action on the grounds that it discloses no reasonable cause of action, which must be restated in this application. The January 2003 bushfires in Canberra and surrounding areas were, of course, a major disaster, with tragic loss of life and considerable loss of property and damage to the environment. There have been a number of inquires into the fires, including a significant coronial inquiry undertaken by Coroner Doogan (The Canberra Firestorm: Inquests and Inquiry into Four Deaths and Four Fires between 8 January and 18 January 2003, December 2006, Two Volumes). All have been matters of significant public interest. There have been a number of other claims brought in this Court by persons claiming to have suffered loss or damage as a consequence of the fires and these claims, together with this claim by Mr and Mrs West, have also been matters of some public interest.

8. This application is not a trial on the merits, and it must be emphasised that this ruling is to be confined to the legal question presented in the application, that is, whether the claim as pleaded presents a reasonable cause of action.

9. In an application to strike out a pleading on the ground that it discloses no reasonable cause of action, it is not appropriate to consider at all the strength of the evidence that may be presented at any future trial. The application is to be dealt with on the assumption that every fact pleaded by the plaintiffs is true (and capable at the end of the day of being supported by credible and admissible evidence), and the Court should only strike out the pleading if it is bound to fail even if all the allegations are proved. Thus, it is no part of this proceeding to determine the strength of the evidence or whether the allegations made in the plaintiffs' statement of claim are true and able to be proved (Lonrho Plc v Fayed (No 2) [1991] 4 All ER 961 at 965).

10. The application is to proceed on the basis of the substance of the proposed cause of action, not on mere inappropriateness or perceived inadequacy of pleading. As Crispin J observed in Stergiou v Citibank Savings Ltd (1998) 148 FLR 244 at 249,

... if there is a real question to be tried summary judgment should not be granted. In particular, it should not be granted where the relevant pleading is merely ill-expressed: Wentworth v Rogers [No 5] (1986) 6 NSWLR 534 at 536.

I say this not in criticism of the pleadings, only to make the point that the question is clearly one of substance rather than of mere form of the pleadings which, as in all litigation, may be susceptible to further amendment or refinement.

11. In the ordinary course, any citizen is entitled to go to court to resolve a dispute. An application for summary judgment, whereby a defendant can avoid a full hearing by having a claim dismissed on the basis that it discloses no reasonable cause of action, is thus a powerful form of relief, always to be exercised with great care. There are many statements of principle to this effect, but it seems to me that it is well summarised by the remarks of Mason CJ, Deane and Dawson JJ in Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 where their Honours said at 602:

The power to order summary judgment must be exercised with "exceptional caution" (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129) and "should never be exercised unless it is clear that there is no real question to be tried" (Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 at 99). As Dixon J commented in Dey v Victorian Railways Commissioners ((1949) [1949] HCA 1; 78 CLR 62 at 91):

A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury.

12. The test as to whether the power should be invoked that is most frequently cited is that set out by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 and indeed this passage is so well known that it is often referred to in the "shorthand" form so beloved of lawyers as the "General Steel test". His Honour indicated that he had reviewed the many authorities going to the question, and said (at 129):

It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance".

13. Chief Justice Barwick concluded by saying (at 130) that although:

... the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.

14. It seems to me that this statement of the law is still broadly applicable. I note that in Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27, (2006) 226 CLR 256, Gleeson CJ, Gummow, Hayne and Crennan JJ said at [46]:

The statements in General Steel should not be given canonical force. More recently, in Agar v Hyde ((2000) [2000] HCA 41; 201 CLR 552 at 575-6) Gaudron, McHugh, Gummow and Hayne JJ observed:

It is, of course, well accepted that a court whose jurisdiction is regularly invoked in respect of a local defendant (most often by service of process on that defendant within the geographic limitations of the court's jurisdiction) should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.

15. Mr Maconachie QC, for the defendants, made the submission that the traditional reluctance for a court to strike out a claim may need to be modified following recent amendments to court rules. It is the case that the Court Procedures Rules contain a purpose clause that states that the purpose of the rules is to "facilitate the just resolution of the real issues in civil proceedings with minimum delay and expense" (r 21 (1)). This Rule goes on to say that the Rules should be applied with the objective of achieving (r 21(2)) :

(a) the just resolution of the real issues in the proceedings; and

(b) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

16. The modern form of Civil Procedure Rules adopted in this Court certainly owe much to the civil procedure reforms initiated in the United Kingdom under the leadership of Lord Woolf. In Kent v Griffiths [2000] EWCA Civ 25; [2000] 2 WLR 1158, an appeal which interestingly upheld a trial judge's finding that an ambulance service owed a duty of care to persons reliant on the service, Lord Woolf expressed the view that it would be wrong to consider, on a strike-out application, that (at 1169),

...even when the legal position is clear and an investigation of the facts would provide no assistance, the courts should be reluctant to dismiss cases which have no real prospect of success. Courts are now encouraged, where an issue or issues can be identified which will resolve or help to resolve litigation, to take that issue or those issues at an early stage of the proceedings so as to achieve expedition and save expense.

17. Although his Lordship's views on strike-out applications have not, apparently, been cited in Australia, the view that the modern Rules encourage a more interventionist approach from a court did encourage Brereton J in Integral Home Loans Pty Ltd v Interstar Wholesale Finance Ltd [2006] NSWSC 1464 to express the view that:

... since the Civil Procedure Act 2005, it is my view that the Court should take a more interventionist role in identifying and separating important issues which can resolve significant parts of the litigation expeditiously.

This case was recently noted by Young CJ in Eq as the editor of the Australian Law Journal with the observation that:

In England, the obligation under the overriding intention has led to completely changed attitudes to some aspects of procedure where, for example, a perfectly respectable cause of action is pleaded may still be struck out.

(See Overriding Purpose of Procedural Acts (2007) 81 ALJ 367.)

18. It seems to me, with respect, that Lord Woolf's remarks in Kent v Griffiths (supra) are, as well as being mere dicta on the case before him, themselves premised on basis that "the legal position is clear". I do not understand the making of the purpose clause in the Court Procedures Rules 2006 to require an approach to a strike-out application different from the well understood approach most recently referred to by the High Court in Batistatos (supra), and which is clearly binding on me.

19. Moreover, it seems to me that the traditional common law approach, which I consider to be appropriate to follow in interpreting the Court Procedures Rules, is consistent with the statutory recognition by way of s 21 of the Human Rights Act 2004 of the right to a fair trial. Although most often considered in the context of criminal proceedings, this provides:

Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

20. It seems to me that it would require clear language in the Court Procedures Act or Rules to derogate from the longstanding common law approach to a strike-out application.

21. A similar argument would apply in the United Kingdom, where the Human Rights Act 1998 (UK) contains similar provisions. In Kent v Griffiths, Lord Woolf did not advert to the Human Rights Act, but he did say, immediately after the passage quoted above that courts should be encouraged to resolve matters at an early stage, that (at 1169):

There is no question of any contravention of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms in so doing. Defendants as well as claimants are entitled to a fair trial and it is an important part of the case management function to bring proceedings to an end as expeditiously as possible.

22. With respect, this assertion, unsupported by authority, seems to me to go too far in assuming that "case management" principles in the Rules cannot undermine a statutory guarantee of a fair trial. The High Court, in State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 expressed the clear view that:

Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.

23. It seems to me that the test that I must apply under r 425 is the test as understood from the line of cases from General Steel, as recently restated by the High Court in Batistatos. I should not summarily dismiss a plaintiff's claim "except in the clearest of cases", and there should be a "high degree of certainty about the ultimate outcome of the proceeding" if it is to be summarily dismissed.

24. I observe that my reluctance to depart from the General Steel type of approach, despite an apparent divergence of view in the United Kingdom, was the approach adopted by Young CJ in Eq in the New South Wales Court of Appeal in New South Wales v Klein [2006] NSWCA 295. His Honour's remarks from the bench (as opposed quite properly to his observations as a commentator in the Australian Law Journal cited above) was that (at [44]),

...the rules and culture as to striking out of claims in England after the Woolf Report appear to me to be somewhat broader than the law in Australia as laid down by Barwick CJ sitting as a single Justice of the High Court in General Steel Industries Inc v Commissioner for Railways (NSW) .... That case has been followed on many occasions since and I must take it as binding on me. It is of course, now 42 years old and the culture of litigation has changed, but it seems to me that it is probably only the High Court which can change the culture and liberalise to at least the same extent as they exist in England the rules about striking out claims.

25. In the present case, the defendants argue that there is no duty of care on a fire authority enforceable at the behest of a member of the community who suffers loss as a consequence of a bushfire. They concede that there is no conclusive authority binding on this Court to this effect. The High Court has certainly not so held. Where there is clear and binding High Court authority precluding a cause of action, it is, of course, entirely appropriate for a judge at first instance to stay or strike out the proceeding. That was the course adopted at first instance in D'Orta-Ekenaike v Victoria Legal Aid & Anor [2005] HCA 12, (2005) 223 CLR 1, where a plaintiff sought to bring a cause of action in negligence against a barrister in the face of Giannarelli & Ors v Wraith & Ors [1988] HCA 52; (1988) 165 CLR 543.

26. Where there is no binding authority to say that the cause of action is unsustainable, it seems to me that a defendant faces a heavy burden in persuading a trial judge to strike out a cause of action as being unreasonable. The proposition of law that Mr Maconachie advances, that there is no common law duty of care on a rural fire service to answer a call for help, or to take care to do so, has been adopted by the English Court of Appeal in Capital & Counties Plc v Hampshire County Council [1997] EWCA Civ 3091; (1997) QB 1004. This decision has, however, not been adopted by the High Court (although noted by Toohey, Gummow and Kirby JJ in their separate reasons in Pyrenees Shire Council v Day & Anor [1998] HCA 3, 1998 192 CLR 330 at 358, 388 and 396), and indeed its reasoning progresses by way of following the earlier English authorities of Anns & Ors v Merton London Borough Council [1977] UKHL 4; (1978) AC 728 and Caparo Industries Plc v Dickman & Ors [1990] UKHL 2; [1990] 2 AC 605. The approach is based on a test described by Gaudron J in Perre & Ors v Apand Pty Ltd [1999] HCA 36, (1999) 198 CLR 180 at 197-198 as involving:

... first, foreseeability, secondly, the existence of a relationship between the parties of "proximity" or "neighbourhood" and finally, a consideration of policy to determine whether it is "fair, just and reasonable" to impose the duty of care in question.

27. This line of authority has been expressly rejected by the majority of the High Court in Australia in a line of cases from Perre v Apand (supra). It was clearly stated in Sullivan v Moody & Ors [2001] HCA 59, (2001) 207 CLR 562 at [49] by Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ that:

What has been described as the three stage approach of Lord Bridge of Harwich in Caparo Industries Plc v Dickman does not represent the law in Australia.

Although Kirby J has expressed his support for this line of reasoning (Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61, (2000) 205 CLR 254 at 276 ff), the present majority of the High Court has made it clear that this is not a sound approach. An English Court of Appeal decision, albeit one where leave to appeal was refused by the House of Lords, must be viewed with some caution when it is so clearly based on an approach which does not represent the law in Australia.

28. Moreover, as counsel for the plaintiffs noted, this decision has failed even to commend itself to the Scottish Courts. In Burnett v Grampian Fire and Rescue Service [2007] CSOH 03, Lord McPhail declined to strike out a claim based on an asserted duty of care owed by a fire service to a plaintiff whose property was damaged by fire, holding that the decision of the English Court of Appeal in Capital & Counties Plc v Hampshire County Council (supra) did not represent the law in Scotland, and observing (at 52) that it seems arguable that, "when a fire brigade is fighting a fire it owes a duty, not to the public at large, but to the limited class of those whose lives or property are endangered".

29. There are single instance decisions in Australia that are, at the very least, compatible with the type of duty of care asserted by the plaintiffs in this case: Northern Territory of Australia v Deutscher Klub (Darwin) Incorporated [1994] NTSC 10; (1994) Aust Torts Rep 81-275; R & W Vincent Pty Ltd v Board of Fire Commissioners (NSW) Pty Ltd (1977) 1 NSWLR 15. On the other hand, there is a well-established line of authority that denies a duty of care on police officers towards individual members of the public to prevent crime (Hill v Chief Constable of West Yorkshire [1989] AC 53; Sullivan v Moody (2001) 207 CLR 562).

30. The High Court has recently, in New South Wales v Fahy [2007] HCA 20, declined an express invitation to overrule or reconsider the well-established principles going to the duty of care owed by a public authority and set out by Mason J in The Council of the Shire of Wyong v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 46-48. Rather, they emphasised that, in considering whether a reasonable person or body would have responded to a risk, it is important to look forward to identify what a reasonable person would have done, rather than to look backward to identify what would have avoided the injury (per Gummow and Hayne JJ at [57]. Such an approach may at the end of the day prove to be the appropriate course in considering whether the plaintiffs in this action can make out their case.

31. It seems to me that the plaintiffs' asserted claim, that the New South Wales Rural Fire Service owed it a duty of care, is not a claim which can be said to be unreasonable or unarguable. There is no binding High Court authority either way, but that of itself clearly should not preclude the matter going to trial. Indeed, the common law can only develop by way of novel cases going to trial and eventual appellate determination.

32. Mr Maconachie, in his submissions, advanced many reasons why a duty of care should not be found to exist. A bushfire fighting authority made up of a mixture of volunteers and professional officers must, he said, be focussed on the job at hand of fighting fires and protecting property. In a continent prone to wildfires, those whose statutory responsibility it is to fight fires and protect the public should not have to worry about whether or not their operational decisions will give rise to litigation. Certainly, the fire officer should deploy resources to the area that will do the greatest good, not to the area that will minimise litigation. These are strong arguments which will no doubt require careful consideration at the appropriate time.

33. On the other hand, Mr Collaery, counsel for the plaintiffs, made the point that persons in rural areas rely and depend on the local fire service. It will be pleaded in this case that the plaintiffs in fact had their dams drained by the Rural Fire Service so that, when the fire approached their property, they had no water left for themselves to fight the fire. He stressed that he is not pleading a case where it is claimed that the fire service should have been better resourced, or should have allocated resources to this fire to protect these plaintiffs rather than to other fires threatening other potential plaintiffs. This claim, as pleaded, is that the fire was small, resources were available, and the decision was made not to suppress this fire. These are equally strong arguments.

34. These are all arguments which, it seems to me, should be made after a hearing and when the facts are established. This decision should not be taken to mean that I have formed a view, one way or another, as to whether the plaintiffs' claim will succeed. All that I have decided is that the plaintiffs' claim is not one that is bound to fail and that the plaintiffs' case is arguable.

35. The case pleaded by the plaintiffs involves a novel form of claim in which there is no binding High Court authority. The law will need to be developed one way or another to resolve this claim. A judge, and perhaps judges on appeal, will have to formulate a proposition of law to cover the facts as proven at trial. But, as McHugh J, writing extra judicially, noted:

That is the way that the common law has developed over the last 800 years. As Oliver Wendell Holmes Jnr. pointed out 110 years ago, the life of the law has not been logic but experience. Because the law was developed pragmatically - even in the days when judges denied that they made law - the common law remains relevant even in this age of statutes. If it is to continue to remain relevant, it must continue to be developed pragmatically in response to social needs.

(Hon Justice MH McHugh AC, The Judicial Method, (1999) 73 ALJ 37 at 49.

36. The application to dismiss the statement of claim should, itself, be dismissed with costs in the ordinary way.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Counsel for the plaintiffs: Mr B J Gross QC with Mr B J Collaery

Counsel for the first and second defendants: Mr J Maconachie QC with Mr C Erskine and Mr Mallon