Gummow j when public authority begins to exercise its

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Gummow J - when public authority begins to exercise its statutory powers is under a duty to continue to use those powers otherwise is misfeasance- Kirby J - adopted 3 stage test from UK case, Caparo Industries Plc v Dickman which is now clearly
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disapproved of by High Court THE COURT’s VIEW OF MASON’s PRINCIPLE OF GENERAL RELIANCE: Brenann Gummow and Kirby critised it; Gummow saying that general reliance is a legal fiction that operates to reconcile a specific legal outcome or result with a premise or postulate involving unexpressed considerations of social and economic policy. COMPARISON BETWEEN THE TWO CASES Unlike the P’s who sued Sutherland for pure economic loss, the P’s in Pyrenees were suing for property damage Though the outcome in Sutherland was different from Pyrenees the reasoning was similar. The general approach taken by the court in Pyrenees was consistent with both Deane and Masons decision in Sutherland- that public authorities can be liable for negligent failure to exercise their statutory powers However unless a public authority is under a specific duty to act it will not be considered responsible for failing to act when it is not under any prior CL obligation to do so (Sutherland) Pyreness differed because they initiated a positive action when it sent a letter to previous owner about the defective fireplace. Thus placing an obligation on itseld. Graham Barclay Oysters v Ryan (2002) 211 CLR 540; 196 ALR 337 (see particularly joint judgment of Gummow and Hayne JJ) Facts: Involved class action due to a number of people who contracted Hep A as a result of eating oysters. All oysters grown in particular place in NSW. Evidence oysters had been contaminated with Hep A as the lake where they were growing had human faeces. Three groups of D’s being sued: 1. Growers and suppliers of the oysters 2. Local council as had statutory powers enabling it to control sources of pollution around the lake. P argued council negligent in failing to exercise those powers 3. State government NSW: it had powers enabling to regulate they oyster industry in NSW. P’s argument was that the state government had failed to provide ( No 1 & 2 for omitting to exercise statutory powers) Held: Distributor did not breach their duty of care STATE: (majority held govt decisions about proper extent of regulation of private or commercial behaviour or a industry are inappropriate for judicial review Gleeson CJ i. 32- powers to protect public and similar powers, covering a wide range of activities are given to Ministers and government authorities in the interests of public health and safety. A legislative grant of power (for State) ii. For council: 39- there is nothing in the relevant statutory provisions or in the circumstances concerning the relationship between the Council and oyster consumers, to justify the conclusion that the Council’s powers were given for the protection of oyster consumers or any other particular class.
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