A J Mills & Sons P/L & Anor v WTH P/L

PARTIES : Kevin Bower (Second Defendant)

WTH Pty Limited (Defendant) FILE NUMBER(S) : SC 11557/2004 Mr A Hourigan (Plaintiffs) COUNSEL : Mr M Gollan (Defendant) Mr G Fullick, Fraser Clancy (Plaintiffs) SOLICITORS : Mr H MacRae, Lee & Lyons (Defendant)

LOWER COURT Local Court JURISDICTION : LOWER COURT 14107/2002 FILE NUMBER(S) : LOWER COURT Assessor Roberts JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

11557/2004 - A J MILLS & SONS PTY LIMITED & ANOR v WTH PTY LIMITED

JUDGMENT (Appeal decision of Local Court (Small Claims) Assessor - bias) 1 MASTER: By amended summons filed 3 September 2004 the plaintiffs seek firstly, an order pursuant to s 69(2A) of the Local Courts (Civil Claims) Act 1970 (NSW) that the decision of Assessor Roberts in Local Court proceedings 14107 of 2002 in the Small Claims Division on 30 April 2004 be set aside; and secondly, an order that the matter be remitted to Assessor Roberts for determination according to law. The first plaintiff (first defendant in the court below) is A J Mills & Sons Pty Limited. The second plaintiff (second defendant in the court below) is Kevin Bower. The defendant (plaintiff in the court below) is WTH Pty Limited. The plaintiffs relied on two affidavits of Graham Charles Fullick sworn 10 September 2004. 2 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 69(2A) of the Local Courts (Civil Claims) Act allows an appeal to this Court from the Small Claims Division of a Court only on the grounds of lack of jurisdiction or a denial of natural justice. Section 69(4) of the Act provides that the court may determine an appeal by either (a) setting the judgment or order aside or (b) by varying the terms of the judgment or order or (c) by setting the judgment or order aside and remitting the matter for determination in accordance with the court's directions or (d) by dismissing the appeal. The onus lies on the plaintiff to demonstrate that there has been a denial of natural justice.

Grounds of appeal 3 The plaintiffs appeal from the whole of the decision of Assessor Roberts. The grounds of appeal are: firstly, that the Assessor denied the plaintiffs procedural fairness by reason of bias in failing to consider, or properly consider, and/or to take into account and/or misstating the evidence given by Mr Cooper, the plaintiff's driver; the evidence given by Mr Ludovic, the defendant's driver; the traffic light sequencing at the relevant intersection; the Turner Assessments Motor Assessor's report dated 3 January 2001; the Assessor's presumption of innocence on the part of the defendant's driver; and photographs tendered on behalf of the plaintiffs at the assessment hearing; secondly, the Assessor denied the plaintiffs procedural fairness by reason of bias in making findings which were not, or not reasonably, open to him on the evidence that the defendant's driver had to stop in lane three and acceptance of the defendant's evidence which was not supported by the balance of evidence tendered at the assessment hearing; thirdly, the Assessor denied the plaintiffs procedural fairness by reason of bias in considering his own recollection of the scene of the collision and not that in the evidence of the parties; fourthly, the Assessor denied the plaintiffs procedural fairness by reason of bias in failing to consider and/or take into account its submissions; fifthly, the Assessor denied the plaintiffs procedural fairness by reason of bias in failing to advise the parties that he considered the existence of a broken down vehicle crucial to the matter and permit the plaintiffs to address that issue through evidence; and sixthly, the Assessor denied the plaintiffs procedural fairness by reason of failing to grant an adjournment application made in order to join the defendant's driver as a third party to the assessment proceedings. 4 The scope of appeal is narrow and is limited and this is for a good reason. The amount in dispute is $9,183.40. In these proceedings the amount expended in legal costs would not be in proportion to the amount in issue. 5 By statement of claim it was alleged that the plaintiff was the owner of a motor vehicle. The first defendant was the owner of the motor vehicle and the second defendant was the driver. It was alleged that the second defendant drove the vehicle so negligently that it collided with the plaintiff's motor vehicle. The plaintiff sought damages for repair of its motor vehicle in the sum of $9,579.07. On 17 February 2002 the defendant's solicitor filed a defence and pleaded contributory negligence against Mr Ray Cooper. Mr Cooper was the driver of the vehicle. Prior to the hearing, the defendant's solicitors did not issue a third party notice. 6 Part 4, s 23B of the Local Courts (Civil Claims) Act provides: "Procedure generally in Small Claims Division

(1) Proceedings in the Small Claims Division of a court are to be conducted with as little formality and technicality as the proper consideration of the matter permits.

(2) The rules of evidence do not apply to an action being heard or other proceedings in the Small Claims Division of a court.

(3) An Assessor or Magistrate exercising the jurisdiction conferred on a court sitting in its Small Claims Division may inform himself or herself on any matter relating to an action being heard or other proceedings in the Small Claims Division in such manner as he or she thinks fit.

(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.

(2) The decision of Assessor Roberts dated 30 April 2004 is affirmed.

(3) The amended summons filed 3 September 2004 is dismissed.

(4) The plaintiffs are to pay the defendant's costs as agreed or assessed.

Last Modified: 11/18/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.