David Ericson and Southside Auto Alley v Herta Christine Von Kriesten [1994] ACTSC 48 (26 May 1994)

SUPREME COURT OF THE ACT

DAVID ERICSON and SOUTHSIDE AUTO ALLEY v. HERTA CHRISTINE VON KRIESTEN
No. SCA120 of 1993
Number of pages - 6
Practice And Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Practice And Procedure - Small Claims Court - appeal - application for leave - finding of fact - whether an error of law - procedural unfairness - whether Magistrate demonstrated bias.

Small Claims Act 1974, s.33(9)

Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472

HEARING

CANBERRA, 13 May 1994
26:5:1994

Counsel for the Applicant: Mr M P Baumann

Instructing solicitors: Maliganis Edwards Johnson

Counsel for the Respondent: Ms W E Corby

Instructing solicitors: Abbott Tout Russell Kennedy

ORDER

THE COURT ORDERS THAT:
1. The application be refused.

DECISION

HIGGINS J This is an application for leave to appeal from a decision of Special Magistrate Bannister given in the Small Claims Court of the Australian Capital Territory on 1 December 1993.

2. By virtue of s.33(2) of the Small Claims Act 1974, leave is to be refused unless I am satisfied,

"(a) that the decision of the Court on a question of law was wrong; or
(b) that the conduct of the proceedings in the Court was unfair to
the applicant."

3. The proceedings in the Small Claims Court involved a motor vehicle accident that had occurred in Townshend Street, Phillip in this Territory on 1 December 1992. The plaintiff claimed the cost of repairs to her motor vehicle as being $2,625.44. There was a cross-claim for $3,339.12 for damages to the motor vehicle driven at the time by the first applicant. It is not clear whether that loss was suffered by the first or second applicant, or whether the second applicant is a firm or a corporation.

4. I will refer to the respondent to this application as the plaintiff and to the applicants (even if there is more than one of them) as the defendant.

5. The defendant complained that the decision of the learned Special Magistrate was wrong in law because it was "against the weight of the evidence". It was also asserted that the decision was unfair to the defendant because the learned Special Magistrate "exhibited bias towards the first-named defendant and his witness in precluding both witnesses from freely providing their evidence without interruption and interjection".

6. I will consider those grounds separately.

Against the evidence
7. For a finding of fact based on the accuracy and veracity of witnesses to be an error of law, it must appear that the learned Magistrate has failed to use, or has palpably misused, the advantage he had in seeing and hearing those witnesses, or that his Worship acted on evidence inconsistent with facts incontrovertibly established by the evidence or that the conclusion reached was glaringly improbable: Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472.

8. The plaintiff said that at about 9.45am she had been parked in Townshend Street, Phillip adjacent to premises described as "Hansel and Gretel", a coffee shop. She was on the western side of the street facing north. There was a concrete dividing strip to her right and an intersection with Prospect Court immediately ahead of her.

9. She looked first to her left and right, to ensure Prospect Court was clear. She also looked behind her. Being satisfied that there was no relevant traffic, she pulled out into the right hand lane crossing almost at right angles. She proceeded along Townshend Street to a point where she was intending to turn right, to perform a U-turn within the Prospect Court intersection, so that she would then be proceeding south in Townshend Street.

10. It was suggested to her, in effect, that she had pulled out suddenly so as to cause the defendant's vehicle, on the inside lane travelling north in Townshend Street, to swerve to avoid her. It was also suggested, apparently incorrectly, that the defendant's vehicle was "... at Prospect Court, the other side of the block where you were leaving from ...".

11. Neither of these suggestions represented the evidence which the defendant gave but probably little turned on that confusing situation.

12. Counsel for the defendant neither clarified this confused scenario nor offered any meaningful suggestion to the plaintiff as to the alleged course of the defendant's vehicle during the course of her evidence.

13. The plaintiff did, however, deny that any other vehicle passed her before or as she pulled out and before her vehicle was struck.

14. A witness, Ms Hellen Baise, said she was standing inside the window of a shop called "Project Lighting". It was opposite "Hansel and Gretel" on the eastern side of Townshend Street.

15. She observed the plaintiff's vehicle about to turn right so as to go south along Townshend Street. It was "stopped" she said. Then she heard a squeal of tyres and saw the defendant's vehicle collide with the rear of the plaintiff's vehicle. The plaintiff's vehicle was swung around so as to complete the U-turn.

16. Ms Baise was then asked, by counsel for the plaintiff,

"Did you see any other cars on that side of the road, in other words
the side that goes towards Woden, which is the opposite side to where
you were standing? Did you see any other cars around that time?
- - -Yes, there were cars passing on her inside. I can't say how many
but my recollection is of cars passing her on the inside while this
was happening."

17. "This" appeared, in context, to be a reference to the collision.

18. Cross-examination failed further to clarify the position. It was not suggested to Ms Baise that any vehicle had passed on the inside immediately before the collision. Nor was it suggested that any such vehicle apparently swerved.

19. The defendant said he had turned out of Dundas Court, left into Townshend Street, travelling north towards Prospect Court. He moved from the left lane into the right lane. He identified then a diagram which contained measurements and other details relevant to the collision. It had not been shown to the plaintiff. It confused Prospect Court and Dundas Court but the defendant asserted that it accurately depicted what happened.

20. He did observe, he said, that there was a vehicle parked outside "Hansel and Gretel" apparently about to pull out. He assumed the driver would wait until he passed. It was then, he estimated, about 50m away. There was another vehicle on his left also travelling north. The next thing he was aware of was that the vehicle was in front of him and the other vehicle was swerving around it. The defendant could not swerve left because of the proximity of that other vehicle.

21. The vehicle travelling in the inside lane passed him before the collision. He estimated that it was travelling at 60 km/h. He said he was doing around 50km/h and accelerating.

22. Towards the end of the defendant's evidence, his Worship queried the accuracy of his diagram. It had shown the plaintiff's vehicle as being parked adjacent to the dividing wall between "AVCO" and "Hansel and Gretel". The photographs depicted the plaintiff's vehicle as having been parked virtually at the intersection with Prospect Court. The difference would be approximately 1.5 car lengths.

23. The defendant agreed that the photographs did accurately depict the position of the plaintiff's vehicle when first seen by him.

24. His Worship then said,

"So, this diagram of yours is sheer nonsense, isn't it? - - - No, your
Worship.
Gretel shop and AVCO when in fact it was right at the top of that long
arrow on the left hand margin? - - - No.
Don't you think so? - - - No, your Worship.
Where do you say the vehicle was parked? - - - Where the utility is.
So the diagram is not a proper representation of what happened? It
couldn't have been that far back from that intersection, could it?
- - - It's as close as I could recall."

25. A further witness, Mr Paul Hindberger, gave evidence for the defendant. His evidence was,

"I was travelling along Townshend Street towards Botany and I noticed
a vehicle on the left hand side of the road that was starting to move
off the kerb and my initial reaction was to wait to see if the person
was going to turn to look if there was any traffic coming and I
noticed an elderly lady, her head didn't turn so I slowed down and she
just proceeded to move off the kerb, went across my line of traffic
and went into the right hand lane and positioned herself to turn
right. I'd already at this time slowed down and I noticed a car in
the left hand side mirror coming alongside of me and he obviously
couldn't see her because of me and she stopped to turn and he skidded.
As he came alongside me he applied his brakes and hit her."

26. He said he was doing 50-55km/h at the time. He denied overtaking the defendant's vehicle on the left side of it. He estimated he was 25-30 metres from the plaintiff's vehicle when it moved off from the kerb. He did not have to brake. He gave no evidence of swerving.

27. His Worship was, therefore, faced with the conflicting evidence of four witnesses. Their accuracy and reliability were matters for his Worship to evaluate. Of course, all four were viewing the events from different perspectives.

28. It may be noticed, however, that Mr Hindberger's account is more consistent with the plaintiff's version than that given by the defendant. The real issue was not whether the plaintiff should have seen the defendant earlier but whether, at the time she pulled out, the defendant was deprived of the opportunity to slow down or stop to avoid colliding with the plaintiff.

29. Mr Hindberger, ahead of the defendant but in the left lane, had no difficulty avoiding a collision. He did not need to brake or to swerve. If the defendant's sketch is to be believed as part of his testimony, it could be concluded from it that he was aware of the plaintiff's vehicle 50 metres away from it. That vehicle crossed two lanes of traffic and stopped or paused at the intersection with Prospect Court, almost a direct right turn.

30. The sketch suggests that the defendant observed the plaintiff's vehicle cross the inside lane and enter the right lane to perform a further turn to the right when he was about 30 metres away. It was certainly open to his Worship to have concluded that there was ample distance for the defendant to stop without colliding with the plaintiff's vehicle. It would then follow that, either the defendant had failed to react to the altered traffic situation, or that he had been travelling at a greater speed than claimed.

31. In my opinion, the conclusion to which his Worship came, though by no means inevitable, was lawfully open to him.

32. As no other error of law was suggested, it follows that this ground is not made out.

Procedural Unfairness
33. It was suggested that his Worship had demonstrated bias towards the defendant and his witness.

34. Bias towards the defendant was based on his Worship's exchange with him concerning his diagram. It was, no doubt, overstating its deficiencies to suggest the diagram was "sheer nonsense" but his Worship was right to suggest that it was at variance with the defendant's acknowledgment of the starting position for the plaintiff's vehicle as identified from the photographs. However, that comment was made at the end of the defendant's evidence after both counsel had finished their questioning of him. There is nothing his Worship did or said before then which could be regarded as precluding the defendant from freely giving whatever testimony he desired. There was nothing at all said by his Worship to the defendant until that exchange.

35. If the intervention I have referred to gave the impression that his Worship did not believe the defendant, it would not have amounted to any sort of pre-judgment or bias.

36. So far as Mr Hindberger was concerned, there was a sharp exchange between the witness and his Worship at the commencement of that witness' testimony.

37. He had been asked by Mr Baumann,

"About the Prospect Court intersections do you recall something
happening and if you could relay that to the court please? - - - Can I
just tell it in the way I ...
HIS WORSHIP: No, you will not, no you will not. Put that down
please. You are here to answer questions. - - - Well, I was
travelling along Townshend Street towards botany Street.
HIS WORSHIP: Turn that piece of paper over, will you. It is not a
script situation. - - - It was here sir, I'm sorry.
All right, I'm sorry, go on - - - ... "

38. The witness then continued, recounting his observations as I have already detailed them. His Worship addressed no other remark to the witness.

39. The reference to a document was to a paper the witness had with him in the witness box. Obviously, his Worship thought it was some sort of statement he was reading from. If that had been so, the rebuke from his Worship would have been warranted. It may also be that his Worship was correcting a perceived intention on the part of the witness to give an unstructured non-responsive statement rather than evidence in response to questions.

40. As it transpired, the document was not that of the witness. It had been left in the witness box by someone else. His Worship was told that by the witness. No doubt appreciating the misunderstanding, his Worship apologised to the witness and invited him to proceed. The witness did so.

41. Again, I do not detect any indication that the witness was precluded from giving his evidence by any interruption or interjection from his Worship. It certainly does not amount to any sort of prejudgment as to the veracity of the witness.

42. It follows that there is no substance in the second ground for the seeking of leave to appeal.

43. I am, therefore, required by the terms of s.33(2) of the Small Claims Act to dismiss this application and it is refused accordingly.

44. I will hear the parties as to costs.