(4) Proceedings in the Small Claims Division of a court (other than any judgment given or order made in respect of the proceedings) are not required to be recorded."
7 In Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [2000] NSWSC 1153 and Wakim v Matthiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405, where O'Keefe J made the following observations:
"The requirements of natural justice (or procedural fairness as it is now commonly referred to) apply to the Small Claims Division of the Local Court. This is clear from the nature of the function to be performed by that Tribunal and the statutory recognition that is afforded to natural justice by s 69(2A) of the Act.
The content of the requirements of natural justice is not fixed. The content fluctuates. The overarching requirement is that of fairness (National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR at 312 per Gibbs CJ with whom Brennan J agreed). For a court that normally involves a duty to:
(i) act judicially;
(ii) deal with the matter for decision without bias;
(iii) give each party the opportunity of adequately presenting its case;
(iv) observe the procedural and other rules provided for in the relevant statute;
(v) come to its decision with that sense of responsibility that is the necessary accompaniment of the duty to do justice."
8 Both parties filed statements, including Mr Cooper's statement. It is common ground that both vehicles were travelling north along the Cumberland Highway and that there were three northbound lanes and a right hand turn lane (lane 4 - called the filter lane). Mr Cooper's version of events is that he was initially travelling in the right of the three lanes. As he approached the intersection he moved into the filter lane. There was a broken down vehicle blocking this lane approximately 100 metres from the turn off to the motorway so he attempted to move back into the lane to the left of the filter lane. In attempting to do this he ended up in the lane to the left of this lane being the middle of the three lanes leading up to the intersection. He was one of many drivers attempting to enter the filter lane to turn right. The broken down vehicle in the filter lane was a vehicle bearing P plates. Mr Cooper stated that he entered the lane directly to the left of the filter lane but traffic would not allow him to enter the filter lane. He stopped at the traffic lights in the lane directly left to the filter lane with a view to waiting for an opportunity to enter the filter lane. The traffic lights for traffic in the filter lane turning right then changed from green to red. The traffic lights for traffic going straight ahead was green at this time. Mr Cooper was stationary at the front of the lane directly to the left of the filter lane for approximately two to three seconds when the vehicle he was driving was struck in the rear by a semi-trailer. This semi-trailer bore the registration number QQW 529. Mr Sam Udovic, a passenger in the motor vehicle being driven by Mr Cooper, gave the same version of events.
9 Mr Kevin Bower in his statement said he was travelling in lane two. He agreed that as he approached the filter lane he observed the signal facing was a green disc and a red arrow for traffic turning right and the traffic was considerably banked back along turning lane four. He continued that his lane of travel was moving and clear to do so. He noticed in lane one a white Commodore, registration number WVA 440 (which he noted after the collision) very suddenly pulled from that lane (being lane one) across into his lane (being lane two) and stopped dead in front of him despite it facing a green signal and alongside of traffic in lane three which had banked up in a tail back from the right hand turning lane.
10 Mr Bower said that he immediately moved his foot to the brakes and braked very heavily, operating both the prime mover and trailer brakes. He was almost able to come to a complete stop despite the plaintiff's action, but hit the rear of the white Commodore. He was unable to move to his right due to the tailed back traffic and unable to move to his left due both to the sudden manoeuvre by the Commodore and other traffic in lane one. The right hand turning lane still had a red arrow. According to Mr Bower the impact with the Commodore was at an angle due to it propping and stopping with the intention of diverging lanes right into the right hand turning tail-back. The Commodore was at a slight angle. There was no damage to the front of the Commodore because the lane in front of it (lane two) was completely free and it was not wedged into any traffic. Lanes three and then four were so clogged they could not have accommodated the plaintiff even if there were time for the traffic to do so.
11 The Assessor (t 8, 30/4/04) referred to the evidence above. The Assessor also referred to the Avis Assessor's report and found that it did not support Mr Bower's version of the actual impact but Mr Cooper's evidence was consistent with the assessor's report. Mr Bower in his statement did not mention the breakdown in the filter lane. The Assessor considered that a driver of a heavy vehicle had a significant duty to the road users and to what is on the road. The Assessor made a finding that Mr Bower did not see the broken down vehicle and nor did he see the other vehicles manoeuvring around the stationary vehicle. The Assessor considered that Mr Bower was not keeping a proper lookout. There was a verdict and judgment for the plaintiff in the sum of $9,579.00.
12 A J Mills submitted that the Assessor was biased and had decided the matter from the outset, or alternatively was ostensibly biased in that he made errors favouring WTH in summarising the evidence. The test for judicial bias is whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case. The principle behind the reasonable apprehension or suspicion test is that it is of fundamental importance that justice should not only be done, but should manifestly, and undoubtedly, be seen to be done. (see Webb v The Queen (1994) 181 CLR 41, Livesey v New South Wales Bar Association (1983) 151 CLR 288 and Re JRL; Ex parte CLJ (1986) 161 CLR 342). A fair-minded person would not reasonably apprehend or suspect that the Assessor had prejudged or might have prejudged these proceedings. Bias is a serious allegation. I have summarised the Assessor's approach and the allegation of bias and it is just not borne out at all. This submission fails. There has been no denial of natural justice.
13 A J Mills submitted that it was denied procedural fairness because it did not have the opportunity to issue a third party notice. The defence drafted by its solicitor specifically alleged particulars of contributory negligence by Mr Cooper yet no third party notice was issued before this matter came on for hearing. On 30 October 2003, after submissions were made, the Assessor raised the issue of how the parties would be affected if he made a finding concerning Mr Cooper's contributory negligence. The Assessor then stated that he did not think that pleadings could be amended unless WTH agreed to an adjournment but "it's gone past the point of no return".
14 The Assessor referred to Ford v Qld Housing Commission [1999] QSC 229 at para [18] where W J Randall SM agreed with the decision of Kearney J in Bayram v Benton (t/as Digital Dynatronics Australia) (1994) 117 FLR 414 where Kearney J stated:
"A Local Court exercising jurisdiction under the Small Claims Act has a duty to ensure that each party it given a reasonable opportunity, in the particular circumstances, to present his or her case to the court. In my opinion neither that Act nor the common law imposes on the court the 'impossible task of ensuring that a party takes the best advantage of the opportunity which he [or she] is entitled', as Deane J put it in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, even though the procedure in small claims proceedings is largely and necessarily inquisitorial, particularly when the parties are not legally represented. Nevertheless, when, as here, the proceedings are conducted in a largely inquisitorial manner, the court must bring to the parties' attention the critical issue upon which its decision is likely to turn, so that they may have an opportunity to address it. This ensures that a party affected by the decision is given the opportunity to deal with relevant matters adverse to his interest which the court proposes to take into account: See general Kioa v West (1985) 159 CLR 550 at 587-588 per Mason J, at 628-629 per Brennan J and at 634 per Deane J."
15 In particular, the Assessor was referring to the requirement that the court must bring to the parties' attention the critical issue upon which the decision would likely turn so that they may have an opportunity to address it. The Assessor adopted this course.
16 The plaintiff submitted that the Assessor should have granted an adjournment and referred to State of Queensland v J L Holdings Ltd (1997) 189 CLR 146. Whether or not the decision to grant an adjournment is a discretionary one.
17 The defendant's solicitor had specifically pleaded particulars of Mr Cooper's negligence but did not issue a third party notice against him. It was after the Assessor raised this issue that the defendant's solicitor belatedly asked for an adjournment to join Cooper as a third party. The Assessor decided it would not be procedurally fair to WTH. The evidence had already been given. To join an additional party would have created delay and may have meant that further evidence would need to be obtained. As previously stated, the Assessor drew the parties' attention to what he considered to be a critical issue, so that they had the opportunity to address it. The Assessor was not obliged to grant an adjournment. There has been no denial of natural justice. This submission fails.
18 The appeal is dismissed. The decision of Assessor Roberts dated 30 April 2004 is affirmed. The amended summons filed 3 September 2004 is dismissed.
19 Costs are discretionary. Costs usually follow the event. The plaintiffs are to pay the defendant's costs as agreed or assessed.