AIR SERVICES AUSTRALIA v ZARB [1998] NSWCA 7

AIR SERVICES AUSTRALIA v ZARB

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, POWELL JJA and ROLFE AJA 8 April 1998, 26 August 1998

[1998] NSWCA 7

Appeal by leave against decision to dismiss an application for summary judgment on the basis that no reasonable cause of action disclosed.

Appeal argued on the sole point that there was no cause of action as the appellant's actions were policy decisions and not operational decisions.

District Court Rules: Ptl1A 13(1)(a) and Ptl1A 13(1)(b)

District Court Appeal

Appeal from refusal of the District Court to dismiss proceedings pursuant to PtllA 13(1)(a) and Ptl1A 13(1)(b) on the grounds that no reasonable cause of action was disclosed and the proceedings were frivolous or vexatious.

Matter argued on the sole point as to whether the defendant owed the plaintiff a duty of care on the basis that no duty of care arose because the activities of which the plaintiff complained came about from the exercise by the defendant of policy or quasi legislative functions rather than from the exercise of operational functions pursuant to Air Services Act 1995.

Held, applying the General Steel's test, that this was an inappropriate case to dismiss the proceedings summarily having regard to the developments in the law on this issue, the questionable applicability of the reasons of Mason J in The Council of the Shire of Sutherland v Heyman & Anor (1985) 157 CLR 424 on this topic, and the subsequent decisions of the High Court including Pyrenees Shire Council v Day (1988) 72 ALJR 152 and Romeo v Conservation Commission of the Northern Territory (1998) 72 ALJR 208.

Dey v Victorian Railway Commissioners (1948-1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125; Webster & Anor v Lampard (1993) 177 CLR 598; Wickstead & Ors v Browne (1992) 30 NSWLR 1; NRMA Insurance Ltd v A W Edwards Pty Ltd (Court of Appeal - 11 November 1994 - unreported) and Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 referred to and followed. See also W D & H O Wills (Aust) Ltd v State Rail Authority (Court of Appeal - 3 April 1998 - as yet unreported) and Avenhouse & Anor v The Council of the Shire of Hornsby (Court of Appeal - 15 May 1998 - as yet unreported).