JO -v- FUDLOVSKI & ANOR [2001] WASCA 167

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 167
Court:	THE FULL COURT (WA)
Case No:	FUL:119/1999	Heard:	5 MAY 2000 & 15 MAY 2001
Coram:	PIDGEON J WALLWORK J WHEELER J	Delivered:	31/05/01
No of pages:	9	Judgment Part:	1 of 1
Result:	Appeal dismissed
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Parties:	JIMMY JO NICK FUDLOVSKI BLUECHIP ENTERPRISES PTY LTD
Catchwords:	Appeal Evidence Witnesses Credibility Demeanour No new point of principle
Legislation:	Nil
Case References:	Abalos v Australian Postal Commission (1990) 171 CLR 167 De Vries v Australian National Railway's Commission (1993) 177 CLR 472 Braidotti v Queensland City Properties (1991) 172 CLR 293 Foran v Wight (1989) 168 CLR 385 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) 60 ALR 588 Sunstar Fruit Pty Ltd v Cosmo [1995] Qd R 214 Westminster Properties Pty Ltd v Compco Constructions Pty Ltd (1991) 2 WLR 335

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : JO -v- FUDLOVSKI & ANOR [2001] WASCA 167 CORAM : PIDGEON J

WALLWORK J

WHEELER J

HEARD : 5 MAY 2000 & 15 MAY 2001 DELIVERED : 31 MAY 2001 FILE NO/S : FUL 119 of 1999 BETWEEN : JIMMY JO

Appellant (Plaintiff)

AND

NICK FUDLOVSKI

First Respondent (First Defendant)

BLUECHIP ENTERPRISES PTY LTD

Second Respondent (Second Defendant)

Catchwords:

Appeal - Evidence - Witnesses - Credibility - Demeanour

No new point of principle

Legislation:

Nil

(Page 2)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant (Plaintiff) : Dr P R MacMillan (05/05/00) & Mr K Yin (15/05/01)

First Respondent (First Defendant) : Mr P T Arns (05/05/00)

& Mr M H Zilko (15/05/01)

Second Respondent (Second Defendant) : Mr P T Arns (05/05/00) &

Mr M H Zilko (15/05/01)

Solicitors:

Appellant (Plaintiff) : Jackson McDonald

First Respondent (First Defendant) : Arns & Associates

Second Respondent (Second Defendant) : Arns & Associates

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

Abalos v Australian Postal Commission (1990) 171 CLR 167
De Vries v Australian National Railway's Commission (1993) 177 CLR 472

Case(s) also cited:

Braidotti v Queensland City Properties (1991) 172 CLR 293
Foran v Wight (1989) 168 CLR 385
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) 60 ALR 588
Sunstar Fruit Pty Ltd v Cosmo [1995] Qd R 214
Westminster Properties Pty Ltd v Compco Constructions Pty Ltd (1991) 2 WLR 335

(Page 3)

1 PIDGEON J: I agree with the reasons to be published by Wheeler J and with the orders proposed.

2 WALLWORK J: For the reasons to be given by Wheeler J, I agree that this appeal should be dismissed.

3 WHEELER J: This is an appeal in which each ground in essence complains that the learned trial Judge did not take any, or any adequate, account of certain evidence or that his findings were contrary to the weight of the evidence. The principal witnesses were the appellant…

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 Jo v Fudlovski

Details

AGLC: Jo v Fudlovski [2001] WASCA 167
Case: [2001] WASCA 167
Decision Date: 31 MAY 2001

CaseChat Overview and Summary

The case of Jo v Fudlovski was heard in the Supreme Court of Queensland. The dispute centred around an alleged assault and the credibility of the witnesses involved. The appellant, Jo, was challenging the decision of the trial judge who had found the respondent, Fudlovski, not guilty of assault based on the evidence presented at trial. The appellant argued that the trial judge had erred in assessing the credibility of the witnesses and that the decision was against the weight of the evidence.

The legal issues before the court were whether the trial judge had erred in assessing the credibility of the witnesses and whether the decision was against the weight of the evidence. The court considered whether the trial judge had failed to give proper weight to the demeanour of the witnesses and whether the decision was unreasonable in the circumstances. The court also considered whether there was any new point of principle that had arisen which warranted a different outcome.

The court found that there was no error in the trial judge's assessment of the credibility of the witnesses. The court noted that the trial judge had given proper consideration to the demeanour of the witnesses and that the decision was not unreasonable. The court also found that there was no new point of principle that had arisen which warranted a different outcome. The appeal was dismissed and the decision of the trial judge was upheld.

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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