Robert Lindsay Steele v Maurice Robert Marshan - [2012] NSWSC 32

Supreme Court

New South Wales

Medium Neutral Citation: Robert Lindsay Steele v Maurice Robert Marshan [2012] NSWSC 32
Hearing dates: 3 February 2012
Decision date: 07 February 2012
Before: Adamson J
Decision:
(1) Summons dismissed.
(2) Order the plaintiff to pay the defendant's costs of the proceedings, including any reserved costs.

Catchwords: APPEAL - appeal from the Local Court - questions of law - questions of mixed law and fact - discretion to allow appeal where there are questions of mixed law and fact - procedural fairness - advantages enjoyed by first instance decision makers
Legislation Cited: - Inclosed Lands Protection Act 1901 (NSW)
- Legal Profession Act 2004 (NSW)
- Local Court Act 1997 (NSW) ss 39, 40
- Supreme Court Act 1970 s 75(7), (8)
Cases Cited: - Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
- Devries v Australian National Railways Commission (1993) 177 CLR 472
- Abalos v Australian Postal Commission (1990) 171 CLR 167
Texts Cited: Aronson et al, Judicial Review of Administrative Action (4th ed)
Category: Principal judgment
Parties: Robert Lindsay Steele
Maurice Robert Marshan
Representation: In person (Plaintiff)
R Desiatnik (Defendant)
In person (Plaintiff)
In person (Defendant)

File Number(s): 2011/00241943

Judgment

Introduction

This is an appeal by summons from a decision of the Local Court in its General Division. This Court's jurisdiction arises by reason of s 39(1) and s 40 of the Local Court Act 2007, which provide in part:

"39 Appeals as of right

(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law.

...

40 Appeals requiring leave

(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court.

..."

As will be apparent from the conferral of jurisdiction set out under s 39(1) an appeal lies only on a question of law. Accordingly, unless the plaintiff identifies a question of law, the decision of the Court below cannot be disturbed. If there is a question of mixed law and fact, an appeal lies only by leave under s 40.

The plaintiff has articulated, in substance, 6 grounds of appeal. He contends that grounds 1 to 4, the first sentence of ground 5 and ground 6 raise questions of law, and accordingly, he is entitled to appeal as of right. He contends that the second sentence of ground 5 raises a mixed question of law and fact and accordingly seeks leave to appeal.

Factual background to the appeal

The factual background to the appeal is, in summary, as follows. The plaintiff first met the defendant, a solicitor, in connection with a Local Court criminal matter in 2007 in which he…

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: [2012] NSWSC 32
Decision Date: 07 February 2012

CaseChat Overview and Summary

Robert Lindsay Steele, the appellant, filed an appeal against the decision of Maurice Robert Marshan, the respondent, who was the magistrate in the Local Court of New South Wales. The crux of the dispute was a traffic offence involving Steele, who was charged with driving under the influence of alcohol. The case was heard and decided by the Local Court, and Steele was subsequently found guilty and fined. Dissatisfied with the outcome, Steele sought to appeal the decision on several grounds.

The central legal issues that the court was required to address in this appeal were whether the appeal was permissible on questions of mixed law and fact, and if the appeal should be allowed based on the principles of procedural fairness and the inherent advantages enjoyed by first instance decision makers. Steele argued that the magistrate's decision contained errors of law and that the process lacked procedural fairness. The court needed to determine if these grounds were sufficient to justify allowing the appeal.

The court considered the nature of the appeal, noting that it involved questions of mixed law and fact. While the court generally does not entertain appeals on questions of mixed law and fact, exceptions exist where there are significant procedural irregularities or substantial injustice. In assessing the merits of the appeal, the court examined the reasoning behind the magistrate's decision and the procedural fairness of the hearing. The court acknowledged that first instance decision makers have certain procedural advantages, which could influence the outcome of a case. However, the court found that these factors did not warrant allowing the appeal, as the magistrate's decision was based on a reasonable interpretation of the evidence and the law. Consequently, the appeal was dismissed.

Orders