Aiello v Marrickville Council - [2005] NSWCA 194

CITATION:
AIELLO v MARRICKVILLE COUNCIL [2005] NSWCA 194

HEARING DATE(S):
24 May 2005

JUDGMENT DATE:

15 June 2005

JUDGMENT OF:
Mason P at 1; Giles JA at 44; Bryson JA at 45

DECISION:
Appeal dismissed with costs.

CATCHWORDS:
CATCHWORDS - NEGLIGENCE - council liability for negligent failure to maintain streets and footpaths - non feasance rule - limitation period- whether plaintiff was ignorant of limitation period - change in the state of the law - where plaintiff waits for a favourable change in the law before instituting proceedings - whether circumstances justify an extension of time - prejudice to right to a fair trial - s 60C, s 60E(1) Limitation Act 1969. - (D)

LEGISLATION CITED:
Limitation Act 1969

CASES CITED:
Brodie v Singleton Shire Council
Ghantous v Hawkesbury City Council ((2001) 206 CLR 512)
Buckle v Bayswater Road Board (1936) 57 CLR 259
Eggins v Brooms Head Bowling and Recreational Club Ltd (1986) 5 NSWLR 521
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

PARTIES:
Kerryn Joy AIELLO v MARRICKVILLE COUNCIL

FILE NUMBER(S):
CA 40323/04

COUNSEL:
Appellant: P Webb QC/ M Murphy
Respondent: M Joseph

SOLICITORS:
Appellant: Shaw McDonald
Respondent: Phillips Fox

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 1135/02

LOWER COURT JUDICIAL OFFICER:
Cooper DCJ

CA 40323/2003

MASON P
GILES JA
BRYSON JA
Wednesday 15 June 2005

Kerryn Joy AIELLO v MARRICKVILLE COUNCIL

BACKGROUND

The appellant was injured when she tripped on a broken stormwater pipe and gutter on 12 February 1995. She relied upon a solicitor in relation to a potential right of action in relation to the accident. Her solicitor corresponded with potential defendants over three years, threatening litigation and seeking a settlement. No legal proceedings were commenced. The statutory limitation period expired on 12 February 1998.

In March 2002, the appellant filed an ordinary statement of claim in the District Court against the respondent. Being met with a limitation defence, she moved the District Court for an order pursuant to s60C of the Limitation Act 1969. The application was dismissed. The primary judge stated that the appellant was seeking to revive her right of action in light of the change in the law of immunity, as enunciated by the High Court in Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council ((2001) 206 CLR 512), and it was not just and reasonable to grant an extension of time to allow her to do so.

In the Court of Appeal, the appellant challenged the finding that the decision not to sue due to the state of the old law of immunity contributed to the claim becoming statute-barred. She invited the Court to infer that she was left in ignorance as to the operation of the Limitation Act. A separate submission was made that the radical shift in the common law effected by Brodie/Ghantous after the limitation period had expired was itself a sufficient basis to justify an extension of time against a defendant that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWCA 194
Decision Date: 15 June 2005

CaseChat Overview and Summary

The Court of Appeal of New South Wales considered a claim in negligence brought by the appellant, Mr Aiello, against Marrickville Council. Mr Aiello alleged that the Council was negligent in its failure to maintain a street and footpath, resulting in his injuries. The central dispute revolved around whether the Council owed a duty of care to Mr Aiello and, if so, whether the claim was brought within the relevant limitation period, or if an extension of time was warranted.

The primary legal issues before the Court were whether the established rule of non-feasance, which generally shields public authorities from liability for failing to act, applied to the Council's alleged failure to maintain the street and footpath. Further, the Court had to determine if Mr Aiello's ignorance of the limitation period, or a perceived change in the law, justified an extension of time under the *Limitation Act 1969* (NSW), particularly considering the potential prejudice to the Council's right to a fair trial.

The Court affirmed the principle that a public authority can be liable for negligence in the maintenance of public areas if it has created a danger or adopted a system that is unsafe. However, the Court found that the evidence did not establish that the Council had created the dangerous condition or adopted an unsafe system. Regarding the limitation period, the Court held that ignorance of the law, or waiting for a favourable change in legal interpretation, did not constitute sufficient grounds to extend time, especially where such a delay would prejudice the defendant's ability to conduct a fair defence. The Court applied the principles governing the non-feasance rule and the discretion to extend limitation periods, emphasising the need for a just and equitable outcome for both parties.

The appeal was dismissed, and Mr Aiello was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	AIELLO v MARRICKVILLE COUNCIL [2005] NSWCA 194
HEARING DATE(S):	24 May 2005
JUDGMENT DATE:	15 June 2005
JUDGMENT OF:	Mason P at 1; Giles JA at 44; Bryson JA at 45
DECISION:	Appeal dismissed with costs.

CATCHWORDS:	CATCHWORDS - NEGLIGENCE - council liability for negligent failure to maintain streets and footpaths - non feasance rule - limitation period- whether plaintiff was ignorant of limitation period - change in the state of the law - where plaintiff waits for a favourable change in the law before instituting proceedings - whether circumstances justify an extension of time - prejudice to right to a fair trial - s 60C, s 60E(1) Limitation Act 1969. - (D)
LEGISLATION CITED:	Limitation Act 1969
CASES CITED:	Brodie v Singleton Shire Council Ghantous v Hawkesbury City Council ((2001) 206 CLR 512) Buckle v Bayswater Road Board (1936) 57 CLR 259 Eggins v Brooms Head Bowling and Recreational Club Ltd (1986) 5 NSWLR 521 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
PARTIES:	Kerryn Joy AIELLO v MARRICKVILLE COUNCIL
FILE NUMBER(S):	CA 40323/04
COUNSEL:	Appellant: P Webb QC/ M Murphy Respondent: M Joseph
SOLICITORS:	Appellant: Shaw McDonald Respondent: Phillips Fox

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1135/02
LOWER COURT JUDICIAL OFFICER:	Cooper DCJ