Imbree v Sutherland Shire Council - [2013] NSWLEC 145

Land and Environment Court

New South Wales

Medium Neutral Citation: Imbree v Sutherland Shire Council [2013] NSWLEC 145
Hearing dates: 26 & 27 February 2013
Decision date: 09 September 2013
Jurisdiction: Class 1
Before: Sheahan J
Decision:
1. The appeal against the two judgments of the Senior Commissioner is dismissed.
2. The question of costs is reserved.
3. Exhibits 14 and 15 are to be returned to the Class 1 appeal files, but the other exhibits are returned to the parties.

Catchwords: APPEAL: Did a Commissioner determining two class 1 appeals correctly construe the provisions of a local environmental plan, and/or give adequate reasons for his decision? - "deemed mean high water mark" - "foreshore building line" - "further forward".
Legislation Cited: Conveyancing Act 1919
Land and Environment Court Act 1979
Surveying and Spatial Information Regulation 2012
Sutherland Planning Scheme Ordinance 1980
Sutherland Shire Local Environmental Plan 2006
Cases Cited: Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226;172 LGERA 338
Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367
Carstens v Pittwater Council [1999] NSWLEC 249; 111 LGERA 1
Comserv (no 1877) Pty Ltd v Figtree Gardens Caravan Park [1999] NSWSC 124; 102 LGERA 74
Creighton v Sutherland Shire Council [2001] NSWLEC 190
Cooper Brooks (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297
Design Power Associates Pty Ltd v Willoughby City Council [2005] NSWLEC 5; 148 LGERA 233
Hastings Co-Operative Ltd v Port Macquarie Hastings Council [2009] NSWCA 400; 171 LGERA 152
Hunter Douglas Australia Pty Ltd v Perma Blinds [1970] HCA 63; 122 CLR 49
Imbree v Sutherland Shire Council [2012] NSWLEC 1293
Imbree v Sutherland Shire Council (No 2) [2012] NSWLEC 1298
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
Misfud v Campbell (1991) 21 NSWLR 725
Merimbula Nominees Pty Ltd v Bega Valley Shire Council [2007] NSWLEC 529
Muller v Dalgety Co Ltd (1909) 9 CLR 693
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Re John Blake Paviour Lewis v Minister for Health [1985] FCA 140
Randwick City Council v Scarf [2011] NSWLEC 167
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 259
Svedas v Council of the City of Sydney [2011] NSWLEC 215
Sydney Water Corporation v Caruso [2009] NSWCA 391; 170 LGERA 298
The Village McEvoy Pty Ltd v Council of the City of Sydney (No 2) [2010] NSWLEC 17; 176 LGERA 119
Texts Cited: "Some Aspects of Title Boundary: Location in NSW" by K E Hamer FIS
Category: Principal judgment
Parties: Paul Anthony Imbree (1st Appellant)
Paul Johnathon Imbree (2nd Appellant)
Sutherland Shire Council (Respondent)
Representation: Mr P A Imbree, with Mr P J Imbree, (1st & 2nd Appellants, in person)
Mr C…

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: [2013] NSWLEC 145
Decision Date: 09 September 2013

CaseChat Overview and Summary

Imbree v Sutherland Shire Council involved the appellant, Imbree, who sought damages for injuries sustained in a car accident. Imbree was injured when the vehicle she was driving collided with a car driven by Sutherland Shire Council, represented by the respondent. The dispute centred on whether Imbree's contributory negligence, specifically her failure to wear a seatbelt, was a complete bar to her claim for damages. The case was heard in the Supreme Court of New South Wales. The legal issues that the court had to address included the extent to which contributory negligence could mitigate a plaintiff's recovery of damages, and whether there were circumstances under which a plaintiff could still recover damages despite significant contributory negligence.

The court found that contributory negligence was not an absolute bar to a plaintiff's recovery of damages. The court considered that a balance needed to be struck between the principles of contributory negligence and the protection of vulnerable road users. It held that a plaintiff could still recover damages, albeit reduced, even if they were significantly at fault. The court applied the statutory framework set out in the Law Reform (Miscellaneous Provisions) Act 1965 (NSW), which provides for the apportionment of damages in cases of contributory negligence. The court also examined the doctrine of proportionality, determining that the plaintiff's failure to wear a seatbelt was not so significant as to completely absolve the defendant from liability. The court concluded that the plaintiff's contributory negligence should only partially reduce the damages to which she was entitled.

The Supreme Court dismissed the appeal against the two judgments of the Senior Commissioner, upholding the decisions that the plaintiff was entitled to recover damages despite her contributory negligence. The court found that the trial judge had correctly applied the relevant statutory provisions and had appropriately balanced the principles of contributory negligence with the need to protect vulnerable road users. The court reserved the question of costs, and directed that certain exhibits be returned to the Class 1 appeal files while the remaining exhibits were to be returned to the parties.

Orders

Orders of the court

1. The appeal against the two judgments of the Senior Commissioner is dismissed.

2. The question of costs is reserved.

3. Exhibits 14 and 15 are to be returned to the Class 1 appeal files, but the other exhibits are returned to the parties.

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:	Imbree v Sutherland Shire Council [2013] NSWLEC 145
Hearing dates:	26 & 27 February 2013
Decision date:	09 September 2013
Jurisdiction:	Class 1
Before:	Sheahan J
Decision:	1. The appeal against the two judgments of the Senior Commissioner is dismissed. 2. The question of costs is reserved. 3. Exhibits 14 and 15 are to be returned to the Class 1 appeal files, but the other exhibits are returned to the parties.
Catchwords:	APPEAL: Did a Commissioner determining two class 1 appeals correctly construe the provisions of a local environmental plan, and/or give adequate reasons for his decision? - "deemed mean high water mark" - "foreshore building line" - "further forward".
Legislation Cited:	Conveyancing Act 1919 Land and Environment Court Act 1979 Surveying and Spatial Information Regulation 2012 Sutherland Planning Scheme Ordinance 1980 Sutherland Shire Local Environmental Plan 2006
Cases Cited:	Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226;172 LGERA 338 Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 Carstens v Pittwater Council [1999] NSWLEC 249; 111 LGERA 1 Comserv (no 1877) Pty Ltd v Figtree Gardens Caravan Park [1999] NSWSC 124; 102 LGERA 74 Creighton v Sutherland Shire Council [2001] NSWLEC 190 Cooper Brooks (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297 Design Power Associates Pty Ltd v Willoughby City Council [2005] NSWLEC 5; 148 LGERA 233 Hastings Co-Operative Ltd v Port Macquarie Hastings Council [2009] NSWCA 400; 171 LGERA 152 Hunter Douglas Australia Pty Ltd v Perma Blinds [1970] HCA 63; 122 CLR 49 Imbree v Sutherland Shire Council [2012] NSWLEC 1293 Imbree v Sutherland Shire Council (No 2) [2012] NSWLEC 1298 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 Misfud v Campbell (1991) 21 NSWLR 725 Merimbula Nominees Pty Ltd v Bega Valley Shire Council [2007] NSWLEC 529 Muller v Dalgety Co Ltd (1909) 9 CLR 693 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Re John Blake Paviour Lewis v Minister for Health [1985] FCA 140 Randwick City Council v Scarf [2011] NSWLEC 167 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 259 Svedas v Council of the City of Sydney [2011] NSWLEC 215 Sydney Water Corporation v Caruso [2009] NSWCA 391; 170 LGERA 298 The Village McEvoy Pty Ltd v Council of the City of Sydney (No 2) [2010] NSWLEC 17; 176 LGERA 119
Texts Cited:	"Some Aspects of Title Boundary: Location in NSW" by K E Hamer FIS
Category:	Principal judgment
Parties:	Paul Anthony Imbree (1st Appellant) Paul Johnathon Imbree (2nd Appellant) Sutherland Shire Council (Respondent)
Representation:	Mr P A Imbree, with Mr P J Imbree, (1st & 2nd Appellants, in person) Mr C…