On a daily basis, senior government managers are involved in
using legislative powers to regulate industry or intervene in an
emergent public interest scenario. There is always a risk the
intervention or action may later be considered as negligent,
disproportionate or unjustified by those affected by the action. So
how do government officials best protect their state and themselves
from the risk of litigation?
Most Queensland statutes protect the State and its officials to
varying degrees for actions or omissions taken in good faith and/or
without gross negligence. The interpretation of these so called
"immunity" provisions has received some helpful analysis
in the decision of the Queensland Court of Appeal in Hamcor Pty
Ltd & Anor v The State of Queensland  QCA 183
The Hamcor decision examines immunity provided to
the State under s 129(1) of the Queensland Fire and Rescue
Service Act 1990 (QFRA), with the section distinguishing
between actions taken pursuant to the QFRA as opposed to
the purposes of the QFRA. The Hamcor decision
highlights the need for decision makers to take the immunity
provisions of state legislation into account when going through
decision making processes.
Currently in the private sector, there is a wider tendency for
corporate officers to have to respond to litigation. If this trend
were to move to the public sector, then recent amendments to s 26C
of the Public Service Act (PSA) are relevant for senior
public service officials. Under s 26C (1), there is immunity
from direct civil liability and under 26C(3) of the PSA if
public officials act in good faith and without "gross"
negligence, then a financial contribution cannot be sought by the
State against the official (in the event of successful litigation
against the State).
Hamcor Pty Ltd (Hamcor) was the trustee of the Hayward Family
Trust. Hamcor and Mr Armstrong, who owns Binary Industries
(Binary), were tenants-in-common over land at Narangba (the
Property). Binary was the lessee of the Property, where it
In August 2005, the factory on the Property was engulfed by
fire. The Queensland Fire & Rescue Service (QFRS) were called
to the blaze and tried to extinguish the flames by applying massive
quantities of water on and around the fire. The water mixed with
factory chemicals, producing a large runoff of contaminated fluid
called firewater that flowed into nearby stormwater drains and
soaked into the Property's soil and storage dams. As a result
of the contamination, the Property was placed on the State
Contaminated Land Register, requiring remediation of approximately
$9 million, which was far more than the uncontaminated property was
Hamcor and Armstrong sued the State of Queensland, claiming the
QFRS breached its duty of care by negligently using water to
extinguish a chemical fire. Hamcor and Binary argued that the fire
should have been allowed to burn out and that containment practices
should have been followed, reducing the cost of remediation.
There was a trial before a single judge where the State was held
not liable. During the trial it was established that the QFRS is
protected by an immunity from liability provision under the first
limb of s 129(1) of the FRS Act. Hamcor and Mr Armstrong appealed
the decision, with the Court of Appeal confirming the primary court
decision on 2 October 2015.
Queensland Court of Appeal decision
The Court decided that the QFRS, in applying water to the fire,
was backed by powers in s 53 of the FRS Act and were therefore
protected by the immunity conferred by the first limb of
s 129(1), which immunised the QFRS where it was acting
"pursuant to the Act" (in contrast to the
"purposes" of the Act). Although s 53 of the Act did not
explicitly mention the use of water, it was held to be within the
parameters of the legislation. Hamcor and Mr Armstrong's claim
that if negligence was present there was no civil immunity was
rejected as a matter of statutory construction of s 129(1) of the
Hamcor and Binary also sought to apply s 36 of the
Civil Liability Act 2003 (Qld), arguing that the acts or
omissions of the QFRS in fighting the fire were
"unreasonable". The Court of Appeal was not satisfied
that the use of water by the QFRS was manifestly unreasonable. The
Court found that the mere fact that there was an alternative
strategy available (and perhaps a preferable strategy) did not make
the strategy employed manifestly unreasonable.
It is not known whether leave will be sought to appeal the
Hamcor decision to the High Court.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This decision has implications for Government authorities and corporations, and for private sector project proponents.
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