The case against NSW, arising from the 2003 Canberra fires, may be over with the decision of a judgment by Higgins CJ of the Australian Capital Territory (ACT) Supreme Court – see Electro Optic Systems Pty Ltd v The State of New South Wales; West & West v The State of New South Wales [2012] ACTSC 184 (17 December 2012) but that will not be the end of the matter; already the plaintiff Wayne West has indicated that he will appeal (‘NSW avoids compensation for Canberra bushfiresABC NewsOnline 17 December 2012; ‘West to appeal after losing 10-year court battleCanberra Times 17 December 2012).

Because it is rather long, I attach my detailed comments here – Canberra litigation v2 (updated 19 December) – and you can download them as a pdf file.

In summary, Higgins CJ found:

  1. There was a duty of care;
  2. The defendant’s via the Incident Controller did not act as a reasonable fire service;
  3. Their failure allowed the fire to spread and damaged the plaintiff’s property; but
  4. The test for liability was not the common law test of ‘reasonableness’ but the statutory test of was the defendant’s conduct so sub-standard that ‘no authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions’.  The answer to that was ‘no’ and so there was no liability; and
  5. Even if the issue had been one of common law negligence, the actions of the state’s officials were made in good faith and so there would be no liability because of s 128 of the Rural Fires Act 1997 (NSW).

Unfortunately, in my view, His Honour particularly in making his first finding about a duty of care did not pay sufficient or detailed attention to the preceding cases and that conclusion is not clearly justified by the current law.  If that is correct then I would anticipate that if Mr West does proceed with his appeal, the State would also seek to appeal.  The matter may have a long way to go.

Michael Eburn

18 December 2012.

Read my detailed commentary (10 pages) here: Canberra litigation v2 (updated 19 December).