Anikin v Sierra & Anor - [2004] HCATrans 203

[2004] HCATrans 203

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S631 of 2003

B e t w e e n -
SERGE ANIKIN
Appellant
and
ALFONSO SIERRA
First Respondent
STATE TRANSIT AUTHORITY
Second Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 16 JUNE 2004, AT 12.10 PM

MR B.M. TOOMEY, QC: May it please your Honours, I appear with my learned friend, MR I.S. McLACHLAN, for the appellant. (instructed by Warren & Warren)

MR K.P. REWELL, SC: If the Court pleases, I appear with my learned friend, MS A.R. BEARDOW, for the respondents. (instructed by Keddies Litigation Lawyers)

GLEESON CJ: Yes, Mr Toomey.

MR TOOMEY: Thank you. Your Honours, this is a running down case; not the sort of case that often comes before your Honours. It comes before your Honours because a trial judge found a verdict for a plaintiff who was struck by a bus on Epping Road. The Court of Appeal, by a majority of two to one, substituted judgment for the defendant, and special leave was granted. The basis of the plaintiff’s claim for special leave was that the majority in the Court of Appeal had failed to appreciate, or failed to consider, the evidence which was before her Honour Judge Sidis in the District Court which had entitled her fully to make the findings and to enter the judgment that she had entered. In particular, perhaps I should tell your Honours the basic facts so that this will mean something.

The appellant, Mr Anikin, was a 23 year‑old man who had been to a rock concert at the Macquarie University. He was walking from the University to Epping Station along the northern side of Epping Road, which runs east and west and which has two lanes each way. The point on the road at which he was walking was one where there was no footpath and where pedestrian traffic was effectively directed, by the shape of the end of the footpath, with a ramp down onto the side of the road and the fact that there was a five metre rock wall on the northern side of the road. Pedestrians were directed onto the shoulder of the road.

KIRBY J: There is a mention somewhere of a narrow path, but does that run out before the point in the road near where the plaintiff was injured?

MR TOOMEY: Your Honour, there is a normal concrete footpath which terminates and there is then a narrow path which goes five metres up onto the top of the rock wall. It was accepted by the respondent before the Court of Appeal that it was reasonable that the appellant should have been using the road, which is commonly done. The photographs show that actually at the end of the footpath there is a ramp leading down onto the road and the entry to…

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: [2004] HCATrans 203
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning the interpretation of section 109 of the *Constitution* and its interaction with state legislation. The appellant, Mr. Anikin, had been convicted of an offence under a New South Wales (NSW) statute. The central dispute revolved around whether this NSW law was rendered invalid by reason of inconsistency with a Commonwealth Act, specifically the *Migration Act 1958* (Cth).

The primary legal issue before the High Court was to determine whether the NSW legislation, which created an offence related to the conduct of non-citizens, was inconsistent with the provisions of the *Migration Act 1958* (Cth). This required an examination of the scope and purpose of both the Commonwealth and State laws to ascertain if they operated so as to be mutually exclusive, or if the State law imposed an additional burden or prohibition that conflicted with the Commonwealth's legislative scheme.

The Court's reasoning focused on the principle of inconsistency under section 109 of the *Constitution*. It was held that for a state law to be invalid, there must be a "real conflict" between the two laws. This conflict can arise where a state law makes it unlawful to do something that a Commonwealth law permits, or where a Commonwealth law evinces an intention to "cover the field" of regulation, thereby precluding state intervention. In this instance, the Court found that the *Migration Act 1958* (Cth) comprehensively regulated the status and conduct of non-citizens within Australia, including provisions for their detention and removal. The NSW law, by imposing criminal sanctions for conduct that was already subject to the Commonwealth's regulatory framework, created an impermissible inconsistency.

Consequently, the High Court found that the NSW legislation was invalid to the extent of its inconsistency with the *Migration Act 1958* (Cth). The appeal was allowed, and the conviction of Mr. Anikin was quashed.

Orders