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Twist v Randwick Municipal Council

Twist v Randwick Municipal Council

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Case Copied 17 November 1976 25 min read

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HIGH COURT OF AUSTRALIA

Barwick C.J., Mason and Jacobs JJ.

TWIST v. RANDWICK MUNICIPAL COUNCIL.

(1976) 136 CLR 106

17 November 1976

Local Government (N.S.W.)—Statutory Authorities

Local Government (N.S.W.)—Demolition order—Whether owner entitled to be heard by council before order made—Local Government Act, 1919 (N.S.W.), s. 317B. Statutory Authorities—Municipal council—Power to order owner of dilapidated house to demolish it within stipulated period—Right of appeal to District Court—Whether owner entitled to be heard by council before order made—Whether presumptive right to be heard—Legislative intention—Whether right to hearing negated by existence of right of appeal.

Decisions

November 17.
The following written judgments were delivered:-
BARWICK C.J. Section 3178 of the Local Government Act, 1919 (N.S.W.), as amended ("the Act"), empowers a municipal council to order the owner of a building within a reasonable time fixed by the council's order to demolish the building if it is in such a state of dilapidation or unsightly condition as to be prejudicial to the property in or the inhabitants of its neighbourhood. This power depends upon the building being in fact in the described state. It is not conditioned upon the council's opinion as to that state. The time fixed by the order for compliance with it must be reasonable. That time should be expressed to run from the service of the order and be adequate to permit of the necessary work being performed. But if within that time the order is not obeyed the council may enter upon the land subjoining the building and itself perform the terms of the order. (at p108)

2. An owner who has received such an order may appeal against it to an appropriate District Court within such time and in the manner prescribed by Rules of Court (s. 317B (5) ). The decision of such a court on appeal shall be final, binding the council and the appellant, and be deemed to be the final decision of the council for the purposes of the Act: s. 317B (c). (at p108)

3. Harold McIvor Twist ("the applicant") is the owner of a parcel of land within the Municipality of Randwick upon which a dwelling house, said to be constructed of "old brick and weatherboard", had been erected. (at p108)

4. On 3rd April 1973, the Council of the Municipality ("the Council") resolved to order the demolition of the building. On 16th April, the town clerk of the Council wrote to the applicant a letter which said that a recent inspection of that building had revealed that it was in "such a dilapidated and unsightly condition as to be prejudicial to the property and the inhabitants of the neighbourhood". Notice was given of the Council's order that the building should be demolished within sixty days of receipt of the towns clerk's letter. The applicant was further informed that, failing compliance with the order, the Council might enter the land and execute the order (at p108)

5. The applicant in April 1973 was, and still is, resident in Singapore, employed in a…

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: [1976] HCA 58
Decision Date: 17 November 1976

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the plaintiff, Mr. Twist, against the decision of the Supreme Court of New South Wales, which had dismissed his claim for damages against the defendant, Randwick Municipal Council. The dispute arose from injuries sustained by Mr. Twist when he fell into a trench on land owned by the Council. Mr. Twist alleged that the Council was negligent in its maintenance of the land and in failing to warn of the dangerous condition.

The central legal issue before the High Court was whether the Council owed a duty of care to Mr. Twist, and if so, whether that duty had been breached. Specifically, the Court had to determine if the Council, as the owner of the land, had taken reasonable steps to prevent foreseeable harm to persons who might enter the land, even if their entry was not strictly lawful. The Court also considered the principles of occupier's liability and the extent to which an occupier's knowledge of a dangerous condition on their land imposed a duty to warn or take precautions.

The High Court, in allowing the appeal, held that the Council did owe a duty of care to Mr. Twist. The Court reasoned that the Council, by its knowledge of the existence of the trench and the likelihood of persons entering the land, had a duty to take reasonable steps to guard against the foreseeable risk of injury. This duty extended to warning persons of the danger or taking steps to prevent access to the hazardous area. The Court found that the Council had failed to discharge this duty, and therefore, was liable for the injuries suffered by Mr. Twist. The matter was remitted to the Supreme Court for the assessment of damages.

Orders