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Dansar Pty Ltd v Byron Shire Council

Dansar Pty Ltd v Byron Shire Council

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Case Copied 27 October 2014 73 min read

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Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Dansar Pty Ltd v Byron Shire Council [2014] NSWCA 364
Hearing dates: 18 and 19 March 2014
Decision date: 27 October 2014
Before: Macfarlan JA at [1];
Meagher JA at [99];
Leeming JA at [184]
Decision:
Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: TORTS - negligence - duty of care - pure economic loss - respondent Council was consent authority in relation to development application and authority having care and management of sewerage works - appellant sought allocation of sewerage capacity for purpose of obtaining consent to development application - whether Council owed duty of care when implementing earlier decision as to allocation of spare sewerage capacity - whether existence of asserted duty compatible with Council's statutory functions and obligations - whether other features of relationship between parties justified subjecting Council to duty of care - relevance of distinction between policy and operational decisions
Legislation Cited: Civil Liability Act 2002 (NSW), ss 43, 43A, 44
Environmental Planning and Assessment Act 1979 (NSW), ss 76A, 78A, 79C, 80, 82, 97
Land and Environment Court Act 1979 (NSW), s 39
Local Government Act 1993 (NSW), ss 8, 22, 24, 58, 61, 68, 89, 176, 179
Protection of the Environment Operations Act 1997 (NSW), s 91
Cases Cited: Armidale City Council v Alec Finlayson Pty Ltd [1999] FCA 330; 104 LGERA 9
Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1
Barrick Australia Ltd v Williams [2009] NSWCA 275; 74 NSWLR 733
CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; 239 CLR 390
Caledonian Collieries Ltd v Speirs [1957] HCA 14; 97 CLR 202
Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" [1976] HCA 65; 136 CLR 529
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649
Codlea Pty Ltd v Byron Shire Council [1999] NSWCA 399; 105 LGERA 370
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1
Eberstaller v Poulos [2014] NSWCA 211
Federated Engine-Drivers' and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd [1911] HCA 31; 12 CLR 398
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540
Hazeldell Ltd v Commonwealth [1924] HCA 36; 34 CLR 442
Hill v Van Erp [1997] HCA 9; 188 CLR 159
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27; ATR 81-692
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) [1981] HCA 59; 150…

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: [2014] NSWCA 364
Decision Date: 27 October 2014

CaseChat Overview and Summary

Dansar Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning a claim for pure economic loss against Byron Shire Council (the respondent). The dispute arose from the Council's role as the consent authority for a development application and its responsibility for the management of sewerage works. The appellant sought an allocation of sewerage capacity, which was a prerequisite for obtaining development consent.

The central legal issues before the Court of Appeal were whether the Council owed a duty of care to the appellant when implementing an earlier decision regarding the allocation of spare sewerage capacity, whether the existence of such a duty was compatible with the Council's statutory functions and obligations, and whether other features of the relationship between the parties justified imposing a duty of care. The Court also considered the relevance of the distinction between policy and operational decisions in this context.

The Court of Appeal, comprising Macfarlan, Meagher and Leeming JJA, dismissed the appeal. The reasoning focused on the established principles governing the imposition of a duty of care in cases of pure economic loss, particularly in the context of public authorities exercising statutory powers. The Court found that the Council's actions in allocating sewerage capacity were undertaken in the exercise of its statutory functions and that imposing a duty of care in this scenario would be inconsistent with those functions and the broader public interest. The distinction between policy and operational decisions was considered, but ultimately the Court concluded that the Council's conduct did not give rise to a novel duty of care. The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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.

Medium Neutral Citation:	Dansar Pty Ltd v Byron Shire Council [2014] NSWCA 364
Hearing dates:	18 and 19 March 2014
Decision date:	27 October 2014
Before:	Macfarlan JA at [1]; Meagher JA at [99]; Leeming JA at [184]
Decision:	Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TORTS - negligence - duty of care - pure economic loss - respondent Council was consent authority in relation to development application and authority having care and management of sewerage works - appellant sought allocation of sewerage capacity for purpose of obtaining consent to development application - whether Council owed duty of care when implementing earlier decision as to allocation of spare sewerage capacity - whether existence of asserted duty compatible with Council's statutory functions and obligations - whether other features of relationship between parties justified subjecting Council to duty of care - relevance of distinction between policy and operational decisions
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 43, 43A, 44 Environmental Planning and Assessment Act 1979 (NSW), ss 76A, 78A, 79C, 80, 82, 97 Land and Environment Court Act 1979 (NSW), s 39 Local Government Act 1993 (NSW), ss 8, 22, 24, 58, 61, 68, 89, 176, 179 Protection of the Environment Operations Act 1997 (NSW), s 91
Cases Cited:	Armidale City Council v Alec Finlayson Pty Ltd [1999] FCA 330; 104 LGERA 9 Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1 Barrick Australia Ltd v Williams [2009] NSWCA 275; 74 NSWLR 733 CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; 239 CLR 390 Caledonian Collieries Ltd v Speirs [1957] HCA 14; 97 CLR 202 Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" [1976] HCA 65; 136 CLR 529 Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 Codlea Pty Ltd v Byron Shire Council [1999] NSWCA 399; 105 LGERA 370 Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 Eberstaller v Poulos [2014] NSWCA 211 Federated Engine-Drivers' and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd [1911] HCA 31; 12 CLR 398 Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 Hazeldell Ltd v Commonwealth [1924] HCA 36; 34 CLR 442 Hill v Van Erp [1997] HCA 9; 188 CLR 159 Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27; ATR 81-692 L Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) [1981] HCA 59; 150…