Today’s correspondent says:

Michael, congratulations on the new role but shattered to hear the blog will close.  As you suggested best get the final questions in quick, so I will.

S 128(1) of the Rural Fires Act (NSW) provides an immunity “if the matter or thing was done in good faith”.  What determines “good faith”?  What are the practical applications or considerations of “good faith” for Brigade field officers and other decision makers?

Many thanks, in anticipation.

The most significant case on ‘good faith’ in the contact of the Rural Fires Act is the decision by the ACT Court of Appeal in West v NSW [2014] ACTCA 45 (the 2003 Canberra fires case). That case that s 128 is a defence.  There is a maxim in law ‘who asserts must prove’. Because s 128 creates a defence it is up to the defendant to assert that the actions of those involved were done ‘in good faith’.  That does not mean the defendant has to call each person involved in any decision and ask ‘what were you thinking?’  Rather ‘what matters is what is disclosed by the evidence’ (Katzmann J at [596]). Her Honour said (at [635]):

“In my opinion, for the purposes of s 128 a thing may be done (or omitted to be done) negligently but in good faith. Good faith may be made out where the relevant person does or fails to do something honestly, in good conscience, and for no improper or ulterior purpose, even if he or she acted or omitted to act negligently.”

Jago J said (at [509]) ‘The requirement of good faith requires a real attempt to discharge the required function and more than “honest ineptitude”’. 

The reference to ‘honest ineptitude’ is a reference to the decision in Mid Density Developments Pty Limited v Rockdale Municipal Council [1993] FCA 408. In that case the plaintiff had requested information about flood risk to their property. A council officer advised that the property was not subject to any flood risk. The council officer (at [21]): ‘said that when he completed the answers to the certificates in question in this litigation, he referred to no files or other compendia of data. He relied upon his general knowledge. This led him to the firm conclusion that no property in Henderson Street was subject to flooding.’  This was despite two studies held by council that did indicate the property could be subject to flooding and which the officer did not read or refer to. Council sought to rely on a defence of ‘good faith’ set out in the Local Government Act. The trial judge (at [24]):

… found that the statutory concept of “good faith” in the performance of the functions in question, included two criteria. The first was that the act be done bona fide and not maliciously or to achieve an ulterior purpose. The second was that there be “a genuine attempt to perform the function correctly, that is to say that the function should not be performed without caring whether or not it be properly performed”.

Gummow, Hill, Drummond Jj , sitting as the Full Federal Court said (at [27])

“Good faith” in some contexts identifies an actual state of mind, irrespective of the quality or character of its inducing causes; something will be done or omitted in good faith if the party was honest, albeit careless… On the other hand, “good faith” may require that exercise of caution and diligence to be expected of an honest person of ordinary prudence…

In setting aside, the trial judge’s finding that the council officer had acted in good faith, their Honours said (at [34]):

The statutory concept of “good faith” with which the legislation in this case is concerned calls for more than  honest ineptitude . There must be a real attempt by the authority to answer the request for information at least by recourse to the materials available to the authority. In this case there was a failure to meet that standard.

Conclusion

Taking that back to the RFS good faith will require that the decision or action was done ‘where the relevant person does or fails to do something honestly, in good conscience, and for no improper or ulterior purpose’. But honest ineptitude may not be sufficient so if for example the decision maker made a decision without any actual thought that may not be good faith. For example, a fire fighter may ask the crew leader ‘do you think we’ve done enough here? is the fire out?’ and the crew leader answers ‘sure, let’s go home’ without at least considering what’s been done or looking to see if there was any evidence to suggest that the fire has not been extinguished, that may not be ‘good faith’. But conducting an inspection and concluding that it’s all good will be a decision made in good faith, even if it’s wrong and even if it’s negligently wrong (see also Verdict against landowners for RFS managed controlled burn set aside (April 9, 2021); see also Bennett and Wood Ltd v Orange City Council; Board of Fire Commissioners (Third Party) (1967) 67 SR(NSW) 426).