The Gazette 1982

GAZETTE

JULY/AUGUS

T 1982

"Hedley Byrne" Marches On

Duty of Public Authority in Providing Information

to Enquirers

John F. Buckley, Solicitor

HE extension of the application of the Hedley

Byrne and Heller &Partners doctrine to the acts

of a Public Authority providing information to

enquirers about such Authority's road widening or

zoning proposals in another Common Law country

may be of considerable interest to practitioners in

Ireland.

The High Court of Australia, that Country's

highest judicial tribunal, so determined recently in

Shaddock & Associates Ply. Limited and Another -v-

the Council of the City of Paramatta

(High Court of

Australia 28/10/81)* The facts of the case were as

follows:

The Appellants contracted to purchase a property

for the purpose of redevelopment. They would not

have concluded the purchase if they had known the

land would be substantially effected by road widen-

ing proposals which had been approved in principal

by the Paramatta City Council in 1971. Before the

exchange of contracts the appellants' solicitor made a

telephone call to the Council and enquired from an

unidentified person in the Town Planning

Department whether there was any local road

widening proposal affecting the property. He was

told that there was not. On the following day he

lodged with the Council a form of application for

certificates given by Local Authorities under a New

South Wales Statute; one of the appellant companies

was described as the purchaser and the purpose for

which the information was required was stated to be

"Conveyancing". Under the heading "other

information indicated under remarks" the question

was asked "Is the property affected or proposed to be

affected by any of the following:—

Road widening or re-aligning proposals?

In response to this application the solicitor

received a certificate from the Local Authority with

respect to matters that the Council was authorised to

issue certificates under the Statute. These matters

did not include the effect on the land to which the

certificate related of a

proposed

local road widening

scheme which was not included in a prescribed

scheme or a scheme in course of preparation. The

local road widening proposals were not so included

and there was therefore no obligation to include the

information in a certificate issued under that Statute.

The solicitor believed that the absence of any

notation as to a local road widening proposal on the

certificate indicated that there was no such proposal.

His previous experience indicated that it was the

practice of the Council when it received a request for

such a certificate and for additional information as to

whether the property was proposed to be effected by

road widening proposals, and when there was a

relevant proposal, to type or write (usually in red ink)

a reference to the proposal at the foot of the

certificate. During a three year period the solicitor

had received about eight such certificates and had

seen at least two others sent to other solicitors. The

Town Clerk of the Council gave evidence to show

that it was the practice of the Council to give

information other than that which the Council was

authorised by the Statute to give, including informa-

tion as to road widening proposals, both orally over

the telephone and by endorsements on certificates

issued under the Statute. An examination ofthe files

ofthe Council revealed that about 10,000 certificates

under the Statute had been issued during a two and a

half year period of which about 650 had been

endorsed with a reference to road widening

proposals. The High Court accepted that the

evidence abundantly supported the finding of the

trial judge that it was the practice of the Council to

answer enquiries as to the existence of any road

widening proposals made by the use of the

application form by making an appropriate endorse-

ment on the certificate issued under the Statute if

there was such a proposal.

The Court held that the return of the certificate

unendorsed was tantamount to the giving of

information that there were no proposals and that it

was clearly careless to give such a certificate. The

question which arose for decision was as to whether

there was a duty to answer carefully the questions put

to the Council orally and in writing. The Court held

that it would not have been reasonable for the

appellants to have relied on an unconfirmed answer

given by an unidentified person in response to an

enquiry made over the telephone and that the Council

owed no duty of care in making response to such an

enquiry.

The majority of the Court interpreted the decision

of the majority of the Privy Council in

Mutual Life

and Citizens Assurance Company -v- Evatt

[1971]

A.C. 793, as confining the duty of care in relation to

the provision of advice or information by a person to

the situation where he carries on a business or

profession and in the course of it provides advice or

information of a kind which calls for skill and

competence or he otherwise professes to profess skill

and competence and provides advice or information

197