Aluabaid v Kilani - [2022] ACTCA 31

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Aluabaid v Kilani
Citation:	[2022] ACTCA 31
Hearing Date:	4 November 2021
DecisionDate:	24 June 2022
Before:	Loukas-Karlsson, Rangiah JJ and McWilliam AJ
Decision:	1. The appeal be allowed. 2. The orders of the primary judge made on 14 May 2021 be set aside. 3. The proceeding be dismissed. 4. The respondent pay the appellants’ costs of the appeal and the proceeding below.
Catchwords:	APPEAL – GENERAL PRINCIPLES – Negligence – Motor Vehicle Accident – whether primary judge erred in accepting plaintiff’s evidence – where plaintiff’s credibility challenged – acceptance of plaintiff’s evidence contrary to compelling inferences – appeal allowed – orders of primary judge set aside - proceeding dismissed with costs.
Legislation Cited:	Supreme Court Act 1933 (ACT) s 37E
Cases Cited:	Abalos v Australian Postal Commission (1990) 171 CLR 167 Allesch v Maunz [2000] HCA 40; 203 CLR 172 Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39 Cornwall v Jenkinsas Trustee for the iSpin Family Trust [2020] ACTCA 2; 15 ACTLR 233 CSR Limited v Della Maddalena [2006] HCA 1; 224 ALR 1 Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 DL v The Queen [2018] HCA 26; 266 CLR 1 Fox v Percy [2003] HCA 22; 214 CLR 118 Kakavas v Crown Melbourne Ltd [2013] HCA 25; 250 CLR 392 Kilaniv Aluabaid [2021] ACTSC 90 Lee v Lee [2019] HCA 28; 266 CLR 129 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 Nguyen v Tran [2018] NSWCA 215 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679 The Australian Capital Territory v Crowley [2012] ACTCA 52; 7 ACTLR 142 Thorne v Kennedy [2017] HCA 49; 263 CLR 85 Warren v Coombes (1979) 142 CLR 531
Parties:	Nashaat Hamid Aluabaid (First Appellant) Transport Accident Commission – Victoria ABN 22 033 947 623 (Second Appellant) Adam Kilani ( Respondent)
Representation:	Counsel W Fitzsimmons SC ( Appellants) W Sharwood of counsel ( Respondent)
Solicitors Moray & Agnew ( Appellants) Gabbedy Milson Lee ( Respondent)
File Number:	ACTCA 24 of 2021
Decision under appeal:	Court/Tribunal: Supreme Court of the Australian Capital Territory Before: Elkaim J Date of Decision: 14 May 2021 Case Title: Kilani v Aluabaid Citation: [2021] ACTSC 90

LOUKAS-KARLSSON AND RANGIAH JJ:

In Kilaniv Aluabaid [2021] ACTSC 90, a single judge of this Court gave judgment for the respondent (the plaintiff at first instance) in the sum of $181,500 plus costs. The appellants (the defendants at first instance) appeal from that judgment.

The proceeding was a claim for damages for personal injury arising from a motor vehicle accident. The respondent alleged that at about 1 am…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] ACTCA 31
Decision Date

CaseChat Overview and Summary

The appeal concerned a decision of the Supreme Court of the Australian Capital Territory in which judgment was awarded to the respondent, Mr Aluabaid, against the appellants, Mr and Mrs Kilani, for negligence. The appellants, as defendants at first instance, sought to appeal this decision.

The primary legal issues before the Court of Appeal were the primary judge's treatment of expert evidence concerning accident reconstruction, and the primary judge's findings regarding the respondent's credit, which were influenced by the expert evidence. The appellants argued that the respondent had not discharged the legal and evidentiary onus to prove negligence.

The Court of Appeal, in its capacity as a rehearing court under s 37E of the Supreme Court Act 1933 (ACT), reviewed the evidence to determine if the trial judge had erred. The Court noted a factual discrepancy in the respondent's account of the accident, specifically whether his car was stopped or moving at the time of the collision. This discrepancy, as highlighted by the primary judge, was central to the assessment of the respondent's credit. The Court concluded that the appellants' negligence had not been established on the evidence.

Consequently, the Court of Appeal set aside the orders made by the primary judge, which had awarded judgment to the respondent for $181,500 plus costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I have had the benefit of reading the judgment of Loukas-Karlsson and Rangiah JJ in draft form. I agree with their Honours’ conclusion that the appellants’ negligence (the defendants at first instance) was not established on the evidence. As a result, the orders made in Kilaniv Aluabaid [2021] ACTSC 90 (primary judgment) awarding judgment for the plaintiff (the respondent on appeal) in the sum of $181,500 plus costs must be set aside. I will express my own reasons for reaching that conclusion, set out below. The Notice of Appeal contains nine detailed and overlapping grounds. They may be summarised as follows: It will be readily apparent from the above grounds that there were two key issues on the appeal. The first was the primary judge’s treatment of the expert evidence of Mr Urquhart, whose expertise in accident reconstruction was part of the appellants’ case that the accident did not occur in the manner the respondent claimed. The second was the primary judge’s findings concerning the respondent’s credit, which were in part affected by the findings regarding Mr Urquhart’s expert report. In argument, the appellants focused on whether the respondent had discharged his legal and evidentiary onus, which is the crux of the 7th ground listed above. In doing so, the submissions traversed the other grounds of appeal in support of the critical question of the respondent’s credit as to how the accident occurred. In what follows, determination of the issue of whether the respondent discharged his onus has been dispositive of the appeal. The appeal is governed by s 37E of the Supreme Court Act 1933 (ACT), in that it is in the nature of a rehearing, albeit error must still be shown: see The Australian Capital Territory v Crowley [2012] ACTCA 52; 7 ACTLR 142 at [5] and the authorities cited therein. The approach to be taken on such an appeal involves reviewing the evidence to determine whether the trial judge erred, whether in fact or law. That task has been set out by Bell, Gageler, Nettle and Edelman JJ (with whom Kiefel CJ agreed) in Lee v Lee [2019] HCA 28; 266 CLR 129 at [55], as follows (footnotes omitted): The references cited in the footnotes throughout that passage draw together the statements articulated in cases such as Fox v Percy [2003] HCA 22; 214 CLR 118, Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679, Kakavas v Crown Melbourne Ltd [2013] HCA 25; 250 CLR 392, Warren v Coombes (1979) 142 CLR 531 and Thorne v Kennedy [2017] HCA 49; 263 CLR 85. The reasoning of the primary judge is found at [52]-[56] of the primary judgment (with the critical finding at [55] emphasised): The primary judge had earlier set out how the plaintiff alleged the accident occurred, at [34]-[35]: The primary judge’s finding with regard to the respondent’s credit is to be found at [50] of the primary judgment: There was a factual discrepancy in the accounts of the accident given by the plaintiff as to whether his car was stopped or moving at the time the collision occurred. The differences are seen in what was summarised by the primary judge at [50(a)] of the primary judgment, and the version of events given by the plaintiff as recorded by the primary judge at [34]-[35] of the primary judgment.

Ratio Decidendi

Legal Principle Established

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