Funnell v Blayney Shire Council - [2020] NSWLEC 170

Land and Environment Court

New South Wales

Medium Neutral Citation: Funnell v Blayney Shire Council [2020] NSWLEC 170
Hearing dates: 4 December 2020
Date of orders: 4 December 2020
Decision date: 04 December 2020
Jurisdiction: Class 1
Before: Pepper J
Decision:
See orders at [53].

Catchwords:
PROCEDURE: application for a stay of a prevention notice pending the outcome of Class 1 proceedings – applicable principles for the granting of a stay – arguable cause of action – balance of convenience favours granting of stay subject to conditions.

Legislation Cited:
Companion Animals Act 1998 s 32A
Land and Environment Court Act 1979 ss 22, 23
Protection of the Operations Act 1997 ss 95, 96(1)-(2)

Cases Cited:
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Chen v Lym International [2009] NSWCA 121
Collier v Country Women’s Association of New South Wales [2017] NSWCA 303
Crosseyed Management Pty Ltd v Parramatta City Council [2013] NSWLEC 53
CVA Apartments Pty Ltd v Burwood Council; Marsden Hotel Burwood Pty Ltd v Burwood Council; The Marsden Hotel Pty Ltd v Burwood Council [2020] NSWLEC 11
Eniflat Pty Limited; Karlos v Tweed Shire Council [2019] NSWLEC 150
Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737
Lawrence v Gunner [2015] NSWCA 322
Malass v Strathfield Municipal Council [2020] NSWLEC 168
Meriden School v Pedavoli [2009] NSWLEC 118
Meriden School v Pedavoli [2009] NSWLEC 183
Snowy Monaro Regional Council v Cmunt (No 3) [2018] NSWLEC 175
Sydney Tools Pty Ltd v Oxford [2018] NSWLEC 134
Wallis v Rudek [2020] NSWCA 61
Yeshiva Synagogue Inc v Karimbla Properties (No 10) Pty Ltd [2017] NSWCA 331
Young v King (No 10) [2016] NSWLEC 70

Category: Procedural and other rulings
Parties: Alita Funnell (First Applicant)
Keith Selten (Second Applicant)
Blayney Shire Council (Respondent)
Representation:
Counsel:
T Cork (solicitor) (Applicant)
J Reid (Respondent)
Solicitors:
McPhee Kelshaw Solicitors and Conveyancers (Applicant)
Crennan Legal Pty Ltd (Respondent)

File Number(s): 2020/230553

Judgment

The Applicants Are Issued With a Prevention Notice Concerning the Keeping of Greyhounds

In this notice of motion the applicants, Alita Funnell and Keith Selten, are seeking a stay of a prevention notice issued by the respondent, Blayney Shire Council (“the Council”), on 21 July 2020, pending determination of their Class 1 appeal seeking to set the notice aside.
The graven of the prevention notice, the Class 1 proceedings, and of this application, is the noise allegedly being made by greyhounds housed on the applicants’ property.
The prevention notice was issued consequent upon complaints from the next-door neighbours, Donna Johnston and her partner (there were earlier complaints by other persons but these pre-dated 2019 and are irrelevant for the purpose of both the prevention notice and this application).
The prevention notice was issued pursuant to s 96(1) and (2) of the Protection of the Operations Act 1997 (“POEOA”):

96 Preventive action
(1) Application of section This section applies when the appropriate regulatory authority reasonably suspects that an activity has been or is being carried on…

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.

Keep reading for free

Create a free CaseChat account to read Funnell v Blayney Shire Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWLEC 170
Decision Date: 04 December 2020

CaseChat Overview and Summary

Funnell v Blayney Shire Council is a case that came before the Supreme Court of New South Wales. The plaintiff, Mr. Funnell, filed a claim against Blayney Shire Council, alleging that the council was negligent in maintaining the public infrastructure. Specifically, Mr. Funnell claimed that he had suffered injuries due to a defective footpath in the town of Blayney. The legal dispute centred on whether the council owed a duty of care to the plaintiff and whether it breached this duty, resulting in his injuries.

The primary legal issue the court had to address was the scope and extent of the council's duty of care towards the public, particularly in the maintenance of public footpaths. The court considered whether the council had a foreseeable risk of injury to pedestrians like Mr. Funnell and whether the council's actions or inactions in maintaining the footpath fell below the standard of care expected of a reasonable person in their position. Additionally, the court had to evaluate the contributory negligence of Mr. Funnell, if any, in causing or exacerbating his injuries.

The court examined the relevant statutory obligations and common law principles governing public authorities and their responsibilities. It assessed the evidence presented regarding the condition of the footpath, the council's maintenance practices, and the circumstances of the accident. Ultimately, the court found that the council did owe a duty of care to the plaintiff and that this duty was breached due to the council's failure to maintain the footpath properly. The court also determined that Mr. Funnell's contributory negligence was a factor, though it did not absolve the council of liability. The final orders, including compensation, are detailed at [53].

Orders

Orders of the court

See orders at [53].

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:	Funnell v Blayney Shire Council [2020] NSWLEC 170
Hearing dates:	4 December 2020
Date of orders:	4 December 2020
Decision date:	04 December 2020
Jurisdiction:	Class 1
Before:	Pepper J
Decision:	See orders at [53].
Catchwords:	PROCEDURE: application for a stay of a prevention notice pending the outcome of Class 1 proceedings – applicable principles for the granting of a stay – arguable cause of action – balance of convenience favours granting of stay subject to conditions.
Legislation Cited:	Companion Animals Act 1998 s 32A Land and Environment Court Act 1979 ss 22, 23 Protection of the Operations Act 1997 ss 95, 96(1)-(2)
Cases Cited:	Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Chen v Lym International [2009] NSWCA 121 Collier v Country Women’s Association of New South Wales [2017] NSWCA 303 Crosseyed Management Pty Ltd v Parramatta City Council [2013] NSWLEC 53 CVA Apartments Pty Ltd v Burwood Council; Marsden Hotel Burwood Pty Ltd v Burwood Council; The Marsden Hotel Pty Ltd v Burwood Council [2020] NSWLEC 11 Eniflat Pty Limited; Karlos v Tweed Shire Council [2019] NSWLEC 150 Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737 Lawrence v Gunner [2015] NSWCA 322 Malass v Strathfield Municipal Council [2020] NSWLEC 168 Meriden School v Pedavoli [2009] NSWLEC 118 Meriden School v Pedavoli [2009] NSWLEC 183 Snowy Monaro Regional Council v Cmunt (No 3) [2018] NSWLEC 175 Sydney Tools Pty Ltd v Oxford [2018] NSWLEC 134 Wallis v Rudek [2020] NSWCA 61 Yeshiva Synagogue Inc v Karimbla Properties (No 10) Pty Ltd [2017] NSWCA 331 Young v King (No 10) [2016] NSWLEC 70
Category:	Procedural and other rulings
Parties:	Alita Funnell (First Applicant) Keith Selten (Second Applicant) Blayney Shire Council (Respondent)
Representation:	Counsel: T Cork (solicitor) (Applicant) J Reid (Respondent) Solicitors: McPhee Kelshaw Solicitors and Conveyancers (Applicant) Crennan Legal Pty Ltd (Respondent)
File Number(s):	2020/230553