Kuniczek v Simmonds - [2018] SADC 7

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
KUNICZEK v SIMMONDS
[2018] SADC 7
Judgment of His Honour Judge Tilmouth
14 February 2018
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - NATURE OF RIGHT - SCOPE AND EFFECT OF APPEAL
Held: Judgment given in the Minor Civil Claims jurisdiction affirmed, no error of fact or law being made.
Magistrates Court Act 1991 (SA) s 38(1), (5), (6) & (7); Harradine v District Court of South Australia (2012) 280 LSJS 572; Warren v Combes (1997) 142 CLR 531 , referred to.

KUNICZEK v SIMMONDS
[2018] SADC 7
The Proceedings

Elzbieta Kuniczek applies for the review of an adverse decision of a Magistrate declining to award her damages for property damage arising from a motor vehicle accident that took place on the 5^th of May 2016.
In an ex tempore judgment delivered following a hearing on the 11^th of September 2017, the Magistrate concluded the accident was wholly caused by the negligence of the applicant. Her Honour absolved the respondent Mrs Michaela Simmonds (defendant) of any negligence on her part. The question for determination in this application for review is whether the Magistrate was correct in so finding, that is to say whether there was reviewable error.
The Pleadings
By her statement of claim filed in the small claims jurisdiction of the Adelaide Magistrates Court, Mrs Kuniczek described the incident giving rise to her claim as occurring at about 4pm on the 5^th of May 2016 in a car park at the Edwardstown Castle Plaza Shopping Centre. She described completing a ‘reverse manoeuvrer, carefully with lights on’ and that suddenly a vehicle, ‘dragged her backwards for about 20 metres and caused damage to three cars including her own.’ That vehicle was driven by Mrs Simmonds. Mrs Kuniczek claimed damages to her vehicle of $3,000, together with a towing fee of $200 and she made reference to CCTV footage of the incident obtained by her in a Freedom of Information application.
In her defence and counter-claim, Mrs Simmonds admitted the date and location of the subject incident. She claimed her BMW was stationary within a parking bay of the car park when Mrs Kuniczek’s Magna reversed into it. Her counter-claim for property damage to her vehicle amounted to $1,843.38.
In a lengthy and at times difficult to follow defence to the counter-claim,[1] Mrs Kuniczek claimed that she was “being dragged by the defendant who drove forward and dragged the Magna… backwards for 30 metres.” She denied reversing into Mrs Simmonds’ vehicle.
[1] Filed 31 March 2017.
Proceedings in the Magistrates Court
After making preliminary observations as to the nature of the minor civil jurisdiction, her Honour then took evidence from Mrs Kuniczek and asked her a number of questions after Mrs Kuniczek gave a lengthy first account of the incident. This was broadly speaking, consistent with her pleadings. Photographs of her damaged vehicle were admitted into evidence, as were a bundle of photographs submitted by Mrs Simmonds. A Mr D Hand, an insurance representative was also present at this hearing. He advised the court that the counter-claim was withdrawn on the basis that ‘the plaintiff’s third party property insurer Allianz had settled that claim in full.’
Her Honour next sought a description of Mrs Simmonds’ version of the events. She maintained that she was stationary in the car park and that ‘all of a sudden there was a massive hit from behind me, it pushed my entire car forward… before I had a chance to do anything else I was hit again’.[2] Her Honour also viewed the CCTV images of the incident.[3] This course of events in the lower court was entirely in keeping with the requirements of s 38(1) of the Magistrates Court Act 1991 (SA) to conduct an ‘inquiry… into the matters in dispute’; Harradine v District Court of South Australia. [4]
[2] T16.8-.12.
[3] T20.30 – 25.5.
[4] (2012) 280 LSJS 572, [46]-[49].
The Magistrates Reasons
After briefly discussing the respective positions of the parties in an ex tempore judgment, her Honour reasoned:[5]
[4] From the CCTV footage obtained from the shopping centre it is clear that at the point of impact between the plaintiff’s and defendant’s vehicle the BMW was stationary. Having regard to the close up footage in particular which shows the Magna reversing, and the BMW pushed forward, the only logical explanation is that the plaintiff’s vehicle reversed into the stationary BMW.
[5]The plaintiff would not identify how she believed the two vehicles collided but submitted that the damage to her Magna was caused by the defendant’s vehicle dragging her vehicle through the car park. It is on this basis that she claims for the damage to her vehicle.
[5] Kuniczek v Simmonds AMCCI-17-255.
Next after identifying the issues calling for resolution, her Honour continued:
[9]The video footage is entirely consistent with the defendant’s version of events that she was stationary and her vehicle received those two impacts, from behind. The first impact appeared to push the BMW. The subsequent impact occurred and then the BMW started driving forward.
[10]I accept that the collision was traumatic for both the plaintiff and the defendant and that was apparent in the giving of evidence by each of them today. The initial collision between the vehicles occurred as a result of the negligence of the plaintiff in that she reversed into the BMW vehicle causing the collision.
[11]I do not find that the defendant was neglect [sic ‘negligent’] for driving forward after that. She did so in circumstances where she was terrified and I might say justifiably so. The path ahead of her vehicle was clear. She was unaware that the plaintiff’s vehicle was behind her, nor was it reasonable for her to suspect that the multiple impacts to her vehicle were as a result of an innocent or inadvertent accident.
[12]The circumstances were brought about entirely by the plaintiff reversing into the defendant’s stationary vehicle. It was reasonable for the defendant to try move herself and her vehicle to safety before exiting her vehicle.
[13]Accordingly I find that the defendant was not negligent and the plaintiff’s claim is dismissed. The defendant is entitled to the costs of her attendance today which I fix in the amount of $40.
The Review Process
The right of review to the District Court is conferred by s 38(6) of the Magistrates Court Act 1991 (SA). The powers of disposition contained in s 38(7) thereof include affirmation, rescission and substitution, but no power of remission. The court had available to it all the material available to the Magistrate and took submissions from both parties, orally and in writing. A number of CCTV clips of the incident taken from overhead cameras were viewed several times as well as an ‘enlarged’ portion provided by Mrs Simmonds. This procedure was also in accordance with that suggested in Harradine v District Court of South Australia.[6]
[6] (2012) 280 LSJS 572, [53].
It was difficult to discern precisely the basis upon which Mrs Kuniczek contends the judgment of the Magistrate was wrong. She remained adamant that the Magistrate had completely misunderstood the facts of the case. It is nevertheless clear that her Honour based her conclusions on the objective evidence depicted in the CCTV footage, rather than on any preference for a particular party. That being the case, this court is in just as good a position as the court below to draw appropriate inferences from uncontested or objective facts: Warren v Combes.[7]
[7] (1979) 142 CLR 531.
Resolution
Having viewed the several video footages multiple times, it is clear as it can be that Mrs Simmonds’ vehicle was stationary at the point of impact. It is not at all evident precisely how Mrs Kuniczek managed to reverse as far as she did. It may well be that she lost control of her vehicle in what can only be fairly described as a bizarre piece of driving. All the same, on any view of the facts, the impact between the two vehicles was not caused or contributed to by any driving on the part of Mrs Simmonds.
The finding that she was stationary at that time, was not only open to her Honour, it was the only inference that could be reasonably drawn from the video evidence. The Magistrate’s conclusion that Mrs Simmonds’ vehicle was stationary and that the collision occurred because of the negligence of Mrs Kuniczek in reversing into it are not therefore attended by reviewable error. Likewise, the finding that there was no contributory negligence on the part of Mrs Simmonds was inevitable, upon the conclusion that she was stationary at the point of impact. In as much as it might be suggested she was negligent in driving forward, it was a decision made under the pressure of time and circumstance brought about by the negligence of Mrs Kuniczek. In any event it would not be possible to conclude on the balance of probabilities that this action caused any more damage than was already caused to Mrs Kuniczek’s vehicle on initial impact. Assuming it was open for the court to interfere, an independent review of the CCTV evidence leads this court to reach precisely the same conclusion as the Magistrate for precisely the same reasons.
It was difficult to understand exactly what complaints Mrs Kuniczek articulated during the review. She repeated oft times that the video recordings were only two dimensional, which of course was true enough. However as noted earlier, the video footage is unmistakable. Other complaints as to how damage to a nearby Volkswagen came about, or whether the two cars became locked together, rear bumper to rear bumper, were caused by the original act of negligence in reversing into Mrs Simmonds’ vehicle.
Mrs Kuniczek was also critical of decisions apparently made by insurers in assessing the merits of the case and of a plan of the scene submitted by Mrs Simmonds to her insurers, which found its way into the papers before the Magistrate. These were not matters relied upon by the Magistrate and therefore had no influence in her Honour’s reasoning process.
Conclusion and Orders
No error of law or fact justifying intervention on Review is demonstrated. On the contrary, the conclusions of the Magistrate were firmly grounded in objective facts depicted in the video evidence of the subject incident. This court draws the same conclusions as the Magistrate from this material.
In those circumstances the judgment given in the court below is affirmed and the application for review dismissed accordingly. Since both parties were unrepresented, there will be no order for costs of the Review.[8]
[8] Magistrates Court Act 1991 (SA) s 38(5).