Bellingen Shire Council v Colavon Pty Ltd

The New South Wales Court of Appeal considered an appeal by Bellingen Shire Council against a judgment in favour of Colavon Pty Ltd. The dispute arose from a motor vehicle accident where the plaintiff alleged the Council was negligent in failing to install guide posts on a road under its control, leading to the accident. The Council sought to rely on defences under the *Civil Liability Act 2002* (NSW), specifically sections 43A and 5B, and also argued it was exercising a special statutory power under section 87 of the *Roads Act 1993* (NSW).

The primary legal issues before the Court of Appeal were whether the Council owed a duty of care to the plaintiff, whether the risk of harm was foreseeable and not insignificant, and whether the Council was exercising a special statutory power that would negate or limit its liability. Crucially, the Court also had to determine whether the Council had properly pleaded its statutory defences under the *Uniform Civil Procedure Rules 2005* (NSW), particularly concerning the necessity to plead material facts and the potential prejudice to the opposing party if defences were not adequately raised.

The Court of Appeal found that the Council had failed to adequately plead its statutory defences, specifically the defence under section 43A of the *Civil Liability Act 2002*. The Court held that the material facts supporting such a defence must be pleaded in accordance with Rule 14.7 of the *Uniform Civil Procedure Rules 2005* to ensure fairness and avoid ambush. The Court reasoned that the Council's failure to plead the necessary material facts meant it could not rely on these defences at trial. Consequently, the appeal was dismissed.