Warren Shire Council v Kuehne

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.