Khowly v Amoud

[2020] NSWSC 1445

Supreme Court

New South Wales

Medium Neutral Citation:

Khowly v Amoud [2020] NSWSC 1445

Hearing dates:

8 October 2019

Decision date:

23 October 2020

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1) Leave is granted to file the amended summons.

(2) Leave is granted to appeal on grounds 1(b) and (c), 2 and 3. In relation to ground 2, leave is only granted insofar as it overlaps with grounds 1, 3 and 4 of the plaintiff’s amended summons.

(3) Appeal allowed.

(4) Remit the matter to the Local Court for re-trial on the question of liability.

(5) Leave is granted to the plaintiff to appeal the order made by the magistrate as to costs, pursuant to s 40(2)(c) of the Local Court Act 2007 (NSW).

(6) The plaintiff and the first defendant to pay their own costs of the Local Court hearing and each is to pay half the costs of the second defendant.

(7) Save for order (7), the plaintiff and the first defendant to pay their own costs of the appeal and each to pay half the costs of the appeal of the second defendant.

(8) The plaintiff to pay the costs reserved by R A Hulme J on 30 July 2019 and in relation to the Registrar’s directions hearing on 27 August 2019.

Catchwords:

APPEALS — Local Court – leave to appeal from Local Court to Supreme Court – grounds with questions of mixed law and fact – s 40 of the Local Court Act 2007 (NSW) – whether the Court applied the correct test for contributory negligence – whether the Court failed to make material findings of fact – whether the Court afforded procedural fairness to the plaintiff – whether the Court misconstrued statutes – whether the Court failed to admit relevant evidence

COSTS — appeal from Local Court – where the defendants seek costs for both the appeal and the hearing in the Local Court – where the original hearing date for the appeal was vacated

Legislation Cited:

Civil Liability Act 2002 (NSW), s 69

Civil Procedure Act 2005 (NSW), s 56

Evidence Act1995 (NSW), ss 59, 69, 76, 78

Local Court Act 2007 (NSW), ss 39, 40

Road Rules 2014 (NSW), r 87

Uniform Civil Procedure Rules 2005 (NSW), r 51.53

Cases Cited:

Averkin v Insurance Australia Ltd (2016) 92 NSWLR 68; [2016] NSWCA 122

Beale v Government Insurance Office of NSW (1977) 48 NSWLR 430

Carthew v Badger [2004] NSWCA 317

Hamod v State of New South Wales [2011] NSWCA 375

Lithgow City Council v Jackson (2011) 244 CLR 353; [2011] HCA 36

Ohn v Walton (1995) 36 NSWLR 77

Regency (Showerscreens & Wardrobes) Pty Ltd v Nadinic [2018] NSWSC 68

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

Trompp v Liddle (1941) SR (NSW) 108

Category:

Principal judgment

Parties:

Rachel Khowly (Plaintiff)
Nancy Amoud (First Defendant)
Caroline Taha (Second Defendant)

Representation:

Counsel:
G Schipp (Plaintiff)
J Kelly (Solicitor) (First Defendant)
N Nelson (Second Defendant)

Solicitors:
Turks Legal (First Defendant)
Hoyle Da Silva Lawyers (Second Defendant)

File Number(s):

2018/366236

 Decision under appeal 

Court or tribunal:

Local Court

Date of Decision:

1 November 2018

Before:

Atkinson LCM

File Number(s):

2017/292571; 2017/292573

Judgment

1. HIS HONOUR: By a summons filed on 28 November 2018, the plaintiff, Rachel Khowly, sought leave to appeal a judgment of Atkinson LCM made on 1 November 2018, concerning liability arising from a motor vehicle accident. The magistrate ordered that the plaintiff pay the first defendant, Nancy Amoud, the sum of $11,708.81 and interest of $1,084.97, being a total of $12,793.78, and the second defendant, Caroline Taha, the sum of $7,332.86 with interest of $498.29 and costs of $2,478.22, being a total of $10,309.37.

2. The orders sought were to the effect that the magistrate’s judgment be set aside and, in its stead, there be judgment for the plaintiff, or alternatively, that the matter be remitted to the Local Court for re-trial before a reconstituted court, and an order for costs of the appeal and the hearing in the Local Court.

An amended summons

3. A timetable was set by the Registrar for the filing of submissions and a joint court book on 7 May 2019. On 20 June 2019, the plaintiff’s solicitor filed and served written submissions on the first defendant. In an email to the first defendant of the same date, the plaintiff’s solicitor attached a copy of the submissions and a document titled “amended summons”. He stated:

“In relation to the Amended Summons we seek your consent to file, in which regard we submit there is no prejudice to your client given that the time for filing of replies and responses has not yet run.”

4. The defendants served written submissions in reply, which responded to the plaintiff’s filed submissions and the proposed amended summons, in July 2019.

5. In the same month, the plaintiff’s solicitor, Mr Martin Churchill, was charged with a serious criminal offence and refused bail, which occasioned unexpected difficulties to Ms Khowly in obtaining her file from his practice and arranging alternative legal representation. The amended summons was not filed.

6. The hearing date for this appeal, which was originally listed for 1 August 2019, was vacated by R A Hulme J, who suggested to the parties that, in view of the relatively modest sum involved at the heart of the application and the impact of the proceedings on all the parties, the hearing might proceed “on the papers”. The parties agreed.

7. At the hearing, all three parties were legally represented. The plaintiff handed up a “joint court book” which the legal representatives for each of the defendants had only a brief opportunity to check beforehand. It contained a proposed amended summons. It became apparent after the hearing that this was a different version from that which had been provided to the first defendant in June 2019. Similarly, the plaintiff’s written submissions were different from those that had been filed on 20 June 2019. The discrepancies were drawn to the parties’ attention by me in correspondence.

8. The parties agreed that they are content for the versions of the two documents in the joint court book to be replaced with those that were circulated (and, in the case of written submissions, filed) by the plaintiff in June 2019. The plaintiff has sought leave to file the amended summons in Chambers, and the defendants have indicated that they do not object to the tender. Accordingly, the plaintiff moves on the amended summons.

9. I note that the orders sought in the amended summons are in identical terms to those originally sought.

10. I accept the explanation offered by plaintiff’s counsel that the error was inadvertent and ultimately occasioned by the unexpected difficulties encountered when the plaintiff’s solicitor was no longer able to continue representing her.

The car accident

11. The matter has its foundation in a relatively minor multiple-car collision that occurred on Tuesday 8 August 2017 at about 3:30pm on Dellwood Street, South Granville. Dellwood Street lies approximately East-West, and comprised two unmarked lanes in each direction, with a concrete median strip. The kerbside lanes in both directions were usually occupied by parked vehicles, so that effectively, there was only one lane for traffic in each direction. It was agreed that the speed limit was 50kph. The Western end of Dellwood Street was a T-intersection, in the form of a roundabout, with Blaxcell Street, which lies approximately North-South. The roundabout had an advisory speed sign indicating 25kph.

12. Ms Amoud was driving her vehicle, a Toyota Aurion sedan, North on Blaxcell Street and turned right out of the roundabout into Blaxcell Street. She was the only occupant of her vehicle. Ms Khowly’s vehicle, a Toyota Corolla four-door hatchback, was parked alongside the kerb in Blaxcell Street, on the same side as that which Ms Amoud had entered, and facing in the same direction. It was in the first parking position on that street, so that there were no vehicles parked between it and the roundabout, which was a distance of about 15m. Ms Khowly had been at the shops across the road with her six-week-old baby, and having crossed the road and secured her baby in a baby capsule on the back seat of her car, manoeuvred her vehicle to drive away from the kerb in order to proceed East along Blaxcell Street. As she pulled out, the front left corner of Ms Amoud’s vehicle collided with the rear offside of her vehicle, pushing Ms Khowly’s vehicle partly sideways into the right rear corner of the vehicle that was parked immediately in front of hers, which was a Mazda panel van owned by Ms Taha. Ms Taha was not in her vehicle at the time and did not witness the accident. Ms Amoud’s vehicle came to a stop on the median strip. No one was injured.

13. Ms Amoud commenced an action in the Local Court against Ms Khowly, alleging that the accident was entirely attributable to Ms Khowly’s negligence, namely, failing to exercise reasonable care, failing to keep a proper lookout, not giving way to Ms Amoud’s vehicle, failing to control her vehicle to avoid a collision, and failing to comply with provisions of the Road Rules 2014 (NSW). Ms Amoud claimed damages for the repair of her vehicle and the cost of hiring a replacement vehicle while it was being repaired. Ms Taha commenced an action against Ms Khowly and Ms Amoud, as first and second defendants respectively, for the damage to her vehicle and the cost of a hire car.

14. In both cases, Ms Khowly denied negligence and counter-claimed that the collision was consequent to the negligence of Ms Amoud, and thus Ms Amoud was liable for the damage occasioned to both her and Ms Taha’s vehicles. She also claimed damages in respect of the cost of repairs to her vehicle, her towing costs and damage caused to a baby capsule in which her child was positioned at the time of the collision.

15. The three matters were heard together in the Local Court on 22 October 2018. Ms Amoud and Ms Taha were represented by counsel, as they were in the proceedings before me, and Ms Khowly appeared for herself. She was represented in the Supreme Court proceedings. Quantum was agreed by the parties, so that only liability was in question.

16. A transcript of the proceedings in the Local Court has been tendered. At the outset of the hearing, Ms Amoud’s counsel handed up “Agreed Facts” as between her and Ms Khowly as to the ownership of their vehicles, the time and date of the collision, and the quantum of damage to their respective vehicles. I note that Ms Khowly has submitted that those agreed facts are no longer available. However, I conclude that they are Annexure K to the affidavit of Jacqueline Kelly, Ms Amoud’s solicitor, sworn on 12 July 2019, which is a document titled “Statement of Agreed Facts and Issues” and bears Ms Kelly’s signature, dated 19 October 2018, being three days prior to the hearing.

17. An agreed fact was that Ms Taha’s vehicle was impacted by Ms Khowly’s vehicle consequent to the collision of Ms Amoud and Ms Khowly’s vehicles. At the hearing, Ms Khowly orally expressed her agreement with the contents of the agreed facts document.

18. Counsel for Ms Taha, in her case, handed up a “Statement of Agreed Facts and Issues” as between her and Ms Khowly and another document, titled “case summary”, in respect of both defendants, which were in essentially identical terms. They identified Ms Taha as the owner of her vehicle and the drivers of the other two vehicles as being Ms Khowly and Ms Amoud; the parked location of Taha’s vehicle at the relevant time; and that it was damaged by Ms Khowly’s vehicle colliding with it, consequent to the collision between Ms Khowly and Ms Amoud’s vehicles. Counsel for Ms Taha indicated to the Court that her instructing solicitor had been advised by Ms Amoud that Ms Amoud did not require any of Ms Taha’s witnesses for cross-examination, and therefore they were not present. Although Ms Khowly was not asked for her position on this, she had earlier intimated that she accepted that the only issue was between her and Ms Amoud. She said:

“… it’s not really everyone in dispute against everyone, it’s really – Ms Taha’s car is the innocent party in this, so it’s just – the liability is between Ms Amoud and I.”

19. Affidavits by Ms Taha, and the assessor of the damage to her vehicle, were tendered without objection. As quantum is not in issue, it is unnecessary to review that evidence.

20. Ms Khowly tendered three documents without objection, two being statements by her and her mother and the third being a letter from her insurer, which was to the effect that it held her liable for the accident (“the NRMA letter”). She also sought to tender a police report concerning the accident, in the form of a Computerised Operational Policing System (COPS) entry (“the COPS entry”), which was opposed by Ms Amoud’s counsel and rejected by the magistrate.

21. Ms Amoud and Ms Taha each tendered supporting affidavits without objection.

22. Following the tender of the material, the magistrate said to Ms Khowly:

“HER HONOUR: O.K. So we’ll – adopting the order that we’ve done so far, what we’ll do is we’ll go first with Rachel Khowly.

MS KHOWLY: I’m first? O.K.”

23. After dealing with some extraneous issues, the magistrate then said to Ms Khowly: “take your statement up to the witness box and we will swear you in”. I note that Ms Khowly was effectively told that she was giving evidence, and doing so prior to any other witnesses, although in each proceeding she was a defendant and cross-claimant. There is no reference in the transcript to the other parties being required or invited to leave the courtroom during her evidence.

24. Ms Khowly was invited by the magistrate to confirm that the contents of her statement dated 1 April 2018 were true and correct, which she did. The relevant parts of her statement, which was composed in the third person, were as follows:

“3   … securing herself in the driver’s seat, [Ms Khowly] safely reversed her vehicle around 2m in preparation for exiting the parking position.

4   [Ms Khowly] checked her rear-view mirror and side view mirror and noticed [Ms Amoud’s] vehicle about to enter the round-about from the South end of Blaxcell Street. She noticed no indicators flashing on [Ms Amoud’s] vehicle and saw no other vehicles in the vicinity of the round-about or its tributaries nor any vehicles in her line of traffic on Dellwood [Street].

5   Dellwood [Street] had no vehicles on it.

6   [Ms Khowly] looked over her shoulder then back in her side view mirror and saw still no vehicles in the roundabout or on Dellwood [Street] but noticed [Ms Amoud’s] vehicle was now near the north exit to Blaxcell Street of the roundabout and still no indicators flashing.

7   Having kept a proper lookout and exercised all due care, [Ms Khowly] now seeing her lane/line of traffic clear proceeded to carefully exit her parking position on the shoulder of the road and cautiously manoeuvring her vehicle around the other parked vehicle.

8   With her vehicle, almost fully out of the parking margin and as she was steering to realign it with the lane of traffic, [Ms Khowly’s] vehicle was rammed by [Ms Amoud’s] vehicle at the rear most end of the vehicle on the bumper bar and rear fender.

9   [Ms Khowly] was hit with such force that the impact pushed [Ms Khowly’s] vehicle smashing it into [Ms Taha’s vehicle] parked on the shoulder of the road smashing the rear fender and back passenger door and shattering the back passenger window into the car and over the baby capsule.

10   The force and angle with which [Ms Amoud’s] vehicle smashed into [Ms Khowly’s] vehicle did cause [Ms Amoud’s] vehicle to bounce off and lurch forward scraping along the side of [Ms Khowly’s] vehicle then jumping over and straddling the median strip thus causing severe damage to the whole drivers side of [Ms Khowly’s] vehicle.”

25. I interpret par (9) of Ms Khowly’s statement to mean that the glass in the nearside rear passenger door of Ms Khowly’s vehicle was smashed by the force of the impact of her vehicle with Ms Taha’s vehicle.

26. In cross-examination on behalf of Ms Taha, Ms Khowly agreed that when she reversed in order to exit the car parking space, her reversing lights would have come on. She thought that she reversed for “like a second or something”. She then indicated for “a second” and checked her left-side mirror, her rear-view mirror and her right side-view mirror. She saw Ms Amoud’s vehicle about to enter the roundabout, not indicating. She checked her blind spot and again her rear-view and side-view mirror, now seeing Ms Amoud’s vehicle in the roundabout and not indicating, and she pulled out.

27. In cross-examination on behalf of Ms Amoud, it was put to Ms Khowly that she had not indicated, which she denied. She was again asked to explain what checks she did for other vehicles. She said that when she got into her car, turned on the ignition, put on her seat belt, checked her rear view mirror, looked over her left shoulder, reversed one or two metres within her lane, put her car into drive, turned on her indicator to turn right, checked her side-view mirror and saw Ms Amoud’s vehicle travelling along Blaxcell Street. Before she moved out, she checked her side-view mirror once more and saw Ms Amoud’s vehicle had moved into the roundabout.

28. Ms Khowly said that the lapse of time between when she checked her rear-view mirror and the impact was “[r]oughly the best part of three to four seconds”.

29. Counsel for Ms Amoud took Ms Khowly to her account of the accident that she had provided to her insurer, in a statement dated 23 August 2017, which was tendered by Ms Amoud. The relevant part of that account is as follows:

“I looked over my right shoulder and saw only [Ms Amoud’s vehicle] travelling on Blaxcell Street which had not gotten to the round about yet. I then looked forward and took off as Dellwood was clear. In the time it took for me to get more than 3/4 of the way out, [Ms Amoud’s vehicle] turned right on the round about and drove (rammed) straight into the very back right corner of my car …”

30. It was suggested to Ms Khowly that her account to her insurer differed from that in her evidence, in that she had told her insurer that she last saw Ms Amoud’s vehicle before it entered the roundabout, not when it was in the roundabout. Counsel pointed out that her insurer had found her to be liable for the accident, suggesting that she had accordingly modified her account to a version that now had Ms Amoud’s vehicle in the roundabout at the time she last saw it. She responded that she was simply providing more detail in her evidence.

31. Ms Khowly also stated to her insurer:

“… Immediately [Ms Amoud] admitted fault. Saying ‘I’m so sorry it’s my fault I did not see you’”

and:

“[Ms Amoud] was on her phone”.

32. Ms Khowly agreed that she had not seen Ms Amoud using a phone and claimed that she had meant she ”might have been on her phone” at the time of the accident. It was suggested that she had jumped onto the boot of her car and yelled at Ms Amoud in a way that would have made her fearful. She denied both propositions.

33. Ms Khowly said that prior to the accident, she had bumped into her mother, Heidi Khowly, in a butcher’s shop on the other side of the road to where her vehicle was parked. They spoke briefly, and went their separate ways. Ms Khowly returned to her vehicle, carrying her child. She last saw her mother prior to the accident approximately 10m from her, on the other side of the road, exiting the butcher’s shop.

34. Heidi Khowly gave evidence. In her statement, which was dated 2 March 2018, she stated that she had driven to the shops and parked in a position that would have been directly in front of Ms Taha’s vehicle. She said that when she left the butcher’s shop:

“3.   … [Ms Khowly] was directly in front of me.

4.   We waved goodbye, she indicated, and checked back over her right shoulder and began to pull out of the curb.

5.   She was taking off slowly and safely, was more than three quarters of the way out and was beginning to straighten up when [Ms Amoud’s vehicle] sped into her ramming her from the back right corner of her car.

6.   [Ms Amoud’s vehicle] was driving so hastily that she appeared to come out of no where and it happened in a second.

7.   I saw and heard the impact …

…

9.   [Ms Amoud] got out of her car and apologised over and over, saying ‘I am so sorry, I did not see you.’

10.   [Ms Khowly] was screaming in her car hysterically. She was screaming ‘My baby, my baby, oh my god my baby’.”

35. In cross-examination, Heidi Khowly said that she saw her daughter look over her shoulder, but did not see the impact of Ms Amoud’s vehicle. However, she “heard the bang”. She also said that she waved goodbye to Ms Khowly, and that it occurred when Ms Khowly had already pulled out from the kerb. Her attention was drawn to the different sequence of events in her statement, namely, that the waving occurred prior to Ms Khowly pulling out from the kerb. She agreed that was incorrect. She also agreed that her account that Ms Amoud was driving “hastily” was an assumption.

36. Counsel for Ms Taha put to Heidi Khowly that she arrived after the accident and had not witnessed it, which she denied.

37. There were discrepancies between the evidence of Ms Khowly and her mother as to how her mother’s statement was produced. Whereas Ms Khowly said that her mother had typed her statement on Ms Khowly’s computer, her mother said that she wrote it out and Ms Khowly typed it up for her.

38. Ms Amoud gave evidence. In her affidavit, she said:

“9   As I was approaching the roundabout at the intersection of Blaxcell Street and Dellwood [Street], I activated my indicator and slowed my vehicle down to approximately 15-20 km/h as I intended on turning right at the roundabout to enter Dellwood [Street].

10   I proceeded slowly through the roundabout and exited onto Dellwood [Street]. I observed ahead there was a line of stationary cars parked next to the kerb. None of these parked cars had their indicators activated or displaying any signs that they were wishing to exit their parking spaces. I assumed that they were all unoccupied.

11   I proceeded down Dellwood Street at around 30–35km as I had only just exited the roundabout. I had travelled only about 10–15 metres when [Ms Khowly’s vehicle] suddenly pulled out of its parked car space to try to merge into my lane without indicating.

…

13   Ms Khowly’s car was only a metre or so in front of me when she pulled out and I only had a split second to react. I slammed on my brakes and swung my steering wheel to the right as an instant reaction to try to swerve away from Ms Khowly’s vehicle. But it was too close and I was unable to avoid the collision.

…

15   After the collision I brought my vehicle to a stop and got out of the car. I was still in shock at what had happened and I approached Ms Khowly’s vehicle to see if she was okay.

16   Ms Khowly climbed through to the back of her car and as she got out of her car she jumped up on the boot of her car and ran at me screaming. She launched at me as if to attack me and I had to push her away from me so she could not hit me.

17   I recall she was yelling ‘this is your fault, you should have stopped’

18   I was 8 weeks pregnant at the time and I felt physically threatened. I did not want to risk the health of my baby and wanted to diffuse the situation so I said ‘yes whatever you say, it’s my fault.’

19   I did not believe I was at fault but I didn’t want the situation to escalate and given that Ms Khowly was acting in an irate manner I believed that by saying this it might calm her down.

20   Ms Khowly’s vehicle pulled out right in front of me and was still in the process of pulling out when the collision happened. There was not enough space for her to enter the lane in front of me and there was nothing further I could have done to avoid the collision.

…

22   I recall at the time of the accident Ms Khowly had a small boy in the car. I recall Ms Khowly’s mother arrived on the scene and took the young boy away.

23   The police arrived a short time later and the officer told me words to the effect of ‘It is a minor accident so you do not need to provide a statement if you have exchanged details’.”

39. In cross-examination, Ms Amoud agreed that Ms Khowly’s vehicle was a hatchback, and appeared to change her evidence from Ms Khowly “jumping up on the boot of her car” to jumping “on the top of the car”. She was cross-examined on par (13) of her affidavit. Ms Amoud said she had hit “the front side” of Ms Khowly’s vehicle. It was suggested that the photographs of the damage to the offside of Ms Khowly’s vehicle, which showed denting and scraping extending from behind the offside passenger door along to at least the foremost part of the driver’s door, indicated the initial point of impact was around the area of the back offside wheel, and that this was inconsistent with her account of Ms Khowly’s vehicle being “a metre or so” in front of hers when it pulled out. Ms Amoud maintained that the initial point of impact was with the front of Ms Khowly’s vehicle, in the vicinity of the front offside wheel. Ms Amoud drew a diagram of the position of the vehicles, at the point of impact, which was tendered, and which confirmed her oral evidence.

40. In her closing address to the magistrate, counsel for Ms Taha submitted that both drivers were negligent, with Ms Khowly having the greater duty of care as she was pulling out from a kerbside parking spot. Counsel for Ms Taha submitted that Ms Khowly had breached r 87 of the Road Rules, which states as follows:

“87   Giving way when moving from a side of a road or a median strip parking area

(1)   A driver entering a marked lane, or a line of traffic, from the far left or right side of a road must give way to any vehicle travelling in the lane or line of traffic.

Maximum penalty—20 penalty units.

Note 1—

Line of traffic and marked lane are defined in the Dictionary.

Note 2—

For subrule (1), give way means—

(a)   if the driver is stopped—remain stationary until it is safe to proceed, or

(b)   in any other case—slow down and, if necessary, stop to avoid a collision,

—see the definition in the Dictionary…”

41. The term “line of traffic” is defined in the Dictionary as follows:

“line of traffic means—

(a)   2 or more vehicles travelling in line along a road (whether or not the vehicles are actually moving, but not including vehicles in a marked lane), or

(b)   a single vehicle, other than a vehicle that is part of a line of traffic under paragraph (a), that is travelling along a road (whether or not the vehicle is actually moving, but not including a vehicle in a marked lane).

Examples—

1   A vehicle travelling along a road (except in a marked lane) in line behind another vehicle (the leading vehicle) forms part of a line of traffic with the leading vehicle.

2   A vehicle travelling along a road (except in a marked lane) with no other vehicles in the vicinity constitutes a line of traffic by itself.

3   Two vehicles travelling in the same direction on a road (except in a marked lane), but not in line, are 2 lines of traffic.”

42. The term “marked lane” is defined in the Dictionary to mean:

“… an area of a road marked by continuous or broken lines, or rows of studs or markers, on the road surface that is designed for use by a single line of vehicles.”

43. Counsel for Ms Taha submitted that Ms Amoud was negligent by not noticing the reversing lights on Ms Khowly’s vehicle when Ms Amoud was proceeding through the roundabout and that, if the Court finds that Ms Khowly had activated her indicator, she was negligent by not noticing that she had done so. It was further submitted that had Ms Khowly kept a proper lookout, she would have braked earlier than she did.

44. Counsel for Ms Amoud submitted that if Ms Khowly had checked her mirrors when, and as often, as she said, the accident could not have happened, and therefore she was not credible on that aspect of her evidence. He submitted that Heidi Khowly’s evidence that she observed Ms Khowly look over her shoulder was irrelevant, because it was well before the impact.

45. Counsel for Ms Amoud also submitted that Ms Khowly had not mentioned in her statement that she had activated her indicator before moving away from the kerb, but that even if it was on, it did not affect the liability of Ms Amoud. He said:

“Whether or not the indicator was on, it doesn’t matter, because there’s a car stationary adjacent to a kerb, and the obligation of that driver is to maintain their position and not move until it’s safe to do so – the simple act of giving way, that’s their obligation.”

46. Counsel for Ms Amoud referred to the principles in Trompp v Liddle (1941) SR (NSW) 108 in these terms:

“… it says that in effect the driver’s entitled to assume other people are going to obey the law and do the right thing, until you’re put on notice of a problem.”

47. Counsel for Ms Amoud then turned to Ms Khowly not having referred in her statement to having turned on her indicator at all. He said:

“Ms Amoud says it wasn’t on … But even if … it were on, we all drive past cars with their indicators on. That’s life, and what Trompp v Liddle says, and what we all do is, until you’re on notice that this car is going to do something, you’re entitled to assume it’s going to obey the law, because otherwise everybody comes to a grinding halt.”

48. Counsel for Ms Amoud also submitted that the evidence to the effect that Ms Amoud’s apology to Ms Khowly immediately after the accident was not probative of liability, in view of s 69 of the Civil Liability Act 2002 (NSW). Section 69(1) is relevantly in the following terms:

“69   Effect of apology on liability

(1)   An apology made by or on behalf of a person in connection with any matter alleged to have been caused by the person:

(a)   does not constitute an express or implied admission of fault or liability by the person in connection with that matter, and

(b)   is not relevant to the determination of fault or liability in connection with that matter.”

The magistrate’s judgment

49. The learned magistrate commenced her judgment with an uncontroversial review of the evidence of each of the three witnesses. The magistrate then examined the evidence of Ms Khowly in more detail, finding that she had provided two different versions of what had occurred, which detracted from her credibility. These were the earlier version, which she had provided to her insurer, and that which she provided in her statement and gave in court. The magistrate noted that whereas Ms Khowly had informed the insurer she had seen Ms Amoud’s vehicle only once before the collision, her court version was that she had seen it twice; once before she entered the roundabout and the other whilst she was in it. The magistrate also noted Ms Khowly’s unsupported evidence that Ms Amoud was speeding, and her claim to the insurer, which she withdrew in court, that Ms Amoud was on her phone at the relevant time. The magistrate rejected Ms Khowly’s explanation for having given two different versions, namely, that the court version required more detail, noting that Ms Khowly’s account to her insurer was quite detailed.

50. The magistrate found fault in Heidi Khowly’s evidence, in particular, her allegation that Ms Amoud was speeding, noting she later conceded that she did not see Ms Amoud’s vehicle prior to the collision.

51. The magistrate accepted the evidence of Ms Amoud, being untroubled by her reference to Ms Khowly jumping on the boot of her vehicle although it was a hatchback, hypothesising that a possible explanation was that the cars were so close together that Ms Amoud had seen Ms Khowly as she “came up over the vehicle in the gap between”.

52. The magistrate accepted that s 69 of the Civil Liability Act applied to Ms Amoud’s apology.

53. The magistrate found that Ms Khowly was exclusively responsible for the accident, concluding as follows:

“The road rule requires a person to give way to other vehicles when entering in and in applying that road rule, a person needs to be aware of the potential for drivers to come onto the roadway before they can exit the parking spot, and in my view, the road rule would have operated to require Ms Khowly to ensure that before she moved into the roadway, she ensured that there was a sufficient gap to make sure that [any] cars that would be on the roadway at the point she was pulling out, she gave way to those road users.

In my view, she breached her duty of care when she failed to take account of the potential of the car on the roundabout coming round. She had made an assumption, in my view, that she was not entitled to take. She should have taken the care to ensure that the car was not coming onto her section of roadway before she moved in.

I find that she breached her duty of care when she failed to give way to the vehicle that was coming around the roundabout and into her section of road before she moved out. I find that Ms Amoud did not breach her duty of care. She was on the runway. She was entitled to assume that other [cars] would obey the road rules when moving onto the road. She did not see the rear brake lights and did not see the blinker, and I note that neither of them gave evidence of having seen blinkers. This all happened in a fairly quick period, but I’ve already made comments about preferring the evidence of Ms Amoud to that of Ms Khowly.” (emphasis added)

54. The statement that “neither of them gave evidence of having seen blinkers” appears to be a reference to Ms Khowly’s evidence that Ms Amoud did not indicate to turn right into Blaxcell Street, and Ms Amoud’s evidence that Ms Khowly did not indicate before or when she pulled out of the parking lane.

The grounds of appeal

55. The grounds of appeal are as follows:

“1.    The Court made errors of law in that it applied the wrong test for contributory negligence, by

a.   Apparently relying on Trompp v Liddle (1941) SR (NSW) 108, such case either no longer representing good law or otherwise misapplying it.

b.   Failure to consider that the First Defendant’s duty of care was breached by its failure to keep a proper lookout, to see the Plaintiff’s reversing lights or indicator, and driving at an excessive speed in the circumstances.

c.   Failure to undertake an evaluative process of the relative importance of the acts of the parties in causing the collision.

2.    The Court drew wrong inferences of fact in that the Court failed to consider and give weight to relevant and persuasive evidence, such failure leading to findings adverse to the Plaintiff that were either incontrovertibly wrong or improbable in regard to the point of impact of the vehicles, the speed of the First Defendant’s vehicle, the point at which the First Defendant first noticed the movement of the Plaintiff’s vehicle, and the behaviour of the Plaintiff after the accident.

3.    The Court failed to make material findings of fact, and failed to give reasons applying the law to the material findings of fact:

a.   In regard to the accident;

b.   In regard to the finding that there was no contributory negligence by stating that it was not necessary to go into detail in that regard;

c.   As to why she preferred the evidence of the First Defendant over the Plaintiff in circumstances when aspects of the First Defendant’s evidence was either impossible, fanciful, or otherwise specifically doubted by Her Honour;

And otherwise failed to give reasons of the type referred to in Carthew v Badger & Ors [2004] NSWCA 317

4.    The Court failed to provide procedural fairness to the Plaintiff, by

a.    Not allowing the Plaintiff to ask questions and admit evidence regarding the damage to the vehicles, when such evidence would have been admissible and relevant, or otherwise unduly intervened noting the matters referred to in Minogue v Human Rights & Equal Opportunity Commission [1999] FCA 85.

b.    Requiring the Plaintiff (being the Defendant in the proceedings below) to give evidence first in the proceedings, without giving reasons for that requirement, or giving the Plaintiff the opportunity to submit as to why it should not be so.

5.    The Court failed to admit relevant evidence, being:

a.   The Police Report

6.    The Court misconstrued statutes, as follows:

a.   Road Rule 87, by finding that it applied to traffic with the potential to enter into a lane or line of traffic.

b. s69 of the Civil Liability Act 2002, in that it held that it applied to the admission of the First Defendant that she ‘did not see’ the Plaintiff and that the admission was not admissible.”

The relevant legal framework

56. Ms Khowly relies on r 51.53(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), which relevantly provides as follows:

“51.53   Circumstances in which Court may order new trial

(1)   The Court must not order a new trial on any of the following grounds:

(a)   misdirection, non-direction or other error of law,

(b)   improper admission or rejection of evidence,

(c)   …

(d)   on any other ground,

unless it appears to the Court that some substantial wrong or miscarriage has been thereby occasioned.”

57. An appeal to the Supreme Court from a determination in the Local Court is permitted pursuant to Pt 3, Div 4 of the Local Court Act 2007 (NSW), which is relevantly as follows:

“Division 4   Appeals from the Local Court

38   Judgments and orders final

Subject to this Division, all judgments and orders of the Court exercising jurisdiction under this Part are final and conclusive.

39   Appeals as of right

(1)   A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law.

(2)   …

40   Appeals requiring leave

(1)   A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court.

(2)   A party to proceedings before the Court sitting in its General Division who is dissatisfied with any of the following judgments or orders of the Court may appeal to the Supreme Court, but only by leave of the Supreme Court:

(a)   an interlocutory judgment or order,

(b)   a judgment or order made with the consent of the parties,

(c)   an order as to costs.

41   Determination of appeals

(1) The Supreme Court may determine an appeal made under section 39 (1) or 40:

(a)   by varying the terms of the judgment or order, or

(b)   by setting aside the judgment or order, or

(c)   by setting aside the judgment or order and remitting the matter to the Local Court for determination in accordance with the Supreme Court’s directions, or

(d)   by dismissing the appeal.

(2)   …”

58. Pursuant to ss 39(1) and 40(1) of the Local Court Act, the Court is required to determine the nature of the question that each ground gives rise to, as to whether it is a question of fact or law or of mixed law and fact. The order sought in the amended summons for costs of the hearing in the Local Court warrants consideration of s 40(2)(c).

59. Although the orders sought by the plaintiff, if successful, are that either judgment be entered for the plaintiff or that the matter be remitted, the options that are available to the Court are confined to those provided at s 41(1).

The parties’ submissions on the plaintiff’s grounds

The relevant legal principles

60. On the question of leave, Ms Amoud submitted that Ms Khowly’s appeal was based on findings of fact determined by the magistrate, namely, that Ms Khowly was negligent and that Ms Amoud was not negligent, and therefore the appeal was misconceived, since a right of appeal is only available on a question of law and a question of mixed law and fact with leave: Local Court Act, ss 39(1) and 40(1).

61. Ms Taha submitted that the magistrate’s judgment was unimpeachable and, contrary to her position at the Local Court hearing, Ms Khowly was exclusively liable for the accident.

62. Ms Khowly accepted that she was obliged to establish that, pursuant to the defects alleged in the grounds of appeal, she was deprived of an opportunity of a different result: Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54. In that case, the High Court said, at [9]:

“… an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.”

The plaintiff’s submissions on her grounds of appeal and the defendants’ response

63. Ms Khowly’s submissions on the grounds of appeal may be conveniently grouped around the structure of her amended summons seeking leave to appeal. Where the defendants made submissions to the contrary, they are acknowledged.

Grounds 1 and 3: The magistrate applied the wrong test for contributory negligence, and failed to make material findings of fact and give reasons for finding that there was no contributory negligence by Ms Amoud

64. Ms Khowly noted that in her judgment, the magistrate appeared to adopt the summary of the principle in Trompp v Liddle that had been submitted by counsel for Ms Amoud. However, Ms Khowly submitted that Ms Amoud’s counsel had oversimplified the ratio of Trompp v Liddle, noting that the Court in that case had stated, at 110:

“A driver is entitled to assume that other drivers will observe the rules of the road. This does not mean that he may drive at any pace he chooses so far as roads coming in on his left are concerned, or with complete indifference to the possibility of a car suddenly emerging from the side road as the result of accident, miscalculation, ignorance or recklessness.”

65. The magistrate failed to make certain findings of fact that were necessary to be made, in determining whether either or both Ms Khowly and Ms Amoud were negligent. These included the point of impact of Ms Khowly’s vehicle by Ms Amoud’s vehicle, and whether either vehicle had activated its indicators.

66. Ms Amoud and Ms Taha submitted that the magistrate’s reasons were adequate, relying on Beale v Government Insurance Office of NSW (1977) 48 NSWLR 430 per Meagher JA at 443-444. Ms Amoud submitted that the essence of the magistrate’s judgment was that Ms Khowly failed to give way to Ms Amoud and that Ms Amoud was not negligent:. She submitted:

“… [Ms Amoud] was on the roadway and entitled to assume that [Ms Khowly] would obey the road rules, that is give way to her vehicle.

… [Ms Khowly’s] case which was that she saw [Ms Amoud] in the roundabout and at that time she pulled out of her parking spot and that [Ms Amoud] must have been travelling too fast because in that short time [Ms Amoud] entered Dellwood Ave and ran into the rear bumper bar and rear fender of her vehicle which was almost fully out of the parking space was rejected.” [Ms Khowly submitted that the magistrate failed to give reasons, or adequate reasons, as to why there was no contributory negligence by Ms Amoud, relying on the principles stated in Carthew v Badger [2004] NSWCA 317 by Giles JA (Santow and Ipp JJA agreeing) at [19]:

“It may be that particular evidence, beyond the credibility of witnesses, is important or critical to the finding of fact. If it is not referred to, it may be inferred that it was not duly considered and the reasons may be deficient … If it is referred to but without any analysis of the evidence from which it can be seen why, having regard to it and the other evidence, the judge came to the finding of fact, again the reasons may be deficient: illustrations are Sinha v Health Care Complaints Commission [2001] NSWCA 206 and Fitzgibbon v The Waterways Authority [2003] NSWCA 294. In the first of these cases it was held that reasons were insufficient when the evidence of one witness was accepted without proper regard to unchallenged conflicting evidence of another witness. The nature of the evidence must be assessed …”

67. Ms Khowly submitted that aspects of Ms Amoud’s evidence were improbable, and in one instance, impossible. These included her assertion that she first saw Ms Khowly’s vehicle move when it was “a metre or so” in front of her, her assertion that she struck the front of Ms Khowly’s vehicle, not the rear of it, her assertion that Ms Khowly came at her over the boot of her car and tried to attack her, even though it did not have a boot, and the terms of her apology to Ms Khowly.

68. Ms Amoud submitted that the magistrate’s reasons were sufficiently detailed in order for Ms Khowly to understand why her case had been wholly rejected.

69. Ms Amoud submitted that the magistrate did not make a finding that Ms Khowly’s vehicle pulled out when it was a metre from Ms Amoud and that the initial point of impact of Ms Amoud’s vehicle on Ms Khowly’s vehicle was conjecture, and was not the subject of a finding by the magistrate. The fact that, in her judgment, the magistrate did not mention Ms Amoud’s claim that Ms Khowly jumped on her vehicle and attacked Ms Amoud was indicative that the magistrate considered it to be immaterial.

Grounds 2, 3(c), 4(a): The magistrate’s rejection of evidence of damage to Ms Khowly’s vehicle as relevant to the point of impact

70. As noted at [39*] above, in her cross-examination of Ms Amoud, Ms Khowly challenged Ms Amoud’s assertion that the point of impact between their vehicles was the area of the offside front wheel of her car. Ms Khowly suggested to Ms Amoud that photographs of the damage to her vehicle were consistent with the point of impact being in the area of the rear offside wheel. Ms Khowly’s line of questioning was stopped by the magistrate, as follows:

“MS KHOWLY: Well, I suggest to you that at the front wheel it’s just scraping, from the evidence of the damage to my car – it’s scraped. And at the back there’s an actual dent, so you would have – you hit the back.

A. No, I didn’t hit the back I hit the front---

Q. So then how did the dent---

A. ---side of the car.

HER HONOUR: Look, I’m going to stop you here. This is the type of evidence that is given by an expert accident reconstruction---

… You can’t be an expert in your own case …

… And she’s not an expert. You’re not an expert. You’ve put to her that you believe that’s where the point of damage is …

…

I mean, you can make the submissions to me, but you can’t put it to her that – she’s said she’s a hairdresser, she is a stay-at-home mum. There’s nothing to suggest she is an accident expert.”

71. In her judgment, the magistrate said:

“In relation to Ms Khowly, she made submissions about speed and distance and how the accident occurred. Some of that evidence, in my view, is evidence that should have been given by an expert and I don’t accept that she’s in a position to be able to give that type of evidence to the court.

It’s possible that the collision occurred at the rear driver’s side of her vehicle given the impact damage that’s showing on the other side of her vehicle.”

72. Ms Khowly submitted that the line of questioning did not require an expert:

“No expert is required to put the proposition that there would not be damage to a certain area unless it was struck. Further, this was clearly a matter that went to [Ms Amoud’s] credit. The Court erred in preventing this line of questioning.”

73. Ms Amoud submitted that the magistrate correctly rejected the question and the subject matter as being within the domain of expert evidence.

Ground 4(b): Lack of procedural fairness due to failure of the magistrate to assist Ms Khowly as an unrepresented litigant

74. Ms Khowly submitted that there was a lack of procedural fairness in the Local Court hearing that was constituted by a failure on the part of the magistrate to provide assistance to her as an unrepresented litigant, which deprived her of a fair hearing.

75. The magistrate asked Ms Khowly to give evidence and to do so first, without an explanation as to why she would be required to give evidence, and why she had to do so first. This occurred in the context of her being one of two defendants in both Ms Amoud and Ms Taha’s cases. Ms Amoud and Ms Taha were present in court whilst she gave her evidence, again without explanation and contrary to the usual sequence and circumstances of a party giving evidence, when there are contested facts and another party is to give evidence in respect of those contested facts.

76. Ms Amoud submitted that it was appropriate for Ms Khowly to give evidence first, as follows:

“There was no procedural irregularity; the claim by the second defendant proceeded first and the plaintiff being the first defendant was cross examined first in circumstances where the second defendant’s evidence was admitted without objection and the second defendant or her witness were not required for cross examination. Further, the court facilitated the tender of the plaintiff’s statement and then the copying of additional evidence which the plaintiff failed to annex to her statement but wished to be tendered.”

Ground 5: The magistrate failed to admit the COPS entry, which was relevant evidence

77. Ms Khowly submitted that the magistrate rejected her tender of the COPS entry without allowing her to make a full submission in support of its tender and in any event, the magistrate erred on the basis of her rejection of it.

78. The report included certain observations and opinions that, on their face, could only have been made by the officer who attended the accident. The observations include the nature of that part of the roadway and the damage that was observed to the three vehicles, apparently caused by the collisions, as well as an opinion as to the point of impact of Ms Amoud’s vehicle on Ms Khowly’s vehicle. The report stated:

“Dellwood Street is a one lane road which travels in both East and West directions. The road is separated by a median concrete strip.

…

[Ms Amoud] has collided with the very rear offside of the vehicle and scraped the entire offside of the vehicle all the way to the front. This is observed from the damage on the vehicle. The damage clearly indicates a scraping mark on the entire offside of the vehicle.”

79. The two drivers’ accounts are recorded in the report, apparently provided to the police at that time. The report stated:

“[Ms Khowly] has indicated to move from her position to enter the lane. [Ms Khowly] has checked her view and not observed anyone on the street. [Ms Khowly] has began merging onto the road and whilst halfway on the road [Ms Amoud] has collided with the rear of [Ms Khowly’s] vehicle.

…

[Ms Amoud] has provided a version indicating that [Ms Khowly] has pulled out onto the road in front of her. [Ms Amoud] states she tried to stop at the time of collision.

All drivers have come to a stop where police attended shortly after.”

80. Of significance in this version is that Ms Khowly, apparently within minutes of the accident, informed police that she had “indicated” before she began moving her vehicle into the lane for traffic.

81. The relevant part of the transcript, which involves an objection by counsel for Ms Amoud to the COPS entry (referring to it as “a police report”), is as follows:

“[COUNSEL]: … The only thing we do object to, there is a police report by some police that turned up after the event.

HER HONOUR: Whereabouts?

[COUNSEL]: That should be the last document, perhaps. It looks like a typical COPS report, your Honour.

HER HONOUR: Well, that’s hearsay, isn’t it?

[COUNSEL]: Correct.

HER HONOUR: O.K. The police weren’t present. They didn’t see what happened.

MS KHOWLY: I understand your Honour but I’m not – they’re not there to talk about what happened that the accident, they’re there ---

HER HONOUR: But that’s exactly the point. They weren’t there, and if they’re not at court today, you putting in the report is what we call hearsay.

MS KHOWLY: O.K.

HER HONOUR: And that’s not permissible. I can’t receive that, so I’m going to take the COPS event out …

… Once an objection is taken, I can’t allow that to be evidence to be adduced.”

82. Ms Khowly submitted that the magistrate had stopped her from explaining the relevance of the document. Having regard to the excerpted passage from the transcript, that aspect of the complaint is made out.

83. Ms Khowly submitted that parts of the COPS entry, which were relevant to the issues in dispute, were not hearsay. The COPS entry records that it was made by Constable Anton Sahyoun of Rosehill Police Station, commencing on the date of the accident from 3:40pm, which was ten minutes after the accident. It appears from the report that Constable Sahyoun attended the accident and interviewed the two drivers, and then finished his report on 15 August 2017.

84. Ms Khowly submitted that the COPS entry comes within an exception to the hearsay rule and was admissible as a business record, including the drivers’ accounts of what had occurred, since, pursuant to s 69 of the Evidence Act1995 (NSW), each was “a previous representation made or recorded in the document in the course of, or for the purposes of, the business”.

85. Section 69 of the Evidence Act relevantly provides as follows:

“69   Exception: business records

(1)   This section applies to a document that:

(a)   either—

(i)   is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business, or

(ii)   at any time was or formed part of such a record, and

(b)   contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.

(2)   The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made—

(a)   by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact, or

(b)   on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.

(3)   Subsection (2) does not apply if the representation—

(a)   was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding, or

(b)   was made in connection with an investigation relating or leading to a criminal proceeding.

…

(5)   For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person’s knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact).”

86. Ms Amoud submitted that the COPS entry was a hearsay document, citing s 59(1) of the Evidence Act and that, in any event, photographs of the damage to Ms Khowly’s vehicle were in evidence. It was submitted that if the evidence was admissible pursuant to s 69 of the Evidence Act and the expressions of opinion in the document were not excluded by s 69(3) of that Act, they were nevertheless excluded by s 76 of that Act and were not admissible pursuant to s 78, because the officer had not witnessed what occurred: Lithgow City Council v Jackson (2011) 244 CLR 353; [2011] HCA 36 at 362-3.

87. Sections 76(1) and 78(a) of the Evidence Act relevantly provide as follows:

“76   The opinion rule

(1)   Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

…

78   Exception: lay opinions

The opinion rule does not apply to evidence of an opinion expressed by a person if:

(a)   the opinion is based on what the person saw, heard or otherwise perceived about a matter or event…”

Ground 6(a): The learned magistrate misconstrued r 87 of the Road Rules

88. In her judgment, the magistrate had regard to r 87(1) of the Road Rules, stating:

“The road rule requires a person to give way to other vehicles when entering in and in applying that road rule, a person needs to be aware of the potential for drivers to come onto the roadway before they can exit the parking spot, and in my view, the road rule would have operated to require Ms Khowly to ensure that before she moved into the roadway, she ensured that there was a sufficient gap to make sure that [any] cars that would be on the roadway at the point she was pulling out, she gave way to those road users.”

89. Ms Khowly submitted:

“… this analysis ignores the fact that an ordinary reading of that Rule limits the entrance into a lane or line of traffic only to vehicles in that same lane or line of traffic. If the Rule had been meant to apply to traffic about to enter that lane or line of traffic, those words could have been easily added.

… For the above reason, the Court misconstrued Road Rule 87.

… For completeness, it should be added that the Court appeared to accept that [Ms Amoud’s] car was not ‘in the lane or line of traffic’ … when [Ms Khowly] pulled out, but merely had the potential to come into it.”

90. Ms Amoud and Ms Taha submitted that the magistrate had correctly applied the rule.

Ground 6(b): The learned magistrate misconstrued the effect of s 69 of the Civil Liability Act

91. The plaintiff conceded that only the first three words of the apology by Ms Amoud, which was “I’m so sorry, I didn’t see you”, were affected by s 69 of the Civil Liability Act. This meant that the concession by Ms Amoud that she had not seen Ms Khowly’s vehicle was admissible as to fault.

Consideration

92. Grounds 1(a), 4, 5 and 6 raise questions of law, and thus leave is not required for Ms Khowly to advance them. Grounds 1(b) and (c), 2 and 3 raise questions of mixed law and fact, although in relation to 2, only insofar as it overlaps with grounds 1, 3 and 4; for example, the failure by the magistrate that is alleged in ground 2 to make findings as to the point of impact overlaps with grounds 1(c), 4(a) and 5. Otherwise, ground 2 raises issues of fact only, and is not further considered.

93. The principles applicable to the role of the Court when a party is unrepresented, so as to ensure a fair trial to all parties, were stated in Hamod v State of New South Wales [2011] NSWCA 375, per Beazley JA at [309]-[316]. Ms Khowly was the defendant and cross-claimant, so that in the normal course, she would not have been called upon to present her case before Ms Amoud and Ms Taha. The magistrate did not explain why she departed from that sequence and did not inform Ms Khowly that there was a usual sequence in which parties present their cases. I conclude, however, that there is no evidence of any actual prejudice being occasioned to Ms Khowly by the order in which the parties presented their cases.

94. I reject the submission made on behalf of Ms Khowly to the effect that the magistrate misapplied r 87(1) of the Road Rules and the principle identified in Trompp v Liddle. In my opinion, there was nothing said by the magistrate in relation to either matter that was incorrect.

95. Ms Khowly’s submission that the police observations as recorded in the COPS entry were not hearsay is incorrect; in documentary form they are first-hand hearsay, since the police officer was not giving an account of his observations in the form of direct evidence in the hearing: s 59(1) of the Evidence Act. Those observations do, however, come within s 69(2)(a) of the Evidence Act and therefore were prima facie admissible as an exception to the hearsay rule. However, although the description of the street at the time of the accident and the nature and position of the damage to Ms Khowly’s vehicle were matters relevant to the issues in dispute, there was other evidence of these matters before the magistrate which was consistent with these passages, so that the rejection of the COPS entry did not disadvantage Ms Khowly. In particular, Ms Khowly’s evidence included photographs of the damage occasioned to that side of her vehicle. In any event, the magistrate did not make findings contradictory to those observations in the COPS entry. Accordingly, the exclusion of these aspects did not occasion any unfairness to Ms Khowly.

96. The opinion of the police officer as to the initial point of impact of Ms Amoud’s vehicle on Ms Khowly’s vehicle is stated in the COPS entry to be a conclusion drawn from his or her observations as to the location and nature of damage to the vehicles, in particular, to Ms Khowly’s vehicle. The question arises whether the opinion would be admissible in spite of s 76(1) of the Evidence Act, because of s 78(1) of that Act. Lithgow City Council v Jackson, per the joint judgment of French CJ, Heydon and Bell JJ, Gummow and Crennan JJ agreeing in separate judgments, is authority that s 78 applies to evidence that is otherwise admissible pursuant to s 69, and that s 78(a) is not satisfied by evidence of an opinion that was not formed by witnessing the “matter or event”, which in the context of this case, is the collision: see at [40]-[41]. Accordingly, that part of the COPS entry would be inadmissible.

92. The record in the COPS entry of the representations of Ms Khowly and Ms Amoud is second-hand hearsay, and comes within s 69(2)(b) of the Act: see Averkin v Insurance Australia Ltd (2016) 92 NSWLR 68; [2016] NSWCA 122 per Basten JA at [5]-[6]. As to s 69(3)(b), it has not been suggested that the representations made to the police officer by Ms Khowly and Ms Amoud either related, or led, to a criminal investigation. Accordingly, the accounts provided at that time by the two drivers were prima facie relevant and admissible, although the magistrate did not determine their admissibility according to law.

93. Having regard to the reasoning of the magistrate in rejecting the evidence of Ms Khowly and finding for Ms Amoud, in particular, that Ms Khowly had not indicated before or during her driving of her vehicle into the path of traffic, the evidence of the COPS entry was both relevant and of significant weight to a determination of the facts in dispute. If the magistrate had heard and accepted that excluded evidence, given its temporal proximity to the events in question, it may have led to a different conclusion, at least as to whether there was contributory negligence on the part of Ms Amoud that partially or wholly caused the accident.

94. I accept the submission that the magistrate erred in rejecting Ms Khowly’s cross-examination of Ms Amoud concerning damage to the panels of her vehicle in the vicinity of her rear offside wheel. At the stage at which the magistrate intervened, the terms of Ms Khowly’s questions did not necessarily require expertise on the part of the questioner or the witness. Ms Khowly’s simple proposition was that Ms Amoud’s evidence, to the effect that the point of impact of her vehicle with Ms Khowly’s was in the vicinity of Ms Khowly’s vehicle’s front offside wheel, did not account for the more significant denting of body panels in the area of the rear wheel and the scraping between the rear and front offside wheels that is apparent in tendered photographs of Ms Khowly’s vehicle taken following the accident, and which were unchallenged. There was no dispute that, at the time of impact, the vehicles were travelling at an angle to each other in broadly the same direction and that Ms Amoud’s vehicle was travelling significantly faster than Ms Khowly’s vehicle. Ms Khowly was entitled to test Ms Amoud’s version by asking her how she would account for the damage to Ms Khowly’s vehicle to the body panels in the vicinity of the rear offside wheel and the scraping of body panels between the wheels, particularly in view of it being more significant than to the area of the front wheel.

95. I accept that the magistrate did not make material findings of fact or provide reasons as to why Ms Amoud was not also negligent. In her judgment, the magistrate noted, correctly in my view:

“The risk for collision was foreseeable as vehicles moved in and out of park spots and made their way along the road. The risk was not insignificant, and a reasonable person in the position of the drivers would have taken precautions to prevent the risk occurring. The burden of taking precautions was light, as it required each driver to pay close attention to what was occurring round them and to take the necessary steps to avoid collision with other vehicles.”

101. However, the only analysis of the relevant evidence, and attempt at reasoning for her conclusion that “Ms Amoud did not breach her duty of care”, was the italicised part of the magistrate’s judgment, at [52*] above. Her Honour’s explanation that “[Ms Amoud] did not see the rear brake lights and did not see the blinker, and … neither of them gave evidence of having seen blinkers” does not shed any light on why she concluded that only Ms Khowly was negligent.

102. The relevance of the issue of the point of impact was to the question of how far out of the parking lane Ms Khowly had ventured before her vehicle was hit by Ms Amoud’s, which in turn was relevant to how much notice Ms Amoud had of Ms Khowly’s attempt to drive into her lane. In her judgment, as noted in the passage quoted at paragraph [72]* above, the magistrate acknowledged it was “possible” that the point of impact was in the vicinity of the rear wheel, but appeared to decline to make any further finding in the absence of expert evidence.

103. I accept Ms Khowly’s submission that the magistrate should not have disregarded the words “I didn’t see you” when she applied s 69 of the Civil Liability Act. However, I note that having regard to those words would not have affected Ms Amoud’s case, which was consistently that she did not become aware of Ms Khowly’s vehicle moving into her lane until a collision was unavoidable.

Conclusion

104. In my opinion, the rejection of the COPS entry and the disallowance of Ms Khowly’s cross-examination of Ms Amoud as to the point of impact of Ms Khowly’s vehicle were errors of law made on the part of the magistrate that, pursuant to the exception provided in r 51.53(1)(b) of the UCPR, constitute “a substantial wrong or miscarriage”, thereby warranting a fresh hearing.

105. The evidence, as it would be on a re-hearing, is capable of leading to a conclusion that both Ms Khowly and Ms Amoud were negligent, which satisfies Ms Khowly’s onus pursuant to Stead v State Government Insurance Commission; see [62]*, above.

106. Regrettably, the power to vary the terms of a judgment of the Local Court on an appeal pursuant to s 41(1)(a) of the Local Court Act does not extend to imposing a different judgment on the material before the Court: see the authorities considered in Regency (Showerscreens & Wardrobes) Pty Ltd v Nadinic [2018] NSWSC 68 per N Adams J at [89]-[93]. Remitting the matter for re-hearing would add to an already significant cost burden to all three parties, for what was a relatively minor car accident, but regrettably, there is no alternative to that course.

Costs

107. The defendants have made separate submissions on the question of costs associated with the adjournment of the original hearing date of 1 August 2019. On 30 July 2019, the parties’ counsel appeared before R A Hulme J for an application by the plaintiff to vacate the hearing date. His Honour granted the adjournment, noting that the plaintiff was not at fault for the reasons noted by me at the outset of this judgment, but neither of course were the defendants. Counsel for each defendant made an application for costs thrown away, and his Honour reserved on the question of costs.

108. Ms Amoud submitted that her costs included those associated with the vacated hearing date, the application to vacate the hearing, attending the mention of the matter on 30 July 2019, and a directions hearing on 27 August 2019. She relied upon the statement of principles as to costs by Gleeson CJ in Ohn v Walton (1995) 36 NSWLR 77 at 79. Essentially, she submitted that Ms Khowly’s counsel was aware of her solicitor’s arrest from early July, which left her almost four weeks to arrange alternative representation,In addition, Ms Khowly did not advise the Court of her situation until 26 July 2019.

109. Ms Amoud also relied upon ss 56(1) and (3) of the Civil Procedure Act 2005 (NSW). The relevant parts of that Act are as follows:

“56   Overriding purpose

(1)   The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2)   The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

(3)   A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.

…

(5)   The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.”

110. Ms Taha, who Ms Khowly and Ms Amoud both accept was blameless in the collision, also prepared written submissions on costs associated with the vacated hearing date. Counsel for Ms Taha stated that they had not been contacted by Mr Churchill and were unaware of the appeal until 14 May 2019, when they were contacted by the solicitor acting for Ms Amoud. The first contact with a legal representative acting for Ms Khowly was on 25 July 2019. Counsel for Ms Taha noted that counsel for Ms Khowly appeared on a direct access basis at the hearing in this matter and submitted that, therefore, he could have appeared on that same basis on 1 August 2019.

111. In written submissions, counsel for Ms Khowly submitted that Ms Khowly was blameless in the need for her to seek an adjournment of the hearing. She was unaware of Mr Churchill’s incarceration until “a late stage”. Counsel further stated:

“[Ms Khowly] could not have advised the court of the issue until she was aware of the implications. Counsel took that step at the earliest opportunity when he became aware.”

112. Counsel for Ms Khowly submitted that the fact that he appeared on a direct access basis at the hearing but was not prepared to do so on the earlier date is irrelevant; he was entitled to not do so on that occasion.

113. I accept that Ms Khowly was entirely blameless in the reasons for the hearing in this matter being adjourned. However, I am unaware of any principle by which the defendants could, or should, be required to shoulder the burden of the costs associated with Ms Khowly unexpectedly being deprived of legal representation. I also accept that counsel for Ms Khowly was entitled to decline to retain the brief for the 1 August 2019 hearing on a direct access basis. It is to his credit, rather than a basis for criticism, if he ultimately decided to do so in order to assist his client and facilitate a speedy resolution of the matter.

114. I have come to the view that I should make an order for costs in favour of each defendant that were reserved by R A Hulme J on 30 July 2019 and for the subsequent directions hearing before the Registrar on 27 August 2019.

115. In view of the circumstances in which Ms Khowly came to be in this position, it may be that an approach is made on her behalf to the New South Wales Law Society for reimbursement of her costs occasioned by the arrest of Mr Churchill. If that occurs, I note that in my view, based on the material before me, there was nothing that Ms Khowly could reasonably have done to mitigate those costs.

116. In relation to the costs order made by the magistrate, I grant leave to the plaintiff pursuant to s 40(2)(c) of the Local Court Act to appeal the magistrate’s cost order, and make a fresh order that will follow the result of this appeal.

117. In relation to the costs of this appeal, I make an order on the same basis.

118. Finally, I am mindful of the pressures of hearing matters in the Local Court, particularly when one or more parties are unrepresented. Nothing in this judgment should be construed as being critical of the learned magistrate. There is no basis for the matter to be necessarily remitted to a differently constituted court.

Orders

119. I make the following orders:

1. Leave is granted to file the amended summons.

2. Leave is granted to appeal on grounds 1(b) and (c), 2 and 3. In relation to ground 2, leave is only granted insofar as it overlaps with grounds 1, 3 and 4 of the plaintiff’s amended summons.

3. Appeal allowed.

4. Remit the matter to the Local Court for re-trial on the question of liability.

5. Leave is granted to the plaintiff to appeal the order made by the magistrate as to costs, pursuant to s 40(2)(c) of the Local Court Act 2007 (NSW).

6. The plaintiff and the first defendant to pay their own costs of the Local Court hearing and each is to pay half the costs of the second defendant.

7. Save for order (7), the plaintiff and the first defendant to pay their own costs of the appeal and each to pay half the costs of the appeal of the second defendant.

8. The plaintiff to pay the costs reserved by R A Hulme J on 30 July 2019 and in relation to the Registrar’s directions hearing on 27 August 2019.

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Decision last updated: 23 October 2020