State of NSW v Bitsikas & State of NSW v Pabi Holdings Pty Ltd

Supreme Court of NSW|2010-07-05|Before: Davies J

CITATION : State of NSW v Bitsikas & State of NSW v Pabi Holdings Pty Ltd [2010] NSWSC 773

DECISION : (1) In both matters the appeals are allowed. (2) The judgments of the Local Court of 30 September 2008 and 22 January 2009 be set aside. (3) In lieu thereof, order that the proceedings are remitted to the Local Court to be heard and determined according to law by another Magistrate. (4) The costs of the proceedings before Magistrate Pierce in the Local Court to be the costs at the further hearing. (5) The Defendants are to pay the Plaintiff's costs of this appeal. (6) The Defendants are to have a certificate under the Suitors Fund if otherwise so entitled.

CATCHWORDS : APPEAL - from Local Court - obligation to provide adequate reasons - motor vehicle accident - each party alleging negligence in the other - failure of Magistrate to make necessary factual findings - failure to provide adequate reasons. EVIDENCE - expert evidence - requirements of Expert Witness Code for proper expression of opinion - need to show reasons for opinion - matters remitted to Local Court for hearing by another Magistrate.

Evidence Act 1995 LEGISLATION CITED : Local Court Act 2007 Uniform Civil Procedure Rules

Abalos v Australian Postal Commission (1990) 171 CLR 167 Alchin v Daley [2009] NSWCA 418 Fox v Percy (2003) 214 CLR 118 Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 CASES CITED : Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 Ocean Marine Mutual Insurance Association (Europe) OB v Jetopay Pty Ltd [2000] FCA 1463 Sellers v Marchant [2008] NSWSC 120 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178

State of NSW (Plaintiff) PARTIES : Parrai Bitsikas (Defendant) Pabi Holdings Pty Ltd (Defendant)

COUNSEL : P Gow (Plaintiff) P Bolster (Defendants)

SOLICITORS : Robinson Saxton Primrose Dunn (Plaintiff) Voros Lawyers (Defendants)

LOWER COURT DATE OF DECISION : 30/9/2008 & 22/1/2009

12 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2009/292821 STATE OF NSW V PARRAI BITSIKAS & 2009/292833 STATE OF NSW V PABI HOLDINGS PTY LTD

JUDGMENT 1 A collision occurred on 2 February 2007 in Rosedale Street, Dulwich Hill between a BMW motor vehicle owned by Pabi Holdings and driven by Parrai Bitsikas and 2 vehicles belonging to the NSW Police Force and being driven by 2 officers. 2 Damage was occasioned to all of the vehicles resulting in the Police suing Mr Bitsikas for the damage to the police vehicles totalling $6,642.37 and Pabi Holdings suing the Police alleging damage to the BMW totalling $32,869.14. 3 The proceedings were heard by Magistrate Pierce at Burwood Local Court. He found in favour of Mr Bitsikas and Pabi Holdings. The State of NSW has appealed to this Court pursuant to s 39 Local Court Act 2007 alleging errors of law in relation to the Magistrate's judgment. Background to the accident 4 On 2 February 2007 Police were conducting an investigation into, and surveillance of, Parrai Bitsikas. Mr Bitsikas's mother lived at 24 Rosedale Street, Dulwich Hill. Some of the police were in the vicinity of the house and others arrived in the vicinity of the house at about 2:00pm on that day. 5 At about that time Mr Bitsikas got into his blue BMW that was parked in the driveway at the side of his mother's house. He reversed from the premises onto Rosedale Street with a view to driving north along Rosedale Street. 6 Whilst the precise details of what happened were disputed what is clear is that 2 of the police vehicles drove towards Mr Bitsikas and another vehicle came up behind him. Mr Bitsikas collided with the 2 vehicles that approached him from the front. His account is that they rammed his car with a view to stopping him. The account of the police officers is that their vehicles were stopped in such a way that a gap was left between them and that Mr Bitsikas drove between them in an attempt to get away. In any event, it was when Mr Bitsikas's car came into contact with the 2 police cars which approached him from the front that the damage to the 3 vehicles occurred. 7 The police vehicles were unmarked vehicles and the police officers were not in uniform. There was a dispute about whether sirens and flashing lights were used and when they were used. 8 The Statement of Claim filed by the Police alleged negligence on the part of Mr Bitsikas. The particulars included allegations of travelling at an excessive speed, failing to brake, steer or swerve so as to avoid the collision, failing to give way to the police vehicles and failing to keep a proper lookout. 9 The Defence filed by Mr Bitsikas alleged negligence and/or deliberate action on the part of the Police causing the collision. Pabi Holdings made the same allegations in the Statement of Claim that commenced its action against the Police. All of the particulars of negligence relied upon by Mr Bitsikas in his Defence and by Pabi Holdings in its claim concerned the way the motor vehicles were driven. 10 The main account of the accident given by Mr Bitsikas was to be found in his statement of 21 April 2008. He relevantly says this: [7] In the afternoon I left my mother's home. I exited the front door, walked into the driveway, entered my vehicle and started the engine. I reversed out of the driveway, pulled out into the street, put the car into first gear and proceeded to slowly drive north into Rosedale Street (towards the Summer Hill side). I recall as soon as I let the clutch out, only travelling a few meters, I first saw a white four wheel drive motor car, unmarked, driving at a relatively high speed towards me approaching my motor vehicle "head on". At that point I noticed the driver when this vehicle approached closer to my car, holding the steering wheel with one hand, and holding what was clearly a pistol in the other hand and pointing it at me through the windscreen.

[8] I was very frightened at the time and turned the steering wheel towards the right, intending to drive out of its path. At that point I noticed from the corner of my eye on the right, another sedan motor vehicle which was parked outside of my mother's neighbour's home, drive straight towards my motor vehicle, and collided with my driver's side door with his driver's side guard and bonnet. At about the same time, I saw and noticed another unmarked vehicle drive from behind directly into my passenger side and collide with the front, side and door. The action of both these vehicles effectively was to wedge my car between them.

[9] At about this time, the white four wheel drive drove directly at the front of my car "head on" screeched, made contact and collided with the front of my car with the front of his car.

[10] At that point I engaged the reverse gear in my car. I did not know that neither (sic) the sedans nor the white four wheel drive car were Police officers as they were unmarked and did not have any sirens or markings.

[11] I looked in the rear view mirror and saw another unmarked sedan car parked directly behind me. I did not collide with this motor car. At that point my car was completely surrounded by unmarked cars. That is there was a white four wheel drive in front which had collided with my front. There were two (2) other unmarked cars which had collided with my driver's and passenger side effectively wedging me between those cars. There was another car behind me which did not allow me to move in any way.

… [15] Whilst I was in the car I heard loud voices and saw three men who were not in Police uniform pointing guns at me saying words to the effect "get out of the fucking car, get out of the fucking car". [16] I was extremely frightened and did not know who these men were. I thought I was getting kidnapped. At no time was I informed by these men that they were Police officers. [17] The driver of the white four wheel drive got out of his car and came towards my passenger side door pointing a gun at me saying words to the effect "get out, get the fuck out". At one stage he started hitting the passenger window several times with the butt handle of the gun appearing to attempt to smash the window. [18] I was unable to get out of the driver's side door as it was damaged from the collision and jammed by the sedan which had driven into my driver's side. [19] I recall getting out of the passenger side door. The car is a two door motor car. As soon as I exited the motor vehicle I was set upon by these three men and thrown to the ground. They placed handcuffs on me. [20] At that time I was told "we are Police". [21] After I was handcuffed I recall seeing a Police officer holding what appeared to be a video camera, recording what had happened. He asked me a number of questions while the video was recording. I recall saying to him words to the effect "I didn't know you were Police why did you ram me". (emphasis added) 11 The account of the accident by the Police is best demonstrated from the statement of Detective Senior Constable Robson who relevantly said: [2] About approximately 2.00pm on Friday the 2 February 2007, I was conducting surveillance in vehicle ARJ 01M in the vicinity of 24 Rosedale Street Dulwich Hill. Plain Clothes Senior Constable McKerrow and Senior Constable Clarke were also conducting surveillance of the location. Senior Constable McKerrow gave me certain instructions in relation to Parrai Bitsikas upon his exit from his premises, (this related to effecting the arrest of Bilsikas for an unrelated matter).

[3] A short time later I turned into Rosedale Street from Canterbury Road and stopped behind Senior Constable Clarke. Senior Constable Clarke was driving vehicle AJ9 5ZZ a white Ford Territory. I saw a blue BMW registration AZF 44N reverse from the premises of 24 Rosedale Street onto the roadway. Senior Constable Clarke and I drove towards the blue BMW. I saw Senior Constable McKerrow stop his vehicle a short distance behind the blue BMW as Senior Constable Clarke and I drove towards it. Senior Constable Clarke stopped his vehicle approximately 3 to 4 metres in front of the blue BMW. I drove my vehicle to the left hand side of the road and stopped slightly in front of Senior Constable Clarke. At this time all vehicles were stopped on the roadway and I could hear Senior Constable McKerrow's siren sounding from his vehicle.

[4] At this time Bitsikas has accelerated harshly from the stationary position causing the rear wheels of the BMW to lose traction and his engine to rev loudly. Bitsikas attempted to drive between my vehicle and the vehicle driven by Senior Constable Clarke. At this time there was only about one to one and a half metres between Constable Clarke's and my vehicle. Due to insufficient space, Bitsikas has collided with both Senior Constable Clarke's and my vehicle. Bitsikas continued to accelerate harshly causing his rear wheels to spin whilst in contact with Constable Clarke's and my vehicle. The vehicle then came to a stop between the two police vehicles.

[5] I exited the police vehicle and assisted Senior Constable McKerrow and Senior Constable Clarke to arrest Parrai Bitsikas.

The judgments of the Magistrate 12 The hearing on liability took place over 2 days on 13 May 2008 and 30 September 2008. Addresses were then made on 30 September and the Magistrate proceeded to deliver his first judgment which was relevantly in these terms: Look I propose to decide this matter in favour of the defendant and my reasons as briefly as I can put them are these:

Firstly before I forget just to pick up upon the question of the damage to the right side of the Mazda I accept that the evidence shows there is some damage. It is not apparent in the photo except over the rear quarter panel near the wheel but I do not care about that . I think it is more probable than not that the Mazda had its right front wheel turned and that the rubber came down the side to a large degree and probably the car swung sideways a fraction towards the end of the accident and the damage then occurred to the rear quarter panel. That is my best guess but I do not think it matters particularly whether one is able to find or not find just exactly how that occurred.

What I think is most important of all is that the Ford Territory was driven by a police officer and all these cars were unmarked and the police were not in uniforms and that Ford Territory driver frightened the defendant. If there had been an explanation which there was not in the evidence such as I said before perhaps that he was involved in a drug deal or something like that and must have known the police were after him it would be different.

There is no evidence of that so I have got to work on the basis that he is just simply a citizen who was confronted with the driver of a Ford producing a pistol, whether or not in the car or out of the car , producing a pistol and that frightened the defendant who reacted by trying to drive away at a bit of an angle and probably in spite of what he says accelerated very rapidly perhaps through three, four or thirteen or whatever metres.

The Mazda moved a bit to try to block him, just precisely what it did I do not know I do not care but somehow another (sic) it came into contact with the side of him to some degree, he did not have enough room to get through. I reject the notion pressed by Mr Davies with all respect to Mr Davies that really and truly there was negligence in the defendant misjudging the width of the gap, not so . When confronted with the Ford Territory and gun toting policemen not in uniform.

He, the defendant understandably sought to get away and in those circumstances one could not regard it as an indicator of negligence that he miscalculated the gap. Even if he did it may be that the Mazda moved, I do not need to decide that, if it moved and narrowed the gap it is less the defendant's fault. If it did not move it is still the fact at least until the latter part of the event, it is still the fact that the defendant's attention inevitably was focused upon the gun-toting policemen either in or outside the Territory.

The critical question whether a light and particularly a siren were sounded and displayed on the vehicle behind the defendant is something that I resolve in favour of the defendant upon these basis:

First his manner of giving evidence was spontaneous. When he described what occurred he sounded - my word from before - guileless. Right he sounded as if he were simply telling the truth and that is a subjective thing and I rely upon that.

Second for the reason that I said before there could of (sic) only been a second or two in it and if there were a siren let alone the light he probably - it is more probably than not that his attention would not have been focused on it because I know that if I saw somebody driving towards me if I had a million dollars in my back pocket and I had lost a mate this way and I saw someone driving towards me who was not in a police uniform and produce a pistol and pointed it at me, my attention would be wholly and exclusively on that vehicle and my getting out of the way and I doubt that I would notice the siren behind me and I think that is just common knowledge, just human beings react that way and I think almost anybody would.

So it is possible that the siren sounded a second or two before he moved but his attention was not able to focus upon it. I pay little regard to the fact that he describes the event differently at different times. The best example is perhaps the diagram that supposedly shows the car coming up behind him and smashing into him on the left side because that merely shows that he misremembered something which is not surprising given the agony of the moment and could not impact adversely on his truthfulness.

Mr Davies rightly enough says that one should look to see which version is to be preferred but essentially one will prefer in circumstances like these the version of one party compared with the other if it appears that one party has been truthful and I think on the balance of probabilities the defendant has been truthful.

Therefore I find on the balance of probabilities that either the siren behind him and lights were not on until too late or that he did not hear then because hear the siren (sic) and see the light because he was preoccupied with the gun toting policeman in front of him in the Territory or out of the Territory. In my view that question of the production of the gun is frightening and it is conclusive of the matter. I think that the police could have avoided the whole problem by parking back a bit, slowing down, parking thirty, forty metres back, stopping, getting out, then if need be producing the pistol and perhaps parking their cars they did not block his exit . Back on the face of it on the evidence we have in this traffic matter there is no reason for them to block the exit as I said before if they wanted to block the defendant for some other reason if he was selling fifty kilos of heroin and then wanted to grab him, well if there was such evidence then that might have changed things. There was no such evidence. I have see him as simply as citizen who was being stopped by police in the circumstances of production of a gun which is frightening. (all emphasis added) 13 There were then brief submissions in relation to the measure of damages and the Magistrate suggested that written submissions be filed and he would then decide the quantum of the claim. 14 On 22 January 2009 he handed down a reserved judgment on the question of the damages recoverable by Pabi Holdings. The issue was whether Pabi Holdings should be able to recover the diminution in value of the vehicle of $9,000 in addition to the cost of repairs of $33,649.29. The subsidiary question was whether there was adequate evidence, including expert evidence, of the diminution in value. 15 In relation to the recovery of the diminution in value his Honour relevantly said this: The object of any damages award in negligence is to place the plaintiff, as far as one can, in the same position as he or it would have been in if the negligence had not occurred. I have read a number of decided authorities, but have been unable to find any which would stand in the way of the plaintiff's argument that it should be entitled to achieve such a result by means of an award which would both compensate it for the cost of repairs and also for the diminution in value.

There are no authorities that I can find which deal with this difficulty. Halsbury's Laws of Australia offers the following view (without citing authority) - For tortious damage to goods and chattels, the normal measure of compensation is the amount by which their value is reduced because of the damage. [footnotes omitted] That amount is usually calculated by adding the cost of repair to any residual diminution in value which may exist after the repair. There may also be consequential losses, such as the cost of hiring another chattel during the repair period.

(I am unable to identify the page reference, having obtained that quote online).

However, I am unable to see how the plaintiff can be restored to its pre-accident position unless it is indeed able to recover not only the cost of repairs, but also the diminution in value.

Having spent $33,649.29 repairing it, it would be patently unfair if it were confined to recovering no more than that amount. It would have a working vehicle again, but one worth $9,000.00 less than what it would have been worth if the police officers who collided with it had not done so. Such a result is obviously unfair, and I would not accept it unless I were confronted with authority directly in point obliging me to do so. I prefer to adopt the view expressed in Halsbury quoted above, and add the diminution in value to the repair cost.

16 In relation to the evidence of damage, the only person who gave evidence concerning the depreciation was Mr Bitsikas. In his original statement he said this concerning the value of the vehicle: [29] The car was sold at a significantly lower price than which I purchased it, primarily because it was evident that it had undergone major repairs and was not in its original condition as built by the factory.

[30] I have been buying and selling M3 prestige BMW motor cars for the last 15 years. I can say that generally, buyers who are made aware of a prestige vehicle being involved in a motor accident, are not prepared to pay a premium for the motor vehicle and it ordinarily is always sold for a significantly lower price than a vehicle which had not suffered any damage and is sold in its original form as built by the factory. 17 The Magistrate accepted that Mr Bitsikas had expertise in the matter. He said this in the second judgment: However, Mr. Bitsikas is an experienced dealer, and as pointed out by Mr. Voros he was not cross-examined regarding what he said at paragraphs 29 and 30 of his statement. Although vague, those paragraphs can only be interpreted in the light of his oral evidence as an assertion that he paid the going market price when he bought and that he sold for the best price he could get considering the vehicle had been in an accident. It had been in an immaculate condition when bought.

In my view, it is quite unnecessary for Mr. Bitsikas or anyone for the plaintiff to have dealt specifically with such matters as the average depreciation of vehicles caused by an accident. Mr. Bitsikas was plainly an expert, qualified through long experience and because he is a mechanic, and he gave his view, albeit in a rolled up fashion and without much detail. Mr. Davis sought to rely on the well-known observations in Makita v. Sprowles (2001) 52 NSWLR at page 85 regarding the need for experts to explain and expose their reasoning and the facts on which their opinions are based. However, unlike professor Morton in that case, who was cross-examined extensively, Mr. Bitsikas was not challenged regarding the views he expressed. (I accept that one need not accept expert evidence uncontradicted by cross-examination, even if it is plausible, but the lack of cross-examination on the critical issue entitles me to feel more confident about Mr. Bitsikas's evidence than I otherwise might).

I accept what Mr. Bitsikas said in evidence regarding the reasonableness of the price he paid and the price he got when he sold. If he had been cross-examined on the issue, Makita v. Sprowles and Panetta 26 MVR 332, relied on by Mr. Davis, might have required that Bitsikas better substantiate his reasoning, but he was not.

In addition to Mr. Bitsikas's own evidence, there is the statement of Mario Sandy. It too speaks of the diminution in value occasioned by the accident. He bought the car from the plaintiff for $75,000.00, and the only reasonable inference one can draw, in my opinion, is that he paid a reasonable market price which was less than it might have been but for the accident.

Mr. Davis drew attention to failings on the part of Mr. Bitsikas, constituted by he not having complied with the experts' code of conduct. The fact is that he was not challenged, and it is too late to now seek to attach fatal consequences to such failings.

The appeals 18 In both of the appeals the Police complained of 3 matters common to both proceedings as follows: 1. Holding the Plaintiff liable to the Defendant without making any finding that the drivers of the Plaintiff's motor vehicles had driven negligently.

Failing to determine critical issues of fact put forward for determination, including: (a (a) whether or not the Defendant opened the door of his car and then closed it before accelerating away, (b) whether the driver of police vehicle AJ 95 ZZ stepped out of his vehicle before the collision; (c) whether the Defendant's car left tyre marks on the road when it accelerated away; (d) when Detective Senior Constable Langdon Clarke drew his firearm.

Failing to provide adequate reasons. 19 In addition, in the Pabi Holdings proceedings, there were 2 further grounds of appeal as follows: 4. Admitting evidence in contravention of section 79 of the Evidence Act 1995 and the common law as it applies to expert evidence.

Awarding damages for depreciation. 20 Ground 1 in each appeal has been described as "the Negligence Point" by the Police, Ground 2 "the Facts Point" and Ground 3 "the Reasons Point". 21 The Defendants submit that the Negligence Point and the Facts Point both involve at best mixed questions of fact and law, that leave is required under s 40, and that no leave has been sought in the summons. 22 In relation to the Reasons Point the Defendants accept that this gives rise to a question of law but submits that his Honour's reasons were adequate.

The reasons are inadequate 23 I do not consider it is necessary to enter upon the debate concerning whether the Negligence Point and the Facts Point involve mixed questions of fact and law. I am of the firm opinion that the Magistrate's reasons in relation to the liability judgment are quite inadequate as they concern the issues he had to determine. 24 The principles to be applied concerning the adequacy of reasons have recently been stated by Sackville AJA (with whom McColl and Young JJA agreed) in Alchin v Daley [2009] NSWCA 418 where he said: [35] There was no dispute as to the principles to be applied in determining whether a trial Judge has given adequate reasons for making findings of fact. McColl JA stated the principles, supported by detailed citation of authority, in Pollard v RRR Corporation [2009] NSWCA 110. The principles articulated in that case were summarised in Qushair v Raffoul [2009] NSWCA 329, at [52], per Sackville AJA, with whom Campbell JA and Bergin CJ in Eq agreed (the paragraph references are to McColl JA's judgment in Pollard ): (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 (at [57]): see Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, at 442, per Meagher JA. (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 of appeal, where that facility is available (at [56]): see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, at 260, per Kirby P; at 269, per Mahoney JA. (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 (at [58]): see Soulemezis v Dudley , at 259, per Kirby P; at 280, per McHugh JA. This may require the judge to refer to evidence which is critical to the proper determination of the issue in dispute (at [62]): Beale v GIO , at 443, per Meagher JA. (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 (at [65]): Palmer v Clarke (1989) 19 NSWLR 158, at 170, per Kirby P (with whom Samuels JA agreed). (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 (at [67]).

[36] In Pollard , McColl JA also cited with approval a passage from the judgment of Ipp JA, with whom Mason P and Tobias JA agreed, in Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186, at 191-192 [28]. The passage, including the succeeding paragraph (at [29]) is as follows: It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: 'I believe Mr X but not Mr Y and judgment follows accordingly'. That is not the way in which our legal system operates. … Often important issues of credibility involve sub-issues. Often, objective facts, or facts that are probable, are capable of having significant bearing on the sub-issues. In cases of this kind, it is incumbent upon trial judges to resolve the sub-issues and to explain, by reference to the relevant facts, the conclusions to which they have come. This having been done, they should then turn to the ultimate facts in issue and explain how their decisions on the sub-issues have assisted them in forming a conclusion on the ultimate issue. It is only when adequate reasons of this kind are given that an unsuccessful party will be able to understand why the judge has believed his or her successful opponent". 25 The claims and counter claims in the present cases involved a motor vehicle accident involving 3 vehicles. The only matters that made it slightly out of the ordinary were, first, that one of the parties alleged in the alternative that the other had committed an intentional act although that intentional act appears to have been subsumed as a particular of negligence in the pleading, and secondly, that the accident involved police vehicles carrying out surveillance. Despite the second of these matters the Magistrate's duty was to determine how the accident was caused and whether one or more of the parties involved had been negligent or had caused the collision by a deliberate act. In doing so the Magistrate was obliged to make findings of fact about the mechanics of the accident so that his reasons for concluding that one side or another was negligent could be understood. 26 On 5 occasions during the judgment (noted in passages I have marked with bold) the Magistrate abdicated his responsibility by saying that he did not think it mattered to determine certain things and, in one case, saying that he did not care how something happened. 27 The Magistrate made only 3 findings. The first was that Mr Bitsikas misjudged the width of the gap between the 2 police cars in front of him when he endeavoured to drive away and was not negligent in that regard (first passage noted in italics). That finding, however, begs the question whether Mr Bitsikas should have been driving through a gap in the first place. 28 Secondly, the Magistrate found that the police lights and siren of the vehicle behind Mr Bitsikas were not seen or heard by Mr Bitsikas before the accident. 29 Thirdly, there was the finding contained in the last paragraph of the judgment where the Magistrate held that the police could have avoided the whole problem by parking further back down the street (second passage noted in italics). That was in fact a finding about the wisdom of the operation the police were conducting rather than a finding about whether the drivers of the motor vehicles involved in the accident had been negligent. 30 The Defendants submitted that his Honour clearly found that both police drivers were negligent given that both the vehicles and the officers were not identifiable as police, that the manner in which the vehicles were driven was reckless, that a gun was produced by one of the officers and that those matters led Mr Bitsikas to becoming frightened and seeking to evade what he thought was a dangerous situation. I do not think it flows from those matters that the Police were regarded as negligent by the Magistrate. Certainly, no specific findings were made about the way the police officers drove their vehicles except that the Magistrate found that the Mazda moved a bit to try to block Mr Bitsikas. He went on to say, however, that precisely what it did he did not know and did not care. 31 It did not follow that because Mr Bitsikas was not negligent in misjudging the width of the gap that that meant the police officers must have been negligent in causing the accident. It was possible, although unlikely that the accident could have happened without any person's negligence. It was certainly possible that both Mr Bitsikas and one or more of the police officers negligently contributed to the accident. 32 To reach a proper view about who was negligent the Magistrate needed to decide a number of subsidiary factual matters that were in issue between the parties. These included whether Mr Bitsikas stopped and opened his door before driving away in his vehicle, whether Detective Clarke had stepped out of his car before the collision, when it was that Detective Clarke drew his firearm, the position of the motor vehicles and which of them was moving and in what direction at the time of the accident. 33 Further, because there was a conflict of evidence between Mr Bitsikas and the police officers the Magistrate needed to provide adequate reasons why he preferred the evidence of Mr Bitsikas. Whilst he offered some reasons for preferring Mr Bitsikas (and in that regard I do not think the case falls into the category of cases discussed in Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 at [28]) the Magistrate offered no reasons for rejecting the reasonably consistent accounts of the accident by the 3 police officers involved. There may have been reason to do so (the investigating officer did not take statements from each of the officers at the scene, such statements were only prepared at a later time internally by the Police) but the Magistrate said nothing about why he rejected the evidence of the police officers. 34 This was the more significant when Mr Bitsikas ultimately accepted that only 2 police vehicles collided with his car and not 3 as his statement had asserted (passages highlighted). Further, he agreed in his evidence-in-chief that other aspects of the diagram he had produced were not accurate. In cross-examination he agreed that the account he had given to the policeman recorded in the policeman's notebook differed from what he had given in Court. 35 In those circumstances it is quite inadequate for the Magistrate to say that his giving evidence was spontaneous and he "sounded guileless". His acknowledged inconsistencies in accounts of the accident given by him had to be dealt with. 36 It is not possible for the losing party (the Police) in the present case to understand why they lost the proceedings. It is not possible for an Appeal Court to form a view about who might have been negligent when essential findings of fact have not been made. It is not possible for an Appeal Court to deal properly with the principles from cases like Abalos v Australian Postal Commission (1990) 171 CLR 167 and Fox v Percy (2003) 214 CLR 118 concerning the acceptance of witnesses. These are all clear indications that the reasons provided by the Magistrate in his first judgment are inadequate. Because the result must be that the matter is sent back to the Local Court to be re-heard it is not appropriate that I analyse the matters raised in the submissions going to the Negligence Point and the Facts Point.

Expert Evidence 37 The grounds of appeal in relation to the expert evidence are that the Magistrate wrongfully admitted evidence (given by Mr Bitsikas) in contravention of s 79 Evidence Act 1995, and in so doing awarded damages for depreciation. Whether damages can be awarded for depreciation in addition to repairs, as a matter of law, was not part of the challenge, so Mr Gow of counsel for the State of New South Wales, informed me. The 2 grounds, therefore, can be dealt with together. 38 The complaint is that Mr Bitsikas was not an expert witness and the evidence did not comply with the principles in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 nor the Expert Witness Code. Although Mr Gow informed me that the non-compliance with the Expert Witness Code was not a point taken before the Magistrate, the second judgment suggests it was (last paragraph in [17] above). 39 The Defendants tendered a statement of Mr Bitsikas on the circumstances of the accident (as I have noted earlier) and this statement contained the following 2 paragraphs: [29] The car was sold at a significantly lower price than which I purchased it, primarily because it was evident that it had undergone major repairs and was not in its original condition as built by the factory.

Paragraph 30, expert opinion, allowed. 41 Mr Gow tendered a supplementary page which recorded the exchange at the time of the objections as follows: JD I have an objection to paragraph 29. Expert Opinion. M But he's a motor vehicle wholesaler, as well as being a mechanic so he would have a bit of an expert opinion wouldn't he? JD Makita v Sprowles and also the Evidence Act requires the basis on which the Defendant proffers the opinion... M Well I agree, but that is something that can be fleshed out ... it doesn't really make it inadmissible. JD I understand. M It just means at the end of the day if he doesn't say anything there is no place to give further evidence ... Okay nothing else. No. JD Your Honour I just made a quick note on 30. Look I make the same objection. I simply make the same objection on 30. Your Honour is probably going to make the same ruling you made in 29. M Yes I will. Okay. 42 What was being complained of was that Mr Bitsikas had no expertise, and that paragraphs 29 and 30 of his statement did not set out the proper basis upon which an opinion was being given. 43 It is not necessary to set out the well-known parts of Makita. It is sufficient to note that Heydon JA said that an expert must furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions, [59], that the expert must prove by admissible means the facts on which the opinion is based or state explicitly the assumptions as to fact on which the opinion is based [64], with the result that the opposing party is not required to cross-examine in the dark to establish the factual assumptions underlying the expert evidence [62]. 44 There were, therefore, 2 problems with the so-called expert evidence. The first concerned Mr Bitsikas's expertise. The second concerned the form of the expert evidence. 45 At the time the statement was tendered the only evidence about Mr Bitsikas's expertise was contained in paragraph 30 of the statement. In my opinion, that evidence was completely inadequate to establish any expertise in Mr Bitsikas. 46 During the course of the evidence-in-chief of Mr Bitsikas this evidence was given: Q. You are a motor vehicle wholesaler, is that right? A. Yeah, that's right. Q. You've done it for almost fifteen years, I think? A. 1999? Eighteen years. Q. Eighteen years. Have you bought and sold BMW motor vehicles? A. Yes I have. Q. Have you bought and sold M3 motor vehicles? A. Yes I have. Q. Is there something special about an M3 as opposed to a normal BMW? A. Yeah, it's supposed to be a more sportier version.

Q. Is it more expensive because of that? A. Yes it is and the parts are completely different - completely different to a normal BMW. Q. Do you have your statement there? A. Yes. Which paragraph? Q. If I can firstly draw your attention to paragraph 28. It begins on page 4? A. Yeah.

Q. You say you sold the car to Statewide Wholesalers for $75,000? A. Correct. Q. Why if you bought the car for $84,000 did you sell it for $75,000 if you were in the business of making money? A. Because once a car of that calibre has been hit and you repair it, it'll never ever be worth the right - the real money again. Q. Why do you say that? A. Because of the experience that I've had and that I know every wholesaler when they buy a car the first thing they will say to you on the phone "Has it had paint?" Q. What does that mean, "Has it had paint"? A. "Has it had paint?" Is it the genuine paint or has the car had paint. If it's had paint it's been in some accident or something. Q. Where you asked that question prior to you selling it? A. Yes and I've got to say the truth because I deal with these wholesalers and I can't lie to them because if he finds out that the car did have paint he'll bring it straight back. That's the rule. Q. Are you as a wholesaler with some experience able to easily differentiate cars which have had paint, as you describe it, with cars which haven't had paint? A. I can. 47 In the second judgment the Magistrate determined that Mr Bitsikas was plainly an expert, qualified through long experience as a mechanic. 48 Section 79 Evidence Act permits opinion evidence that is wholly or substantially based on specialised knowledge that itself is based on the person's training, study or experience. The evidence shows that Mr Bitsikas was a mechanic (training) and that he had been a motor vehicle wholesaler for 18 years buying and selling BMW motor vehicles (experience). I do not think it could be said that it was not open to the Magistrate to conclude that Mr Bitsikas had sufficient expertise to provide opinion evidence about the issue of depreciation associated with vehicles involved in an accident. Although, in the first instance, paragraphs 29 and 30 should not have been admitted, if they had been re-tendered after Mr Bitsikas gave the evidence I have set out, I do not consider it could be said that the Magistrate erred in that regard. 49 The second question is whether the evidence itself satisfied the requirements of Makita v Sprowles and the Expert Witness Code. 50 There was, of course, no acknowledgement of the Expert Witness Code but that in itself did not seem to be an objection made at the hearing. 51 The real complaint, however, is that certain matters I have summarised in para [43] above from Makita v Sprowles do not appear in paragraphs 29 and 30 of the statement of Mr Bitsikas. Whilst the position is somewhat unusual in one of the parties giving expert evidence (it sometimes happens in professional negligence actions and is ultimately only a matter of weight if expertise is proved) a lot more would be needed than what is contained in those paragraphs. Paragraph 30 contains sweeping generalisations which do not necessarily rely on the expertise of Mr Bitsikas. Moreover, no reasoning process is set out that enables the reader to understand why the opinion has been expressed: Ocean Marine Mutual Insurance Association (Europe) OB v Jetopay Pty Ltd [2000] FCA 1463 at [23], a decision approved and followed in Makita at [86]. 52 Although the Magistrate noted that the opinion was given "in a rolled up fashion and without much detail" the Magistrate seems to have accepted it because there was no cross-examination. However, that is to approach the matter from the wrong perspective. The proper basis for the expert opinion needs to be there in the first place. If it is not it should not be admitted into evidence. 53 This was more significant where the person put forward as the expert was in fact one of the parties to the proceedings who had a distinct interest in the outcome. In that regard the failure to acknowledge the Expert Witness Code was a more serious departure than might otherwise have been the case. 54 The so-called expert evidence did not comply with the principles in Makita v Sprowles nor with the substance of what the Expert Witness Code required, regardless of the failure to acknowledge the Code. It should not have been admitted.

Remittal 55 During the course of argument I raised with the parties the question of remitting the proceedings to the Magistrate to deliver proper reasons. Upon reflection that does not seem to be an appropriate course. The parties were given the opportunity, of which they availed themselves, to put in supplementary written submissions about that procedure. I do not consider it is an appropriate procedure for these reasons. 56 First, the proceedings come to this Court by way of an appeal under s 39 Local Court Act 2007. Section 41(1) sets out the ways in which such an appeal may be determined. I do not consider that there is a power in those provisions to take the suggested course. Although the proceedings can be remitted to the Local Court for determination in accordance with this Court's directions, that is only after the judgment or order is set aside. 57 Secondly, and more particularly, the manner in which the Magistrate has expressed his first judgment points strongly to the fact that it would be inappropriate for the matter to be remitted to him on any basis, particularly for the provision only of adequate reasons. The use of the term "gun-toting policemen" on 3 occasions in the judgment suggests, not only a lack of the appropriate restraint which is expected from a judicial officer, but suggests that the Police would have a justifiable apprehension of bias if the matter was remitted to the Magistrate for any purpose. 58 In Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 Davies and Foster JJ said (at 42): If a decision has been set aside for error and remitted for rehearing, it will generally seem fairer to the parties that the matter be heard and decided again by a differently constituted tribunal. This is because the member constituting the Tribunal in the original inquiry or hearing will already have expressed a view upon facts which will have to be determined in the rehearing. The aggrieved party may think that a rehearing before the Tribunal as originally constituted could be worthless, for the member's views have been stated. Thus, if a decision of the Administrative Appeals Tribunal has been set aside and the matter remitted for rehearing, the President of that Tribunal ordinarily allocates to the rehearing a different member of the Tribunal. There are, of course, cases where it is convenient for the Tribunal as previously constituted to deal with the matter. And occasionally the Court expresses such a view, so as to make clear that it would not be improper for the Tribunal as previously constituted to consider the matter again. 59 In Sellers v Marchant [2008] NSWSC 120 Price J had reason to cite that passage with approval in a case where a magistrate had refused to recuse on the remittal of a matter that he had first heard before the appeal. Price J said: [13] …The judgments, … had been set aside in their entirety which required the proceedings to be re-determined. Moreover, as his Honour's reasons were inadequate, it is impossible to determine how his assessment of the honesty and reliability of the witnesses had impacted upon the ultimate decisions which he made.

[14] It seems to me that this is a case where, if the proceedings continued before his Honour and the judgments remained the same, it would be very difficult to persuade a reasonable person in the shoes of the aggrieved plaintiff that justice had been done. A reasonable apprehension of bias by reason of prejudgment in my opinion has been firmly established. An error of law has been identified. The proceedings are to be remitted to another Magistrate for hearing. 60 It seems to me that a similar situation obtains in the present case with the added factor that the Magistrate has made a credibility finding, albeit with inadequate reasons, that make it appropriate that the case be heard again by another Magistrate. 61 Mr Bolster of counsel for the Defendants drew my attention to what was said by Young JA in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178 at [121] on whether an Appeal Court should remit a matter to a different judicial officer. At that passage Young JA sets out 9 guidelines. It seems to me that three and possibly four of those guidelines are very relevant in the present case. They are: (5) It may well be a ground for remitting a matter to a differently constituted court or tribunal where there have already been strong findings about the credibility of a party; see eg Smith v New South Wales Bar Association (1992) 176 CLR 256 at 269 per Brennan, Dawson, Toohey and Gaudron JJ. (6) If there has been stringent criticism of the judge or tribunal member in the appeal court, the appearance of justice might recommend that the matter be remitted to a fresh mind: Brackenreg v Comcare Australia (1995) 56 FCR 335 at 352 per Sheppard J. (7) If there is a reasonable likelihood that a judicial officer or tribunal member will be perceived to have pre-judged an issue to be remitted to him or her, the matter should be remitted to a fresh mind: Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189; (2003) 126 LGERA 339 at 345 per Tobias JA with whom Handley and Ipp JJA agreed.

(8) If the appeal hearing throws up a reasonable suggestion of bias in the original decision maker, remittal to a different person will be ordered: Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; (2007) 155 LGERA 52 per Tobias JA at 73. 62 In the light of the Magistrate's assessment of credibility of Mr Bitsikas, and in the light of his 3 references to "gun-toting policemen" it seems that guidelines (5), (6) and (7) and possibly (8) apply so as to justify a decision to remit the matter to be heard by a different Magistrate.

(2) The judgments of the Local Court of 30 September 2008 and 22 January 2009 be set aside.

(3) In lieu thereof, order that the proceedings are remitted to the Local Court to be heard and determined according to law by another Magistrate.

(4) The costs of the proceedings before Magistrate Pierce in the Local Court to be the costs at the further hearing.

(5) The Defendants are to pay the Plaintiff's costs of this appeal.

(6) The Defendants are to have a certificate under the Suitors Fund if otherwise so entitled.

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.

(2003) 126 LGERA 339

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