Supercharge Batteries Pty Ltd v Ozkirici - [2016] NSWSC 928 - NSWSC 2016 case summary — Zoe

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Supercharge Batteries Pty Ltd v Ozkirici

[2016] NSWSC 928

Supreme Court of NSW|2016-06-07

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2016-06-07

Source

Original judgment source is linked above.

Judgment (21 paragraphs)

[1]

Judgment

HER HONOUR: This is an appeal from a decision of his Honour Local Court Magistrate Pierce involving a motor vehicle accident. The parties had agreed on quantum in relation to both vehicles. The proceedings raised issues of narrow compass in relation to liability.
In the Local Court, the Magistrate decided liability in favour of the plaintiff, Ms Ozkirici and entered judgment in her favour in the sum of $24,164.75.
By summons filed 24 November 2015, the first and second plaintiffs seek orders that firstly, leave be granted to appeal from the whole of the decision below; secondly, the appeal be allowed; thirdly, the orders of the Court below be set aside; fourthly, a verdict for the first plaintiff and second plaintiff be entered against the defendant in both proceedings below; and fifthly, in the alternative to orders 3 to 4, that the matters be remitted to the Local Court for rehearing according to law by a court differently constituted.
The first plaintiff is Supercharge Batteries Pty Ltd ("Supercharge Batteries"). The second plaintiff is John Ward. The first and second plaintiffs were the first and second defendants in the Local Court proceedings. The defendant is Rahsan Ozkirici who was the plaintiff in the Local Court proceedings. For convenience and ease of understanding, I will refer to the parties by name. Supercharge Batteries and Mr Ward relied upon the affidavit of Josh Ackland dated 3 March 2016. Ms Ozkirici did not rely on any affidavit evidence. A court book was provided to this Court.

[2]

[6]

The pleading framework

There are two statements of claim, one cross claim and various defences filed. By her first statement of claim filed on 16 February 2015 (Local Court matter number 2015/49469), Ms Ozkirici claimed that the collision was caused by Mr Ward's negligence and that Supercharge Batteries and Mr Ward were liable to reimburse her for the hire car charges that she incurred following the collision while her motor vehicle was being repaired.
By defence filed 16 March 2015, Supercharge Batteries and Mr Ward denied that Mr Ward was negligent and denied liability for the hire car charges that were claimed by Ms Ozkirici.
By her second statement of claim filed 4 August 2015 (Local Court matter number 2015/227181), Ms Ozkirici claimed that Supercharge Batteries and Mr Ward were also liable to pay the costs she incurred to repair the damage caused to her vehicle on the basis that the collision was caused by Mr Ward's negligence.
By defence filed 26 August 2015, Supercharge Batteries and Mr Ward denied that Mr Ward negligently drove Supercharge Batteries' vehicle in such a way as to cause the collision. They alleged that the claim is an apportionable one (Part 4 of the Civil Liability Act 2002 (NSW)) and that their liability is limited to the amount reflecting the proportion of damage or loss claimed that the Court considers just having regard to the extent of Supercharge Batteries' and Mr Ward's responsibility (if any) for their damage or loss. Supercharge Batteries and Mr Ward particularised Ms Ozkirici's concurrent wrongdoing. The particulars were that she (a) failed to keep her vehicle under control at all times; (b) failed to keep an alert and proper lookout; (c) failed to give way; (d) failed to follow traffic signals at the intersection; (e) failed to swerve, brake or take other evasive action to avoid the collision; (f) drove at a speed that was excessive in the circumstances; (g) failed to take reasonable care; (h) drove in a dangerous manner and without regard or sufficient regard to the safety of other road users, including Mr Ward; (i) collided with Supercharge Batteries' vehicle; and (j) failed to comply with NSW Road Rules (Def, 26/8/2015, [8]).
By cross claim filed 16 March 2015 in matter number 2015/49469, Supercharge Batteries and Mr Ward claimed Ms Ozkirici was liable to pay the damage caused to Supercharge Batteries' vehicle on the basis that the collision was caused by her negligence.
On 27 April 2015, Ms Ozkirici filed a defence to the cross claim denying that she was negligent or liable to the plaintiffs.
The Local Court directed that both proceedings be consolidated with evidence in one being evidence in the other.

[7]

The hearing in the Local Court

On 28 October 2015, the Local Court proceedings were heard before the Magistrate.
At the hearing the parties tendered a Statement of Agreed Facts and Issues (Ackland Aff, 3/3/2016, Ex JA-1, 78). No mention was made of contributory negligence being in issue. The parties accepted and agreed on the quantum of damages each claimed for the repair of each vehicle. Supercharge Batteries and Mr Ward also agreed on the quantum of damages Ms Ozkirici claimed for hire car charges.
The parties agreed that (1) shortly before the collision Mr Ward was driving Supercharge Batteries' vehicle along Horsley Drive in an easterly direction towards the Horsley Drive intersection with Hassall/Gibbs Streets and (2) the collision occurred when Ms Ozkirici, who had been driving in a westerly direction along Horsley Drive, turned right from Horsley Drive into Hassall Street across the path of Mr Ward's vehicle as his vehicle proceeded through the intersection.
The parties agreed that the only issues for the court to determine was: 1. Whether Ms Ozkirici failed to give way to Mr Ward's vehicle when she turned right into Hassall Street; and 2. Whether Mr Ward failed to stop at a red light when he entered the intersection.
In her opening address the solicitor for Ms Ozkirici stated: "Essentially, the parties agreed that the primary issue in dispute, this is a collision which took place at an intersection, the plaintiff says that she turned right into the intersection on a green arrow and the defendant must have crossed a red light, who was travelling straight. The defendant says the plaintiff failed to give way to his vehicle which was travelling straight through the intersection. Put simply, those are the two - that's the primary issue that your Honour will need to determine today." (T1.20-27.)
Ms Ozkirici relied on her statement dated 26 October 2015, a statement of Tim Warren dated 18 August 2015 and a statement of Michael Douaihy of Exclusive Mechanical and Smash Repairs Pty Ltd dated 25 August 2015. Supercharge Batteries and Mr Ward relied upon Mr Ward's statement dated 28 October 2015, Rosello Marquez's statement dated 23 October 2015 and the Traffic Light Phasing Report ("the Phasing Report") produced under subpoena by the Roads and Maritime Services in respect of the Horsley Drive and Hassall/Gipps Street intersection ("the intersection").

[10]

Mr Ward

Mr Ward relied upon his statement dated 28 October 2015. He gave evidence and was cross examined. His version of events is as follows: 1. on 13 August 2014 he was driving Supercharge Batteries' vehicle in an easterly direction along Horsley Drive in the left lane towards the intersection with Hassall/Gipps Streets ([3]); 2. Mr Ward intended to drive his vehicle straight through the intersection and continue driving along Horsley Drive ([3]); 3. he had driven on Horsley Drive many times before 13 August 2014 and was aware of the intersection, the traffic lights and the presence of a red light camera at the intersection ([7]); 4. as his vehicle approached the intersection he was presented with a green round light ([8]); 5. when he was about 50 metres from the intersection he observed Ms Ozkirici's vehicle on Horsley Drive facing the opposite direction to Mr Ward, approaching the intersection displaying the vehicle's right indictor ([9]); 6. Mr Ward took his foot of the accelerator as he approached the intersection as it appeared to him that Ms Ozkirici's vehicle was not going to stop and may turn right in front of his vehicle ([9]); 7. when it appeared to Mr Ward that Ms Ozkirici's vehicle was stopping at the intersection, he put his foot back on the accelerator and continued to enter the intersection ([9]); 8. the green round light in front of Mr Ward changed to an amber round light approximately one second before he entered the intersection ([9]); 9. immediately before he entered the intersection, Ms Ozkirici's vehicle turned right into Hassall Street ([10]); 10. although Mr Ward applied the brakes, he was unable to prevent his vehicle from colliding with Ms Ozkirici's vehicle ([10]).
At the hearing Mr Ward gave the following evidence: 1. he saw the green traffic light when he was about 200 to 300 metres from the intersection (T19.16-19); 2. he saw Ms Ozkirici's vehicle when he was about 50 metres from the intersection (T19.33-36); 3. when he saw Ms Ozkirici at the traffic lights it looked like she was going to turn and she started to turn but then hesitated and stopped her vehicle (T19.9-10); 4. he slowed his vehicle (T19.10-11) by taking his foot off the accelerator, which engaged the exhaust brakes (T20.5-7); 5. he denied the green signal changed to amber more than one second before he entered the intersection and he could vividly remember the white line in front of him as he entered the intersection (T20.42-45). He denied misjudging how far he was in metres from the intersection when the green signal changed to an amber signal (T21.1-3); 6. Mr Ward vividly remembered that when Ms Ozkirici began to drive her car across the intersection, vehicle was not back at the white line but was in the middle of the intersection (T30.21-29; T30.31); 7. Mr Ward's vehicle had entered into the intersection by about 1 to 2 metres when Ms Ozkirici turned across his path (T24.43-49).

[11]

Ms Ozkirici

Ms Ozkirici relied upon her statement dated 26 October 2015. She gave evidence and was cross examined. Her version of events is as follows: 1. Ms Ozkirici was in the right lane of Horsley Drive intending to turn right at the intersection into Hassall Street ([10]); 2. as she was approaching the intersection she noticed that there was a red light displayed and brought her vehicle to a complete stop ([13]); 3. her vehicle was the first vehicle stopped in the right hand lane at the intersection ([14]); 4. while she was stationary there were cars travelling alongside her vehicle in the left hand lane proceeding straight through the intersection in a westerly direction along Horsley Drive ([15]); 5. she was stationary at the intersection for about 20 seconds before a green right turn arrow was displayed ([16]); 6. when the green arrow came on she began to turn right into Hassall Street ([17]); 7. while she turned, a truck travelling in the opposite direction collided into the front left side of her vehicle ([19]); 8. the force of the impact pushed her vehicle approximately 90 degrees to the right ([20]).
At the hearing Ms Ozkirici gave the following evidence: 1. when she was stationary at the intersection the lights showed a green round circle for cars travelling along Horsley Drive and a red arrow preventing her from turning right (T5.39-43); 2. cars were passing her in the left lane as she was waiting for the red arrow to turn green (T10.6-7); 3. she clearly remembered a red arrow for cars turning right (T12.17); 4. after the collision she checked her son was okay, then turned and looked at the lights and saw a green round light and a green arrow (T7.20-22); 5. she said that the lights could only be green for her and could not be green for both her and Mr Ward (T10.37-39); 6. she was proceeding when she saw the green light and was turning at about 10 km per hour, perhaps 10 or 15 km per hour. She remembers the truck going at least 30 to 40 km per hour as it travelled towards and collided with her vehicle (T6.45-50; T7.1). As she was turning, she saw his vehicle coming and not braking (T13.34-35); 7. she saw Mr Ward's vehicle just before the point of impact (T13.37-38); 8. Mr Ward's vehicle was in the intersection with Ms Ozkirici's when she saw his vehicle (T13.40-42).

[12]

The parties' closing submissions

Supercharge Batteries and Mr Ward submitted that: 1. Ms Ozkirici's evidence that she was waiting at the lights with a red arrow while cars were travelling on her left directly through the intersection along Horsley Drive, was consistent with the traffic lights being in Phase "A"; 2. it was most likely that the collision occurred when the lights were in Phase "A" when Ms Ozkirici attempted to turn right through a gap in the traffic that was travelling in the opposite (easterly) direction along Horsley Drive (T32.5-18); 3. as Ms Ozkirici turned across the intersection, she paused. Mr Ward slowed as he approached the intersection and then proceeded to drive into the intersection as Ms Ozkirici appeared to stop and the green light changed to amber. The collision occurred as Ms Ozkirici drove across the intersection towards Hassall Street (T31.5-10; T34.45-50); 4. Ms Ozkirici was not looking and did not see Mr Ward's vehicle until immediately prior to the collision after she had turned and could not therefore argue that she would not have turned in front of a truck (T34.1-8); 5. as Mr Ward was driving through an amber light he did not have to give way to Ms Ozkirici's vehicle (T36.9); 6. if Ms Ozkirici's evidence was accepted (that she only drove across the intersection after a green arrow was displayed), a period of over eight seconds must have passed, during which the green signal presented to Mr Ward changed to an amber signal for four seconds, then to a red signal for two seconds (total six seconds). Two seconds after this a green arrow was displayed to Ms Ozkirici in Phase B, before Mr Ward's vehicle collided with Ms Ozkirici's vehicle in the intersection (T31.43-T32.1); 7. having regard to the Phasing Report, Mr Ward would have been presented with an amber signal when his vehicle was about 130 metres from the intersection (T31.39-50; T32.1; T34.31-2); 8. Mr Ward's evidence and the evidence of the timing of the traffic light phases did not support findings that the light must have changed to amber and then red when Mr Ward was 130 metres away from the light and that he therefore must have paid no attention to the changing lights (T38.11-14; T38.19-21); and 9. Ms Ozkirici's assertion that Mr Ward was, in the words of the Magistrate, "for about six seconds just barrelling along just trying to make it and he goes through on the red" light was not consistent with Mr Ward's evidence of having slowed down or the Phasing Report or the extent of damage to Ms Ozkirici's vehicle (T45.3-7).
It was submitted for Ms Ozkirici at the hearing that: 1. Ms Ozkirici turned right into Hassall Street on a solid green arrow (T43.25); 2. the issue that his Honour had to determine was whether the arrow had turned green for Ms Ozkirici to turn right into Hassall Street and whether the amber light presented to Mr Ward well before he said it did (T43.27-31); 3. the amber light was presented to Mr Ward well before he reached the intersection and Mr Ward drove through the intersection after he was presented with a red signal (T43.30-32); 4. it was not implausible that Mr Ward would have seen the amber light six seconds away from the intersection (T43.47-8); and 5. the right arrow Ms Ozkirici was faced with was possible and plausible based on the Phasing Report (T44.25-27).

[13]

The Magistrate's reasons

During the course of the parties' closing submissions, there was some interactive exchanges between the Magistrate and the party making submissions wherein the Magistrate asked some questions and revealed some of his reasoning that were relevant to the factual findings expressed in his ex tempore reasons. In particular the Magistrate pointed out that "if your bloke [Mr Ward] is right and he hasn't got any vehicle to his right, she's looking straight out, a clear view, there's only him. He's in the left most lane as he approaches her. So she turns to make sure he hits her." (T33.40-2.) The Magistrate acknowledged that so far as Ms Ozkirici's estimate of Mr Ward's speed at 30 to 40 km per hour was concerned, that estimate may be completely wrong. The Magistrate explained that people making an estimate of the speed of a truck coming towards them after the event are not very good at estimating how fast the truck was actually going (T32.38-47). Further, the Magistrate accepted that Ms Ozkirici did not see the truck but reasoned that she may have been distracted because "otherwise you do not [drive] in front of a truck" (T34.19-20).
The Magistrate's ex tempore reasons for his decision are relatively short. His Honour stated: "HIS HONOUR: The plaintiff succeeds both on the claim and the cross-claim. Doing the best I can to try to work out what is inherently logical about the two versions, I think the position is this. She, if I can be forgiven for just using the pronoun for the sake of brevity, she, if in fact she has a red arrow and I do not think green discs for both are practical, if she had a red arrow it means that with her child in the car and sitting there ready to turn she turns on a red arrow when there is a quite large and obviously very dangerous truck coming towards her at some speed, 30/40 ks. I do not mean it is going very fast but even 30/40 ks is dangerous when it is a truck because it obviously got a great deal of momentum, it means that she has a red arrow and she turns into it in a position of extreme danger to herself. He, the defendant, says that the light actually goes orange or yellow a second before he is in the intersection and the fairly low speed of the collision makes it clear that he is indeed very close to her as she turns. I think it is much more likely rather than that she took such a suicidal turn in the face of an oncoming truck, it is much more likely that the defendant's yellow light presented itself to him when he was back quite a few metres, maybe 50, 60, 70, whatever it might be and he hesitated, slowed a bit and then continued again thinking she was waiting, but she was not waiting. She turned on the green arrow. That is what is probable. I do agree that each of them were as to their manner of giving evidence, demeanour and manner, were quite believable, so all we can do is try to look at the inherent logic of the situation and even the parties themselves remembering back will not necessarily recall accurately, completely accurately what occurs because shock into it enters when you have a collision. I think that is likely." (T46.45-50; T47.1-23.)

[14]

Obligation to provide sufficient reasons

It is not in dispute that a Magistrate is obliged to provide adequate reasons and to not do so constitutes an error of law: see Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449 at [41] per Santow JA.
There are many decisions on the topic of the judicial obligation to provide reasons. I need only mention a few.
So far as a collision between two motor vehicles is concerned, the comments of Hall J in Walker v Lee [2011] NSWSC 108 at [98] are pertinent where he stated: "… It is unnecessary in a case such as the present involving a collision between two vehicles for a Magistrate to give an elaborate discussion of the evidence and the issues raised in the course of cross-examination of the witnesses."
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, McHugh J at 281 stated: "In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of mixed fact and law. 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 plaintiffs 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."
Finally, in Bradley v Matloob [2015] NSWCA 239; 72 MVR 194 Leeming JA stated: "[17] It is well established that where there is a real conflict in the evidence, it is necessary to "engage with, or grapple or wrestle with the cases presented by each party": see for example Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [116], Coote v Kelly [2013] NSWCA 357 at [39]-[52] and Keith v Gal [2013] NSWCA 339 at [109]-[119]. As was said in Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd [2015] NSWCA 73 at [53], the point of the metaphor of "grappling" is that it is not sufficient to set out the conflicting evidence and conclude, without analysis, that the judge prefers one body to another: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186 at [28]. There are two overlapping reasons for this. The first appears from the often quoted statement by McColl JA in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [66]: 'Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried.' [18] The second emerges from the opening paragraph of the joint reasons of Mason P, Ipp and Tobias JJA in Whalan v Kogarah Municipal Council [2007] NSWCA 5 at [1]: '[J]udges' duties to give reasons are ... designed to ensure that a judge wrestles adequately with the issues in the case, to enable appellate accountability and to provide basic fairness to the losing party.'"
The issue here is whether the Magistrate engaged or grappled or wrestled with the cases presented by each party.

[15]

Submissions

Supercharge Batteries and Mr Ward submitted that the Magistrate erred in: (a) failing to give any, or to give any adequate, reasons for the decision in relation to liability; and (b) finding that Ms Ozkirici had proved on the balance of probabilities that the collision occurred as a result of Mr Ward driving through a red light, given that such a finding was not supported by all of the evidence.
Counsel for Supercharge Batteries and Mr Ward submitted that having regard to all of the evidence, the Magistrate erred in finding that Ms Ozkirici had proved on the balance of probabilities that the collision occurred as a result of Mr Ward having driven through a red light. The main point of contention is that the Magistrate failed to give appropriate and proper weight to the Phasing Report evidence in finding that Mr Ward drove through a red light to cause the collision.
Counsel for Supercharge Batteries and Mr Ward said that the Magistrate's reasons give no explanation as to the reasoning process that the Magistrate applied in determining that he did not think green discs for both Mr Ward and Ms Ozkirici were practical in circumstances where: (a) the plaintiffs relied on the Phasing Report to establish that both drivers could have been presented with green discs in Phase A; and (b) the plaintiffs submitted that Mr Ward's evidence supported a finding that Ms Ozkirici drove into the path of Mr Ward's vehicle when both drivers were presented with a green or amber disc at the end of Phase A and before Phase B had commenced and that Ms Ozkirici had therefore failed to give way to Mr Ward.
It was further submitted by counsel for Supercharge Batteries and Mr Ward that the sole focus of the Magistrate's reasoning process was the likelihood of Ms Ozkirici making a suicidal turn across a red arrow in the face of an oncoming truck. However, Ms Ozkirici's evidence was that she did not see Mr Ward's truck prior to turning across its path. If the Magistrate did not accept this aspect of Ms Ozkirici's evidence, counsel says that his Honour needed to explain how he considered and dealt with that evidence in finding that it was likely that Ms Ozkirici would not have made a suicidal turn into the path of an oncoming truck.
According to counsel for Supercharge Batteries and Mr Ward, the Magistrate's reasons fail to refer to, address or explain how his Honour dealt with the evidence of the Phasing Report, the basis upon which he found that the collision occurred when the traffic lights were in Phase B and Mr Ward's evidence which supported a finding that the collision occurred when the traffic lights were in Phase A. Counsel says that the Magistrate's reasons also gave no consideration to the evidence of the Phasing Report other than his statement that "I do not think green discs for both are practical" (T46.48-49).

[17]

Conclusion

Starting with the opening address, it was agreed that the Magistrate had to decide on the balance of probabilities whether Ms Ozkirici failed to give way to Mr Ward's vehicle when she turned right into Hassall Street or whether Mr Ward failed to stop at a red light when he entered the intersection.
The Magistrate set out brief summaries of each parties' versions of events. From the Phasing Report, the Magistrate considered that both traffic lights displayed to the eastbound and westbound vehicles could have had green signals, or as the Magistrate termed them, "green discs". That is the situation where both Ms Ozkirici and Mr Ward had green signals (Phase A). There are six seconds between Phase A and B, comprised of an amber signal of four seconds duration and a red signal of two seconds duration. Phase B occurs when a green signal and a green right turn arrow are displayed to westbound vehicles in Horsley Drive.
As the Magistrate had earlier stated, a witness' estimate of speed can be inaccurate. While his Honour acknowledged that both Ms Ozkirici and Mr Ward were "quite believable", the Magistrate explained that it did not mean that they had completely accurate recall. In these circumstances, his Honour decided to adopt the approach that required him to look at the inherent logic of the situation. The parties' accounts of the collision involved estimates of Mr Ward's speed, what distance he was from the intersection when the traffic light facing him turned amber, as well as a six second timeframe that separated Phases A and B. The Magistrate stated that two green discs are not practical, meaning that the traffic light phasing was at the end of Phase A, moving into Phase B. His Honour then stated that if the light actually turned amber a second before Mr Ward was in the intersection and considering the fairly low speed of the collision, it was clear that Mr Ward was indeed very close to Ms Ozkirici as she turned.
Earlier during oral submissions, the Magistrate accepted that Ms Ozkirici did not see the truck but reasoned that she may have been distracted because "otherwise you do not drive in front of a truck." This led his Honour to decide that, rather than Ms Ozkirici taking such a suicidal turn in front of an oncoming truck, it was much more likely that Mr Ward's yellow light presented itself to him when he was back quite a few metres, maybe 50, 60, or 70 metres, and he hesitated, slowed a bit and then continued again thinking Ms Ozkirici was waiting. However she was not waiting. She turned on the green arrow and the Magistrate considered that this is what was probable. The Magistrate made a positive finding that Ms Ozkirici turned on a green arrow. This accords with the Phasing Report that the traffic lights were in Phase B. I accept that the Magistrate did not specifically refer to Phases A and B of the Phasing Report but it was clear from submissions that Ms Ozkirici was submitting that she turned on the green arrow when the traffic lights were in Phase B whereas Supercharge Batteries and Mr Ward submitted that Mr Ward went through an amber light which was in accordance with Phase A. As these were the only two alternatives it was not necessary for the Magistrate to specifically refer to the Phasing Report in his judgment.
The issues in dispute were of narrow compass. As this is a case involving a collision between two motor vehicles, his Honour was not required to give an elaborate discussion of the evidence and the issues raised in the course of cross examination of the witnesses. His Honour grappled with the issues presented by both parties. In my view the Magistrate has provided sufficient reasons for his decision. This ground of appeal fails.

[18]

Contributory negligence

In the Statement of Agreed Facts and Issues, the parties did not refer to contributory negligence as an issue in dispute. In her opening address, Ms Ozkirici's solicitor did not mention contributory negligence as being an issue in dispute, stating that the parties agreed that the "primary issue in dispute" was whether Ms Ozkirici crossed the intersection on a green arrow, meaning Mr Ward crossed on a red light, or whether Ms Ozkirici failed to give way to Mr Ward's vehicle which was travelling straight through.
I accept that Supercharge Batteries and Mr Ward had pleaded that the claim is a proportional one pursuant to Part 4 of the Civil Liability Act and that they pleaded that Ms Ozkirici was guilty of contributory negligence and provided particulars thereof.
Nothing was said by counsel for Supercharge Batteries and Mr Ward in relation to Ms Ozkirici's contributory negligence. Ms Hamden, solicitor for Ms Ozkirici, submitted as follows in closing submissions: "HAMDEN: Simply putting it on the record that it has been pleaded that from the plaintiff's point of view if your Honour doesn't accept that there was a green solid arrow and if your Honour accepts that there was a green disc and according to the defendant the plaintiff was waiting to turn right into the intersection, on the defendant's evidence the defendant was well aware of the plaintiff being in the roadway from a very long-- HIS HONOUR: You reckon contri[butory] neg[ligence]? HAMDEN: That's right. Just putting it on the record." (T46.21-30).
An appellant is bound by the issues it raises and the manner in which it conducts proceedings in the court below. In Coulton v Holcombe (1986) 162 CLR 1 at 7; 65 ALR 656 at 660, Gibbs CJ, Wilson, Brennan and Dawson JJ observed: "…It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish."
In my view, counsel for Supercharge Batteries and Mr Ward had submitted that the sole issue for determination was whether Ms Ozkirici either crossed the intersection on a green arrow, meaning Mr Ward crossed on a red light, or failed to give way to Mr Ward's vehicle, which was travelling straight through the intersection. Supercharge Batteries and Mr Ward were bound by the way their case was conducted. Thus the Magistrate was not obliged to provide reasons as to whether any contributory negligence should have been apportioned to Ms Ozkirici. This ground of appeal also fails.

[19]

(2) Whether leave to appeal on a question of mixed law and fact should be granted

The second ground in the summons is that the Magistrate erred on a finding of mixed law and fact (s 40 of the Local Court Act) when he found for Ms Ozkirici against Supercharge Batteries and Mr Ward in circumstances where the findings were not supported by the evidence presented by the parties at the hearing.
In summary, grounds a(i), (iii) and (iv) are that the Magistrate went outside the statement of agreed facts and issues and grounds a(v) to (ix) are that the Magistrate made findings contrary to the evidence. Grounds a(ii) and (x) were not pressed. Some of the other matters raised under this ground repeat the alleged failure to give reasons. This ground of appeal has already been dealt with.
It has to be determined whether leave to appeal should be granted. Supercharge Batteries and Mr Ward seek leave to appeal on a question of mixed law and fact pursuant to s 40(1) of the Local Court Act. The defendant opposes such leave being granted.
In Be Financial Pty Ltd v Das [2012] NSWCA 164, the Court of Appeal set out the principles to be considered in deciding whether leave to appeal should be granted. At [32], [33] and [35] Basten JA stated: "[32] The principles governing cases such as these have recently been restated in Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56. As Campbell JA noted (with the agreement of Young JA) at [22]: 'It is of some importance to reiterate the principles that were stated in Carolan v AMF Bowling Pty Limited [1995] NSWCA 69, where Sheller JA said that an applicant for leave must demonstrate something more than that the trial judge was arguably wrong in the conclusion arrived at. Cole JA relied on a principle that where small claims are involved, it is important that there be early finality in determination of litigation, otherwise the costs that will be involved are likely to swamp the money sum involved in the dispute.' [33] In Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Campbell JA, with the agreement of Young and Meagher JJA, expanded on his summary of Carolan, noting that Kirby P had recognised 'that ordinarily it was appropriate to grant leave to appeal only concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond [what is] merely arguable': at [46]. … [35] In Coulter v The Queen [1988] HCA 3; 164 CLR 350, dealing with a challenge to a refusal of the South Australian Full Court to grant leave to appeal in a criminal matter, the majority noted that a leave requirement was a preliminary procedure 'recognised by the legislature as a means of enabling the court to control in some measure the volume of appellate work requiring its attention': at 356 (Mason CJ, Wilson and Brennan JJ). That statement is clearly applicable to civil, as well as criminal, appellate jurisdiction."
The issues raised in this appeal are not matters of public importance. Nor has there been a miscarriage of justice. The grounds of appeal are weak. It would be unusual if the agreed statement of facts, at least so far as the law is concerned, would trump what is alleged in the pleadings. Further, there were facts upon which the Magistrate was entitled to make the findings he did. Finally, the amounts in dispute are $20,446.21 (including interest and costs) if Ms Ozkirici succeeded on liability and $18,102.95 (including interest and costs) if Supercharge Batteries succeeded on liability. These are modest sums, particularly when one takes into account that both parties have expended legal fees in a defended hearing in the Local Court and further costs on appeal.
For these reasons, in the exercise of my discretion, I decline to grant leave to appeal.
The result is leave to appeal on a mixed question of law and fact is refused. The appeal is dismissed. The decision of his Honour Magistrate Pierce dated 28 October 2015 is affirmed. The summons filed 24 November 2015 is dismissed.
Costs are discretionary. Costs usually follow the event. The plaintiffs are to pay the defendant's costs on an ordinary basis as agreed or assessed.

Supercharge Batteries Pty Ltd v Ozkirici

At a glance

Court

Decision date

Source

Judgment (21 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (18)