GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA           )

                                                                                         )                                 AG 26 of 1998

CANBERRA DISTRICT REGISTRY                         )

                                                                                         )

GENERAL DIVISION                                                  )

ON APPEAL FROM THE SUPREME COURT OF

THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:           DRAGO JAMBRECINA

                                    Appellant

AND:                      TOM ELVIN PTY LTD

                                    Respondent

JUDGES:       LEE, HIGGINS, LEHANE JJ

PLACE:          CANBERRA

DATE:            2 NOVEMBER 1998

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

                                                                                                     GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA           )

                                                                                         )                                 AG 26 of 1998

CANBERRA DISTRICT REGISTRY                         )

                                                                                         )

GENERAL DIVISION                                                  )

ON APPEAL FROM THE SUPREME COURT OF

THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:           DRAGO JAMBRECINA

                                    Appellant

AND:                      TOM ELVIN PTY LTD

                                    Respondent

JUDGES:       LEE, HIGGINS, LEHANE JJ

PLACE:          CANBERRA

DATE:            2 NOVEMBER 1998

EX TEMPORE REASONS FOR JUDGMENT

THE COURT:

1.                  The issue in this appeal is whether the learned Magistrate made an error of principle or of law.  The second issue is as to whether the proceedings were conducted in a manner which was unfair to the appellant.  The court understands the appellant’s complaint.  It may well be as Mr Jambrecina suggests that, given the two loads of concrete at issue were for whatever reason defective, there should have been an allowance for the costs thrown away by its replacement.  The evidence was not clear as to why the learned Magistrate was not persuaded that the job could and should have been completed before the rains set in.  However, if he was wrong as to that, it was an error in understanding or assessing the evidence given.  That is not in the view of the court an error of law or of principle.  It was no doubt a conclusion to which others may not have arrived.  It was not a conclusion which was unavailable to him however.  I would add that it may well be that this court would have decided otherwise but leave on those circumstances was rightly refused and this appeal must accordingly be dismissed.  The court has determined that in this case costs should not be awarded.

I certify that this and the one (1) preceding page are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date:       13 November 1998

Counsel for the Appellant:                                 Appellant in Person

Counsel for the Respondent:                             Respondent in Person

Date of hearing:                                                2 November 1998

Date of ex tempore judgment:                           2 November 1998