Brodie v Singleton Shire Council
(2001) 206 CLR 512[2001] HCA 29
(2001) 75 ALJR 992
(2001) 180 ALR 145
[2001] Aust Torts Reports 81-607
(2001) 114 LGERA 235
(2001) 33 MVR 289
(Judgment by: Callinan J)
Between: Scott Munn Brodie and Anor - Applicants
And: Singleton Shire Council - Respondent
Between: Catherine Ghantous - Applicant
And: Hawkesbury City Council - Respondent
Judges:
Gleeson CJ
Gaudron J
McHugh J
Gummow J
Kirby J
Hayne J
Callinan J
Subject References:
NEGLIGENCE
HIGHWAYS
Injuries to user of highway
Liability of highway authority
Whether immunity under the 'highway rule'
Distinction between misfeasance and non-feasance
Duty of care
Statutory authority
Highway authority
Content of duty of care
Relevant considerations
NEGLIGENCE AND NUISANCE
Whether nuisance in relation to public authorities subsumed by the law of negligence
Immunity under 'highway rule'
Misfeasance and non-feasance
Whether liability subsumed in general principles of negligence
PRECEDENT
Stare decisis
High Court
Departure from previous decisions
Relevant considerations
highway rule
immunity
Legislative References:
Local Government Act 1919 (NSW) - ss 220-277B
Judgment date: 31 May 2001
Judgment by:
Callinan J
Catherine Ghantous v Hawkesbury City Council
Case history
340. The applicant, a woman of 63 years of age, on 10 July 1990, fell, after stepping from a concrete footpath on to an earthen verge in Kable St at Windsor in New South Wales. The concrete footpath was 1.2 m wide. The areas on either side of it had been earlier turfed. Traffic, wind and water had eroded the verges so that the earthen surface had subsided to a level about 50 mm or so below the level of the concrete strip. The applicant had seen two other women walking toward her. To allow them to pass she stepped to her right. She then fell "because her foot landed partly on the concrete strip and partly overhanging the lower earth surface". She suffered injuries in the fall in respect of which she claimed damages in the District Court of New South Wales.
341. A footpath had first been constructed in the location of the current one about 40 years earlier. No complaint had been made about it or the state of the concrete strip and verges which replaced it.
342. In 1984 the respondent Council, in whose local government area Windsor is situated, closed George St just around the corner from Kable St to create a pedestrian mall, and extended the paving of the new mall a short distance down Kable St. That paving extended from kerb to building alignment for some 2.5 m. A shopping centre and parking lot were also constructed at the other end of the footpath in Kable St and were opened for business a year later in 1985.
343. There was evidence that the stretch of narrow concrete was almost the only narrow stretch left in the central business district of Windsor. The shopping centre and the mall inevitably generated some increased pedestrian traffic but that had occurred to a relatively limited extent only.
344. In the originating proceedings the applicant sued the architects and landscape designers who were responsible for the design of the mall as well as the respondent Council. The case against the last was put principally upon the basis that it had failed to ensure that the design and construction of the mall were not such as to cause soil erosion of the kind that had occurred. The other two defendants were alleged to have been similarly negligent in designing, and in the case of the landscape designers, in the construction also of the mall. One particular of negligence alleged against the respondent was in this form:
"The [respondent] ... [k]new or should have known that the redesign and reconstruction work involved in the Shopping Centre, Mall and consequent reconstruction of the Footpath and Guttering would lead to increased pedestrian usage of the area of the Footpath in question and its surrounds."
345. The applicant also pleaded that the respondent had committed a nuisance in causing or allowing the verges to deteriorate. The respondent denied that it had been negligent in any way and that the applicant was entitled to the relief sought. The respondent also pleaded that the applicant's injuries were caused or contributed to by her own negligence, in failing, in effect, to look where she was walking.
346. The case against the other defendants at the trial was shown to be unsustainable: it was clearly established and accepted by the applicant that there was no such increase in water flowing from the mall as to cause erosion of the verge where the applicant fell. Judgment was entered for those defendants.
347. The trial judge found that the combination of erosion and increased foot traffic between the mall and the parking station and the shopping centre acted upon the grass verges of the footpath to cause weathering and the subsidence that had taken place on either side of the concrete strip.
348. An expert called by the respondent at the trial gave evidence that it was poor maintenance to allow the surfaces alongside the concrete strip to deteriorate to the extent to which they had, and that in their current condition they were a hazard to a person stepping, as the applicant did, to one side.
349. The applicant submitted at the trial (to preserve her rights on appeal) that there was no longer, or there should no longer be, a distinction between non-feasance and misfeasance and that as a highway authority the respondent should be liable for both.
350. In argument at the trial the applicant had submitted that the mall generated additional foot traffic to the extent that the natural and necessary consequence of that traffic was the erosion of verges giving rise to the difference in levels which was the hazard to which the applicant fell victim. The trial judge posed for himself this question: "Could Council's failure to keep the [verges] in adequate repair or, with foresight to avoid such degeneration by laying an adequate footpath be said to be a misfeasance?"
351. His Honour declined to distinguish between a footpath and the vehicular carriageway. The former was part of the road. It was unnecessary for his Honour to deal with the respondent's case that it had not been negligent and that the applicant's fall was caused by her own negligence. His Honour answered the question that he had posed for himself by holding that this was a case of non-feasance and he was accordingly bound to dismiss the applicant's action.
In the Court of Appeal of New South Wales
352. An appeal to the Court of Appeal of New South Wales (Handley, Powell and Giles JJA) was dismissed [F555] . Powell JA (with whom the other members of the Court agreed) did not doubt that the works on the footpath were carried out in a proper and workmanlike manner [F556] . His Honour noted that there was no obligation upon road authorities to monitor roads and that an immunity in this respect negated a general duty to repair, and further, any specific obligations to exercise care with respect even to known dangers. His Honour's reasons included this [F557] :
"[T]he law is clear that, in order that it might be charged with misfeasance, a road authority must have been an active agent in creating, or adding to, an unnecessary danger in the highway (see, for example, Buckle v Bayswater Road Board [F558] ; Bretherton v Hornsby Shire Council [F559] ) and the findings of fact made by Freeman DCJ demonstrate clearly that the respondent has taken no action in relation to the footpath at the site of the accident which created or added to an unnecessary danger."
353. The applicant had also argued on the appeal as she had at the trial, that the footpath was not part of the road and that any immunity that a road authority enjoyed did not extend to it. The submission was made without reference to the Local Government Act 1919 (NSW) ("the Act"). It was rejected on the basis that authority [F560] supported the conclusion that a footpath formed part of the road reserve and that an immunity for non-feasance extended to it. The appeal was dismissed and a cross-appeal on an issue as to costs with which this Court is not concerned was upheld.
The application to this Court
354. An application for special leave was made to this Court.
355. In my opinion the application should fail at the outset. The respondent has not abandoned its contention that it was not negligent, whether as a highway authority or otherwise [F561] . Even if I were to assume that an action in negligence lay against the respondent for any failure to maintain or improve the footpath to keep or make it safe, whether as a matter of misfeasance or otherwise, I would conclude that there was no failure in that regard because the footpath was not, despite what the expert witness was allowed to say, unsafe. The case of the applicant in negligence was that a differential in height between the concreted part of the footpath and the earthen part of it created a dangerous situation. A court is not obliged to accept an expert, especially when his or her evidence is evidence purportedly resolving and concluding an issue of the kind which arose here [F562] . A court is not bound to accept that a matter of ordinary observation such as the readily apparent state of the footpath is a matter calling for expert opinion. But in any event the expert's opinion (uncontradicted as it was) did not go so far as to say that the "poor maintenance" which caused the "hazard" actually caused one of such a nature that to leave it unrectified was negligent. There was no concealment of the difference in height. It was plain to be seen. The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this. The applicant herself admitted in cross-examination that she knew before the day of the accident that the earthen surface was lower than the concrete surface. The photographs tendered at the trial clearly show that there was a discernible difference between the kerb and the earthen verges. There was no negligence on the part of the respondent either in the construction of the footpath or in not keeping the concrete strip and verges level.
356. In deference to the other arguments of the applicant I will say something briefly about them. The first of these was again that the footpath was an area apart from the road and was not something to which the law relating to road authorities applied. The inclusive definitions in s 4 of the Act, however, of "Pathway" [F563] , "Road" [F564] and "Public road" [F565] provide a complete answer to this.
357. The legal question that was argued was that the respondent owed a duty to the applicant to make the footpath safe (on the assumption that it was unsafe at the material time).
358. The applicant submitted that although the respondent pursuant to s 240(1)(a) [F566] of the Act had power to, but was not obliged to construct and maintain roads, Buckle v Bayswater Road Board [F567] stands as authority for the proposition that a positive obligation may be inferred from statutory provisions apparently permissive in language. However, the sections of the Act upon which the applicant relies in this case are the same as those referred to by the applicant in Brodie v Singleton Shire Council [F568] . They do not, as I point out in that case, have the effect for which the applicant here contends. Both Buckle and Gorringe v The Transport Commission (Tas) [F569] have been consistently applied in all the States [F570] . I do not think that it is for this Court to devise a different rule which could have financial and other ramifications far beyond those of which this Court might be aware.
359. The applicant also submitted that she was a person within the class of persons to whom a duty was owed as formulated in Pyrenees Shire Council v Day [F571] .
360. In support of this proposition the applicant relied in particular on a passage in the judgment of Gummow J [F572] :
"The general rule is that 'when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered' [F573] . A public authority which enters upon the exercise of statutory powers with respect to a particular subject matter may place itself in a relationship to others which imports a common law duty to take care which is to be discharged by the continuation or additional exercise of those powers [F574] . An absence of further exercise of the interconnected statutory powers may be difficult to separate from the exercise which has already occurred and that exercise may then be said to have been performed negligently [F575] . These present cases are of that kind. They illustrate the broader proposition that, whatever its further scope, Lord Atkin's formulation in Donoghue v Stevenson [F576] includes 'an omission in the course of positive conduct ... which results in the overall course of conduct being the cause of injury or damage' [F577] ."
In my opinion Pyrenees cannot be regarded as an authority governing this case. It was not concerned with the use and maintenance of roads. No matter what might be thought of the singling out for special treatment in law of what road authorities may or may not do in relation to roads, without rendering them liable to users of them, the distinction between roads and other works is very well entrenched in this country. Legislatures in expressing the powers and duties of road authorities to construct and maintain roadworks must have been well aware of this. As Latham CJ said in Buckle [F578] : "[T]he rule of non-liability for non-feasance in the case of a highway authority must be regarded as fully established." And Dixon J in the same case said [F579] : "But the existence of such powers gives rise to no civil liability for the consequences of the defective state of a road."
361. There are further real points of distinction between this case and Pyrenees: the statutory framework governing the Council's powers in issue there as summarised by McHugh J [F580] was quite different from the way in which Councils' powers in respect of roads are expressed and have been understood and construed in the cases. Furthermore the Council there had actual knowledge of the dangers that the premises which had been inspected by it presented.
362. In Buckle, Dixon J re-examined many of the earlier cases in which the extent of a highway authority's obligations and the availability of a defence of non-feasance were considered. Some of these cases might be properly regarded as cases of nuisance rather than of negligence. Indeed Buckle itself may have been such a case, although the narrative in the report refers in terms to negligence [F581] . Their Honours who decided Buckle would have been alive to the different elements of the torts. The statements of principle were, however, unqualified and establish that a highway authority will not be liable for non-feasance for roadworks whether what has occurred has resulted from negligence or nuisance properly so called.
363. It is true that the distinction between non-feasance and misfeasance has often been criticised. Some of these criticisms were echoed in the submissions [F582] of the applicants in Brodie v Singleton Shire Council which was argued at the same time as this case, that the distinction between misfeasance and non-feasance has led to the drawing of fine distinctions between roadworks and other works on or about them. So much may be accepted but that is no more than to say that such cases [F583] are no different from many other cases in tort, in which difficult questions of fact have to be answered. It should not be overlooked that in this country road authorities are called upon to construct and maintain roads over vast distances and at great cost, roads whose use is not necessarily confined to those who pay for them. This is no doubt a powerful policy consideration operating on the minds of legislators in enacting legislation in respect of road authorities.
364. That the rule and the distinction may have been heavily criticised does not avail the applicant. The legislature here has not chosen to abolish or change the rule as has occurred, for example, in the United Kingdom where the Parliament there passed the Highways Act 1980 (UK) to impose a duty to maintain highways at public expense (s 41) upon road authorities, and to prescribe the conditions for a successful defence to an action by such an authority (s 58). This is a case of deterioration over time of works which were not originally improperly designed or executed and of a kind to which Dixon J referred in Buckle [F584] as not giving rise to any civil liability on the part of the respondent.
365. Non-feasance by a Council empowered, but not obliged, to monitor roadworks as the respondent was, is not actionable by a person injured as a result of it in this country.
366. I would allow the application for special leave to appeal and dismiss the appeal with costs.
Scott Munn Brodie and Anor v Singleton Shire Council
Case history
367. This and the application for special leave in Ghantous v Hawkesbury City Council were argued at the same time. The facts may be shortly stated. On 19 August 1992, the first applicant drove a truck which was owned by the second applicant on to a bridge constructed within the respondent's locality some 50 years earlier. It was designed to bear a load of 15 tonnes. The truck weighed 22 tonnes. The first applicant a short time before approaching the bridge in question had safely driven the truck across another bridge on the same road which had been signposted as having a capacity of 15 tonnes only. The timber girders of the second bridge failed and it collapsed. The truck fell to the creek bank below. The truck was damaged and the first applicant injured. The applicants sued in the District Court of New South Wales. The case was heard by Tapsell ADCJ who held the case to be one of misfeasance and awarded the applicants a total of almost $400,000 in damages.
368. The history of the bridge was that the planks in it had been replaced from time to time. In the ordinary course, in recent times it would have been inspected about four times a year and "minor components" in it such a decking or hand railings, if found to be defective, replaced. The trial judge made a finding that the planking was repaired six times between March 1986 and July 1991. An inspection of the bridge had been made in 1991 for the purpose of determining whether a crane of 20 tonnes might safely cross over it. It was so determined and a crane of that weight crossed the bridge without incident. His Honour held that, in July 1991, on the last occasion of the repair of planking, the respondent should have discovered the defects that led to the collapse of the bridge, although it was not the planking of the bridge but the supporting girders that were defective and failed. For these reasons he gave judgment for the applicants.
The appeal to the Court of Appeal of New South Wales
369. An appeal to the Court of Appeal of New South Wales (Handley, Powell and Giles JJA) was upheld. Powell JA, with whom the other members of the Court agreed, analyzed the evidence upon which the primary judge relied for his findings as to misfeasance. His Honour stated his conclusions on that evidence in this passage [F585] :
"At best, the evidence, insofar as it was relevant, demonstrated that, from time to time over the years, the Council replaced decking boards which appeared to require replacement. There is not the slightest evidence that, before any such boards were replaced, the bridge had become impassable. Given the unqualified evidence of Mr Brand that the bridge decking in no way affected the structural integrity of the bridge itself; the absence of any evidence indicating when, if at all, the Council had carried out work on the structural members of the bridge; the absence of any evidence as to the state of the bridge at any time when decking planks may have been replaced; the evidence of Mr Brand to which I have earlier referred as to the weight carrying capacity of the bridge even in the state in which it was immediately prior to the accident; and such evidence as there was as to the user of the bridge both prior to and on the day of the accident; it seems to me that to attempt, as Tapsell A-DCJ did, to describe the bridge as 'impassable', and, having done so, to apply by analogy the observations of Dixon J in the passage from his Judgment in Gorringe v The Transport Commission (Tas) [F586] to which I have earlier referred was totally insupportable. With respect to those who may be of another view, it seems to me that such actions as the Council may, from time to time, have taken in replacing defective decking planks are to be regarded as no more than superficial repairs to the road surface and thus - since they did not increase the risks of accidents - did not subject the Council to liability."
The application to this Court
370. The applicants applied for special leave to appeal to this Court. Their first submission was that the distinction between non-feasance and misfeasance and the consequences attaching to it were illogical, the subject of much justifiable criticism, outmoded, misconceived, historically nonsensical in principle, unjustified, and should, in any event, be discarded on policy grounds. Alternatively they submitted that this was a case in which, in any event, misfeasance had been proved. The applicants also submitted that on a proper examination of the relevant legislation governing the responsibility of the respondent for roads within the shire, the respondent was under a continuing duty to ensure that a road, of which a bridge was part, was safe.
371. It is with the last submission that I will deal first. Attention was drawn to s 220 [F587] of the Local Government Act 1919 (NSW) ("the Act") which refers in general terms to the powers and duties conferred upon cities and shires in respect of the subject matter of Pt IX of the Act, "Public Roads". Section 226 makes provision for the classification of roads. The mandatory language of ss 227 and 229 prescribes the widths of roads within each classification. Section 230 also uses the word "shall" but neither s 232 [F588] , s 235 [F589] , s 236 [F590] , s 240 [F591] nor s 249 [F592] which, the applicants submit, implies an obligation rather than confers a mere power, does so, except in a limited way which has nothing to say about the imposition of any positive obligation to keep a road in repair. Section 233(2) is concerned with the vesting of property in the Council. Section 235 by contrast makes clear that a Council may provide a public road, and s 236 enacts that a Council shall have power, but, it may be observed, not a duty, to provide, among other things, a bridge. Section 240 provides that a Council may repair a public road and s 249 that a Council shall have the care, control and management of every known road. It is to this last provision in particular that the applicants point for this limb of their argument. But to provide that a Council shall have the care, control and management of a road or a bridge is not to say how, when, and in what circumstances, at what expense, and in what order of priorities repairs are to be made, or indeed that repairs must be made at all.
372. As Dixon J said in Buckle v Bayswater Road Board [F593] :
"The purpose of giving the road authority property in and control over the road is to enable it to execute its powers in relation to the highway, not to impose upon it new duties analogous to those of an occupier of property."
The legislation may be contrasted with that which was considered by this Court in Crimmins v Stevedoring Industry Finance Committee [F594] . There what were described as functions and powers enacted by the Stevedoring Industry Finance Committee Act 1977 (Cth) could, indeed, in my opinion, should be construed as being in the nature of duties to give the legislation any reasonable degree of efficacy at all [F595] . On the other hand, a local authority may, indeed must, function in a less than perfect world of roads within its boundaries of various classifications, various degrees of use, and in various states of deterioration and repair. The Act does not have the meaning for which the applicants contend. It does not impose any statutory obligation to keep roads (and bridges) within the shire in good repair.
373. As to the other argument of the applicants, that the distinction between misfeasance and non-feasance is not founded on principle, and is, in any event, ripe for reconsideration and should be discarded, I would add only a few observations to what I have said in Ghantous in rejecting the same argument there.
374. It was suggested in argument that the word "immunity" which was used in the courts below, in this Court, in other jurisdictions and by the respondents and interveners in this case and Ghantous interchangeably with the defence of non-feasance, was a misnomer, and overstated the position of road authorities. That may be so. Its use is probably explicable on the grounds that historically the causing of an obstruction or a danger on a road was likely to constitute a public nuisance and therefore a criminal offence [F596] , and that it was immunity in respect of this that a local authority and its officers needed to avoid conviction for it. Nuisance, either public or private, may sometimes involve negligence and at other times not [F597] . The word "immunity" was, however, adopted by the legislature in terms in s 12(1) of the State Roads Act 1986 (NSW). Section 12(1) provided as follows:
"The Authority has, and may exercise, in relation to a classified road or a toll work, the functions and immunities of a council in relation to a public road."
375. Section 17 of the State Roads Act used the word "immunities" also. It is highly likely that the legislature in using the word was not only using it in the same sense as the courts frequently have, as a synonym for a defence of non-feasance, but also, and of more importance, as making a very deliberate decision not to respond to the criticism of the rule of no liability for non-feasance on the part of road authorities, by abolishing or amending it. Indeed the enactment may be taken as a very strong affirmation of it.
376. It remains to deal with the applicants' alternative case that this was a case of misfeasance and properly so found by the primary judge.
377. The applicants' submission was that misfeasance relevantly occurs when a road authority exercises its powers negligently. The applicants submitted that the respondent was guilty of misfeasance and acted negligently in that regard by covering the bridge with new planking in circumstances where the bridge underneath was not safe and carrying out inspections negligently in the sense of not appreciating that the bridge was so rotten underneath in its girders, on the one hand, and, on the other, to take no action by way of signposting or otherwise.
378. In Buckle Dixon J put the obligations of a road authority in this way [F598] :
"But a road authority in doing [works on a roadway] must take due care for the safety of those using the highway and is not protected if it creates dangers which reasonable care and skill could avoid. Because the road is under its control, it necessarily has an opportunity denied to others for causing obstructions and dangers in highways. But when it does so, the road authority is liable, not, I think, under any special measure of duty which belongs to it, but upon ordinary principles."
379. It is in the applicants' formulation and proof of particulars that their misfeasance case runs into difficulty.
380. I deal first with the contention that it was misfeasance to fail to cover the bridge with new planking. The answer to that is that it was not the planking that failed but, as was accepted on both sides, rather the timber girders because of piping in them which I take to be a loss of body and strength by reason of age. It is certainly likely that from time to time planking was removed and replaced. It is unnecessary, however, to resolve the difference between the primary judge and the Court of Appeal as to the occasions when this occurred by attempting to analyze the documents in evidence as the Court of Appeal did. The girders were not touched, and by replacing planks the respondent did not, to use the language of Dixon J in Buckle [F599] , undertake active measures of repair to safeguard the applicants from the condition of the girders, and created no dangers in respect of them. On this particular the applicants' case fails at the threshold. There was no misfeasance in relation to the girders, the part of the structure that failed.
381. I turn to the other particular. Of itself an inspection would achieve nothing. Indeed the respondent was aware that there was piping in the girders. The second particular therefore asserts a positive obligation that the respondent did not have. The respondent would only be liable if it had been bound (as it was not) to rectify deteriorating roads and bridges in the shire. It was no more obliged to do that than it was to convert the bridge from one with a capacity of 15 tonnes when constructed to a bridge of a capacity of 22 tonnes which was the weight of the truck.
382. I would grant the application for special leave to appeal and dismiss the appeal with costs.
Highways (Miscellaneous Provisions) Act 1961 (UK), s 1(1).
See Salmond and Heuston, The Law of Torts, 21st ed (1996) at 90-91.
Meggs v Liverpool Corporation [1968] 1 WLR 689 ; [1968] 1 All ER 1137 .
[1968] 2 All ER 343 at 345.
(1936) 57 CLR 259 .
(1950) 80 CLR 357 .
(1964) 64 SR (NSW) 281.
(1999) 200 CLR 1 .
(1950) 80 CLR 357 at 362-363.
Fleming, The Law of Torts, 9th ed (1998) at 484-485.
See, for example, Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 75 ALJR 164; 176 ALR 411 .
(1992) 29 NSWLR 232 at 236.
See Fleming, The Law of Torts, 9th ed (1998) at 486-487.
As to the assimilation of the position of a bridge with that of a road, see Gorringe v The Transport Commission (Tas) (1950) 80 CLR 357 at 379 per Fullagar J, and Local Government Act 1919 (NSW), s 236(2).
(1950) 80 CLR 357 at 369.
(1950) 80 CLR 357 at 369.
(1936) 57 CLR 259 at 281-282.
(1989) 9 MVR 45 .
Singleton Shire Council v Brodie [1999] NSWCA 37.
See Fleming, The Law of Torts, 9th ed (1998) at 431-432.
eg Transport Accident Act 1986 (Vic), Pt 3.
(1950) 80 CLR 357 at 363.
(1950) 80 CLR 357 at 369.
(1950) 80 CLR 357 at 375-376.
(1964) 64 SR (NSW) 281.
State Roads Act 1986 (NSW), s 12(1).
(1990) 171 CLR 1 .
(1990) 171 CLR 1 at 22.
(1990) 171 CLR 1 at 15.
(1979) 142 CLR 617 .
(1979) 142 CLR 617 at 633.
(1979) 142 CLR 617 at 634.
(1979) 142 CLR 617 at 636.
New South Wales Law Reform Commission, Liability of Highway Authorities for Non-Repair, Report No 55, (1987).
Par 5.2.
Par 5.14.
Par 5.27.
Par 5.38.
Parliament of New South Wales, Public Bodies Review Committee, Public Liability Issues Facing Local Councils, November 2000 at 36-37.
(1999) 102 LGERA 399.
(1936) 57 CLR 259 .
(1950) 80 CLR 357 .
(1982) 56 ALJR 912; 43 ALR 465 .
(1982) 56 ALJR 912 at 913; 43 ALR 465 at 467-468.
Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48.
Borough of Bathurst v Macpherson (1879) 4 App Cas 256 at 265; Thompson v Mayor, & c, of Brighton [1894] 1 QB 332 at 339; see also Buckle v Bayswater Road Board (1936) 57 CLR 259 at 283-284.
(1980) 146 CLR 40 at 47-48.
(2000) 76 SASR 300 at 332-333.
(1999) 200 CLR 1 .
(1999) 102 LGERA 399 at 405.
(1950) 80 CLR 357 at 369. See also Buckle (1936) 57 CLR 259 at 281-282.
(1967) 116 CLR 397 .
(1992) 29 NSWLR 232 at 236.
(1992) 29 NSWLR 232 at 236.
(1981) 150 CLR 225 .
(1985) 157 CLR 424 .
All of the LG Act has now been repealed: Environmental Planning and Assessment Amendment Act 1997 (NSW), s 7.
Since repealed by s 265 of the Roads Act 1993 (NSW) ("the Roads Act").
RTA Act, s 13(3).
RTA Act, s 13(4)-(10).
cf Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 ; Miliangos v George Frank (Textiles) Ltd [1976] AC 443 at 469-470, 476; Lord Roskill, "Law Lords, Reactionaries or Reformers", (1984) 37 Current Legal Problems 247 at 255-257.
The Law of Torts, 9th ed (1998) at 485.
And also in the Federal Court of Australia on appeal from the Supreme Court of the Australian Capital Territory: McDonogh v Commonwealth of Australia (1985) 9 FCR 360 ; Australian Capital Territory v Badcock (2000) 169 ALR 585 .
(1936) 57 CLR 259 at 281.
cf Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 544.
cf Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 151-155 [39]-[49], 158 [59].
(1936) 57 CLR 259 at 300.
(1953) 87 CLR 619 .
(1953) 87 CLR 619 at 625, 641.
(2000) 109 LGERA 419.
(2000) 109 LGERA 419 at 421.
(1936) 57 CLR 259 at 268.
(1936) 57 CLR 259 at 292.
(1936) 57 CLR 259 at 290.
Gorringe v The Transport Commission (Tas) (1950) 80 CLR 357 at 377.
(1936) 57 CLR 259 at 301.
Shoreditch Corporation v Bull (1904) 90 LT 210.
(1990) 72 LGRA 60.
(2000) 109 LGERA 419 at 423.
[1978] AC 728.
[1989] 2 SCR 1228 .
[1994] 1 SCR 420 .
[1994] 1 SCR 445 .
[1994] 1 SCR 445 at 450-451.
[1994] 1 SCR 445 at 449-450.
Williams, The Liability of Municipal Corporations for Tort, (1901), § 4; Borchard, "Government Liability in Tort", (1924) 34 Yale Law Journal 1 (Pt 1), 129 (Pt 2) at 130-138, 229 (Pt 3) at 229-240.
Prosser and Keeton on the Law of Torts, 5th ed (1984) at 1054; Harper, James and Gray, The Law of Torts, 2nd ed (1986), § 29.7.
[1978] AC 728.
Todd, The Law of Torts in New Zealand, 2nd ed (1997) at 210-211.
See Stovin v Wise [1996] AC 923 at 939.
Goodes v East Sussex County Council [2000] 1 WLR 1356 ; [2000] 3 All ER 603 .
McDonald, "Immunities Under Attack", (2000) 22 Sydney Law Review 411 at 418-419.
Forbes Shire Council v Jones [1999] NSWCA 419 at [4].
The phrase is that of Professor Sawer, "Non-Feasance Revisited", (1955) 18 Modern Law Review 541 at 546, referring to the article by Professor Friedmann, "Liability of Highway Authorities", (1951) 5 Res Judicatae 21.
See Donaldson v Municipal Council of Sydney (1924) 24 SR (NSW) 408; Grafton City Council v Riley Dodds (Australia) Ltd [1956] SR (NSW) 53; Bretherton v The Council of the Shire of Hornsby [1963] SR (NSW) 334; Hughes v Hunters Hill Municipal Council (1992) 29 NSWLR 232; Threadgate v Tamworth City Council [1999] NSWCA 32; Frankston City Council v Eyles (2000) 108 LGERA 115.
See the judgment of McLelland J in Stephenson v Ku-ring-gai Municipal Council (1953) 19 LGR 137 at 140.
(1879) 4 App Cas 256 at 265-266.
Unger v The President, Council, and Ratepayers of the Shire of Eltham (1902) 28 VLR 322 at 326-327; Buckle (1936) 57 CLR 259 at 298-300.
(1936) 57 CLR 259 at 271, 291-292.
See the distinctions between a "highway authority" on the one hand and, on the other, a "drainage authority" (Sisson v North Sydney Municipal Council [1966] 1 NSWR 580 at 581-582); a "traffic authority" (Turner v Ku-ring-gai Municipal Council (1990) 72 LGRA 60 at 67); and a "tramways authority" (Sisson v North Sydney Municipal Council [1966] 1 NSWR 580 at 584; Day v Commissioner of Main Roads (WA) (1989) 9 MVR 471 at 502-503). See also Frankston City Council v Eyles (2000) 108 LGERA 115 at 120, where the council was said to have planted a tree acting as "the factotum of all the town".
In Webb v The State of South Australia (1982) 56 ALJR 912 at 913; 43 ALR 465 at 467-468, a "false kerb" was treated as an artificial structure and the exception was applied. Contrast the views of Latham CJ and McTiernan J with those of Dixon J in Buckle (1936) 57 CLR 259 at 273-275, 292-293, 300.
(1950) 80 CLR 357 at 375.
"Misfeasance and Non-feasance in the Liability of Public Authorities", (1914) 30 Law Quarterly Review 276 (Pt 1), 415 (Pt 2) at 278.
Parsons v St Mathew, Bethnal Green (1867) LR 3 CP 56 at 60.
"Misfeasance and Non-feasance in the Liability of Public Authorities", (1914) 30 Law Quarterly Review 276 (Pt 1), 415 (Pt 2) at 278.
(1913) 16 CLR 353 .
(1913) 16 CLR 353 at 361.
See the observations of Gaudron J in Perre v Apand Pty Ltd (1999) 198 CLR 180 at 198-199 [29] and see, generally, Hill v Van Erp (1997) 188 CLR 159 .
(1960) 104 CLR 274 at 296-297.
Salmond, The Law of Torts, 6th ed (1924) at 454.
McLaren, "Nuisance in Canada", in Linden (ed), Studies in Canadian Tort Law, (1968) 320 at 335.
(1963) 110 CLR 40 ; affd (1966) 115 CLR 458 .
(1963) 110 CLR 40 at 51.
(1963) 110 CLR 40 at 61.
(1998) 192 CLR 330 .
City of Melbourne v Barnett [1999] 2 VR 726 at 729-730; Barbieri v Fairfield City Council (1999) 105 LGERA 304 at 308.
See the discussion by Latham CJ of the plaintiff's contention in Gorringe (1950) 80 CLR 357 at 363.
Buckle (1936) 57 CLR 259 at 283; Gorringe (1950) 80 CLR 357 at 378. This appears to have been the basis of the liability found in Gold Coast City Council v Hall [2000] QCA 92.
Marr v Holroyd Municipal Council (1986) 3 MVR 235 at 242-244 (negligent repair of pot-hole led to the more rapid recurrence of the danger).
(1913) 16 CLR 353 at 358.
This appears to be the basis of the finding of liability in Crombie v Council of the Shire of Livingstone [2000] QCA 229. In Woollahra Council v Moody (1913) 16 CLR 353 at 358, Barton ACJ considered the question to be "[w]hat was the tendency and effect of the work which the appellants did at that spot?"
McDonogh v Commonwealth of Australia (1985) 9 FCR 360 at 366; Huon Municipal Corporation v W M Driessen & Sons Pty Ltd (1991) 72 LGRA 240 at 243. In the latter case, Wright J and Crawford J treated the distinction between misfeasance and non-feasance as still applicable notwithstanding the special provisions of s 21(4) of the Local Government (Highways) Act 1982 (Tas).
Hill v Commissioner for Main Roads (1989) 68 LGRA 173 at 173, 180, 182; Hodgson v Cardwell Shire Council [1994] 1 Qd R 357 at 366.
Gorringe (1950) 80 CLR 357 at 371-372; McDonogh v Commonwealth of Australia (1985) 9 FCR 360 ; Hill v Commissioner for Main Roads (1989) 68 LGRA 173 at 180.
McDonogh v Commonwealth of Australia (1985) 9 FCR 360 at 364-365; Gorringe (1950) 80 CLR 357 at 371-372; Day v Commissioner of Main Roads (WA) (1989) 9 MVR 471 at 504; Grafton City Council v Riley Dodds (Australia) Ltd [1956] SR (NSW) 53 at 58; Kirk v Culcairn Shire Council (1964) 64 SR (NSW) 281 at 288.
Gorringe (1950) 80 CLR 357 at 363; Kirk v Culcairn Shire Council (1964) 64 SR (NSW) 281 at 286-287.
Hatch v Alice Springs Town Council (1989) 100 FLR 56 .
Campbelltown City Council v Crain unreported, New South Wales Court of Appeal, 23 October 1998 at 5; City of Melbourne v Barnett [1999] 2 VR 726 at 729-730.
(1950) 80 CLR 357 at 371.
(1937) 13 LGR 181 .
Turner v Ku-ring-gai Municipal Council (1990) 72 LGRA 60 at 61-62; Desmond v Mount Isa City Council [1991] 2 Qd R 482 at 488, 494; Blacktown Municipal Council v Scanlon (1993) 79 LGERA 387 at 388.
See, eg, Desmond v Mount Isa City Council [1991] 2 Qd R 482 at 488; Ffrench v Ridley District Council (1990) 12 MVR 39 (camber and curve).
(1936) 57 CLR 259 at 292.
R v The Governor of the State of South Australia (1907) 4 CLR (Pt 2) 1497.
Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 367-373.
South Australia v The Commonwealth (1962) 108 CLR 130 .
(1999) 199 CLR 462 .
(1866) LR 1 HL 93.
New South Wales v Bardolph (1934) 52 CLR 455 at 508; The Commonwealth v Mewett (1997) 191 CLR 471 at 545.
(1988) 165 CLR 543 .
(1988) 165 CLR 543 at 554-555.
State Government Insurance Commission v Trigwell (1979) 142 CLR 617 at 637.
[1999] 3 WLR 79 at 95-98, 103-104; [1999] 3 All ER 193 at 209-212, 217-219. See Craig and Fairgrieve, "Barrett, Negligence and Discretionary Powers", (1999) Public Law 626 at 631-633, 647-649.
See Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 44 FCR 290 .
(1981) 150 CLR 225 .
Coco v The Queen (1994) 179 CLR 427 ; Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575 .
Darker v Chief Constable of the West Midlands Police [2000] 3 WLR 747 at 756-757; [2000] 4 All ER 193 at 202.
[1974] 1 NZLR 180 at 187.
McDonald, "Immunities Under Attack", (2000) 22 Sydney Law Review 411 at 420.
(1788) 2 TR 667 [100 ER 359].
cf Verge v Somerville [1924] AC 496 at 499.
Ashhurst J made this point in Russell v The Men of Devon itself: (1788) 2 TR 667 at 673 [100 ER 359 at 362-363].
See, respectively, the preambles to 14 Car 2 c 6 (1662); 15 Car 2 c 1 (1663); 3 Will & Mary c 12 (1691).
5 & 6 Will 4 c 50.
Goodes v East Sussex County Council [2000] 1 WLR 1356 at 1361; [2000] 3 All ER 603 at 608. See also the earlier cases of Couch v Steel (1854) 3 El & Bl 402 [118 ER 1193] and Young v Davis (1862) 7 H & N 760 [158 ER 675]; (1863) 2 H & C 197 [159 ER 82] discussed by Fullagar J in Gorringe (1950) 80 CLR 357 at 374.
Cowley v Newmarket Local Board [1892] AC 345 at 355; Municipal Council of Sydney v Bourke [1895] AC 433 at 439-440.
Municipal Council of Sydney v Bourke [1895] AC 433 at 435-436.
Before Parker v The Queen (1963) 111 CLR 610 and Australian Consolidated Press Ltd v Uren (1967) 117 CLR 221 ; [1969] 1 AC 590 .
(1985) 157 CLR 424 . See also Northern Territory v Mengel (1995) 185 CLR 307 at 352-353, 359-360, 373.
(1998) 192 CLR 330 .
(1998) 192 CLR 431 .
(1999) 200 CLR 1 .
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 551-552.
Pyrenees Shire Council v Day (1998) 192 CLR 330 at 394-395 [183]-[184].
Just v British Columbia [1989] 2 SCR 1228 at 1243-1244.
(1905) 3 CLR 50 at 60.
See Hill v Commissioner for Main Roads (1989) 68 LGRA 173 at 181; Gloucester Shire Council v McLenaghan (2000) 109 LGERA 419 at 423; cf Woodward v Orara Shire Council (1948) 49 SR (NSW) 63 at 65-67.
Commissioner for Railways (NSW) v Cardy (1960) 104 CLR 274 at 285.
(1979) 142 CLR 617 at 633.
(1999) 198 CLR 180 .
(1999) 198 CLR 180 at 216 [92].
cf Mabo v Queensland [No 2] (1992) 175 CLR 1 at 29-30 per Brennan J.
(1988) 165 CLR 543 .
(1988) 165 CLR 543 at 584.
(1976) 135 CLR 674 .
(1999) 201 CLR 49 at 66-69 [38]-[48].
(1989) 166 CLR 417 at 438-439.
John v Federal Commissioner of Taxation (1989) 166 CLR 417 at 438.
(1905) 3 CLR 50 .
(1883) 11 QBD 503 at 509.
Gorringe (1950) 80 CLR 357 at 377.
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 541.
[1932] AC 562 at 580-581.
See Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 487.
(1994) 179 CLR 520 at 544.
(1905) 3 CLR 50 at 58.
(1915) 15 SR (NSW) 408.
(1915) 15 SR (NSW) 408 at 414.
(1915) 15 SR (NSW) 408 at 415.
Federation Insurance Ltd v Wasson (1987) 163 CLR 303 at 314.
" Ratio Decidendi and Obiter dictum in Appellate Courts", (1947) 63 Law Quarterly Review 461 at 467. See also the earlier discussion of Buckle to the same effect by Professor Sawer, "Non-feasance in Relation to 'Artificial Structures' on a Highway", (1938) 12 Australian Law Journal 231.
(1950) 80 CLR 357 at 362.
(1950) 80 CLR 357 at 368-369.
(1912) 15 CLR 104 . Isaacs J dissented and his judgment was preferred to those of Griffith CJ and Barton J by Dixon J in Gorringe: see (1950) 80 CLR 357 at 369-370.
(1927) 40 CLR 179 at 192 per Higgins J, 195 per Starke J; Isaacs ACJ based his decision upon public nuisance (at 186). See also, among the numerous Canadian decisions in this period decided upon breach of statutory duty: The City of Kingston v Drennan (1897) 27 SCR 46 at 47-48; City of Vancouver v McPhalen (1911) 45 SCR 194; City of Vancouver v Cummings (1912) 46 SCR 457 at 458-459; Raymond v Township of Bosanquet (1919) 59 SCR 452 at 455-456; Greer v Tp Mulmur [1926] 4 DLR 132 at 133.
(1994) 179 CLR 520 at 548-549.
(1868) LR 3 HL 330.
(1989) 166 CLR 417 at 438.
(1788) 2 TR 667 [100 ER 359].
(1950) 80 CLR 357 at 373.
Griffiths v Liverpool Corporation [1967] 1 QB 374 at 389; Goodes v East Sussex County Council [2000] 1 WLR 1356 at 1361-1362; [2000] 3 All ER 603 at 608-609.
R v Inhabitants of Cluworth (1704) 1 Salkeld 359 [91 ER 313]. The case also is reported 6 Mod 163 [87 ER 920].
(1673) Vaugh 330 at 340 [124 ER 1098 at 1104]. See also the summary of the relevant legal history by Mr A T Denning KC in Note, (1939) 55 Law Quarterly Review 343.
"Foundrous" (also "founderous") had the meaning of "[c]ausing or likely to cause to founder": Oxford English Dictionary, 2nd ed (1989), vol 6 at 122.
[1903] 1 Ch 109.
See the judgment of Hardie J in Smith v Warringah Shire Council [1962] NSWR 944 at 947-949.
(1998) 194 CLR 247 .
Permanent Trustee Co of NSW Ltd v Campbelltown Corporation (1960) 105 CLR 401 at 420. Whether there had been a dedication to the public might properly be left for the jury as a question of fact: Jarvis v Dean (1826) 3 Bing 447 [130 ER 585].
City of Keilor v O'Donohue (1971) 126 CLR 353 at 363; see also the authorities collected by Beaumont J in Re Maurice's Application; Ex parte Attorney-General (NT) (1987) 18 FCR 163 at 169 and cf Director of Public Prosecutions v Jones [1999] 2 AC 240 at 253-258, 261-264, 268-274, 279-280, 291-292.
Hargrave v Goldman (1963) 110 CLR 40 at 59.
This may be so even in respect of land held under Torrens title: Vickery v Municipality of Strathfield (1911) 11 SR (NSW) 354 at 363-364; LG Act, s 232(3).
Attorney-General; Ex rel Australian Mutual Provident Society v The Corporation of the City of Adelaide [1931] SASR 217 at 229 per Murray CJ; followed by Bray CJ in Kiosses v Corporation of the City of Henley and Grange (1971) 6 SASR 186 at 192-193.
(1936) 57 CLR 259 at 280-281.
Kraemers v Her Majesty's Attorney-General for the State of Tasmania [1966] Tas SR 113 at 153.
"The Boundaries of Nuisance", (1949) 65 Law Quarterly Review 480.
"The Boundaries of Nuisance", (1949) 65 Law Quarterly Review 480 at 482.
Sly v Edgley (1806) 6 Esp 6 [170 ER 813]; Butterfield v Forrester (1809) 11 East 60 [103 ER 926]; Leslie v Pounds (1812) 4 Taunt 649 [128 ER 485]; Jarvis v Dean (1826) 3 Bing 447 [130 ER 585]; Daniels v Potter (1830) 4 C & P 262 [172 ER 697]; Proctor v Harris (1830) 4 C & P 337 [172 ER 729]. Butterfield v Forrester was the foundation case for the doctrine of contributory negligence: Astley v Austrust Ltd (1999) 197 CLR 1 at 11 [21].
See, for example, Barnes v Ward (1850) 9 CB 392 at 420 [137 ER 945 at 956]; Peachey v Rowland (1853) 13 CB 182 [138 ER 1167]; Cooper v Walker (1862) 2 B & S 770 at 779-780 [121 ER 1258 at 1261-1262]; Robbins v Jones (1863) 15 CB (NS) 221 at 223 [143 ER 768 at 770]; Hadley v Taylor (1865) LR 1 CP 53 at 55.
Southport Corporation v Esso Petroleum Co Ltd [1954] 2 QB 182 at 197 (revd on other grounds [1956] AC 218 ). See also the judgments of Walsh J in Miller Steamship Co Pty Ltd v Overseas Tankship (UK) Ltd [1963] SR (NSW) 948 at 979-980, and of Burbury CJ in Kraemers v Her Majesty's Attorney-General for the State of Tasmania [1966] Tas SR 113 at 125, and Markesinis and Deakin, Tort Law, 4th ed (1999) at 460-461.
The Law of Torts, 7th ed (1987) at 381, n 12.
(1950) 80 CLR 357 at 378-379. See also Watson v George (1953) 89 CLR 409 at 424-425; Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 44; and the article by Thayer, "Public Wrong and Private Action", (1914) 27 Harvard Law Review 317 at 324-325.
Negligence in Law, 3rd ed (1908), vol 1 at 3.
(1936) 57 CLR 259 at 273.
(1936) 57 CLR 259 at 292.
(1905) 3 CLR 50 at 63. In Woollahra Council v Moody (1913) 16 CLR 353 at 356, Barton ACJ described the action as "one for negligence and nuisance" and Isaacs J (at 359) said that "[t]he real cause of action in this case ... is negligence in the performance of a statutory duty".
(1926) 42 Law Quarterly Review 184.
Beven, Salmond and Jenks.
(1926) 42 Law Quarterly Review 184 at 197-198 (footnotes omitted). These views were expressly adopted by Lord Simonds in Jacobs v London County Council [1950] AC 361 at 374.
Respectively in Sedleigh-Denfield v O'Callaghan [1940] AC 880 at 903-904; Jacobs v London County Council [1950] AC 361 at 374-375; Hargrave v Goldman (1963) 110 CLR 40 at 61-62; Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty [1967] 1 AC 617 at 639-640; Goldman v Hargrave (1966) 115 CLR 458 at 461. See also the remarks of Lord Cooke of Thorndon in Hunter v Canary Wharf Ltd [1997] AC 655 at 711.
Hargrave v Goldman (1963) 110 CLR 40 at 62; see also Winfield, "Nuisance as a Tort", (1931) 4 Cambridge Law Journal 189 at 198-199.
Ware v Garston Haulage Co Ltd [1944] KB 30.
(1985) 157 CLR 424 at 459-460.
[1991] 2 Qd R 482 at 494-496.
(1980) 146 CLR 40 at 47.
Examples appear to be Hodgson v Cardwell Shire Council [1994] 1 Qd R 357 at 365-366 and Roads and Traffic Authority (NSW) v Scroop (1998) 28 MVR 233 at 238.
(1994) 179 CLR 520 .
(1994) 179 CLR 520 at 556.
Inserted by s 15 of the Main Roads (Amendment) Act 1936 (NSW) and amended by s 2 of the Main Roads and Local Government (Amendment) Act 1957 (NSW).
s 103 and Sched 1.
cf Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 59-63 [18]-[28]; Beatson, "The Role of Statute in the Development of Common Law Doctrine", (2001) 117 Law Quarterly Review 247 at 264-265.
[1976] QB 726 at 751. The litigation concerned the enforcement in England of foreign judgments and the Foreign Judgments (Reciprocal Enforcement) Act 1933 (UK).
[1992] 2 AC 443.
[1992] 2 AC 443 at 487-489.
City of Melbourne v Barnett [1999] 2 VR 726 at 728.
See Lake Macquarie City Council v Bottomley (1999) 103 LGERA 77 at 90-91.
City of Melbourne v Barnett [1999] 2 VR 726 at 730-731.
Roads and Traffic Authority (NSW) v Scroop (1998) 28 MVR 233 at 236-238.
See Florence v Marrickville Municipal Council [1960] SR (NSW) 562 at 565; Lake Macquarie City Council v Bottomley (1999) 103 LGERA 77.
Lake Macquarie City Council v Bottomley (1999) 103 LGERA 77 at 90.
Roads Act, s 138(1).
(1998) 192 CLR 330 .
See Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 61 [166].
Buckle (1936) 57 CLR 259 at 292.
(1992) 29 NSWLR 232 at 236.
(1936) 57 CLR 259 at 276-277.
(1950) 80 CLR 357 at 369.
(1953) 87 CLR 619 .
(1953) 87 CLR 619 at 644.
(1998) 192 CLR 431 at 457-458 [64].
(1999) 200 CLR 1 at 18 [25].
Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 at 220 per Dixon CJ, McTiernan, Kitto and Taylor JJ; Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 436 per Gibbs CJ (Wilson J agreeing), 458 per Mason J, 484 per Brennan J, 501 per Deane J; Stovin v Wise [1996] AC 923 at 943-944 per Lord Hoffmann; Pyrenees Shire Council v Day (1998) 192 CLR 330 at 391-392 per Gummow J.
Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 443 per Gibbs CJ (Wilson J agreeing), 460-461 per Mason J, 479 per Brennan J, 501-502 per Deane J; Parramatta City Council v Lutz (1988) 12 NSWLR 293 at 302 per Kirby P, 328 per McHugh JA; Pyrenees Shire Council v Day (1998) 192 CLR 330 .
Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 443-445 per Gibbs CJ (Wilson J agreeing), 460-461 per Mason J, 478 per Brennan J; Pyrenees Shire Council v Day (1998) 192 CLR 330 at 368-369 per McHugh J.
Pyrenees Shire Council v Day (1998) 192 CLR 330 at 368-369 per McHugh J. See also Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 460-461 per Mason J and the cases there cited.
(1939) 62 CLR 179 at 206-207.
[1932] AC 562 at 579-582.
(1939) 62 CLR 179 at 189, 197.
(1939) 62 CLR 179 at 203-204.
(1939) 62 CLR 179 at 210.
(1998) 192 CLR 431 at 442-443 [17].
(1987) 162 CLR 479 .
(1993) 177 CLR 423 at 440.
(1998) 192 CLR 431 at 454-455 [50]-[52].
(1998) 192 CLR 431 at 487-488 [152].
Aiken (1939) 62 CLR 179 at 190-191 per Latham CJ, 199-200 per Starke J, 205-206, 209 per Dixon J; Schiller v Mulgrave Shire Council (1972) 129 CLR 116 at 120 per Barwick CJ, 124-128 per Walsh J, 134 per Gibbs J; Nagle (1993) 177 CLR 423 at 428 per Mason CJ, Deane, Dawson and Gaudron JJ.
(1936) 57 CLR 259 at 280-281.
(1982) 56 ALJR 912 at 913; 43 ALR 465 at 467-468.
(1980) 146 CLR 40 at 47-48.
(1980) 146 CLR 40 at 47-48.
The result, in broad terms, may not differ from the recommendation as to the obligations of local government bodies by the Public Bodies Review Committee of the New South Wales Parliament in its report, Public Liability Issues Facing Local Councils, November 2000, Recommendation 9 at 10:
"That the principle of non feasance for the repair of roads remain in place or that statutory immunity from liability for the repair of roads should be provided subject to councils meeting a reasonable standard of maintenance agreed by an external authority."[281]
Turner v Ku-ring-gai Municipal Council (1990) 72 LGRA 60; McIntyre v Ridley District Council (1991) 56 SASR 343; Blacktown Municipal Council v Scanlon (1993) 79 LGERA 387.
McDonogh v Commonwealth of Australia (1985) 9 FCR 360 ; Huon Municipal Corporation v W M Driessen & Sons Pty Ltd (1991) 72 LGRA 240.
Hill v Commissioner for Main Roads (1989) 68 LGRA 173.
Desmond v Mount Isa City Council [1991] 2 Qd R 482.
Roads and Traffic Authority (NSW) v Scroop (1998) 28 MVR 233 (bollards misled as to position of edge of road).
Cook v Ku-ring-gai Municipal Council (1936) 13 LGR 45 at 51.
The phrase used by Windeyer J in Voli v Inglewood Shire Council (1963) 110 CLR 74 at 85.
See, eg, Ffrench v Ridley District Council (1990) 12 MVR 39 (camber and curve) and cf McIntyre v Ridley District Council (1991) 56 SASR 343, where the warning signs were inadequate and Turner v Ku-ring-gai Municipal Council (1990) 72 LGRA 60, where an issue as to negligent failure to erect an advisory speed sign was wrongly withdrawn from the jury.
Day v Commissioner of Main Roads (WA) (1989) 9 MVR 471 (roadworks creating dusty conditions); Bitupave Ltd v Bollington (1998) 28 MVR 223 (inadequate signage); Roads and Traffic Authority (NSW) v Scroop (1998) 28 MVR 233 ; Roads and Traffic Authority (NSW) v Snape (1999) 28 MVR 423 .
Flukes v Paddington Municipal Council (1915) 15 SR (NSW) 408; cf Coucher v The Corporation of Newcastle (1869) 8 SCR (L) 309.
Miller v McKeon (1905) 3 CLR 50 ; Flukes v Paddington Municipal Council (1915) 15 SR (NSW) 408.
Greater Bendigo City Council v Miles (2000) 31 MVR 137 at 137-138.
An issue adverted to by Hayne J in Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at 488 [153]. See, eg, Stovin v Wise [1996] AC 923 ; cf Weir v Commissioner for Main Roads (1947) 17 LGR 1 ; Vale v Whiddon (1949) 50 SR (NSW) 90.
Thompson v Bankstown Corporation (1953) 87 CLR 619 .
Flukes v Paddington Municipal Council (1915) 15 SR (NSW) 408.
Smith v The Broken Hill Pty Co Ltd (1957) 97 CLR 337 at 343.
Miller v McKeon (1905) 3 CLR 50 at 60.
(1950) 80 CLR 357 at 358.
(1982) 56 ALJR 912; 43 ALR 465 .
(1936) 57 CLR 259 at 266.
Searle v Metropolitan Water, Sewerage and Drainage Board (1936) 13 LGR 115 at 117.
(1998) 192 CLR 431 at 455 [52].
(1998) 192 CLR 431 at 478 [123].
Perre v Apand Pty Ltd (1999) 198 CLR 180 at 253 [198]; Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1 at 8; Stapleton, "Duty of Care Factors: a Selection from the Judicial Menus", in Cane and Stapleton (eds), The Law of Obligations, (1998) 59 at 60-63.
Hodgson v Cardwell Shire Council [1994] 1 Qd R 357; cf Kirk v Culcairn Shire Council (1964) 64 SR (NSW) 281 at 288-289.
Hodgson v Cardwell Shire Council [1994] 1 Qd R 357 at 362-363.
Borough of Bathurst v Macpherson (1879) 4 App Cas 256.
See also Cartwright v McLaine & Long Pty Ltd (1979) 143 CLR 549 .
(1989) 68 LGRA 173 at 181.
By order of Gaudron, Kirby and Hayne JJ, 10 December 1999.
Since Buckle v Bayswater Road Board (1936) 57 CLR 259 and Gorringe v The Transport Commission (Tas) (1950) 80 CLR 357 .
The comment of Denning LJ in Greene v Chelsea Borough Council [1954] 2 QB 127 at 138 on the immunity formerly enjoyed by landlords in relation to certain claims of their tenants: Cavalier v Pope [1906] AC 428 at 433; cf Voli v Inglewood Shire Council (1963) 110 CLR 74 at 90; Jones v Bartlett (2000) 75 ALJR 1 at 38-39 [230]; 176 ALR 137 at 187.
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 340 per Brennan CJ ("Northern Sandblasting").
Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 86-87 [100] ("Esso").
As to Ghantous v Hawkesbury City Council, see the reasons of Gaudron, McHugh and Gummow JJ at [51], [166]-[167] ("the joint reasons"); and reasons of Callinan J at [340]-[351]. As to Brodie v Singleton Shire Council see the joint reasons at [52], [169]-[183]; and reasons of Callinan J at [367]-[368].
Notably Local Government Act 1919 (NSW) (since repealed), ss 220, 226, 227, 229, 232, 235, 236, 240, 249, discussed in the reasons of Callinan J at [371].
State Roads Act 1986 (NSW) (since repealed), ss 12(1), 17, discussed in the reasons of Callinan J at [374]-[375]; cf Roads Act 1993 (NSW), ss 65 and 72.
See the reasons of Callinan J at [349], [370] with respect to Ghantous v Hawkesbury City Council, and the applicants' submissions in reply with respect to Brodie v Singleton Shire Council.
cf Hill v Commissioner of Main Roads (NSW) (1989) 68 LGRA 173 at 181 per Samuels JA; 9 MVR 45 at 53.
As did Londay Pty Ltd, the family company of Mr Brodie and his wife, the second applicant in those proceedings. See the joint reasons at [169].
Ghantous v Hawkesbury City Council (1999) 102 LGERA 399 per Powell JA (Handley and Giles JJA concurring).
Singleton Shire Council v Brodie [1999] NSWCA 37 per Powell JA (Handley and Giles JJA concurring).
(1936) 57 CLR 259 .
(1950) 80 CLR 357 .
Garcia v National Australia Bank Ltd (1998) 194 CLR 395 at 403 [17].
See Friedmann, "Liability of Highway Authorities", (1951) 5 Res Judicatae 21 at 28 ("Friedmann"); Hughes v Hunters Hill Municipal Council (1992) 29 NSWLR 232 at 235.
Russell v The Men of Devon (1788) 2 TR 667 [100 ER 359]; cf Cowley v Newmarket Local Board [1892] AC 345 .
The joint reasons at [62]-[64], [102], [130]-[131].
(1883) 11 QBD 503 at 509.
[1932] AC 562 at 580-581.
The joint reasons at [127].
See eg the common law liability to trespassers, to other entrants onto land, for negligent mis-statement and for pure economic loss: the joint reasons at [85], [146].
The joint reasons at [116].
McDonald, "Immunities Under Attack: The Tort Liability of Highway Authorities and their Immunity from Liability for Non-Feasance", (2000) 22 Sydney Law Review 411 at 419, 421-422 ("McDonald").
Miller v McKeon (1905) 3 CLR 50 ; Woollahra Council v Moody (1913) 16 CLR 353 ; see the joint reasons at [87].
Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575 at 593-598 [56]-[66].
Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575 at 583-584 [16]-[18]; Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209 at 236 [129]; 167 ALR 575 at 611.
The joint reasons at [68]-[76], [79]-[83].
The joint reasons at [81]-[82]; cf McDonald, (2000) 22 Sydney Law Review 411 at 414-415.
McDonald, (2000) 22 Sydney Law Review 411 at 420, 433.
Trindade and Cane, The Law of Torts in Australia, 3rd ed (1999) at 712.
McDonald, (2000) 22 Sydney Law Review 411 at 422.
The joint reasons at [72], [84]-[90]; cf Pyrenees Shire Council v Day (1998) 192 CLR 330 at 391-392 [174]-[177] per Gummow J.
McDonald, (2000) 22 Sydney Law Review 411 at 420.
The joint reasons at [79]-[83].
The joint reasons at [114].
McDonald, (2000) 22 Sydney Law Review 411 at 420.
Fleming, The Law of Torts, 9th ed (1998) at 485.
McDonald, (2000) 22 Sydney Law Review 411 at 415.
Sawer, "Non-Feasance Revisited", (1955) 18 Modern Law Review 541 at 546; see also Sawer, "Nonfeasance Under Fire", (1966) 2 New Zealand Universities Law Review 115.
Friedmann, (1951) 5 Res Judicatae 21 at 21.
One of these was Sawer, "Non-Feasance Revisited", (1955) 18 Modern Law Review 541.
Fleming, The Law of Torts, 9th ed (1998) at 485.
[1999] 2 AC 349 at 377; cf McHugh, "The Law-making Function of the Judicial Process", (1988) 62 Australian Law Journal 15 and 116.
See eg Mason J in State Government Insurance Commission v Trigwell (1979) 142 CLR 617 at 633-634; McKinney v The Queen (1991) 171 CLR 468 at 481-482 per Brennan J (diss); my own reasons in Northern Sandblasting (1997) 188 CLR 313 at 400.
See eg Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 289-290 per Mason CJ and Deane J; Mabo v Queensland [No 2] (1992) 175 CLR 1 at 38-43 per Brennan J; cf Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26 per my own reasons at 35-41; Kirby, "Judging: Reflections on the Moment of Decision", (1999) 18 Australian Bar Review 4 at 12.
See above at [188].
Taylor, "Why is there no Common Law Right of Privacy", (2000) 26 Monash University Law Review 235 at 238-240; Kirby, "In Praise of Common Law Renewal: A Commentary on P S Atiyah's 'Justice and Predictability in the Common Law'", (1992) 15 University of New South Wales Law Journal 462 at 482.
Breavington v Godleman (1988) 169 CLR 41 at 135; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 140; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 566; Lipohar v The Queen (1999) 200 CLR 485 at 557 [180]; John Pfeiffer Pty Ltd v Rogerson (2000) 74 ALJR 1109 at 1135 [142]; 172 ALR 625 at 662.
eg in the common law choice of law rule in Australia: John Pfeiffer Pty Ltd v Rogerson (2000) 74 ALJR 1109 at 1130-1132 [119]-[123]; 172 ALR 625 at 656-657; and Ch III of the Constitution and the common law rule concerning judicial bias: Ebner v Official Trustee in Bankruptcy (2000) 75 ALJR 277 at 289-290 [79]-[82], 295-296 [113]-[117]; 176 ALR 644 at 661-662, 669-671.
Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 at 380-383 [149]-[154]; cf Spring v Guardian Assurance Plc [1995] 2 AC 296 at 326.
eg Mabo v Queensland [No 2] (1992) 175 CLR 1 at 42 per Brennan J; cf Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 657-658; Garcia v National Australia Bank Ltd (1998) 194 CLR 395 at 422-425 [66], 427-428 [66].
Wik Peoples v Queensland (1996) 187 CLR 1 at 250-251; Esso (1999) 201 CLR 49 at 87-88 [101].
[1932] AC 562.
eg Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 at 20, 38; Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 484-488; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 544-550; Northern Sandblasting (1997) 188 CLR 313 at 395-396.
Lipohar v The Queen (1999) 200 CLR 485 at 500 [24], 505 [43], 551-552 [167].
Esso (1999) 201 CLR 49 at 86-87 [100].
Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209 at 235-240 [125]-[142]; 167 ALR 575 at 609-616.
Esso (1999) 201 CLR 49 at 88-89 [102]-[103] concerning the ability of independent courts to secure the evidence essential to do justice according to law.
As Mahoney AP did in Hughes v Hunters Hill Municipal Council (1992) 29 NSWLR 232 at 236.
See Lipohar v The Queen (1999) 200 CLR 485 at 561 [193]; Esso (1999) 201 CLR 49 at 89-90 [105].
The joint reasons at [85], [110], [125]-[126], [146]-[148]; Taylor, "Why is there no Common Law Right of Privacy", (2000) 26 Monash University Law Review 235 at 238-240.
Northern Sandblasting (1997) 188 CLR 313 at 339-340, 342-343, 347-348, 365-366, 400; cf Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209 at 238-240 [137]-[142]; 167 ALR 575 at 613-616; Jones v Bartlett (2000) 75 ALJR 1 at 38-39 [230]; 176 ALR 137 at 187.
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 307-310, 313-314; cf Liftronic Pty Ltd v Unver [2001] HCA 24 at [87]-[89].
This Court has made it clear that it will only reconsider a previous decision "with great caution and for strong reasons": Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 554.
eg Pyrenees Shire Council v Day (1998) 192 CLR 330 ; Romeo v Conservation Commission (NT) (1998) 192 CLR 431 ; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 ("Crimmins"); Hill v Chief Constable of West Yorkshire [1989] AC 53 .
Esso (1999) 201 CLR 49 at 86-87 [100]. Persistence of a legal rule or practice for a very long time can sometimes indicate its utility, suggesting the need for restraint before abolishing it: Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 at 168 [124].
Esso (1999) 201 CLR 49 at 86-87 [100].
Northern Sandblasting (1997) 188 CLR 313 at 400.
Northern Sandblasting (1997) 188 CLR 313 at 400, 402; cf Jones v Bartlett (2000) 75 ALJR 1 at 42-43 [249]-[252]; 176 ALR 137 at 192-194.
Ha v New South Wales (1997) 189 CLR 465 at 503-504; cf McKinney v The Queen (1991) 171 CLR 468 at 476.
Jones v Bartlett (2000) 75 ALJR 1 at 43 [250]; 176 ALR 137 at 193.
Jones v Bartlett (2000) 75 ALJR 1 at 43 [250]-[251]; 176 ALR 137 at 193-194.
This was a consideration in Northern Sandblasting (1997) 188 CLR 313 at 402 and Jones v Bartlett (2000) 75 ALJR 1 at 43 [250]-[251]; 176 ALR 137 at 193-194; cf Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 307-309, 313-314.
(1999) 200 CLR 485 at 561 [193]; see John Pfeiffer Pty Ltd v Rogerson (2000) 74 ALJR 1109 at 1127 [101]; 172 ALR 625 at 651.
(1999) 201 CLR 49 at 89-90 [105].
Lipohar v The Queen (1999) 200 CLR 485 at 561-562 [194]; R v McDonnell [1997] 1 SCR 948 at 974-975 [33].
Baker v Campbell (1983) 153 CLR 52 at 103; Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 at 130; John v Federal Commissioner of Taxation (1989) 166 CLR 417 at 438-439; John Pfeiffer Pty Ltd v Rogerson (2000) 74 ALJR 1109 at 1129 [113]; 172 ALR 625 at 654; the joint reasons at [114]-[115].
Candler v Crane, Christmas & Co [1951] 2 KB 164 at 178 per Denning LJ referred to in Osmond v Public Service Board of New South Wales [1984] 3 NSWLR 447 at 468-469, 471.
Kirby, "Judging: Reflections on the Moment of Decision", (1999) 18 Australian Bar Review 4 at 9-10; Federal Commissioner of Taxation v Ryan (2000) 201 CLR 109 at 137 [60].
Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 at 528-529, 540, 552; Building Construction Employees and Builders' Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372 at 398-401; see generally Durham Holdings Pty Ltd v New South Wales (2001) 75 ALJR 501; 177 ALR 436 .
eg Northern Sandblasting (1997) 188 CLR 313 ; Lipohar v The Queen (1999) 200 CLR 485 ; Esso (1999) 201 CLR 49 ; Jones v Bartlett (2000) 75 ALJR 1 at 42-43 [249]-[252]; 176 ALR 137 at 192-194.
Gorringe (1950) 80 CLR 357 at 378.
eg Miller v McKeon (1905) 3 CLR 50 ; cf Woollahra Council v Moody (1913) 16 CLR 353 ; the joint reasons at [110]-[111].
Friedmann, (1951) 5 Res Judicatae 21 at 26.
The rule was recently applied in City of Melbourne v Barnett [1999] 2 VR 726 at 727-728. It was there recognised that any change could only be effected by Parliament or by decision of this Court.
Main Roads Act 1924 (NSW), s 32(1A) as amended by the Main Roads and Local Government (Amendment) Act 1957 (NSW), s 2; see the joint reasons at [130].
Pyrenees Shire Council v Day (1998) 192 CLR 330 at 347 [24]-[25] per Brennan CJ; cf Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 442-446 per Gibbs CJ; Crimmins (1999) 200 CLR 1 at 77-78 [216].
See Perre v Apand Pty Ltd (1999) 198 CLR 180 at 215-216 [88]-[92] per McHugh J.
eg Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 ; Rogers v Whitaker (1992) 175 CLR 479 ; Wik Peoples v Queensland (1996) 187 CLR 1 ; Perre v Apand Pty Ltd (1999) 198 CLR 180 .
eg Mickelberg v The Queen (1989) 167 CLR 259 ; Eastman v The Queen (2000) 74 ALJR 915; 172 ALR 39 .
New South Wales Law Reform Commission, Liability of Highway Authorities for Non-Repair, Report No 55 (1987); Law Reform Commission of Western Australia, Report on the Liability of Highway Authorities for Non-Feasance, Report No 62 (1981); Law Reform Committee of South Australia, Report on Reform of the Law Relating to Misfeasance and Non-Feasance, Report No 25 (1974); Law Reform Committee of South Australia, Report Relating to the Review and Reappraisal of the Twenty-Fifth Report of this Committee on the Subject of Misfeasance and Non-Feasance, Report No 51 (1986): see also Luntz and Hambly, Torts: Cases and Commentary, 4th ed (1995) at 447. A report was also made by the New Zealand Torts and General Law Reform Committee, The Exemption of Highway Authorities From Liability for Non-Feasance (1973). The report of the New South Wales Law Reform Commission was tabled in the New South Wales Parliament in September 1989 but its recommendations have not so far been adopted.
Balkin and Davis, Law of Torts, 2nd ed (1996) at 826. The immunity has been abolished by statute in several Provinces of Canada: Municipal Government Act 1968 (Alberta), c 68, s 178; Urban Municipality Act 1970 (Saskatchewan), c 78, ss 161-162; Municipal Institutions of Upper Canada Act 1866 , c 51, s 339; Municipal Act 1970 (Ontario), c 284, ss 427-428.
Highways (Miscellaneous Provisions) Act 1961 (UK), s 1(1); Highways Act 1980 (UK), ss 41, 53; see the joint reasons at [78].
Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26 at 39.
eg Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 at 675.
The joint reasons at [74]-[133].
McDonald, (2000) 22 Sydney Law Review 411 at 415. See also Gloucester Shire Council v McLenaghan (2000) 109 LGERA 419 at 420-421 [4]-[6]; 31 MVR 340 at 341; the joint reasons at [72]-[73].
The joint reasons at [110] referring to Miller v McKeon (1905) 3 CLR 50 .
The joint reasons at [85].
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 252-254; Northern Territory v Mengel (1995) 185 CLR 307 at 347.
Hill v Chief Constable of West Yorkshire [1989] AC 53 .
Trindade and Cane, The Law of Torts in Australia, 3rd ed (1999) at 712.
cf Stovin v Wise [1996] AC 923 at 958 per Lord Hoffmann.
Contrast for example the outcomes in the present cases with Hill v Commissioner for Main Roads (NSW) (1989) 68 LGRA 173; 9 MVR 45 ; Hughes v Hunters Hill Municipal Council (1992) 29 NSWLR 232; Gloucester Shire Council v McLenaghan (2000) 109 LGERA 419; 31 MVR 340 .
cf Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209 at 236 [129]; 167 ALR 575 at 611; Arthur J S Hall & Co v Simons [2000] 3 WLR 543 ; [2000] 3 All ER 673 .
[1971] AC 470 at 480; see also Darker v Chief Constable of the West Midlands Police [2000] 3 WLR 747 at 767-774; [2000] 4 All ER 193 at 212-219.
eg the immunity of landlords: Jones v Bartlett (2000) 75 ALJR 1 at 42-43 [245]-[251]; 176 ALR 137 at 192-194.
eg of advocates: Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209 at 236 [129]; 167 ALR 575 at 611; Arthur J S Hall & Co v Simons [2000] 3 WLR 543 ; [2000] 3 All ER 673 .
McDonald, (2000) 22 Sydney Law Review 411 at 420-421.
Mabo v Queensland [No 2] (1992) 175 CLR 1 at 42.
Art 14.1, International Covenant on Civil and Political Rights, done at New York on 19 December 1966; (1980) Australia Treaty Series No 23 (entered into force 13 November 1980); (1976) 999 United Nations - Treaty Series 171; (1967) 6 ILM 368 .
Spigelman, "Access to Justice and Human Rights Treaties", (2000) 22 Sydney Law Review 141 at 141-143 referring to Osman v Ferguson [1993] 4 All ER 344 and Osman v United Kingdom (2000) 29 EHRR 245 at 316 [150]-[151]. See also Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010 at 1036-1037; [1999] 4 All ER 609 at 634-635; Hoffmann, "Human Rights and the House of Lords", (1999) 62 Modern Law Review 159 at 164.
The joint reasons at [137].
Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 442-446; cf X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 739.
Pyrenees Shire Council v Day (1998) 192 CLR 330 at 419-420 [244]; Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at 476 [117]; Crimmins (1999) 200 CLR 1 at 79-80 [221]-[222].
See Crimmins (1999) 200 CLR 1 at 79 [219].
The joint reasons at [150]-[152].
The joint reasons at [177]-[178].
Ghantous v Hawkesbury City Council unreported, District Court of New South Wales, 21 November 1996 at 14 per Freeman DCJ.
cf Liftronic Pty Ltd v Unver [2001] HCA 24 at [87]-[88].
Kercher, An Unruly Child - A History of Law in Australia (1995) at 136-137.
Liftronic Pty Ltd v Unver [2001] HCA 24 at [85]-[86] referring to Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 314 and other decisions.
The joint reasons at [181].
(1936) 57 CLR 259 .
(1950) 80 CLR 357 .
R v Great Broughton (1771) 5 Burr 2700 at 2701 per Aston J [98 ER 418 at 418]. See also R v Sheffield (1787) 2 TR 106 at 111 per Ashhurst J [100 ER 58 at 61]; Cubitt v Lady Caroline Maxse (1873) LR 8 CP 704 at 717-718 per Grove J.
See, for example, R v Sheffield (1787) 2 TR 106 [100 ER 58]; R v Brightside Bierlow [1849] 13 QB 933 [116 ER 1520].
Archbold's Criminal Cases, (1822) at 1.
Archbold's Criminal Cases, (1822) at 7.
McKechnie, Magna Carta, 2nd ed (1914) at 299, referring to Magna Carta 1215; Magna Carta 1297, 25 Edw 1 c 15.
The Statute of Bridges 1530 (UK) 22 Hen 8 c 5; The Bridges Act 1702 (UK) 1 Anne c 12; The Bridges Act 1741 (UK) 14 Geo 2 c 33; The Bridges Act 1803 (UK) 43 Geo 3 c 59; The Bridges Act 1815 (UK) 55 Geo 3 c 143; R v Surrey (1810) 2 Camp 455 [170 ER 1216]; R v Oxfordshire (1825) 4 B & C 194 [107 ER 1031].
R v Oxfordshire (1825) 4 B & C 194 at 199 per Littledale J [107 ER 1031 at 1033].
See, for example, 6 Geo 1 c 6 (1719); 14 Geo 2 c 33 (1741); 24 Geo 2 c 43 (1751); 30 Geo 2 c 22 (1757); 13 Geo 3 c 78 (1773); 34 Geo 3 c 64 (1794); 34 Geo 3 c 74 (1794); 54 Geo 3 c 109 (1814); 55 Geo 3 c 68 (1815).
The Highway Act 1835 (UK), s 94.
Ex parte Bartlett (1860) 30 LJ (MC) 65; R v Farrer (1866) LR 1 QB 558.
The Highway Act 1835 , s 96.
The Highway Act 1835 , s 96.
Archbold's Criminal Pleading, 19th ed (1878) at 967.
See, for example, Foreman v Mayor of Canterbury (1871) LR 6 QB 214. See also Hartnall v The Ryde Commissioners (1863) 4 B & S 361 [122 ER 494].
See, for example, Hadley v Taylor (1865) LR 1 CP 53; Newark, "The Boundaries of Nuisance", (1949) 65 Law Quarterly Review 480 at 485.
Newark, "The Boundaries of Nuisance", (1949) 65 Law Quarterly Review 480 at 482.
Newark, "The Boundaries of Nuisance", (1949) 65 Law Quarterly Review 480 at 482.
YB 27 Hen 8 Mich pl 10.
"The Boundaries of Nuisance", (1949) 65 Law Quarterly Review 480.
"Public Nuisance - A Critical Examination", (1989) 48 Cambridge Law Journal 55.
Benjamin v Storr (1874) LR 9 CP 400; Fritz v Hobson (1880) 14 Ch D 542; Vanderpant v Mayfair Hotel Co [1930] 1 CH 138 .
See the cases cited in argument in Benjamin v Storr (1874) LR 9 CP 400: Fineux v Hovenden (1599) Cro Eliz 664 [78 ER 902]; Maynell v Saltmarsh (1664) 1 Keb 847 [83 ER 1278]; Hart v Basset (1681) Jones T 156 [84 ER 1194]; Paine v Partrich (1691) Carth 191 [90 ER 715]; Iveson v Moore (1699) 1 Ld Raym 486 [91 ER 1224]; Rose v Miles (1815) 4 M & S 101 [105 ER 773]; Chichester v Lethbridge (1738) Willes 71 [125 ER 1061]; Greasly v Codling (1824) 2 Bing 263 [130 ER 307]; Wilkes v Hungerford Market Co (1835) 2 Bing NC 281 [132 ER 110]; Rose v Groves (1843) 5 Man & G 613 [134 ER 705]; Simmons v Lillystone (1853) 8 Ex 431 [155 ER 1417]; Ricket v The Metropolitan Railway Co (1865) 5 B & S 156 [122 ER 790]; Winterbottom v Lord Derby (1867) LR 2 Ex 316.
Lyme Regis v Henley (1834) 8 Bligh NS 690 [5 ER 1097].
Russell v The Men of Devon (1788) 2 TR 667 [100 ER 359].
M'Kinnon v Penson (1853) 8 Ex 319 [155 ER 1369]; affirmed (1854) 9 Ex 609 [156 ER 260]; Young v Davis (1862) 7 H & N 760 [158 ER 675]; affirmed (1863) 2 H & C 197 [159 ER 82].
Parsons v St Mathew, Bethnal Green (1867) LR 3 CP 56; Cowley v Newmarket Local Board [1892] AC 345 .
Municipality of Pictou v Geldert [1893] AC 524 at 527.
Sanitary Commissioners of Gibraltar v Orfila (1890) 15 App Cas 400 at 411.
(1879) 4 App Cas 256.
Municipality of Pictou v Geldert [1893] AC 524 ; Thompson v Mayor & c of Brighton [1894] 1 QB 332 ; Municipal Council of Sydney v Bourke [1895] AC 433 ; Clarkbarry v Mayor etc of South Melbourne (1895) 21 VLR 426 .
(1879) 4 App Cas 256 at 265.
(1879) 4 App Cas 256 at 269.
See, for example, Scott v Mayor & c of Collingwood (1881) 7 VLR(L) 280 at 291.
See, for example, Ryan v Mayor & c of Malmsbury (1870) 1 VR(L) 23; Reed v Mayor of Fitzroy (1873) 4 AJR 109; Phillips v Mayor & c of Melbourne (1875) 1 VLR(L) 74.
(1879) 4 App Cas 256 at 265.
Buckle v Bayswater Road Board (1936) 57 CLR 259 at 298 per McTiernan J; Gorringe v The Transport Commission (Tas) (1950) 80 CLR 357 at 379 per Fullagar J. See also Webb v The State of South Australia (1982) 56 ALJR 912; 43 ALR 465 ; Bretherton v Hornsby Shire Council [1963] SR (NSW) 334; Hughes v Hunters Hill Municipal Council (1992) 29 NSWLR 232; Guilfoyle v Port of London Authority [1932] 1 KB 336 .
Buckle (1936) 57 CLR 259 at 289 per Dixon J.
Buckle (1936) 57 CLR 259 at 286-287 per Dixon J.
South Australian Railways Commissioner v Barnes (1927) 40 CLR 179 ; White v Hindley Local Board (1875) LR 10 QB 219; Blackmore v Vestry of Mile End Old Town (1882) 9 QBD 451; Thompson v Mayor & c of Brighton [1894] 1 QB 332 ; Skilton v Epsom and Ewell Urban District Council [1937] 1 KB 112 .
(1936) 57 CLR 259 at 290-291.
See, especially, Municipal Council of Sydney v Bourke [1895] AC 433 .
(1905) 3 CLR 50 .
(1905) 3 CLR 50 at 58.
(1905) 3 CLR 50 at 60.
(1905) 3 CLR 50 at 60.
(1936) 57 CLR 259 at 268 per Latham CJ, 281 per Dixon J, 300 per McTiernan J.
Paton and Sawer, " Ratio Decidendi and Obiter dictum in Appellate Courts", (1947) 63 Law Quarterly Review 461 at 466-469.
(1936) 57 CLR 259 at 271-273.
(1936) 57 CLR 259 at 300.
(1936) 57 CLR 259 at 281.
(1936) 57 CLR 259 at 281.
(1911) 45 SCR 194 .
(1936) 57 CLR 259 at 283.
(1936) 57 CLR 259 at 284.
(1936) 57 CLR 259 at 284-285.
(1936) 57 CLR 259 at 286.
(1936) 57 CLR 259 at 286-287.
(1936) 57 CLR 259 at 293.
(1950) 80 CLR 357 at 362 per Latham CJ.
(1950) 80 CLR 357 at 367-368 per Dixon J.
(1950) 80 CLR 357 at 363.
(1950) 80 CLR 357 at 369.
(1950) 80 CLR 357 at 375.
(1950) 80 CLR 357 at 375-376.
(1883) 11 QBD 503.
Sanitary Commissioners of Gibraltar v Orfila (1890) 15 App Cas 400; Cowley v Newmarket Local Board [1892] AC 345 ; Municipality of Pictou v Geldert [1893] AC 524 ; Municipal Council of Sydney v Bourke [1895] AC 433 .
(1950) 80 CLR 357 at 378.
(1950) 80 CLR 357 at 379.
(1950) 80 CLR 357 at 362-363.
(1950) 80 CLR 357 at 369.
See also Municipal Tramways Trust v Stephens (1912) 15 CLR 104 .
O'Connor v S P Bray Ltd (1937) 56 CLR 464 at 477-478 per Dixon J; Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438 ; Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405 per Kitto J; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 424-426 per Brennan CJ, Dawson and Toohey JJ, 457-462 per McHugh and Gummow JJ.
(1878) 3 App Cas 430 at 455-456.
Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 at 220 per Dixon CJ, McTiernan, Kitto and Taylor JJ.
(1905) 3 CLR 50 .
(1905) 3 CLR 50 at 58 per Griffith CJ, with whom Barton J agreed, 63-64 per O'Connor J.
Claims against the Government and Crown Suits Act 1897 (NSW), s 4.
Blyth v The Birmingham Waterworks Co (1856) 11 Ex 781 at 784 [156 ER 1047 at 1049].
[1921] 3 KB 132 at 145.
[1941] AC 74.
Parramatta City Council v Lutz (1988) 12 NSWLR 293 at 326 per McHugh JA. See also Pyrenees Shire Council v Day (1998) 192 CLR 330 at 368 [101] per McHugh J.
(1985) 157 CLR 424 .
(1985) 157 CLR 424 at 445 per Gibbs CJ. See also at 456-457 per Mason J, 471 per Wilson J, 484 per Brennan J.
Mutual Life & Citizens' Assurance Co Ltd v Evatt (1968) 122 CLR 556 and on appeal (1970) 122 CLR 628 ; [1971] AC 793 ; Shaddock & Associates Pty Ltd v Parramatta City Council [No 1] (1981) 150 CLR 225 ; San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340 .
Kondis v State Transport Authority (1984) 154 CLR 672 at 686-687 per Mason J; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550-551 per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ.
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 .
(1993) 177 CLR 423 .
(1998) 192 CLR 431 .
(1939) 62 CLR 179 .
Roads and Jetties Act 1935 (Tas), s 53.
(1884) 9 App Cas 418.
(1884) 9 App Cas 418 at 427.
(1884) 9 App Cas 418 at 432-433.
(1939) 62 CLR 179 at 203.
(1939) 62 CLR 179 at 205-206.
(1972) 129 CLR 116 at 120.
(1993) 177 CLR 423 at 430 per Mason CJ, Deane, Dawson and Gaudron JJ.
See also Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at 456-459 [61]-[67] per Gaudron J.
(1993) 177 CLR 423 at 430.
Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 464 per Mason J; Pyrenees (1998) 192 CLR 330 at 343-344 [18] per Brennan CJ, 385-388 [157]-[165] per Gummow J, 408-412 [225]-[232] per Kirby J; Crimmins (1999) 200 CLR 1 at 23-24 [42]-[43] per Gaudron J.
Perre v Apand Pty Ltd (1999) 198 CLR 180 at 194 [10]-[11] per Gleeson CJ; Crimmins (1999) 200 CLR 1 at 24-25 [44] per Gaudron J, 42-43 [104] per McHugh J (with whom Gleeson CJ agreed).
(1998) 192 CLR 330 at 385-388 [157]-[165].
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 .
Pyrenees (1998) 192 CLR 330 at 393 [182] per Gummow J; Crimmins (1999) 200 CLR 1 at 101 [292] per Hayne J.
Hargrave v Goldman (1963) 110 CLR 40 at 63 per Windeyer J.
Pyrenees (1998) 192 CLR 330 at 376 [125] per Gummow J.
"Duty of Care: Peripheral Parties and Alternative Opportunities for Deterrence", (1995) 111 Law Quarterly Review 301 at 303.
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 75 ALJR 164 at 182 [99]; 176 ALR 411 at 436.
[1990] 2 AC 605 at 618.
Perre v Apand Pty Ltd (1999) 198 CLR 180 .
(1999) 200 CLR 1 at 59 [160].
New South Wales, Law Reform Commission, Liability of Highway Authorities for Non-Repair, Report No 55, (1987); Western Australia, Law Reform Commission, Report on the Liability of Highway Authorities for Non-Feasance, Project No 62, (1981); South Australia, Law Reform Committee, Twenty-fifth Report of the Law Reform Committee of South Australia to the Attorney-General on Reform of the Law Relating to Misfeasance and Non-Feasance, (1974).
(1995) 185 CLR 410 at 458-459.
(1967) 116 CLR 397 at 405.
Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405.
For example, Local Government Act 1919 (NSW), s 249.
cf Modbury (2000) 75 ALJR 164; 176 ALR 411 .
Modbury (2000) 75 ALJR 164; 176 ALR 411 .
(1999) 102 LGERA 399.
(1999) 102 LGERA 399 at 402.
(1999) 102 LGERA 399 at 420.
(1936) 57 CLR 259 .
(1963) 63 SR (NSW) 334.
Buckle v Bayswater Road Board (1936) 57 CLR 259 ; Gorringe v The Transport Commission (Tas) (1950) 80 CLR 357 ; Grafton City Council v Riley Dodds (Australia) Ltd (1955) 56 SR (NSW) 53.
Respondent's submissions, pars [4] and [5].
Naxakis v Western General Hospital (1999) 197 CLR 269 at 306 [110], fn 137.
"'Pathway' means a public road provided for the use only of foot passengers and of such classes of vehicles as may be defined by ordinance."
"'Road' means road, street, lane, highway, pathway, or thoroughfare, including a bridge, culvert, causeway, road-ferry, ford, crossing, and the like on the line of a road through or over a watercourse."
"'Public road' means road which the public are entitled to use, and includes any road dedicated as a public road by any person or notified, proclaimed or dedicated as a public road under the authority of any Act, including this Act, or classified as a main road in the Gazette of the thirty-first day of December, one thousand nine hundred and six."
"Power to construct and improve roads240(1) The council may construct improve maintain protect repair drain and cleanse any public road, and in particular and without limitation of any other power conferred by this Act the council may in respect of any public road:
- (a)
- construct improve maintain repair and cleanse the road with such materials and in such manner as the council thinks fit ..."
(1936) 57 CLR 259 .
See Gorringe v The Transport Commission (Tas) (1950) 80 CLR 357 .
(1950) 80 CLR 357 .
See, in Queensland - Commissioner of Main Roads v O'Ryan (1992) 78 LGERA 387; ACT - Watts v Australian Capital Territory (1997) 139 FLR 8 ; Victoria - Transport Accident Commission v Shire of Corangamite unreported, Supreme Court of Victoria, 29 April 1998; South Australia - McIntyre v Ridley District Council (1991) 56 SASR 343; Western Australia - Hennessey v City of Fremantle (1995) 12 SR (WA) 360; Northern Territory - Hatch v Alice Springs Town Council (1989) 100 FLR 56 .
(1998) 192 CLR 330 .
(1998) 192 CLR 330 at 391-392 [177].
Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 at 220; Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 436, 458, 484.
Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 459-460.
cf Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 479; Fellowes v Rother District Council [1983] 1 All ER 513 at 522; X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 763.
[1932] AC 562 at 580.
Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 501.
(1936) 57 CLR 259 at 269.
(1936) 57 CLR 259 at 281.
(1998) 192 CLR 330 at 371-372 [112].
(1936) 57 CLR 259 at 260.
Buckle, it was argued, ultimately turned on whether the drain in question was related to the road or had both a road and non-road function. See also Tickle v Hastings Shire Council (1954) 19 LGR 256 , a decision of the Supreme Court of New South Wales upholding a jury verdict on facts similar to this case. In Kirk v Culcairn Shire Council (1964) 64 SR (NSW) 281, a different conclusion on not dissimilar facts was reached. See further Law Reform Commission of Western Australia, Report on the Liability of Highway Authorities for Non-feasance, Project No 62, (1981) at 48.
See, for example, Tickle v Hastings Shire Council (1954) 19 LGR 256 ; Kirk v Culcairn Shire Council (1964) 64 SR (NSW) 281; McDonogh v Commonwealth of Australia (1985) 9 FCR 360 ; Hill v Commissioner for Main Roads (1989) 68 LGRA 173 at 179-180 per Samuels JA; Law Reform Commission of Western Australia, Report on the Liability of Highway Authorities for Non-feasance, Project No 62, (1981) at 48; New South Wales Law Reform Commission, Liability of Highway Authorities for Non-Repair, Report No 55, (1987), par 2.11.
(1936) 57 CLR 259 at 284-285.
Singleton Shire Council v Brodie [1999] NSWCA 37 at [46].
(1950) 80 CLR 357 .
"ApplicationSubject to the provisions of this Act:
- (a)
- this Part shall apply to municipalities and shires; and
- (b)
- the powers and duties conferred and imposed upon a council under this Part shall apply in respect of each area to the council of the area."
"Fee-simple
- (1)
- Except where otherwise expressly provided [by this Act, the Crown and Other Roads Act 1990 or any other Act], every public road, and the soil thereof, and all materials of which the road is composed, shall by virtue of this Act vest in fee-simple in the council, and the council, if it so desire, shall by virtue of this Act be entitled to be registered as the proprietor of the road under the provisions of the Real Property Act 1900.
- (2)
- The vesting in fee-simple under this section shall be deemed to be not merely as regards so much of the soil below and of the air above as may be necessary for the ordinary use of the road as a road, but so as to confer on the council subject to the provisions of this Act the same estate and rights in and with respect to the site of the road as a private person would have if he were entitled to the site as private land held in fee-simple with full rights both as to the soil below and to the air above.
- (3)
- Unless otherwise expressly provided nothing in this section shall be deemed:
- ...
- (4)
- This section shall bind the Crown." (emphasis added)
"Power to provide roads
- (1)
- The council may provide any public road, and in particular and without limitation of this or any other power conferred by this Act the council may:
- (a)
- make surveys for the laying out of a new public road;
- (b)
- lay out, construct, and open a new public road;
- (c)
- extend and widen a public road;
- (d)
- divert or alter the course of a public road;
- (e)
- determine what proportion of the width of a public road shall be devoted to carriage-way, bicycle-way, footway, tree-planting, gardens, grass-plots, island refuges, public conveniences, street lamps, fountains, monuments, statues, and the like;
- (f)
- widen a public road to or beyond the width or widths applicable to the road under section 229(2) or to a width or widths less than that width or those widths.
- (2)
- Any land required for the purposes of this section may be acquired in any mode authorised by this Act." (emphasis added)
"Bridges, road-ferries etc.
- (1)
- The power of the council to provide any public road shall include the power to provide:
- (a)
- any bridge, causeway, and the like over any water or depression crossing the line of the road;
- ...
- (2)
- For the purposes of any other power of the council in respect of a public road any bridge, causeway, road-ferry, ford, or the like provided by the council in accordance with this section shall be deemed to be a public road."
"Power to construct and improve roads
- (1)
- The council may construct improve maintain protect repair drain and cleanse any public road, and in particular and without limitation of any other power conferred by this Act the council may in respect of any public road:
- (a)
- construct improve maintain repair and cleanse the road with such materials and in such manner as the council thinks fit ..." (emphasis added)
"Care control and management of roadsThe council shall have the care control and management of every public road, and in particular and without limitation of this or any other power conferred by this Act the council may in respect of any public road ..."
(1936) 57 CLR 259 at 281.
(1999) 200 CLR 1 .
(1999) 200 CLR 1 at 116-117 [365]-[369] per Callinan J.
See Archbold Criminal Pleading, Evidence and Practice, (1994), vol 2, par 31-40.
See Goldman v Hargrave [1967] 1 AC 645 at 657 per Lord Wilberforce.
(1936) 57 CLR 259 at 283.
(1936) 57 CLR 259 at 283.