Kishore v Transit Systems West Pty Ltd

Factual background

1. On 12 January 2022, in the Local Court, Assessor Harvey heard and determined the underlying dispute between the parties by finding the plaintiff had negligently caused damage to the defendant's bus in the subject road accident where a collision had occurred between the rear offside of the defendant's bus and the nearside of the front of the plaintiff's vehicle. This was in circumstances where there was a dispute as to which vehicle had moved outside the confines of its marked lane. The dispute also concerned whether the appropriate signals had been given by the driver of the bus and whether a proper lookout had been kept by the respective drivers.
2. In those proceedings, the Assessor had before her the affidavit of Chandra Kishore sworn on 30 September 2021, together with a series of documentary exhibits which included a series of three short contemporaneous excerpts of video recordings taken by cameras located at different vantage points on the defendant's bus at the time of the subject collision. The evidence before the Assessor also included the conflicting versions of events from the bus driver and the plaintiff.
3. On 12 January 2022, the Assessor considered that evidence and heard argument before reaching her determination which favoured the defendant as is evident from the record of the proceedings: Transcript, pp 1-27. The Assessor gave her reasons for deciding the proceedings in favour of the defendant: Transcript, pp 25-27.

Issue to be determined

1. For the plaintiff to succeed in this appeal he must show that the Small Claims Division of the Local Court, as constituted, either lacked jurisdiction in respect of the determination arrived at, or that at the hearing, he had been denied procedural fairness: s 39(2) of the Local Court Act 2007 (NSW).

Submissions of the parties

1. The plaintiff presented a written outline of argument: MFI "1". The defendant also presented a written outline of argument: MFI "2". Both parties expanded upon those outlines by oral submissions.
2. The plaintiff abandoned the claim of bias on the part of the Assessor but maintained his claims of a failure to exercise jurisdiction and a denial of procedural fairness.
3. The defendant resisted the plaintiff's claims by presenting rebuttal arguments, including by reference to the record of the proceedings.

Consideration and determination

1. The consideration for this appeal must be limited to the questions of jurisdiction and procedural fairness.
2. In my view, the Assessor plainly had jurisdiction to determine the proceedings that were before her. The plaintiff has not identified any convincing argument to the contrary. In my view, the plaintiff's complaint of a lack of jurisdiction is groundless: s 39(2) of the Local Court Act 2007 (NSW).
3. The plaintiff pointed to s 36(1) of the Local Court Act 2007 which required that Assessors must use their best endeavours to bring the parties to a settlement. The plaintiff's complaint was that the Assessor had failed to exercise that element of her jurisdiction before embarking upon the hearing, arguing this also constituted a denial of procedural fairness.
4. In my view, those complaints do not support the asserted claims of failure to exercise jurisdiction or denial of procedural fairness. The record shows that the parties had both failed to pursue their obligations to undertake settlement negotiations before the hearing in the Small Claims Division: Transcript, p 1.22.
5. That failure by the parties was explored by the Assessor who was told the parties were "too far apart": Transcript, p 1.34. Plainly, the Assessor had the considerations of s 58(2)(b) of the Civil Procedure Act 2005 in mind concerning the extent, if any, to which the parties had fulfilled their pre-hearing procedural obligations. In that context she then simply decided to get on with the hearing, this being the most expeditious and pragmatic course: s 56 of the Civil Procedure Act 2005.
6. That decision represented neither a failure to exercise jurisdiction nor a denial of procedural fairness, especially where the position of the parties was that if they had been afforded some time for settlement negotiations, the matter was unlikely to settle as was clearly intimated to the Assessor. In such circumstances, the Assessor was not required to undertake a process of insisting upon settlement negotiations where they were destined to be futile.
7. An examination of the record of the proceedings before the Assessor shows that the plaintiff's complaint of a denial of procedural fairness is without substance. The record of the proceedings below shows that every opportunity was afforded to the plaintiff, who was legally represented, to give instructions on matters of evidence, to tender evidence, to critically comment on the evidence, and to articulate relevant submissions and argument.
8. The plaintiff's claims alleging a lack of procedural fairness essentially related to complaints over the adequacy of the Assessor's reasons for quelling disputes over conflicting evidence where the probative value of that evidence was challenged: MFI "1", par 2 - par 4.
9. In my view, in the context of the requirements of s 35 of the Civil Procedure Act 2005, where the proceedings had to be conducted with as little formality and technicality as the circumstances permitted, which included considerations of proportionality, where the rules of evidence did not apply, the complaint of a failure to provide procedural fairness cannot be sustained: Tonab Investments Pty Ltd v Optima Developments Pty Ltd [2015] NSWCA 287, at [101].
10. The underlying factual dispute was determined in favour of the defendant by the Assessor preferring one body of evidence over the other. The evidence was in conflict. The Assessor found that the evidence of the bus driver was more likely to be correct when considered along with the plaintiff's evidence.
11. In the context of litigation in the Small Claims Division, the evidence did not require the meticulous analysis as contended by the plaintiff: Eliezer v The Council of St Andrew's Cathedral School [2021] NSWCA 144, at [55]-[60], following Strbak v Newton (NSWCA, 18 July 1989), as adopted in Xuereb v Viola [1989] 18 NSWLR 453, at p 469. Those findings were open to the Assessor and they followed adequate opportunity for contrary submissions to be made by the plaintiff.
12. The plaintiff's complaint that the Assessor did not act judicially, in an unbiased manner, or did not provide the parties with the opportunity to adequately present their respective cases in a procedurally fair manner so that justice was done, cannot be sustained: National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296, at p 312; [1984] HCA 29.
13. At an early stage of the hearing before the Assessor, she considered the possibility that the plaintiff may need an adjournment to deal with some CCTV evidence, but the plaintiff decided to withdraw his application for an adjournment and to proceed instead: Transcript, pp 5.14 - 5.36. The balance of the record shows the plaintiff was afforded every opportunity to critically assess that evidence and to make relevant submissions on that evidence: See for example, Transcript, pp 11-15.

Conclusion

1. It follows that the summons must be dismissed, with costs.

Orders

1. I make the following orders: 1. The plaintiff's summons filed on 9 February 2022 is dismissed; 2. The plaintiff is to pay the defendant's costs of the dismissed summons; 3. With the consent of the parties the basis and the extent of the costs referred to in Order 2 are to be determined on the papers following consideration of written submissions on costs which are to be completed by the parties within 7 days.

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