Warren Shire Council v Kuehne & Anor [2012] NSWCA 81

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Warren Shire Council v Kuehne & Anor [2012] NSWCA 81 Hearing dates: 6 February 2012 Decision date: 16 April 2012 Before: McColl JA at [1] Whealy JA at [2] Sackville AJA at [184] Decision: (1) Appeal allowed. (2) Set aside judgment of Elkaim DCJ. (3) Verdict and judgment for the appellant. (4) Respondents to pay the appellant's costs of the proceedings and of the appeal. (5) Respondents, if qualified, to have a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the costs of the appeal. (6) Cross appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - Appeal - negligence - common law duty of care - s 33 Companion Animals Act 1998 (NSW) - whether local council owed a duty to residents to declare a dog "dangerous" - Stuart v Kirkland-Veenstra - whether a special statutory power - relationship between council and residents created by special statutory power - degree of control exercised by council - vulnerability of those who depend on proper exercise of statutory power.

TORTS - Appeal - negligence - breach of duty - whether hunting dogs inherently "dangerous" for the purposes of s 33 Companion Animals Act 1998 - whether hunting dogs had previously attacked "without provocation" - s 43A Civil Liability Act 2002 - exercise of "special statutory power" - whether dogs had "repeatedly" threatened to attack or "repeatedly" chased people - Wednesbury unreasonableness standard - whether council's failure to declare dog(s) dangerous so unreasonable no authority possessed of special statutory power could properly consider omission to be reasonable - s 44 Civil Liability Act 2002.