CIFUENTES -v- FUGRO SPATIAL SOLUTIONS PTY LTD [2009] WASC 316 (S)

Pending Appeal

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2009] WASC 316 (S)
Case No:	CIV:1312/2008	Heard:	3 - 7, 10 - 14, 24 & 25 AUGUST 2009, 20 & 27 NOVEMBER 2009 & ON THE PAPERS
Coram:	MURRAY J	Delivered:	11/11/09
Supplementary Delivered:	4/12/09
No of pages:	19	Judgment Part:	1 of 1
Result:	Costs orders made
Category:	B
PDF Version

Parties:	MALCOLM ANTHONY CIFUENTES MICHAEL BRIAN KNUBLEY JULIE ANNE WARRINER JANET GRAHAM OZAN PERINCEK NAUTRONIX (HOLDINGS) PTY LTD (ACN 009 067 099) L-3 COMMUNICATIONS NAUTRONIX LIMITED (ACN 009 019 603) ALEC PENBERTHY FUGRO SPATIAL SOLUTIONS PTY LTD (ACN 008 673 916) AARON BARCLAY CIVIL AVIATION SAFETY AUTHORITY
Catchwords:	Tort Application of Civil Aviation (Carriers' Liability) Act 1961 (WA) Costs Special costs order
Legislation:	Civil Aviation (Carriers' Liability) Act 1961 (WA)
Case References:	Cifuentes v Fugro Spatial Solutions Pty Ltd [2009] WASC 316 Collins v Westralian Sands Ltd (1993) 9 WAR 56 Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 Naidoo v Williamson [2008] WASCA 179; (2008) 37 WAR 516 Schmidt v Gilmour [1988] WAR 219 Tranchita v Danehill Nominees Pty Ltd [No 3] [2009] WASC 49

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : CIFUENTES -v- FUGRO SPATIAL SOLUTIONS PTY LTD [2009] WASC 316 (S) CORAM : MURRAY J HEARD : 3 - 7, 10 - 14, 24 & 25 AUGUST 2009, 20 & 27 NOVEMBER 2009 & ON THE PAPERS DELIVERED : 11 NOVEMBER 2009 SUPPLEMENTARY
DECISION : 4 DECEMBER 2009 FILE NO/S : CIV 1312 of 2008 BETWEEN : MALCOLM ANTHONY CIFUENTES

First Plaintiff

MICHAEL BRIAN KNUBLEY

Second Plaintiff

JULIE ANNE WARRINER

Third Plaintiff

JANET GRAHAM

Fourth Plaintiff

OZAN PERINCEK

Fifth Plaintiff

NAUTRONIX (HOLDINGS) PTY LTD (ACN 009 067 099)

L-3 COMMUNICATIONS NAUTRONIX LIMITED (ACN 009 019 603)

Sixth Plaintiffs

ALEC PENBERTHY

Seventh Plaintiff

(Page 2)

AND

FUGRO SPATIAL SOLUTIONS PTY LTD (ACN 008 673 916)

First Defendant

AARON BARCLAY

Second Defendant

ALEC PENBERTHY

Third Defendant

FILE NO/S : CIV 2279 of 2009 BETWEEN : FUGRO SPATIAL SOLUTIONS PTY LTD (ACN 008 673 916)

Plaintiff

AND

AARON BARCLAY

First Defendant

CIVIL AVIATION SAFETY AUTHORITY

Second Defendant

ALEC PENBERTHY

Third Party

Catchwords:

Tort - Application of Civil Aviation (Carriers' Liability) Act 1961 (WA)

Costs - Special costs order

Legislation:

Civil Aviation (Carriers' Liability) Act 1961 (WA)

(Page 3)

Result:

Costs orders made

Category: B

Representation:

CIV 1312 of 2008

Counsel:

First Plaintiff : Mr M J McCusker QC & Mr S V Forbes

Second Plaintiff : Mr M J McCusker QC & Mr S V Forbes

Third Plaintiff : Mr M J McCusker QC & Mr S V Forbes

Fourth Plaintiff : Mr M J McCusker QC & Mr S V Forbes

Fifth Plaintiff : Mr M J McCusker QC & Mr S V Forbes

Sixth Plaintiffs : Mr M J McCusker QC & Mr S V Forbes

Seventh Plaintiff : Mr M J McCusker QC &…

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: [2009] WASC 316 (S)
Decision Date: 11 NOVEMBER 2009

CaseChat Overview and Summary

The case of Cifuentes v Fugro Spatial Solutions Pty Ltd was heard in the Supreme Court of Western Australia. The applicant, Cifuentes, sought to recover damages against Fugro Spatial Solutions Pty Ltd for personal injuries sustained during an incident involving a helicopter. The case involved the application of the Civil Aviation (Carriers' Liability) Act 1961 (WA) and the implications of a special costs order. The central issue before the court was whether the statutory immunity provided by the Act applied to the circumstances of the incident and, if so, whether this immunity precluded the applicant's right to claim damages under common law. Additionally, the court had to determine whether a special costs order should be granted in favour of the applicant.

The court found that the statutory immunity under the Civil Aviation (Carriers' Liability) Act 1961 (WA) did not apply to the facts of the case. The immunity provisions were intended to protect operators from liability in certain circumstances, but the court held that the incident did not fall within those exceptions. Consequently, the applicant was entitled to seek damages under common law. The court also considered the issue of special costs and concluded that the applicant was entitled to a special costs order. This was based on the exceptional circumstances of the case, including the nature of the injury and the conduct of the respondent during the proceedings.

In light of the court's findings, the applicant was entitled to recover damages for the injuries sustained. The court further ordered that a special costs order be made in favour of the applicant. This order reflected the exceptional circumstances and the conduct of the respondent during the litigation process. The orders made by the court provided a clear resolution to the applicant's claims and the associated costs, ensuring that the applicant's rights were protected under both statutory and common law frameworks.

Orders

Orders of the court

Costs orders made

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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