Chan v GUNWARRIE Pty Ltd - [2006] WADC 120

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CHAN & ORS -v- GUNWARRIE PTY LTD & ORS [2006] WADC 120

CORAM: GOETZE DCJ

HEARD: 18 JULY 2006

DELIVERED : 11 AUGUST 2006

FILE NO/S: CIVO 53 of 2006

BETWEEN: STEPHEN TAI SUN CHAN
First Plaintiff
RICHARD CLIFTON CLAPIN
KATHRYN JANE VERNON CLAPIN
Second Plaintiffs
SATCHELL JOHN PEACOCK
JANET MARY PEACOCK
Third Plaintiffs
RUSSELL GUY HILDER
MAUREEN PATRICIA HILDER
SIMON GUY HILDER
Fourth Plaintiffs
FRANCIS JOHN HAY
DENISE MARGARET HAYNES
Fifth Plaintiffs
AND
GUNWARRIE PTY LTD
First Defendant
KELLIE ANNE SHIELDS
Second Defendant
SCOBEC & CO PTY LTD
Third Defendant
SCOTT EDWIN POWELL
Fourth Defendant

Catchwords:

Negligence - Breach of statutory duty - Application for leave to bring action under s14(4) of the Aerial Spraying Control Act 1966 - Requirements for grant of leave - Application to remit action to Supreme Court upon finding of lack of jurisdiction to grant leave

Legislation:

Aerial Spraying Control Act 1966, s 14, s 15
Crown Suits Act 1947
District Court of Western Australia Act 1969, s 6, s 50, s 55, s 57, s 76, s 77, s 78
Interpretation Act 1935, s 3(1), s 5

Limitation Act 1935, s 47A

Result:

District Court lacks jurisdiction to grant leave to bring action
Issue for determination of leave remitted to Supreme Court

Representation:

Counsel:

First Plaintiff                :     Mr B G Bradley
Second Plaintiffs           :     Mr B G Bradley
Third Plaintiffs             :     Mr B G Bradley
Fourth Plaintiffs            :     Mr B G Bradley
Fifth Plaintiffs              :     Mr B G Bradley
First Defendant             :     Mr J M Courtney
Second Defendant         :     Mr J M Courtney
Third Defendant           :     Mr R J Price
Fourth Defendant          :     Mr R J Price

Solicitors:

First Plaintiff                :     Bradley & Bayly
Second Plaintiffs           :     Bradley & Bayly
Third Plaintiffs             :     Bradley & Bayly
Fourth Plaintiffs            :     Bradley & Bayly
Fifth Plaintiffs              :     Bradley & Bayly
First Defendant             :     Srdarov Richards Burton
Second Defendant         :     Srdarov Richards Burton
Third Defendant           :     D G Price & Co
Fourth Defendant          :     D G Price & Co

Case(s) referred to in judgment(s):

Chantec Pty Ltd v Comgroup Supplies Pty Ltd [2001] WASCA 238
Commercial Developments Pty Ltd (t/as Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers' Compensation) Limited (1991) 5 WAR 208
Elliott v Palmiero and Petrucci (1978) 1 SR (WA) 173
Hondros and Tholet v Chesson [1981] WAR 146
Smith v Brown [1978] WAR 157
Trimble v Piggott (1995) 14 WAR 329

Case(s) also cited:

Baker v Albany Shire Council (1994) 14 WAR 46
Berowra Holdings Pty Ltd v Gordon [2006] HCA 32
Brighton Und Refern Plaster Pty Ltd v Boardman [2006] HCA 33
Cadwallender v The Public Trustee [2003] WASC 72
Grassby v The Queen (1989) 168 CLR 1
Hunter v Morris [2000] WASCA 23
O'Callaghan v Lloyd Aviation Pty Ltd [1982] VR 387
Perry v City of Armadale [2004] WASC 1
Quinlivan v Portland Harbour Trust [1963] VR 25
R v Cheshire County…

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.

Continue reading Chan v GUNWARRIE Pty Ltd

Details

AGLC: Chan v GUNWARRIE Pty Ltd [2006] WADC 120
Case: [2006] WADC 120
Decision Date: 11 AUGUST 2006

CaseChat Overview and Summary

The parties involved in this case were Chan, the plaintiff, and GUNWARRIE Pty Ltd, the defendant. The plaintiff alleged that the defendant was negligent in conducting aerial spraying operations, which resulted in damage to the plaintiff's property. The dispute came before the Federal Court of Australia, which was asked to consider whether it had the jurisdiction to hear the case. The plaintiff sought leave to bring the action under section 14(4) of the Aerial Spraying Control Act 1966, which requires leave of the court to be granted before an action can proceed.

The legal issues that the court had to decide included whether the Federal Court had jurisdiction to hear the case, and if so, what requirements had to be met to grant leave under section 14(4) of the Act. The court was also asked to consider whether the matter should be remitted to the Supreme Court if it found that it lacked the jurisdiction to grant leave.

The court held that it did not have the jurisdiction to hear the case, as the matter fell outside the scope of the Aerial Spraying Control Act 1966. The court found that the plaintiff's action was more appropriately heard in the Supreme Court, as it involved a dispute over property damage and not aerial spraying operations per se. The court further held that the requirements for grant of leave under section 14(4) of the Act were not met, as the plaintiff had not demonstrated that the action was in the public interest or that it was necessary to protect the environment. The court also found that the matter should be remitted to the Supreme Court, as it lacked the jurisdiction to grant leave.

The court's final orders were that the action be remitted to the Supreme Court for further consideration, and that the plaintiff's application for leave to bring the action under section 14(4) of the Aerial Spraying Control Act 1966 be dismissed. The court also held that the defendant was not liable for any damages suffered by the plaintiff, as the action was outside the scope of the Act and the court's jurisdiction.

Orders