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 69Cases 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,
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- Case
- [2012] NSWCA 81
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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