Deepcliffe Pty Ltd & Anor v Council of the City of Gold Coast & Anor [2001] QCA 342
[2001] QCA 342
Court of Appeal (Qld)|2001-08-31|Before: McMurdo P, Williams JA and Helman JSeparate reasons for judgment of, each member of the Court, each concurring as to the order made.
McMurdo P, Williams JA and Helman JSeparate reasons for judgment of, each member of the Court, each concurring as to the order made.
Catchwords
TORTS – THE LAW OF TORTS GENERALLY – DAMAGES - where the
erection of parking signs was found to be an unlawful exercise
of power –
whether the respondent Council’s conduct caused the appellants' business
Source
Original judgment source is linked above.
Catchwords
TORTS – THE LAW OF TORTS GENERALLY – DAMAGES - where theerection of parking signs was found to be an unlawful exerciseof power –whether the respondent Council’s conduct caused the appellants' businessto suffer economic loss – wheredamages sought for lost trade under thetorts of nuisance, interference with business by unlawful means, misfeasance inpublic officeand negligence – where appeal from primary judge’srejection of all claimsTORTS – NUISANCE – WHAT CONSTITUTES – PUBLICNUISANCE – RELEVANT PRINCIPLES – whether the erection ofsignsrestricting parking constituted an unlawful interference with the use orenjoyment of the appellants' land – whetherthe erection of the signsconstituted an actionable nuisance – where neither the erection norenforcement of the parking restrictionsamounted to interference with theappellants' rights of use and enjoyment of the land – the conduct alleged
to constitute the
nuisance did not deprive patrons the opportunity of attending
the restaurant – the tort of nuisance is not made out.TORTS
– MISCELLANEOUS TORTS – INTERFERENCE WITH CONTRACTUAL AND OTHER
RELATIONS – RELEVANT PRINCIPLES – whether
the tort of interference
with business by unlawful means exists in Australia – whether the tort is
made out in this case –
where the evidence does not establish such a
tortTORTS – MISCELLANEOUS TORTS – MISFEASANCE IN PUBLIC
OFFICE – whether the tort of misfeasance in public office was
established
– where a public officer who has acted without power is not liable for
resulting loss merely because the act is
done ultra vires – where malice
or the intentional infliction of harm should be the actuating motive –
where insufficient
evidence that the actuating motive of the respondent was an
intention to cause harm to the appellants' businessTORTS –
NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE
– SPECIAL RELATIONSHIPS AND DUTIES
– LOCAL AUTHORITES –
whether the Council owed a duty of care not to be careless in the exercise of
its powers to regulate
parking and to exercise its powers in such a way as not
to cause economic loss to the applicant – where a public authority
may be
subject to a common law duty of care when it exercises a statutory power or
performs a statutory duty – where a duty
of care does not arise in
relation to acts that reflect the policy making and discretionary elements
involved in the exercise of
statutory discretions – where the installation
and enforcement of parking signs are policy matters to which the tort of
negligence
does not applyLocal Government Act 1936–1985
(Qld), s 31(18)Local Government Act 1993 (Qld), s 117(1)(a), s
117(2)(b) Traffic Act 1949 (Qld), s 12G(1), s
44B(2A)Andrae v Selfridge & Co [1938] 1 Ch 1, referred
toAcrow (Automation) Ltd v Rex Chainbelt Inc [1971] 3 AllER 1175,
referred toBeaudesert Shire Council v Smith [1966] HCA 49
(1969-70) 120 CLR 145,
referred toBenning v Wong (1969-70) 122 CLR 249, referred
toBrodie v Singleton Shire Council [2001] HCA 29, 31 May 2001,
consideredCaledonian Collieries Ltd v Speirs [1957] HCA 14
(1957) 97 CLR 202,
referred toCaltex Oil (Australia) Pty Ltd v The Dredge
“Willemstad” [1976] HCA 65
(1976) 136 CLR 529, referred toCrimmins v
Stevedoring Industry Finance Committee [1999] HCA 59
(1999) 200 CLR 1, referred
toDeasy Investments Pty Ltd & Anor v Monrest Pty Ltd Appeal No
1659 of 1996, 22 November 1996, consideredDunlop v Woollahara Municipal
Council (1982) AC 158, referred toGillingham Borough Council v Medway
(Chatham) Dock Co Ltd [1993] QB 343, referred toHargrave v
Goldman [1963] HCA 56
(1963) 110 CLR 40, consideredJ T Stratford & Son Ltd v
Linley [1965] AC 269, referred toLyons, Sons & Co v Gulliver
[1914] 1 Ch 631, consideredNorthern Territory of Australia v Mengel
(1995) 185 CLR 307, consideredPatrick Stevedores Operations Pty Ltd v The
Maritime Union of Australia [1998] WASCC 120, 23 April 1998Perre v
Apand Pty Ltd [1999] HCA 36
(1999) 198 CLR 180, referred toPinky’s Pizza on
the Run Pty Ltd v Pinky’s Seymour Pizza & Pasta Pty Ltd Appeal No
8092 of 1997, 17 November 1997Pyrenees Shire Council v Day [1998] HCA 3
(1998) 192
CLR 330, referred toSanders v Snell (1998) 196 CLR 329,
consideredThe Council of the Shire of Sutherland v Heyman (1985) 157
CLR 425, referred toThree Rivers District Council v Governor and Company
of the Bank of England [2000] UKHL 33
[2000] 2 WLR 1220, referred toTorquay Hotel Co
Ltd v Cousins [1969] 2 Ch 106, referred toVanderpant v Mafair Hotel
Co [1930] Ch 138, distinguishedVictoria Park Racing and Recreation
Grounds Co Ltd v Taylor [1937] HCA 45
(1937) 58 CLR 479, referred toWallace Edward
Rowling v Takaro Properties Ltd [1980] AC 473, consideredWalsh v
Ervin [1952] VicLawRp 47
(1952) VLR 361, distinguishedYuen Kun Yeu v Attorney-General
for Hong Kong [1987] UKPC 16
[1988] 1 AC 175, referred to
Judgment (35 paragraphs)
[1]
TORTS - THE LAW OF TORTS GENERALLY - DAMAGES - where the erection of parking signs was found to be an unlawful exercise of power - whether the respondent Council's conduct caused the appellants' business to suffer economic loss - where damages sought for lost trade under the torts of nuisance, interference with business by unlawful means, misfeasance in public office and negligence - where appeal from primary judge's rejection of all claims
[2]
TORTS - NUISANCE - WHAT CONSTITUTES - PUBLIC NUISANCE - RELEVANT PRINCIPLES - whether the erection of signs restricting parking constituted an unlawful interference with the use or enjoyment of the appellants' land - whether the erection of the signs constituted an actionable nuisance - where neither the erection nor enforcement of the parking restrictions amounted to interference with the appellants' rights of use and enjoyment of the land - the conduct alleged to constitute the nuisance did not deprive patrons the opportunity of attending the restaurant - the tort of nuisance is not made out.
[3]
TORTS - MISCELLANEOUS TORTS - INTERFERENCE WITH CONTRACTUAL AND OTHER RELATIONS - RELEVANT PRINCIPLES - whether the tort of interference with business by unlawful means exists in Australia - whether the tort is made out in this case - where the evidence does not establish such a tort
[4]
TORTS - MISCELLANEOUS TORTS - MISFEASANCE IN PUBLIC OFFICE - whether the tort of misfeasance in public office was established - where a public officer who has acted without power is not liable for resulting loss merely because the act is done ultra vires - where malice or the intentional infliction of harm should be the actuating motive - where insufficient evidence that the actuating motive of the respondent was an intention to cause harm to the appellants' business
[5]
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - LOCAL AUTHORITES - whether the Council owed a duty of care not to be careless in the exercise of its powers to regulate parking and to exercise its powers in such a way as not to cause economic loss to the applicant - where a public authority may be subject to a common law duty of care when it exercises a statutory power or performs a statutory duty - where a duty of care does not arise in relation to acts that reflect the policy making and discretionary elements involved in the exercise of statutory discretions - where the installation and enforcement of parking signs are policy matters to which the tort of negligence does not apply