Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Commencement of proceedings; originating process - Renewal of writ - Whether reasonable efforts made to serve defendant or other good reason shown.

Ramsay v Madgwicks [1989] VicRp 1; [1989] VR 1, followed.

National Mutual Life Association of Australasia Ltd v Huddlestone and Taylor 72/1997, applied.

Limitation of Actions - Extension of time - Arguable case - Explanation for delay - Prejudice - Exercise of discretion.

Limitation Act 1974 (Tas), s5.

Torts - Negligence - Essentials of an action for negligence - Duty of care - Reasonable foreseeability of damage - Relationship of proximity - Public recreation area - Injuries to persons entering - Injury to person diving into shallow water - Whether duty of care owed by public authority.

Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 194 ALR 337, applied.

Nagle v Rottnest Island Authority [1993] HCA 76; (1993) 177 CLR 423; Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, distinguished.

Judgment Number: [2003] TASSC 81

1 This is an appeal from an order of the Master dismissing an application for an order:

(i) that the writ in Action No 709/2000 be renewed; or, alternatively

(ii) that the time within which the appellant may "commence an action for damages for personal injury caused by negligence" be extended to 28 June 2002.

2 By a writ filed on 18 October 2000 (No 709/2000), the appellant commenced proceedings against the respondent, the State of Tasmania, and the Sorell Council, claiming damages for personal injury arising out of the negligence of the defendants on 26 October 1997 at Carlton River. The writ was not served on the respondent, but apparently was served on the Sorell Council, for an appearance was entered on its behalf on 30 July 2002. On 19 August 2002, the Master gave the Sorell Council leave to withdraw that appearance and in lieu thereof to file a conditional appearance. However, it is unnecessary to consider the proceedings against the Sorell Council any further as the appellant filed a notice of discontinuance against this defendant on 11 October 2002. By virtue of the Supreme Court Rules 2000, r107, the writ dated 18 October 2000 ceased to be in force on 18 October 2001 and could not be effectively served unless renewed pursuant to r107(2) which provides:

"(2) On the application of the plaintiff made whilst a writ is in force, the Court or a judge may order that the original writ and any concurrent writ be renewed for 6 months if a defendant named in the writ has not been served."

3 This application was not made "whilst the writ was in force". It was not made until just over eight months after the writ ceased to be in force. Rule 52 empowers the Court to enlarge the time for doing any act. No challenge was made to the learned Master's conclusion at par2 of his reasons for judgment, "... no reason has been advanced as to why time should not be enlarged for the bringing of the renewal application and so it follows that if renewal is appropriate, so too is the enlargement. See Lapham v Woods 66/1995".

4 On 26 October 1997, the appellant, then aged 24, went to Carlton Beach in the south of Tasmania with some friends. After the group had been there for a while, the appellant ran along the beach towards the Carlton River not far from where it entered the sea. He took a running dive along the sand into the river and hit the bottom head first. In result, he suffered an incomplete quadriplegia. No challenge was raised to the Master's finding at par1:

"Carlton Beach is vested in the Crown and has been reserved under the Crown Lands Act 1976, s8, for public recreation and land conservation purposes, with the Crown having a power of management under s3. Although the beach is a Crown reserve, the tidal part of the river is I infer simply unreserved Crown land as it is most unusual for the Crown to grant coastal land below the high water mark."

5 Some time in 1997, the appellant consulted Watling Roche, solicitors. On 27 May 1998, the solicitors wrote to the Department of Environment and Land Management and advised it of the appellant's accident. The letter requested copies of documentation held relevant to the "Council's [sic] control or oversight of the beach and warning signs". The Department responded on 6 July 1998 and sent copies of documentation it held. Messrs Watling Roche took statements from the appellant's companions who were with him at the beach on the day of the accident.

6 In the latter half of 2000, Watling Roche ceased to act for the appellant. He instructed Messrs Simon Parsons & Co to act in their place. The instructions were accepted upon a "no win, no fee" basis. Simon Parson & Co issued the writ on 18 October 2000, eight days before the expiry of the three year limitation period within which proceedings may be brought as of right. On 22 November 2000, Simon Parsons & Co wrote to the appellant in the following terms (formal parts omitted):

"We are writing to confirm a Writ was lodged in the Supreme Court in relation to your matter on the 18th October 2000. You now have another one year from that day to serve that Writ on the otherside.

We also confirm we have written another letter to Carlton Park Surf Life Saving Club chasing up a response from them. We will let you know once we receive one."

7 The appellant deposed, and confirmed in oral evidence, that he understood that a writ was a document that started a claim in court and that service meant giving the writ to the person against whom the claim had been brought. The appellant said that although he made regular attempts to contact the solicitor acting for him at Simon Parsons & Co, he was unsuccessful in doing so. This resulted in him becoming dissatisfied with the manner in which his claim was being conducted.

8 The appellant had no money and was then confined to a wheelchair. He could not afford to employ a solicitor other than on a "no win, no fee" basis. From his oral evidence given on the hearing of the appeal, it was clear to me that the appellant was neither well educated, nor articulate, and that throughout, he had depended for guidance upon his mother. He deposed that until he instructed his present solicitor, Mr John Green, on 6 February 2002, he was unaware of any three year time limit on the bringing of proceedings. There is no reason to doubt the appellant's word in this respect.

9 In about August 2001, it appears that the Hobart office of Simon Parsons & Co was closed and the appellant's file was sent to Victoria. The appellant said that he asked Messrs Butler McIntyre & Butler to act on his behalf on a "no win, no fee" basis, but the firm declined to do so. He said that he then approached Mr Andrew Buckley at Wilson Dowd, solicitors. Mr Buckley obtained the appellant's file from Simon Parsons & Co. On 8 October 2001, Mr Buckley wrote to the appellant and advised that the firm was not prepared to accept his case on a "no win, no pay" basis. The letter went on:

"I am assuming that you are unable to fund the proposed litigation in any event - that is, that you can pay legal fees if you were to lose the case.

You may therefore have to make enquiries of any law firms who might be prepared to look at your case. It is crucial that you attend to this matter as a matter of urgency as the writ filed against the Council and the State on your behalf will become 'stale' on 18 October, 2001 if it is not served on those defendants prior to that time.

I am happy to suggest the names of some other lawyers, although I note that some other firms have already declined to act for you in the past.

Please contact me if you need arrangements to be made for the writ to be served by or on your behalf."

10 The appellant deposed that his mother went through the yellow pages and rang up a number of lawyers but until the appellant spoke to Mr Green early in 2002, neither she nor he was able to find one who was prepared to undertake the case on a "no win, no fee" basis.

11 The learned Master concluded that following the letter from Mr Buckley in October 2001, the appellant made a conscious choice not to proceed with his action and did not make any arrangements for the writ to be served. The learned Master said at par8 of his reasons for judgment:

"The plaintiff had to make a decision before 18 October 2001 as to whether or not to pursue his action. If he did not serve the writ before that date, his writ would become ineffective for service and any new writ would be out of time. There was no question of misunderstanding, inadvertence or oversight. The plaintiff elected to allow his writ to go stale rather than continuing with the services of Simon Parsons & Co, if those services were still available on a 'no win no fee' basis, or acting in person. Several months after electing to allow his writ to become stale, the plaintiff saw a 'no win no fee' advertisement published by his current solicitor, Mr Green, who, after some deliberation, agreed to act and in June 2002 filed the application."

12 The learned Master concluded, in par9, that the application for renewal should be rejected unless there were good grounds for granting an extension of time within which to commence proceedings. If there were such good grounds, then those grounds would, of course, be good grounds for granting the order for renewal.

13 The conclusion of the learned Master that the appellant made a conscious decision not to prosecute his litigation following receipt of Mr Buckley's letter came under intense attack upon the hearing of the appeal, although, of course, the appeal was a hearing de novo. Following the decision of the learned Master, the appellant swore and filed a further affidavit and was cross-examined upon it. Annexed to that affidavit was a copy of Mr Buckley's letter to the appellant. Handwritten on the top of that letter are four telephone numbers, and next to one is written "Roland Brown" [sic]. With respect to those telephone numbers, the appellant deposed:

"I refer to the copy letter from Wilson Dowd dated 8 day of October 2001 annexed to this Affidavit marked 'A' and being annexure 'J' to my affidavit of the 18 day of July 2002 and say that the telephone number at the top thereof next to the words Roland Brown is the telephone number of Brown & Fitzgerald and the other telephone numbers are the telephone numbers of Wilson Dowd and Butler McIntyre & Butler. My source of information is the fact that I telephoned those telephone numbers on the 31 January 2003. The telephone number of Wilson Dowd at that time was a recorded message referring telephone calls to Butler McIntyre & Butler."

14 The appellant was cross-examined about all this. He said that with respect to Mr Buckley's letter, "to tell you the truth I can't remember reading it, no". He said that he became aware of its contents at some unknown time. It appears from the appellant's affidavit filed after the learned Master's decision was published, that he is dyslexic and finds reading anything difficult. In his oral evidence he explained that his mother "would have read the letter". He said that the handwritten telephone numbers and the name "Roland Brown" were not in his handwriting. He said that "mum did most of this for me". He said that he knew there was a need to do something urgently but quite what it was, was not clear to him, other than he needed to find another solicitor, as Simon Parsons & Co no longer had an office in Hobart. In the witness box the appellant said that he was confused about it all and I am in no doubt that that was correct.

15 The appellant said he remembered ringing up a number of lawyers, but was unable to say when this was done other than it was some time after Simon Parsons & Co left Tasmania. There was no evidence from the appellant's mother.

16 I infer that the telephone numbers written on the top of Mr Buckley's letter were written after its receipt by the appellant in early October 2001. By his last affidavit, the appellant deposed:

"As best I can recollect I understood the letter form Wilson Dowd to say that I had to find another lawyer quickly and that my mother and I tried to find other lawyers shortly after receiving the letter. I did not understand it to mean Wilson Dowd would serve the Writ and I would have more time then to find other lawyers."

17 However, the appellant's cross-examination made it clear that he did not know when the attempts were made to find other lawyers, nor what those attempts were and, as I put to Mr Green during his closing address, I am left in the position that there is simply no acceptable evidence of what the appellant or his mother did between early October 2002 and February 2003 when Mr Green was instructed.

18 Although there is a substantial gap in the evidence of what the appellant or his mother did or did not do after receipt of Mr Buckly's letter, I do not agree that there was no question of misunderstanding or oversight. Nor do I agree that the plaintiff elected to let his writ go stale. He was disabled, not only physically, but also by his dyslexia and lack of education. He was unable to pay for legal advice. Simon Parsons & Co had left the State after a period during which little or nothing had been done to prosecute the appellant's claim and, I infer, nothing had been done to serve the writ on the respondent. Having seen and heard the appellant and having learnt that he is dyslexic, I am satisfied that he was just confused about what he had to do, except that he knew that he had to find another solicitor to act for him. After the receipt of Mr Buckley's letter, the respondent knew that he had to do something quickly. Although Mr Buckley's letter might well appear clear to people in more fortunate circumstances than the appellant, it obviously was not clear to him what had to be done. I very much doubt that the appellant understood the ramifications of being told by Mr Buckley that the writ would go stale if not served within the time set out in the letter. Although Mr Buckley's letter concluded with the sentence, "please contact me if you need arrangements to be made for the writ to be served by or on your behalf", that is unlikely to have been construed as an offer to serve what was then two defendants, without payment of a fee.

19 It was put in submissions made on behalf of the respondent that after receiving Mr Buckley's letter, the appellant could have served the writ himself, but chose not to do so. With respect to this submission, I venture to say that the majority of non-lawyers in this State would have no idea how to serve a writ (r132), let alone know how to serve one on "the State of Tasmania". It was all too difficult for a dyslexic, ill-educated young man, severely disabled by his accident.

20 I find that when the time provided for by r107 went by, the appellant had not decided to let the matter rest. He knew he not only had to find another solicitor urgently, but also that he had to find one who would act for him on a "no win, no fee" basis. The trouble is that there is simply no acceptable evidence of what he or his mother did to do this after the writ became "stale".

21 I respectfully adopt from the Master's reasons for judgment, the authorities referred to in pars3 and 4. With reference to the equivalent Victorian rule of court, that, like the Tasmanian rule, had been amended, Young CJ said in Ramsay v Madgwicks [1989] VicRp 1; [1989] VR 1 at 6:

"That rule is expressed much more succinctly and simply than the old rule which it replaced. It does not in terms refer to 'good reason', but as with the new English Rules, so I conceive with our new rules, there should be implied as a matter of construction a condition that the power to extend a writ or other originating process should only be exercised for good reason, and I draw support for that proposition from the speech of Lord Brandon of Oakbrook in Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597, at p 622."

22 In National Mutual Life Association of Australasia Ltd v Huddlestone and Taylor 72/1997, Zeeman J said, with Wright and Crawford JJ concurring:

"It follows that the real question is whether the respondents have established that the justice of the case requires that the writ be renewed. It is not possible to state exhaustively the categories of reasons which may result in good reason being established to order a renewal (see Victa Ltd v Johnson (1975) 10 SASR 496 at 504; Van Leer Australia Pty Ltd v Palace Shipping KK [1981] HCA 11; (1979) 180 CLR 337 at 346).

The matters which, it was accepted in argument, are relevant to the question of whether good reason has been established, and therefore relevant to the justice of the case, include the nature of the attempted service, the length of the delay in attempting service, the length of the delay in making the application for an extension of time, the reasons for the delays, the conduct of the parties and hardship or prejudice caused to a party by refusing or granting renewal."

23 What then is the relevance of the fact that if the writ is not renewed the appellant is barred from bringing a fresh action without first getting the leave of the court pursuant to the provisions of the Limitation Act 1974, s5(3)? Stephen J addressed this issue in Van Leer Australia Pty Ltd v Palace Shipping KK & Another [1981] HCA 11; (1979) 180 CLR 337. His Honour said at 340, that it rather "overstates the matter" to describe an order of renewal of a writ as depriving the defendant of a limitation defence because the writ was issued within time and was not a nullity. However, at 341 he said that the passage of time between the expiry of time within which proceedings may be brought as of right (in this appeal, 26 October 2000) and the application for renewal (28 June 2001) has relevance to the exercise of the discretion. His Honour followed Australian and Canadian authorities in preference to United Kingdom authorities, and held that the expiry of any limitation period was just one of the many matters that fall for consideration under the issue of whether there is good reason to order renewal. Stephen J expressed approval of the following proposition taken from the judgment of Bray CJ in Victa Ltd v Johnson (1975) 10 SASR 496 at 504:

"The rule first directs the Court to inquire whether reasonable efforts have been made to serve the defendant. If they have, it seems to me that the Court should renew the writ. If not, the Court has to consider whether other good reasons exist for the renewal. I will not attempt an exhaustive category of such reasons. That would probably be impossible and would certainly be undesirable. Prominent, however, amongst tile matters for the consideration of the Court, apart from whatever attempts have been made at service, will be the length of the delay, the reasons for the delay, the conduct of the parties and the hardship or prejudice caused to the plaintiff by refusing the renewal or to the defendant by granting it."

24 In Burgess v Ferguson (1992) 111 FLR 349, Higgins J (as he then was) said at 352:

"The expiration of a time bar is relevant. However, a plaintiff is not required to show 'exceptional circumstances' to succeed in an application for renewal. The court should look to the general justice of the case, having regard to all the circumstances, including not only the time bar which would be applicable to any fresh proceedings, but also the relative hardships which would be imposed on the parties.

It follows that the same rigour need not be applied to an application to renew a writ as one to extend a time bar. After all, the plaintiff did commence proceedings in time. Nevertheless, the attempts at service (if any), the length of and reasons for delay and hardship or prejudice to the parties if the application is granted or refused, are all relevant considerations."

25 Is the strength or weakness of the appellant's case relevant upon an application for renewal? In National Mutual Life Association of Australasia v Huddlestone and Taylor (supra), Zeeman J said at 4:

"In addition, I consider that the merits of a plaintiff's claim may also be relevant. It is not incumbent upon an applicant for renewal to establish a prima facie cause of action or a cause of action which has reasonable prospects of success. However, matters concerning the merits of a plaintiff's claim ought not to be put aside as having no possible relevance. By way of example, where an application relates to a writ which attempts to raise a cause of action which, on the face of the writ, is bound to fail, the absence of merit may provide a sufficient reason to refuse renewal. Conversely, the existence of a strong case against a defendant may provide a positive reason for granting renewal and outweigh other factors militating against a favourable exercise of the discretion."

26 At the time the application for renewal was filed the writ had been "stale" for a little over eight months . There was no evidence of any attempt having been made to serve the defendant between the time it was issued and the time it became "stale". I find, however, that during the time that the appellant was represented by Simon Parson & Co the appellant did not act unreasonably in relying upon his solicitors to take whatever step was appropriate to properly prosecute his claim. Although Simon Parsons & Co wrote to the appellant on 22 November 2000 advising of the lodgement of the writ and that, "you now have another one year from that day to serve the Writ on the otherside" [sic], there was no suggestion that instructions from the appellant would be required before service would be effected. The unchallenged evidence of the appellant was that he made many unsuccessful attempts to contact his solicitor at Simons Parsons & Co prior to that firm leaving Tasmania. I find that the failure to serve the writ prior to receipt of the letter from Mr Buckley in October 2002 was not due to any fault on the part of the appellant.

27 The appellant's present solicitor was consulted by the appellant on 6 February 2002. Mr Green deposed that he obtained the file from Simon Parsons & Co on 20 February 2002. He also deposed that he read the documents and subsequently became aware of a decision in the New South Wales Court of Appeal in which "the Waverley Council had been found liable for an accident at Bondi Beach when the victim dived under a wave and hit his head on a sand bar". Mr Green gave the appellant advice on 14 June 2002 and filed the application two weeks later. I assume that the case to which Mr Green referred is Swain v Waverley Municipal Council, a jury verdict. I note that in April this year, the Court of Appeal (NSW) (Waverley Municipal Council v Swain [2003] NSWCA 61) held that there was no evidence upon which a reasonable jury could have based the verdict and overturned it.

28 It seems to me that there is also a reasonable explanation for the delay that occurred between 6 February 2002 and the filing of the application for an order for renewal. The issue of liability was not free from difficulty and as Mr Green was being asked to take the appellant's case on a "no win, no fee" basis, it was not unreasonable for him to take some little time to carefully consider the matter. The real difficulty about this application is the period following receipt of Mr Buckley's letter dated 8 October 2001 and the consultation with Mr Green almost four months later. As I have said, the inference is inescapable that the telephone numbers and Mr Browne's name must have been written on that letter after its receipt. However, apart from that, there is simply no evidence of what the appellant did during that period of four moths, if anything. In these circumstances it cannot be said that the appellant has discharged the onus that he carries of showing that there is good reason why the writ should be renewed, unless the Court, in the proper exercise of its discretion, considers that the time within which proceedings may be brought against the respondent should be extended.

29 In a statement made by one of the appellant's companions, the relevant events were described in the following terms:

"It was a fine day so we decided to go to the beach. We drove down towards Lewisham and had lunch on the side of the road. We had a few drinks at lunch. We continued on to Park Beach. We were swimming at the beach and generally messing around. We walked from one end of the beach to the other where the river mouth meets the bay area. [The appellant] started running towards the mouth of the river. He got to the mouth of the river and dived in. He dived in approximately 75 - 100m from where the mouth of the river met the beach. When he came up out of the dive he was simply floating in the river. He was floating face down."

30 The same statement described the depth of the water where the appellant dived in as being "somewhere between kneecap and waist height". There was evidence that the water where the appellant dived in was "murky" and it was not possible to see the bottom. The appellant took a "running dive" and launched himself into the river from either its edge where it met the sand, or some little distance in from there. He said in cross-examination on the hearing before the learned Master that he thought that the water was "reasonably deep" at the point where he dived in.

31 It was common ground that at the time of the appellant's accident, there were no signs erected warning against diving in the river. A sign was subsequently erected in the vicinity of the plaintiff's accident. However, it does not warn against diving. It warns of a strong tidal flow and advises that persons have drowned at this point so that swimming is not recommended. Sadly, it appears that on 14 January 1998, two teenage children died from drowning in the Carlton River and from material annexed to the affidavits filed in support of the appellant's application, I infer that this sign was errected in consequence of that event.

32 The learned Master determined that there was no material at all upon which it might be argued that the respondent owed the appellant a duty of care and principally for that reason, he concluded that the time within which the appellant might bring proceedings against the respondent should not be extended as such an order would prove to be nugatory. In my respectful opinion, he was right. Application of the undemanding test propounded by the Privy Council in Overseas Tank Ship (UK Limited) v Miller Steamship Company Pty Limited [1966] UKPC 1; [1967] 1 AC 617 and imported into Australia by Wyong Shire Council v Shirt (1979 - [1980] HCA 12; 1980) 146 CLR 40, shows that it is arguable that the risk which became the reality for the appellant, was reasonably foreseeable. However, it is settled law that reasonable foreseeability of the risk of injury, although a necessary ingredient for the creation of a duty of care, is not the only ingredient, particularly in a case such as this one where the prospective defendant is the Crown empowered to exercise statutory authority over the place where the injury happened.

33 The issue of the content of a duty of care was discussed in Nagel v Rottnest Island Authority [1993] HCA 76; (1993) 177 CLR 423, another diving case. In that case, the respondent was a statutory authority. However, it is clear from the passage in the joint judgment, at 430, that a mere statutory duty to manage and control the land for the benefit of the public is not sufficient to create a duty of care:

"Moreover, the Board promoted the Basin as a venue for swimming and encouraged the public to use it for that and other purposes by installing, maintaining and servicing various facilities on that part of the Reserve which was immediately adjacent to the Basin. In these circumstances, it is beyond question that the Board brought itself into a relationship of proximity with those visitors who lawfully visited the Island and resorted to the Basin for the purpose of swimming with respect to any foreseeable risks of injury to which they might be exposed. In this case, the basis for holding that the Board came under a duty of care may be simply stated: the Board, by encouraging the public to swim in the Basin, brought itself under a duty of care to those members of the public who swam in the Basin. As occupier under the statutory duty already mentioned, the Board, by encouraging persons to engage in an activity, came under a duty to take reasonable care to avoid injury to them ...".

34 Although in Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Brennan CJ would have overruled Nagel, the majority applied it. Kirby J explained at 477:

"The foundation for the Commission's duty of care to the appellant was the statutory power of management and control of the reserve. But the factual circumstances of the case went beyond mere power. This was not a case of unalienated Crown land, left entirely, or virtually entirely, in its natural state (cf South Australia v Wilmot (1993) 62 SASR 562 at 574). The cliffs were part of a public reserve, which attracted up to half a million visitors a year. Although it would be quite wrong to describe the reserve (as the appellant did) as akin to a suburban park, it was certainly close to the outlying suburbs of Darwin. The cliffs, to the knowledge of the Commission, attracted a proportion of those visiting the reserve. The Commission did not create the ungraded road and car park as an allurement to people to visit the cliff area, but rather as a means of controlling traffic and limiting damage to the environment. However, these improvements certainly facilitated access to the cliffs by visitors. The positioning of logs at the edge of the car park was obviously designed to mark the limit of vehicular access in a way that still preserved the natural character of the site. It would have been foreseeable that the logs would have been used by visitors, sitting on them and watching the scenery. It was obvious that visitors would arrive at the reserve and the cliffs of different ages, different visual capacities, different states of sobriety and exhibiting different levels of advertence to their surroundings."

35 Thus, Kirby J held that "the elements of foreseeability and proximity were satisfied". The judgment of the court in Sullivan v Moody (2001) 207 CLR 562, makes it quite clear that the existence of a foreseeable risk of injury is not, by itself, sufficient to establish a duty of care. At 578, the joint judgment adopts Professor Flemming's observation that "no one has ever succeeded in capturing in any precise formula" for a comprehensive test to determine whether there exists a duty of care. In the same paragraph, the once popular unifying theory of proximity is banished forever. See also Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 205 CLR 254.

36 The issue was revisited relatively recently in Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 194 ALR 337. With respect to the existence of a duty of care against a local authority or the State, Gleeson CJ said at 342:

"One thing is clear. Reasonable foreseeability of harm of the kind suffered by Mr Ryan, whilst a necessary condition for the existence of a duty of care on the part of the council or the state, is not sufficient. In the case of a governmental authority, it may be a very large step from foreseeability of harm to the imposition of a legal duty, breach of which sounds in damages, to take steps to prevent the occurrence of harm. And there may also be a large step from the existence of power to take action to the recognition of a duty to exercise the power."

"A public authority has no duty to take reasonable care to protect other persons merely because the legislature has invested it with a power whose exercise could prevent harm to those persons. Thus in most cases a public authority will not be in breach of a common law duty by failing to exercise a discretionary power that is vested in it for the benefit of the general public."

38 In their joint judgment, Gummow and Hayne JJ noted at 375:

"However, the coexistence of knowledge of a risk of harm and power to avert or minimise that harm does not, without more, give rise to a duty of care at common law. The totality of the relationship between the parties, not merely the foresight and capacity to act on the part of one of them, is the proper basis upon which a duty of care may be recognised."

40 From the material presented upon the appeal, the mouth of the Carlton River was a very considerable distance away from the car park and shelter at one end of the beach and also a considerable distance away from the surf lifesaving clubhouse which was half way along the beach. Although it could well be inferred that members of the public visited the area for recreational purposes, there was no evidence that the respondent had taken any step to encourage them to be there, as was the case at Rottnest Island. The place where the appellant suffered his accident was simply part of the reserve, left entirely, or virtually entirely, in its natural state. Although that reserve was under the control of the respondent, and although it is arguable that the respondent could reasonably foresee that the appellant, or a class of persons to which the appellant belonged, might suffer injury of the kind in fact suffered, that alone is insufficient to make the plaintiff the respondent's neighbour and thus give rise to the alleged duty of care.