Calabrese v Hosseini - [2012] SADC 45

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
CALABRESE v HOSSEINI
[2012] SADC 45
Judgment of His Honour Judge Beazley
3 April 2012
TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - LIABILITY OF DRIVERS OF VEHICLES
MINOR CIVIL REVIEW
LIABILITY
Applicant and respondent respectively were drivers of motor vehicles involved in a collision. The applicant's vehicle positioned directly behind respondent's stationary vehicle at lights. The applicant asserted that the respondent commenced to drive off, and then stalled his vehicle, thereby causing the applicant's vehicle to collide with the rear of the respondent's vehicle - the learned Magistrate accepted the evidence of the respondent that his vehicle did not stall but that the applicant had simply been too close and had collided with its rear. The learned Magistrate concluded that the applicant was solely responsible for the accident, and dismissed his claim. She awarded costs to the respondent in the sum of $180.
Nature of Minor Civil Review - purpose and objectives of s38 of the Magistrates Court Act 1991 considered - complaints by applicant that the learned Magistrate erred in allegedly failing to properly examine the respondent entirely unjustified.
HELD: the learned Magistrate's findings as to the cause of the accident were clearly open to her on the evidence. Decision and orders of the learned Magistrate clearly correct - judgment affirmed - application for review dismissed.
Magistrates Court Act (SA) s38, referred to.
Fox v Percy (2003) 214 CLR 118; Jones v Dunkel (1959) 101 CLR 298, considered.

CALABRESE v HOSSEINI
[2012] SADC 45
Introduction

This is an application by Nic Calabrese (“the applicant”) for this Court to review a judgment delivered in a minor civil action pursuant to s38 of the Magistrates Court Act 1991. The applicant was the plaintiff in action number 79 of 2011 in the Elizabeth Magistrates Court in which Seyed Agha Shaa Hosseini was the defendant (“the respondent”).
On 2 September 2011 a Magistrate entered judgment in favour of the respondent, dismissing the applicant’s action and awarding costs to the respondent in the sum of $180.
Factual Background
The action before the learned Magistrate involved a claim by the applicant against the respondent to recover the sum of $2396.89 for damage caused to the front of his vehicle in consequence of what he alleged was the negligent driving of the respondent.
It was common ground that the applicant’s vehicle was positioned directly behind the respondent’s vehicle which was stationary at the lights at the corner of Bridge Road and Montacute Road at Ingle Farm at about 3.50pm.
The Evidence
The Court heard evidence principally from the applicant and the respondent. I do not propose to detail all of the evidence led before the learned Magistrate. There was some dispute between the two parties as to whether there was one or two vehicles directly ahead of the respondent’s vehicle at the lights. The applicant deposed that once the lights had turned green, the respondent’s vehicle commenced to travel a short distance before stalling in such a manner, that he was unable to avoid colliding with the rear of that vehicle. He submitted that in those circumstances, he ought to have received the substantial part of his claim.
The applicant told the Magistrate that he had spoken to the respondent immediately after the collision. He said that the respondent had admitted that he was at fault. He said however that the respondent then drove off at about 70km/h and did not report the matter to the police. The applicant deposed that he reported the matter to the police, who had described it as a ‘hit and run accident’. He said that the respondent had told him that he had had a passenger in his vehicle. He submitted that the Magistrate ought to have regarded it as adverse to the respondent that the passenger was not called as a witness. The respondent, in giving evidence, disputed the account given by the applicant. The Magistrate asked various questions of him and permitted the applicant to cross-examine him. The account given by the respondent was that he was parked at the lights with the applicant directly behind. He said that he was watching as the lights turned green, there were two vehicles in front of him. He had moved off slowly from the lights, and then felt the collision from behind.
The Magistrate asked the respondent whether in fact his vehicle had stalled or otherwise come to a stop after the initial movement had occurred. The respondent denied having stalled. He said that when the lights turned green, the vehicles in front of him moved off. His vehicle continued to move, albeit slowly, because there were two vehicles in front. He said that he only travelled a very short distance. Indeed the accident had occurred at a point near the stop line at those lights. He said that he then felt the collision from behind.
Implicit in his account of the accident is that the applicant had assumed incorrectly that the respondent would move more quickly, and had simply rear ended the respondent’s vehicle. On any view the respondent’s vehicle could only have moved a few metres before contact was made.
The Magistrate in those circumstances was provided with two contrasting accounts as to the damage allegedly sustained by the applicant’s motor vehicle in the accident. Ultimately, she had to determine which of the two versions was correct. It was for the applicant to establish on the balance of probabilities that the accident had occurred in the manner to which he had deposed.
He said he subsequently drove off as he felt threatened by the applicant.
The Magistrate’s reasons delivered 2 September 2011
The learned Magistrate delivered ex tempore reasons, in which she concluded that this “was nothing other than a common rear end collision”. She said:
“It is incumbent upon a vehicle travelling behind another vehicle to ensure it has a clear path at the front. In the circumstances of the case I find that the applicant has failed to pay sufficient attention to the vehicle travelling in front of him, sufficient to avoid a collision and damage to his vehicle.”
Ultimately she accepted the evidence given by the respondent in preference to the evidence given by the applicant and dismissed the claim. She ordered that the applicant pay to the respondent costs in the sum of $180.
The Grounds of Review
The applicant raised various grounds of appeal. In particular he said that the learned Magistrate had:
- Come to the wrong conclusion.
- Failed to properly examine the respondent.
-Should have found against the respondent on the basis that he had not called any witnesses.
- Failed to have regard to the respondent’s admission of liability.
The hearing on Review
On the hearing of the Review neither party requested that I should rehear the evidence taken before the Magistrate. Neither party sought to adduce any fresh or additional evidence.
The applicant repeated the submissions he had made to the Magistrate. He said that respondent had apologised to him before driving off at 70 km/h. He repeated the fact that the respondent did not report to the police until three days later. He said that if there had been a female passenger, whether sister or mother in the car as the respondent had deposed then that person ought to have been called as a witness. He submitted that the Magistrate had failed to give due weight to all of that.
The applicant submitted that he was unfairly treated because ultimately he said the accident occurred in the manner to which he deposed and the Magistrate had come to the wrong conclusion.
I did my best to explain to the applicant that the hearing of a review is something different from an appeal or even a fresh hearing before the Magistrate.
The nature of a review under s38 of the Magistrates Court Act is one in which this court on review must give due weight to the person hearing the matter because that Magistrate has seen the witnesses, has heard their evidence and reached a conclusion based upon that evidence.
However, as I explained, in the case of Fox v Percy (2003) 214 CLR 118, the High Court had said:
“Commonly the trial judge therefore has advantages that derive from the obligation at trial to receive and consideration the entirety of the evidence and the opportunity normally over a longer interval to reflect upon the evidence and to draw conclusions from it but viewed as a whole. Nevertheless mistakes, including serious mistakes can occur at a trial and the comprehension, recollection or evaluation of evidence. In part it was to prevent and cure the miscarriages of justice that can arise from such mistakes.
In the 19^th Century the general facility of an appeal was introduced in England and later in the colonies. Within the constraints marked out by the nature of the appellant process, the appellant court is obliged to conduct a real review of the trial and to consider when a judge is sitting alone, the judge’s reasons. The appellant courts are not excused from weighing conflicting evidence and drawing their own conclusion but they must always bear in mind that they have neither seen nor heard the witnesses and must always make due allowance in that respect.”
Conclusion
As I have already said the Magistrate was confronted with two contradictory accounts as to the circumstances of the collision and having heard the witnesses, had made a decision based upon her assessment of the credibility and reliability of the two parties.
As to the absence of a potential witness the general rule as formulated in Jones v Dunkel (1959) 101 CLR 298 is that the unexplained failure by a party to give evidence, to call witnesses or tender documents may, not must, in appropriate circumstances lead to an inference that the uncalled witness would not have assisted that parties case. In my opinion, given the nature of the dispute, any such passenger could not have assisted the Court. I draw no inference from the absence of such a witness against the respondent.
The learned Magistrate was in the ideal position to assess the respective cases. It is obvious that she well understood the evidence submitted by the applicant. The findings made by the Magistrate were open to her on the evidence. A court of review, in this case, will not interfere with findings in those circumstances unless they can be said to be inconsistent with incontrovertibly established facts. In this case, the learned Magistrate preferred the evidence of the respondent on the critical issues and gave her reasons for that preference.
Those reasons included her assessment of the reliability of the evidence of the applicant and the respondent after having observed and heard them give their evidence. There are no incontrovertible facts to suggest that the respondent’s version was erroneous or glaringly improbable.
In all of the circumstances, there is little or no scope for this Court to reach a different conclusion from the Magistrate. Accordingly, I affirm the judgment and the orders of the Magistrate and dismiss the application for review.
Costs
There is power for the court to award the costs of this hearing. In my opinion however, pursuant to s38(5) of the Act, the philosophy of Parliament is that in a minor civil action costs ought not be awarded unless there are special circumstances justifying the award of such costs.
In the circumstances I conclude that the application for review was properly brought, albeit that the applicant might not have understood the role of this court.
I make no order as to costs.
Orders
The formal orders of the court are:
1.That the application for Review of the decision of the learned Magistrate dated 2/9/2011 be dismissed.
2.No order as to costs of the hearing of the review.