Warren Shire Council v Kuehne - [2012] NSWCA 81

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Warren Shire Council v Kuehne & Anor [2012] NSWCA 81
Hearing dates: 6 February 2012
Decision date: 16 April 2012
Before: McColl JA at [1]
Whealy JA at [2]
Sackville AJA at [184]
Decision:
(1) Appeal allowed.
(2) Set aside judgment of Elkaim DCJ.
(3) Verdict and judgment for the appellant.
(4) Respondents to pay the appellant's costs of the proceedings and of the appeal.
(5) Respondents, if qualified, to have a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the costs of the appeal.
(6) Cross appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
TORTS - Appeal - negligence - common law duty of care - s 33 Companion Animals Act 1998 (NSW) - whether local council owed a duty to residents to declare a dog "dangerous" - Stuart v Kirkland-Veenstra - whether a special statutory power - relationship between council and residents created by special statutory power - degree of control exercised by council - vulnerability of those who depend on proper exercise of statutory power.

TORTS - Appeal - negligence - breach of duty - whether hunting dogs inherently "dangerous" for the purposes of s 33 Companion Animals Act 1998 - whether hunting dogs had previously attacked "without provocation" - s 43A Civil Liability Act 2002 - exercise of "special statutory power" - whether dogs had "repeatedly" threatened to attack or "repeatedly" chased people - Wednesbury unreasonableness standard - whether council's failure to declare dog(s) dangerous so unreasonable no authority possessed of special statutory power could properly consider omission to be reasonable - s 44 Civil Liability Act 2002.
DAMAGES - Appeal - s 15 Civil Liability Act 2002 - meaning of "dependents" - s 15B(2)(a) Civil Liability Act 2002 - whether services needed to be provided to a class of dependents to claim gratuitous domestic services.
Legislation Cited: Civil Liability Act 2002 (NSW) - s 5B, s 5D, s 5E, s 15B, s 33, s 43, s 43A and s 44
Companion Animals Act 1998 (NSW) - s 8, s 9, s 10, s 10A, s 11, s 13, s 14, s 15, s 16(3), s 18, s 21, s 23, s 33, s 34, s 36, s 51, s 52
Local Government Act 1993 (NSW) Ch 12 Part 3
Supreme Court Act 1970 (NSW) - s 65, s 69
Cases Cited:
Allianz Australia Insurance Ltd v Roads and Traffic Authority of NSW [2010] NSWCA 328
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Brodie v Singleton Shire Council [2001] HCA 29,

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: [2012] NSWCA 81
Decision Date: 16 April 2012

CaseChat Overview and Summary

The appeal before the Court of Appeal of New South Wales concerned a claim in negligence brought by residents against Warren Shire Council. The residents alleged that the Council owed them a duty of care to declare certain hunting dogs as "dangerous" under the *Companion Animals Act 1998* (NSW). The dispute centred on the Council's failure to exercise this statutory power and the alleged consequences of that omission.

The Court was required to determine whether the Council owed a common law duty of care to the residents in relation to the exercise of its powers under the *Companion Animals Act 1998*. Specifically, the Court considered whether the statutory power to declare a dog dangerous created a sufficient relationship between the Council and residents to found such a duty, drawing on principles from *Stuart v Kirkland-Veenstra*. Further issues included whether the Council's failure to declare the dogs dangerous was so unreasonable as to be *Wednesbury* unreasonable, and the interpretation of "dependents" and the provision of gratuitous domestic services under the *Civil Liability Act 2002* (NSW).

The Court allowed the appeal, setting aside the judgment of the primary judge and entering a verdict and judgment for the appellant, Warren Shire Council. The Court found that the Council did not owe a common law duty of care to the residents in the circumstances. The reasoning involved an analysis of the nature of the statutory power and the degree of control exercised by the Council, concluding that the relationship did not give rise to the requisite duty. The cross-appeal was dismissed.

Orders

Orders of the court

(1) Appeal allowed.

(2) Set aside judgment of Elkaim DCJ.

(3) Verdict and judgment for the appellant.

(4) Respondents to pay the appellant's costs of the proceedings and of the appeal.

(5) Respondents, if qualified, to have a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the costs of the appeal.

(6) Cross appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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.

Medium Neutral Citation:	Warren Shire Council v Kuehne & Anor [2012] NSWCA 81
Hearing dates:	6 February 2012
Decision date:	16 April 2012
Before:	McColl JA at [1] Whealy JA at [2] Sackville AJA at [184]
Decision:	(1) Appeal allowed. (2) Set aside judgment of Elkaim DCJ. (3) Verdict and judgment for the appellant. (4) Respondents to pay the appellant's costs of the proceedings and of the appeal. (5) Respondents, if qualified, to have a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the costs of the appeal. (6) Cross appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TORTS - Appeal - negligence - common law duty of care - s 33 Companion Animals Act 1998 (NSW) - whether local council owed a duty to residents to declare a dog "dangerous" - Stuart v Kirkland-Veenstra - whether a special statutory power - relationship between council and residents created by special statutory power - degree of control exercised by council - vulnerability of those who depend on proper exercise of statutory power. TORTS - Appeal - negligence - breach of duty - whether hunting dogs inherently "dangerous" for the purposes of s 33 Companion Animals Act 1998 - whether hunting dogs had previously attacked "without provocation" - s 43A Civil Liability Act 2002 - exercise of "special statutory power" - whether dogs had "repeatedly" threatened to attack or "repeatedly" chased people - Wednesbury unreasonableness standard - whether council's failure to declare dog(s) dangerous so unreasonable no authority possessed of special statutory power could properly consider omission to be reasonable - s 44 Civil Liability Act 2002. DAMAGES - Appeal - s 15 Civil Liability Act 2002 - meaning of "dependents" - s 15B(2)(a) Civil Liability Act 2002 - whether services needed to be provided to a class of dependents to claim gratuitous domestic services.
Legislation Cited:	Civil Liability Act 2002 (NSW) - s 5B, s 5D, s 5E, s 15B, s 33, s 43, s 43A and s 44 Companion Animals Act 1998 (NSW) - s 8, s 9, s 10, s 10A, s 11, s 13, s 14, s 15, s 16(3), s 18, s 21, s 23, s 33, s 34, s 36, s 51, s 52 Local Government Act 1993 (NSW) Ch 12 Part 3 Supreme Court Act 1970 (NSW) - s 65, s 69
Cases Cited:	Allianz Australia Insurance Ltd v Roads and Traffic Authority of NSW [2010] NSWCA 328 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Brodie v Singleton Shire Council [2001] HCA 29,