Redland City Council v Kozic & Ors - [2023] HCATrans 116

[2023] HCATrans 116

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B17 of 2023

B e t w e e n -
REDLAND CITY COUNCIL
Appellant
and
JOHN MICHAEL KOZIK
First Respondent
SIMON JOHN AKERO
Second Respondent
SARAH AKERO
Third Respondent
NEIL ROBERT COLLIER
Fourth Respondent

GAGELER J
GORDON J
EDELMAN J
STEWARD J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 13 SEPTEMBER 2023, AT 10.01 AM

____________________

MR J.M. HORTON, KC: If it please the Court, I appear with my learned friend MS E. HOIBERG for the appellant. (instructed by Gadens Lawyers)

MR J.T. GLEESON, SC: May it please the Court, I appear with MR A.M. HOCHROTH for the respondents. (instructed by Shine Lawyers)

MS R.C.A. HIGGINS, SC: May it please the Court, I appear with my learned friend MR J.G. WHERRETT on behalf of the Attorney-General of the Commonwealth intervening. (instructed by Australian Government Solicitor)

MR G.J.D. DEL VILLAR, KC, Solicitor‑General of the State of Queensland: May it please the Court, I appear with my learned friends, MS F.J. NAGORCKA and MR M.J. HAFEEZ-BAIG, on behalf of the Attorney‑General of the State of Queensland intervening. (instructed by Crown Law (QLD))

GAGELER J: You need leave, or at least partial leave?

MR DEL VILLAR: If leave is necessary, your Honours, we would seek that.

GAGELER J: You have that leave on the basis that you are limited to your estimate of 20 minutes.

MR DEL VILLAR: Yes, your Honour.

GAGELER J: Thank you. We move to you, Mr Horton.

MR HORTON: Your Honour should have received orders in times for the plan for oral address with the plan to finish tomorrow. Can I inquire: have your Honours received the outline of oral argument for the appellant that should have been filed – thank you. Your Honours, this appeal invites this Court to apply defence, which has already been recognised in connection with restitutionary claims, for private transactions. We invite its application to claims involving those for return of wrongly levied imposts by public authorities.

The principled statement of defence in contract cases readily permits its application in this different context, and we accept it is a different context, but because the defence grew up in a time of implied and quasi‑contract as the underlying rationale, and because the circumstance of his application had been very frequent in contractual settings, we would urge a focus on the principled articulation of the defence, and not the language of contract, which, quite understandably, we say, occasionally dominates the application of the discussion and application of the defence in particular cases.

EDELMAN J: I do not think, Mr Horton, anyone is using consideration in the contractual sense. I do not think there is any – there does not seem to be any confusion in any of the submissions in that regard.

MR HORTON: In our respectful submission, it does permeate what is put against…

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: [2023] HCATrans 116
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Redland City Council from a decision of the Queensland Court of Appeal. The dispute concerned the Council's liability for damages arising from the death of Mr. Kozic, who was fatally injured when his vehicle collided with a tree on a road within the Council's jurisdiction. Mr. Kozic's widow and children (the respondents) brought proceedings against the Council alleging negligence in its maintenance of the road and the verge.

The central legal issue before the High Court was whether the Council owed a duty of care to road users, such as Mr. Kozic, in relation to the maintenance of the road and its verge, and if so, whether that duty had been breached. Specifically, the Court had to determine whether the Council's statutory powers and functions relating to the construction and maintenance of roads imposed a positive duty to take reasonable steps to prevent foreseeable harm to road users from hazards on the road or its verge, including trees.

The High Court, by majority, held that the Council did owe a duty of care to road users to take reasonable steps to prevent foreseeable harm arising from hazards on the road or its verge. The Court reasoned that the Council's statutory responsibility for the construction and maintenance of roads carried with it a common law duty to exercise reasonable care for the safety of those who used those roads. This duty extended to identifying and mitigating foreseeable risks, such as the danger posed by a tree situated close to the roadway that could cause injury in a collision. The Court found that the Council had failed to establish that it was immune from liability under the relevant legislation, and that the question of whether the Council had breached its duty of care and whether that breach caused Mr. Kozic's death should be remitted for determination at trial.

The High Court allowed the appeal in part, setting aside the orders of the Queensland Court of Appeal and remitting the proceeding to the Supreme Court of Queensland for trial on the issues of breach of duty and causation.

Orders