Colavon Pty Limited trading as Thormans Transport v Bellingen Shire Council [2008] NSWCA 355

New South Wales Court of Appeal

CITATION: Colavon Pty Limited trading as Thormans Transport v Bellingen Shire Council [2008] NSWCA 355

HEARING DATE(S): 26 November 2008

JUDGMENT DATE: 19 December 2008

JUDGMENT OF: Beazley JA at 1; Campbell JA at 2; Handley AJA at 123

(1) Appeal allowed. (2) Orders in the Court below set aside. DECISION: (3) Remit the matter to the District Court of New South Wales for retrial of the issues of liability other than the liability of the Council for failure to carry out road works and its immunity under section 45 Civil Liability Act 2002. (4) Respondent to pay the Appellant's costs of the appeal. (5) Respondent is granted a certificate under the Suitors Fund Act 1951 if otherwise qualified concerning the costs of the appeal. (6) The costs of the trial are reserved to the judge who hears the new trial.

CATCHWORDS: NEGLIGENCE – roads – liability of roads authority – failure to carry out road work – immunity under s 45 Civil Liability Act 2002 – material facts which must be pleaded – whether installation of guideposts at side of road constitutes "road work" within meaning of section 45 - PROCEDURE – Courts and judges generally – whether reasons of trial judge inadequate – where resolution of case did not depend entirely on credibility - NEW TRIAL – Particular grounds – where trial judge has not dealt adequately with argument put by Appellant – whether outcome of case can be adequately evaluated from the transcript – where evidence is conflicting

Civil Liability Act 2002 Roads Act 1993 LEGISLATION CITED: Suitors Fund Act 1951 Transport Administration Act 1988 Uniform Civil Procedure Rules