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North Sydney Council v Roman

North Sydney Council v Roman

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Case Copied 27 February 2007 85 min read

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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 2007

JUDGMENT 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 40

PARTIES: North Sydney Council - Appellant
Maria Christina Roman - Respondent

FILE NUMBER(S): CA 40098 of 2006

COUNSEL: R Sheldon - Appellant
S Norton SC and E E Welsh - Respondent

SOLICITORS: Phillips…

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: [2007] NSWCA 27
Decision Date: 27 February 2007

CaseChat Overview and Summary

In *North Sydney Council v Roman*, the Court of Appeal of New South Wales considered an appeal by North Sydney Council against a District Court judgment that had found the Council liable for injuries sustained by the respondent pedestrian who fell into a pothole in a road. The core of the dispute concerned the Council's alleged failure to maintain the road in a safe condition.

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

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.

Reported Decision:	150 LGERA 419
Appeal Outcome:	Special leave application granted by the High Court - 3 August 2007

CITATION:	North Sydney Council v Roman [2007] NSWCA 27
HEARING DATE(S):	10 October 2006
JUDGMENT DATE:	27 February 2007
JUDGMENT 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 40
PARTIES:	North Sydney Council - Appellant Maria Christina Roman - Respondent
FILE NUMBER(S):	CA 40098 of 2006
COUNSEL:	R Sheldon - Appellant S Norton SC and E E Welsh - Respondent
SOLICITORS:	Phillips…