Lee v Knapik

Local Court Proceedings

1. Proceedings were commenced in the Local Court by Ms Knapik, initially against Mr Devries and Gasline and then, after amendment, against Ms Lee, claiming a total sum of $31,620.50.
2. Ms Knapik claimed against Mr Devries, for whom Gasline accepts that it is legally liable, that Mr Devries had been negligent in failing to keep a proper lookout, failing to apply his brakes within an appropriate distance and time, and travelling at an excessive speed in the circumstances. There were other allegations to which attention need not be drawn.
3. Ms Knapik claimed against Ms Lee that she failed to keep a proper lookout, that she failed to give sufficient notice "… including by way of indicators as to how [her] vehicle would be manoeuvred", and that she failed to steer or control her vehicle so as to avoid a collision. Put globally, the allegation was that she changed lanes suddenly and without indicating.
4. The claim alleged that either Mr Devries was liable, or Ms Lee was liable, or both were liable as concurrent wrongdoers in respect of the collision. It is unnecessary to refer to both Gasline and Mr Devries. Reference to Mr Devries should be read as including a reference to Gasline.
5. In accordance with the directions of the Local Court, affidavits were filed setting out the various versions of how the accident happened. There were four affidavits. One by Ms Knapik, who was a passenger in her vehicle at the relevant time. The second affidavit was by the driver of Ms Knapik's vehicle, Mr Au. Ms Lee gave her account of the facts in an affidavit, as did Mr Devries.
6. The proceedings were heard in the Local Court before Bradd LCM, on 1 April 2014.
7. On 16 May 2014, his Honour delivered judgment. For the reasons which he then published, he gave judgment for the plaintiff against Ms Lee, and judgment for Mr Devries against Ms Knapik. It will be necessary to return to the detail of the judgment later.

Supreme Court Proceedings

1. On 10 June 2014, Ms Lee filed a Summons seeking Leave to Appeal from the whole of the decision of Bradd LCM.
2. The Summons was filed by Ms Lee in her capacity as a self-represented litigant. She had been represented at the hearing before Bradd LCM by a legal practitioner. Any infelicity in expression in the summons for leave to Appeal is thus explicable.
3. She sought the following orders: "1. Leave to appeal from the whole of the decision below. 2. Appeal allowed. 3. The plaintiff seeks an order that the proceedings against her be dismissed with costs, and that they otherwise be remitted for hearing before a Magistrate other than Magistrate Bradd."
4. The grounds upon which that filed appeal was based, were these: "1. The Magistrate erred in law in finding that, in the events which occurred, the plaintiff owed a duty of care to the defendants (or any of them) and in finding that the plaintiff acted in breach of duty. 2. The Magistrate erred in law in failing to find that, in the events which occurred, the first defendant and second defendant, or alternatively one of them, owed a duty of care to the plaintiff, and that the first defendant and the second defendant, or alternatively one of them, acted in breach of that duty. 3. The decision of the Magistrate was perverse in that: (a) having found, in paragraph 27 of his reasons, that the liability of the plaintiff and the second and third defendants to the first defendant, should be apportioned equally between the plaintiff, on the one hand, and the second and third defendants, on the other hand, he proceeded, without adequate reasons, to conclude that the plaintiff was solely liable to the first defendant; and (b) the evidence demonstrated the following events sequentially occurred …"
5. On 18 July 2014, Ms Knapik filed a Cross-Summons appealing from the whole of the decision of Bradd LCM of 16 May 2014. It sought the following orders: "1. Appeal allowed. 2. The second and third cross-defendants are to pay the cross-claimant the sum of $19,000. 3. In the alternative to Order 2 above, the first cross-defendant on the one hand and the second and third cross-defendants on the other, are liable to the cross-claimant in such proportion of $19,000 that the Court considers just having regard to the extent of their respective responsibilities for the damage or loss. 4. Costs."
6. The Cross-Summons nominated the following appeal grounds: "1. His Honour Magistrate Bradd made an error of law: (a) in finding that it was reasonable for the third cross-defendant (Friedrich Devries) to release the brakes in the circumstances (judgment at [48]); and (b) in failing to find that the third cross-defendant (Friedrich Devries) breached his duty of care to the cross-claimant (Jane Knapik) by failing to keep a safe distance between his vehicle and the vehicle of the cross-claimant."
7. For the reasons which follow, I have concluded that the Summons seeking leave to appeal, and the Cross-Summons ought each be dismissed with costs.

Relevant Legislation

1. A party to proceedings in the Local Court does not have a general right of appeal to the Supreme Court. Such right as a party has is conferred by the provisions of the Local Court Act 2007.
2. Section 39(1) of the Local Court Act provides that a party to proceedings before the Local Court, who is dissatisfied with the judgment or order of the Local Court, may appeal to the Supreme Court, but only on a question of law.
3. Section 40(1) of the Local Court Act provides as follows: "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."
4. There is no right of appeal, or right to seek leave to appeal from a decision of the Local Court to the Supreme Court with respect to an error of fact.
5. Section 41 of that Act makes provision for what the Supreme Court may do in the event of an appeal under s 39(1) or s 40. That section provides that the Supreme Court may determine an appeal: "(a) by varying the terms of the judgment or order; or (b) by setting aside the judgment or order; or (c) by setting aside the judgment or order and remitting the matter to the Local Court for determination in accordance with the Supreme Court's directions; or (d) by dismissing the appeal."
6. The proceedings before this Court were conducted by the parties by reference to the record of the Local Court. That is to say, the Supreme Court had placed before it by the parties, the transcript of the proceedings, the affidavits which were relied upon, and the decision of the Magistrate. As well, the Supreme Court had before it, the pleadings which were before the Local Court.

Error of Fact or Error of Law

1. In order to understand and properly apply the provisions of s 39 of the Local Court Act in these proceedings, it is necessary to consider what might be an error of law as opposed to an error of fact.
2. The differential concept is of long-standing, and is the subject of binding authority. It is necessary, in light of the limited jurisdiction of the Court, to identify what an error of fact is, and what an error of law is, as a matter of principle.
3. The commencing point is to observe that, as a matter of statutory interpretation, the plain intention of the legislation is not to permit a general review of the fact‑finding process carried out in the Local Court: CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338 at [89] per Basten JA.
4. In the Australian Gaslight Co v The Valuer-General (1940) 40 SR (NSW) 126, Jordan CJ, in a case in which the Court only had jurisdiction to determine questions of law, said at pp 137-138, that the rules which were applicable were: "1. The question what is the meaning of an ordinary English word or phrase as used in the statute is one of fact not law: … This question is to be resolved by the relevant Tribunal itself, by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence: …; 2. The question whether a particular set of facts comes within the description of such a word or phrase is one of fact: …; 3. A finding of fact by a Tribunal cannot be disturbed if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences: …; 4. Such a finding can be disturbed only: (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences: … or (c) if it has misdirected itself in law: … 5. Thus if the facts inferred by the Tribunal from the evidence before it are necessarily within the description of a word or phrase in a statute, or necessarily outside that description, a contrary decision is wrong in law: … 6. If however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, the decision either way by a Tribunal of fact cannot be disturbed by a superior Court which can determine only questions of law." (citations omitted)
5. Two years later, in Dennis v Watt (1942) 43 SR (NSW) 32, the Full Court of the Supreme Court was called upon to consider a question, with respect to a prosecution under the Motor Traffic Act 1909, of whether the Magistrate had made an error of law in acquitting a driver of a charge of driving a motor vehicle negligently on a public street. An appeal lay at the suit of the information against the dismissal of the information on "… a ground that involves a question of law alone": s 104(2) Justices Act 1902.
6. Jordan CJ considered the question of whether an ultimate fact, which led to a particular legal result, amounted to a question of law. At p 32, Jordan CJ said: "What the Statute penalises, for all purposes relevant to the present case, is the act of driving negligently, and the question whether negligence has occurred is essentially one of degree. From certain findings of fact, it would necessarily follow, as a matter of law, that an accused person had been negligent; from others, that he had not. Between these extremes, however, there lies a broad limbo in which, upon the facts found, the question whether negligence had occurred would depend upon the view taken of their relative importance and significance. In such a case, the ultimate determination becomes also one of fact, and a decision either way by a Tribunal of fact cannot be said to be wrong in law, unless it appears that the case has been so decided because some legal principle has been wrongly applied."
7. Davidson J said at p 35: "A magistrate is required to act both as judge and jury and there was evidence before him from which the existence of negligence was capable of being inferred. It was his function therefore, in his capacity as a jury to determine as a question of fact whether the existence of negligence should, or should not be inferred ... An appellate court in the absence of statutory direction in that behalf, never decides the issues of fact. It cannot usurp that function of the jury or of a magistrate acting in the same capacity, and can only interfere when the verdict rests on inferences which might not be drawn by reasonable men. Thus a verdict is not set aside because the Court disagrees with it, but only because there is such a preponderance of fact or inference against it that it is found to be unreasonable to a degree which establishes a miscarriage of the trial … It is a question of law therefore whether there is sufficient evidence of negligence to go to a jury or to support an inference one way or the other involved in its verdict that there has or has not been negligence … … The Superior Court will consider as a matter of law whether the inference drawn from admitted fact or facts specifically found by a magistrate is so unreasonable as to amount to a miscarriage, because as the judge expressed it, there was an irresistible inference to the contrary effect. In dealing with that aspect of the matter, there is a very wide field when the so-called 'ultimate fact' involves a question of degree, in which event the issue remains one of fact, so that if the inferior Court arrives at a conclusion upon it without having applied any wrong principle, its decision is final …"
8. It is now beyond argument that a wrong finding of fact does not amount to an error of law: Waterford v The Commonwealth [1987] HCA 25;(1987) 163 CLR 54 per Brennan J; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [88]-[89].
9. Even the erroneous finding of fact, including the drawing of an inference, or the erroneous failure to find a fact or failure to draw an inference, which is perverse, in the sense that it is contrary to the overwhelming weight of the evidence, is not an error of law: Azzopardi v Tasman UEB (1985) 4 NSWLR 139 at 155 per Glass JA.
10. The fact that the reasoning process by way of which the finding of fact is arrived at is demonstrably unsound, or illogical, does not mean that an error of law has been established. Nor does a faulty or illogical inference of fact, constitute an error of law: R v District Court: Ex parte White [1966] HCA 69; (1966) 116 CLR 644 at 654 per Menzies J.
11. The issue of whether an error of law, or an error of fact has been demonstrated, received careful consideration by the Court of Appeal in Azzopardi. The majority reasoning - Glass JA agreeing with Samuels JA, was not agreed in by Kirby P (although he agreed in the ultimate result). At 155, Glass JA said, after reference to authorities of long standing: "It is clear from these extracts that numerous pejorative expressions in common usage possess a single meaning and are interchangeable. To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the [Workers Compensation] Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers Compensation Commission judge is vitiated in the same way, discloses no error of law and will not constitute a ground of appeal. It is also pointless to submit that the reasoning by which the Court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law … … It is important I believe to remember that whether an error is one of fact or law is determined by legal theory, and the theory is the same whether the Tribunal be divided or undivided. Errors may be committed by a workers compensation judge at any one of three points viz., determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage, the determination of facts by a reasoning process marred though it be by patent error, illogicality, or perversity will, as has been said, never be vulnerable to attack as an error of law by an applicant for compensation. At the second stage, any error made will by definition be an error of law. The third stage, when the law correctly stated is applied to the facts found in order to produce a conclusion, error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the cause of employment, … will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open. Accordingly, this court will not entertain unexplained perversity of result as a ground for intervention although it will correct perverse or unreasonable applications of law to the facts found." (citations omitted)
12. In CSR v Amaca Pty Ltd, Basten JA noted at [89] that: "The scope of phrases such as 'question of law', 'point of law', and 'error of law' is less clear. Guidance may be obtained from the established grounds of judicial review, but these are often stated in terms of categories (of which error of law is one) which are notoriously imprecise and which overlap. Nor does the analogy with judicial review allow for the constraint in legislation which requires identification of a decision of the Tribunal below on a question, or in point, of law. It may also be erroneous to assume that such an error is to be equated with the kind of errors which would permit interference with a discretionary decision, in accordance with the principles established in House v The King [1936] HCA 40; (1936) 55 CLR 599 at 505."
13. Circumspection in addressing these issues is clearly required.
14. Finally, it is appropriate to note the plurality judgment of Hayne, Heydon, Crennan and Kiefel JJ in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 at [91], where their Honours said: "91. ... Whether there was no evidence to support a factual finding is a question of law, not a question of fact. The Tribunal's factual finding in this case, that the builder had served the two relevant claims for extension of time, necessarily depended upon it first accepting that there was evidence to support the finding. As Dixon CJ said in Gurnett v The Macquarie Stevedoring Co Pty Ltd …: 'in the legal dichotomy between questions of fact and questions of law we place under the latter head a question whether there is sufficient evidence to submit to a jury in support of a cause of action. That is because it is a question for the court to decide and not for a tribunal of fact.' A tribunal that decides a question of fact when there is 'no evidence' in support of the finding makes an error of law. What amounts to material that could support a factual finding is ultimately a question for judicial decision. It is a question of law. And in this case, for the reasons given by the primary judge, there was no evidence before the Tribunal, when it decided the separate question identified by the parties, upon which the Tribunal could find that the disputed notices had been served."
15. While I accept that, to borrow the words used albeit in a different context by the plurality in Kostas at [88], that it is not useful to attempt to chart the metes and bounds of this Court's task, and that an attempt to do so is dangerous, and may, particularly at a level of abstraction, invite error, I nevertheless must say that I find the judgment of Kirby J in RL&D Investments Pty Ltd v Bisby [2002] NSWSC 1082 at [13] most helpful. There, his Honour encapsulated the relevant authorities in this way: "13 The issue has been considered in a number of cases since that time, including Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Mahoney v Industrial Registrar of NSW & Anor (1986) 8 NSWLR 1; Haines v Leves & Anor (1987) 8 NSWLR 442; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; Gangemi Holdings Pty Ltd v Salter & Ors [1999] NSWSC 1004; Carr v Neill [1999] NSWSC 1263; SRA v Smith [2000] NSWSC 334. Arising from these authorities, a number of broad propositions can be stated: ● First, there is no error of law in simply making a wrong finding of fact (Australian Broadcasting Tribunal v Bond (supra) per Mason CJ at 341), unless there is no evidence to support that finding. ● Secondly, it does not amount to an error of law if the finding of fact, or the inference (or the refusal to make a finding of fact or draw an inference) is perverse, in the sense that it is contrary to the overwhelming weight of evidence (Glass JA in Azzopardi v Tasman UEB Industries Ltd (supra) at 155). ● Thirdly, it is not an error of law even if the reasoning process by which the Court reaches its conclusion of fact is demonstrably unsound or illogical (Menzies J in R v District Court: Ex Parte White [1966] HCA 69; (1966) 116 CLR 644, at 654). ● Fourthly, there is limited exception (which has no application in this case) in relation to decisions of fact in the context of a statutory description. In such a case there may be an error of law if the decision on the facts is one which could not be reasonably entertained, or supported, if the tribunal had properly understood the true construction of the relevant enactment (Mahoney v Industrial Registrar of NSW & Anor (supra) per Hope JA at 1 and Samuels JA at 5)."

Errors identified by Ms Lee and Ms Knapik

1. In the course of oral submissions by senior counsel for Ms Lee, he identified and isolated the two errors upon which Ms Lee's application to this Court turned. He articulated them in this way: "We submit that the Magistrate erred in failing to accept Ms Lee's account of what had occurred as truthful, and erred in failing to conclude that she was wholly blameless."
2. The errors were teased out, and senior counsel agreed with the following description of the errors, namely: 1. the Magistrate erred in failing to accept the evidence of Ms Lee as accurate, truthful or reliable; and 2. the Magistrate erred in failing to find that Ms Lee was without fault, or alternatively put, erred in finding that she was at fault.
3. In the course of discussions during submission with the Bench, senior counsel for Ms Lee accepted that what was being put was that: "On a review of the evidence, the findings of fact which the Magistrate made about where the collision happened, and who precipitated it … were erroneous."
4. The following exchange later took place: "His Honour: If it is inconsistent with the facts established by the evidence and glaringly improbable, what you're saying is that the Magistrate's findings of fact ought not to have been made. Grieve SC: Correct. His Honour: Yes. It follows, doesn't it, from your argument that it was open to him to make them, but he ought not to have. Is that a fair way of putting it? Grieve SC: Yes. … … His Honour: That is, when one looks at all of the facts and weighs all of the facts and understands the inconsistencies in various of the witnesses' evidence of fact, the conclusion which the Magistrate reached was wrong. Grieve SC: Yes. Leading to an error of law in concluding that Ms Lee was actually negligent. His Honour: Let me test that. If he found the facts as he found them to be … it was not an error of law to find Ms Lee negligent? Grieve SC: That's correct. His Honour: If he had found the facts as you contend he ought to have, then it would follow that the only available finding was that Ms Lee was not at fault. Grieve SC: That's right. His Honour: It's a question of applying the correct facts to the ordinary legal test, leading to a legal conclusion. Grieve SC: Yes. That's correct."
5. Ms Knapik's contentions of error on the part of the Magistrate were also twofold. They were: 1. it was an error for the Magistrate to find that it was reasonable in the circumstances for Mr Devries to have released his brakes and commenced to have accelerate in the short time prior to the motor vehicle accident; and 2. that it was an error of the Magistrate to have failed to find that Mr Devries failed to keep a safe distance between his vehicle and the vehicle in front, being that driven by Ms Knapik.
6. Counsel for Ms Knapik was also asked about the errors which were relied upon. In oral submission, counsel accepted that the first error with respect to the finding of reasonableness in releasing of the brakes, was an error of fact. He submitted that the next error relied upon, namely, that Mr Devries failed to keep a safe distance, was a proposition of breach of duty, which he accepted necessarily depended upon a finding of fact which, it was contended, the Magistrate should have, but did not make.

Decision of the Magistrate in the Local Court

1. The judgment of the Magistrate was reasonably lengthy, it addressed the nature of the case, the evidence of the relevant witnesses, the submissions made to him by each of the three parties, the legal test to be applied, and then it set out his conclusions.
2. The case before the Local Court involved a motor vehicle collision relating to three motor vehicles. It occurred whilst they were all travelling south, in the same lane. The issue, in substance, posed for the Magistrate was whether the collision occurred because the southern-most (or first) car in the line of three (driven by Ms Lee), moved suddenly into the lane in which the other two vehicles were travelling, thereby causing Ms Knapik's vehicle to stop suddenly to avoid colliding with Ms Lee's vehicle. The consequence of that sudden stop being that the semi‑trailer being driven by Mr Devries, confronted with such a sudden and unexpected stop, did not have sufficient time or distance within which to bring his vehicle to a stop completely, with the result that a collision occurred. On this version, Ms Lee was at fault.
3. The alternate version posed for the Magistrate was whether Ms Lee's vehicle changed lanes safely in the ordinary course of driving, whether she and the second vehicle (Ms Knapik's vehicle) were able to pull up at the red traffic light which they were approaching, but that Mr Devries, who was not paying adequate attention and keeping a proper lookout, failed to apply his brakes soon enough to bring his semi-trailer to a stop without colliding with Ms Knapik's vehicle. On this version, Mr Devries was at fault.
4. The evidence of each of the witnesses, who were relevantly the participants, could not be completely reconciled, although there were features of the evidence which were reasonably consistent between the witnesses.
5. The Magistrate having outlined all of the material to which I have made reference, came to consider the facts. He specifically rejected the evidence of Ms Lee about the distance at which her car changed lanes before the intersection. He rejected her evidence that it was 250 metres, because she had given a different version in the course of cross-examination, and because it was inconsistent with other evidence in the case. He recited the evidence of Mr Devries which although not explicitly stated, it is apparent, that he accepted.
6. The Magistrate then expressed his conclusion in this way: "45. There was a foreseeable, and not insignificant, risk created by changing lanes, such that a reasonable person would take precautions against the risk of harm caused by a motor vehicle collision. 46. Ms Lee was negligent by failing to keep a proper lookout. She said in her affidavit that she looked over her shoulder, but did not say that she looked in the rear vision mirrors. In cross-examination she said that she used the mirrors. Mr Au would not have applied emergency braking if Ms Lee had kept a proper lookout, because if she had kept a proper lookout, and if she was taking proper precautions, she would not have changed lanes ahead of [the Honda]. The question is whether the negligence of Ms Lee was a necessary condition of the occurrence of harm caused to [the Honda]. If Ms Lee had not been negligent, by changing lanes, Mr Au would not have braked harshly, and [the Honda] would not have been damaged."
7. In that part of his judgment, the Magistrate was expressing his preference for the factual conclusion that Ms Lee's driving was negligent, and was the cause of the accident.
8. The Magistrate next referred to the evidence of Mr Devries and, in particular, to what he was doing immediately prior to the collision. He reached this conclusion: "The answers made by Mr Devries indicate that whilst changing gears, he was looking at [Ms Knapik's car] and looking ahead, beyond [Ms Knapik's car]."
9. The factual conclusion being expressed here is that Mr Devries was keeping a proper lookout.
10. He then expressed the balance of his conclusions in the following paragraphs: "48. [Mr Devries] collided with [the Honda] because there was insufficient time and space between the vehicles once Mr Au applied emergency braking. Mr Devries agrees that if he had not released the brake after [the Honda] changed lanes, [Mr Devries] would possibly have had sufficient time and space to stop. He released the brakes because [the Honda] rapidly accelerated. He saw no vehicles in front of [the Honda], except vehicles stopped at the intersection about 100 metres further along the highway. Since [the Honda] was rapidly accelerating, it was reasonable for Mr Devries to release the brakes. It was foreseeable that a driver of a vehicle ahead of [Mr Devries] in lane two might change into lane three to move further ahead, however, it was not foreseeable that such a driver would do so without keeping a proper lookout for vehicles in lane three before doing so, and would change lanes directly in front of a vehicle travelling in lane three, so as to cause the driver of [the Honda] to apply emergency braking. 49. Ms Lee's negligence was a continuing cause of the damage sustained to [the Honda]. 50. I am satisfied on the balance of probabilities that the negligence of Ms Lee was a necessary condition of the occurrence of harm caused to [the Honda] and it is appropriate for the scope of Ms Lee's liability to extend to the damage caused to [the Honda]."
11. It is these conclusions that are the subject of the criticisms to which I have earlier adverted.
12. The Magistrate was confronted with the task of determining, having regard to all of the evidence, the likely cause or causes of the accident.
13. As his reasons show, he came to the conclusion that it was the fact that Ms Lee changed lanes suddenly, which had caused Ms Knapik's vehicle to be brought to an unexpected stop. He determined that the failure of Mr Devries to pull his vehicle up in time to avoid a collision was the consequence of insufficient time being available to him, having regard to the distance between him and the preceding vehicle (Ms Knapik's vehicle). This conclusion was expressed in the obvious context that Mr Devries' vehicle was a semi‑trailer.
14. In this Court, neither senior counsel for Ms Lee, nor counsel for Ms Knapik contended that there was no evidence available to the Magistrate upon which he could have based these findings. Plainly, there was evidence. Equally plainly, he preferred the evidence of others to that of Ms Lee. He accepted the evidence of Mr Devries that he was driving his vehicle in a reasonable manner at the time, and that his actions were, in all the circumstances, reasonable.
15. These are all obviously questions of fact. The Magistrate is the person to whom the law, in this case, gives the responsibility for making an evaluative judgment as to the acceptability of the evidence, the weight to be given to the evidence and the consequence of that task, namely the making of factual findings and the drawing of inferences.
16. The ultimate conclusion of the Magistrate, namely that Ms Lee was negligent and had caused the relevant damage, and that Mr Devries was not negligent and had not caused the relevant damage, was a decision which depended entirely upon the complex interaction of the facts, and his conclusion as to which facts and inferences should be drawn. Notwithstanding the submissions of senior counsel for Ms Lee to the contrary, the ultimate conclusion was drawn from the "… broad limbo …" of facts, with the result that the ultimate determination is one of fact alone.
17. The Magistrate's conclusion as to Ms Lee's negligence and the absence of Mr Devries' negligence was wholly, in this case, a question of fact. If he has made an error in that respect, then that is an error of fact, and this Court is not entitled in those circumstances to set aside this decision of the Local Court.
18. Each of the errors identified by Ms Lee and Ms Knapik are errors of fact upon which it is inappropriate for me to express any view as to what factual conclusion I may have come.

Conclusion

1. It follows that both the Summons seeking leave to appeal and the Cross‑Summons must be dismissed.
2. There is no reason why costs ought not follow the event.
3. I make the following orders: 1. Summons seeking Leave to Appeal filed 10 June 2014 by Ms Lee is dismissed. 2. Order Ms Lee to pay the defendants' costs of that Summons. 3. Cross-Summons filed 18 July 2014 by Ms Knapik is dismissed. 4. Order Ms Knapik to pay the defendants costs of that Cross-Summons.

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: 02 April 2015