GOSFORD CITY COUNCIL v. TIMBS [2000] NSWCA 31

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40013/99 DC 70162/97

PRIESTLEY JA MEAGHER JA POWELL JA

JUDGMENT 1 PRIESTLEY JA: On 23 February last this court heard a second application by Gosford City Council (the Council) for leave to appeal against a judgment by Puckeridge DCJ in favour of Mrs Timbs. It was agreed that argument should also be heard as on an appeal, so that if the court granted leave it could dispose of the leave application and the appeal at the same time. 2 At the end of the oral argument the court reserved its decision. At that time it seemed to me that leave should probably be granted and the appeal allowed. Powell JA's reasons, which I have had the benefit of reading in draft, and in which he sets out all the materials relevant to a consideration of the case, contain a chain of reasoning much along the lines which I was disposed to think was correct at the time the court reserved its decision. 3 However, on giving the matter further consideration I have formed a different opinion. 4 The basic concern, and submission, of the Council was that the trial judge had reached a decision contrary to the law as laid down in Buckle v Bayswater Road Board (1936) 57 CLR 259 and Sisson v North Sydney Municipal Council [1966] 1 NSWR 580. Such a decision was thought to open up a vista of liability for local government authorities imposing on them greater financial burdens than they were equipped to bear. 5 As I understand his reasons however, the trial judge did not set out to disregard or defy the well known immunity of local government authorities as highway authorities from liability for damage caused by non feasance as distinct from misfeasance. The trial judge expressly acted on the footing that the case was not a non feasance case. 6 A feature of the facts of the case which lay at the heart of the trial judge's approach to it, and which was unusual in the field of operations of the non feasance rule was that the crossing on which Mrs Timbs had slipped had been built over the verge part of the road by an adjoining land owner, with the consent of the Council, and subject to conditions, the fulfilment of which it was the Council's duty to oversee and which it had not overseen. The trial judge thought this was causally connected to Mrs Timbs's accident. 7 This feature of the case introduces an element additional to the standard non feasance situation which, to my mind, removes the case from being one of which if could confidently be said the outcome of the case was clearly and obviously wrong. 8 When the two considerations so far mentioned are taken together with the amount of the judgment, $26,000, it does not seem to me that the case is such a threat to the purity of the law laid down in the Buckle and Sisson cases as to call for leave to be granted. I do not think Puckeridge DCJ's decision could be particularly useful as precedent or authority. 9 For the reasons so far given, in my opinion the case is unsuitable for a grant of leave. 10 There are other matters which to my mind are also relevant in pointing towards this conclusion. 11 The court was told that before the Council made its second application for leave to this court, it had already filed an application in the High Court for special leave to appeal to that court and that that application had been left on foot pending the result of this second application to this court. The court was also told, as it has been in other cases, that a Full Bench of the High Court will, some time later this year, hear special leave applications in which full argument will be permitted raising the appropriateness of Buckle in present day conditions. No-one can forecast the result of that reconsideration by the High Court. The law as stated in Buckle may be re-stated in a major or minor degree or left standing untouched. One thing that seems reasonably certain however is that it will be the subject of detailed argument to the court and thorough consideration by the court. 12 In the circumstances of the present case, where the Council has a pending High Court special leave application but is simultaneously asking this court to consider the applicability of Buckle and Sisson to what appears to be a case at least slightly out of the usual run of non feasance cases, and where the materials which would be available to the court on an appeal are by no means ideal for such a consideration, it seems to me somewhat incongruous that this court should be asked to allow the case to go forward as a full appeal. 13 The strongest argument put forward on the Council's behalf against the opinion I have formed is that the Council, like any litigant, is entitled to the justice of having law of long standing applied to it. 14 There are two parts to my response to this argument. The first is that it raises questions which have divided lawyers and philosophers since before the time of Aristotle, all stemming from the difference (as some argue and some deny) between law and justice. I need say no more about that debate here than that when the Council submits in this case that justice requires that it should succeed it is relying on a concept that does not, in the circumstances of this case, produce any clear answer. Many considerations arising from all the facts that have brought the case to this point and in the present state of the law (which includes the requirements relating to leave to appeal) may be taken into account in deciding what is a just outcome not only of this case as a whole, but also of this leave application. The question seems to me to be complex and not simple, and I am not persuaded that the answer favours the Council. 15 The second part of my response concerns something I have already referred to, the need for the Council to obtain leave to appeal. If the council's argument about justice were applied in the bare form in which it was put to the court and if it were given its full logical force, it would result in this court having to treat every application for leave which was not merely frivolous as if it were an appeal in order to ensure to the best of the court's capacity that a correct legal result was reached. One of the purposes of the interposition between trial and appeal of the need to obtain leave to appeal is to filter out not merely hopeless cases but also those which for a variety of reasons the court may feel are not appropriate for the court to deal with on appeal. In my opinion this is not an appropriate case for the grant of leave. 16 The course the court should follow in my opinion is that the application for leave should be dismissed and the appeal not decided.

17 MEAGHER JA: I have had the advantage of reading in draft the judgment of Powell JA, with which I am glad to say I entirely agree. 18 At the previous hearing of this matter, in the form of an application for leave to appeal to this court: from the judgment of Puckeridge DCJ, the application was dismissed. In the course of giving the Court's judgment, Giles JA said: "it was common ground (at the trial before Puckeridge DCJ) that the claimant was the occupier of the relevant part of the footpath and the entity responsible for it." Sheller JA and Cole JA agreed with him. 19 I cannot understand why, as a perusal of the trial judge's judgment demonstrates that this was not the case. Why did his Honour refer to the nonfeasance/misfeasance rule if it were common ground that it was irrelevant? 20 In these circumstances we are, in my opinion, obliged to revoke the Court's previous orders. 21 I agree with the orders proposed by Powell JA.

22 POWELL JA: The questions which arise for determination on the present application are:

1. whether it is open to the Claimant, whose earlier Summons for leave to appeal from a Judgment delivered by Puckeridge DCJ in the District Court was dismissed by this Court, now to apply to have that order for dismissal revoked and to have leave to appeal granted;

2. if it be open to the Claimant so to do, whether that order should be revoked and leave to appeal be granted;

3. if those orders be made, whether the appeal ought to be upheld, counsel for the Opponent having indicated, on the hearing of the application, that, if leave be granted, the hearing should also be regarded as a hearing of the appeal. 23 The unusual nature of the application, and the facts which have given rise to its being made, are such as, in my view, make it desirable that there should be given a more detailed statement of facts than might otherwise have been thought to be the case. 24 Tudawala Crescent, Kariong, where, at the relevant time, the Opponent, Mrs. Timbs, lived in a property known as 52 Tudawala Crescent, lies within the boundaries of the City of Gosford, of which the Claimant is the relevant local government authority. 25 Although the materials which are before the Court do not reveal when it was that the subdivision of which Tudawala Crescent forms part was undertaken, the matters to which I will shortly refer make it likely that, in September 1992, the relevance of which date will shortly appear, the subdivision was of comparatively recent origin. 26 Although, again, the materials which are before the Court do not clearly demonstrate that this was so, the probability is that the road reserve in Tudawala Crescent was of the standard width - 20 metres (Local Government Act 1919 s.227(1)(c) - for a residential road, the carriageway being approximately 13.4 metres wide and the verge on each side of the carriageway being approximately 3.3 metres wide. 27 In September 1992, s.232 of the Local Government Act 1919 provided (inter alia) as follows: "232(1) Except where otherwise expressly provided, 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 the air above. (3) Unless otherwise expressly provided nothing in this Act shall be deemed: - ……… (e) to impose on the Council any liability in respect of any rate under any Act or in respect of any dividing fence under the Dividing Fences Act, 1951, or any liability in any case where the council would not be subject to the liability if this Act conferred on the council the care, control and management of the road and did not vest in the road in fee simple within the council. ………"

28 In August 1992, the then owners of the property known as 50 Tudawala Crescent applied to the Claimant for approval to construct an access crossing from their property - in line with the concrete slab position for the car port - to the kerb line of Tudawala Crescent - the distance from the boundary of the property to the kerb line was approximately 3.3 metres. 29 On 7 September 1992 the Claimant gave the then owners of the property 50 Tudawala Crescent approval to construct the access crossing subject to a number of conditions of which the following are relevant: "1. The level at the boundary of the property is to be a maximum of 550 mm above the top of the existing kerb and gutter. ……… 3. A concrete kerb and gutter vehicular crossing is to be constructed as shown by the attached plan. ……… 9. Council's Overseer W. Read is to be contacted on 258300 when formwork is complete and is to be given at least 48 hours notice. 10. All work is to be completed to the satisfaction of the City Engineer."

The "attached plan" - "Standard Access for Properties Above the Road"- provided that for a distance of 1.80 metres from the gutter, the slope of the driveway was not to exceed 1 in 8, while the slope thereafter to the boundary of the property was not to exceed 1 in 4. The conditions of the Claimant's approval did not include any condition as to the surface finish of the access crossing. 30 Save that the access crossing must have been constructed at some time between September 1992 and January 1994, the materials which are before the Court do not disclose when it was that the crossing was constructed; nor do those materials disclose by whom it was constructed, although it is reasonable to assume that it was constructed by a contractor retained by the then owners of the property 50 Tudawala Crescent. Whenever it was that the access crossing was constructed the Claimant was not informed beforehand that the formwork had been placed and that the crossing was ready to be poured. 31 Although the crossing when constructed was of concrete, the concrete was treated so as to remove the fine sand/cement material and to expose the aggregate which was of round river gravel, the individual pebbles varying in size from 3 mm to 10 mm with an average size of 8 mm and the pebbles protruding from the concrete surface by 2 to 3 mm. The crossing was constructed to a constant slope of approximately 1 in 6.2 between the kerb and the boundary of the property. Thus the crossing did not comply with the requirement that for a distance of 1.8 metres from the kerb the maximum slope should not exceed 1 in 8. The level of the crossing at the boundary of the property was 480 mm above the top of the existing kerb and gutter. The crossing was 3 metres wide. 32 The Local Government (Consequential Provisions) Act 1993 repealed (inter alia) s.232 of the Local Government Act (1919) as from 1 July 1993. 33 The Roads Act 1993, which came into operation on 1 July 1993, provided (inter alia) as follows: "145 Roads authorities own public roads. ……… (3) All public roads within a local government area (other than freeways and Crown roads) are vested in fee simple in the appropriate roads authority. ……… 146 Nature of ownership of public roads (1) Except as otherwise provided by this Act, the dedication of land as a public road: (a) does not impose any liability on the owner of the road that the owner would not have if the owner were merely a person having the care, control and management of the road, and ……… (d) does not constitute the owner of the road as an occupier of the road."

while s. 7 of the Roads Act 1993 provides (inter alia): "7. Roads authorities ……… (4) The Council of a Local Government area is the roads authority for all public roads within the area, other than: (a) any freeway or Crown road, and (b) any public road for which some other public authority is declared by the regulations to be the roads authority. ………" 34 In January 1994, by which time, as I have earlier recorded, the access way to the property known as 50 Tudawala Crescent had been constructed, the Opponent moved with her family to live at the property 52 Tudawala Crescent. 35 On 22 October 1994, a day on which there had been some earlier light rain, the Opponent took some of her children to a nearby park where they might play. Although, as is apparent from what I have earlier written, Tudawala Crescent was kerbed and guttered, there were no formed footpaths on the verge on either side of the carriageway, so that, if one were to go to the park, one was obliged either to walk on the carriageway or along the grass verge and across such driveways as there were between the Opponent's home and the park. 36 As they returned from the park the Opponent - who was wearing flat heeled shoes, the soles of which were made of smooth synthetic - and her children walked along the grass verge of Tudawala Crescent on the same side of the carriageway as the properties known as 50 and 52 Tudawala Crescent; as they did so they were at a distance of about 1 metre from the kerb. At the time, so the Opponent said, the grass was still wet from the rain. While she was in the course of walking across the access way outside the property known as 50 Tudawala Crescent, the Opponent's feet slipped and she fell landing heavily on her left elbow sustaining the injuries in respect of which she sought to recover damages in the proceedings which were later heard by Puckeridge DCJ. 37 Thereafter - but not until October 1997 - there was filed in the District Court at Gosford a Statement of Claim in which the Opponent's claim was pleaded as follows: "1. At all material times the Defendant was a city constituted pursuant to section.11 of the Local Government Act 1919 (as amended). 2. At all material times the Defendant occupied the council verge in front of the property 50 Tudawali (sic) Crescent, Kariong in the State of New South Wales (the property). 3. On or about 22 October 1994 the Plaintiff was crossing a council verge in front of the property and slipped on a pebblecrete driveway constructed on the Council verge and fell, whereby the Plaintiff sustained injury, loss and damage. ……… 5. The Plaintiff's aforesaid injuries were caused by the negligence of the Defendant, its servants or agents. Particulars of negligence (a) Allowing a driveway to be built across the footpath/council verge that was not safe for pedestrian use. (b) Allowing a driveway to be built across the footpath/council verge that was slippery when wet. (c) Allowing a driveway to be built across the council verge that was likely to cause injuries to pedestrians crossing the verge. (d) Allowing a driveway to be built across the council verge with a slope that with other factors made the driveway slippery. (e) Allowing a driveway to be built across the council verge consisting of a pebblecrete surface with pebbles protruding from the concrete surface more than normally found. (f) Res ipsa locquitor (sic). ………"

38 So far as is presently relevant, the Claimant's Notice of Grounds of Defence was as follows: "1. The Defendant does not admit the allegations in paragraphs 2 of the Statement of Claim. 2. The Defendant denies the allegations in paragraphs 3, 4, 5 and 6 of the Statement of Claim. ………"

39 The proceedings came on for hearing before Puckeridge DCJ in the District Court sitting at Gosford on 16 December 1998. 40 In the course of opening the case to his Honour, counsel for the Opponent, in a passage upon which this Court as then constituted placed emphasis in its reasons for dismissing the application for leave to appeal, said (inter alia): "… (the Plaintiff) was walking near her home on the footpath, the grassed area and then crossed onto the driveway of her neighbour's property. The driveway your Honour is a sloping driveway with a pebblecrete type surface and she slipped and fractured the radial head of her left elbow … The driveway of course forms part of the footpath and it is common ground the defendant is the occupier of that area and indeed the entity responsible for it …"

41 Then, after a reference by counsel for the Opponent to what was claimed to be the unsafe nature of the driveway and the dispute between the parties' respective experts as to that matter, Puckeridge DCJ said to counsel then appearing for the Opponent: "… Is the issue … this. Would you agree that the essential issue or does the misfeasance rule become involved in this case. "

to which counsel replied (inter alia): "Yes, well yes your Honour. The essential leaving aside the dispute as to whether the driveway is unsafe and that will be a clash of opinions and accepting everything my friend says, the Defendant's case is that it's under no duty to do anything about this. It didn't construct the driveway. It was constructed by the home owner. The Defendant says it has no duty to come out and inspect driveways that are constructed by home owners and check whether they're safe or whether the slopes right or wrong and so it's under no duty and it being part of the footpath it is …"

and, after a suggestion by his Honour that, if the access was not constructed in accordance with the appropriate gradient, that was the end of the matter: "No your Honour because the Council knows nothing about it other than approval and as a matter of, in my submission, a matter of law the Council does not have a duty to come out and repair or inspect and I'll be handing some authority up to your Honour on that issue."

42 Although the materials which were before the Court, as then constituted, when it considered and then dismissed the Claimant's application for leave to appeal did not contain the transcript - which has since been obtained - of the submissions made by counsel at the conclusion of the hearing before his Honour, the following passages in the Judgment which Puckeridge DCJ delivered on 17 December 1998, in my view, sufficiently reveal the bases upon which the Opponent and the Claimant conducted their respective cases on the hearing before his Honour: "In submissions it was agreed that one of the first matters to be determined was whether the access way was built in a manner where the uniform slope of one in six created an unnecessary danger. The defendant submitted that the uniform slope of one in six did not increase the risk of injury in any way. ……… I consider that the evidence of the experts in this case is of assistance and as to the evidence of the experts, I prefer the evidence of Mr. Ellis and I consider that the uniform slope of one in six did create an unnecessary danger. ……… There is no dispute between the parties … that the plaintiff fell in the manner in which she claimed. Therefore it must follow that the plaintiff fell as a result of this unnecessary danger, namely the slope. ……… Next question to be determined is whether or not the defendant was negligent. The plaintiff submits that the defendant was negligent firstly as an occupier of the accessway. The plaintiff submits that the defendant was an occupier as it had the clear control and, or because it had power as to control and management of that particular access way. In all probability it could be said that the Council was a joint occupier with the owner of the property. I would accept that the defendant was an occupier. As an occupier it did, in law, and was under a duty to take reasonable care to protect persons including the plaintiff using this driveway from foreseeable or unnecessary risk of injury. The plaintiff further submits that its duty was to take positive steps to protect the plaintiff from foreseeable or unnecessary risk. I do not proceed to consider the case on that basis. I consider the defendant's duty in accordance with whether or not it took reasonable care to protect the plaintiff from foreseeable risk of injury. In that regard the defendant says that having given approval for the access way to be built, it had no further obligations in regard to the matter and to impose an further obligation would be onerous in all the circumstances. ……… I would consider that in considering the obligations of the Council as an occupier, particularly in view of Condition 10 in exhibit D, reasonable care would require that the work was completed in accordance with the approval and to the satisfaction of the Council. The defendant submits that this is a case of nonfeasance and that the Council in this particular circumstances (sic) can claim the benefit of the nonfeasance principle. I do not consider that the Council can claim the benefit of the nonfeasance principle in all the circumstances. This is a case not of repair but of construction of a particular accessway which construction resulted in, and I accept on the evidence before me, an unnecessary danger. Reasonable steps could have been taken by the Council to see that the accessway was constructed in the manner in which they required, which obviously one would consider had a view to the safety of people using that particular accessway. Having regard to all the circumstances and also to Exhibit D Condition 10 and the requirement that the work be completed to the satisfaction of the City Engineer, I do not consider that it would be too onerous a task to see that the work was completed in accordance with the approval as granted and constructed in a manner which did not create any unnecessary risk of danger to persons using the accessway. It is further submitted by the plaintiff that the defendant was guilty of negligence in that it undertook to approve the construction of the accessway and in so undertaking, it was under a duty to see to it that the accessway was constructed in accordance with its approval. This raises a question of the negligence of the defendant as a statutory authority, which it undoubtedly was, in the exercise of its power to manage and control the accessway and specifically to require that the accessway be built in accordance with the approval as granted by it. There is no real need to consider this particular question, although it does raise some very interesting problems."

43 The passages from the Judgment which I have just set out invite the following observations:

1. although it is clear enough that the primary case for the Opponent was that, as had been pleaded in her Statement of Claim, the Claimant was an occupier of the accessway and, as such occupier was subject to the duties of an occupier towards persons entering upon the land of which it was the occupier, the Claimant's case was that it was not subject to the duties of an occupier but, rather, that, as a road authority, it was entitled to the benefit of such an authority's immunity from suit in respect of accidents occurring on the road reserve unless those accidents had been due to an unnecessary danger caused by, or added to by, the road authority;

2. it is equally clear, in my view, that Puckeridge DCJ, when holding that the Claimant was an occupier and, as such, subject to the duties imposed on an occupier in respect of persons entering upon the land occupied by it, did not do so in reliance upon any concession by the Claimant that it was an occupier but, rather, reached that conclusion despite the submissions advanced on behalf of the Claimant;

3. further, it is apparent that, although no such case was pleaded in her Statement of Claim, the Opponent appears to have sought to raise a case of negligence based upon some general duty of care said to be owed by road authorities to users of the highway, which case, although remarked upon by Puckeridge DCJ, his Honour felt unnecessary to determine.

44 Although the passages from Puckeridge DCJ's Judgment to which I have referred to not demonstrate that this was so, it would appear:

1. that at no time was his Honour referred by counsel then appearing for the Claimant to the provisions of either s.232 of the Local Government Act 1919 or of ss. 145, 146 of the Roads Act 1993;

2. that, despite his earlier stated intention to refer his Honour to "the authorities", counsel then appearing for the Claimant did not, in the course of his final submissions, refer his Honour to the decision of the High Court in Buckle v. Bayswater Road Board (1936) 57 CLR 259 in which (at 281-282) Dixon J (as he then was) said (inter alia): "The purpose of giving the road authority property in and the 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."

nor to the decision of this Court in Sisson v. North Sydney Municipal Council [1966] 1 NSWR 580 the Judgment of the Court in which contains (at 583-584) the following passage: "The next question is whether the council, even though it is not a drainage authority in relation to this drain, can nevertheless be liable for its non-repair in some other capacity, either because the drain is an artificial structure and as council as owner in the fee simple of the highway is owner of the drain, or because the council has the duty of an occupier. We do not think that the council can be made liable in this way. We do not think that the vesting in the council of the fee simple of all public roads within its area thereby imposed on the council any obligation which it would not have had if the roads had not been so vested. Indeed the vesting section expressly provides otherwise. If the council is the highway authority, then it has the duties of such an authority and the vesting in it of the fee simple of the highway does not increase or diminish that duty. If the council is a drainage or other authority, then it has the duty and obligations of such an authority and the fact that the fee simple of the highway is also vested in it does not increase or diminish those obligations and duties. If it were otherwise a council would become responsible for everything which became affixed to an part of the soil of the highway. No such liability has ever been suggested. Every tree planted, every gutter made, every piece of rock work done by householders on the verge of the roadway adjoining their houses would, because it vested in the council (see s.233(3)) become a responsibility of the council because they would be artificial structures and because ownership in them would become vested in the council. No case can be found to support such a proposition and we do not think that it can be accepted, nor do we think that the obligation can be expressed in another associated way by regarding the council as an occupier of the highway. It is very doubtful how far a Council can be so described, but, even if it can, we do not think that any ordinary obligation of an occupier of land can be ascribed to it. Its rights and duties in relation to the highway are those of the highway authority. Its other rights and duties depend wholly on the capacity which it has in addition to or instead of being the highway authority. Therefore since we have concluded that the defendant Council is not a drainage authority in relation to this particular drain there is no basis for making it liable for the state of non-repair."

45 In the event, his Honour found a verdict for the Opponent, awarding her the sum of $25,000.00 by way of damages and after adding the sum of $1,000.00 by way of interest, directed that there be Judgment for the Opponent in the sum of $26,000.00. 46 The Claimant's Summons for leave to appeal from the Judgment of Puckeridge DCJ was filed on 7 April 1999. 47 In the Summary of Claimant's Argument which was filed together with the Claimant's Summons for leave to appeal the following (inter alia) paragraphs appear: "13. With the greatest of respect his Honour was in error in equating the Claimant's duty as a road authority to that of an occupier. Such a determination was clearly inconsistent with well established Australian Authority. Buckle v. Baywater (sic ) Board (1937) 57 CLR 259 at 280-1 per Dixon J; Bretherton v. Council of Shire of Hornsby (1963) SR (NSW) 333 at 338 per Lacourt (sic). 14. Counsel for the Plaintiff in opening his Client's case said: It is common ground that the Defendant is the occupier of that area and indeed the entity responsible for it. Were it to be argued that this was a concession made on behalf of the Claimant it is with respect not a matter which should bind the parties on appeal being clearly inconsistent with the established common law in Australia and with s. 146 Roads Act 1993 both of which his Honour was bound to apply. Electricity Commission of NSW v. Yates (1991) 30 NSWLR 351; I & J Foods Pty. Ltd. v. Bergzam Pty. Ltd. (unreported) Court of Appeal 9 April 1997 per Giles AJA at 8. Moreover, his Honour did not act on any concession but decided the matter for himself after hearing legal argument (judgment at page 5)."

48 The Claimant's Summons for leave to appeal came on for hearing before the Court as then constituted on 16 July 1999, on which day Mr. S. G. Campbell - who had not appeared for the Claimant at trial before Puckeridge DCJ - appeared for the Claimant and Mr. R.E. Quickenden - who had appeared on the trial before Puckeridge DCJ for the Opponent - appeared for the Opponent. 49 The transcript record of the hearing records, virtually at the outset of the hearing, (T. 1-2) the following: "COLE AJA: Mr. Campbell, if I can interrupt you, para 14 of your submissions, p4 'It's common ground that the defendant is the occupier of that area and indeed he has to be responsible for it'. Was the case fought on that basis? CAMPBELL: In my submission no … COLE AJA: Well when that was said was there any objection taken to it? CAMPBELL: There was no objection taken directly at that point. After my friend had made some brief opening remarks along those lines including that statement, the trial judge asked counsel for the defendant then appearing some questions to elucidate what the issues were. I submit that if one looks at what the answers to those questions were it was clear that however it might be that there is a factual matter the defendant may be called an occupier of the footpath but the principle of law to be applied were not those of an occupier of public lands."

50 The transcript record also records (T. 13-14) the following interchange which followed a reference by Mr. Campbell to s.146(1) of the Roads Act 1993: "SHELLER JA: So Buckle still reigns under (A) (sic). CAMPBELL: Yes your Honour. SHELLER JA: And (D) (sic) makes plain that the owner is not to be treated as an occupier. CAMPBELL: Yes your Honour. SHELLER JA: What did his Honour say about all this. Did anybody stop to tell him about the sections and the Act? CAMPBELL: No your Honour, nobody did. GILES JA: He was, I think, pressed with the highway rule, the misfeasance rule, common law rule. CAMPBELL: He was your Honour, that's so. But no one took him to the specific provisions at any time. COLE AJA: So the simple point you make is his Honour must be wrong because he dealt with it on the basis that the council was an occupier and the Act says it's not. CAMPBELL: Yes your Honour, the Act and the common law that he's (sic) not. GILES JA: Your point is the common law says he's not Sisson (?) for example. CAMPBELL: Yes your Honour. GILES JA: And the Act reinforced … CAMPBELL: Yes indeed your Honour. SHELLER JA: He did look at Sisson didn't he? CAMPBELL: He wasn't referred to Sisson. He was not referred to it. It's not clear what authorities he was referred to because I think that my learned friend did appear for the plaintiff at the trial, so that quite a lot of authority was referred to his Honour but Mr. Quickenden tells me, and I accept, that Sisson wasn't one of them. SHELLER JA: He did refer to the nonfeasance rule in order to say it didn't apply. CAMPBELL: Yes your Honour, that's so. He does refer to that, he was taken to it and at the outset of the case he asked a specific question of Mr. Cavanagh whether the misfeasance rule becomes involved in this case, and that's at p.2 of the transcript of the first day, and Mr. Cavanagh said yes, well yes, your Honour. The specific finding in relation to occupation is on p.5 of his Honour's judgment. The first full para on that page, commencing the next question, the last sentence … SHELLER JA: This all proceeds on the wrong premise. COLE AJA: His Honour may have been induced into that state by the fact that in opening he was told it was common ground wasn't he? Isn't that what your submissions tell us? CAMPBELL: Yes that's so. My summary of argument tells your Honour that, and that's quite correct. There are two points. Yes he was told that, but what he was subsequently told by Mr. Cavanagh put that in context, I submit. But even if there was still some lingering doubt about that, there are two other bases why we're not, I submit, stopped (sic) from raising the point on appeal. The first basis is as a factual matter his Honour didn't rely upon any concession that might have been made but did consider the matter in some detail for himself. The second point comes out of the cases I have referred to at p. 4 para 14 of the claimant's summary of argument, particularly Electricity Commission of New South Wales and Yates."

51 Although the transcript record indicates that the Claimant's submissions continued for some time thereafter, during which time Cole AJA returned on a number of occasions to the questions of "the concession", I do not consider that a further recording of the debate is necessary. 52 At the conclusion of the submissions on behalf of the Claimant, the Court adjourned for a short time to consider the matter, on its return, after delivering a short Judgment, ordering that the application be dismissed with costs. 53 The bases upon which the Court founded its decision are sufficiently revealed by the following paragraphs in the Judgment delivered by Giles JA, which Judgment was the principal Judgment of the Court: "We heard argument from the claimant on the merits of the appeal, as the common understanding was that the appeal should be disposed of if leave were given. From that argument, and we have not heard from the opponent in response, there seems to be a very strong case for his Honour having erred in treating the claimant as an occupier and subject to the duty I have described. Such a view of the claimant as a road authority would seem to be contrary to the common law, see, for example, Sisson v. North Sydney Municipal Council (1966) 1 NSWR 580 esp at 583, and also to statute, see s.146(1)(d) of the Roads Act 1993. ……… The difficulty is that the case was fought before his Honour on a different basis from that involved in the arguments put by the claimant to this Court. At the commencement of the hearing his Honour was told by counsel for the opponent, without dissent from counsel for the claimant (not counsel appearing before us), that it was common ground that the claimant was the occupier of the relevant part of the footpath and the entity responsible for it. There was then some rather obscure reference to what can now be recognised as the misfeasance rule, but in terms that the claimant said that it had no duty to inspect driveways constructed by home owners or repair such driveways. The introductory remarks to his Honour concluded with counsel for the opponent clearly referring to an occupier's non-delegable duty. From this and his Honour's reasons, it is clear that the case was fought on the basis that the claimant was relevantly an occupier and the issue was whether, as an occupier, it had a duty to inspect following the giving of approval to ensure that the driveway had been constructed in accordance with the approval. The issue as to duty and breach of duty was then taken over into the alternative basis of obligation as an approving authority. It was acknowledged before us that his Honour was not referred to either Sisson v. North Sydney Municipal Council or s.146(1)(d) of the Roads Act, and he can not have been assisted on the proper application of the misfeasance rule. This being an application for leave to appeal, that the case below was fought in the manner I have described is to my mind a very relevant matter to whether leave to appeal should be granted. The amount involved is not large. Leave to appeal is required because it is less than $100,000.00 and it is considerably less than that sum. ……… His Honour's decision, in the circumstances I have outlined, should not be taken as any authority for the future. However, given the amount involved and the basis on which the proceedings were conducted below, I consider that this is not an appropriate case in which leave to appeal should be granted, and I propose that the application for leave to appeal be dismissed with costs."

54 With respect, even if one were to restrict oneself to the materials which were then before the Court, the passages from the transcript record of the hearing before Puckeridge DCJ and the passages from his Honour's Judgment which I have set out above, indicate to me that the case before his Honour was not fought on the basis suggested. 55 On 12 August 1999, an application for special leave to appeal to the High Court of Australia was filed on behalf of Claimant. In the course of preparing that application the Claimant's solicitor applied to the Reporting Services Branch to have the addresses of counsel at the conclusion of the hearing before Puckeridge DCJ transcribed. It was after those addresses had been transcribed and made available to the Claimant's solicitor that the Notice of Motion with which the Court as presently constituted is concerned to deal was filed in this Court on behalf of the Claimant. 56 The transcript record of counsel's submissions on the hearing before Puckeridge DCJ reveals that counsel then appearing for the Claimant dealt first with the question whether or not the access way as constructed constituted an unnecessary danger and whether the nature of the access way led to the Opponent's fall. The transcript record (T. 7-12) then contains the following: "HIS HONOUR: … Yes, then we come to this question of negligence of the council. CAVANAGH: Yes, your Honour, and that is, in my submission a point which your Honour will find in the defendant's favour and can I just take issue with some of the statements made by my friend in this case, in opening . Firstly my friend says, well the council is an occupier. He wants to run the case on a straight occupier liability basis. That's not the proper test when dealing with councils . The defendant in this case, your Honour, is a statutory authority entrusted with the management and control of the roadways and I think it is common ground from my friend's emphasis that this was a footpath area, but the footpath forms part of the roadway for all intents and purposes. So the Council is entrusted with the power, your Honour, and I emphasis the word power, to manage and control the area where this accident occurred. It is not in dispute that the accident occurred on the area which constitutes council footpath. But that does not make the defendant an occupier in the sense that an occupier of a shopping centre or an occupier of a domestic premises. It makes the defendant a statutory authority entrusted with certain powers, management and control. It has the power and exercise the powers in this case to approve an access crossing across the area where the footpath would be. That's what it did. There is no suggestion in this case and it's not the plaintiff's case that it improperly exercised its power in approving the access way. So the next point is whether or not, having approved the access way, the council had a duty to do anything further. HIS HONOUR: Did it have a duty - let's look at it - did it have a duty to see that the access way was constructed in accordance with the approval. Isn't that right? CAVANAGH: That's essentially what this case is about, your Honour. HIS HONOUR: Yes, with the approval and to a very large extent the negligence in 5A (sic) allowing a driveway to be built across the footpath verge was not safe for pedestrian use. It really does come to that question. In allowing the concrete path to be built not in accordance - the access way not in accordance with the approval documents, was it in breach of any duty of care. CAVANAGH: Yes, your Honour. Your Honour is well aware of the fundamental proposition that the council as the highway authority is protected by the principle of … HIS HONOUR: But this isn't nonfeasance……………. ……… This is whether or not the Council was negligent in allowing the access way to be constructed not in accordance with the approval and were they negligent in allowing that. That's not nonfeasance or misfeasance. This is the negligent allowing the accessway to remain if you like in this situation. CAVANAGH: Can I phrase it another way your Honour? What has happened here is that the Council is responsible and has the management and control of the roadway, including the footpath. On that footpath has been built what is commonly termed in the case as an artificial structure. Some one else has constructed something over the footpath. The defendant did not construct the driveway. Someone else did. That person isn't here. We don't know where he is but he for some reason hasn't been sued but the defendant didn't construct it so across the footway is a structure. ……… HIS HONOUR: … was there created an unnecessary danger and did the council have a duty to see that the access way was constructed in accordance with the approval. Because if it did have a duty by way of reliance, it did and is part of the creation of that unnecessary danger. CAVANAGH: Well in my submission, with great respect, it did not create the danger. It may have allowed, and as your Honour has said and as is pleaded in the statement of claim, the situation to exist through lack of knowledge but it did not create the danger. This driveway was not constructed by the defendant and there is a distinction between creating a danger, that is building it or repairing or doing anything to the driveway and merely doing nothing about it which is what the council has done in this case. And is what the council did in the case before your Honour of Urban Transport Authority v. Purcell ……… CAVANAGH: Your Honour can I go back? I will come to the point if I can but if I could just take issue with one thing your Honour said then. That is, that we should move away from the fact that this occurred on a footpath. It did occur on a footpath, your Honour and the principles that are to be applied in this case are the principles that are to be applied in respect of the Council's liability in respect of footpaths and roadways. This accident did not occur in a public reserve. It did not occur in a public hall owned and occupied by the Council. It occurred on the footpath and there are certain principles which in my submission will establish which in my submission should be applied in this case. Those are the principles relating to the liability of councils in respect of roadway and footways."

57 That counsel appearing on the hearing before Puckeridge DCJ on behalf of the Opponent appreciated that the Claimant did not concede that it was an occupier and that it claimed the benefit of "the nonfeasance/misfeasance rule" is made clear by the following passages in the record of his submissions (T. 16-18): "HIS HONOUR: … You say that the Council was the occupier … QUICKENDEN: Your Honour it would be a perverse finding to find any other way. It may be that they're a special occupier and they've got the legal protection of misfeasance and nonfeasance but they are an occupier. It's basic. Fundamental. Incomprehensible if they're not. HIS HONOUR: Well they do have the management and control. QUICKENDEN: Exactly and that's all you need. HIS HONOUR: And if they've got management and control they're an occupier. QUICKENDEN: Precisely. Not something they're prepared to admit in this case but they seem to have admitted it in every case I've known of for twenty years. ……… It is true, your Honour, that the council, like other occupiers, like that example I gave to your Honour about Dr. Stewart, sometimes in a sense they are protected from various things like the Council is for nonfeasance and misfeasance but they're not for the negligent construction of a structure of property which they control. That's the essence of it. HIS HONOUR: Nonfeasance can't apply … QUICKENDEN: No, it doesn't apply here. If there wasn't for example a kerb and gutter. If there wasn't approval - your Honour can see from the photographs the grass footpath is littered with driveways - if there wasn't that exercise of responsibility, for the council did absolutely nothing like in the old days they used to, that's where the nonfeasance/misfeasance rule is relevant."

58 If I may, with respect, say so, the submissions made by counsel for the Opponent as to the nature and extent of "the nonfeasance/misfeasance rule" reveal a total inability on the part of counsel to understand the principles applicable to the immunity to which road authorities such as the Claimant are entitled. That immunity negates both a general duty to repair (sounding in nuisance) and any specific obligation to exercise care in control and management even with respect to known dangers (negligence). It is reinforced by the judicial construction that even a statutory duty to repair does not expose a road authority to liability unless the legislature has clearly conveyed a contrary intention either expressly or by necessary implication. 59 While it is true that the immunity can be claimed only for nonfeasance and not in respect of accidents caused by misfeasance, it is to be noted that, in order to be held liable for misfeasance, the relevant authority must be shown to have been an active agent in creating, or adding to, an unnecessary danger in the highway, including those parts of the road reserve beyond the carriageway. The improper nature of the original act of the road authority must always be the foundation of any complaint against it if that complaint is to be successful. 60 The principal basis upon which Mr. Campbell, who appeared for the Claimant on the Motion with which the Court is now concerned to deal, sought to have the earlier order of dismissal revoked, and leave to appeal granted, was that, even if -contrary to the submissions which he had advanced on the original application for leave to appeal - the materials then before the Court did not demonstrate that the hearing before Puckeridge DCJ did not proceed on the basis of a concession by the Claimant that it was an occupier of the lands in question, the additional materials which were now before the Court demonstrated that, when the Court, as formerly constituted, dismissed the application for leave to appeal, it did so under a misapprehension as to the basis upon which the hearing before Puckeridge DCJ had been conducted. Mr. Campbell then sought to build upon that foundation by submitting that the grounds upon which Puckeridge DCJ founded his Judgment for the Opponent were clearly wrong in law and that, notwithstanding the comparatively small verdict, such a Judgment ought not to be permitted to stand. 61 While conceding, first, that whatever may have been the position at the commencement of the hearing before Puckeridge DCJ, it was clear by the time counsel's submissions were made that Mr. Quickenden appreciated that the Claimant did not concede that it was to be regarded as an occupier and that, by contrast, it claimed the benefit of "the nonfeasance/misfeasance rule"; and while conceding that Puckeridge DCJ did not seek to found his Judgment upon any concession by the Claimant that it was an occupier, Mr. J.S. Coombs QC who appeared with Mr. Quickenden on the hearing before this Court, submitted that, as the Claimant's case on the hearing before Puckeridge DCJ had not been clearly elaborated upon, as the verdict found for the Opponent was but a comparatively small one, as the costs of the hearing before Puckeridge DCJ and of the applications to this Court will inevitably exceed the amount of the verdict; and as - so it was submitted - there had been a considerable delay then, even if the Court had power so to do, it should not make the orders sought by the Claimant. 62 The order of the Court as then constituted dismissing the application for leave to appeal having been passed and entered prior to the filing of the Notice of Motion with which this Court is now concerned to deal, the power of this Court, either, to revoke that order and grant leave to appeal, or, to entertain a fresh application for leave to appeal, must depend, in the first instance, upon the question whether the earlier order of the Court was an interlocutory or a final one. 63 The test of whether or not an order is a final rather than an interlocutory one is, not what are the practical consequences of the order which has been made, but the nature of the order and, in particular, whether the order finally determines the rights of the parties inter se (Hall v. The Nominal Defendant (1966) 117 CLR 423; Licul v. Corney (1976) 50 ALJR 438, Port of Melbourne Authority v. Anshun Pty. Limited (No. 1) (1980) 147 CLR 35; Carr v. Finance Corporation of Australia Limited (No. 1) (1980-1981) 147 CLR 246; Sanofi v. Parke Davis Pty. Limited (No. 1) (1982) 149 CLR 147; A. Hudson Pty. Limited v. Legal & General Life of Australia Limited (1985) 1 NSWLR 701; Dousi v. Colgate Palmolive Pty. Limited (1987) 9 NSWLR 374). 64 As the power to grant leave to appeal is discretionary. and as, in any event, the grant or refusal of leave to appeal does not finally determine the rights of the parties inter se, both an order granting leave to appeal (Sanofi v. Parke Davis Pty. Limited (No. 1) supra and an order refusing leave (see Coles v. Wood [1981] 1 NSWLR 723) are interlocutory. 65 The fact that such orders are interlocutory means that, even though leave to appeal may have been granted that, leave may later be revoked (Sanofi v. Parke Davis Pty. Limited (No. 1) supra and that, if leave has earlier been refused, it is nonetheless open to the Court on a subsequent application, if the circumstances are appropriate, to grant that leave (Hall v. The Nominal Defendant supra; Dousi v. Colgate Palmolive Pty. Limited supra). Although, so far as I have been able to ascertain, there is no reported instance in this country of an order refusing leave subsequently being revoked, there seems to be no reason in principle why, in an appropriate case the Court should not be able to do so - such a course was in fact adopted by the House of Lords in Buttes Gas & Oil Co. v. Hammer [1982] AC 888 in which case, notwithstanding that the Appeal Committee had, in 1975, refused leave to appeal, the Appeal Committee, in 1980, discharged the earlier order and gave leave to appeal against the relevant decision of the Court of Appeal out of time. 66 Although the Court had, during the course of Mr. Campbell's submissions, indicated that it was disposed to the view that it had power to revoke the earlier order dismissing the application for leave to appeal and to grant leave (T. 16), Mr. Coombs did not, during the course of his submissions, seek to dissuade the Court from that view. 67 The question thus is whether the Court ought, as a matter of discretion, decline to revoke the earlier order and refuse leave to appeal. 68 Although I am only too conscious of the comparatively small amount of the verdict which the Opponent obtained; of the time which has passed since Puckeridge DCJ delivered his Judgment; and of the amount of the costs which are involved, it seems to me that, where, as I believe is the case here, a Judgment in respect of which leave to appeal is sought is insupportable, and where it has not been suggested that the Opponent's position would be improved on a new trial, it would be wrong for the Court now to refuse to revoke the earlier order made by the Court and decline to grant leave to appeal. 69 The question then is, whether the grant of leave ought to be made subject to some conditions, as, for example, in relation to costs. 70 Although I have a great deal of sympathy for the position in which the Opponent now finds herself, I do not consider that, in all the circumstances of this case, it would be proper to deprive the Claimant of the whole, or any part, of its costs. As will be apparent from what I have earlier recorded, the Claimant's case as pleaded, and as conducted on the hearing before Puckeridge DCJ, was that the Claimant was to be regarded in law as the occupier of the land over which the access way passed, and was liable as such occupier to persons passing across the access way in the event that they suffered injury due to the dangerous nature of the access way. In its Defence, the Claimant put the Opponent's case in issue and, on the hearing before Puckeridge DCJ, the Claimant, although not articulating its case as well as might have been done, denied that it was to be regarded, in law, as subject to the liabilities of an occupier of land and asserted that it was entitled to the benefit of "the nonfeasance/misfeasance rule". Further, it is clear that Puckeridge DCJ understood that such was the Claimant's case, but held - not relying upon any concession on the part of the Claimant for that purpose - that the Claimant was subject to the liabilities of an occupier of land and was not, in the circumstances, entitled to the benefit of "the nonfeasance/misfeasance rule". Despite these facts, which, in my view, were apparent on the face of the materials which were before the Court as then constituted, the Court when refusing leave to appeal did so under a misapprehension that the hearing before Puckeridge DCJ proceeded upon the basis of such a concession. Although the additional materials which were placed before this Court reveal in detail the submissions advanced by the parties to Puckeridge DCJ they, in my view, do no more than confirm what the materials originally before the Court revealed as to the manner of conduct of the hearing before Puckeridge DCJ. 71 For these reasons I propose the following orders:

1. ORDER that the order made herein on 16 July 1999 be set aside.

2. ORDER that leave be, and be deemed to have been, granted to the Claimant to appeal from the verdict found, and judgment entered, by Puckeridge DCJ in the District Court on 17 December 1998.

4. ORDER that the verdict found, and judgment entered by, Puckeridge DCJ in the District Court on 17 December 1998 be set aside and that, in lieu thereof, there be found a verdict for the Claimant and that judgment be entered accordingly.

5. ORDER that the Opponent pay the Claimant's costs of the hearing in the District Court and of the applications to this Court of 16 July 1999 and 3 February 2000.

6. ORDER the Opponent have a certificate under the Suitors Fund Act 1951. ******

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.