LAMONT v WYONG SHIRE COUNCIL [1996] NSWCA 313

LAMONT v WYONG SHIRE COUNCIL

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

GLEESON CJ, CLARKE JA and MEAGHER JA

12 April 1996

[1996] NSWCA 313

LOCAL GOVERNMENT — NUISANCE — LOCAL GOVERNMENT ACT s582A

To a claim for nuisance arising out of flood damage a local council raised a defence under s582 of the Local Government Act. A referee's report identified certain acts or omissions of the council causing the damage. The report was adopted. The trial judge found good faith in respect of some of the acts or omissions but not others. The report did not justify a finding that the last mentioned acts or omissions had no causal significance but the trial judge entered judgment for the defendant - HELD - The judge was in error in finding, on the basis of the report that the acts or omissions which were not done in good faith had no causal significance.

Gleeson CJ. This is an appeal from a judgment of Palmer AJ who was sitting in the Commercial Division of the Supreme Court. The proceedings in question were commenced in the Common Law Division in the Construction List but, as a matter of administrative convenience, the Construction List is administered by the Commercial Division.

The judgment of Palmer AJ related directly only to one of a number of questions in dispute between the appellant and the respondent, but, because of the way in which other questions had been previously resolved, the consequence of his Honour's decision on the separate question with which he was concerned was that he was able to enter a final judgment.

The appeal to this Court takes the form of an appeal against the final judgment but many of the original grounds of appeal were abandoned. The matter has been argued in this Court upon the basis, ifthe appeal were to succeed, the proper course for the Court to take would be to set aside the judgment and remit the matter to the Commercial Division.