Landbridge Transport Pty Limited v Buckley

The plaintiff's case 8At the hearing before the Magistrate, the plaintiff relied upon: (i)an affidavit of Sam Costanzo of 1 October 2013; and (ii)an affidavit of Stinson of 2 October 2013. 9The affidavit of Mr Costanzo went principally to the question of damages (which, but for a small sum, were agreed). In his affidavit, Stinson deposed to the fact that he was driving the Kenworth on 2 June 2012 and was heading to a work site at Chatswood to deliver containers. He explained that he was driving in a southerly direction along Church Street at Ryde, in the middle lane of three lanes of traffic. He said that as he passed through the intersection of Church Street and Morrison Street he noticed the Mercedes pulling a trailer, and travelling in the left hand (i.e. kerb side) lane. He then stated (at para. 21 and following): 21. The Defendant's trailer appeared to hit the kerb and bounced off causing it to encroach into my lane and collide into the passenger side of my truck. 22. The driver's side of the Defendant's trailer collided with the front passenger side of my truck, causing damage to the handrail, steps, tyre, rail, fuel tank panel, guards and damage to the paintwork just beneath the passenger side door. 23. After the collision the Defendant continued driving in the far left lane. 24. I continued driving in an attempt to catch up to the Defendant's truck to signal him to pull over. 25. As I was driving slightly behind the Defendant's truck and trailer, I looked at the Defendant's driver's side mirror and saw the Defendant look at me through his driver's side mirror, the Defendant shrugged his shoulders, waved his arm and continued driving. 26. I realised that the defendant did not intend to stop so I memorised the registration plates of the defendant's trailer." 10Stinson was cross-examined by counsel for the defendant. For present purposes it is sufficient to note that a series of propositions were put to him (commencing at T13 L 15) which encapsulated the defence case. Those propositions, which Stinson denied, included that: (i)he had encroached into Buckley's lane; and (ii)he had, by doing so, caused Buckley to manoeuvre the Mercedes into a position where the tyres on the passenger's side of that vehicle were scraping along the kerb. The defendant's case 11The defendant relied upon a witness statement of Buckley of 1 November 2013. In that statement, Buckley said that he noticed the plaintiff's vehicle behind him in the adjacent lane. He then said (commencing at para. 19): 19. As I passed the intersection the plaintiff's vehicle had caught up to the front of my vehicle and was continuing to drive on the white lines parallel to my truck and trailer. At some stages the plaintiff's vehicle was encroaching in my lane. I noted that I could no longer see the plaintiff's vehicle's side mirror. 20. I attempted to manoeuvre my vehicle so that I was as far away from the plaintiff's vehicle as possible and so I could continue to drive safely without incident. I was confident that I was as far over as I could be in my lane as I could feel the tyres rubbing up against the gutter. I estimate that I scraped the kerb for approximately 30-40metres. 21. The other driver seemed very close to me and knowing that I could move over no further I attempted to get the plaintiff's attention by yelling and waving my arm out of the window to indicate for him to move his vehicle back into his own lane. I was unable to get his attention, however I moved forward slightly so that the plaintiff's vehicle was then parallel to my trailer. 22. I looked out my side mirror and noticed that the other truck was parallel to my trailer and still encroaching on the line and at times entering my lane. 23. Shortly after this the other truck pulled back and was no longer parallel to my vehicle and was instead driving behind me. 24. I was unaware that the other vehicle had hit my vehicle and I did not hear any noises indicative of the two vehicles colliding. Therefore I continued driving onto my job. I drove along Homebush Bay Drive and drove onto the M4 towards Eastern Creek. 12Again, I do not propose to canvass Buckley's cross-examination in detail. It is sufficient for present purposes to note that he asserted that Stinson's vehicle entered the lane in which he was travelling "2 or 3, 4 times" (T30 L24-26; T32 L30-31).

THE MAGISTRATE'S REASONS 13At the conclusion of the hearing on 28 November 2013 the Magistrate reserved his decision. He delivered judgment on 13 February 2014. It will be apparent from my brief references to the evidence that one of the principal factual issues which the Magistrate was required to determine was whether Stinson in fact encroached into Buckley's lane. That, in turn, involved an assessment of the evidence of each of Stinson and Buckley, and a determination as to which was to be preferred. It is unsurprising in these circumstances that in the course of their submissions to the Magistrate at the conclusion of the evidence, counsel appearing for each party spent some time advancing reasons why the evidence of their respective witnesses should be preferred. 14In his judgment, the Magistrate ascribed the description "vehicle 1" to the Kenworth driven by Stinson and "vehicle 2" to the Mercedes driven by Buckley. At paragraph [6], under the heading "Issue", the Magistrate said the following: [6] The issue of fact is whether the lane narrows giving insufficient space for vehicle 2 to pass vehicle 1, causing a collision; or vehicle 1 crossed into the inside lane forcing vehicle 2 to the left causing its tyres to scrape the kerb. The witness statement of the driver of vehicle 2 contains an image of the intersection, with vehicles passing through it. The image shows that the lane widths are equidistant. The image shows a truck on the inside lane crossing the intersection, which has ample room within the lane. 15Under the heading "Findings of fact" the Magistrate said (at [9]-[10]): [9] I find that the lanes were equidistant, and the inside lane did not narrow. The finding is based on the photographic evidence art (sic) exhibit 3. I accept that due to the size of vehicle 2, the damage to the tyres by scrapping (sic) the kerb would be insignificant, and the driver of vehicle 2 would not necessarily have known that vehicle 2 collided with vehicle 1. Estimates of time and distance are difficult to make accurately and have little probative value. The driver of vehicle 1 followed vehicle 2 because the driver was aware that vehicle 1 had been damaged, no further conclusion can be reached. The error of the driver of vehicle 2 as to the route taken post-accident is a peripheral issue, and given the lapse of time between the accident in June 2012 and the making of the statement in November 2013, has not (sic) probative value. [10] I find that the damage to vehicle 1 was caused by the impact of vehicle 2. I find that vehicle 2 was driving within its lane, but the driver of vehicle 1 drove so near vehicle 1 (sic) that the driver of vehicle 2 took evasive action to avoid a collision by manoeuvring vehicle 2 to the left, its tyres scrapped (sic) the gutter/kerb, causing the trailer of vehicle 2 to move to the right and collide with vehicle 1." 16Having made reference to provisions of the rules the Magistrate then said the following under the heading "Liability" (at [15]-[16]): [15] The drivers owed a duty of care to each other in their manner of driving on the public road. It was foreseeable that if a vehicle did not keep within a marked lane or a single line of traffic that it might harm another vehicle. The driver of vehicle 2 took action to avoid harm, by moving vehicle 2 to the left, but failed to steer the vehicle so that its tyres did not scrap (sic) the gutter/kerb. [16] I find that the driver of vehicle 2 was negligent by failing to steer the vehicle so as to avoid a collision, however driver of vehicle 1 contributed to the damage caused to the vehicle, and was negligent by failing to steer vehicle 1 so that it remained clear of vehicle 2 and within a marked lane and a single line of traffic parallel. I determine that the amount of contributory negligence is 100%."

THE RELEVANT STATUTORY PROVISIONS 17Section 39 of the Local Court Act 2007 ("the LCA") is in the following terms: 39 Appeals as of right (1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law. (2) A party to proceedings before the Court sitting in its Small Claims Division who is dissatisfied with a judgment or order of the Court may appeal to the District Court, but only on the ground of lack of jurisdiction or denial of procedural fairness. 18Section 40 is in the following terms: 40 Appeals requiring leave (1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court. (2) A party to proceedings before the Court sitting in its General Division who is dissatisfied with any of the following judgments or orders of the Court may appeal to the Supreme Court, but only by leave of the Supreme Court: (a) an interlocutory judgment or order, (b) a judgment or order made with the consent of the parties, (c) an order as to costs. THE PLAINTIFF'S CASE ON APPEAL 19The summons filed by the plaintiff pleaded the following grounds of appeal: (4)The Magistrate misdirected himself and misstated the issue for determination. (5)The Magistrate failed to take into account the plaintiff's evidence and instead drew conclusions from what was shown in a photograph which was admitted into evidence. (6)The Magistrate failed to consider and/or provided no reasons or adequate reasons with respect to the following matters: (d)that the plaintiff had been stationary in traffic just before the collision; (e)the size, weight and speed of the defendant's vehicle; (f)the speed of the plaintiff's vehicle; (g)the relative positions and speeds of the two vehicles, whereby the defendant's vehicle was ahead of the plaintiff's vehicle; (h)the mechanism by which, on the defendant's version the plaintiff's mirror could be between the paths of defendant's trailer when the defendant's vehicle was in front of the plaintiff's vehicle; (i)whether, in attempting to overtake the plaintiff's truck, the overtaking manoeuvre by the defendant was negligent; (j)evidence concerning the absence of the defendant using his horn, (but instead, allegedly yelling out the window, which was also not considered by the Magistrate) which was inconsistent with the allegation that the plaintiff was in the defendant's lane; (k)that the plaintiff's vehicle was jolted by the impact but the defendant did not allegedly know there had been an impact, hence the alleged reason for the defendant's failure to stop after the collision; (l)whether the alleged evasive action taken by the defendant was reasonable or negligent; (m)accepting the defendant's fanciful version of scraping along the kerb for more than 100 metres without damage to the tyres; (n)whether or not the alleged evasive action was undertaken negligently resulting in the defendant's vehicle colliding with the gutter anterior to the subject collision; (o)the plaintiff's version of events or of the plaintiff's pleadings. (7)The Magistrate drew inferences from the size of the tyres which inferences he was not entitled to draw without expert evidence, of which there was none. (8)The Magistrate failed to provide any or any adequate reasons for the finding on liability or the degree of contributory negligence found which finding of 100 per cent contributory negligence was an error of law. (9)The Magistrate failed to consider questions of credibility of the witnesses, which were critical to the case, and despite the defendant changing his evidence and version of events under re-examination. (10)The Magistrate failed to give due regard to the absence of any objective evidence from the defendant. (11)The Magistrate failed to consider the arguments of Counsel for the plaintiff including that the defendant's version of the accident was inherently improbable. (12)The finding of the Magistrate in the court below was inherently improbable and against the weight of the evidence. (13)The Magistrate acknowledged the defendant was unaware of any collision occurring, and noted the defendant's evidence as vague, but adopted the defendant's version of events nevertheless. 20The shortcomings in the manner in which the grounds of appeal were pleaded in the summons are many and varied. However at the commencement of the hearing before me counsel for the plaintiff clarified that he relied upon two principal errors of law on the part of the Magistrate, in respect of each of which there was an appeal as of right under s. 39 of the LCA. The errors relied upon were: (i)a failure to provide adequate reasons; and (ii)a failure to properly identify the issues to be determined.

Submissions of the plaintiff 21Counsel for the plaintiff submitted that the Magistrate's reasons were inadequate, both as to his determination of liability and his assessment of contributory negligence. 22Counsel submitted that a principal factual issue on the evidence, and one which was central to the determination of liability, was whether or not Stinson's vehicle had in fact encroached into Buckley's lane. Counsel submitted that in light of the conclusions reached, it was to be inferred that the Magistrate had rejected Stinson's denials that he had done so. However, counsel submitted that the Magistrate conducted no proper analysis of the evidence, and failed to expose the reasoning process which apparently led him to conclude that Stinson's evidence should not be accepted. It was submitted that in circumstances where there was a fundamental issue arising from the evidence given by the only two witnesses who were called at the hearing, adequate reasons required that such evidence be properly assessed, that a determination be made as to which evidence was to be preferred and that the reasons for that preference be expressed. Counsel submitted that the Magistrate had failed in each of these respects. 23Counsel for the plaintiff further submitted that the Magistrate's reasons reflected internal inconsistencies in his findings. In particular, it was submitted that the finding (in [10]) that Stinson drove "so near" Buckley's vehicle was different to the finding (in [16]) that Stinson's vehicle did not remain within its marked lane. 24Counsel for the plaintiff further submitted that the Magistrate's judgment contained no expression of the reasons which led him to conclude that the plaintiff's degree of contributory negligence was 100%. 25Finally, counsel for the plaintiff submitted that the Magistrate had failed to properly identify the issues which he was required to determine. In particular, it was submitted that on the pleadings it was no part of either party's case that the narrowing of the lane had caused the accident, yet the Magistrate had articulated this (at [6]) as one of the issues of fact that he was required to determine. Counsel for the plaintiff submitted that the Magistrate's failure to properly identify the issues amounted to a further error of law.

Submissions of the defendant 26Counsel for the defendant accepted that a failure to provide adequate reasons, if made out, was an error of law. However he submitted that in examining the Magistrate's reasons it was necessary to bear firmly in mind a number of important principles. Counsel stressed that it was necessary to read the Magistrate's reasons as a whole. He also emphasised that the scope of the duty to provide adequate reasons was incapable of precise definition, and necessarily depended upon the circumstances of the case. Counsel also submitted that it was not necessary for a trial judge to make his or her findings explicit in respect of every disputed piece of evidence, particularly in circumstances where there was no appeal against findings of fact. 27Counsel for the defendant submitted that when these principles were applied, neither of the asserted errors was made out. It was submitted that when the reasons were read as a whole, it was evident that the Magistrate had preferred the evidence of Buckley over that of Stinson, and that his analysis of the evidence was sufficient. It was submitted that in the circumstances of the present case, the duty to provide reasons did not require the Magistrate to go any further than he did. 28Counsel further submitted that there was no error on the part of the Magistrate arising from the terms in which he had framed the issues for determination. It was submitted, in particular, that this was evident when the contents of paragraph [6] of the Magistrate's reasons were read as a whole. 29In advancing these submissions, counsel for the defendant stressed the limited nature of the appeal from a decision of the Local Court. This, he said, impacted upon the extent of the reasons which were required, and provided further support for the conclusion that the reasons in the present case were adequate.

The nature of the duty to give reasons 30The duty to give reasons is a necessary incident of the judicial process: Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449 at [41] per Santow JA. In that case his Honour said (at [41]): ".... It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings." 31In Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Meagher JA said (at 442): "A failure to provide sufficient reasons can, and often does, lead to a real sense of grievance that a party does not know or understand why the decision was made: Re Poyser and Mills' Arbitration [1964] 2 QB 467 at 478. This Court has previously accepted the proposition that a judge is bound to expose his reasoning in sufficient detail to enable a losing party to understand why it lost." 32These authorities establish that the failure to provide adequate reasons, if established, amounts to an error of law: Stoker at [41] per Santow JA, Mason P and Sheller JA agreeing; Beale at 444 per Meagher JA. 33In Pollard v RRR Corporation Pty Limited [2009] NSWCA 110, McColl JA (with whom Ipp JA and Bryson AJA agreed) said (at [57]-[58], citations omitted): "The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes a sense of grievance and denies both the fact and the appearance of justice having been done, thus working a miscarriage of justice. The extent and the content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties". 34In Qushair v Raffoul [2009] NSWCA 329 Sackville AJA (with whom Campbell JA and Bergin CJ in Eq agreed) made reference to the judgment of McColl JA in Pollard before summarising the principles in the following way (commencing at [52], citations omitted): (i)the giving of adequate reasons lies at the heart of the judicial process, since a failure to provide sufficient reasons can lead to a real sense of grievance because the losing party cannot understand why he or she lost; (ii)while lengthy and elaborate reasons are not required, at a minimum the trial judge's reasons should be adequate for the exercise of a facility to appeal, where that facility is available; (iii)the extent and content of the reasons will depend on the particular case and the issues under consideration, but it is essential to expose the reasoning on a point critical to the contest between the parties; (iv)where credit issues are involved, it is necessary to explain why one witness is preferred to another. Consequently, bald findings on credit, where substantial factual issues have to be addressed, may not comply with the common law duty to give reasons; (v)where an appellate court concludes that the trial judge has failed to give adequate reasons, the court has a discretion whether or not to direct a new trial. If, despite the inadequate reasons, only one conclusion is available, a new trial may not be necessary. 35In the present case, counsel for the plaintiff relied upon the observations of Button J in Madden's Stable Bedding Pty Limited v Reid [2014] NSWSC 554. Having concluded that the Magistrate in that case had provided adequate reasons for his findings his Honour said (at [32]): "That is particularly so given the low level of legal and factual complexity involved in this case, and the fact that it was heard in the Local Court. The purpose of providing reasons for a decision must be weighed against the burden that it imposes on the judicial system: Soulemezis v Dudley (Holdings) Pty Limited at 259; Beale v Government Insurance Office of NSW at 444. Accordingly, the context in which a decision is made will shape what constitutes adequate reasons: see for example Pollard v RRR Corporation Pty Ltd [2009] NSWSC 110 at [56]. The volume of matters, pace of proceedings, and level of seriousness of matters heard in the Local Court must be kept firmly in mind in determining whether a ground such as this has been established." 36I do not understand anything his Honour said in that passage to derogate from the principles to which I have referred in [31]-[34] above. In my view, his Honour was doing nothing other than recognising that the extent of the duty to give reasons necessarily depends upon a number of factors: Pollard (supra); Qushair (supra); Mifsud v Campbell (1990) 21 NSWLR 725. It remains the case that a statement of reasons must be such as to enable a proper understanding to be gained of the basis on which a particular decision has been reached: Pettitt v Dunkley [1971] 1 NSWLR 376 per Asprey JA at 382, cited with approval in Soulmezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 257. The Magistrate's reasons in the present case 37It will be apparent from my references to the evidence that there was a significant, and fundamental, factual issue between the parties, namely whether Stinson's vehicle encroached into Buckley's lane. Buckley gave evidence that it did, Stinson denied that this was the case. The issue was, as I have noted, the subject of submissions from counsel appearing for each party. 38In these circumstances it is significant that the Magistrate's reasons in [9] and [10] did not include any finding that that Stinson's vehicle in fact encroached into Buckley's lane. What the Magistrate found was that Stinson's vehicle "drove so near" to that of Buckley. 39Further, and leaving aside the terms of that finding, I am left to conclude that the Magistrate rejected the evidence given by Stinson. However, there is no exposition of the reasoning process which led the Magistrate to make that determination. Indeed, there is not the slightest explanation of why Stinson's evidence was apparently rejected. As I have already noted, the reasoning of a trial judge on a point which is critical to the contest between the parties must be exposed. The apparent preference of Buckley's evidence over that of Stinson was critical to the contest in the present case. The Magistrate's failure to set out the reasons for that apparent preference renders his reasons inadequate. 40As I have previously noted, counsel for the defendant submitted that the limited nature of an appeal from the Local Court necessarily had a bearing upon the extent of the reasons which were required. In doing so, he placed significant emphasis upon the judgment of McHugh JA (as he then was) in Soulmezis (supra) which, he submitted, supported the proposition that the Magistrate's reasons in the present case were adequate. In Soulemezis his Honour said (at 281): "If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done. If, for example, the only issue before a court is whether the plaintiff sustained injury by falling over, a simple finding that he fell or sustained injury would be enough if the decision simply turned on the plaintiff's credibility. But, if, in addition to the issue of credibility, other matters were relied on as going to the probability or improbability of the plaintiff's case, such a simple finding would not be enough". 41I have already noted the importance, in the present case, of a determination of whether Stinson's vehicle encroached into Buckley's lane. The resolution of that issue depended upon which of the two competing versions of the circumstances of the accident was accepted. I am left to infer that Stinson's evidence was rejected. More significantly, I am left to speculate upon why that decision was made. The Magistrate's reasons provide no indication to the plaintiff of why it was unsuccessful in the proceedings: Beale (supra). In my view, given these factors, nothing said by McHugh JA in the passage set out above assists the defendant. In the circumstances of the present case, the inadequacy of the Magistrate's reasons amounts to a breach of the principle to which McHugh JA referred, namely that justice must be seen to be done. 42Moreover, earlier in his judgment in Soulemezis (at 280) his Honour had observed (citations omitted): "Where the resolution of the case depends entirely on credibility, it is probably enough that the judge has said that he believed one witness in preference to another; it is not necessary for him to go further and say, for example, that the reason was based on demeanour" (emphasis in original). 43In the present case, the Magistrate did not even go so far as to actually state that he accepted the evidence of Buckley in preference to that of Stinson. I am left to infer that this is the case. In these circumstances, the observations of Moffitt P (with whom Glass and Reynolds JJA agreed) in Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 701 are important: "It is not satisfactory that an appellate court be left to speculate from collateral observations as to the reasoning upon which a critical decision is made, when the trial judge can and ought directly reveal it". 44In Soulemezis McHugh JA referred to the decision in Wright before saying (at 280, citations omitted): "If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated". 45The Magistrate in the present case clearly had an obligation to provide reasons. The findings in [10] were critical to his determination of the proceedings. For the reasons I have expressed, the Magistrate's reasons were inadequate. In particular, they fell short of meeting the requirement that the reasoning in respect of a critical issue between the parties be exposed. On this basis an error of law is made out. 46A related issue arises from the factual findings themselves. At [15], when dealing with the scope of the duty of care owed by the respective drivers to each other, the Magistrate concluded that it was foreseeable that harm might occur "if a vehicle did not keep within a marked lane or a single line of traffic". It is to be assumed that in doing so, the Magistrate was seeking to apply the relevant test of foreseeability to the facts of the present case. The difficulty is that up to that point in the judgment, the Magistrate's only factual findings were those set out in [9] and [10]. Those findings did not include a finding that Stinson's vehicle "did not keep within a marked lane or a single line of traffic". Although such a finding appears to have been reached in [16], that is a different finding to that expressed in [10]. 47A further difficulty arises from the Magistrate's determination that the degree of Stinson's contributory negligence was 100%. Having found that each of Stinson and Buckley breached the relevant duty of care, the Magistrate was required to make an apportionment, as between them, of their respective shares in the responsibility for the damage sustained to the Kenworth. That task required the Magistrate to properly compare their respective degrees of culpability, to consider the degree to which each departed from the standard of care of the reasonable man, to determine the relative importance of their respective acts in causing the damage, and to then arrive at an apportionment which had regard to those factors: Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 34; [1985] 59 ALJR 492 at 494. 48Apart from stating (in a shorthand way) the basis upon which he found that both Stinson and Buckley had breached their respective duties of care, the Magistrate's reasons do not address any of the matters which were material to the issue of apportionment. The Magistrate simply cited the basis upon which he found each of the drivers negligent and, without more, proceeded to determine that Stinson was entirely responsible for the damage sustained to his vehicle. There was no proper comparison undertaken of the respective degrees of culpability as between Stinson and Buckley, there was no reference at all to the degree to which each had departed from the standard of care of the reasonable man, and there was no proper consideration given to the relative importance of the acts of each of them in causing the damage. As a consequence, there was no exposition of the reasoning process which led the Magistrate to the conclusion that Stinson was entirely responsible for the damage caused. Moreover, and to the extent that the Magistrate's conclusion was based upon a finding that Stinson failed to keep within his designated lane, that was not the finding he reached in [10]. As a consequence of all of these matters, a further error of law is made out. 49Finally, there was evidence before the Magistrate which touched upon the question of whether the lane in which Buckley was travelling narrowed at one point. However on the pleadings, it was not part of the case of either party that the narrowing of the lane caused the collision. Notwithstanding this, the Magistrate concluded (inter alia) at [6] that the "issue of fact is whether the lane narrows .... causing a collision" before going on to say (at [7]): "Counsel for the plaintiff submits that the narrowing of the lane explains how the accident occurred". 50The proper identification of the relevant issues is a routine step in the discharge of the ordinary jurisdiction of any court. Demonstrable mistake in such identification will commonly involve an error of law: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179-180. In my view, the Magistrate failed (in [6]) to properly identify the issues before him. In fact, he identified, as an issue, something that was not an issue at all. On this basis, error of law is established. 51Further, whilst the Magistrate's observation in [7] as to the terms of counsel's submission was correct, explaining how an accident occurred is not the same thing as explaining its cause. At no stage was it put on behalf of the plaintiff that the narrowing of the lane had caused the accident. A reference to transcript of the address of counsel then appearing for the plaintiff (at T 45 L20-24) makes that clear. What counsel put (consistent with the pleaded particulars of negligence) was that in circumstances where the lane narrowed, Buckley had failed to keep a proper look out.

CONCLUSION 52For the reasons I have expressed, I am satisfied that the error of law is established. The provisions of ss. 39 of the LCA cannot be read as conferring a power to review the merits of a case, or to otherwise expand the scope of the appeal, so as to allow this Court to make a series of new findings of fact over and above those made by the Magistrate: Tanwar Enterprises Pty Limited v Bradshaw [2013] NSWSC 1276 at [110] and the authorities cited therein. In these circumstances, the appropriate order is to remit the matter to the Magistrate to be further dealt with according to law. 53In the course of submissions a question was raised by counsel for the plaintiff as to whether, in the event that the proceedings were to be remitted to be further dealt with, they should be remitted to a different Magistrate. However to the extent that such a submission was made, it was ultimately not pressed.

ORDERS 54I make the following orders: (1)The appeal is allowed. (2)The judgment and orders of the Magistrate are set aside. (3)The proceedings are remitted to the Magistrate in the Local Court of NSW to be dealt with according to law. (4)Each party is to provide to my Associate, by 4.00 pm on Monday 20 October 2014, written submissions, not exceeding two pages in length, as to the appropriate orders in respect of the costs of this appeal, and the costs of the proceedings in the court below.

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. Decision last updated: 13 October 2014