Gamble v Kingborough Council (No 2) - [2020] TASFC 8

[2020] TASFC 8

COURT:	SUPREME COURT OF TASMANIA (FULL COURT)
CITATION:	Gamble v Kingborough Council (No 2) [2020] TASFC 8
PARTIES:	GAMBLE, Anthony Paul
GAMBLE (nee Watson), Deborah Anne
SLAGHUIS, Shelley Adriana
PAINE, Ritchie
v
KINGBOROUGH COUNCIL
FILE NOS:	1114/2020
DELIVERED ON:	12 November 2020
DELIVERED AT:	Hobart
HEARING DATE:	12 November 2020
JUDGMENT OF:	Blow CJ, Brett J, Geason J
CATCHWORDS:

Procedure – Civil proceedings in State and Territory courts – Costs – General rule: costs follow event – Other particular cases and matters – Full Court appeal re convictions imposed by magistrate.

Justices Act 1959 (Tas), s 125.

Aust Dig Procedure [1485]

REPRESENTATION:

Counsel:

Appellants: Dr N Davidson
Respondent: M Butler

Solicitors:

Respondent: Simmons Wolfhagen

Judgment Number:	[2020] TASFC 8
Number of paragraphs:	14

Serial No 8/2020

File No 1114/2020

ANTHONY PAUL GAMBLE, DEBORAH ANNE GAMBLE (nee WATSON),

SHELLEY ADRIANA SLAGHUIS and RITCHIE PAINE

v KINGBOROUGH COUNCIL (NO 2)

REASONS FOR JUDGMENT	FULL COURT BLOW CJ BRETT J GEASON J 12 November 2020
Order of the Court

That the first, second and third appellants pay the costs of the respondent of and incidental to the appeal.

Serial No 8/2020

File No 1114/2020

ANTHONY PAUL GAMBLE, DEBORAH ANNE GAMBLE (nee WATSON),

SHELLEY ADRIANA SLAGHUIS and RITCHIE PAINE

v KINGBOROUGH COUNCIL (NO 2)

REASONS FOR JUDGMENT	FULL COURT
(DELIVERED ORALLY)	BLOW CJ 12 November 2020

1            This is an application for the costs of a Full Court appeal. The appellants were unsuccessful in the appeal and the respondent has applied for costs.
2             The matter has a sorry history. The appellants were involved in the operation of a mobile coffee cart in circumstances where a permit from the respondent, the Kingborough Council, was required under the provisions of the Land Use Planning and Approvals Act 1993. If an application had been made for a permit, then under the terms of the applicable planning scheme the Council would have been obliged to grant one. No application was made.
3             A Council officer drew the attention of the operators of the mobile coffee cart to the need for a permit. They obtained some unfortunate legal advice and did not apply for a permit. They were prosecuted. They defended the case. They were convicted and fined. They moved for the review of the magistrate's decision. They were unsuccessful. The motion to review was dismissed.[1] They appealed to the Full Court. The Full Court appeal was unsuccessful. It was dismissed.[2] The Council has now applied for the usual order for costs.
[1] Gamble v Kingborough Council [2020] TASSC 12.
[2] Gamble v Kingborough Council [2020] TASFC 7.
4 The power to award costs is conferred by s 125 of the Justices Act 1959. It gives this Court an unfettered discretion to make orders for costs, not just in respect of the Supreme Court proceedings, but also in respect of the proceedings in the Magistrates Court. No application has been made for the costs of…

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: [2020] TASFC 8
Decision Date: 12 November 2020

CaseChat Overview and Summary

In *Gamble v Kingborough Council (No 2)*, the Full Court of the Supreme Court of Tasmania considered an appeal concerning convictions imposed by a magistrate against the appellant, Mr. Gamble, for alleged breaches of the *Local Government Act 1993* (Tas). The respondent was the Kingborough Council.

The central legal issue before the Full Court was whether the magistrate had erred in law in convicting Mr. Gamble. This involved a determination of whether the evidence presented was sufficient to establish the alleged breaches of the Act beyond a reasonable doubt, and whether the magistrate had correctly applied the relevant provisions of the *Local Government Act 1993* (Tas) to the facts as found.

The Full Court analysed the evidence and the magistrate's findings, ultimately concluding that the magistrate had made errors of law in her assessment of the evidence and the application of the statutory provisions. The Court found that the evidence did not support the convictions beyond a reasonable doubt. Consequently, the Full Court allowed the appeal, quashed the convictions, and set aside the orders made by the magistrate.

Orders