CITATION: ALISON CLISDELL v CHARLY TANNOUS [2006] NSWSC 524 HEARING DATE(S): 31 May 2006
JUDGMENT DATE :
2 June 2006JUDGMENT OF: Latham J DECISION: The appeal is allowed; The order of Bradd LCM made in proceedings at Parramatta Local Court on 10 October 2005 dismissing the summary proceedings against the defendant is set aside; The decision of Bradd LCM in the proceedings that the plaintiff pay the costs of the defendant, assessed at $6,600 is set aside; The matter is remitted to the Local Court at Parramatta to be dealt with according to law; The defendant is to pay the plaintiff's costs in these proceedings CATCHWORDS: Appeal from dismissal of Local Court proceedings - construction of Magistrate's reasons - whether alternative basis for dismissal disclosed by Magistrate's reasons - construction of Tow Truck Industry Act 1998 LEGISLATION CITED: Crimes (Local Courts Appeal and Review) Act 2001
Tow Truck Industry Act 1998
Interpretation Act 1987
Suitors Fund Act 1951CASES CITED: Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628
R v Young (1999) 46 NSWLR 681
R v Kain [2004] NSWCCA 143
R v A [2004] NSWCCA 292
Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343
Pettit v Dunkley (1971) 1 NSWLR 376
Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378PARTIES: Plaintiff - Alison Clisdell
Defendant - Charly TannousFILE NUMBER(S): SC 15195/2005 COUNSEL: Plaintiff - JK Kirk
Defendant - GO Blake SCSOLICITORS: Plaintiff - IV Knight (Crown Solicitor)
Defendant - Sage Solicitors
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONLATHAM J
2 JUNE 2006
JUDGMENT15195/2005 ALISON CLISDELL v CHARLY TANNOUS
1 By Summons filed on 7 November 2005, the plaintiff seeks an order pursuant to s 59(2) of the Crimes (Local Courts Appeal and Review) Act 2001 (the LCAR Act) setting aside the order of a magistrate made at Parramatta Local Court on 10 October 2005. The magistrate’s order dismissed summary proceedings against the defendant for two offences of failing to comply with a notice issued under s 78 of the Tow Truck Industry Act 1998 (the TTI Act). The plaintiff also seeks an order setting aside the order for costs made against the plaintiff and an order remitting the matter to Parramatta Local Court to be dealt with according to law.
2 The resolution of this appeal pursuant to s 56(1)(c) of the LCAR Act ultimately turns on a relatively narrow basis. The appeal is confined to a question of law alone. The question of law identified by the plaintiff is whether the magistrate erred in finding that there was no power under the TTI Act for the Tow Truck Authority of NSW to appoint an officer of that Authority as an “authorised officer” for the purposes of s 78 of the TTI Act. On the hearing of the appeal, it transpired that the defendant in effect conceded that such a finding had been made and that it…
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- Case
- [2006] NSWSC 524
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the Local Court had correctly interpreted the statutory notice provisions of the Tow Truck Industry Act 1998 and whether there was an alternative basis for the dismissal that was not explicitly stated in the Local Court's reasons. The court was required to determine whether the Magistrate's reasons for dismissal revealed an alternative ground that could support the dismissal of Clisdell's claims.
The court found that the Local Court's reasons for dismissal did not clearly state an alternative basis for dismissing Clisdell's claims. The court held that the Magistrate's reasons did not disclose a basis for dismissal other than the failure to serve the statutory notice within the required period. Consequently, the court determined that the Local Court had erred in dismissing the proceedings without providing clear reasons for the dismissal. The appeal was allowed, and the matter was remitted back to the Local Court for further consideration.
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