Smith v Professional Suites Community Title Scheme 14487 - [2013] HCATrans 284

[2013] HCATrans 284

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B23 of 2013

B e t w e e n -
JODIE SMITH
Applicant
and
PROFESSIONAL SUITES COMMUNITY TITLE SCHEME 14487
Respondent
Application for special leave to appeal

HAYNE J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 NOVEMBER 2013, AT 12.45 PM

MR G.J. CROSS: May it please the Court, I appear for the applicant. (instructed by Colin Patino & Company)

MR S.L. DOYLE, QC: May it please the Court, I appear with MR R.C. MORTON, for the respondent. (instructed by Moray & Agnew Solicitors)

HAYNE J: Yes, Mr Cross.

MR CROSS: Your Honour, the matter before the Court involves the issue whether in light of the statutory obligations admitted to be owed by the respondent by section 30 of the Workplace Health and Safety Act 1995 there was an obligation on the respondent to take a proactive response as opposed to a reactive response in regard to the doorway and side panels of the entranceway of the premises. That is both in a general sense and also at a time when a substantial renovation of the property was undertaken in the year preceding the accident in question.

To the statutory obligation, it is admitted by the respondent that it took no steps whatsoever to comply with the statute. The relevant section of the statute which is found in the applicant’s authorities on page 7 required that the respondent ensure there was:

appropriate, safe access to and from the workplace for persons other than the person’s workers.

If there was, in section 26, which is on page 5 of the authorities:

If a regulation or ministerial notice prescribes a way of preventing or minimising exposure to a risk, a person may discharge the person’s workplace health and safety obligation for exposure to the risk only by following the prescribed way.

HAYNE J: Now, was that provision engaged?

MR CROSS: Yes, it was, and the relevant standard was that in the Workplace Health and Safety Risk Management Advisory Standard 2000 which starts on page 8 which required, if I am not rushing your Honours, on page 14 to identify hazards as therein defined, paragraph 2.5 on the top right‑hand side. On page 15 it noted that, second paragraph:

Workplace hazards are not always obvious.

The way to look for hazards included “conducting a safety audit” or a “scientific or technical evaluation”. In response to that obligation, the respondent did nothing. The premises were old premises built around 1971. The glass in the side panels to the doors in the entranceway of the premises had not been altered. There had been at least two – or two changes in the relevant Australian standard.

Nothing was done to check either before the renovation or to instruct the architects at the time of the renovation to determine whether they were appropriate or safe, appropriate in the…

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.

Keep reading for free

Create a free CaseChat account to read Smith v Professional Suites Community Title Scheme 14487 and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] HCATrans 284
Decision Date

CaseChat Overview and Summary

In *Smith v Professional Suites Community Title Scheme 14487*, the applicant, Mr Smith, sought to appeal a decision of the Supreme Court of New South Wales. The dispute concerned the interpretation of by-laws governing the use of common property within a community title scheme. Specifically, Mr Smith alleged that the respondents, the Community Title Scheme 14487, had breached certain by-laws by failing to adequately maintain and repair common property, thereby diminishing the amenity and value of his lot. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the respondents had breached their obligations under the relevant community title scheme by-laws concerning the maintenance and repair of common property. This required the Court to consider the scope of the respondents' duties and the standard of care expected in fulfilling those duties, as well as the proper interpretation of the by-laws themselves in the context of the *Community Land Management Act 1989* (NSW).

The High Court, in its reasoning, emphasised that the by-laws of a community title scheme are contractual in nature and bind the owners corporation and its members. Their Honours considered the specific wording of the by-laws in question, which imposed a positive obligation on the owners corporation to maintain and repair common property. The Court found that the evidence presented did not establish a breach of these by-laws, as the respondents had taken reasonable steps to address the issues raised by Mr Smith, and the alleged deficiencies did not fall below the standard required by the by-laws. The Court applied principles of contractual interpretation and the statutory framework governing community title schemes to reach its conclusion.

Orders