Bus v Sydney County Council - [1989] HCATrans 72

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl20 of 1988
B e t w e e n -
GILLIAN MAUD BUS

Appellant

and
THE SYDNEY COUNTY COUNCIL

Respondent

MASON CJ
DEANE J
DAWSON J
TOOHEY J

GAUDRON J

Bus(2)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON

TUESDAY,

4 APRIL 1989, AT 10. 15 AM

C2T 1 /1 /ND

4/4/89

MR R.V. GYLES, QC: If Your Honours please, I appear with
MR L.G. STONE for the appellant. (instructed
by Hunt and Hunt)

MR K.R. HANDLEY, QC: If the Court pleases, I appear with
MR M.E. BOYD, for the respondent. (instructed
by Bartier, Perry & Purcell)

MASON CJ: Yes, Mr Gyles.
MR GYLES: Your Honours, may I hand up copies of our
outline of submissions.

MASON CJ: Thank you.

MR GYLES:

Your Honours, it is possible to approach the appeal simply on one basis and that is
substantially the basis that we have outlined
in our outline of argument and if I may run
through it to give Your Honours the scheme of
it and then come back to seek to make it good.

It is our submission that each member of
the Court of Appeal would or mAY have found
negligence were it not for DELL'ORQ.
Mr Justice McHugh and Mr Justice Priestley put

it positively, Mr Justice Hope in a slightly

more qualified way. In our submission,
DELL'ORO, which I will take the Court to shortly,
when the relevant issues are discussed, was
dealing with the effect of the lack of expert
evidence and with breach not with the formulation
of duty.

(Continuing on page 3)

C2Tl/2/ND 2 4/4/89
Bus(2)

MR GYLES (continuing):· As it happens in the very case

itself Mr Justice Jacobs said that that question
is always a question of fact and never a question
of law. Thus, in our submission, DELL'ORO does
not bind in point of precedent - that is a misprint

for CONKEY, Your Honours, in paragraph 4. Thus,
whilst the members of the Court of Appeal are
entitled to give such respect to the factual
decision of the Court as they thought appropriate
it was an error in principle for them to, as it
were, abdicate their own decision-making role, express the view that were it not for DELL'ORO they would have found negligence and then to
take the course that they did.

Mr Justice Priestley's judgment gives rise

to the precedent debate, the philosophical question
which arises. Perhaps I could take Your Honours
to that at page 234 of the book.

MASON CJ:	What do you mean by''philosophical question"?
MR GYLES:	Well, the question, Your Honour, is to, I suppose,

what statements by the superior court govern in point of precedent and if they do not govern in
point of precedent what is their effect.

MASON CJ:

Well, it is hardly a philosophical question,

is it?

MR GYLES:

Perhaps not, Your Honour.

At the top…

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.

Continue reading Bus v Sydney County Council

Details

AGLC: Bus v Sydney County Council [1989] HCATrans 72
Case: [1989] HCATrans 72
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal brought by the Sydney County Council against a decision of the Court of Appeal. The dispute concerned an allegation of negligence.

The central legal issue before the High Court was whether the Court of Appeal had erred in principle by abdicating its decision-making role. Specifically, the appellant argued that the Court of Appeal had found negligence would have been established but for the precedent set by the High Court decision in *Dell'Oro*. The appellant contended that *Dell'Oro* did not bind the Court of Appeal on the question of breach of duty, as that is a question of fact.

The appellant submitted that the Court of Appeal's approach, which involved acknowledging that negligence would have been found but for *Dell'Oro* and then deferring to that precedent without independent assessment, constituted an error. The appellant argued that *Dell'Oro* dealt with the effect of a lack of expert evidence on breach, not the formulation of breach itself, and that the statement in *Dell'Oro* that the question of breach is always a question of fact and never a question of law meant it did not bind lower courts on the factual determination of breach. The High Court was therefore asked to consider the proper application of precedent, particularly when a superior court's statement might be interpreted as turning a question of fact into a question of law.

Orders