Dee Why Auto Clinic and anor. v Roads and Maritime Services [2017] NSWSC 377

Supreme Court New South Wales

Medium Neutral Citation: Dee Why Auto Clinic and anor. v Roads and Maritime Services [2017] NSWSC 377 Hearing dates: 24 February 2017 Date of orders: 12 April 2017 Decision date: 12 April 2017 Jurisdiction: Common Law Before: Bellew J Decision: 1. The notice of motion filed by the plaintiffs on 23 February 2017 is dismissed.

2. The appeal is allowed.

3. The decision of the Magistrate of 7 July 2016 is set aside.

4. The proceedings are remitted to the Magistrate to be dealt with according to law.

5. Each party is to provide to my Associate written submissions as to costs within 7 days, such submissions not to exceed 2 pages in length. Catchwords: PRACTICE AND PROCEDURE – Judicial review of determination of Magistrate – Asserted error of law – Failure to give proper reasons – Where factual findings made as to breaches of relevant rules – Where no reasons were given for those findings – Where such findings were then used as the basis for a conclusion that the second plaintiff was not a fit and proper to hold such authorisation – Where no adequate reasons were given for reaching that conclusion – Where specific submissions were made by counsel to the Magistrate regarding the question of whether any breaches of the rules supported a conclusion of unfitness – Where the Magistrate failed to address those submissions and in doing so failed to engage with the issue before him – Error of law established – Proceedings remitted to the Magistrate to be further dealt with according to law

PRACTICE AND PROCEDURE – Judicial review of determination of Magistrate – Asserted error of law – Evidence – Onus of proof in civil proceedings – So called Briginshaw standard – Whether Magistrate properly applied the onus and standard of proof – Standard of proof properly applied – Observations as to the nature of the Briginshaw standard Legislation Cited: Evidence Act 1995 (NSW) Local Court Act 2007 (NSW) Road Transport Act 2013 (NSW) Road Transport (Vehicle Registration) Regulation 2007 Supreme Court Act 1970 (NSW) Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 B & L Linings Pty Limited v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Berrigan Doube Lawyers Pty Limited v Millar Eagger Pty Limited [2016] NSWSC 235 Bond v Australian Broadcasting Tribunal (1989) 89 ALR 185 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 Gianoutsos v Glykis [2006] NSWCCA 137 Inghams Enterprises Pty Limited v Lakovska [2014] NSWCA 194 Keith v Gal [2013] NSWCA 339 Maviglia v Maviglia [1999] NSWCA 188 Mifsud v Campbell (1991) 21 NSWLR 725 Pollard v RRR Corporation [2009] NSWCA 110 Rose v R [2013] NSWCCA 71 Soulemezis v Dudley Holdings Pty Limited (1987) 10 NSWLR 247 Wingfoot Australia Partners Pty Limited v Kocak (2013) 252 CLR 480; [2013] HCA 43 Category: Principal judgment Parties: Dee Why Auto Clinic – First plaintiff Armen Rostamians – Second plaintiff Roads and Maritime Services - Defendant Representation: Counsel: S Stanton – Plaintiffs M Spartalis - Defendant