Pyrenees Shire Council v Day

HIGH COURT OF AUSTRALIA

BRENNAN CJ,
TOOHEY, McHUGH, GUMMOW AND KIRBY JJ

PYRENEES SHIRE COUNCIL
(previously known as THE PRESIDENT,
COUNCILLORS & RATEPAYERS OF THE
SHIRE OF RIPON)  APPELLANT

AND

WILLIAM ROSS DAY & ANOR  RESPONDENTS

Pyrenees Shire Council v Day;
Eskimo Amber Pty Ltd v Pyrenees Shire Council (M57/1996) [1998] HCA 3
23 January 1998

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of Victoria

Representation:

B D Bongiorno QC with M L Warren for the appellant (instructed by Maddock Lonie & Chisholm)

G R Ritter QC with P J Riordan for the respondents (instructed by Oakley Thompson & Co)

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

HIGH COURT OF AUSTRALIA

BRENNAN CJ,
TOOHEY, McHUGH, GUMMOW AND KIRBY JJ

ESKIMO AMBER PTY LTD & ORS  APPELLANTS

AND

PYRENEES SHIRE COUNCIL
(previously known as THE PRESIDENT,
COUNCILLORS & RATEPAYERS OF THE
SHIRE OF RIPON)  RESPONDENT

23 January 1998
M59/1996

ORDER

1.    Appeal allowed with costs.

2.    Set aside paragraph 2 of the Orders of the Court of Appeal of the Supreme Court of Victoria and in lieu thereof order that:

(a)The appeal to that Court be allowed with costs;

(b)Order 4 of the Order of Judge Strong be set aside and in lieu thereof order:

(i)judgment for Eskimo Amber Pty Ltd against the Pyrenees Shire Council for the sum of $110,218 together with interest and costs of the proceedings before the County Court; and

(ii)judgment for George and Voula Stamatopoulos against the Pyrenees Shire Council for the sum of $58,000 together with interest and costs of the proceedings before the County Court; and

3.

3.Remit the matter to the Supreme Court of Victoria to make such order as it sees fit with respect to the interest and costs referred to in paragraph (b) of this Order.

On appeal from the Supreme Court of Victoria

Representation:

G R Ritter QC with P J Riordan for the appellants (instructed by Oakley Thompson & Co)

B D Bongiorno QC with M L Warren for the respondent (instructed by Maddock Lonie & Chisholm)

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Pyrenees Shire Council v William Ross Day & Anor
Eskimo Amber Pty Ltd & Ors v Pyrenees Shire Council

Negligence – Duty of care – Omission by public authority to exercise statutory powers – Absence of statutory duty – General reliance – Control – Reasonable foreseeability – Proximity – Policy considerations – Public duty – Mandamus – Whether municipal council under a public or common law duty to neighbouring property owners to take positive action to exercise its discretionary powers to notify of or remove fire-risks of which it is aware in order to prevent injury or property damage – Whether such duties are owed to occupiers.

Local Government Act 1958 (Vic), ss 695 (1A), 885, 891.

1. BRENNAN CJ.   Shortly…