Fairfield City Council v Pisano - [1992] HCATrans 56

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S125 of 1991
B e t w e e n -
FAIRFIELD CITY COUNCIL

Applicant

and
FRANCESCO ANTONIO PISANO and
GUISEPPINA PISANO

Respondents

Application for special
leave to appeal

BRENNAN J

DAWSON J TOOHEY J

Fairfield

14/2/92

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 FEBRUARY 1992, AT 4.46 PM

MR D.F. JACKSON, QC:

May it please the Court, I appear with

my learned friend, MR M.T. McCULLOCH, for the
applicant. (instructed by Phillips Fox)

MR D.H. LLOYD, QC:

May it please the Court, I appear with

MR C.M. HARRIS for the respondents. (instructed by
Astridge & Murray)

BRENNAN J: Yes, Mr Jackson.

MR JACKSON:

Your Honours, may I hand to the Court a further

affidavit of Kevin Allan Gibbons in support of the
application, an affidavit sworn 13 February 1992,
and I would seek leave to file it in Court.

BRENNAN J:	What does it propose to show?
MR JACKSON:	Your Honour, it deals with the continuing

importance of the issue to which I will be
referring to in just a moment, notwithstanding that
section 317A of the Local Government Act has itself
been repealed.

BRENNAN J: Yes. You have no objection, Mr Lloyd?

MR LLOYD:	No, Your Honour.
BRENNAN J:	We are familiar with the judgments, Mr Jackson.

MR JACKSON:

Yes.

Your Honours, the issue which it is

submitted merits the grant of special leave is
whether the terms of section 317A are capable of
giving rise to a cause of action in negligence in
favour of persons who rely on a certificate given
negligently under it.
Your Honours, may I go immediately to the core

facts and then to section 317A? Your Honours, the
respondents to the present application were

purchasers of a property, the house on which was

being constructed at the time of the contract. The
house was later damaged by subsidence. That

appears at page 53, lines 9 to 11. Now, the
Council, the applicant was, in the end, the only
financially substantial defendant. That appears at
page 53, lines 9 to 20.
Your Honours, the subsidence was caused

because there had not been compliance with the
approved plans in a number of respects which were
held to be significant. They appear at page 55,
line 30, through to page 56, line 27.
The cause of action against the Council was

based on a certificate given under section 317A and
the text of the certificate, Your Honours, is at

Fairfield

14/2/92

page 57. Now, the certificate, Your Honours,
between lines 5 and 15, is a certificate that the
building:
" ... in all respects complies with the Local
Government Act 1919 as amended, the Ordinances
made thereunder and the Plans and
Specifications, if any, approved by the
Council -

and so on.
Your Honours, the negligence found to exist

appears at page 59, lines 3 to 8. Other heads were

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: [1992] HCATrans 56
Decision Date

CaseChat Overview and Summary

Fairfield City Council applied for special leave to appeal to the High Court of Australia concerning a dispute with Francesco Antonio Pisano. The core of the disagreement revolved around a certificate issued by the Council under section 317A of the *Local Government Act 1919* (NSW). The respondents, as purchasers of a property, suffered damage due to subsidence in a house constructed on the property. The Council was the financially substantial defendant, and the respondents' cause of action against it was based on the allegedly negligent issuance of the section 317A certificate.

The legal issue before the High Court was whether the terms of section 317A of the *Local Government Act* were capable of giving rise to a cause of action in negligence in favour of persons who relied on a certificate issued negligently under that provision. Specifically, the Court was asked to consider whether the Council, in issuing the certificate, owed a duty of care to persons such as the respondents, whom it knew or ought to have known would rely upon it, and whether the primary judge's finding of negligence was sustainable. The Council's contention was that the purpose of the statute was solely to protect local authorities from actions by bona fide purchasers for value, and nothing more.

The primary judge had found that the Council, in issuing the section 317A certificate, had a duty to exercise reasonable care in relation to persons like the respondents who would rely on the certificate. The negligence found to exist involved the Council issuing the certificate of compliance knowing that the respondents would rely upon it, yet failing to ensure the accuracy of the matters certified. The High Court was considering whether this was a case of recovery for breach of statutory duty or for negligence, as described in *Shaddock & Associates Pty Ltd v Parramatta City Council*.

Orders