Gloucester Shire Council v McLenaghan - [2000] NSWCA 208

Reported Decision: [2000] 109 LGERA 419
[2000] 31 MVR 340

New South Wales

Court of Appeal

CITATION: Gloucester Shire Council v McLenaghan & Anor [2000] NSWCA 208 revised - 22/08/2000

FILE NUMBER(S): CA 40904/98

HEARING DATE(S): 27 April 2000

JUDGMENT DATE:
8 August 2000

PARTIES :

Gloucester Shire Council v Gerard Thomas McLenaghan by his Tutor Karen Anne McLenaghan and John McLenaghan

JUDGMENT OF: Priestley JA at 1; Powell JA at 20; Davies AJA at 50

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 5649/97

LOWER COURT
JUDICIAL OFFICER : His Honour Judge Harvey Cooper

COUNSEL: Appellant - M. Holmes QC / Ms P. Gormly
Respondent (1) - Submitting appearance
Respondent (2) - C. Stevens QC / P. Arden

SOLICITORS: Appellant - Sparke Helmore
Respondent (1) - Submitting appearance
Respondent (2) - McCourts

CATCHWORDS: Highway authorities - Non-feasance/misfeasance rule

LEGISLATION CITED: Local Government Act 1919

CASES CITED:
Buckle v Bayswater Road Board (1936) 57 CLR 259
Calvaresi v Beare [2000] SASC 21
Commissioner of Main Roads v Hennessy (SC of WA, Full Court, 27/9/96, unreported)
Connelly v Ministry of Transport (1965) 63 LGR 372
East Sussex Rivers Catchment Board v Kent [1941] AC 74
Gorringe v The Transport Commission (Tas) 80 CLR 357
Hill v Commissioner for Main Roads (1989) 68 LGRA 173; 9 MVR 45
McIntyre v Ridley District Council (1991) 56 SASR 343
Simon v Islington Borough Council [1943] 1 KB 188
Singleton Shire Council v Brodie[1999] NSWCA 37
Skilton v Epsom & Ewell Urban District Council [1937] 1 KB 112
Threadgate v Tamworth City Council [1999] NSWCA 32
Turner v Ku-ring-gai Municipal Council (1990) 72 LGRA 60: 12 MVR 321

DECISION: Appeal dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40904/98
DC 5649/97

PRIESTLEY JA
POWELL JA
DAVIES AJA

Tuesday, 8 August 2000

GLOUCESTER SHIRE COUNCIL v Gerard Thomas McLENAGHAN

by his tutor Karen Anne McLENAGHAN & ANOR

HIGHWAY AUTHORITIES - NON-FEASANCE/MISFEASANCE RULE - The trial judge found the defendant 70% at fault for a car accident, and the Council on whose road the accident happened, which had been joined as a third party, 30% at fault. The trial judge’s judgment against the Council was based on his view that the Council’s immunity for non-feasance as a highway authority was not applicable, because it was negligent as a traffic authority: Turner v Kur-ing-gai Municipal Council (1990) 72 LGRA 60.
On appeal Priestley JA and Davies AJA were of opinion the appeal should be dismissed; Powell JA thought it should be upheld. Priestley JA agreed with Davies AJA’s reasons for holding misfeasance had been established; Powell JA thought that conclusion not open. Powell JA and Davies AJA thought the trial judge was wrong in applying Turner in the circumstances; Priestley JA was doubtful about this and expressed no opinion about it.

ORDER

Appeal dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40904/98
DC 5649/97
PRIESTLEY JA
POWELL JA
DAVIES AJA
Tuesday,…

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: [2000] NSWCA 208
Decision Date: 8 August 2000

CaseChat Overview and Summary

The Supreme Court of New South Wales, Court of Appeal, heard an appeal concerning the liability of a highway authority. The dispute involved the Gloucester Shire Council and a party identified as McLenaghan. The precise nature of the dispute, beyond its relation to highway authorities and the non-feasance/misfeasance rule, is not detailed in the provided text.

The central legal issue before the Court of Appeal was the application of the non-feasance/misfeasance rule in the context of a highway authority's responsibilities. This rule generally distinguishes between a failure to act (non-feasance), for which a highway authority may not be liable, and an act of doing something improperly (misfeasance), which can attract liability. The court was required to determine whether the Council's actions or omissions in relation to the highway fell within the scope of misfeasance, thereby imposing a duty of care and potential liability.

The court's reasoning and the legal principles applied are not explicitly detailed in the provided text. However, the outcome suggests that the court found the Council liable, or at least that the appeal against a finding of liability was unsuccessful. The dismissal of the appeal with costs indicates that the Court of Appeal upheld the decision of the lower court, implying that the Council's conduct was likely considered to be misfeasance rather than mere non-feasance, or that the legal principles governing the distinction were applied in a manner that favoured McLenaghan.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

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.

CITATION:	Gloucester Shire Council v McLenaghan & Anor [2000] NSWCA 208 revised - 22/08/2000
FILE NUMBER(S):	CA 40904/98
HEARING DATE(S):	27 April 2000
JUDGMENT DATE:	8 August 2000
PARTIES :	Gloucester Shire Council v Gerard Thomas McLenaghan by his Tutor Karen Anne McLenaghan and John McLenaghan
JUDGMENT OF:	Priestley JA at 1; Powell JA at 20; Davies AJA at 50

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 5649/97
LOWER COURT JUDICIAL OFFICER :	His Honour Judge Harvey Cooper

COUNSEL:	Appellant - M. Holmes QC / Ms P. Gormly Respondent (1) - Submitting appearance Respondent (2) - C. Stevens QC / P. Arden
SOLICITORS:	Appellant - Sparke Helmore Respondent (1) - Submitting appearance Respondent (2) - McCourts
CATCHWORDS:	Highway authorities - Non-feasance/misfeasance rule
LEGISLATION CITED:	Local Government Act 1919
CASES CITED:	Buckle v Bayswater Road Board (1936) 57 CLR 259 Calvaresi v Beare [2000] SASC 21 Commissioner of Main Roads v Hennessy (SC of WA, Full Court, 27/9/96, unreported) Connelly v Ministry of Transport (1965) 63 LGR 372 East Sussex Rivers Catchment Board v Kent [1941] AC 74 Gorringe v The Transport Commission (Tas) 80 CLR 357 Hill v Commissioner for Main Roads (1989) 68 LGRA 173; 9 MVR 45 McIntyre v Ridley District Council (1991) 56 SASR 343 Simon v Islington Borough Council [1943] 1 KB 188 Singleton Shire Council v Brodie[1999] NSWCA 37 Skilton v Epsom & Ewell Urban District Council [1937] 1 KB 112 Threadgate v Tamworth City Council [1999] NSWCA 32 Turner v Ku-ring-gai Municipal Council (1990) 72 LGRA 60: 12 MVR 321
DECISION:	Appeal dismissed with costs.