Aubrey Keith Murphy v Tony McMillan - [2012] NSWSC 180

Supreme Court

New South Wales

Medium Neutral Citation: Aubrey Keith Murphy v Tony McMillan [2012] NSWSC 180
Hearing dates: 2 March 2012
Decision date: 09 March 2012
Jurisdiction: Common Law
Before: Grove AJ
Decision:
1. Appeal allowed.
2. Judgments and orders made in the Local Court set aside.
3. Action and cross-claim remitted to the Local Court for re-hearing.
4. Respondent/plaintiff to pay the appellant's costs of the appeal and, if qualified, to have a certificate under the Suitor's Fund Act in respect of those costs.

Legislation Cited: Animals Act 1977
Crimes (Appeal and Review) Act 2001
Local Courts Act 2007
Cases Cited: Beale v GIO (1997) 48 NSWLR 430
Goodrich Aerospace Pty Ltd v Arsic [2006] 66 NSWLR 186
Gregory's (Properties) Pty Ltd v Muir (1993) 17 MVR 86
Jones v Bradley [2003] NSWCA 81
Maviglia v Maviglia [1999] NSWCA 188
Mifsud v Campbell (1991) 21 NSWLR 725
Palmer v Clarke (1989) 19 NSWLR 158
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Searle v Wallbank [1947] AC 341
Category: Procedural and other rulings
Parties: Aubrey Keith Murphy - Plaintiff
Tony McMillan - Defendant
Representation: C Hickey - Plaintiff
JP Donohoe - Defendant
Cole & Butler - Plaintiff
Webb & Boland - Defendant

File Number(s): 2010/312030

Judgment

This is an appeal from the presiding magistrate at the Local Court in Moree. The ground of appeal is that "inadequate or no reasons" were given for the decision. If made out, such a ground constitutes error of law and the jurisdiction of this Court is enlivened pursuant to section 70(1)(c) of the Local Courts Act 2007 which incorporates relevant parts of the Crimes (Appeal and Review) Act 2001.

The appellant/plaintiff was the defendant in the court below and for ease of reference I shall refer to both parties in their capacities as plaintiff and defendant in that court.

The defendant owns a rural property of some 326 acres called Goodrum which was described by the Magistrate as "bounded by a stock route which runs along the highway and two other properties". The road is titled the Carnavon Highway and runs between Moree and Mungindi. There was no finding as to how busy this road was although his Honour "noted" the decision in Gregory's (Properties) Pty Ltd v Muir (1993) 17 MVR 86 and observed that he needed to take into account, inter alia, "the known traffic on the highway".

At about 7:00 pm on 3 October 2008 the plaintiff was driving on Carnarvon Highway towards Mungindi in a Mitsubishi Triton vehicle when he collided with a Hereford cow owned by the defendant which had escaped from Goodrum property. The plaintiff sued for the damage caused to the vehicle by the collision and the defendant cross-claimed for the value of the beast which was killed in the impact. A verdict was found for the plaintiff both in the action and on the cross-claim.

The hearing took place on 27 July and 2 August 2010 and judgment was delivered on 24 August…

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: [2012] NSWSC 180
Decision Date: 09 March 2012

CaseChat Overview and Summary

In this case, the appellant, Aubrey Keith Murphy, appeals against a decision made by the Local Court in Moree. The defendant, Tony McMillan, cross-claimed for the value of a Hereford cow that was killed after colliding with the plaintiff's vehicle. The plaintiff sued for the damage caused by the collision. The presiding magistrate found in favour of both parties, awarding the plaintiff damages for the vehicle and the defendant for the cow's value. The appeal raises the issue of whether the magistrate provided adequate reasons for his decision.

The court was required to determine whether the magistrate's reasons for the decision were adequate. The appeal hinges on whether the magistrate provided sufficient reasons for his decision, which would allow the court to understand the basis for the outcome. The court had to examine whether the magistrate considered all relevant factors and provided explanations for his decision.

The court found that the magistrate's reasons for the decision were inadequate. The court held that the magistrate failed to explain how he applied relevant legal principles and authorities to the facts of the case. Additionally, the magistrate did not provide specific findings on the state of the fencing and the reasons for his preference of one set of witnesses over another. The court concluded that the magistrate's reasons were insufficient and that the appeal should be allowed. The judgments and orders made in the Local Court were set aside, and the action and cross-claim were remitted to the Local Court for re-hearing.

The court made the following orders: 1) Appeal allowed; 2) Judgments and orders made in the Local Court set aside; 3) Action and cross-claim remitted to the Local Court for re-hearing; 4) The respondent/plaintiff to pay the appellant's costs of the appeal and, if qualified, to have a certificate under the Suitor's Fund Act in respect of those costs.

Orders