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Re Greg Martin

Re Greg Martin

Case [2005] WASC 32 20 January 2005

Jurisdiction

Natural Justice & Procedural Fairness

Stay of Proceedings

Unconscionable Conduct

Proportionality

Administrative Law

Civil Litigation & Procedure

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RE GREG MARTIN; EX PARTE DIPANE [2005] WASC 32

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 32
Published:	04/03/2005
Case No:	CIV:2674/2004	Heard:	20 JANUARY 2005
Coram:	TEMPLEMAN J	Delivered:	20/01/05
No of pages:	15	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	CARLO DIPANE
Catchwords:	Civil procedure Application for stay pending return of order nisi Financial hardship Prospects of success on return of order nisi Whether special circumstances Turns on own facts
Legislation:	Nil
Case References:	Baker v Commissioner of Federal Police (2000) 104 FCR 359 Burton v Zurich Bay Holdings Pty Ltd [1999] WASCA 211 Elliot v Australian Prudential Regulation Authority [2004] FCA 586 Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79 Hamilton v Oades (1989) 166 CLR 486 Kwa v Bank of Western Australia [2003] WASCA 163 McMahon v Gould (1982) 7 ACLR 202 Re The Medical Board of Western Australia; Ex parte P [2001] WASC 103 Stampalia v The Stewards of the Western Australian Trotting Association & Anor [1999] WASC 7 Ansell v Walls (1982) 43 ALR 41 Baker, Re; Flatwash Pty Ltd v Federal Commissioner of Taxation (1987) 19 ATR 11 Cameron's Unit Services Pty Ltd v Kevin R Whelpton Associates (Australia) Pty Ltd (1984) 4 FCR 428 Cunliffe v The Commonwealth (1994) 182 CLR 272 Dixon v Commonwealth (1981) 55 FLR 34 Errington v Minister of Health [1935] 1 KB 249 Golden City Car and Truck Centre and Wall v DCT (1999) 42 ATR 379 Hammond v Commonwealth (1982) 152 CLR 188 Harper v Racing Appeal Tribunal of WA, unreported; SCt of WA (Kennedy J); Library No 930738; 26 November 1993 Harvey v Racing Appeals Tribunal of WA [2000] WASC 299 Kanda v Government of Malaysia [1962] AC 332 Lee-Steere v Slater, unreported; SCt of WA; Library No 5083; 29 September 1983 Martins v Racing Penalties Tribunal of Western Australia, unreported; FCt SCt of WA; Library No 970519; 10 October 1997 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Norilya Minerals Pty Ltd v Ireland (1991) 5 WAR 411 Olbers Co Ltd v Commonwealth (No 2) [2003] FCA 177 Re a Solicitor (1938) 55 WN (NSW) 110 Re Levy; Ex parte Incorporated Law of Institute of New South Wales [1887] 8 LR(NSW) 347 Roberts v Hopwood [1925] AC 578 Woolgar v Chief Constable of Sussex Police [1999] 3 All ER 604

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RE GREG MARTIN; EX PARTE DIPANE [2005] WASC 32 CORAM : TEMPLEMAN J HEARD : 20 JANUARY 2005 DELIVERED : 20 JANUARY 2005 PUBLISHED : 4 MARCH 2005 FILE NO/S : CIV 2674 of 2004 MATTER : An application for a Writ of Certiorari against Mr Greg Martin, Chief Executive Officer of the Department of Planning and Infrastructure, Government of Western Australia EX…

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 Re Greg Martin

Details

AGLC: Re Greg Martin [2005] WASC 32
Case: [2005] WASC 32
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Carlo Dipane applied for a writ of certiorari to quash a decision by Greg Martin, Chief Executive Officer of the Department of Planning and Infrastructure, to cancel his commercial fishing certificates. The cancellation followed a collision between Dipane's vessel and a recreational vessel, resulting in one death and one serious injury. Dipane argued that the cancellation of his certificates denied him natural justice and was unreasonable, unfair, and based on irrelevant considerations. Templeman J granted an order nisi but dismissed the application for a stay pending the return of the order nisi, finding that Dipane had not demonstrated special circumstances sufficient to justify the stay. The Court considered Dipane's financial hardship, his prospects of success on the substantive application, and whether special circumstances existed. The Court concluded that Dipane's financial hardship did not constitute special circumstances as the cancellation was permanent, and his financial situation would not necessarily put him out of business. Furthermore, the Court found that Dipane's prospects of success on the substantive application did not justify a stay, as he had not demonstrated a real risk of prejudice or injustice. The application for a stay was dismissed.

Orders