Lee v Knapik

On 27 October 2012, Ms Lee was driving a Holden Barina south on the Pacific Highway at Roseville. She changed lanes from the centre of three lanes (Lane 2) to the lane nearest the median strip (Lane 3).

Ms Knapik’s vehicle, a Honda, was at that time travelling in Lane 3, also in a southbound direction. That car reacted to Ms Lee’s change of lane by braking suddenly, bringing the Honda sharply to a halt. Ms Knapik is the first defendant in Ms Lee’s proceedings in this Court and, by the filing of a Cross‑Summons, applies for various relief.

At the time the Holden Barina (Ms Lee’s vehicle) and the Honda (Ms Knapik’s vehicle) crossed from Lane 2 into Lane 3, a large, although unladen, semi‑trailer was being driven in a southerly direction in Lane 3. It was being driven by Mr Friedrich Devries, who was an employee of Gasline Pty Ltd (“Gasline”), which was the owner of that semi-trailer.

When Mr Devries saw the brake lights on the Honda illuminate, and the Honda stop suddenly, he applied the brakes on the semi-trailer, but was unable to stop in time. He collided with the rear of the Honda, pushing it forward so that it collided, not heavily, with the rear of the Holden Barina.

Proceedings were commenced in the Local Court by Ms Knapik, initially against Mr Devries and Gasline and then, after amendment, against Ms Lee, claiming a total sum of $31,620.50.

Ms Knapik claimed against Mr Devries, for whom Gasline accepts that it is legally liable, that Mr Devries had been negligent in failing to keep a proper lookout, failing to apply his brakes within an appropriate distance and time, and travelling at an excessive speed in the circumstances. There were other allegations to which attention need not be drawn.

Ms Knapik claimed against Ms Lee that she failed to keep a proper lookout, that she failed to give sufficient notice “… including by way of indicators as to how [her] vehicle would be manoeuvred”, and that she failed to steer or control her vehicle so as to avoid a collision. Put globally, the allegation was that she changed lanes suddenly and without indicating.

The claim alleged that either Mr Devries was liable, or Ms Lee was liable, or both were liable as concurrent wrongdoers in respect of the collision. It is unnecessary to refer to both Gasline and Mr Devries. Reference to Mr Devries should be read as including a reference to Gasline.

In accordance with the directions of the Local Court, affidavits were filed setting out the various versions of how the accident happened. There were four affidavits. One by Ms Knapik, who was a passenger in her vehicle at the relevant time. The second affidavit was by the driver of Ms Knapik’s vehicle, Mr Au. Ms Lee gave her account of the facts in an affidavit, as did Mr Devries.

The proceedings were heard in the Local Court before Bradd LCM, on 1 April 2014.

On 16 May 2014, his Honour delivered judgment. For the reasons which he then published, he gave judgment for the plaintiff against Ms Lee, and judgment for Mr Devries against Ms Knapik. It will be necessary to return to the detail of the judgment later.

On 10 June 2014, Ms Lee filed a Summons seeking Leave to Appeal from the whole of the decision of Bradd LCM.

The Summons was filed by Ms Lee in her capacity as a self-represented litigant. She had been represented at the hearing before Bradd LCM by a legal practitioner. Any infelicity in expression in the summons for leave to Appeal is thus explicable.

She sought the following orders:

The grounds upon which that filed appeal was based, were these:

On 18 July 2014, Ms Knapik filed a Cross-Summons appealing from the whole of the decision of Bradd LCM of 16 May 2014. It sought the following orders:

The Cross-Summons nominated the following appeal grounds:

For the reasons which follow, I have concluded that the Summons seeking leave to appeal, and the Cross-Summons ought each be dismissed with costs.

A party to proceedings in the Local Court does not have a general right of appeal to the Supreme Court. Such right as a party has is conferred by the provisions of the Local Court Act 2007.

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

Section 40(1) of the Local Court Act provides as follows:

There is no right of appeal, or right to seek leave to appeal from a decision of the Local Court to the Supreme Court with respect to an error of fact.

Section 41 of that Act makes provision for what the Supreme Court may do in the event of an appeal under s 39(1) or s 40. That section provides that the Supreme Court may determine an appeal:

The proceedings before this Court were conducted by the parties by reference to the record of the Local Court. That is to say, the Supreme Court had placed before it by the parties, the transcript of the proceedings, the affidavits which were relied upon, and the decision of the Magistrate. As well, the Supreme Court had before it, the pleadings which were before the Local Court.

In order to understand and properly apply the provisions of s 39 of the Local Court Act in these proceedings, it is necessary to consider what might be an error of law as opposed to an error of fact.

The differential concept is of long-standing, and is the subject of binding authority. It is necessary, in light of the limited jurisdiction of the Court, to identify what an error of fact is, and what an error of law is, as a matter of principle.

The commencing point is to observe that, as a matter of statutory interpretation, the plain intention of the legislation is not to permit a general review of the fact‑finding process carried out in the Local Court: CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338 at [89] per Basten JA.

In the Australian Gaslight Co v The Valuer-General (1940) 40 SR (NSW) 126, Jordan CJ, in a case in which the Court only had jurisdiction to determine questions of law, said at pp 137-138, that the rules which were applicable were:

Two years later, in Dennis v Watt (1942) 43 SR (NSW) 32, the Full Court of the Supreme Court was called upon to consider a question, with respect to a prosecution under the Motor Traffic Act 1909, of whether the Magistrate had made an error of law in acquitting a driver of a charge of driving a motor vehicle negligently on a public street. An appeal lay at the suit of the information against the dismissal of the information on “… a ground that involves a question of law alone”: s 104(2) Justices Act 1902.

Jordan CJ considered the question of whether an ultimate fact, which led to a particular legal result, amounted to a question of law. At p 32, Jordan CJ said:

Davidson J said at p 35:

It is now beyond argument that a wrong finding of fact does not amount to an error of law: Waterford v The Commonwealth [1987] HCA 25;(1987) 163 CLR 54 per Brennan J; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [88]-[89].

Even the erroneous finding of fact, including the drawing of an inference, or the erroneous failure to find a fact or failure to draw an inference, which is perverse, in the sense that it is contrary to the overwhelming weight of the evidence, is not an error of law: Azzopardi v Tasman UEB (1985) 4 NSWLR 139 at 155 per Glass JA.

The fact that the reasoning process by way of which the finding of fact is arrived at is demonstrably unsound, or illogical, does not mean that an error of law has been established. Nor does a faulty or illogical inference of fact, constitute an error of law: R v District Court: Ex parte White [1966] HCA 69; (1966) 116 CLR 644 at 654 per Menzies J.

The issue of whether an error of law, or an error of fact has been demonstrated, received careful consideration by the Court of Appeal in Azzopardi. The majority reasoning – Glass JA agreeing with Samuels JA, was not agreed in by Kirby P (although he agreed in the ultimate result). At 155, Glass JA said, after reference to authorities of long standing:

In CSR v Amaca Pty Ltd, Basten JA noted at [89] that:

Circumspection in addressing these issues is clearly required.

Finally, it is appropriate to note the plurality judgment of Hayne, Heydon, Crennan and Kiefel JJ in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 at [91], where their Honours said:

While I accept that, to borrow the words used albeit in a different context by the plurality in Kostas at [88], that it is not useful to attempt to chart the metes and bounds of this Court’s task, and that an attempt to do so is dangerous, and may, particularly at a level of abstraction, invite error, I nevertheless must say that I find the judgment of Kirby J in RL&D Investments Pty Ltd v Bisby [2002] NSWSC 1082 at [13] most helpful. There, his Honour encapsulated the relevant authorities in this way:

In the course of oral submissions by senior counsel for Ms Lee, he identified and isolated the two errors upon which Ms Lee’s application to this Court turned. He articulated them in this way:

The errors were teased out, and senior counsel agreed with the following description of the errors, namely:

In the course of discussions during submission with the Bench, senior counsel for Ms Lee accepted that what was being put was that:

The following exchange later took place:

Ms Knapik’s contentions of error on the part of the Magistrate were also twofold. They were:

Counsel for Ms Knapik was also asked about the errors which were relied upon. In oral submission, counsel accepted that the first error with respect to the finding of reasonableness in releasing of the brakes, was an error of fact. He submitted that the next error relied upon, namely, that Mr Devries failed to keep a safe distance, was a proposition of breach of duty, which he accepted necessarily depended upon a finding of fact which, it was contended, the Magistrate should have, but did not make.

The judgment of the Magistrate was reasonably lengthy, it addressed the nature of the case, the evidence of the relevant witnesses, the submissions made to him by each of the three parties, the legal test to be applied, and then it set out his conclusions.

The case before the Local Court involved a motor vehicle collision relating to three motor vehicles. It occurred whilst they were all travelling south, in the same lane. The issue, in substance, posed for the Magistrate was whether the collision occurred because the southern-most (or first) car in the line of three (driven by Ms Lee), moved suddenly into the lane in which the other two vehicles were travelling, thereby causing Ms Knapik’s vehicle to stop suddenly to avoid colliding with Ms Lee’s vehicle. The consequence of that sudden stop being that the semi‑trailer being driven by Mr Devries, confronted with such a sudden and unexpected stop, did not have sufficient time or distance within which to bring his vehicle to a stop completely, with the result that a collision occurred. On this version, Ms Lee was at fault.

The alternate version posed for the Magistrate was whether Ms Lee’s vehicle changed lanes safely in the ordinary course of driving, whether she and the second vehicle (Ms Knapik’s vehicle) were able to pull up at the red traffic light which they were approaching, but that Mr Devries, who was not paying adequate attention and keeping a proper lookout, failed to apply his brakes soon enough to bring his semi-trailer to a stop without colliding with Ms Knapik’s vehicle. On this version, Mr Devries was at fault.

The evidence of each of the witnesses, who were relevantly the participants, could not be completely reconciled, although there were features of the evidence which were reasonably consistent between the witnesses.

The Magistrate having outlined all of the material to which I have made reference, came to consider the facts. He specifically rejected the evidence of Ms Lee about the distance at which her car changed lanes before the intersection. He rejected her evidence that it was 250 metres, because she had given a different version in the course of cross-examination, and because it was inconsistent with other evidence in the case. He recited the evidence of Mr Devries which although not explicitly stated, it is apparent, that he accepted.

The Magistrate then expressed his conclusion in this way:

In that part of his judgment, the Magistrate was expressing his preference for the factual conclusion that Ms Lee’s driving was negligent, and was the cause of the accident.

The Magistrate next referred to the evidence of Mr Devries and, in particular, to what he was doing immediately prior to the collision. He reached this conclusion:

The factual conclusion being expressed here is that Mr Devries was keeping a proper lookout.

He then expressed the balance of his conclusions in the following paragraphs:

It is these conclusions that are the subject of the criticisms to which I have earlier adverted.

The Magistrate was confronted with the task of determining, having regard to all of the evidence, the likely cause or causes of the accident.

As his reasons show, he came to the conclusion that it was the fact that Ms Lee changed lanes suddenly, which had caused Ms Knapik’s vehicle to be brought to an unexpected stop. He determined that the failure of Mr Devries to pull his vehicle up in time to avoid a collision was the consequence of insufficient time being available to him, having regard to the distance between him and the preceding vehicle (Ms Knapik’s vehicle). This conclusion was expressed in the obvious context that Mr Devries’ vehicle was a semi‑trailer.

In this Court, neither senior counsel for Ms Lee, nor counsel for Ms Knapik contended that there was no evidence available to the Magistrate upon which he could have based these findings. Plainly, there was evidence. Equally plainly, he preferred the evidence of others to that of Ms Lee. He accepted the evidence of Mr Devries that he was driving his vehicle in a reasonable manner at the time, and that his actions were, in all the circumstances, reasonable.

These are all obviously questions of fact. The Magistrate is the person to whom the law, in this case, gives the responsibility for making an evaluative judgment as to the acceptability of the evidence, the weight to be given to the evidence and the consequence of that task, namely the making of factual findings and the drawing of inferences.

The ultimate conclusion of the Magistrate, namely that Ms Lee was negligent and had caused the relevant damage, and that Mr Devries was not negligent and had not caused the relevant damage, was a decision which depended entirely upon the complex interaction of the facts, and his conclusion as to which facts and inferences should be drawn. Notwithstanding the submissions of senior counsel for Ms Lee to the contrary, the ultimate conclusion was drawn from the “… broad limbo …” of facts, with the result that the ultimate determination is one of fact alone.

The Magistrate’s conclusion as to Ms Lee’s negligence and the absence of Mr Devries’ negligence was wholly, in this case, a question of fact. If he has made an error in that respect, then that is an error of fact, and this Court is not entitled in those circumstances to set aside this decision of the Local Court.

Each of the errors identified by Ms Lee and Ms Knapik are errors of fact upon which it is inappropriate for me to express any view as to what factual conclusion I may have come.

It follows that both the Summons seeking leave to appeal and the Cross‑Summons must be dismissed.

There is no reason why costs ought not follow the event.

I make the following orders: