The litigation from the Canberra 2003 fires continued today with the start of the appeal in the ACT Court of Appeal (see ‘Fallout from 2003 bushfires reaches new stage’, Canberra Times, 23 May 2014) (and thank you to Ignatious Cha, who’s doing a research project on the legal fallout from these fires, for bringing this to my attention).  I have given my thoughts on the original decision by Higgins CJ elsewhere (see ‘Judgment in the litigation arising from the Canberra fires of 2003 – updated 19 December 2012’ (18 December 2012) and ‘Final chapter of the Supreme Court proceedings from the 2003 fires’ (8 August 2013)).

This ‘new stage’ is an appeal to the Court of Appeal.  Here three judges will review the decision of Higgins CJ to see if, in their opinion, the Chief Justice correctly identified and applied the law.  This decision will have less to say about the facts, generally speaking accepting that whatever Higgins CJ said was proved on the balance of probabilities is correct so the findings that if there had been more action on the 9th of January and if more steps had been taken to prepare the Goodradigbee river to serve as a fire break, then the fire would not have burned into Canberra, will stand.   What will, I anticipate, be under review here is the finding that the State could rely on section 43 of the Civil Liability Act 2002 (NSW) and s 128 of the Rural Fires Act 1997 (NSW) as defences, and whether or not the state owed the plaintiff’s a duty of care.  I will explain these in more detail below.

The newspaper is reporting that:

… the ACT Supreme Court ruled against them  [that is, the plaintiffs] in December 2012, despite a finding that NSW has embraced an “inadequate and defective strategy” to fight the fires. That is because, under NSW law, they needed to prove the state’s actions were unreasonable.

and later

The original hearing took 80 days of evidence and submissions, before the former chief justice reserved his decision for about a year. His decision found negligence but did not find NSW liable because the evidence fell short of showing the state’s conduct was unreasonable.

That is not quite correct.  Under the common law, in order to prove negligence, a plaintiff has to prove that the defendant’s conduct fell below the standard that could be expected of a reasonable person in the defendant’s position; that is that the defendant’s conduct was ‘unreasonable’.  Higgins CJ did find that the conduct of the State, through its agencies of the Rural Fire Service and National Parks and Wildlife Service, was ‘unreasonable’ so the journalists conclusion that ‘His decision found negligence…’ is correct, but logically inconsistent with the statement that ‘the evidence fell short of showing the state’s conduct was unreasonable’.  If the evidence had fallen short of showing that the state’s conduct was unreasonable, his Honour could not have found negligence.

The State was relying on s 43 of the Civil Liability Act 2002 (NSW).  That section says:

 … an act or omission of [a public or other] authority does not constitute a breach of statutory duty unless the act or omission was in the circumstances so unreasonable 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.

That is said to replace the common law test of ‘negligence’ with a tougher test of ‘gross negligence’.  Higgins CJ found that the conduct of the State met the common law test but not this tougher, statutory test, and that is why he said, as the article reports ‘”Effectively, [the plaintiffs] are deprived by statute of what would, under the general law, be regarded as just compensation.”

There are a number of issues that could arise here, they may include was the action against the RFS and NPWS an action for breach of a statutory duty or an action for a breach of a common law duty and if so did Higgins CJ correctly apply the section?  Was the evidence enough that Higgins CJ should have concluded that the negligence did in law constitute gross negligence?

Even if there had been gross negligence, Higgins CJ found that there was also a defence under the Rural Fires Act 1997 (NSW) s 128 which says:

A matter or thing done or omitted to be done … does not, if the matter or thing was done in good faith for the purpose of executing any provision … of this or any other Act, subject such person personally, or the Crown, to any action, liability, claim or demand.

His Honour found that all the defendants were acting in good faith for the purpose of executing the provisions of the Rural Fires Act.  The issues that may arise here relate to the burden of proof, that is does the defendant have to prove good faith and if so does it need to call specific evidence as to good faith or is it enough to infer good faith from the actions and evidence?  What, in the context does ‘good faith’ mean?

I expect that the defendant will also want to argue issues of law.  In particular I expect that they would want to argue that Higgins CJ’s conclusion that the State owed a legal duty of care to the plaintiffs is incorrect at law and inconsistent with earlier case law.

A decision of a single judge, even the Chief Justice, is not a precedent that other courts must follow.  These cases are the initial trial that determines the facts.  The decision of three judges, sitting as the Court of Appeal does set a binding precedent on issues of law that subsequent trial judges must apply.  A decision of the ACT Court of Appeal is only binding in the ACT but judges in other jurisdictions are likely to follow it unless they are persuaded it is manifestly wrong or somehow not applicable given the law in that jurisdiction.  Interestingly this case will involve the ACT Supreme Court making a ruling on NSW law

The ACT Court of Appeal may not be the final stage.  Whatever the decision the losing party may seek to take the matter to the High Court.  Appeals to the High Court are not lodged ‘by right’ that is no-one has the right to appeal to the High Court, an application has to be made persuading the Court that there is a legal issue that warrants their attention. In my earlier posts I have argued that, in my view, the decision of Higgins CJ is inconsistent with the decision of Walmsley AJ in Warragamba Winery Pty Ltd v State of New South Wales [2012] NSWSC 701.  If the ACT Court of Appeal finds that Higgins CJ’s decision was wrong and that the law as described by Walmsley AJ (who found the fire service did not owe a duty of care to individual plaintiffs) is correct, then the law in both jurisdictions will be brought in line and that may be the end of it.  If, on the other hand, the Court of Appeal prefers the decision of Higgins CJ we will have a situation where the NSW Supreme Court takes one view of NSW law and the ACT Supreme Court, another.  This would be a situation that could invite an appeal to the High Court.  There may well be, depending on the Court of Appeal’s decision, other grounds for a High Court appeal.  The High Court of Australia is the final court of appeal, so there is no where to go after that; and a decision of the High Court sets a precedent that is binding on all judges in all Australian states and territories.

If there is no appeal to the High Court the Court of Appeal may uphold the original decision (that the State is not liable); set aside that decision and record instead a verdict for the plaintiff or plaintiffs or order the matter back to the Supreme Court for further hearing to apply the law as they describe it.  That may be a re-hearing on just some issue or a whole new trial.

The hearing before the Court of Appeal may be a ‘new’ stage, but there is no guarantee it will be the last stage!