Ku-Ring-Gai Council v Bonnici & Anor

[2003] HCATrans 357

[2003] HCATrans 357

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S380 of 2002

B e t w e e n -

KU-RING-GAI MUNICIPAL COUNCIL

Applicant

and

JOSEPH ANTHONY BONNICI & SHERYLL ANN BONNICI

Respondents

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 SEPTEMBER 2003, AT 9.38 AM

Copyright in the High Court of Australia

MR G.A. FLICK, SC:   May it please your Honours, I appear for the applicant with MR A.M. PICKLES.  (instructed by Abbott Tout)

MR P.C. TOMASETTI:   May it please your Honours, I appear for the respondent with my learned junior, MR M.C. FRASER.  (instructed by Hunter Lawyers)

GLEESON CJ:   Yes, Dr Flick.

MR FLICK:   Your Honour, the point involved in the case is within a very narrow compass.  What is involved is yet another case in which a local council seeks to contend that the extent of the duty imposed upon it is a duty simply to take reasonable steps to remedy a problem.

The liability was said to arise by reason of water coming down the hill and into the resident’s property.  The trial judge made findings of fact, which we do not, obviously, dispute.  The trial judge said that that water constituted a nuisance.  The Court of Appeal said that although the Council was not the occupier, it was in a position akin to an occupier, and hence assumed liability.  We say that it may be akin to an occupier, but it only has the task of performing its statutory functions in a manner in accordance with law.

GLEESON CJ:   That might be an interesting question, Dr Flick, but to a large extent the decision of the Court of Appeal turned on the litigious history of the matter, did it not?  Concessions that had been made, orders that had been made?

MR FLICK:   Yes.  There are two problems with the case.  One is the form of the orders made back in 1985, I think it was.

GUMMOW J:   11 November 1986.

MR FLICK:   1986, and, secondly, a finding by the Court of Appeal that there had been an admission that there was in fact a nuisance.  The latter is more easily addressed than the former.  To say that there is a nuisance does not tell you anything at all about the duty to remedy the nuisance, if there was an admission.  The former question, namely, whether the form of the order is a problem, can only be answered by saying that that form of order was directed to the facts which were then before the court.  The facts which were before the court back in 1985/1986 were simply:  water being diverted from the street, down the common boundary of the two properties, and being discharged through an open pipe.

GUMMOW J:   Do we have a copy of Justice Smart’s orders?  Do they appear anywhere?

MR FLICK:   Thy are set out, your Honour, in the Court of Appeal’s reasons.  If your Honour turns to page 83 of the application book, your Honour will see the orders set out.  They are the ones made in September 1985.  Then, at page 84, the court sets out some observations of Justice Smart.

GUMMOW J:   But there were more orders in November 1986, a series of consent orders.

MR FLICK:   Yes, your Honour.  Yes, there is a series of consent orders, but if I can focus your Honour’s attention upon the one which probably creates the greatest problem, and that is the one at page 83:

The Defendant its servants and agents be restrained from permitting, allowing or causing the flow of water –

onto the property –

so as to create a nuisance.

Order 3 assumes some prominence.  That is the one which said there was an open pipe between the two adjoining properties.  That pipe, in accordance with standard practice at the time it was constructed, was left open so the water came down the street, through the open pipe and discharged over what was then vacant land.  What happened after that was that work was carried out to enclose that pipe, to divert the water around the rear boundary of the resident’s property, and the water was thereby diverted.

GUMMOW J:   We would have to immerse ourselves in this litigious mess.

MR FLICK:   We would say no, your Honour.  We would say that all that the Court needs to do is to look at page 82 ‑ ‑ ‑

GUMMOW J:   Which you brought on your head.

MR FLICK:   With respect, your Honour, the answer has to be this.  What the Court should look at is page 82 of the application book and the findings made by the trial judge at paragraphs 153 to 157.  What the Court would do would be to start from the premise that water enters the premises from those sources.  What the Court would then be invited to do, if leave were granted, would be to look at page 85 of the application book, where Justice Meagher observed that we cannot rely upon the Roads Act, because, even though we were not the occupier, we were in the same position of the occupier, and his Honour picks up the observations of Justice Hayne.  What the Court would be invited to do would be to say that the Council is not the occupier; it is the Roads Authority.  What is the duty of an occupier, or person akin to an occupier, to remedy water coming from the street?

GLEESON CJ:   Is that diagram on page 56 what shows the flow of the water?  Those arrows show the flow of the water, do they?

MR FLICK:   Yes, your Honour.

GLEESON CJ:   Is that where the Anglican church is, near the word “cemetery”?

MR FLICK:   Yes.

GLEESON CJ:   That is very steep land.

MR FLICK:   Yes, it is described by the trial judge, your Honour.  I think he describes it in terms of being steeper towards the Pacific Highway and then levelling off.  The reason why the Roads Act assumed the eminence it did was because there was no allegation that we actually built the road, so the liability which is being imposed upon the Council is a liability to prevent a nuisance which the Council did not cause.  If your Honours look back to Romeo v Conservation Commission and Justice Hayne’s judgment ‑ ‑ ‑

GUMMOW J:   Was that point run at trial at any stage?

MR FLICK:   Yes.  What was run at trial, your Honour, was that we said it would be anomalous if a plaintiff could impose a greater liability upon a statutory authority and compel it to perform its functions – it would be anomalous if a different result would follow if it was pleaded in nuisance, as opposed to negligence.  What we were putting to the Court of Appeal was that the only responsibility of the Council was not as an occupier, and, indeed, that is the very reason the Roads Act says we are not the occupier.  What we were saying was, because we were not the occupier, the only thing that we had to do was to exercise our functions in a reasonable way.

GLEESON CJ:   But that was overtaken by some orders, was it not?

MR FLICK:   It was preceded by the 1985/1986 orders, yes.  What we were putting to the trial judge and to the Court of Appeal was that this Court, in Romeo’s Case, Brodie’s Case, Nagle’s Case, and so on, all cases involving negligence – what we were putting was that the liability in nuisance was the same now as it is in negligence, and what we were inviting

the trial judge to do was to say, you have to make some findings as to what is reasonable, accepting that there is a duty to do something, accepting that there is a duty, not simply because we have the power to fix the problem, but accepting that there is a duty to do something.  What is the content of that duty?

Evidence was before the trial judge as to the priorities which councils gave to fixing problems.  There were priorities in terms of water entering premises; there was evidence as to the relevant standards being followed by the Council when it was performing work; there was evidence before the trial judge as to competing demands upon the resources of the Council; and what we were asking the trial judge to do was to say, accepting that the Council has to do something, was what it did reasonable?  It would anomalous if a liability could now be imposed upon local authorities by way of nuisance for exactly the same set of facts as could also be pleaded in negligence, which this Court has said is to be resolved differently.

The form of the orders made in 1985/1986 we said could not dictate the facts which followed after 1985/1986.  Work was done after the form of orders were entered.  We said that there was different work, there was a different nuisance, and no comfort could be taken from the resident by reason of the form of orders entered in respect to a different nuisance, namely, water entering from an open pipe.  Your Honour, that is the central issue involved in the case.  The outline of submissions and the summary of argument address some other issues as well, which we say are important ‑ ‑ ‑

GLEESON CJ:   That is the liberty to apply?

MR FLICK:   Finality of litigation and the like, but the principal issue is, can a plaintiff impose an absolute liability to fix a problem upon a local authority, where the local authority has not caused the problem in the first place, and that the only task and function of the Council is to exercise its powers and functions conferred by a statute.  That is the principal issue involved in the case and it not resolved by the form of orders, or by any admission directed to a different nuisance.  We are grateful to your Honours.

GLEESON CJ:   Thank you, Dr Flick.  We do not need to hear you, Mr Tomasetti.

The decision of the Court of Appeal on both of the issues in the case, that is to say, the substantive liability of the applicant in nuisance and the procedural question of the effect of liberty to apply turned largely on the particular facts and circumstances, including the previous litigious history of the matter.

Accordingly, the case raises no question of law of general importance and is not a suitable vehicle for resolution of the legal issues that the applicant seeks to ventilate.  Special leave is refused with costs.

AT 9.50 AM THE MATTER WAS CONCLUDED