Context
Justice Mitchelmore, sitting in the Common Law Division of the Supreme Court of New South Wales, has confirmed an order that Council pay damages to the former owner of an impounded truck in Fairfield City Council v Bastow Civil Constructions Pty Limited [2023] NSWSC 1143.
The decision is not only a stark reminder to councils to ensure a scrupulous approach to record-keeping but is also a complete and useful analysis of the statutory limitations on liability afforded to public authorities by reason of Part 5 of the Civil Liability Act 2002 (Civil Liability Act).
Background
Fairfield City Council impounded a truck owned by Bastow Civil Constructions under the provisions of the now repealed Impounding Act 1993 (Impounding Act).1 Bastow made numerous representations to a council officer regarding the recovery of the truck — however these representations were not recorded in Council’s file and a different officer proceeded to sell the truck at auction.
Bastow was successful in Local Court proceedings seeking an award of damages on the basis that Council had and breached an implicit statutory duty under the Impounding Act to act with reasonable care — effectively on the basis that Council did not consider its representations before selling the truck. Its alternative case — that Council was liable in negligence — was rejected by the magistrate. The Local Court awarded damages of $46,500.
Council appealed and Bastow, by notice of contention, challenged the magistrate’s conclusion on negligence.
Key findings
Her Honour made short shrift of Bastow’s contention that the Impounding Act conferred a discrete right of action on a person who purports to own an item sold or disposed of under the Act — finding this conclusion to be “not consistent with the terms of the provision or with its statutory purpose” (at [58]).
A key part of her Honour’s judgment concerns section 43A of the Civil Liability Act, which fixes an altered standard for the duty of care of public authorities when exercising (or not exercising) a ‘special statutory power’ — defined by the Act as being a power that is (a) conferred under a statute and (b) which is of a kind that persons generally are not authorised to exercise it without specific statutory authority.
While the scope of section 43A is expressed inclusively, courts have held that it applies to, for example, police officers in arresting persons, local councils in issuing planning certificates under section 10.7 of the Environmental Planning and Assessment Act 1979, and local councils in placing roadside hazard signs within the vicinity of roadworks.
Her Honour held that Council was entitled to the benefit of section 43A (at [104]), having regard to the interpretive history of the provision, having particular regard to the reasoning of Basten JA in Curtis v Harden Shire Council (2014) 88 NSWLR 10; [2014] NSWCA 314 at [257] to [279] and Weber v Greater Hume Shire Council (2019) 100 NSWLR 1; [2019] NSWCA 74 at [43] to [50].
However, adverse to Council, her Honour found that its conduct in selling the truck was so unreasonable that no authority could have properly considered its sale a reasonable exercise of the Impounding Act’s power to sell impounded vehicles (at [108]). This was, primarily, because:
- As found by the magistrate at first instance, the propounding by Council of an internal policy guiding its officers in exercising the power of sale under the Impounding Act was an acceptance of the “significant legal consequences” of that power (at [47] and [108]);
- There were multiple failures of the policy in Council’s interactions with officers of Bastow in the period after the impounding of the truck — which, although contested by Council before the magistrate, were not challenged by Council on appeal (at [107] and [110]); and
- As a matter of common sense, unless Bastow’s representations were recorded on Council’s file, it would be “fortuitous” for the officer tasked with selling the truck to become aware of those representations.
This article was written by Philip Brown, Partner and Patrick Shumack, Senior Associate.
1While her Honour’s decision does not consider the question, it is likely that key aspects of the reasoning applicable to the Impounding Act 1993 are, with necessary adjustments to account for the difference in structure between each Act.
