Dee Why Auto Clinic v Roads and Maritime Services - [2017] NSWSC 377

Supreme Court

New South Wales

Medium Neutral Citation: Dee Why Auto Clinic and anor. v Roads and Maritime Services [2017] NSWSC 377
Hearing dates: 24 February 2017
Date of orders: 12 April 2017
Decision date: 12 April 2017
Jurisdiction: Common Law
Before: Bellew J
Decision:
1. The notice of motion filed by the plaintiffs on 23 February 2017 is dismissed.

2. The appeal is allowed.

3. The decision of the Magistrate of 7 July 2016 is set aside.

4. The proceedings are remitted to the Magistrate to be dealt with according to law.
5. Each party is to provide to my Associate written submissions as to costs within 7 days, such submissions not to exceed 2 pages in length.
Catchwords:
PRACTICE AND PROCEDURE – Judicial review of determination of Magistrate – Asserted error of law – Failure to give proper reasons – Where factual findings made as to breaches of relevant rules – Where no reasons were given for those findings – Where such findings were then used as the basis for a conclusion that the second plaintiff was not a fit and proper to hold such authorisation – Where no adequate reasons were given for reaching that conclusion – Where specific submissions were made by counsel to the Magistrate regarding the question of whether any breaches of the rules supported a conclusion of unfitness – Where the Magistrate failed to address those submissions and in doing so failed to engage with the issue before him – Error of law established – Proceedings remitted to the Magistrate to be further dealt with according to law
PRACTICE AND PROCEDURE – Judicial review of determination of Magistrate – Asserted error of law – Evidence – Onus of proof in civil proceedings – So called Briginshaw standard – Whether Magistrate properly applied the onus and standard of proof – Standard of proof properly applied – Observations as to the nature of the Briginshaw standard
Legislation Cited: Evidence Act 1995 (NSW)
Local Court Act 2007 (NSW)
Road Transport Act 2013 (NSW)
Road Transport (Vehicle Registration) Regulation 2007
Supreme Court Act 1970 (NSW)
Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
B & L Linings Pty Limited v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Berrigan Doube Lawyers Pty Limited v Millar Eagger Pty Limited [2016] NSWSC 235
Bond v Australian Broadcasting Tribunal (1989) 89 ALR 185
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284
Gianoutsos v Glykis [2006] NSWCCA 137
Inghams Enterprises Pty Limited v Lakovska [2014] NSWCA 194
Keith v Gal [2013] NSWCA 339
Maviglia v Maviglia [1999] NSWCA 188
Mifsud v Campbell (1991) 21 NSWLR 725
Pollard v RRR Corporation [2009] NSWCA 110
Rose v R [2013] NSWCCA 71
Soulemezis v Dudley Holdings Pty Limited (1987) 10 NSWLR 247
Wingfoot Australia Partners Pty…

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: [2017] NSWSC 377
Decision Date: 12 April 2017

CaseChat Overview and Summary

In the matter of Dee Why Auto Clinic v Roads and Maritime Services, the plaintiffs sought judicial review of a decision made by a Magistrate. The Magistrate had found the second plaintiff, who held a particular authorisation, to be unfit and improper to hold such authorisation. The plaintiffs challenged the decision on the grounds that the Magistrate failed to provide adequate reasons for the findings of breaches of relevant rules and the conclusion that the second plaintiff was unfit and improper. The plaintiffs argued that the Magistrate did not address their submissions and failed to engage with the issue of whether the breaches supported a conclusion of unfitness.

The court was required to determine whether the Magistrate's failure to give proper reasons and address the plaintiffs' submissions constituted an error of law. The court also needed to consider whether the Magistrate properly applied the onus and standard of proof in the proceedings. The plaintiffs argued that the Magistrate did not apply the Briginshaw standard of proof, which requires a balance of probabilities. The court found that while the Magistrate had properly applied the Briginshaw standard, the failure to give adequate reasons and address the submissions amounted to an error of law.

The court held that the Magistrate's failure to provide adequate reasons for the findings of breaches of the rules and the conclusion that the second plaintiff was unfit and improper to hold the authorisation amounted to an error of law. The court found that the Magistrate did not engage with the issue of whether the breaches supported a conclusion of unfitness and failed to address the plaintiffs' submissions. As a result, the proceedings were remitted to the Magistrate to be further dealt with according to law. The court noted that the Magistrate had properly applied the Briginshaw standard of proof in the proceedings.

Orders