Lal v Holt - [2023] QCATA 119

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Lal v Holt [2023] QCATA 119

PARTIES:

HARBHAJAN LAL

(appellant)

v

DAVID HOLT

(respondent)

APPLICATION NO/S:

APL230-22

ORIGINATING APPLICATION NO/S:

MCD159-22

MATTER TYPE:

Appeals

DELIVERED ON:

15 September 2023

DECISION OF:

Member McNamara

ORDERS:

1.     Leave to appeal is granted.

2.     The decision of the tribunal dated 14 June 2022 is set aside.

3.     Application number MCD159-22 together with the transcript of evidence in the original hearing be remitted to the minor civil disputes jurisdiction for hearing.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – EVIDENCE NOT AVAILABLE AT HEARING – where the appellant and respondent were involved in a motor vehicle incident – where the respondent brought application in the tribunal against appellant to recover costs of damage to property – where appellant did not provide CCTV footage of vehicle accident in hearing – where appellant seeks to rely on CCTV footage – where appellant did not provide witness statement in hearing – where appellant seeks to rely on witness statement in appeal – whether fresh evidence could have reasonably been obtained prior to the hearing – whether evidence could have important impact on the case

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – IRREGULARITY AS REGARDS PROCEDURE – OTHER MATTERS – where CCTV footage was used by police officer when producing report on motor vehicle incident involving the appellant and respondent – where respondent obtained and filed police report in original application – where the Adjudicator placed substantial weight on written police report in hearing – where CCTV footage used in the police report was not before the Adjudicator or filed in the original proceedings – where the appeal tribunal cannot be certain whether the CCTV footage on appeal is the same footage used in the police report – where the appellant was issued an infringement notice under s 83 Transport Operations (Road User Management) Act 1995 (Qld) in the Magistrates Court – where the Magistrates Court dismissed the charge for want of evidence against the appellant – whether rules of natural justice observed

TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – APPLICATION OF APPORTIONMENT LEGISLATION IN CASES OF CONTRIBUTORY NEGLIGENCE – where proportionate liability under Civil Liability Act 2003 (Qld) (CLA) considered

Civil Liability Act 2003 (Qld) Chapter 2, Part 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Transport Operations (Road User Management) Act 1995 (Qld) s 83

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

Pickering v McArthur [2005] QCA 294

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

Background

A traffic incident involving the appellant and the respondent occurred at approximately 4.30pm on 18 October 2021 on the outbound side of Milton Road near the intersection of Baroona Road. It was raining.
The appellant, Mr Lal, was driving his taxi in the right-hand lane. He had a customer in the back seat.
The respondent, Mr Holt, says he was travelling home from work on his motorcycle in the left lane beside Mr Lal’s taxi. Mr Lal says Mr Holt was in the right lane, behind him.
At a distance of, maybe, 5 car lengths before the Baroona Road traffic lights, an extra lane on the far right (‘the right turning lane’) opens up specifically (and only) to allow vehicles to turn right into Baroona Road. This allows the two outbound lanes (the left and right lanes) to travel unobstructed along Milton Road, unless the right turning lane becomes congested.
A vehicle in front of Mr Lal moved towards the right turning lane to join a number of other right turning vehicles, but did not or could not fully enter the right turning lane. Mr Lal veered to the left to avoid hitting that vehicle. He did not indicate. Mr Lal maintains that his taxi did not enter the left lane.
Mr Holt says the taxi did enter the left lane and as a result he had to take evasive action by applying the brakes. He was however unable to prevent the motorcycle from skidding and ultimately sliding (according to the police report, about 15 metres) towards the left side gutter. The vehicles did not collide.
As a result of the incident Mr Holt suffered some injuries, loss and damage. An ambulance attended the scene. A police report was ‘entered’ on 19 October 2021 and ‘generated’ on 4 February 2022. The report contains a transcript of the Police Notebook and indicates that ‘footage’ had been viewed in preparing the report.
On 1 February 2022 (3 and a half months after the incident, and 4 and a half months before the tribunal hearing) Mr Lal was furnished with an infringement notice under section 83, careless driving of motor vehicles, of the Transport Operations (Road Use Management) Act 1995 (Qld). The charge was dismissed on 30 January 2023 without a hearing (6 months after the tribunal hearing).
The respondent, Mr Holt, filed an application in the tribunal on 14 February 2022 (2 weeks after the infringement notice was issued) to recover his loss and damage as a result of the incident.
The matter was heard by the tribunal on 14 June 2022 and a decision given ex tempore. At the hearing, and in the material filed in this appeal, both the appellant and the respondent attribute assumed driving “intentions” at the time of the incident to each other. The accounts of the parties are at odds in certain respects.
The tribunal decision and the infringement notice
In rendering the decision, the Adjudicator placed substantial weight on the police report. The circumstances of the incident described in the report by the investigating officer were based heavily on the investigating officer’s consideration of Brisbane City Council CCTV footage. The CCTV footage was not before the Adjudicator.
The Adjudicator noted that the appellant had “been issued with an infringement notice for failing to indicate when changing lanes”[1] and that on the balance of probabilities “the accident was caused by the failure of (the appellant) to indicate and he is moving into the lane without providing sufficient time to the (appellant) and without due care and attention”.[2]
[1] T1-11, lines 36 and 37.
[2] T1-11, lines 38 to 40.
The Adjudicator awarded damages to the appellant to be paid within 14 days.
Accepting that the bike was a “write off”, the damages awarded was based on the depreciated value of the bike, a discounted amount for certain bike “upgrades” (recently replaced tyres), the replacement cost of a jacket and helmet, the value of damaged gloves, and the costs Mr Holt incurred in obtaining the police report.
Mr Holt sought enforcement of the award in the Magistrates Court by application dated 30 June 2022.
The appellant, Mr Lal, in addition to lodging the application for leave to appeal and appeal, on 4 August 2022 applied to stay the tribunal’s 14 June 2022 decision. The application to stay the decision was refused on 17 October 2022.
On 30 January 2023, some 6 months after the tribunal hearing, Mr Lal entered a plea of not guilty to the charge in the infringement notice, no evidence was offered, the charge was dismissed, and Mr Lal was discharged.

Appeal

This is an application for leave to appeal or appeal a decision of the tribunal in its minor civil disputes jurisdiction. Leave will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice caused by that error.[3] An appeal is not an opportunity for the appellant to run their case for a second time.
[3] Pickering v McArthur [2005] QCA 294 [3].
I accept that the application for leave to appeal and appeal was made within time based on the hand-written note on an 11 August 2022 QCAT memorandum which records the following:
“Decision – 14/6/22
Reasons requested – 22/6/22
Reasons sent – 19/7/22
Appeal – 4/8/22
Therefore In time”
Issues raised in the appeal
In the appeal, Mr Lal raises three matters he says need to be considered. They are:
(a)a copy of the CCTV footage that was not before the Adjudicator but was relied upon in the police report;
(b)a statement from his passenger which he had not obtained at the time of the hearing; and
(c)the 30 January 2023 Magistrates Court ‘verdict and judgment’ filed by Mr Lal on 20 March 2023.
These issues as framed, seek to introduce evidence (fresh evidence) obtained following the conduct of the hearing the subject of the appeal.
Mr Lal also states as a ground of appeal that the tribunal did not consider ‘contributional legislation of the incident’. This ground in effect asserts a mistake of fact and/or of law on the part of the Adjudicator in not apportioning liability.

Fresh evidence

The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.
Ordinarily, an application for leave to adduce fresh evidence must satisfy three tests. Could the appellant have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[4]
[4] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408.
Could the evidence have reasonably been obtained for the hearing?
· The CCTV footage
Attached to Mr Lal’s application for leave to appeal is a Queensland Government receipt for a Right to Information application for the CCTV footage dated 27 July 2022 (6 weeks after the hearing). Email correspondence between Mr Lal and the tribunal indicates that Mr Lal filed a USB copy of the CCTV footage on 26 September 2022.
When questioned by the Adjudicator at the hearing about his failure to obtain the CCTV footage and witness statement, Mr Lal said he did not obtain them before the tribunal hearing because he was not expecting to receive an infringement notice, and it was the infringement that became the foundation of Mr Holt’s minor civil dispute application.[5]
[5] T1-6, lines 34 to 36.
When Mr Lal did receive the infringement notice Mr Holt had not launched his application in the tribunal. Mr Lal intended to defend the infringement notice and he expected that it would be determined in the Magistrates Court before the minor civil dispute was heard in the tribunal.[6]
[6] T1-4, lines 41 and 42.
Had the matter in the Magistrates Court proceeded ahead of the dispute in the tribunal, Mr Lal believed the CCTV footage would have then been available. However, the application before the tribunal preceded the prosecution of the infringement notice.
This explanation is confirmed in Mr Lal’s statement which accompanied his application for leave to appeal and appeal.
Given the timeline of events, I consider Mr Lal’s reason for not obtaining the CCTV footage ahead of the tribunal hearing understandable and reasonable. It was reasonable for Mr Lal to expect that proceedings in relation to the infringement notice would have preceded the tribunal hearing. It was reasonable to assume that he would have had access to the CCTV footage before the tribunal hearing.
· The witness statement
The Adjudicator refers to the police report regarding the witness. The account recorded says that Mr Lal stated that “his passenger screamed and said that he had hit a motorbike, but he did not feel any impact to the car”. The report says: “He then advised police that the passenger changed her mind and told him not to worry about it as she was almost certain he did not hit the other vehicle.”[7] In the hearing the Adjudicator says the reason given by Mr Lal as to why a statement had not been filed was “because he did not know what date this was going to be on and that he did not have enough time between the dates”.[8]
[7] T1-10, lines 44 to 46.
[8] T1-11, lines 10 to 12.
Annexed to the application for leave to appeal and appeal are a number of screenshots of various text messages and/or email.
Included is a document that has handwriting at the top saying: “Witness statement (taxi customer)”. It is typing on a page with a name at the bottom and a handwritten phone number. The document is not in any original format, it is not signed nor witnessed. It is written in the first person, but I am unable to tell if it is the original words of the person said to have made it. The text is as follows:
“The item i can remember on the afternoon is it was raining and motorcyclists was changing lane without care and he slipped and I heard him banging into couple of cars after that he got up all the cars around drove away and my taxi driver didn’t cha[n]ge lane and the front car suddenly stopped that’s why we slowed down and motorcyclist could not slow down and slipped.”
There is no question that the statement could have been obtained ahead of the tribunal hearing.
· The 30 January 2023 ‘verdict and judgment’

In relation to the 30 January 2023 ‘verdict and judgment’ concerning the infringement notice, as it post-dated the tribunal hearing it was clearly not in existence at the time of the hearing.
Would the evidence have an important impact on the result if admitted?
· The CCTV footage
As noted at [11] above the Adjudicator placed substantial weight on the police report which described the circumstances of the incident from interviews with the parties and the investigating officer’s consideration of the CCTV footage. The police report was the basis upon which the infringement notice was issued – to which ultimately no evidence was offered. There is nothing to explain why no evidence was offered.
In delivering the decision, the Adjudicator referred to passages in the police report which stated that Mr Lal “has increased speed and then moved into the left lane towards unit 2 without indication and due care and attention”.[9] The Adjudicator quotes the officer’s observations concerning the CCTV footage as follows:
“… which clearly depicts Mr Lal moving abruptly from the right lane to the middle lane in an effort to avoid stopping in traffic, which was waiting to turn right on Baroona Road. Unit 1 moves directly in front of Mr Holt without giving way to Mr Holt, causing Mr Holt to apply the motorbike’s brakes heavily, and the vehicle will fall and slides [indistinct] on Milton Road.”[10]
[9] T1-9, lines 37 and 38.
[10] T1-9, lines 46 to 48; T1-10, lines 1 to 11.
The Adjudicator found that on the balance of probabilities the accident was caused by the failure of Mr Lal to indicate “and he is moving into the lane without providing sufficient time to the (Mr Holt) and without due care and attention”.
The appellant accepts that his vehicle veered to the left, but he does not accept that he moved into the left lane. In evidence he said on numerous occasions “I did not change the lane”.[11]
[11] T1-3, lines 41 and 42.
The appellant accepts that in veering to the left he did not signal. In asserting that he did not move into the left lane I presume he is of the view that in those circumstances there was no need to signal.
The appellant did not produce dash-cam footage from his vehicle at the hearing. In text message correspondence with an “eye witness” (presumably the passenger) he says that “by the time they issued me fine, camera recording clear the data became it only last 3 months”.
The Queensland Government receipt relating to a Right to Information request for the footage does not describe the format in which the footage was provided. Documents on the tribunal file indicate that the appellant sent an email with the subject line “Re: Request for CCTV”, suggesting it was a “forwarding” email with the message “Please see the attached document as requested”. The respondent (Mr Holt) replied “… FYI you have not provided the QCAT the CCTV footage in the correct format” saying that it must be provided on USB. It seems that on 26 September 2022 a USB was delivered to the QCAT counter.
I have viewed the USB copy of the CCTV footage. It is not clear if the USB version of the CCTV footage is the same as the electronic copy – but the USB version is of an extremely poor quality. I am not certain that the footage filed in the appeal is the same as that viewed by the investigating police officer. However, if it is, I do not hold the same confidence as the investigating officer in the events the officer describes.
· The witness statement
According to Mr Lal the customer was sitting in the back seat.
I note the content of the witness statement at [33] above. The statement suggests that the witness was paying attention to the motorcyclist before the incident, that is, it is said that: “motorcyclists was changing lane without care and he slipped”, and it suggests only that “the front car suddenly stopped that’s why we slowed down and motorcyclist could not slow down and slipped”. The witness statement does not suggest any movement of the taxi to the left at all.
In my view the statement is of no assistance in determining the application.
· The 30 January 2023 ‘verdict and judgment’
In my view the fact that no evidence was offered when the matter came before the Magistrates Court and the charge was dismissed is relevant information – however, it does not enlighten me as to the veracity or otherwise of the content of the police report. I have been provided with no reasons for the decision to not present evidence.
However, given the substantial weight the Adjudicator placed on the police report, the fact that the same report was not relied on to prosecute the infringement raises questions.
Mistake of fact and/or law
In the ‘orders sought’, Mr Lal says, “the cost of the damage should divided more than two parties …” due to the right turning car who stopped “and there must be fault of the bike rider which was ignored.”
Attached to the application for leave to appeal or appeal was a single page hand-written document signed by Mr Lal and dated 4 August 2022. Amongst other things it says: “There must be a fault of Mr David Holt and car in the front also raining conditions. I could be involved in it by 20% but I am definitely not the reason of causing it.”
It seems that there was no effort to involve the driver of the ‘right turning vehicle’ in the enquiries concerning this incident. There is nothing in the transcript of the hearing to indicate that any consideration was given to apportion liability, or to consider proportionate liability.
There is a proportionate liability regime in Queensland found in Chapter 2, Part 2 of the Civil Liability Act 2003 (Qld). An apportionable claim is a claim for economic loss or damage arising from a breach of a duty of care (s 28(1)). Pursuant to s 32(2) in relation to an apportionable claim, a person in Mr Lal’s position is required to give to the claimant (in this case Mr Holt), in writing as soon as practicable after becoming aware of the claim, any information that is likely to help Mr Holt identify and locate any other person he (Mr Lal) believes on reasonable grounds to also be liable, and why.
However, if the assertion of Mr Lal is that Mr Holt contributed to his own loss and damage due to his (Mr Holt’s) negligence, he doesn’t explain clearly why that should be the case. He does assert that Mr Holt was travelling too fast for the conditions, but there is no evidence to support that assertion. According to the police report, Mr Lal said he was confused about the location of Mr Holt, as there was another motorcycle travelling in the right lane behind his taxi. However, as I note at [47] while the Adjudicator placed substantial weight on the police report, the same report which was the basis for issuing the infringement notice was not offered in the Magistrates Court and the charge was dismissed.

Conclusion

In any matter before the tribunal, care must be taken to ensure that a party has a fair opportunity to deal with matters which may be potentially of importance in coming to a decision adverse to it. That is a consequence of s 28(2) and s 28(3)(a) and is consistent with s 29(1)(a)(ii) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). In conducting a proceeding, the tribunal must observe the rules of natural justice.
It was reasonable to expect that the resolution of the infringement notice would have occurred prior to the matter before the tribunal. The prosecution of the infringement notice would, in the normal course, have been a place to test or challenge the content of the police report. Mr Lal was clear that he intended to challenge the infringement notice. He entered a plea of not guilty. In the end, no evidence was offered, the charge was dismissed, and Mr Lal was discharged.
In circumstances where: the Adjudicator placed substantial reliance on the police report on matters of fact; the police report was untested and ultimately not offered in evidence in the Magistrates Court; the clear intention of the appellant to defend the charge (which did see a plea of not guilty entered); the untested report included the investigating officers’ subjective analysis of CCTV footage; the reasonable basis for which the CCTV footage was not presented at the tribunal hearing; and, the lack of certainty that the version of the CCTV footage filed in the Appeal Tribunal is the same as that viewed by the investigating officer, the original decision is infected by legal error and procedural fairness dictates that the decision and orders of the tribunal should be set aside and the matter remitted for reconsideration.

ORDERS

Leave to appeal is granted.
The decision of the tribunal dated 14 June 2022 is set aside.
Application number MCD159-22 together with the transcript of evidence in the original hearing be remitted to the minor civil disputes jurisdiction for hearing.