Brisbane City Council v Amos - [2018] HCATrans 186

[2018] HCATrans 186

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B8 of 2018

B e t w e e n -
BRISBANE CITY COUNCIL
Applicant
and
EDWARD AMOS
Respondent
Application for special leave to appeal

GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 14 SEPTEMBER 2018, AT 10.25 AM

MR P.A. LOONEY, QC: May it please the Court, I appear with MS A.L. WHEATLEY of counsel for the applicant. (instructed by City Legal, Brisbane City Council)

MR F.L. HARRISON, QC: If the Court pleases, I appear with MR P.G. JEFFERY for the respondent. (instructed by Keller Nall & Brown Solicitors)

GAGELER J: Yes, Mr Looney.

MR LOONEY: Your Honours, a grant of special leave will enable this Court to address the proper approach to the application of limitation provisions where more than one provision is said to apply to an action. The relevant special leave questions are set out in the application book at page 70. The first of those special leave questions expands upon the summary that I have just identified. As your Honours will see from page 70, there are three alternatives that are identified in paragraph 4 as to the special leave questions. The first is:

is it necessary to apply both provisions so that the whole of the action is barred once any shorter period has expired –

We would identify that as being the majority’s decision below. The second is:

does each provision apply according to its terms to that claim which directly falls within its terms but not otherwise –

That is what we identify as being the applicant’s preferred correct approach. The third is:

is the right approach to identify the provision which applies to the exclusion of the other, to the plaintiff’s claims -

We put that as the alternative correct approach and the one adopted by Justice Fraser below in the dissenting opinion.

GAGELER J: You point to a two/two split in the Supreme Court. You point to inconsistency of the majority with the earlier dicta of Justice McPherson.

MR LOONEY: Yes.

GAGELER J: What else do you point to to justify the grant of special leave?

MR LOONEY: Aside from the error, the width of the application of this issue goes to, firstly, within Queensland, to all of the relevant local authorities.

KEANE J: But more broadly the point is that this approach to construction of the Limitation Act has the consequence that if the Limitation Act can apply to a particular claim in more than one respect, the stronger aspect of the claim may be statute barred, even though it is given a longer period of limitation.

MR LOONEY: Whether or not it is the stronger – it may be the stronger – it is simply a question of ‑ ‑ ‑

KEANE J: It would be in cases of mortgages.

MR LOONEY: Potentially so, and that is the second and wider…

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: [2018] HCATrans 186
Decision Date

CaseChat Overview and Summary

The Brisbane City Council sought to recover from Mr. Amos the cost of certain works undertaken by the Council to remediate a retaining wall on Mr. Amos's property. The dispute concerned the interpretation and application of section 652 of the *Brisbane City Council’s* (BCC) *Public Works Act 1901* (Qld) (the Act), which provided the Council with a right to recover the cost of certain works from the owner of the land. The matter proceeded to the High Court of Australia.

The High Court was required to determine whether the works undertaken by the Council fell within the scope of section 652 of the Act, and if so, whether the Council was entitled to recover the costs from Mr. Amos. Specifically, the Court considered whether the works were "necessary for the protection of the public" and whether the Council had complied with the procedural requirements of the Act before undertaking the works and seeking recovery.

The Court held that the works undertaken by the Council were not "necessary for the protection of the public" as contemplated by section 652 of the Act. Gageler and Keane JJ reasoned that the purpose of section 652 was to allow the Council to recover costs for works that addressed an immediate public danger or risk, not for general maintenance or improvement of private property. They found that the evidence did not establish that the retaining wall posed an imminent threat to public safety, and therefore the Council could not rely on section 652 to recover the costs. The Court also noted that the Council had not followed the prescribed notice procedures under the Act, which further undermined its claim.

The High Court allowed Mr. Amos's appeal and ordered that the Brisbane City Council’s claim be dismissed.

Orders