Dodd v Tamigi - [2008] WASCA 21

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: DODD -v- TAMIGI [2008] WASCA 21

CORAM: STEYTLER P
MILLER JA
BEECH AJA

HEARD: 17 DECEMBER 2007

DELIVERED : 17 DECEMBER 2007

PUBLISHED : 8 FEBRUARY 2008

FILE NO/S: CACR 29 of 2007

BETWEEN: EDWIN ALFRED DODD
Appellant
AND
VINCENZO GIUSEPPE TAMIGI
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :JOHNSON J
Citation  :DODD -v- TAMIGI [2007] WASC 42
File No  :SJA 1043 of 2006

Catchwords:

Criminal law and procedure - Appeal - Failure to restrain load on a vehicle with an appropriate restraint - Turns on own facts

Legislation:

Road Traffic (Vehicle Standards) Regulations 2002 (WA)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr J D Allanson SC
Respondent: Ms J C Pritchard

Solicitors:

Appellant: Altorfer & Stow
Respondent: State Solicitor for Western Australia

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

Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6) (Court's "Allstate" Judgment No 33) (1996) 64 FCR 79
Dodd v Tamigi [2007] WASC 42
R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129
Van Den Heuvel v Tucker [2003] SASC 110; (2003) 85 SASR 512

STEYTLER P: I have had the advantage of reading the judgment of Beech AJA. I agree with it. It reflects my own reasons for joining in the order of the court dismissing the appeal.
MILLER JA: At the hearing of this appeal, the appeal was dismissed. The court indicated that its reasons would be given at a later time. I have had the opportunity of reading in draft the reasons of Beech AJA and I agree with those reasons. I have nothing further to add.
BEECH AJA:

Introduction

The appellant was convicted in the Magistrates Court on a complaint that, on 4 November 2003, at Geraldton, he drove a motor vehicle when, at the time, the load on the motor vehicle was not restrained with an appropriate method of restraint, contrary to reg 12(2) of the Road Traffic (Vehicle Standards) Regulations 2002 (WA) (the Regulations). Johnson J dismissed an appeal against his conviction: Dodd v Tamigi [2007] WASC 42.
The appellant appealed to this court, by leave granted on 7 June 2007, against the decision of Johnson J (the primary judge). At the hearing of the appeal the court dismissed the appeal, indicating that reasons would be given later. These are my reasons for joining in the court's order dismissing the appeal.
The background facts and applicable regulatory regime were set out by the primary judge [4] ‑ [12] in terms which are uncontroversial, as follows:
The following facts were not in dispute. On 4 November 2003, the appellant was driving an International tabletop truck on Portway at Geraldton. The vehicle had a tray bordered by a [coaming] rail about an inch high and a headboard to the front. It was carrying a…

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 Dodd v Tamigi

Details

AGLC: Dodd v Tamigi [2008] WASCA 21
Case: [2008] WASCA 21
Decision Date: 17 DECEMBER 2007

CaseChat Overview and Summary

In the case of Dodd v Tamigi, the appellant, Dodd, was charged with driving a vehicle without having taken all practicable steps to restrain the load on the vehicle. The trial judge found Dodd guilty of the charge. The appellant then appealed to the court, arguing that there were errors in the trial judge's decision. The court was required to determine whether the trial judge correctly found that Dodd had failed to take all practicable steps to restrain the load on his vehicle. The court was also required to consider whether the trial judge erred in his interpretation of the relevant legislation.

The court held that the trial judge's decision was correct and that there was no error in his interpretation of the legislation. The court found that the evidence established that Dodd had failed to take all practicable steps to restrain the load on his vehicle, as he had not used any type of restraint device to secure the load. The court also found that the trial judge's interpretation of the relevant legislation was consistent with the plain meaning of the words used in the statute. The court held that the trial judge's decision was supported by the evidence and that there was no error in law.

As a result of the court's decision, the appeal was dismissed. The appellant's conviction for driving a vehicle without having taken all practicable steps to restrain the load on the vehicle was upheld. The court found that the trial judge's decision was correct and that there were no errors in his interpretation of the relevant legislation. The court also found that the evidence established that the appellant had failed to take all practicable steps to restrain the load on his vehicle.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.