T & H Fatouros Pty Ltd v Randwick City Council [2006] NSWSC 483

T & H Fatouros Pty Ltd v Randwick City Council [2006] NSWSC 483

The cross-claim against the Council commenced, so far as concerned the Council, on 5 February 2004 when the cross-claim was filed, so the Civil Liability Act 2002 as amended applied. However, the Council's approval of an external fire-escape stairway with open sides and inadequate protection against slipping and falling was so unreasonable that no council could properly or reasonably have considered it a reasonable exercise of its function. Sections 43 and 43A therefore did not prevent liability.

Jurisdiction
Australia
Judgment Date
25 May 2006
Procedural Posture
Notice of Motion to Reopen Judgment on Cross Claim Concerning Breach of Duty of Care by Council / Post Judgment Application to Reopen Reasons for Judgment Delivered on 1 September 2005
Outcome
Leave granted to reopen; reasons for judgment of 1 September 2005 not set aside; otherwise no order on the notice of motion, subject to any application for costs.
Legal Topics
['application of Civil Liability Act 2002 to Cross Claim' 'commencement of Proceedings Against Cross Defendant' 'public Authority Liability' 'exercise of Council Functions' 'reopening Judgment']
['civil Liability' 'negligence' 'local Government Liability' 'civil Procedure'] ['application of Civil Liability Act 2002 to Cross Claim' 'commencement of Proceedings Against Cross Defendant' 'public Authority Liability' 'exercise of Council Functions' 'reopening Judgment']

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Procedural Posture

Notice of Motion to Reopen Judgment on Cross Claim Concerning Breach of Duty of Care by Council / Post Judgment Application to Reopen Reasons for Judgment Delivered on 1 September 2005

Legal Issues

  1. 1 ['Whether ss43 and 43A of the Civil Liability Act 2002 applied to the cross-claim against Randwick City Council.' 'Whether, for the purposes of the Civil Liability Act 2002, proceedings against a cross-defendant commenced when the original statement of claim was filed or when the cross-claim was filed.' "Whether the Council's approval of the reconstructed external stairway was so unreasonable that no council could properly consider it to be a reasonable exercise of its function or power."]

Ratio Decidendi

The cross-claim against the Council commenced, so far as concerned the Council, on 5 February 2004 when the cross-claim was filed, so the Civil Liability Act 2002 as amended applied. However, the Council's approval of an external fire-escape stairway with open sides and inadequate protection against slipping and falling was so unreasonable that no council could properly or reasonably have considered it a reasonable exercise of its function. Sections 43 and 43A therefore did not prevent liability.

Court Disposition

Leave granted to reopen; reasons for judgment of 1 September 2005 not set aside; otherwise no order on the notice of motion, subject to any application for costs.

Orders

  • ['Leave granted to the Council to reopen for the limited purposes specified in the notice of motion.' 'The Court declined to set aside the reasons for judgment of 1 September 2005.' 'Otherwise no order on the notice of motion, subject to any application for costs.']