Local Government (N.S.W.)—Rating—Rural land—Land used for the business of grazing—Land used for agistment of cattle and horses—Case stated—Question of law—Mixed question of law and fact—Local Government Act, 1919 (N.S.W.), s. 118 (1) "rural land", Land Valuation Court Act, 1921 (N.S.W.), s. 17.* * The Land Valuation Court Act, 1921 (N.S.W.), s. 17 provides: "(1) When any question of law arises in any proceeding before the court the court shall, if so required in writing by any of the parties within the prescribed time and subject to the prescribed conditions, or may of its own motion, state a case for the decision of the Supreme Court thereon. . . . (4) The decision of the Supreme Court upon the hearing of any such case shall be binding upon the court and upon all the parties to such proceeding."
Decisions
June 20. The following written judgments were delivered: - GIBBS AND STEPHEN JJ. We have had the advantage of reading the reasons for judgment prepared by our brother Mason and agree with them. There are a few additional observations which we wish to make. (at p3)
2. The question whether the appellant's land came within the definition of "rural land" in s. 118 (1) of the Local Government Act, 1919 (N.S.W.), as amended, involved a number of subsidiary questions, including the following: (a) Was the land used for carrying on a business? (b) If so, was it so used by the occupier and was the business that of grazing? and (c) If yes to all these questions, was it wholly or mainly used for carrying on that business. (at p3)
3. The learned judge of the Land and Valuation Court decided the first of these questions against the appellant, and for that reason did not proceed to decide the remaining questions, although, in relation to the second of the questions which we have stated, he said that he inclined to the view that a business of agistment is not a business of grazing. (at p3)
4. For the reasons given by our brother Mason, the learned primary judge erred in law in deciding that the appellant's use of the land was not significant enough to bring it within the scope of the common or general meaning of the word "business". That was not the same as deciding that the manner in which the appellant used the land did not have "a significant commercial purpose or character", although the reasons of the learned primary judge suggest that he may not have fully appreciated the distinction between the two ideas. When Walsh J. in Thomas v. Federal Commissioner of Taxation (1972) 46 ALJR 397, at p 401 said that he left "out of account the pine trees, the growing of which did not have . . . a significant commercial purpose or character", it is perfectly clear…
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
AGLC
Hope v Bathurst City Council [1980] HCA 16
Case
[1980] HCA 16
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Supreme Court of New South Wales in *Hope v Bathurst City Council*. The dispute concerned the liability of the Council for injuries sustained by the plaintiff, Mr. Hope, who fell from a public toilet block constructed and maintained by the Council. Mr. Hope alleged that the Council was negligent in its design and maintenance of the toilet block, specifically in relation to the absence of a handrail on a step leading to the entrance.
The central legal issue before the High Court was whether the Council had breached its duty of care to lawful visitors, such as Mr. Hope, by failing to provide a handrail. This required the Court to consider the scope of the duty of care owed by a landowner to persons entering their land, and the principles governing the assessment of whether a particular omission constitutes negligence. The Court had to determine if the risk of injury from the step was reasonably foreseeable and, if so, whether the Council had taken reasonable precautions to avoid that risk.
The High Court, by majority, found that the Council was not liable. The majority reasoned that while the risk of someone tripping on the step was foreseeable, it was not a risk of such a nature that a reasonable landowner would be expected to guard against it by installing a handrail. The Court applied the principles established in *Wyong Shire Council v Shirt*, emphasizing that the probability of the risk occurring, the likely seriousness of the harm, and the burden of taking alleviating action are all relevant considerations. In this instance, the Court concluded that the step was not particularly dangerous, the likelihood of injury was low, and the cost and inconvenience of installing a handrail were disproportionate to the minimal risk.