Supercharge Batteries Pty Ltd v Ozkirici

1. [1]

   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.

2. [2]

   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.

3. [3]

   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.

4. [4]

   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.

The appeal

1. [5]

   Section 39(1) of the Local Court Act 2007 (NSW) provides that a party who is dissatisfied with a judgment or order of the Local Court may appeal to the Supreme Court, but only on a question of law.

2. [6]

   Section 40(1) of the Local Court Act provides that 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.

3. [7]

   Section 41(1) of the Local Court Act provides that this Court may determine an appeal either (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.

Grounds of appeal

1. [8]

   Supercharge Batteries and Mr Ward appeal against the whole of the decision of his Honour Magistrate Pierce (“the Magistrate”) dated 28 October 2015 on two main grounds. The first ground raises a question of law. The second ground raises a question of mixed fact and law that requires leave being granted. I shall deal with the first ground of appeal and then the second ground if necessary.

Background

1. [9]

   In the Local Court proceedings, Ms Ozkirici sought damages against Supercharge Batteries and Mr Ward in respect of a motor vehicle collision between Ms Ozkirici’s vehicle and Supercharge Batteries’ vehicle (an Isuzu truck registration number XX) that occurred on 13 August 2014 at the intersection of Horsley Drive and Hassall/Gibbs Streets, Smithfield NSW.

2. [10]

   At the time of the collision, Mr Ward was employed by and was the driver of Supercharge Batteries’ vehicle.

The pleading framework

1. [11]

   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.

2. [12]

   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.

3. [13]

   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.

4. [14]

   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]).

5. [15]

   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.

6. [16]

   On 27 April 2015, Ms Ozkirici filed a defence to the cross claim denying that she was negligent or liable to the plaintiffs.

7. [17]

   The Local Court directed that both proceedings be consolidated with evidence in one being evidence in the other.

The hearing in the Local Court

1. [18]

   On 28 October 2015, the Local Court proceedings were heard before the Magistrate.

2. [19]

   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.

3. [20]

   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.

4. [21]

   The parties agreed that the only issues for the court to determine was:

5. [22]

   In her opening address the solicitor for Ms Ozkirici stated:

6. [23]

   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”).

The Phasing Report

1. [24]

   The Phasing Report confirmed that on 13 August 2014, the traffic lights at the intersection had 5 phases (“A” to “E”).

2. [25]

   The argument centred upon whether the accident occurred during the end of Phase “A” or the beginning of Phase “B”. On the day of the accident at the junction of the intersection, Phases “A” and “B” were as follows:

3. [26]

   The report explains:

Mr Ward

1. [27]

   Mr Ward relied upon his statement dated 28 October 2015. He gave evidence and was cross examined. His version of events is as follows:

2. [28]

   At the hearing Mr Ward gave the following evidence:

Ms Ozkirici

1. [29]

   Ms Ozkirici relied upon her statement dated 26 October 2015. She gave evidence and was cross examined. Her version of events is as follows:

2. [30]

   At the hearing Ms Ozkirici gave the following evidence:

The parties’ closing submissions

1. [31]

   Supercharge Batteries and Mr Ward submitted that:

2. [32]

   It was submitted for Ms Ozkirici at the hearing that:

The Magistrate’s reasons

1. [33]

   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).

2. [34]

   The Magistrate’s ex tempore reasons for his decision are relatively short. His Honour stated:

Obligation to provide sufficient reasons

1. [35]

   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.

2. [36]

   There are many decisions on the topic of the judicial obligation to provide reasons. I need only mention a few.

3. [37]

   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:

4. [38]

   In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, McHugh J at 281 stated:

5. [39]

   Finally, in Bradley v Matloob [2015] NSWCA 239; 72 MVR 194 Leeming JA stated:

6. [40]

   The issue here is whether the Magistrate engaged or grappled or wrestled with the cases presented by each party.

Submissions

1. [41]

   Supercharge Batteries and Mr Ward submitted that the Magistrate erred in:

2. [42]

   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.

3. [43]

   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:

4. [44]

   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.

5. [45]

   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).

Submissions by Ms Ozkirici

1. [46]

   While counsel for Ms Ozkirici accepted that the Magistrate did not address all of the issues nor did he detail all the evidence that was heard, he submitted that in circumstances where the factual issue in dispute is a focused and discrete one, the Magistrate had completed his task.

2. [47]

   Counsel for Ms Ozkirici also submitted that the Magistrate firstly, gleaned from the competing reasons an inference logically open to him on the evidence; and secondly, his Honour’s finding of fact that was dispositive of the case was his finding that Ms Ozkirici turned on a green arrow.

Conclusion

1. [48]

   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.

2. [49]

   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.

3. [50]

   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.

4. [51]

   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.

5. [52]

   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.

Contributory negligence

1. [53]

   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.

2. [54]

   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.

3. [55]

   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:

4. [56]

   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:

5. [57]

   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

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

1. [58]

   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.

2. [59]

   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.

3. [60]

   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.

4. [61]

   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:

5. [62]

   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.

6. [63]

   For these reasons, in the exercise of my discretion, I decline to grant leave to appeal.

7. [64]

   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.

8. [65]

   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.