Alison Clisdell v Charly Tannous - [2006] NSWSC 524

CITATION: ALISON CLISDELL v CHARLY TANNOUS [2006] NSWSC 524

HEARING DATE(S): 31 May 2006

JUDGMENT DATE :
2 June 2006

JUDGMENT 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 1951

CASES 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 378

PARTIES: Plaintiff - Alison Clisdell
Defendant - Charly Tannous

FILE NUMBER(S): SC 15195/2005

COUNSEL: Plaintiff - JK Kirk
Defendant - GO Blake SC

SOLICITORS: Plaintiff - IV Knight (Crown Solicitor)
Defendant - Sage Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

LATHAM J

2 JUNE 2006

15195/2005 ALISON CLISDELL v CHARLY TANNOUS
JUDGMENT

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWSC 524
Decision Date: 2 June 2006

CaseChat Overview and Summary

In this case, the appellant, Alison Clisdell, challenged the dismissal of her proceedings against the respondent, Charly Tannous, before the Local Court. The dispute centered around allegations of an unlawful towing of Clisdell's vehicle. The Local Court had dismissed Clisdell's claims on the basis that her statutory notice of claim was not served within the required timeframe under the Tow Truck Industry Act 1998. This decision was made despite Clisdell's argument that the notice was served within the statutory period.

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.

Orders