NSW Court decision – challenging how a local government allocates resources Back

Consider this: your local government operates and maintains a small aerodrome, where a small aircraft is coming in to land. Unfortunately, it collides with a kangaroo.

Local governments are faced with unforeseen risks every day; kangaroos pose an increasingly prevalent risk. These native animals cause a variety of issues when it comes to a liability claim.

A recent NSW Court of Appeal concluded a local government "could not be found to be in breach of duty where it failed to take a precaution in circumstances where a decision to implement the precaution would impact present and future expenditure in other areas."

Originally, the trial Judge found the local government liable on the basis that it should have:

  • Allocated further resources
  • Issued a notice to airmen (NOTAM) to inform aerodrome users of increased kangaroo activity
  • Erected a kangaroo proof fence.

It was argued an increase in kangaroo activity sparked a greater duty on the local government to take further precautions to prevent kangaroos entering the site.

The Court of Appeal disagreed with the trial Judge's decision, denying any increase in kangaroo activity was relevant at the time of the collision. Perhaps more importantly, it focused on the application of Section 42 of the Civil Liability Act 2002 (NSW), which protects a local government's allocation of resources to perform its functions from challenge.

The trial Judge originally concluded the local government's operation of the aerodrome was not a function it was required to perform, such as water drainage or roads. Rather, the operation of the aerodrome was performed as a general power and therefore Section 42 was not applicable. However, the Court of Appeal confirmed Section 42 was applicable, as there was no distinction of the local government's powers.

There are similar provisions in Section 5W of the Civil Liability Act (WA) which assist in defending a claim in which a local government's resources capability to take further precautions in certain circumstances are challenged. Overturning the original trial decision in this matter is a good result.