1968, March 11.
The following written judgments were delivered:-
BARWICK C.J. In this matter I have had the advantage of reading the reasons for judgment prepared by my brother Menzies. As I agree with his construction of cl. 7 of the agreement between the parties and with his reasons for reaching his conclusions, there is no need for me to do more than concur in his opinion that this appeal should be dismissed. (at p531)

McTIERNAN J. I am of opinion that the conclusion of the Court of Appeal of the Supreme Court of New South Wales is right. I concur in the reasons for judgment of my brother Menzies and I cannot usefully add anything. (at p531)

KITTO J. The appellant, being sued by the Commissioner for Railways for having negligently caused damage to one of the Commissioner's locomotives by a collision between the locomotive and a motor vehicle at a public crossing of a railway line, claimed in third-party proceedings contribution from the respondent in respect of any sum which the Commissioner might recover in the action. The statutory basis of the claim to contribution was the provision made by s. 5 (1) (c) of the Law Reform (Miscellaneous Provisions) Act, 1946 (N.S.W.) that any tortfeasor liable in respect of damage suffered by a person as a result of the tort may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise; and the appellant's case as pleaded was that a cause of the collision was negligence on the part of the respondent for which he would have been liable if the Commissioner for Railways had sued him. The statutory provision, however, is qualified, and the respondent pleaded that the qualification applied to the case. It is in these words : ". . . so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought." By demurrer proceedings in the Supreme Court the question was raised whether the terms of a certain contract between the appellant and the respondent did entitle the respondent to be indemnified by the appellant in respect of "the liability in respect of which the contribution is sought", namely the liability of the respondent to the Commissioner for Railways. (at p531)

2. According to the pleadings, the contract was one by which the respondent engaged the appellant with his motor truck to take part, together with other contractors, in carrying out certain roadwork in close proximity to the public crossing, being work which involved the driving of motor vehicles, including the appellant's, over the crossing at frequent intervals…

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 Davis v Commissioner for Main Roads

Details

AGLC: Davis v Commissioner for Main Roads [1968] HCA 10
Case: [1968] HCA 10
Decision Date: 11 March 1968

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *Davis v Commissioner for Main Roads*. The dispute concerned the appellant's claim for compensation for land resumed by the respondent for the purpose of constructing a public road. The core of the disagreement lay in the valuation of the resumed land and the compensation to be awarded.

The central legal issue before the Court was the proper method for assessing compensation for the compulsory acquisition of land, particularly in circumstances where the land had potential for development that was not yet realised. The Court was required to determine whether the "potential use" of the land, as distinct from its existing use, should be taken into account when assessing its market value for compensation purposes.

The Court reasoned that compensation for resumed land should reflect its market value at the date of resumption, considering all circumstances that a willing purchaser would take into account. This includes not only the land's current use but also any potential for its use that would enhance its value. The judges applied the principle that the potential for development, if it was a real and not merely speculative possibility, was a factor that a hypothetical purchaser would consider, and therefore should be reflected in the compensation awarded. The Court found that the unimproved value of the land, as determined by the respondent, did not adequately account for this potential.

Orders