Today’s question is about charges for attendances by Fire Rescue Victoria to false fire alarms.  My correspondent says:

Currently FRV charges for false alarm attendances under the FRV Act 1958 Sect 32D.

Currently FRV determine “reasonable excuses”, largely based on the case law of MFBV v St Catherines and MFBB v Mercy Private Hospital.

The levies imposed act as an incentive to reduce false alarms – but are also an exercise in cost recovery. The average cost of a false alarm attendance is $2800, and approximately 1/3 attendances are charged for.

Internally at FRV, there has been discussion of moving to a “flat fee” charging model that does not consider reasonable excuses. i.e $900 per attendance for any attendance.

  • Do you think this model would be possible? and;
  • what legislative change would be required?

The link to the cases, provided by my correspondent, goes to a information article written by Elisa McCutcheon from law firm Minter, Ellison, Morris, Fletcher.  The cases themselves are Metropolitan Fire Brigades Board v Mercy Private Hospital [1993] VicRp 24 and Metropolitan Fire Brigades Board v St Catherine’s School [1993] VicRp 25.  The fires in these cases occurred in September 1990.  At that time s 32D of the then Metropolitan Fire Brigades Act 1958 (Vic) said:

(1)        If

(a)        a brigade in the metropolitan district responds to a false alarm of fire given by an automatic fire alarm system; and

(b)       the Board, after considering a report by an officer of the Board relating to the false alarm, determines that the owner or occupier of the property did not have a reasonable excuse for the alarm being given the Board may by notice in writing given to the owner or occupier of the property require the owner or occupier to pay to the Board the fees and charges prescribed for the attendance of the brigade in response to the false alarm.

(2) Any person who is aggrieved by the decision of the Board may within 30 days of receiving the notice appeal to the Administrative Appeals Tribunal against that decision.

The decisions in Mercy Private Hospital and St Catherine’s School identified circumstances that may amount to a reasonable excuse and whether the burden lay on the property owner to establish a reasonable excuse, or on the Board to prove there was no reasonable excuse. The note by Ms McCutcheon says

As a result of the St Catherine’s decision, it is clear that a building owner or occupier may be able to succeed on an argument that it relied on the services of a reputable contractor to maintain its fire alarm system in good repair to avoid payment of the fee. However, the question is whether St Catherine’s goes far enough? What if the system is old and/or there are a large number of false alarms? Will it still appear reasonable for the building owner or occupier to have relied on a reputable contractor to service the alarm system? As explained by Nathan J, the difficulty lies in that what constitutes ‘a reasonable excuse’ is not amenable to precise definition. In any given case, this will be a question of fact for the Board or AAT to determine.

The Court in Mercy Hospital confirmed that the Board must determine that there was no reasonable excuse. Byrne J said:

… Although the procedure required by s32D is in no way an adversary one, it is to be expected that in the case where the board does consider a notice to pay may be appropriate, it should enquire as to the existence of a reasonable excuse for the alarm being given, and that that enquiry would, in the first instance, be directed to the owner or occupier who is at risk of receiving a notice to pay. In such an enquiry, concepts more appropriate to formal court proceedings such as onus of proof and risk of non-persuasion may not be appropriate. Nevertheless, it seems to me that the board is entitled to have regard to the fact, if it be the case, that the owner or occupier has proffered as a reasonable excuse an explanation which was palpably inappropriate, inadequate or unconvincing, or that it proffered no explanation at all. Even in such a case the statute requires the board to make an affirmative determination before it may exercise its discretion to issue a notice to pay. If the board reaches a determination that there is a reasonable excuse or if it is unable to reach any determination on the question, then the further step [of issuing a notice to pay] may not be taken.

In other words it is not the case that the Board was permitted to issue a notice to pay after a false alarm unless the occupier satisfied the Board that there was a reasonable excuse. Rather the Board had to investigate and be satisfied that there was no reasonable excuse before it could proceed to issue the notice.

The modern version of s 32D is more detailed than the version that applied in 1990.  Today the Fire Rescue Victoria Act 1958 (Vic) s 32D says, relevantly:

False alarm of fire

(1) This section applies if a unit in the Fire Rescue Victoria fire district responds to a false alarm of fire at a premises given by or originating from—

(a) an automatic fire alarm system; or

(b) equipment designed to detect a fire or other emergency conditions and transmit a signal of that detection.

(2) Fire Rescue Victoria may, by written notice, require the owner, occupier or owners corporation of the premises to provide details of the circumstances of the false alarm of fire to Fire Rescue Victoria.

(3) A person who receives a notice under subsection (2) may provide Fire Rescue Victoria with an explanation of the circumstances of the false alarm of fire and any information supporting the explanation including maintenance and testing records.

(4) [Deals with procedural matters and time limits] …

(5) After the expiry of the period provided under subsection (4)(b) for the provision of an explanation, Fire Rescue Victoria must consider whether or not there was a reasonable excuse for the occurrence of the false alarm having regard to—

(a) subject to subsection (4), any explanation and information provided by the person under subsection (3); and

(b) any report of the member of the operational staff who attended at the false alarm of fire at the premises; and

(c) the history of any attendances at the premises; and

(d) any other information that Fire Rescue Victoria considers is relevant.

(6) If, after considering the matters referred to in subsection (5), Fire Rescue Victoria is not satisfied that there was a reasonable excuse for the occurrence of the false alarm of fire, Fire Rescue Victoria may by written notice require the person to whom the notice under subsection (2) was given to pay to Fire Rescue Victoria the fees and charges prescribed for the attendance of the unit in response to the false alarm.

(7) [Provides for an appeal to VCAT]…

(8)[Time limits for lodging an appeal].

The effect of the modern Act is much the same. The notice to pay can be issued only if the Brigades attend in response to a false alarm and only if ‘Fire Rescue Victoria is not satisfied that there was a reasonable excuse for the occurrence of the false alarm of fire’.  What the modern s 32D is set out more procedural matters – FRV is to give notice requiring details to be provided (s 32D(2)) and must take into account the matters listed in s 32D(5). This is a more extensive list than in the 1990 Act where the Board was only required to consider ‘a report by an officer of the Board relating to the false alarm’.

Let me then turn to the question:

Internally at FRV, there has been discussion of moving to a “flat fee” charging model that does not consider reasonable excuses. i.e $900 per attendance for any attendance.

•          Do you think this model would be possible? and;

•          what legislative change would be required?

The model of a ‘flat fee’ charge, without regard to ‘reasonable excuse’ would not be possible with the current s 32D.  As Byrne J said “… the statute requires the board to make an affirmative determination before it may exercise its discretion to issue a notice to pay. If the board reaches a determination that there is a reasonable excuse or if it is unable to reach any determination on the question, then the further step [of issuing a notice to pay] may not be taken.” Today before FRV can charge for attendance at a false alarm it must:

  • Invite the owner, occupier or owners corporation provide details of the circumstances of the false alarm (s 32D(2));
  • Consider the circumstances raised the owner, occupier or owners corporation as well as the other matters raised in s 32D(5);
  • Determine whether it is ‘is not satisfied that there was a reasonable excuse for the occurrence of the false alarm’ (s 32D(6)) and then;
  • Determine whether to issue the notice to pay.

Fire Rescue Victoria cannot issue a notice to pay without first going through those steps and deciding that it is not satisfied that there was a reasonable excuse.  If they do not make enquiries and consider the factors listed then FRV cannot be satisfied that there was no reasonable excuse, and if there is not that state of mind then they cannot issue a fee. A fee without considering reasonable excuse would not be possible with the current s 32D.

As for a fee of $900, it is not up to FRV to determine the fee; the fee is set by the regulations. The fee is currently (Fire Rescue Victoria (General) Regulations 2020 (Vic) r 17 and Schedule 2)

39·06 fee units for each appliance in attendance for each 15 minutes (or part of 15 minutes) during which the appliance is absent from its station.

A fee unit is currently $15.29 so the fee is $597.23 per 15 minutes per unit.

That answer depends on the current legislation. If the Victorian Parliament were willing to amend the legislation then of course anything is possible.  The Parliament could write a new s 32D imposing strict liability on ‘the owner, occupier or owners corporation’.  Whether the parliament would want to do that is of course another matter.  The Parliament may well feel that false alarms are part of the cost of providing fire protection and it’s better to go to false alarms than not be notified of fire at all.  And the Parliamentarians may feel that an owner who pays a reputable professional to install and maintain an alarm should not have to pay if, as is the way, sometimes things go wrong. 

Conclusion

Under the current legislation Fire Rescue Victoria could not move ‘to a “flat fee” charging model that does not consider reasonable excuses. i.e $900 per attendance for any attendance’ at a false alarm.  Such a scheme would be possible but would require the legislature to rewrite s 32D of the Fire Rescue Victoria Act 1958 (Vic) and the Fire Rescue Victoria (General) Regulations 2020 (Vic).

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.