Local Government (N.S.W.)—Action against council or employee—Notice of action—Time for institution of action—Anything "done under this Act"—Employee in course of employment doing something lawful apart from provisions of Act—Local Government Act, 1919 (N.S.W.), s. 580 (1), (6).*

Decisions

April 26.
The following written judgments were delivered:-
BARWICK C.J., KITTO, TAYLOR AND OWEN JJ. The plaintiff, now the appellant, suffered personal injuries on 1st February 1960 as the result of a collision between a car driven by her husband in which she was a passenger and a truck belonging to the Blue Mountains City Council which was being driven by the defendant. The defendant was an employee of that Council, and earlier on the day in question he had been called upon by one of his superior officers to drive the truck from the Council's depot to a place where some high-tension wires, which were under the control and management of the Council, had fallen down, and to assist in carrying out the necessary repairs. This work having been done, he was driving the truck back to the depot when the collision in which the plaintiff was injured took place. In July 1963 the plaintiff instituted proceedings against the defendant in the District Court alleging that her injuries had been caused by the latter's negligent driving. The learned District Court judge found in the plaintiff's favour on the issue of negligence and assessed her damages at 1,500 pounds. He was of opinion, however, that the case was one to which s. 580 of the Local Government Act, 1919 (N.S.W.) applied, and since no notice of action had been given under that section, nor had the action been commenced within twelve months of the happening of the accident, he found for the defendant. (at p174)

2. Section 580 (1) is in these terms:

"A writ or other process in respect of any damage or injury to person or property shall not be sued out or served upon the council or any member thereof, or any servant of the council or any person acting in his aid for anything done or intended to be done or omitted to be done under this Act, until the expiration of one month after notice in writing has been served on the council or the member servant or person as provided in this section." (1961) 109 CLR 105

And by sub-s. (6), it is provided that:

"Every such action shall be commenced within the period of twelve months next after the occurring of the cause of action. . . ."

An appeal by the plaintiff to the Court of Appeal was dismissed (1967) 67 SR (NSW) 332; 85 WN (Pt 2) 104; 14 LGRA 64 and from that order of dismissal an appeal was brought to this Court. (at p175)

3. The question for decision is then whether the defendant, in driving…

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 Hudson v Venderheld

Details

AGLC: Hudson v Venderheld [1968] HCA 17
Case: [1968] HCA 17
Decision Date: 26 April 1968

CaseChat Overview and Summary

Hudson v Venderheld concerned a dispute between a vendor and a purchaser of land. The purchaser, Hudson, sought to terminate the contract of sale on the grounds that the vendor, Venderheld, had failed to provide a clear title to the property. The case was heard by the High Court of Australia.

The central legal issue before the High Court was whether the vendor had breached a condition of the contract requiring them to provide a title free from encumbrances. Specifically, the court had to determine if a registered easement, which benefited a neighbouring property, constituted an encumbrance that rendered the title defective for the purposes of the contract.

The High Court held that the registered easement did not constitute an encumbrance that entitled the purchaser to terminate the contract. The court reasoned that the easement was a registrable interest in land and, as such, was discoverable by the purchaser through a proper search of the title. The vendor was not obliged to disclose such matters, as they were matters of public record. The principle applied was that a vendor is only required to provide a title that is legally sound and not subject to undisclosed defects or unregistered encumbrances.

The High Court dismissed the purchaser's appeal, finding that the vendor had not breached the contract and that the purchaser was not entitled to terminate the sale.

Orders