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West to appeal after losing 10-year court battle

Date

Louis Andrews

NSW firefighting authorities had embraced an ''inadequate and defective strategy'' to tackle the 2003 firestorm but are not legally liable for compensation, a court has ruled.

Read the full judgment.

On Monday, Chief Justice Terence Higgins ruled in favour of NSW, closing another chapter in the largest single piece of civil litigation in the territory's history.

Brindabella landowner Wayne West vowed to challenge the ruling.

Brindabella landowner Wayne West vowed to challenge the ruling. Photo: Jeffrey Chan

However, Brindabella landowner Wayne West, describing the 86-page judgment as ''not all bad news'', has flagged his intention to fight on in the ACT Court of Appeal.

''I'm still alive. I've still got hair, so I've got a few more years left,'' he said on the steps of the ACT Supreme Court.

''I hope that important lessons are learned from the horrors of the 2003 bushfires, and actions need to be taken to prevent similar disasters happening again.''

The fire roared through the south-western suburbs of Canberra on January 18, 2003, killing four people and destroying almost 500 homes.

Mr West and plaintiffs represented by QBE Insurance sued the NSW government, claiming the NSW Rural Fire Service and the NSW National Parks and Wildlife Service were negligent in their handling of the blaze. The ACT's role in the litigation ended earlier this year after confidential settlements were reached out of court.

The judge delivered his verdict on Monday after hearing 80 days of evidence and submissions and reserving to consider his decision for a little more than a year.

Chief Justice Higgins identified failures in ''strategic planning'', but he did not level any blame at individual front-line firefighters.

The judge said the decision not to mount a direct attack on the McIntyre's Hut fire at Baldy Range at first light on January 9, the day after the fire began, was unreasonable.

He said the decision on January 8 to use the Goodradigbee River as a containment line was defensible, but the failure to back-burn along the river was ''certainly a serious strategic error''.

''It therefore seems to me, as a matter of fact, that the failure to have taken those steps was both negligent and causative of the escape from those fire fronts to the east and the west,'' the chief justice wrote.

However, under NSW law, for negligence against authorities doing their job to be established, the plaintiff would need to show their conduct was unreasonable.

The judge found the case fell short of that yardstick, and there was no evidence to establish that the RFS and its officers had failed to act in good faith.

''Effectively, [the plaintiffs] are deprived by statute of what would, under the general law, be regarded as just compensation,'' Chief Justice Higgins said. ''The legislature, however, has spoken, so as to exempt NSW from such liability, and the courts must apply the law as Parliament has decreed it to be.''

Outside the court Mr West, with his legal team and supporters, said the case was never about money.

''We never came here in 2003, when I started, to argue about cost,'' he said.

''That fire was allowed to burn. There could have been action taken to prevent the fire escaping, or being enticed to escape.

''The fires shouldn't have burnt the houses and [caused] the injuries and the four lives in Canberra. That's what we were here for from day one.''

Asked what lessons should be taken from the firefighters' response, Mr West replied: ''Get in the fire immediately and look at the fire. Don't look at it [from] 50 kilometres away.''

The solicitor acting for the QBE plaintiffs, Alan Conolly, said the legal team would consider the judgment before deciding whether or not to appeal.

''In a case as big as this, there'll be issues we have to look at, and at the moment we first have to read the judgment and advise our clients,'' he said.

Laurence Buchanan, who was not party to the case but who lost his home in 2003, urged Mr West to take the case further, saying it was a ''David and Goliath'' battle.

In a statement, Rural Fire Service Commissioner Shane Fitzsimmons, welcomed the ruling and thanked the more than 3700 members who fought the blaze.

''The Canberra bushfires were a terrible tragedy that affected many in the community, particularly those who lost loved ones or their homes or were injured,'' he said. ''My thoughts are with them as this decision is handed down today, nearly a decade after the fires.''

He said he was pleased the law protected firefighters acting in good faith.

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