Dura Constructions (Aust) Pty Ltd v Dovigi - [2004] VSC 252

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8993 of 2003

IN THE MATTER of an appeal under s 109 of the Magistrates' Court Act 1989

DURA CONSTRUCTIONS (AUST) PTY LTD	Appellant
V
GUISEPPI DOVIGI	Respondent

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JUDGE:	Williams J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 March 2004
DATE OF JUDGMENT:	20 July 2004
CASE MAY BE CITED AS:	Dura Constructions (Aust) Pty Ltd v Dovigi
MEDIUM NEUTRAL CITATION:	[2004] VSC 252

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Magistrates – Appeal – Compensation order under s 85B Sentencing Act 1991 – Whether Magistrate erred by failing to have regard to victim's contributory negligence or fault

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G Uren QC and Ms S Manova	Ebsworth & Ebsworth
For the Respondent	Mr J Kennan SC and Mr N Horner	Slater & Gordon

HER HONOUR:

The appellant has brought this appeal under s 109 of the Magistrates’ Court Act 1989 from an order made on 30 October 2003 by Mr Cashmore M in the Magistrates’ Court at Melbourne.

On 7 May 2002 the appellant had been convicted of the offences under s 21(1) of the Occupational Health and Safety Act 1985 and fined the aggregate sum of $25,000. On 30 October 2003 the learned Magistrate ordered under s 85B of the Sentencing Act 1991 that the appellant pay compensation to the respondent in the sum of $200,000 for pain and suffering experienced as a direct result of the appellant’s offences.

The Questions of Law

On 27 November 2003 Master Wheeler formulated the following questions of law to be raised by the appeal from the compensation order:

“(a)In exercising the discretion conferred by s 85B of the Sentencing Act 1991, did the Magistrate err in law by failing to have regard to the Respondent's own fault (and/or contributory negligence) in the incident causative of the Respondent’s pain and suffering?
(b)Was the award made (in the amount of $200,000) so excessive that no reasonable Magistrate, acting in accordance with the statutory power, could have made it”

The appellant only proceeded with the appeal in relation to the question of law raised in paragraph (a), foreshadowing the possibility of a referral of the question of assessment back to the Magistrates’ Court if the appeal were successful.

Preliminary point -the nature of the order under s 85B

At the hearing the appellant relied upon Shoebridge & Anor v The Pasta Master Pty Ltd & Anor[1] as authority for the proposition that the application under s 85B of the Sentencing Act 1991 was properly characterised as a civil proceeding for the purposes of the appeal under s 109 of the Magistrates’ Court Act 1989. The respondent did not contend otherwise and it was acknowledged that no point was taken as to the applicability of the process.[2]
[1][2000] VSC 14
[2]Transcript p 1 ln 24.

Submissions were sought after the hearing as to the implications of the characterisation of such an application as “an incident of the criminal…

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: [2004] VSC 252
Decision Date: 20 July 2004

CaseChat Overview and Summary

The appellant, Dura Constructions (Aust) Pty Ltd, sought leave to appeal a decision of the Magistrates Court of Victoria concerning a compensation order made under section 85B of the Sentencing Act 1991. The original dispute involved a claim by the respondent, Dovigi, who alleged that he suffered injuries as a result of the appellant's negligence. The Magistrates Court found in favour of Dovigi, ordering Dura Constructions to pay compensation, but did not consider the extent of Dovigi's contributory negligence or fault.

The primary legal issue for the court to determine was whether the Magistrate erred in failing to consider the respondent's contributory negligence or fault when making the compensation order. The appellant argued that the Magistrate's failure to take into account the respondent's contributory negligence or fault constituted a significant error, potentially leading to an unjust outcome. The court was required to examine the principles governing compensation orders under section 85B of the Sentencing Act 1991 and determine the appropriate scope of the Magistrate's consideration of contributory negligence.

The court considered that the Magistrate's failure to consider the respondent's contributory negligence or fault was a substantial error. The court held that under section 85B of the Sentencing Act 1991, a Magistrate must consider all relevant factors, including the degree of fault or contributory negligence of the victim, when making a compensation order. The court found that the Magistrate had not properly balanced the respondent's contributory negligence against the appellant's liability, resulting in an order that did not accurately reflect the respondent's level of fault. Consequently, the court allowed the appeal, set aside the compensation order, and remitted the matter to the Magistrates Court for reconsideration with proper regard to the respondent's contributory negligence or fault.

Orders