Duniam v Smartsalary Pty Ltd - [2025] WADC 58

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   DUNIAM -v- SMARTSALARY PTY LTD [2025] WADC 58
CORAM:   SWEENEY DCJ
HEARD:   1 FEBRUARY 2024
DELIVERED          :   8 SEPTEMBER 2025
FILE NO/S:   APP 46 of 2023
(APP 45 of 2023 and APP 46 of 2023 consolidated)

BETWEEN: THOMAS DUNIAM
Appellant
AND
SMARTSALARY PTY LTD
First Respondent
AND
JOSEPH MUSITANO
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE DARGE
File Number            :   PER/GCLM/7/2022

Catchwords:

Appeal from magistrate - Motor vehicle collision - Negligence - Contributory negligence - Inferences - Browne v Dunn - Obligation of magistrate to comply with Browne v Dunn - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr L N Firios
First Respondent	:	Ms V A Bennett
Second Respondent	:	Ms V A Bennett

Solicitors:

Appellant	:	McCabes
First Respondent	:	Ligeti Partners - Perth
Second Respondent	:	Ligeti Partners - Perth

Case(s) referred to in decision(s):

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1; (1983) 44 ALR 607
Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322; (2014) 312 ALR 551
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Bale v Mills [2011] NSWCA 226; (2011) 81 NSWLR 498
British Fame (Owners) v Macgregor (Owners) [1943] AC 197
Browne v Dunn (1894) 6 R 67
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Cocks v Sheppard (1979) 25 ALR 325
Davie v Manuel [2024] WASCA 21
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Fairfax Media Publications Pty Ltd v Gayle [2019] NSWCA 172; (2019) 100 NSWLR 155
Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226
House v The King [1936] HCA 40; (1936) 55 CLR 499
Ilsley v Boots [1970] 2 NSWR 551
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
Lee v Lee (2019) 266 CLR 129
Macks v Viscariello [2017] SASCFC 172; (2017) 130 SASR 1; (2017) 353 ALR 201
Manley v Alexander (2005) 80 ALJR 413; (2005) 223 ALR 228
O'Connor v Insurance Commission of Western Australia [2016] WASCA 95
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492; (1985) 59 ALR 529
Powell v Streatham Manor Nursing Home [1935] AC 243
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679
Warren v Coombes (1979) 142 CLR 531

Table of Contents

Introduction

The nature of an appeal to this court and the role of an appellate court

Overview of the collision

Mr Musitano's version of events

The appellant's version of events

The damage to the vehicles depicted in the photographs

The learned magistrate's reasons for decision and findings

The grounds of appeal

Grounds 1 and…

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: [2025] WADC 58
Decision Date: 8 SEPTEMBER 2025

CaseChat Overview and Summary

In Duniam v Smartsalary Pty Ltd, the appellant, Duniam, appealed against a decision of the Magistrates Court of Western Australia, which found the respondent, Smartsalary Pty Ltd, to be negligent in causing a motor vehicle collision. Duniam claimed that the respondent's employee, who was driving the vehicle, collided with his vehicle while it was parked on Flinders Street in Yokine, Western Australia. The respondent contended that Duniam was also negligent and that the respondent was not liable for the damages. The legal issues before the court were whether the respondent was negligent and, if so, whether Duniam was contributorily negligent. The court had to determine whether the magistrate erred in finding that the respondent was negligent and whether the magistrate complied with the decision in Browne v Dunn.

The court held that the appellant must establish some legal, factual, or discretionary error on the part of the learned magistrate to succeed in an appeal. The court reviewed the evidence and the reasons for judgment to determine whether the trial judge erred. The court found that the trial judge had an advantage over the appellate court as he had seen and heard the witnesses testify. The trial judge was normally in a better position to judge which witnesses were trustworthy and which were not. The court held that the trial judge's findings of fact were not demonstrated to be wrong by 'incontrovertible facts or uncontested testimony', or were 'glaringly improbable' or 'contrary to compelling inferences'. The court held that the trial judge had properly assessed the facts as found to determine whether they gave rise to an inference that the respondent was negligent.

The court found that the respondent was negligent in causing the collision. The court held that the respondent's employee failed to keep a proper lookout for oncoming traffic when turning left from Morley Drive onto Flinders Street. The court held that the respondent's employee did not see Duniam's vehicle because it was obscured by a parked car and a bus. The court held that the respondent's employee should have stopped and looked for oncoming traffic before turning left. The court held that the respondent was liable for the damages caused by the collision.

The court found that Duniam was not contributorily negligent. The court held that Duniam had parked his vehicle in a safe and proper manner and that he was not aware of the respondent's vehicle approaching. The court held that Duniam was not required to take any further action to avoid the collision.

The court dismissed the appeal and affirmed the decision of the Magistrates Court of Western Australia.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The appellant must establish some legal, factual, or discretionary error on the part of the learned magistrate: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, 203. This court is to conduct a real review of the evidence and the reasons for judgment to determine whether the trial judge erred. The onus is on the appellant to establish such error. If no such error is established, then this court cannot simply substitute its own decision: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23]. Where a trial judge has made factual findings based upon the credibility of the witnesses, having seen and heard them testify, then the trial judge has an advantage over an appellate court and is normally in a better position to judge which witnesses are trustworthy and which are not: Powell v Streatham Manor Nursing Home [1935] AC 243; Warren v Coombes (1979) 142 CLR 531, 552, (Gibbs ACJ, Jacobs and Murphy JJ). An appellate court should not interfere with the trial judge's findings of fact unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony', or are 'glaringly improbable' or 'contrary to compelling inferences': Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 [43]. But such 'appellate restraint' is concerned with the primary findings of fact informed by the credibility and reliability of the witnesses and 'secondary facts based on a combination of these impressions and other inferences from primary facts' rather than the proper inferences to be drawn from undisputed or established facts: Lee v Lee (2019) 266 CLR 129, 148 ‑ 149 [55] (Bell, Gageler, Nettle and Edelman JJ). The facts having been found by the trial judge, the appellate court will generally be in as good a position as the trial judge to determine what inferences can and should be drawn from the facts which were not in dispute or were established by the trial judge's findings: Warren v Coombes, 551, (Gibbs ACJ, Jacobs and Murphy JJ). If, in those circumstances and after giving full weight to the decision of the trial judge, the appellate court decides his decision was wrong, it must give effect to its own decision: Warren v Coombes, 552, (Gibbs ACJ, Jacobs and Murphy JJ). The appellate court is in as good a position as the trial judge to assess whether the facts as found do or do not give rise to an inference that a party was negligent: Warren v Coombes, 552, (Gibbs ACJ, Jacobs and Murphy JJ). The collision occurred during daylight hours on Flinders Street in Yokine, just south of the intersection between Morley Drive and Flinders Street (Flinders). Morley Drive runs broadly east‑west at that point and Flinders runs broadly north‑south, with the intersection governed by traffic lights. Flinders consists of two southbound and two northbound lanes. The appellant lived in one of the units at 246 Flinders Street on the south‑east corner of the intersection. The driveway for that set of units on Flinders ‑ on the left‑hand side for a driver heading south ‑ was rather close to the intersection. There was evidence before the court that it was about 40 m from the intersection to the appellant's driveway and a further 40 m on to the point of the collision. That evidence will be referred to in greater detail below.