Bayliss v Pankag [2010] QDC 477

DISTRICT COURT OF QUEENSLAND CITATION: Bayliss v Pankag [2010] QDC 477 PARTIES: GEOFFREY MARTIN BAYLISS (Appellant) AND TANEGA PANKAG (Respondent) COMPLETE TAXI MANAGEMENT PTY LTD (Respondent) AND GEOFFREY MARTIN BAYLISS (Appellant) FILE NO/S: M14141/09, M52100/09, Appeal 1834/10 DIVISION: PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Brisbane DELIVERED ON: 8 December 2010 DELIVERED AT: Brisbane HEARING DATE: 2 November 2010 JUDGE: McGill DCJ ORDER: Appeal allowed. Judgment in each proceeding set aside. Order that there be a new trial of both proceedings before a different magistrate. Order the respondents to pay the appellant’s costs of and incidental to the appeal to be assessed. Grant the respondents a certificate under s 15 of the Appeal Costs Fund Act 1973. CATCHWORDS: APPEAL AND NEW TRIAL – Error of law – natural justice – decision on factual basis not litigated without notice to parties – new trial ordered COURTS AND JUDGES – Appeal and new trial – natural justice – decision on factual basis not litigated without notice to parties – error of law – new trial ordered PRACTICE – Consolidation of proceedings – nature and effect of various orders Andrews v Proctor [1955] QWN 72 – cited. Bolwell Fibreglass Pty Ltd v Foley [1984] VR 97 – cited. -- 1 of 7 -- 2 Bowman v Cameron [1921] QWN 29 – cited. Duff v Blinco (No. 1) [2006] 2 Qd R 528 – cited. Epicastle Pty Ltd v Hardy [1992] QCA 160 – cited. Habib v Director General of Security (2009) 175 FCR 411 – applied. John Holland Pty Ltd v TAC Pacific Pty Ltd [2010] 1 Qd R 302 – followed. Musico v Davenport [2003] NSWSC 977 – cited. Shannon v ANZ Banking Group Ltd (No. 1) [1994] 2 Qd R 560 – cited. Stevens v Edwards Dunlop & Co Ltd [1942] QWN 3 – cited. COUNSEL: S.J. Pointing for the appellant R.J. Bakker (Solicitor) for the respondents SOLICITORS: Universal Legal Recoveries Lawyers for the appellant rb Lawyers for the respondents [1] This is an appeal from a decision of a magistrate who on 11 November 2010 gave judgment in two proceedings in each of which the appellant was a party, involving claims for damages for property damage only arising out of a motor vehicle accident. The appellant on 30 November 2009 filed a claim against the driver of the other vehicle for the damage to the appellant’s vehicle, while on 5 November 2009 the other respondent, the owner of the other vehicle, filed a claim against the appellant for the damage to its vehicle. Procedural problems [2] By consent orders made by a registrar on 21 January 2010 in each matter it was ordered that the trial of the two proceedings be heard and determined together.1 Both matters came on for trial before a magistrate at Brisbane on 27 May 2010. The magistrate was told, as I was, that the actions had been consolidated. Strictly speaking, that was not the effect of the order that was made.2 There is a big difference between having two proceedings heard together (under rule 79) and having two proceedings consolidated under rule 78. In the former case there still remain two separate proceedings, but one trial in which the evidence is treated as evidence in both proceedings. It is still necessary to give in each matter the judgment appropriate to that matter in the light of the findings made at the trial. [3] Where two proceedings are consolidated, however, they become one proceeding thereafter.3 That has the practical consequence that it is necessary as part of the 1 The orders are defective in form, because although signed by the registrar they do not identify by whom the order was made, or the date of the order, in the appropriate place in the form for a consent order. This I suspect was not the parties’ fault and was the result of slackness in the Magistrates Court registry. 2 Epicastle Pty Ltd v Hardy [1992] QCA 160, which shows that consolidation in the strict sense was not appropriate here, applying Bolwell Fibreglass Pty Ltd v Foley [1984] VR 97. 3 A related process, sometimes also referred to as consolidation, is to stay one action and require that claim to proceed as a counterclaim in the other action: Bowman v Cameron [1921] QWN 29. See Practice Note (1934) 8 ALJ 258. -- 2 of 7 -- 3 order consolidating the proceedings to determine the identity of the party that is to have the carriage of the consolidated proceeding, that is to say, the party who will be the plaintiff in the consolidated proceeding, and give directions for fresh pleadings to be delivered in the consolidated proceeding,4 unless in the particular case it is possible to direct that existing pleadings in one or other of the proceedings stand as the pleading in the consolidated proceeding.5 Thereafter the matter proceeds as a single proceeding, and a single judgment is given. That, however, is not what occurred in the present case. [4] There was a further procedural difficulty in this matter. The magistrate heard the evidence and submissions on 27 May 2010, and reserved her decision. She prepared written reasons dated the following day, which were sent by the registry to the parties by fax. She was told, as appears to be the case, that quantum had been agreed between the parties, and that the only matter in issue was liability. At the conclusion of her reasons she simply said, “I attribute responsibility for the accident 90% to Bayliss and 10% to Tanega. Quantum is not in issue. If costs cannot be agreed, I give the parties leave to apply with regard to costs on giving three days’ notice each to the other.” [5] The next thing that seems to have happened was that a notice of appeal was filed in this court on 25 June 2010; a copy was placed on the court file in each of the matters. That was inappropriate; at that stage there was no judgment by the magistrate in either matter, so there was nothing against which to appeal. Appeals from the Magistrates Court to the District Court in civil matters are governed by s 45 of the Magistrates Courts Act 1921, which permits an appeal as prescribed by the rules by any party who is dissatisfied with “the judgment or order of a Magistrates Court … .” Accordingly one can appeal only against a judgment or order, not against reasons for the judgment or order, or findings made in a proceeding.6 Unfortunately I did not examine the files in any detail before the hearing of the appeal. When I was preparing to dictate these reasons, and for that purpose seeking to identify the date of the judgments from which the appeal was brought, it emerged that no judgment had actually been given consequent upon the findings contained in the written decision. [6] I had my associate draw this situation to the attention of counsel for the appellant, and as a result the matters were brought on again before the magistrate concerned, who on 11 November 2010 gave judgments in each matter in accordance with the reasons that had already been published and the parties’ agreement in relation to quantum and costs.7 No party objected to my treating the notice of appeal which had already been filed as an appeal against those judgments, and neither party required the matter to be relisted for further argument. In those circumstances, I am prepared to treat the notice of appeal filed 25 June 2010, and the hearing on 2 November 2010, as validly applicable to the judgments given on 11 November 4 See the order made at first instance in Stevens v Edwards Dunlop & Co Ltd [1942] QWN 3. 5 As in Andrews v Proctor [1955] QWN 72, an order which was wrong on another matter: Shannon v ANZ Banking Group Ltd (No. 1) [1994] 2 Qd R 560. 6 The position may be different if there is an order under the UCPR for the separate determination of a question or questions arising in the proceeding; such a determination is treated as an interlocutory order of the court for the purposes of an appeal: Duff v Blinco (No. 1) [2006] 2 Qd R 528, although that decision concerned a different Act where the section was worded differently. 7 Those judgments were, under r 660(3), to take effect from 28 May 2010. -- 3 of 7 -- 4 2010 (albeit premature). Accordingly I will now decide the appeal which is now validly before me. Substance of the appeal [7] It was common ground between the parties at the trial that prior to the collision the two vehicles concerned had been heading in a northerly direction along Jeays Street, Bowen Hills, with the respondent’s vehicle passing the appellant’s vehicle at a time when the appellant began to turn his vehicle to the right, so that the front right-hand corner of the appellant’s vehicle collided with the respondent’s vehicle in the vicinity of the left front wheel arch. There are photographs showing the damage to the respondent’s vehicle, but none showing the damage to the appellant’s vehicle: Exhibit 1. [8] The appellant said that he was proposing to turn to his right in order to park in a parking space outside commercial premises in that street on the other side of the road: p 25. There were parking bays at right angles to the street, into one of which he was planning to turn. He had just commenced to turn when the respondent’s vehicle overtook him essentially on the incorrect side of the road, and the collision occurred. The appellant conceded that he had not looked in his rear vision mirror before beginning to turn (p 32), but said that he had activated the right-hand indicator before he began to turn: p 29. In those circumstances, the presence of the respondent’s vehicle came as something of a surprise to him, and his impression was that it came quickly: p 27. [9] The respondent’s version was that he was driving north along that street and that the appellant’s vehicle was or appeared to be parked on the left-hand side of the road: p 5. As his vehicle began to drive past this apparently parked vehicle, the vehicle suddenly swung out to its right and struck his vehicle in the vicinity of the left front wheel arch. He said that the appellant’s vehicle had given no indication that it was going to do this until it began to move, and then swung out to its right quite briskly: p 16. The appellant maintained that he had been driving on the correct side of the road but towards the middle: p 26, p 35; the road was wide enough for one lane of traffic in each direction as well as vehicles parked on each side of the road, though apart from the appellant’s vehicle there were no other vehicles in the vicinity that day: p 27. [10] The magistrate in her decision did not accept that the collision occurred in the way described by either of the witnesses. She found that the respondent’s vehicle was travelling slowly towards the centre of the road when the appellant’s vehicle came up behind it and attempted to overtake on its left before turning as if to turn right when the overtaking manoeuvre was about two-thirds complete. She concluded that the appellant was unaware of the presence in front of him of the respondent’s vehicle because he was focused on the parking space to his right into which he was proposing to turn. On this basis she held that the bulk of the responsibility for the collision was attributable to the appellant, but the respondent had also been negligent to some extent in failing to notice the approach of the appellant’s vehicle and moving his vehicle to the right to avoid it. [11] There are obvious difficulties with the rational justification of this explanation. It is difficult to understand why, if the appellant did not see the respondent’s vehicle in front of him, he nevertheless initially drove to the left of it notwithstanding that he -- 4 of 7 -- 5 was proposing to turn to the right into a parking space on the other side of the road, and then began to turn right at a point where the front of his vehicle had passed beyond the rear of the respondent’s vehicle, and had advanced so far that the point of impact was in the vicinity of the left front wheel. For such a manoeuvre to have occurred, the appellant must have been not merely negligent, he must have been effectively driving with his eyes closed. [12] The main point in the appeal, however, is not whether, for the purposes of an appeal by way of rehearing, such an explanation is shown to be wrong. The appellant’s argument was that, leaving aside all the logical objections to this interpretation of what had happened, there was the substantial legal objection that this conclusion had been reached in a way which breached the magistrate’s obligation to accord natural justice to the appellant. This was because the proposition that the collision had occurred in that way, that is with the appellant attempting to overtake the respondent to his left and then turning to the right before his vehicle was in front of the respondent’s vehicle, had not been put to the appellant in cross-examination, was not supported by any evidence from the respondent, and had not been raised in the course of submissions by the magistrate as a possible view of the evidence, or as a conclusion to which she might come. In these circumstances it was submitted that the appellant had been denied the opportunity of responding to the proposition that that was what had actually occurred. [13] In my opinion, that there was a breach of the rules of natural justice in these circumstances is plainly correct. The appellant (and for that matter the respondent) had never been given the opportunity to respond to the proposition that they were negligent in the way that the magistrate found. Further, the appellant’s counsel (and the respondent’s solicitor) had been deprived of the opportunity of making submissions as to why such an explanation for the collision should not be adopted. [14] Counsel for the appellant referred to the summary of the requirements of natural justice in the judgment of the Full Court of the Federal Court in Habib v Director General of Security (2009) 175 FCR 411 at 428, [63]-[64], a passage recently quoted and adopted by Applegarth J in John Holland Pty Ltd v TAC Pacific Pty Ltd [2010] 1 Qd R 302 at 311.8 I will not quote these passages, which are conveniently set out in the recent reported judgment; I respectfully agree with them, and it seems to me that the application of them in the present case leads inevitably to the conclusion that there was a serious breach of natural justice on the part of the magistrate in deciding the case in the way she did without such a view of the evidence having been raised in cross-examination, or at least raised in the course of submissions, so that the parties could, if desired, seek leave to reopen for the purpose of calling further evidence in response to it. [15] This was concerned with the fundamental nature of what had occurred; in circumstances where on the version of either parties it was the respondent’s vehicle that was overtaking the appellant’s vehicle, to decide that what had really happened was that the appellant’s vehicle was overtaking (more or less unconsciously) the respondent’s vehicle relates to a critical issue or factor for the purposes of the trial, as well as being a matter which does not follow from an obvious or natural evaluation of the evidence. 8 His Honour also referred at [32] to a passage to similar effect in the judgment of McDougall J in Musico v Davenport [2003] NSWSC 977 at [107]-]108]. -- 5 of 7 -- 6 [16] Indeed, the explanation for the collision adopted by the magistrate was inconsistent with the versions of the collision advanced in the pleadings. These gave quite concise statements of what had occurred, but they were not so concise as to be consistent with such an analysis. In the statement of claim by the company against the appellant, it was alleged that the collision occurred when the appellant’s vehicle “turned across the path of the” respondent’s vehicle (para 2). In response, the appellant’s defence in paragraph 2(a) said that “as [he] was executing a right-hand turn the [respondent’s vehicle] has attempted to overtake the … turning vehicle …”, leading to the collision. In the action commenced by the appellant, the statement of claim in paragraph (2)(a) alleged that the respondent “attempted to overtake the [appellant’s] turning vehicle … .” In that matter the respondent’s defence did not set out any alternative allegations as to how the collision occurred; indeed, paragraph 2 of the defence filed 12 January 2010 was in such terms that, by rule 166(5), the respondent was taken to have admitted paragraph 2 of the statement of claim. [17] Of course, a trial court is not confined to accepting either one version or the other version put forward by the parties in the pleadings or in evidence, particularly in relation to an issue of this nature. It is certainly open to a trial court to conclude that the truth lies somewhere in between the two versions put forward by the parties and the competing witnesses, and there will not necessarily be a breach of the rules of natural justice just because the precise intermediate point is not something which has been ventilated during argument. But when a matter is decided on a view of the facts which is completely different from that put forward by either party, and inconsistent in an important respect with a common feature of the two versions, it seems to me that there is an issue of natural justice arising if the possibility of deciding the matter on that basis has not been at least raised during addresses, if not raised during cross-examination of the witnesses. [18] Failure to accord natural justice was a serious error of law on the part of the magistrate. I should say at once that, very fairly, the solicitor for the respondent made no attempt to justify the approach adopted by the magistrate. The question then is, what is to be done with these proceedings. The solicitor for the respondent submitted that the conclusion arrived at by the magistrate was nevertheless an appropriate conclusion in the light of all of the evidence at the trial, bearing in mind such findings of primary fact as the magistrate did make. Indeed there appeared to be a recognition on both sides that it would be a desirable way to resolve the matter in a practical sense if I could arrive at my own conclusion in the light of the material in the transcript and the three exhibits which were put in evidence during the trial. [19] I offered to read the transcript of evidence and see whether, having done so, I considered that I was in a position to arrive at a conclusion, bearing in mind any findings of primary fact made by the magistrate, though it seemed to me that it was likely that issues of credibility would have to be resolved, which had not been resolved by the magistrate, and which I could not properly resolve without having seen and heard the witnesses. Accordingly, I told the parties that I would read the transcript, and if having done so I felt that I might be able to decide the matter on the basis of the material in the transcript, I would give the parties the opportunity to be heard further before reaching any final decision. If, however, it seemed to me, having read the transcript, that the appropriate order was to send the matter back for retrial, I would simply take that course. Neither party opposed that approach. -- 6 of 7 -- 7 [20] Having read the transcript, I have arrived at the view that this is not a matter which can be decided simply on the basis of the transcript and such findings of primary fact as the magistrate has made. The magistrate, apparently deliberately, refrained from making any general finding as to the credibility of either witness, and some of the specific findings strike me as insupportable in the light of the evidence. There are important issues of credibility which have not been resolved. For example, the appellant maintained that his right-hand indicator was operating before he began to turn to the right, but the respondent said that the appellant’s vehicle was not indicating any turn to the right at least up to the point where he began to overtake it. This is a conflict which it seems to me must be resolved in order to decide how the accident happened, and particularly for the purpose of apportioning liability between the two drivers. The other important conflict is as to whether the appellant’s vehicle was close to the left-hand kerb prior to the time when it began to turn to the right, as the respondent said, or whether it was close to the centre line, as the appellant said. [21] In these circumstances, I have come to the firm conclusion that there has to be a new trial of these proceedings, which should occur before a different magistrate. In these circumstances the appeal should be allowed, and the appellant should therefore have its costs of the appeal, but in my opinion in circumstances where the decision of the magistrate involved a serious error of law to which the respondent had not contributed, it is appropriate to give the respondent an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973. It seems to me that the effect of s 16 is that the indemnity certificate will cover both the respondent’s costs of the appeal and the costs payable by the respondent to the appellant in respect of the appeal, and the costs payable by each party (according to the scale) in respect of the new trial. The costs of the first trial should abide the event of the second trial; in effect, the costs (at least on a party and party basis) of the second trial will be paid from the Appeal Costs Fund, so the ultimate order for costs in respect of the second trial will in practice carry the costs of the first trial. [22] In those circumstances I make the following orders: 1. Appeal allowed. 2. Judgment in each proceeding set aside. 3. Order that there be a new trial of both proceedings before a different magistrate. 4. Order the respondents to pay the appellant’s costs of and incidental to the appeal to be assessed. 5. Grant the respondents a certificate under s 15 of the Appeal Costs Fund Act 1973. -- 7 of 7 --