Ayub v Magistrates' Court of Victoria
[2025] VSC 194
•14 March 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2024 02996
BETWEEN:
| ABDUL AYUB | Plaintiff |
| v | |
| MAGISTRATES’ COURT OF VICTORIA & ANOR (according to the attached Schedule) | Defendants |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 March 2025 |
DATE OF JUDGMENT: | 14 March 2025 |
CASE MAY BE CITED AS: | Ayub v Magistrates’ Court of Victoria & Anor |
MEDIUM NEUTRAL CITATION: | [2025] VSC 194 |
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JUDICIAL REVIEW – Magistrates’ Court decision – Findings reasonably open on the evidence – CD v Central Gippsland Health Service [2022] VSC 462 – Section 55 of the Evidence Act2008 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff in person | ||
| No appearance for the First Defendant | ||
| For the Second Defendant | Mr T. Fitzpatrick of counsel | RS Chase Lawyers |
TABLE OF CONTENTS
Introduction
Summary
Background
Was it reasonably open to the Magistrate to make the finding that Mr Ayub caused the collision?
Mr Ayub’s submissions
Mr Vadthya’s submissions
Relevant principles
Evidence claims
Section 55 of the Evidence Act
Analysis
Findings reasonably open on the evidence
Section 55 of the Evidence Act
Conclusion
HER HONOUR:
Introduction
A truck driven by Abdul Ayub collided with a car driven by Babu Vadthya in Melbourne. Mr Vadthya made a claim against Mr Ayub in the Magistrates’ Court. A Magistrate found that Mr Ayub had acted negligently. He was ordered to pay damages to Mr Vadthya. Mr Ayub seeks judicial review of the Magistrate’s decision. He says that the decision should be made invalid.
Mr Vadthya is defending the proceeding. As is usual in these types of proceedings, the Magistrates’ Court of Victoria (the first defendant) is not taking an active part.[1]
[1]See Hardiman letter filed on behalf of the first defendant on 26 July 2024.
Summary
Mr Ayub has not established any lawful ground to quash the orders made by the Magistrate. His application for judicial review will be dismissed.
Background
On 30 November 2023, the vehicles driven by Mr Ayub and Mr Vadthya collided on Queens Way, near Albert Park and Chapel Street (the ‘collision’). Mr Ayub was driving a large truck. Mr Vadthya was driving a Toyota Corolla car. Mr Vadthya was a rideshare driver at the time of the collision; he had a customer with him in the car.
Mr Vadthya initiated Magistrates’ Court of Victoria proceeding: MAG-CI-240002022. He claimed that Mr Ayub was negligent and caused the collision. Mr Ayub disputed Mr Vadthya’s claim.
On 19 April 2024, the matter was heard before Magistrate Goldberg (‘Magistrates’ Court hearing’). The main issue before the Magistrate was the question of liability for the collision.[2] Both Mr Ayub and Mr Vadthya gave evidence. Mr Ayub cross-examined Mr Vadthya, and was himself cross-examined by Mr Vadthya’s counsel, Mr Strought.
[2]See Transcript of Proceedings, Babu N Vadthya v Abdul Ayub (Magistrates’ Court of Victoria, MAGC-CI-240002022, Magistrate Goldberg, 19 April 2024) (“Transcript” or “T”) 14.27 – 14.29.
Mr Vadthya’s evidence was that Mr Ayub caused the collision when he entered his road lane so rapidly that Mr Vadthya could not slow in time to avoid contact. The transcript relevantly records as follows:
HIS HONOUR: You’re really being asked, ‘Did the truck – did the truck go into your lane completely, Mr Vadthya?’ … did the truck come into your lane completely? ---
MR VADTHYA: Yeah. So I was in the right lane and ah just moving to my - ah I was in the completely fourth lane, completely right, and he was in the - beside off left lane. Immediately give one indicator and it - and I gave the big horn, maximum, to - because he’s going to hitting my vehicle. And I was with the um customer and he was hitting. And he was run from the - ah escaping. He was trying to escaping from - - -
HIS HONOUR: When he hit your vehicle, what part of his vehicle hit your vehicle? ---
MR VADTHYA: Ah his back side, back side. It’s the middle. And he was - hit it from the side - um ah front bumper….
…
HIS HONOUR: … How did he get his 19-metre truck into an area where only the back of the truck hit you?---
MR VADTHYA: Yeah. Ah I was completely slowed down, because he going to - I - I realised that he going to hit my vehicle. And he was slowly hit and escape from the scene.[3]
[3]T18.24 – 19.19.
Mr Ayub’s evidence conceded that the collision occurred, and that it occurred in the lane Mr Vadthya was driving in. Mr Ayub, however, disputed that he caused the collision. The transcript relevantly records as follows:
HIS HONOUR: What do you want to tell me about this collision, Mr Ayub?---
MR AYUB: I agree with ah the statement, opening statement given by the lawyer that ah what transpired that day. I agree with that. But ah I do not agree that ah, ah that I drove carelessly and hit the applicant’s car.
…
HIS HONOUR: Do I understand you to be telling me then, that you - when you say you agree with the statement made by the lawyer, you agree you were in the left of the lane that the other driver was travelling in? Is that as I understand it? He was in the right lane and you were in the left lane? ---
MR AYUB: When the accident happened I was ah in the same lane as the - the driver of the other - - -
HIS HONOUR: I understand that.[4]
[4]T23.09 – 23.28.
Mr Ayub surmised that it was Mr Vadthya who had, in fact, caused the collision:
MR STROUGHT: So you’ve moved from the second to the right lane, into the right lane. Now, my client says when you’ve done that, you’ve got your measurements wrong and the rear of your vehicle clipped him on his front left on the side of the bumper bar there. You dispute that, do you?---
MR AYUB: Yes, I dispute that, yes.
MR STROUGHT: You say that you’ve changed lanes, that there’s enough room for you?
MR AYUB: Yes.
MR STROUGHT: At some point before you hit – you arrive at the bumper bar in moving traffic, he just, what slams into the back of you? ---
MR AYUB: He just – yes, he lost control and hit me.[5]
[5]T26.19 – 26.29.
During cross examination, Mr Ayub admitted that he had neither seen nor heard the collision. However, he did not believe that he had caused the collision:
MR STROUGHT: Sir, you don’t dispute you changed lanes. You don’t know when the collision occurred, do you? You didn’t feel it, you didn’t see it, you didn’t know about it. You got a horn to tell you something had occurred before the underpass, correct?
MR AYUB: I did not hear the accident sound so I cannot say that I had – I knew what really happened because I cannot see at the back of my car.
…
MR STROUGHT: You were driving, I suggest to you, and you stopped just like he said and you didn’t challenge him up at the lights around the bend and that’s when he got your attention. That’s what really occurred. And you said sorry to him?
MR AYUB: Yeah, we do have to say sorry whether it’s his damage or my damage. It’s an incident to happen. Somebody is affected. Anybody (indistinct) by fault, by negligence or anything. We have to be sympathetic.
…
MR STROUGHT: Now, do you accept in a large vehicle that you’ve got a heavy duty licence to drive 19-metre vehicles, no doubt, because that’s, I think, the cut-off in the law? Do you accept when you’ve got a large vehicle like that and you’re changing lanes, you need to really exercise, particularly in traffic - - -?
MR AYUB: Yes.[6]
[6]T30.28 – 32.08.
At the Magistrates’ Court hearing, no witnesses were called other than the parties. The Magistrate inquired as to whether any other witnesses would be called to give evidence. During cross and re-examination, Mr Vadthya stated that the customer was not present to give evidence, and would not be called to do so. Mr Ayub did not call any witnesses and did not question Mr Vadthya’s forensic decision not to call any other witnesses. The transcript relevant records as follows:
MR AYUB: Yes. (To [Mr Vadthya]) Apart from the front - apart from the front of your car, was there any other damage on the side or the back?---
Yes. Side - side mirror and front - front was - ah front bumper damage. And so - and that time I was with a DiDi customer as well. I have a customer as well, so that time is customer, and he knows the things as well, everything. What was done the day, and it's completely your fault and you’re not - - -
HIS HONOUR: Is the customer giving evidence today?---
MR VADTHYA: Ah no, no at the moment.
HIS HONOUR: Yes. Thank you.
MR AYUB: What – that’s it, My Honour.
HIS HONOUR: Thank you. Yes. Mr Strought.
…
MR STROUGHT: You spoke of the customer next to you. Are they available to give evidence to court - in court today?
MR VADTHYA: No. I haven’t spoke [sic] with them, actually. That day I told them to – ah saw - and he was escaping and we are in a (indistinct).
HIS HONOUR: The question is were they available to give evidence today?
MR VADTHYA: No.
HIS HONOUR: And you say you haven’t spoken to them. You haven’t asked them. Is that right?
MR AYUB: Yeah.[7]
[7]T21.05 – 21.22.
The Magistrate found that Mr Ayub had negligently caused the collision:
The probability of this case and the findings of fact that I have made is Mr Ayub moved from the left of the right-hand lane into the right-hand lane, thereby reducing the space; that is, he moved, and the only way he could move safely was if Mr Vadthya slowed. Mr Vadthya did slow but was unable to drive in such a way as to avoid collision. Mr Ayub had failed to keep a proper lookout in relation to Mr Vadthya’s car and had entered the right hand lane from the left-hand lane when there was insufficient space to do so. In those circumstances, Mr Ayub was negligent. I can find no negligence on behalf of Mr Vadthya. It is not suggested he was driving in any way other than as an ordinary prudent driver might. He was caught in a situation of emergency. I accept and find that he slowed, but he was unable to avoid collision. In those circumstances, I find Mr Ayub negligent and therefore responsible for the damage of Mr Vadthya.[8]
[8]T38.1 – 38.18.
Consequently, the Magistrate ordered that Mr Ayub pay $7,859.07 plus costs of $3,002.70 with a one month stay.[9]
[9]Exhibit A to the affidavit of Abdul Ayub, sworn on 1 June 2024, 1.
Was it reasonably open to the Magistrate to make the finding that Mr Ayub caused the collision?
Mr Ayub challenges the factual findings of the Magistrate. In his amended originating motion, Mr Ayub seeks judicial review of the Magistrate’s decision upon the following grounds. First, that pursuant to the ‘no evidence’ rule, the Magistrate failed to call and take notice of the witness, CCTV footage, and photos of the collision. Second, that the Magistrate ‘failed to take notice of insufficient evidence.’ Mr Ayub says that Mr Vadthya failed to provide evidence that he had stopped at traffic lights. He says that Mr Vadthya made contradicting statements and failed to provide any proof or evidence of his claims. Third, that the Magistrate failed to take into account that there was a lack of circumstantial evidence. He says that Mr Vadthya failed to explain and give answers to his questions and the Magistrate about the cause of the accident. Further that he maintained a long silence in court, which proves his guilt.
Mr Ayub’s submissions
In summary, the Magistrate failed to ensure only relevant and reliable evidence was considered; there was a failure to consider evidence; there was insufficient evidence; and the evidence presented was contradictory or lacked corroboration.
The Magistrate acted contrary to s 55 of the Evidence Act 2008 (Vic) (‘Evidence Act’). Specifically, the Magistrate failed to ensure that only reliable and relevant evidence was considered. This includes CCTV footage, which was neither presented nor considered. The Magistrate, says Mr Ayub, did not require Mr Vadthya to substantiate his claims with ‘independent evidence’. Mr Ayub submitted that once s 55 is ‘proved’ then it will ‘affect the required law.’
Mr Ayub made oral submissions claiming that, in the Magistrates’ Court hearing, Mr Vadthya gave unreliable evidence. First, after recounting that the collision had been at the front of his car, Mr Vadthya then went on to claim that the whole bumper had fallen off, which is inconsistent. Second, that the truck turned in front of Mr Vadthya despite his claim that the vehicles were driving in parallel and Mr Ayub’s vehicle was a large truck with a semi-trailer. Relatedly, that he could not explain how Mr Ayub’s truck stopped at the lights and then went faster than Mr Vadthya’s car.
There was insufficient evidence, and/or the evidence presented was contradictory and lacked corroboration. Mr Vadthya did not produce any reliable evidence in support of the claims regarding the collision. And, the evidence produced by Mr Vadthya only related to the damages assessment and costs. Further, Mr Vadthya failed to provide evidence proving that Mr Ayub was at fault for the collision. Mr Vadthya also did not present pictures or witnesses to the collision. Mr Vadthya failed to explain or answer questions posed by the Magistrate and Mr Ayub regarding the cause of the collision. This means the decision reached was not based on substantial evidence. Mr Ayub says he told the Magistrate that he was in the same lane as Mr Vadthya prior to the incident. Mr Vadthya’s evidence regarding overtaking is, therefore, simply a reconstruction. Finally, Mr Vadthya’s silence during Magistrates’ Court hearing suggests a lack of credibility.
The Court should quash the Magistrates’ Court decision.
Mr Vadthya’s submissions
Mr Vadthya submits that, fundamentally, Mr Ayub’s application is misconceived. He has failed to show that there has been a jurisdictional, procedural, or legal error in the magistrate’s decision.
Mr Ayub accepted the factual account given by Mr Vadthya’s lawyer on his behalf. He also had the opportunity to cross-examine Mr Vadthya on his oral evidence. Given Mr Ayub conceded he was not aware of when the collision took place, his understanding was merely a belief. Moreover, Mr Ayub did not provide any evidence to contradict Mr Vadthya’s eye witness account.
Mr Ayub’s submissions regarding s 55 of the Evidence Act are misdirected. It does not operate in the way he is seeking to apply it. That is, it does not remove admitted evidence. In any case, Mr Vadthya’s decision not to provide photos or audio-visual evidence does not diminish the quality of his oral evidence. The evidence given by Mr Vadthya, the sole eye-witness who gave evidence, clearly described the back of Mr Ayub’s truck colliding with the front of Mr Vadthya’s car. Mr Ayub did not see the collision and did not submit any evidence to contradict this. How the evidence is treated falls upon the Magistrate to decide. His Honour considered the evidence presented and made his factual findings accordingly. His Honour assiduously adhered to s 55.
Mr Vadthya’s evidence was properly laid before the Magistrate. The evidence was given directly before his Honour, who was in the best position to assess the credibility of the witness and his evidence. Further, there was no objection to Mr Vadthya giving evidence. The Magistrate was to consider the question of negligence. That is, who was at fault for the collision. The question did not concern the particulars of the damage sustained. Mr Ayub’s point regarding the statements about bumper damage are, therefore, a red herring.
Mr Ayub’s submissions regarding circumstantial evidence do not land. The Magistrate had been provided evidence from both parties. The evidence was subject to cross examination. His Honour was best placed to assess that evidence. It was never raised with the Magistrate that Mr Vadthya’s passenger should be called. Mr Ayub had not requested that Mr Vadthya call the customer as a witness.
Mr Ayub’s submissions regarding inconsistencies in the evidence is peculiar, given he had accepted the factual account of what happened that day. Further, Mr Vadthya’s references to the ‘back’ side or bumper are references solely to the back of Mr Ayub’s truck. Mr Vadthya, when speaking about his car, would only reference the front bumper. Additionally, references to Mr Vadthya slowing down are references to him slowing his car to avoid a collision.
The Magistrate gave his decision based on the evidence before him, and did so validly. Mr Ayub’s application should therefore be dismissed.
Relevant principles
Evidence claims
It is an error of law to make a factual finding where there is no evidence to support that finding.[10] Similarly, it is an error of law to reach a conclusion that was not open to be made.[11] However, impugning a finding of fact is a ground of review that is only narrowly available.[12] A finding of fact made by a Magistrate or tribunal cannot be called into question if there was some evidence or other probative information available to support it. Nor can it be questioned simply on account of the fact that another Court considers the finding erroneous or against the weight of the evidence.[13] The question is whether there was any evidence to support the finding; it is not about the sufficiency of that evidence.[14]
[10]Kostas v HIA Insurance (2010) 241 CLR 390 [91].
[11]S v Crimes Compensation Tribunal [1998] 1 VR 83, 89 – 91.
[12]Myers v Medical Practitioners Board of Victoria (2007) 18 VR 48 [37].
[13]Director of Liquor Licensing v Kordister Pty Ltd [2011] VSC 207 [248].
[14]Ferris v Victoria [2018] VSCA 240 at [5].
In CD v Central Gippsland Health Service,[15] Croucher J explained that:
The expression “no evidence” means what it says. The ground of review can succeed only where there is not a “skerrick” of evidence, or “a complete absence of evidence”, or “no evidentiary basis at all” for the finding challenged. The corollary is that where there is “some evidence, no matter how unconvincing” for a finding, it will not involve legal error… The question being whether there is any evidence for a finding, a decision-maker will not transgress the “no evidence” rule merely by making an incorrect factual finding, even where the finding is “perverse” or “contrary to the overwhelming weight of the evidence”. In that connection, courts are urged to beware of attempts to use the language of “no evidence” to dress up attacks on the merits of factual conclusions as reviewable errors.[16]
[15][2022] VSC 462 (‘CD’).
[16]CD [273] (citations omitted).
Section 55 of the Evidence Act
In his submissions, Mr Ayub references s 55 of the Evidence Act. Section 55 of the Evidence Act states as follows:
55 Relevant evidence
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)In particular, evidence is not taken to be irrelevant only because it relates only to—
(a) the credibility of a witness; or
(b) the admissibility of other evidence; or
(c) the failure to adduce evidence.
Though not referenced, s 56 of the Evidence Act is relevant when contemplating the application of s 55, it states that:
56 Relevant evidence to be admissible
(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2) Evidence that is not relevant in the proceeding is not admissible.
Relevant evidence’ for the purposes of section 55 has been defined as evidence which could ‘rationally affect the assessment of probabilities.’[17] It may prove or disprove the allegations made by either party. It is intentionally broad.[18] Despite its breadth, however, evidence that is so unbelievable, fanciful, or preposterous will not be considered relevant evidence.[19]
Analysis
[17]Washer v Western Australia (2007) 234 CLR 492 [5] (Gleeson CJ, Heydon and Crennan JJ).
[18]See Australian Law Reform Commission, Evidence (Interim) (Report No 26, August 1985) vol 1 [641].
[19]See IMM v The Queen (2016) 257 CLR 300 [39] (French CJ, Kiefel, Bell and Keane JJ).
Findings reasonably open on the evidence
The Magistrate’s finding that Mr Ayub caused the collision was reasonably open on the evidence. It was a matter for the Magistrate to decide whether or not Mr Vadthya’s evidence was reliable. Silence does not necessarily equate with guilt. It was a matter for the magistrate to assess Mr Vadthya’s credibility. It was open to the Magistrate to accept Mr Vadthya’s evidence as reliable. As discussed in the principles above, it is for the Magistrate to weigh the evidence. Mr Vadthya’s evidence was relevant. That is, Mr Vadthya’s evidence was not so unbelievable, fanciful, or preposterous so as to be irrelevant.
Turning now to the issues raised by Mr Ayub.
First, Mr Vadthya consistently maintained that the damage to his Toyota Corolla was to the front of that vehicle. The following passages of the transcript demonstrate that point:
HIS HONOUR: When he hit your vehicle, what part of his vehicle hit your vehicle?
MR VADTHYA: Ah, his back side, back side. It’s the middle. And he was – hit from the side – um ah, front bumper, and he was – yeah.
…
MR AYUB: (to [Mr Vadthya]) The damage to your car is to the front and – front and to the right. It’s to the left of the front. The damage to your car is to the front?
MR VADTHYA: Yeah, front side. Yeah.
MR AYUB: Front side, yes?
MR VADTHYA: Yeah, front side. You were – hit it front side. And from my middle was broken at – yeah.
MR AYUB: So if – if your car is damaged on the front side, that means you hit me from behind?
MR VADTHYA: No.
MR AYUB: I was in the front and you hit me from the – your front is damaged, which means you hit my back.
…
MR AYUB: Apart from the front – apart from the front of your car, was there any damage on the side or the back?
MR VADTHYA: Yes. Side – side mirror and front – front was – ah front bumper damage.[20]
[20]T19.05 – 19.08, T19.29 - 20.07, T21.01 – 21.04.
During that exchange, there were several points where Mr Vadthya denied that he had hit Mr Ayub from the back. It is reasonably open to understand this as a denial that he caused the collision, rather than a denial that the collision involved the front of his car and the back of Mr Ayub’s truck. At no point during the Magistrates’ Court hearing did Mr Vadthya claim that the back of his car had sustained damage in the collision. In the trial, Mr Ayub claimed that referencing the middle and back of the truck was inconsistent and rendered the evidence unreliable. It is reasonably open to understand this to mean that the front of Mr Vadthya’s car hit the ‘middle of the back’ of Mr Ayub’s truck.
This similarly explains the other apparent inconsistency flagged by Mr Ayub. Namely, the consequent bumper damage to Mr Vadthya’s car. Mr Ayub raised the question of how Mr Vadthya’s entire bumper could have fallen off if the collision itself only involved the front of his car. Mr Ayub’s question, though logically consistent, is empirically groundless. He references the following passage from the transcript as evidence of this inconsistency:
MR STROUGHT: I suggest that’s not true. His whole bumper bar popped off and the report that you’d expect speaks about the left (indistinct)?[21]
[21]T29.27 – 29.28.
This is the only statement made which refers to the bumper as the whole bumper. It is not evidence, however, but merely a question posed by counsel during cross examination.
The transcript of the Magistrates’ Court hearing does not speak to Mr Vadthya claiming back or whole bumper damage. The transcript speaks to the fact that it was Mr Vadthya’s front bumper that had been impacted. It is therefore reasonably open to understand that the reference made by Mr Vadthya’s counsel to the ‘whole bumper’ refers to the whole of the front bumper. This is made clear by Mr Vadthya and his counsel’s numerous and exclusive references to the front bumper. These references are recounted by the transcript:
MR STROUGHT: [Mr Vadthya] says he observes [Mr Ayub] flash one light indicator, one flash, and then move across in front of him into the right lane and says as he does so, there was not enough room, and the rear right of the truck clipped the front left bumper of [Mr Vadthya’s] Corolla, made a popping sound. It bounced off its hinges.[22]
[22]T16.07 – 16.12 (emphasis added).
And:
HIS HONOUR: When he hit your vehicle, what part of his vehicle hit your vehicle?
MR VADTHYA: Ah his backside, back side. It’s the middle. And he was – hit it from the side – um ah front bumper[23]
[23]T19.05 – 19.07 (emphasis added).
And:
MR AYUB: Apart from the front of your car, was there any other damage on the side or the back
MR VADTHYA: Yes. Side mirror and front – front was – ah front bumper damage.[24]
[24]T21.01 – 21.04 (emphasis added).
And:
MR STROUGHT: Now, my client says that when you’ve done that, you’ve got your measurements wrong and the rear of your vehicle clipped him on his front left on the side of the bumper bar there. You dispute that, do you?
MR AYUB: I dispute that, yes.[25]
And:
MR STROUGHT: Sure, and nobody’s accusing you of causing a fatality or a very serious accident. What I’m saying is that what I said to you before is exactly what happened: that you’ve missed it by a few feet, not very much. The very rear end of your car has just clipped the front side of his bumper bar and that’s why he was tooting and that’s why he drew your attention[26]
…
MR STROUGHT: You were there on the scene. You saw [Mr Vadthya’s] car and you saw that the front bumper bar had been popped off?
MR AYUB: The report is saying it is damage to the front and to the right of the front (indistinct) to the left of the front. That’s what the damage report says. It says
MR STROUGHT: To the left – to the left?
MR AYUB: Damage is to the left – the damage report says the damage is to the front and left side. That’s what the damage report says.
MR STROUGHT: You’ve been saying right, over and over again. That’s why I’m correcting you. There is also left-hand wheel rim that’s grouped together to fix. That’s his front-left wheel. So the bumper bar has been hit right next to the wheel.[27]
[25]T26.20 – 26.23 (emphasis added).
[26]T29.19 – 29.27 (emphasis added).
[27]T30.07 – 30.20 (emphasis added).
Second, when Mr Vadthya referenced being parallel to Mr Ayub’s truck, it appears he meant that they were in parallel lanes. The transcript records the relevant exchange as follows:
MR AYUB: Is it – was it peak hour traffic?
MR VADTHYA: Yeah.
MR AYUB: So – so between the tyres it’s around 2 to 3-metre gaps?
MR VADTHYA: Yeah. I was ah parallel to your vehicle and you
MR AYUB: Yes?
MR VADTHYA: Yeah.
MR AYUB: You said it was peak hour traffic?
MR VADTHYA: Yeah.
MR AYUB: What – what would be the gaps between two vehicles?
MR VADTHYA: Yeah. I was in the right lane and you was in the left lane, so just (indistinct).
HIS HONOUR: He said ‘gaps’. I think you were being asked … the gaps between the vehicles; that is, between the vehicle in front of you and your vehicle, how much distance was there?
MR VADTHYA: Yeah. Three metres, 2 to 3 metres.
MR AYUB: Okay. Thank you. Thank you. That’s the –
HIS HONOUR: That might well be important, Mr Ayub, but you haven’t suggested to the driver of the other car that what he says is not correct. It might be that his - - -
MR AYUB: Yeah.
…
HIS HONOUR: You’re really being asked, ‘Did the truck – did the truck go into your lane completely, Mr Vadthya?’ … Mr Vadthya, did the truck come into your lane completely?
MR VADTHYA: Yeah. So I was in the right lane and ah just moving my – ah I was in the completely fourth lane, completely right, and he was in the – beside off left lane.[28]
[28]T17.22 – 18.08, 18.24 – 18.30.
Further, Mr Ayub’s reference to testifying that he was in the same lane as Mr Vadthya at the time of the collision has been cherry picked from the transcript. Mr Ayub cites page 23, line 26 of the transcript in support of his statement that he told the Court he was in the same lane at the time of the collision. A further read of that excerpt, however, critically adds that Mr Ayub conceded that he was initially in the lane immediately left of Mr Vadthya:
HIS HONOUR: Do I understand you to be telling me then, that you – when you say you agree with the statement made by the lawyer, you agree you were in the left of the lane that the other driver was travelling in? Is that as I understand it? He was in the right lane and you were in the left lane?
MR AYUB: When the accident happened I was ah in the same lane as the - the driver of the other
HIS HONOUR: I understand that. But before the accident happened, do I understand you to agree you were travelling in the left lane?
MR AYUB: Yes, sir.
HIS HONOUR: That is the second lane, and he was in the furthest right lane?
MR AYUB: Yes, sir.
HIS HONOUR: And then do I understand you to say that you then moved from your lane into the right-hand lane?
MR AYUB: The next lane … From my lane to the next ah of the right.
HIS HONOUR: Yes, to the right. The next lane which is to the right. Yes?
MR AYUB: Yes, yes.
HIS HONOUR: And then how did you know a collision had occurred?
MR AYUB: We always look into mirrors ah about three or four minutes, you know, something – or when ah sometimes if we have changed lanes, so we always have to look back and see if everything is all good.[29]
[29]T23.21 – 24.12.
The factual account was summarised by Mr Vadthya’s counsel in the Magistrates’ Court hearing. That account included stating that the point of collision was the back of Mr Ayub’s truck and the front of Mr Vadthya’s car. Critically, Mr Ayub accepted that the factual account given by the counsel for Mr Vadthya was accurate, although he disputed that he was at fault. The transcript relevantly records as follows:
HIS HONOUR: What do you want to tell me about the collision, Mr Ayub?
MR AYUB: I agree with ah the statement, opening statement given by the lawyer that ah what transpired that day. I agree with that. But ah I do not agree that ah, ah that I drove carelessly and hit the applicant’s car.[30]
[30]T23.06 – 23.10; see also T35.17 – T35.18 where his Honour restates that Mr Ayub accepted the account of the circumstances given by Mr Vadthya’s lawyer.
Third, in his opening statement, Mr Vadthya’s counsel stated that his client had stopped at a red light at the Chapel Street intersection.[31] Mr Ayub agreed with the opening statement given by Mr Vadthya’s counsel. Given this agreement, it is nonsensical to suggest the Magistrate erred because Mr Ayub failed to provide evidence he stopped at the traffic light.
[31]T15.31.
To the extent that Mr Ayub is suggesting that the evidence was fanciful because it relied upon a finding that his truck left the intersection more quickly than Mr Vadthya’s vehicle: the Magistrate made no such finding. Nor did either party give evidence about that. Mr Vadthya’s evidence, rather, is that after the lights turned green, he was in the right lane approaching the underpass and Mr Ayub’s truck was in the lane next to him.[32] This neither states nor implies that their respective vehicles were adjacent to one another at the red lights and began moving at the same time. As a matter of completeness, I should add that the evidence that Mr Vadthya gave about Mr Ayub stopping his vehicle at a red light related to events after the collision. The transcript relevantly records as follows:
HIS HONOUR: Yes. Just a moment. How did he get his 19-metre truck into an area where only the back of the truck hit you?
MR VADTHYA: Yeah. Ah I was completely slowed down, because he going to – I – I realised that he going to hit my vehicle. And he was slowly hit and escape from the scene. He was trying to make a something [sic] and ah I completely ran backside of him. He couldn’t stop the vehicle. And ah on the right lane – but luckily it was a red light and he was stop. And besides, I went, followed him and just I stop and then he’s coming from the vehicle and giving the evidence.[33]
[32]T16.04 – 16.06.
[33]T19.14 – 19.24.
Fourth, the transcript shows that Mr Ayub’s submission that Mr Vadthya failed to answer questions is incorrect.
Section 55 of the Evidence Act
I reject Mr Ayub’s submission that the Magistrate acted contrary to s 55 of the Evidence Act because he failed to call other witnesses or consider photographic and/or audio-visual footage. Generally speaking, it is not the business of the Magistrate to conduct an evidence-gathering inquiry. The Magistrate, rather, considers the admissible evidence provided by the parties and makes a decision after evaluating that evidence and applying the law.
On the day of the Magistrates’ Court hearing, the Magistrate considered the witness evidence given by both Mr Ayub and Mr Vadthya. In each case, this was primary evidence given under affirmation; it was relevant and admissible. Mr Vadthya saw the collision; Mr Ayub did not. At the hearing, Mr Ayub did not produce any evidence or call any witnesses to contradict Mr Vadthya’s eye-witness account. At one stage, the Magistrate enquired as to whether the customer, being another eye-witness, was being called to give evidence. Mr Vadthya said they were not; Mr Ayub did not challenge that forensic decision.[34]
[34]See T21.09 – 21.14.
Further, as I discussed above, the events of the collision were summarily described by counsel for Mr Vadthya on his behalf; Mr Ayub accepted that account. That account was accepted by the Magistrate. If Mr Ayub wanted the Magistrate to consider CCTV or photographic evidence, then it was his duty to produce that evidence at the Magistrates’ Court hearing. If he wanted Mr Vadthya to call the customer as a witness, then he could have made that request. In any case, those duties do not fall on the Magistrate. Nor was the Magistrate required to contemplate the absence of that evidence. Accordingly, the Magistrate did not act contrary to ss 55 or 56 of the Evidence Act.
Conclusion
It was reasonably open to the Magistrate to find Mr Ayub caused the collision. There was no legal error. Mr Ayub’s application for judicial review must be dismissed.
SCHEDULE OF PARTIES
| S ECI 2024 02296 | |
| BETWEEN: | |
| ABDUL AYUB | Plaintiff |
| - v - | |
| MAGISTRATES’ COURT OF VICTORIA | First Defendant |
| BABU N VADTHYA | Second Defendant |
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6
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