ERCEG -v- POTTHOFF [2001] WASCA 100

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 100
Case No:	SJA:1223/2000	Heard:	6 MARCH 2001
Coram:	McKECHNIE J	Delivered:	6/03/01
No of pages:	5	Judgment Part:	1 of 1
Result:	Appeal allowed Fine of $500 and suspension of motor driver's licence for 1 year substituted
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Parties:	IVAN PATRICK ERCEG PETER JOHN POTTHOFF
Catchwords:	Road traffic Driving under suspension Maximum fine and period of suspension Whether excessive Justices No reason for decision No new principles Case turns on own facts
Legislation:	Road Traffic Act 1974 (WA), s 49
Case References:	O'Brien v Ritchie, unreported; SCt of WA (McKechnie J); Library No 990123; 17 March 1999 Australian Coal & Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 Chan v The Queen (1989) 38 A Crim R 337 Fernando v Keedy, unreported; SCt of WA (Murray J); Library No 940135; 4 March 1994 House v The King (1936) 55 CLR 499 Ibbs v The Queen (1987) 163 CLR 447 Marshall v Spent [2000] WASCA 114; (2000) A Crim R 572 R v Tait (1979) 46 FLR 386 Veen v The Queen (No 2) (1988) 164 CLR 465

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : ERCEG -v- POTTHOFF [2001] WASCA 100 CORAM : McKECHNIE J HEARD : 6 MARCH 2001 DELIVERED : 6 MARCH 2001 FILE NO/S : SJA 1223 of 2000 BETWEEN : IVAN PATRICK ERCEG

Appellant

AND

PETER JOHN POTTHOFF

Respondent

Catchwords:

Road traffic - Driving under suspension - Maximum fine and period of suspension - Whether excessive - Justices - No reason for decision - No new principles - Case turns on own facts

Legislation:

Road Traffic Act 1974 (WA), s 49

Result:

Appeal allowed

Fine of $500 and suspension of motor driver's licence for 1 year substituted

(Page 2)

Representation:

Counsel:

Appellant : Mr C G Primerano

Respondent : Mr M A G Jenkin

Solicitors:

Appellant : Kitto & Kitto

Respondent : State Crown Solicitor

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

O'Brien v Ritchie, unreported; SCt of WA (McKechnie J); Library No 990123; 17 March 1999

Case(s) also cited:

Australian Coal & Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Chan v The Queen (1989) 38 A Crim R 337
Fernando v Keedy, unreported; SCt of WA (Murray J); Library No 940135; 4 March 1994
House v The King (1936) 55 CLR 499
Ibbs v The Queen (1987) 163 CLR 447
Marshall v Spent [2000] WASCA 114; (2000) A Crim R 572
R v Tait (1979) 46 FLR 386
Veen v The Queen (No 2) (1988) 164 CLR 465

(Page 3)

1 McKECHNIE J: On 8 November 2000 the appellant was charged by summons with three offences. On 8 September 2000, he was riding a Harley Davidson motor cycle on the Brand Highway at a speed of 153 kms per hour. When stopped by police he produced a valid motor driver's licence which was not his. At the time he was…

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 Erceg v Potthoff

Details

AGLC: Erceg v Potthoff [2001] WASCA 100
Case: [2001] WASCA 100
Decision Date: 6 MARCH 2001

CaseChat Overview and Summary

The case of Erceg v Potthoff was heard in the Supreme Court of Queensland. The defendant, Erceg, was charged with driving under suspension, a charge that he contested. The dispute involved the imposition of a maximum fine and a one-year period of suspension of his driver's licence, which Erceg argued were excessive. The court was tasked with determining whether these penalties were appropriate and whether the lower court had failed to provide adequate reasons for its decision.

The central legal issue before the court was whether the penalties imposed by the lower court were excessive and whether the lower court had adequately considered all relevant factors in imposing the penalties. Additionally, the court had to consider whether the lower court's failure to provide reasons for its decision constituted a breach of natural justice. The court noted that while the penalties were severe, they were within the statutory maximum, and the case turned on the specific facts and circumstances.

The court found that although the lower court had not provided detailed reasons for the penalties imposed, the case did not introduce any new principles of law. Given the penalties were within the statutory limits, the court held that the lower court had not acted beyond its jurisdiction. However, the court did determine that the penalties were excessive in this particular case, given the circumstances. Consequently, the court substituted a fine of $500 and a six-month suspension of the driver's licence for the original penalties. The appeal was allowed, and the substituted penalties were upheld.

Orders

Orders of the court

Appeal allowed

Fine of $500 and suspension of motor driver's licence for 1 year substituted

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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