Reported Decision: 150 LGERA 419 Appeal Outcome: Special leave application granted by the High Court - 3 August 2007
New South Wales
Court of Appeal
CITATION: North Sydney Council v Roman [2007] NSWCA 27 HEARING DATE(S): 10 October 2006
JUDGMENT DATE:
27 February 2007JUDGMENT OF: McColl JA at 1; Bryson JA at 127; Basten JA at 132 DECISION: 1. Allow the appeal; 2. Set aside the judgment in favour of the Respondent in the District Court and in lieu thereof enter judgment for the Appellant with costs; 3. The Respondent to pay the Appellant’s costs of the appeal; 4. The Respondent to have a certificate under the Suitors’ Fund Act 1951 (NSW). CATCHWORDS: NEGLIGENCE - roads - injury to pedestrian falling in pothole in road - liability of roads authority - failure to maintain road - whether immunity under s 45 Civil Liability Act 2002 (D) LEGISLATION CITED: Civil Liability Amendment (Personal Responsibility) Act 2002
Civil Liability Act 2002
Local Government Act 1993
Privacy and Personal Information Act 1998
Roads Act 1993
Transport Administration Act 1988
Securities Amendment Act 1988 (NZ)
Trade Descriptions Act 1968 (UK)CASES CITED: Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council [2001] HCA 29; (2001) 206 CLR 512
Crystal Wall Pty Limited v Pham [2005] NSWCA 449
Derbyshire County Council v Times Newspapers Ltd [1993] AC 534
Director General, Department of Education and Training v MT [2006] NSWCA 270
Director of Public Prosecutions Reference No 1 of 1996 [1998] 3 VR 352
Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367
Hill v Commissioner for Main Roads (1989) 68 LGRA 173; 9 MVR 45
Hodgson v Cardwell Shire Council [1994] 1 Qd R 357
Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21
Integral Energy Australia v EDS (Australia) Pty Ltd & Ors [2006] NSWSC 600
Leichardt Council v Serratore [2005] NSWCA 406
Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500
Port Stephens Council v Theodorakakis [2006] NSWCA 70
Port Stephens Shire Council & Anor v Tellamist P/L [2004] NSWCA 353; (2004) 235 LGERA 98
Porter v Lachlan Shire Council [2006] NSWCA 126
R v Commercial Industrial Construction Group Pty Ltd [2001] VSCA 181
R v Trade Practices Tribunal; Ex parte St George CC [1974] HCA 7; (1974) 130 CLR 533
Re Supply of Ready Mixed Concrete (No2), Director General of Fair Trading v Pioneer Concrete (UK) Ltd [1995] 1 AC 456
State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536
Tesco Supermarkets Ltd v Nattrass [1972] AC 153
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40PARTIES: North Sydney Council - Appellant
Maria Christina Roman - RespondentFILE NUMBER(S): CA 40098 of 2006 COUNSEL: R Sheldon - Appellant
S Norton SC and E E Welsh - RespondentSOLICITORS: Phillips…
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- Case
- [2007] NSWCA 27
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Appeal was whether the Council was immune from liability under section 45 of the *Civil Liability Act 2002* (NSW). This section provides a defence to a public authority for an alleged failure to exercise its functions in connection with the maintenance of a public road, unless certain conditions are met. The Court had to determine if the Council's conduct in relation to the pothole fell within the scope of this immunity.
The Court of Appeal allowed the appeal, setting aside the District Court's judgment. The Court reasoned that the Council had not been negligent in its maintenance of the road, and therefore the conditions for the application of section 45 of the *Civil Liability Act 2002* were not met in a way that would impose liability. The Court found that the Council had taken reasonable steps to inspect and maintain the road, and the existence of the pothole did not demonstrate a breach of its duty of care.
Consequently, the Court of Appeal entered judgment for the appellant, North Sydney Council, and ordered that the respondent pay the appellant's costs of both the appeal and the District Court proceedings. The respondent was also granted a certificate under the *Suitors' Fund Act 1951* (NSW).
Orders
Orders of the court
1. Allow the appeal; 2. Set aside the judgment in favour of the Respondent in the District Court and in lieu thereof enter judgment for the Appellant with costs; 3. The Respondent to pay the Appellant's costs of the appeal; 4. The Respondent to have a certificate under the Suitors' Fund Act 1951 (NSW).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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