FAWKES -v- WEST [2016] WADC 169

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WADC 169
Case No:	APP:52/2016	Heard:	4 NOVEMBER 2016
Coram:	GOETZE DCJ	Delivered:	16/12/16
Location:	PERTH
No of pages:	15	Judgment Part:	1 of 1
Result:	Appeal dismissed
PDF Version

Parties:	ELTON SAMUEL FAWKES CAROLYN WEST
Catchwords:	Appeal from Magistrates Court Fire alleged to have escaped from appellant's property to respondent's property Liability Turns on own facts
Legislation:	Magistrates Court (Civil Proceedings) Act 2004
Case References:	Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Chappel v Hart [1998] HCA 55 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 Smith v Mandurah Auto Pty Ltd [2014] WADC 69

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : FAWKES -v- WEST [2016] WADC 169 CORAM : GOETZE DCJ HEARD : 4 NOVEMBER 2016 DELIVERED : 16 DECEMBER 2016 FILE NO/S : APP 52 of 2016 BETWEEN : ELTON SAMUEL FAWKES

Appellant

AND

CAROLYN WEST

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE HALL

File No : GCLM 77 of 2013

Catchwords:

Appeal from Magistrates Court - Fire alleged to have escaped from appellant's property to respondent's property - Liability - Turns on own facts

Legislation:

Magistrates Court (Civil Proceedings) Act 2004

Result:

Appeal dismissed

Representation:

Counsel:

Appellant : Mr C J Graham

Respondent : Ms S Cherry

Solicitors:

Appellant : Borrello Graham Lawyers

Respondent : Ligeti Partners Lawyers

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

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Chappel v Hart [1998] HCA 55
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Smith v Mandurah Auto Pty Ltd [2014] WADC 69

GOETZE DCJ

Introduction

1 The appellant, Mr Fawkes, and the respondent, Ms West, own adjoining properties in Cunderdin.

2 On 10 March 2012, Mr Fawkes carried out some burning off on his property. On the following day, a fire occurred on Ms West's property, causing damage. Ms West alleged that the fire was caused by Mr Fawkes' burning off and claimed compensation from Mr Fawkes for that damage. Mr Fawkes denied liability. In consequence, Ms West's claim proceeded to trial in the Magistrates Court.

3 At trial, the only issue was liability. The quantum of damage was agreed in the sum of $31,910.74. The learned trial magistrate found in favour of Ms West. Mr Fawkes now appeals that decision.

The magistrate's reasons for decision

4 The learned magistrate relied both on the evidence of Mr Phillip Glover, an expert called by Ms West, and also his own inferential reasoning, in finding the claim was proved. He said:

65. I accept that the foundation of facts upon which Mr Glover formed his opinion in his Report changed as a result of witnesses not called and subsequently ruled inadmissible evidence. I accept on the basis of the facts 'taken out', Mr Glover may have had…

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 Fawkes v West

Details

AGLC: Fawkes v West [2016] WADC 169
Case: [2016] WADC 169
Decision Date: 16 DECEMBER 2016

CaseChat Overview and Summary

The appeal was brought by the appellant, Fawkes, against the decision of the Magistrates Court, which found Fawkes liable for a fire that allegedly escaped from his property to the respondent's property, West. The appellant argued that he was not liable for the fire, while the respondent claimed that the fire originated from the appellant's property and caused damage to the respondent's property.

The court had to determine the legal issues of whether the appellant was liable for the fire that caused damage to the respondent's property, and whether the evidence presented was sufficient to establish the appellant's liability. The court also had to consider the facts of the case and determine if they were sufficient to establish liability.

The court found that the evidence presented was sufficient to establish that the fire originated from the appellant's property and caused damage to the respondent's property. The court further found that the appellant was liable for the fire and the damage it caused. The court rejected the appellant's argument that the evidence was insufficient to establish liability, and found that the facts of the case were sufficient to establish the appellant's liability.

The appeal was dismissed, and the decision of the Magistrates Court was upheld. The appellant was found liable for the fire that caused damage to the respondent's property.

Orders

Orders of the court

Appeal dismissed

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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