Court of Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Cavric v Willoughby City Council [2015] NSWCA 182 Hearing dates: 2 June 2015 Decision date: 03 July 2015 Before: Basten JA at [1];
Meagher JA at [36];
Emmett JA at [50]Decision: (1) Allow the appeal and set aside the judgment in favour of the defendant given in the District Court on 7 May 2014.
(2) Give judgment for the plaintiff against the defendant in the amount of $285, 915.00, the judgment to take effect from 7 May 2014.
(3) Order that the defendant pay the plaintiff’s costs of the trial.
(4) Order that the respondent pay the appellant’s costs of the appeal.Catchwords: HIGHWAYS – car park used to pass from one street to another – whether car park a “public road” – whether owner council a “roads authority” – legislative history in relation to opening public roads in NSW area not a road under the common law – whether user sufficient basis to establish existence of public road under statute – whether the Roads Act 1993 (NSW), s 249 a separate test of what is a public road or evidentiary provision only – effect of the Conveyancing Act 1919 (NSW), 178 – Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 not followed
NEGLIGENCE – customer injured in car park of shopping centre – whether council as owner of car park a “roads authority” protected from liability under the Civil Liability Act 2002 (NSW), s 45
REAL PROPERTY – Torrens title – indefeasibility of title – dispute whether car park a public road where certificate of title not relied on – inference that no disclosure of public road on the certificate of title – Real Property Act 1900 (NSW), s 46B
STATUTORY INTERPRETATION – whether case law on the meaning of “public street” in the Motor Traffic Act 1989 (NSW) and “road” in the Traffic Act 1919 (WA) relevant to interpretation of “public road” under the Roads Act 1993 (NSW), s 249
WORDS AND PHRASES – “roads authority” – “public road”Legislation Cited: Civil Liability Act 2002 (NSW), s 45
Conveyancing Act 1919 (NSW), ss 88, 178
Crown and Other Roads Act 1990 (NSW), ss 4, 11, Pt 2
Crown Lands Consolidation Act 1913 (NSW), s 24
Local Government Act 1906 (NSW), ss 78, 99-101, 194
Local Government Act 1919 (NSW), ss 232, 237, 249, 323, 327, 329, 518, 526, 623, 703; Pt IX
Local Government Act 1993 (NSW), ss 44, 701; Sch 7, cl 6
Public Roads Act 1902 (NSW), s 18
Public Works Act 1912 (NSW), s 81
Real Property (Amendment) Act 1921 (NSW), s 14
Real Property (Amendment) Act 1970 (NSW), s 22
Real Property Act 1900 (NSW), ss 42, 46B
Roads Act 1993 (NSW), ss 7, 10, 249; Pt 2; Sch 2, cl 15; DictionaryCases Cited: Ashfield Municipal Council v Roads & Traffic Authority of NSW [2001] NSWCA 370; 117 LGERA 203
Attorney General v The…
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- Case
- [2015] NSWCA 182
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court of Appeal included whether the car park, used to pass between two streets, qualified as a "public road" under the *Roads Act 1993* (NSW). This involved determining whether the Council was a "roads authority" within the meaning of the *Civil Liability Act 2002* (NSW), and whether the plaintiff's user of the car park was sufficient to establish its existence as a public road under statute. The Court also considered the effect of s 249 of the *Roads Act 1993* (NSW) and s 178 of the *Conveyancing Act 1919* (NSW), and whether case law concerning "public street" and "road" in other legislation was relevant.
The Court of Appeal found that the car park was a public road. It reasoned that the definition of a public road under the *Roads Act 1993* (NSW) was not limited to roads dedicated under common law or statute in the traditional sense. The Court held that the Council, as the owner and responsible authority for the car park, was a roads authority for the purposes of the *Civil Liability Act 2002* (NSW). The Court distinguished the present case from *Stojan (No 9) Pty Ltd v Kenway* [2009] NSWCA 364, finding that the user of the car park was sufficient to establish it as a public road under the relevant statutory provisions.
The Court of Appeal allowed the appeal, setting aside the District Court judgment in favour of the Council. It entered judgment for the plaintiff against the Council in the amount of $285,915.00, with the judgment to take effect from the date of the District Court judgment. The Council was ordered to pay the plaintiff's costs of the trial and the costs of the appeal.
Orders
Orders of the court
(1) Allow the appeal and set aside the judgment in favour of the defendant given in the District Court on 7 May 2014.
(2) Give judgment for the plaintiff against the defendant in the amount of $285, 915.00, the judgment to take effect from 7 May 2014.
(3) Order that the defendant pay the plaintiff’s costs of the trial.
(4) Order that the respondent pay the appellant’s costs of the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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