Wollongong City Council v Papadopoulos

The appeal in *Wollongong City Council v Papadopoulos* concerned a dispute between the Wollongong City Council and Ms Papadopoulos, who operated a kiosk on premises licensed from the Council. Ms Papadopoulos alleged that the Council had breached their licence agreement, leading to economic loss. The primary judge had awarded damages based on Australian Taxation Office (ATO) "benchmarks" for restaurant businesses, a decision challenged by the Council.

The Court of Appeal was required to determine whether the primary judge erred in taking judicial notice of ATO benchmarks to calculate damages for lost profits, and whether these benchmarks were sufficiently robust to sustain the damages awarded. Additionally, the Court considered whether the primary judge's course of action in assessing damages after reserving judgment, despite inviting further submissions from the Council's counsel who declined to participate, constituted a denial of procedural fairness.

The Court held that the primary judge had erred in taking judicial notice of the ATO benchmarks, as these were not matters of common knowledge and required expert evidence to be properly understood and applied. The Court found that the benchmarks, as used, were incapable of sustaining the damages calculated by the primary judge. Furthermore, while the Council's counsel had declined opportunities to make further submissions, the Court acknowledged the potential for procedural unfairness in the circumstances.

Consequently, the Court allowed the appeal in part, setting aside the original judgment for Ms Papadopoulos and ordering that the proceeding be remitted to the District Court for a further hearing solely on the issue of damages. No order was made as to the costs of the appeal, with the Council to bear its own costs.