Saffery v Ellery - [2001] QDC 91

DISTRICT COURT OF QUEENSLAND

CITATION: Saffery v Ellery [2001] QDC 091

PARTIES: NOEL EDWARD SAFFERY
Respondent/Complainant
-v-
PETER JOHN ELLERY
Appellant/Defendant

FILE NO/S: 3513/2000

DIVISION: Appeal from Magistrates Court

PROCEEDING: S.222 appeal

ORIGINATING COURT: Magistrates Court

DELIVERED ON: 23 May 2001

DELIVERED AT: Brisbane

HEARING DATE: 14 May 2001

JUDGE: Judge Forde

ORDER:
1. The appeal is allowed to the extent that whereby the learned Magistrate refused to order costs in favour of the appellant/defendant, it is hereby ordered that the complainant do pay the defendant’s costs to be fixed at $8610.00.
2. It is further ordered that the respondent/complainant do pay the costs of the appeal of the appellant/defendant to be fixed at $1,800.00.

CATCHWORDS: Appeal from Magistrate – costs – ss.4, 158A Justices Act, Justice Regulation (1993) Schedule 2 – public officer - Civil Aviation Safety Authority – Civil Aviation Act 1988 – s.7 Commonwealth Authorities & Companies Act 1997 -common law approach erroneous
Latoutis v Casey (1990) 170 CLR 534 distinguished

COUNSEL: Mr J Sullivan for the Appellant/Defendant
Mr G R Rice for the Respondent/Complainant

SOLICITORS: Rogers Matheson Clark Solicitors for the Appellant/Defendant
Commonwealth Director of Public Prosecutions for the Respondent/Complainant

The appellant who was the defendant before the learned Magistrate at Brisbane, was charged by an officer of the Civil Aviation Safety Authority (CASA) as follows:

“(i) that on the twenty-eighth day of March 1999 at Millmerran in the State of Queensland, PETER JOHN ELLERY did, contrary to section 20A(2) of the Civil Aviation Act 1988 as amended, operate an aircraft in a careless or reckless manner so as to endanger the person or property of another person.

(ii)that on the twenty-eighth day of March 1999 at Millmerran in the State of Queensland, PETER JOHN ELLERY, being the pilot in command of an aircraft, namely PA36-375 registration number VH-HSQ, contrary to Regulation 92(1)(d) of the Civil Aviation Regulations 1988, took off from a place, namely the airstrip adjacent to the Pampas Horrane Road, when, having regard to all the circumstances of the proposed take-off, the said aircraft could not take off from that place in safety.”

Both charges were heard together on 3^rd, 4^th and 5^th days of July, 2000. Each charge was dismissed, but the learned Magistrate refused to order costs in favour of the appellant.

The circumstances of the accident are conveniently set out in the Respondent’s outline of submissions as follows:

“3.1 On 28 March 1999 the appellant, an agricultural pilot, was carrying out agricultural spraying in a light aircraft in a rural area near Millmerran. For this purpose he used a private airstrip adjacent to the Pampas Horrane Road near Millmerran. The airstrip (Diagram Exhibit 18) ran at right angles to the road. Powerlines about 5m high ran parallel to the road and represented an obstacle to be negotiated upon take-off.
3.2.At about 4.30 pm, when attempting his twenty-third take-off for the day, the defendant collided with a vehicle being driven on…

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 Saffery v Ellery

Details

AGLC: Saffery v Ellery [2001] QDC 91
Case: [2001] QDC 91
Decision Date: 23 May 2001

CaseChat Overview and Summary

The case of Saffery v Ellery involves an appeal by the defendant, Saffery, against a decision made by the magistrate in a proceeding where Ellery was the complainant. The dispute centres around the magistrate's refusal to order costs in favour of Saffery, following a finding that Ellery's claims were unfounded. The appeal was heard in the Supreme Court, which had to determine whether the magistrate erred in not awarding costs to Saffery.

The central legal issue before the court was whether the magistrate had the authority to refuse to order costs in favour of Saffery, given that Ellery's claims were dismissed. The court needed to consider the applicable statutes and regulations, including sections 4 and 158A of the Justices Act, the Justice Regulation (1993) Schedule 2, and the relevant provisions of the Civil Aviation Act 1988 and the Commonwealth Authorities & Companies Act 1997. Additionally, the court had to assess whether the magistrate's approach to awarding costs was in line with common law principles.

In delivering the judgment, the court found that the magistrate had indeed erred in not ordering costs in favour of Saffery. The court noted that under the statutes and regulations cited, there was a clear mandate for the magistrate to award costs when a claim is dismissed. Furthermore, the common law approach to awarding costs in such circumstances was not misapplied. The court concluded that the magistrate's refusal to order costs was an error of law, leading to the appeal being allowed on this point. The court ordered that Ellery must pay Saffery's costs in the amount of $8610.00 and the costs of the appeal, which were fixed at $1,800.00.

Orders

Orders of the court

1. The appeal is allowed to the extent that whereby the learned Magistrate refused to order costs in favour of the appellant/defendant, it is hereby ordered that the complainant do pay the defendant’s costs to be fixed at $8610.00.

2. It is further ordered that the respondent/complainant do pay the costs of the appeal of the appellant/defendant to be fixed at $1,800.00.

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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CITATION:	Saffery v Ellery [2001] QDC 091
PARTIES:	NOEL EDWARD SAFFERY Respondent/Complainant -v- PETER JOHN ELLERY Appellant/Defendant
FILE NO/S:	3513/2000
DIVISION:	Appeal from Magistrates Court
PROCEEDING:	S.222 appeal
ORIGINATING COURT:	Magistrates Court
DELIVERED ON:	23 May 2001
DELIVERED AT:	Brisbane
HEARING DATE:	14 May 2001
JUDGE:	Judge Forde
ORDER:	1. The appeal is allowed to the extent that whereby the learned Magistrate refused to order costs in favour of the appellant/defendant, it is hereby ordered that the complainant do pay the defendant’s costs to be fixed at $8610.00. 2. It is further ordered that the respondent/complainant do pay the costs of the appeal of the appellant/defendant to be fixed at $1,800.00.
CATCHWORDS:	Appeal from Magistrate – costs – ss.4, 158A Justices Act, Justice Regulation (1993) Schedule 2 – public officer - Civil Aviation Safety Authority – Civil Aviation Act 1988 – s.7 Commonwealth Authorities & Companies Act 1997 -common law approach erroneous Latoutis v Casey (1990) 170 CLR 534 distinguished
COUNSEL:	Mr J Sullivan for the Appellant/Defendant Mr G R Rice for the Respondent/Complainant
SOLICITORS:	Rogers Matheson Clark Solicitors for the Appellant/Defendant Commonwealth Director of Public Prosecutions for the Respondent/Complainant