Malhi v Antonijevic
[2020] ACTSC 25
•14 February 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Malhi v Antonijevic |
Citation: | [2020] ACTSC 25 |
Hearing Date(s): | 5 December 2019 |
DecisionDate: | 14 February 2020 |
Before: | Crowe AJ |
Decision: | See [28] |
Catchwords: | CIVIL LAW – APPEAL – Appeal from the Magistrates Court – where there was an error in the transcript of the proceedings before the Magistrate – where the error was crucial to the Magistrate’s decision – decision set aside – case remitted to the Magistrates Court for rehearing. |
Parties: | Jagiwan Malhi (First Appellant) Insurance Australia Limited Trading as NRMA Insurance (Second Appellant) Bora Antonijevic (Respondent) |
Representation: | Counsel J Pappas (Appellants) W Sharwood (Respondent) |
| Solicitors Sparke Helmore Lawyers (Appellants) Baker Deane & Nutt (Respondent) | |
File Number(s): | SCA 30 of 2019 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the Australian Capital Territory Before: Magistrate Morrison Date of Decision: 1 May 2019 Case Title: Antonijevic v Malhi Citation: [2018] ACTMC 15 |
Crowe AJ:
Introduction
This is an appeal against the judgment of Magistrate Morrison given on 1 May 2019 in which his Honour awarded the respondent (Mr Bora Antonijevic) damages for personal injury in the sum of $58,297. For ease of reference, I will refer to the parties as they were in the proceedings at first instance in the Magistrates Court.
Decision in the Magistrates Court
The background to the original personal injury claim was summarised by Magistrate Morrison at paras [1] and [2] of his reasons for decision as follows:
[1] The Plaintiff claims damages for personal injuries arising out of an incident when he fell from a taxi in Bunda Street, Canberra City on 4 November 2014. The first Defendant, Mr Jagiwan Malhi, was the driver of the taxi. The second Defendant is the insurer. The Plaintiff says that the taxi moved as he was alighting from it, causing him to fall. He pleads that, by causing the taxi to move, the first Defendant breached his duty of care to the Plaintiff, and that the Plaintiff was injured as a result of the fall. For their part, the Defendants say that there was no breach of duty because the taxi was stationery when the Plaintiff fell from it and, in any event, that the Plaintiff has exaggerated his injuries and their consequences.
[2] Part of the contest at hearing was whether and, if so, to what extent, the Plaintiff was affected by alcohol. A conclusion that the Plaintiff was affected by alcohol does not of itself mean that the first Defendant did not breach his duty of care to the Plaintiff, but it would provide an explanation for what the first Defendant says took place – that is, that the Plaintiff simply fell from taxi.
His Honour concluded that the first defendant, Mr Malhi, had been negligent in moving the taxi while the plaintiff was still in the process of alighting from it.
The witnesses before Magistrate Morrison consisted of the plaintiff (Mr Bora Antonijevic), Mr Samuel Sefa (a friend of the plaintiff), and Mr Jagiwan Malhi (the first defendant). The plaintiff gave his evidence on 1 March 2017 and 3 April 2018, Mr Sefa gave his evidence on 3 and 4 April 2018, and Mr Malhi gave his evidence on 4 April 2018.
The parties also provided written submissions in May and June 2018. As far as I can ascertain, the latest substantive written submissions were the Amended Plaintiff’s Submissions in Reply, received by the Magistrates Court on 13 June 2018.
On a date prior to 9 February 2019 (which is not clear from the record), Magistrate Morrison caused an email to be sent to the parties asking a number of questions. His Honour’s questions included one as to the evidence given by Mr Malhi which appeared, from the transcript, to suggest that Mr Malhi had moved the taxi in close proximity to the time at which the plaintiff fell. These questions led to the plaintiff’s counsel filing and serving a document entitled “Plaintiff’s Submissions in Response to His Honour’s Questions” (dated 9 February 2019) and the defendants filing and serving a response entitled “Defendant’s Further Submissions” (dated 11 February 2019). I do not have a copy of the email containing Magistrate Morrison’s questions. However, I infer that the questions asked by Magistrate Morrison were in the terms appearing in bold in the “Plaintiff’s Submissions in Response to His Honour’s Questions”. The first, and pivotal, question is in the following terms:
Given the context in which the testimony appears, is any inference available other than that the witness is saying that he moved the taxi at a point in time immediately after he says he saw (via his mirror) the plaintiff fall?
In order to understand the context in which this question was asked, it is necessary to refer to the evidence which his Honour relied upon in coming to his conclusion.
The plaintiff gave evidence that he was in the process of getting out of the rear left passenger seat when the taxi moved forward. It was that movement which caused him to fall. The plaintiff was cross-examined about his sobriety, a claim that the taxi had run over his hand and his question to Mr Sefa as to what had happened to him. In relation to the latter point, it was put to the plaintiff that his question to Mr Sefa indicated that, in reality, he did not know what caused him to fall.
Mr Sefa’s evidence was somewhat unclear. In his evidence in chief, Mr Sefa seemed to suggest that the taxi might have moved as the plaintiff was getting out of it. However, in cross-examination Mr Sefa said the following:
MR PAPPAS: When you say he was already moving, the taxi didn't move at all before Bora fell on the ground, did it?
INTERPRETER: I told you that I don't know, that I didn't see when Bora fell down. I saw him down and he was calling my name.
MR PAPPAS: Mr Sefa, my question is a very simple question. You did not see the taxi move one inch before you were aware that Bora had fallen on the road. Isn't that the truth?
INTERPRETER: You see, I don't remember. I don't know. It's possible that it's true.
MR PAPPAS: Have you got any memory at all of that taxi moving before Bora fell on the ground?
INTERPRETER: No. No, I don’t have it. I don’t know.
Against that background, his Honour said in relation to the relevant evidence in chief of Mr Malhi:
[16] The overall effect of his evidence in chief was that Mr Sefa paid the fare, and that the Plaintiff fell out of the back seat and that he had not moved the taxi at that point in time.
As to the cross-examination of Mr Malhi, his Honour said the following (the emphases in the extract below are his Honour’s):
[17] The cross examination of Mr Malhi was somewhat tortuous. It is not possible to summarise it any way which accurately represents its overall effect. There are some aspects of it which have influenced my findings and I set them out below. For brevity I have not included the full context, but I am satisfied in each case that the context does not affect the meaning to be taken from the words used by the witness. I should record that Mr Malhi did not waiver from his testimony that he had not moved the taxi before the Plaintiff’s fall.
MR RICHARDS: You accept that he closed his door?---Yes.
Then what I want to suggest to you, is that you then started to drive off, because you thought both parties were outside the taxi?---No.
You did that because you were in a hurry, didn’t you?---No, I did not that.
Did you check before your rear passenger, Mr Antonijevic, before you started to drive, whether he was out of the vehicle?
MR PAPPAS: I object.
[The basis for the objection was not apparent to me but it resulted in the question being withdrawn].
…
HIS HONOUR: Perhaps, can I ask this? Did you actually see the rear passenger fall out of the cab?---I just - I see, like, listened the noise only.
MR RICHARDS: So, how long between you observing him in this position, getting out, are you hearing the noise? Was it shortly--?---I can't exactly tell exact - I can't tell you the exact time but heard the noise. That's the time when I went off from the kerb and saw--[emphasis added]
And this is in that period of time of 30 seconds to one minute between the front passenger having closed that front door--?---Yep.
--and you hearing the noise?---He was closed the door and he was standing out of the cab.
HIS HONOUR: Now, just to clarify for me, you've said that you saw the rear passenger moving out of your cab?---Yep.
But you didn't see the rear passenger fall?---Yep.
So, that means that you must have looked away then at some stage?---Sorry?
You must have looked away then?---Yes.
All right.
MR RICHARDS: And when you did look in your rear view mirror - was that your side mirror or your rear view mirror? Which mirror were you using?--- On the side mirror.
What did you see when you looked - observed the passenger? What position was he in?---Sorry?
What position?---He was - when I, I heard the noise, that's it, and he was fell over and I saw in the window - in the side mirror and that time, I move out from the kerb. [emphasis added]
But before you get there, what did you see? Describe how you saw him positioned? Where was he?---In the side view mirror.
Was he standing up? Was he laying down? Was he--?---He was going out from my cab.
You saw him falling?---Sorry?
You saw him falling?---He is going out from my cab then I did not see anything on that. I thought he was going out and after that, I heard the noise.
Then you looked in your rear-view mirror?---On the side mirror.
And what did you see?---He was like fallen down on the floor.
Having set out that evidence, his Honour then explained his decision on the crucial question of whether the taxi had moved in the following terms:
[18] The aspects of the evidence of Mr Malhi which have materially influenced my findings centre around what he says about having moved the taxi after the Plaintiff fell from the vehicle. Mr Malhi’s testimony that he had moved the vehicle was not pursued in cross examination as it might have been. That may have been because it was somewhat lost in the haze of the tortuous nature of the questioning. In any event, I am satisfied that Mr Malhi did move his vehicle. The context in which his evidence of moving from the kerb appears makes it clear that it was proximate to the time of the Plaintiff’s fall and not, for example, that it was when Mr Malhi returned to the vehicle after having gotten out to assist the Plaintiff.
[19] The testimony from Mr Malhi that he did “move off from the kerb” is important. It is consistent generally with the evidence in the Plaintiff’s case, although not as to the precise point in time at which that movement took place. The context in which Mr Malhi said “and he fell over and I saw in the window – in the side mirror and that time, I move out from the kerb” indicates that he was intending to convey that he moved the taxi after the Plaintiff fell from that vehicle. That evidence by Mr Malhi struck me as being contrary to what was the overall tenor of the Defence case, which I had understood to be that it was not conceded that the taxi had moved at all – whether immediately before or immediately after the Plaintiff’s fall from it.
[20] Be that as it may, what matters is the inferences which are to be drawn from that evidence by Mr Malhi. Having regard to the other evidence and accepting Mr Mahli’s own testimony that he moved the vehicle, it follows, as a matter of logic that he moved off from the kerb when the rear passenger door was still open. For him to have done so causes me to doubt his level of awareness about what was taking place in the rear of the taxi. That conclusion makes more likely the Plaintiff’s assertion that Mr Malhi drove off while he was in the process of getting out of the taxi.
[21] Mr Malhi had also given evidence that, after Mr Sefa had paid the fare and alighted from the taxi, he (Mr Malhi) was “standing and waiting for a job” and “waiting for another passenger”. That evidence is consistent with Mr Malhi’s state of mind being that his earlier “job” with Mr Sefa and the Plaintiff had been completed.
[22] It is, however, also apparent on the evidence that, at the point in time when Mr Malhi said that he was waiting for another job, the Plaintiff was still in the process of alighting from the taxi. A mistaken belief by Mr Malhi that his job with the Plaintiff had been completed – that is, that both his passengers had alighted – would provide a logical explanation for his decision to drive off from the kerb.
It is reasonably clear from these paragraphs that his Honour saw Mr Malhi as having admitted, contrary to his evidence in chief, that he had moved the taxi away from the kerb at about the time of the plaintiff’s fall. Indeed, it is that admission which tipped the balance in favour of the plaintiff’s account of what caused him to fall.
The Appeal
The defendants in their Notice of Appeal (dated 28 May 2019) set out 14 grounds relating to his Honour’s finding on liability and 4 grounds relating to his Honour’s finding on quantum. However, in their outline of submissions (dated 28 November 2019), the defendants placed primary emphasis on the contention that Magistrate Morrison had erred in finding that Mr Malhi had said under cross-examination that he had moved the taxi from the kerb when Mr Malhi said:
That's the time when I went off from the kerb …
[and]
I move out from the kerb …
(my emphasis added)
The defendants submitted that the correct account of what Mr Malhi had said (contrary to what appeared in the transcript) was:
That's the time when I went off from the cab …
[and]
I move out from the cab …
(my emphasis added)
In their outline of submissions, the defendants argued that those statements (extracted above) were consistent with Mr Malhi’s account that he had got out of the taxi to render assistance to the plaintiff after his fall. The defendants submitted that Magistrate Morrison had likely relied on the transcript rather than his Honour’s own recollection of Mr Malhi’s cross-examination.
In oral submissions, Mr Pappas, counsel for the defendants, pointed to the alleged error of Magistrate Morrison in this regard as the “main point” of the appeal. In the course of his submissions, Mr Pappas tendered into evidence a DVD disc containing the audio record of the proceeding before Magistrate Morrison. That recording was marked Exhibit “A1” in the appeal.
I have listened to the relevant part of the audio recording of Mr Malhi’s evidence on a number of occasions. Mr Malhi spoke with quite a heavy accent which at times made his evidence difficult to follow. Having said that, it appears to me that the first statement (which appears at page 56, lines 43-44 of the transcript of 4 April 2018) was probably:
That’s the time when I went off [or out] of the cab and saw…
(my emphasis added)
I am also reasonably satisfied that the second statement (which appears at page 57, lines 26-27 of the transcript of 4 April 2018) was:
I move out of the cab.
(my emphasis added)
It is apparent that his Honour decided the case at first instance on the basis of a fundamental error in the transcript of evidence on a particularly vital part of the evidence. The transcript of that evidence was incorrect. As noted at [13] above, the apparent admission made by Mr Malhi was crucial in his Honour deciding to accept the plaintiff’s evidence in preference to the claim by Mr Malhi that he had not moved the taxi.
Disposition
During oral submissions, I asked Mr Pappas what course I should adopt if I accepted his submission that the transcript was incorrect. Mr Pappas submitted that I should decide the case on the record of the evidence before me.
On the other hand, Mr Sharwood, counsel for the plaintiff, submitted that if I was to find the transcript incorrect and that Magistrate Morrison was in error as a consequence, I should send the matter to be re-heard by another Magistrate in the Magistrates Court.
I have, with some reluctance, come to the conclusion that I must set aside the judgment of Magistrate Morrison and remit the matter to the Magistrates Court. I say “reluctance” because this is not a large matter, on any view, and the costs already incurred must be disproportionate to the value of the claim. However, it is apparent from the way that the case was run before his Honour, that the credit of the plaintiff, Mr Sefa and of Mr Malhi were vital to the fact finding required in relation to liability. It is also clear that the credit of the plaintiff was crucial to Magistrate Morrison’s assessment of quantum. Not having heard and seen the evidence of the witnesses who testified, I am not prepared to attempt to make credit findings based only on the record of the hearing.
Given that his Honour made findings on credit, particularly in relation to the plaintiff, it is preferable in my view that the matter be remitted to the Magistrates Court to be heard by a different Magistrate, as suggested by Mr Sharwood. Having regard to the error which was made and its impact on the outcome, the assessment of damages by his Honour cannot stand. Had Mr Malhi’s evidence been correctly transcribed, his Honour may have been caused to take a different view of the plaintiff’s credit not just on the liability issue, but also on some of the damages issues.
I do not propose to deal with the other grounds of appeal. The error in the evidence was so fundamental that it would be a futile task to determine the multiple collateral issues raised by the Notice of Appeal.
Conclusion
The judgment of Magistrate Morrison must be set aside, and the matter be remitted to the Magistrates Court to be re-heard by a Magistrate other than his Honour.
The issue of costs is a vexed one. Magistrate Morrison sought the assistance of the parties as noted at [6] above. Although both parties filed and served submissions, it is apparent that no-one thought to double check the accuracy of the transcript. It is likely that, if that had occurred, the errors in the transcribing of Mr Malhi’s evidence would have been discovered. In turn, that would have prevented Magistrate Morrison from proceeding to determine the case on an incorrect basis. I am minded to make no order as to the costs of the appeal. However, I will give the parties the opportunity to make submissions on the issue if they wish to do so.
Orders
The orders of the Court are:
(1)The appeal is allowed.
(2)The judgment and costs order in favour of the respondent on 1 May 2019 are set aside.
(3)The matter is remitted to the Magistrates Court for re-hearing before a Magistrate other than Magistrate Morrison.
(4)No order as to the costs of the appeal.
(5)Order (4) is stayed for 14 days.
(6)For the period of 14 days from the date of this judgment, each party is to have liberty to apply on 2 days notice in relation to order (4).
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe. Associate: Date: |