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Lazicic v Rossi

Lazicic v Rossi

Case [2024] NSWSC 777 25 June 2024

Civil Litigation & Procedure

Tort Law

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Supreme Court

New South Wales

Medium Neutral Citation: Lazicic v Rossi [2024] NSWSC 777
Hearing dates: 12 June 2024
Date of orders: 25 June 2024
Decision date: 25 June 2024
Jurisdiction: Common Law
Before: Kirk J
Decision:
(1) Appeal allowed.
(2) The judgment of the Local Court in favour of Mr Rossi is set aside.
(3) The matter is remitted to the Local Court for determination according to law.
(4) The defendant in this Court is to pay the plaintiff’s costs of the appeal.

Catchwords:
APPEAL — Appeal from ex tempore judgment of Local Court Magistrate — Right to reasons — Inadequacy of reasons — Nature of judicial duty to give reasons — Failure to deal with substantial and clearly articulated argument — Failure to consider reasonableness of mitigation — Reasons inadequate — Constructive failure to exercise jurisdiction
TORTS — Damages — Mitigation — Damage to non-income producing chattel — Motor vehicle collision — Damaged vehicle unavailable while undergoing repairs — Owner’s need for replacement vehicle — Whether rental charges were reasonably incurred — Relevance of range of market rates in determining reasonableness of claimant’s conduct

Legislation Cited:
Local Court Act 2007 (NSW), ss 39(1), 40(1)

Cases Cited:
Acuthan v Coates (1986) 6 NSWLR 472
Arsalan v Rixon [2021] HCA 40; (2021) 274 CLR 606
British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd [1912] AC 673
Burns v Man Automotive (Aust) Pty Ltd [1986] HCA 81; (1986) 161 CLR 653
DL v The Queen [2018] HCA 26; (2018) 266 CLR 1
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088
Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313; (2000) 10 BPR 18,235
Kelly v R [2024] NSWCCA 101
Lodge Holes Colliery Company Ltd v Wednesbury Corporation [1908] AC 323
McBride v UK Insurance Limited [2017] EWCA Civ 144
Ming v Director of Public Prosecutions [2022] NSWCA 209; (2022) 109 NSWLR 604
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Public Service Board of NSW v Osmond [1986] HCA 7; (1986) 159 CLR 656
Stocovaz v Fung [2007] NSWCA 199
Watson Norie Ltd v Shaw [1967] 1 Lloyd’s Rep 515
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

Category: Principal judgment
Parties: Cameron Lazicic (Plaintiff)
Thomas Rossi (Defendant)
Representation:
Counsel:

G Carolan (Plaintiff)
CP Carter (Defendant)

Solicitors:
MCK Lawyers (Plaintiff)
RTN Law (Defendant)

File Number(s): 2023/00355095
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Local Court

Jurisdiction:

Civil

Date of Decision:

11 October 2023

Before:

Magistrate Barko

File Number(s):

2022/184409

JUDGMENT

On 21 December 2021 there was a car accident in Wollongong involving two vehicles. Mr Lazicic, whom I shall call the appellant, crashed into a relatively new Honda Civic owned and driven by Mr Rossi, whom I shall call the claimant. The Honda was badly damaged and, in due course, was written off by the claimant’s insurer. The appellant’s insurer, NRMA, accepted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lazicic v Rossi

Details

AGLC: Lazicic v Rossi [2024] NSWSC 777
Case: [2024] NSWSC 777
Decision Date: 25 June 2024

CaseChat Overview and Summary

The case of Lazicic v Rossi involved an appeal from an ex tempore judgment of the Local Court. The dispute centered on the adequacy of reasons provided by the Magistrate for the decision made, particularly in relation to damages claimed for a motor vehicle collision. The appellant, Lazicic, sought to challenge the Magistrate's failure to adequately address the reasons for the decision, arguing that this omission constituted a constructive failure to exercise jurisdiction. The respondent, Rossi, defended the decision, contending that the reasons provided were sufficient and that the decision was justified.

The primary legal issues before the court were whether the Magistrate's reasons were adequate and whether the failure to provide sufficient reasons constituted a constructive failure to exercise jurisdiction. Additionally, the court had to consider the reasonableness of the mitigation claimed by Lazicic in the context of the vehicle damage and the necessity for incurring rental charges for a replacement vehicle while the damaged vehicle was being repaired.

The court found that the reasons provided by the Magistrate were inadequate, as they did not sufficiently address the substantial and clearly articulated arguments presented by Lazicic. The court noted that the Magistrate had failed to consider the reasonableness of the mitigation proposed by Lazicic, particularly in relation to the need for a replacement vehicle and the rental charges incurred. The court held that the failure to deal with these arguments and to consider the reasonableness of the mitigation amounted to a constructive failure to exercise jurisdiction. Consequently, the court ordered that the case be remitted to the Local Court for reconsideration with adequate reasons.

The final orders of the court included a direction that the case be remitted to the Local Court for rehearing with appropriate reasons, ensuring that the decision-maker properly addressed the arguments presented by the parties and considered the reasonableness of the mitigation claimed. The court did not provide any specific monetary awards or damages in its judgment, as these matters were to be reconsidered by the Local Court.

Orders