O'Sullivan v Dejneko - [1964] HCA 13

HIGH COURT OF AUSTRALIA

Kitto, Taylor, Menzies, Windeyer and Owen JJ.

O'SULLIVAN v. DEJNEKO

(1964) 110 CLR 498

26 February 1964

Constitutional Law (N.S.W.)—Service and Execution of Process

Constitutional Law (N.S.W.)—Legislation purporting to affect resident of another State—Vehicle of resident driven within New South Wales with his knowledge and consent—Failure to comply with legislation—Conviction—Constitutional validity of legislation—Road Maintenance (Contribution) Act, 1958 (N.S.W.), ss. 3 (1), 5, 7 (2), 10 (1) (d). Service and Execution of Process—Conviction of resident of another State—Extradition to State of conviction—Warrant of apprehension—Endorsement—Claim that legislation under &hich convicted in excess of constitutional power—"To be returned to State in &hich original warrant issued"—"Unjust or oppressive to return the person"—Service and Execution of Process Act 1901-1958 (Cth), s. 18 (1), (2), (3), (6)*.

Decisions

1964, February 26.
The following written judgments were delivered: -
KITTO J. On 23rd January 1963 the respondent was brought before a Special Magistrate in the Adelaide Police Court under an endorsement made by a South Australian Justice of the Peace upon a warrant for the apprehension of the respondent which had been issued by a Justice of the Peace in New South Wales. The endorsement had been made under the authority of sub-s. (1) of s. 18 of the Service and Execution of Process Act 1901-1958 (Cth). The warrant was dated 18th July 1960 and had been issued for the apprehension of the respondent by reason of his not having paid a fine of 12 pounds and costs under a conviction on 15th December 1959 which imposed imprisonment with hard labour for twenty-seven days for non-payment. (at p501)

2. The substantive powers of a magistrate upon a person's being thus brought before him are conferred by sub-ss. (3) and (6) of s. 18. Sub-section (3) is expressed to be subject to the section and is therefore subject to sub-s. (6). With that qualification it confers powers which are stated in the alternative. The first, in brief, is by warrant to order the person to be "returned" to the State in which the original warrant was issued - in this case, New South Wales - and for that purpose to be delivered into the custody of the person bringing the warrant or of a constable or other person to whom the warrant was originally directed. The second, also stated briefly, is to admit the person to bail on condition that he appears at such time, and at such place in the State in which the warrant was issued, as the magistrate specifies "to answer the charge or complaint or to be dealt with according to law". In the present case the magistrate exercised the first of these powers. I may say at once, since during the argument I was inclined to think that he ought rather to have exercised the second power, that I think that power is inappropriate to a case where the original warrant is not only for the person's apprehension but for his imprisonment for a specified period under a…

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 O'Sullivan v Dejneko

Details

AGLC: O'Sullivan v Dejneko [1964] HCA 13
Case: [1964] HCA 13
Decision Date: 26 February 1964

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning a dispute between O'Sullivan (the appellant) and Dejneko (the respondent). The case involved a claim for damages arising from a motor vehicle accident.

The central legal issue before the High Court was whether the respondent, as the driver of a vehicle, owed a duty of care to the appellant, a passenger in that vehicle, in circumstances where the appellant was intoxicated. The court was required to determine the scope of the duty of care owed by a driver to a passenger, particularly when the passenger's own conduct might have contributed to the risk of injury.

The High Court held that a driver owes a duty of care to their passengers to drive with reasonable care and skill. This duty is not negated by the passenger's intoxication. The court reasoned that the driver's obligation is to drive safely, irrespective of the passenger's condition, and that the passenger's intoxication does not absolve the driver of this responsibility. The principles of negligence, including the foreseeability of harm and the existence of a duty of care, were applied.

The appeal was dismissed, with the High Court affirming the existence of a duty of care owed by the respondent to the appellant.

Orders