| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : BUNBURY CITATION : McKEON -v- KNAPTON [2009] WADC 170 CORAM : SWEENEY DCJ HEARD : 9 FEBRUARY 2009 DELIVERED : 11 NOVEMBER 2009 FILE NO/S : APP 22 of 2008 BETWEEN : LEONIE MAXINE McKEON Appellant
AND
JOHN WILLIAM KNAPTON
Respondent
Catchwords: Appeal from Magistrates Court - Out of time - Mandatory time limit - No power to extend time - Meaning of "road" - Carpark not a road - Costs orders in the Magistrates Court - "Exceptional circumstances" justifying costs order Legislation: District Court Rules 2005, r 51
Magistrates Court (Civil Proceedings) Act 2004, s 25, s 31, s 40 Result: Appeal dismissed
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Representation: Counsel:
Appellant : Mr T G Darge
Respondent : Mr M C Owens
Solicitors:
Appellant : SRB Legal
Respondent : Max Owens & Co
Case(s) referred to in judgment(s):
AWA v Independent News Auckland Ltd [1996] 2 NZLR 184
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
FC Legge & Anor v Wingecarribee Shire Council (1997) NSWLEC 28
Gray v Purvis (1991 - 1992) 15 MVR 455
Hooker v Grinham (1997) 26 MVR 233
House v R (1936) 55 CLR 499
Lloyd v Faraone [1989] WAR 154
Mason v Nominal Defendant (Qld) (1986) 5 MVR 62
McBain v Reyne (1997) 27 MVR 163
Minas v Botany Municipal Council (1988) 65 LGRA 129
Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273
Patterson & James v Public Service Board of New South Wales [1984] 1 NSWLR 237
R v Kelly (Attorney-General's Reference No 53 of 1998) [1999] 2 All ER 13
Re; Z (1970) 15 FLR 420
Ryan v Nominal Defendant (2005) 43 MVR 77
Sibley v Kais (1967) 118 CLR 424
Tweed v Shepherd [2008] WASCA 59
Wise & Anor v Proprietors of Strata Plan 21513 [2008] WADC 80
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Introduction 1 On 30 July 2004, in the afternoon, Mr Knapton, the respondent, drove his utility to the Bunbury Forum Shopping Centre carpark to pick up his wife, who was going to wait for him outside the Telstra Shop. He turned right into one of the lanes of the carpark, planning to drive in a northerly direction to the end of that laneway which would see him almost at the Telstra Shop. He entered the laneway and drove past cars parked in parking bays to both his left and right. Ms McKeon, the appellant, was in her sedan in one of those bays to his right, waiting to exit the car bay and drive south. She saw the utility drive past her, from her left to her right. 2 To his surprise, Mr Knapton found that the lane he had entered was a dead end. He stopped his car, planning to reverse back out of the laneway. Ms McKeon saw his car stop after passing her and decided the way was clear for her to exit her parking bay, making a left-hand turn. That appears to be the last time she looked to her right. 3 Meanwhile, Mr Knapton had begun to reverse, using his mirrors as an aid. He reversed into Ms McKeon's car. There was no damage to his car, but the final cost of repairs to her car was $2,748.50. 4 Proceedings were commenced in Ms McKeon's name in the Magistrates Court and the matter went to trial on 1 July 2008. The learned Magistrate dismissed Ms McKeon's claim and also took the exceptional step of awarding costs against her. From both aspects of that decision she now appeals. 5 The appeal was lodged out of time. The respondent raises a preliminary question as to whether this Court has any power to grant an extension of time within which to lodge an appeal from the Magistrates Court. For the reasons which I give below, I am persuaded that it does not. 6 As to the merits of the appeal itself, the appellant argues that the learned Magistrate erred in applying reg 57 of the Road Traffic Code 2000 to the case and hence adopting too simple an approach, erred in finding that Ms McKeon entered the path of the reversing utility, erred in equating the cause of the damage to Ms McKeon's car with the cause of the collision and erred in failing to consider that Ms McKeon may not have been able to stop her car without causing further damage to her car. (Page 4)
7 If I had allowed an extension of time within which to appeal, I would still have dismissed the appeal.
Does this Court have power to grant an extension of time in which to lodge an appeal? 8 Section 40 of the Magistrates Court (Civil Proceedings) Act 2004 provides a right of appeal to this Court from a decision of a Magistrate in a civil case which is not a "minor case". By subsection (3): 9 There is no provision in the Magistrates Court (Civil Proceedings) Act empowering this Court to enlarge the time within which to institute appeal proceedings. 10 An appeal is a creature of statute and is governed by the statute which confers the right of appeal. Section 40(3)(a) appears to be mandatory in its terms. If it is, then there is no right of appeal after the expiry of the 21 days period. 11 Rule 51(4) of the District Court Rules 2005 provides: "A notice of appeal must be filed and served within 21 days after the date of the appealable decision." 12 There is nothing in r 51 which empowers this Court to extend that time limit. Rule 51(4) is therefore consistent with s 40(3) of the Magistrates Court (Civil Proceedings) Act. It adds that the method of commencing appeal is by filing a notice and that the time limit applies not just to filing the notice, but also to service of the notice. 13 This Court's powers as to appeals are contained within r 57 District Court Rules, which powers do not include a power to enlarge time within which to commence an appeal. 14 This may be contrasted to r 15(2), which deals with appeals from a District Court Registrar to a Judge. Such appeals "must be commenced (Page 5)
within 10 days after the date of the decision or such longer period as a Judge or legally qualified Registrar may allow". 15 The appellant relies upon a decision of this Court in Wise & Anor v Proprietors of Strata Plan 21513 [2008] WADC 80 as authority for the proposition that this Court does have power to extend time within which to appeal from a decision of a Magistrate. It appears to be the only decision on point. The decision is not binding upon me and, respectfully, I am unable to agree with it. 16 In that decision, Keen DCJ noted that there is no express provision in the Magistrates Court (Civil Proceedings) Act enabling this Court to enlarge the time. This was contrasted with the State Administrative Tribunal Act 2004 which provides for appeals to the Supreme Court and expressly, by s 105(7), empowers the Supreme Court to extend time. Similarly, his Honour noted that the Criminal Injuries Compensation Act 2003 provides for appeals to this Court and expressly empowers the Court to extend time within which to appeal. 17 I note also that, in criminal cases, the Criminal Appeals Act 2004 provides a right of appeal to the Supreme Court from any decision of a court of summary jurisdiction. Section 10 provides that the time limit for commencing such an appeal is "28 days after the date of the decision unless the Supreme Court orders otherwise". Appeals against conviction on indictment are to the Court of Appeal. Section 28(3) of the Criminal Appeals Act provides that such an appeal "cannot be commenced later than 21 days after the date of the decision or judgment unless the Court of Appeal orders otherwise". 18 These are all examples of parliament evincing a clear intention that the time within which to institute an appeal may be enlarged by the court. It has not done so in the Magistrates Court (Civil Proceedings) Act. 19 The ratio of the decision in Wise (supra) is that the time limit contained within s 40(3) of the Magistrates Court (Civil Proceedings) Act would, if read literally, cut off all appeals, minor or not, within 21 days after judgment, which would be inimical to the fundamental purpose of an appeal court to ensure that there is no miscarriage of justice and to do justice between the parties. His Honour reasoned that, if parliament had intended to so restrict appeals from the Magistrates Court to the District Court pursuant to the Magistrates Court (Civil Proceedings) Act and also to restrict further appeals from the District Court to the Court of Appeal (Page 6)
(s 42 of the Act provides an identical 21 days time limit on such appeals), parliament would have expressly so provided. 20 Accordingly, his Honour concluded at [45] that: "… even though that may appear to be at odds with the grammatical construction of the words used in s 40(3), I am of the opinion that the powers of the Court to extend time within the rules of court still survive notwithstanding the wording in s 40(3) of the Act." 21 The question is, however, where do those powers survive? The argument is that the power of this Court to extend time within the rules of court lies in O 3 of the Rules of the Supreme Court 1971. By r 6 of the District Court Rules, the Rules of the Supreme Court "apply to and in respect of any case in the Court", subject to r 3 District Court Rules whichprovides: "If there is a conflict or inconsistency between these rules and the RSC, these rules prevail." 22 Order 3 r 5(1) Rules of the Supreme Court provides: "The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these Rules, or by any judgment, order, or direction, to do any act in any proceedings." 23 By O 3 r 5(2): "The Court may extend any such period as is referred to in par (1) although the application for extension is not made until after the expiration of that period." 24 The flaw in the argument, however, and this really is the nub of the matter, is that the mandatory 21 days time limit prescribed by the Magistrates Court (Civil Proceedings) Act is not just a period within which a person is required or authorised by the Rules of the Supreme Court, or for that matter the District Court Rules by incorporation, or by any judgment, order, or direction, to do any act in any proceedings. It is the time limit set in the primary legislation creating the right of appeal. Order 3 does not empower the court to extend a period within which a person is required by an Act to do something. And the Act requires the appellant to commence proceedings within 21 days. (Page 7)
25 If the appeal is a nullity, having been filed out of time, there are no proceedings. The Magistrates Court (Civil Proceedings) Act provides only that the appeal is to be conducted in accordance with rules of court. The District Court rule providing the manner in which the appeal may be commenced does not take precedence over the empowering section itself which provides the right of appeal. Nor does it in fact give power to extend the time. 26 The position may be contrasted to appeals to the Supreme Court. In appeals in criminal indictable matters, s 28(3) of the Criminal Appeals Act, the primary legislation, expressly provides for power in the court to extend the time in which to appeal. Summary matters are similarly dealt with in s 10 of the same Act. That position is crystal clear then. 27 As to civil appeals, if there is no time limit specified in primary legislation governing the particular civil appeal, then the time would be at large, unless the governing rules of the court specify a time limit. And they do: the Supreme Court (Court of Appeal) Rules 2005 apply to and in respect of any Court of Appeal matter, criminal or civil. The time for appealing to the Court of Appeal is dealt with in r 26(2) which provides that for all appeals except civil interlocutory appeals: "Unless another written law expressly provides otherwise, any other appeal to the Court of Appeal must be commenced within 21 days after the date of the decision being appealed." 28 That section is consistent with the approach that the law creating the right of appeal is the starting point. 29 In indictable matters then, both the time limit and the power to enlarge time are in the appeal creating statute. In civil matters, if there is no other appeal governing statute, then the time limit is that contained within the Supreme Court (Court of Appeal) Rules (or, in the case of appeals that may be made to the General Division of the Court, which now lie to the State Administrative Tribunal, O 65 of the Rules of the Supreme Court). 30 By r 5(1) Supreme Court (Court of Appeal) Rules, those rulesare to be read with the Rules of the Supreme Court and, by r 5(4) Supreme Court (Court of Appeal) Rules, O 3 of the Rules of the Supreme Court is expressly incorporated for the purposes of the Court of Appeal rules. That is the order which provides for extensions of time. In civil appeals, where no time limit is set by an Act creating the right of appeal, it can therefore be said that the commencement of the appeal within 21 days is something (Page 8)
which a person is required by the rules to do and therefore O 3 empowers the court to extend time. So for appeals in civil matters, there is power to extend, which is contained in the rules, as is the time limit, unless there is a mandatory time limit set by the Act creating the right of appeal. 31 That position is confirmed by r 3(1) Supreme Court (Court of Appeal) Rules, which generally defines an "appellant" to include "an applicant for leave to appeal or for an extension of time within which to appeal or apply for leave to appeal" and also by r 29 Supreme Court (Court of Appeal) Rules which provides: "To – (a) commence a civil appeal (including an appeal that requires leave to appeal) within time; or (b) apply for an extension of time within which to commence a civil appeal (including an appeal that requires leave to appeal), the appellant must file and then serve – (c) a Form 2; and (d) any document required by subrule (2)." 32 Rule 28 is in similar terms in relation to criminal appeals. 33 The Court of Appeal therefore has express power pursuant to the Criminal Appeals Act to extend time in the cases of criminal appeals concerning both summary and indictable matters. In any other case, unless the statute creating the right of appeal provides otherwise, the power which the Court of Appeal exercises to extend time appears to me to derive from the Supreme Court (Court of Appeal) Rules, which both set the time limit and empower the court to enlarge time via the express incorporation of O 3 of the Rules of the Supreme Court1971. Given that the time limit for civil appeals is set by the Supreme Court (Court of Appeal) Rules, O 3 does grant power to extend time, because the filing of the requisite form to commence the appeal is something "required" by the rules. 34 By contrast, in this case, the appeal creating provision which sets the time limit, namely s 40(3) of the Magistrates Court (Civil Proceedings) Act 2004, does notprovide any power of enlargement of time, nor does the District Court Act 1969. The District Court Rules do not provide any (Page 9)
general power of enlargement of time and nor is there anything in those rules from which it must necessarily be implied that there is a power to extend time. 35 The position appears to me to be the same in relation to a further appeal from this Court to the Court of Appeal pursuant to s 42 Magistrates Court (Civil Proceedings) Act 2004. That too contains a mandatory 21 days time limit, with no power reserved to the Court of Appeal to enlarge that time. If my reasoning is correct in relation to this Court having no power to extend that time, the same holds good for the Court of Appeal. That time limit could not be extended by recourse to the rules of court, because it is not a time limit imposed by the rules of court, but by the statute creating the right of appeal. Order 3 of the Rules of the Supreme Court would not apply. Logically, one would not expect that there would be one strict time limit for appeals to the District Court, but an extendable time limit for further appeals from those appeals. 36 Given the various statutes which I have quoted above in which parliament has provided the court with an express power to enlarge time, it would have been an easy matter for parliament to expressly provide that power to this court in the Magistrates Court (Civil Proceedings) Act. It chose not to do so. Contrary to Keen DCJ's reasoning, with respect, I consider that parliament did expressly provide for a strict time limit, by not providing power to extend time. Any further words clarifying that parliament, in effect, meant what it said, by expressly providing that there is no power to extend, are unnecessary. 37 While it is interesting to note that the former District Court Rules 1996 did empower this Court, by r 5, to enlarge time and that the District Court Rules 2005 did not commence until 30 May 2005, one month after the Magistrates Court (Civil Proceedings) Act 2004 commenced on 1 May 2005, nevertheless I must judge this on the basis of the current interplay between the District Court Rules 2005 and the Magistrates Court (Civil Proceedings) Act. 38 In any event, any rules of court are subject to the statute creating the right of appeal, which gives no power to this court to enlarge time. 39 I am not persuaded that a literal reading of the plain words of s 40(3) of the Magistrates Court (Civil Proceedings) Act reveals some unforeseen and unjust anomaly such as should lead me to interpret the Act contrary to its literal meaning. Section 40(3) is contained within a statute which also strictly limits appeals from minor cases by limiting the grounds which can (Page 10)
be raised (see s 32(3)) and also sets out to ensure that all cases are dealt with as informally and expeditiously as possible (see s 13). As will be seen later in this judgment, the same statute also limits costs orders in both minor cases and those dealt with under the general claims procedure. A section which strictly limits the period within which an appeal can be commenced is not inimical to those intentions of parliament. Any time limit has the advantage of promoting finality in litigation. 40 Finally, I have been assisted by the case of Patterson & James v Public Service Board of New South Wales [1984] 1 NSWLR 237. In that case the appellants sought an extension of time within which to appeal to the Supreme Court. The right of appeal was to be found in s 54 of the Government and Related Employees Appeal Tribunal Act 1980 ("GREAT Act"). The time limit was provided by s 55(1) of that Act: "An appeal under section 54 shall be made within 21 days after the date of the Tribunal's decision on the question of law the subject of the appeal and shall be made in accordance with the Rules of the Supreme Court." 41 The respondent argued that the 21 days time limit was mandatory and, it having expired, no right to appeal existed. The appellants relied upon r 4(1) of the Rules of the Supreme Court 1970 of the Supreme Court of New South Wales which provided: "Subject to subrule (2) an appeal must be instituted within 28 days after the material date or within such extended time as the court below or the Court of Appeal may fix." 42 The Court of Appeal found, however, that parliament had, by fixing a mandatory time limit, shown an intention contrary to the power to enlarge contained within r 4, that s 55(1) GREAT Act was mandatory and that the legislature could not have intended that r 4(1) should operate to provide a different time for appeal. Nor could the court find any other provision of the relevant statute, nor any policy, to persuade it to depart from interpreting s 55(1) as laying down a mandatory time limit. While that case involved rules of court that provided for an inconsistent and longer time limit than the appeal creating statute, the logic of the decision remains applicable to this case. 43 Were it otherwise and this Court had power to extend time by virtue of O 3 Rules of the Supreme Court, then every time parliament has provided, in a statute creating a right to appeal, that the court can extend time within which to appeal, for example the State Administrative (Page 11)
Tribunal Act 2004, Criminal Injuries Compensation Act 2003, and the Criminal Appeals Act 2004, it need not have done so. 44 I conclude that, the 21 days having elapsed before the notice of appeal was lodged in this case, there exists no right of appeal to this Court. 45 The reasons for the delay in lodging the appeal approximately one month late were covered in an affidavit of Trevor Gordon Darge sworn 3 February 2009. In essence, the appellant's legal advisers wished to see the transcript of the hearing before lodging an appeal. There were various delays occasioned within the Registry of the Bunbury Magistrates Court which meant that the complete transcript was not available until 27 August 2008. The appeal was lodged two days later. The respondent's solicitors were aware that an appeal was to be lodged but did not consent to any delay. 46 A different approach might have been taken and an appeal lodged within time and amended, if necessary, at a later date. But I accept that the decision to wait on the transcript was taken for responsible reasons and to avoid lodging an appeal which might, once the transcript arrived, prove to be misconceived altogether. And although I have dismissed the appeal, the grounds raised, particularly those concerning the Road Traffic Code and the order for costs, were arguable. But for my conclusion that this Court does not have power to enlarge the time in which to appeal, I would have ruled that the delay was justifiable and occasioned no prejudice to the respondent. I would have allowed the extension in the exercise of my discretion: see Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196. 47 In case I am wrong about the conclusion I have reached above as to this Court's lack of power to extend time, I will give the reasons why I would, in any event, have dismissed this appeal. There is some overlap in the grounds of appeal and the way in which they were argued, so I will deal with them in terms of the questions they raise, rather than as discrete grounds. 48 To understand the appellant's arguments, it is necessary to first grasp the parties' respective cases at trial.
Turning to the appeal itself: the parties' competing versions of events 49 Ms McKeon's evidence at trial was contained in both a written statement which was tendered and further oral evidence. Unfortunately (Page 12)
counsel also had her draw on a whiteboard, which of course is now not available to me, but I can infer what she drew from the descriptions. 50 It was accepted that the lane or carriageway between the lines of parking bays faced roughly north-south. Ms McKeon's evidence was that she was parked, with the front of her car facing in towards the carriageway, with four or five cars in bays to her left, so she was in bay number five or perhaps six from the south. She later nominated bay number five. In other words, as Mr Knapton entered the carriageway travelling north in his utility, he would have driven past four parked cars on his right before he passed her car, also on his right. 51 He was driving in the middle of the carriageway and drove past her. She said she saw his car stop, possibly three cars away from her. In other words, she placed his stationary vehicle level with bay number eight from the south. At that point she considered it safe to exit her car bay, turning to her left. She said she moved forward about 10 metres. 52 There was unchallenged evidence from Mr Knapton that each car bay was 2.5 metres wide. Allowing for a small portion of that 10 metres to consist of pulling out of the bay, the effect of Ms McKeon's evidence is that she had driven in a southerly direction away from Mr Knapton's vehicle past several car bays. She confirmed this in cross-examination, by saying that she had passed at least four cars. She must, on her evidence, have been close to exiting the carriageway at its southern end. 53 She estimated her speed at around 10 or 20 kilometres per hour. She said she had her window down at the time and her radio on at an average volume. 54 She said after she had driven those 10 metres, she felt a bump to her car and, as she looked in her mirror, she braked, because she saw that Mr Knapton's car had hit her at the back. She braked as soon as she was hit, but the utility kept coming along the side of her and finally came to rest at her driver's door. 55 She said there was the initial thump of the utility striking her car to the rear on the right-hand side, followed by the scraping sound of the right-hand rear corner of the tray back of the utility scraping along the side of her car from the back moving forwards to her driver's door, leaving damage all up the right-hand side of her car. 56 It was clear from Ms McKeon's evidence that she did not at any point see Mr Knapton's vehicle reversing prior to her car being struck. She said (Page 13)
after the collision Mr Knapton drove his car forward again because she was not able to get out of her car with his car resting on her driver's door. He then approached her and put his arms around her and said he was very sorry. 57 She maintained this account in cross-examination. She denied that she was only just leaving her parking bay when struck and denied that the initial point of impact was to her driver's door. She denied that she had felt the impact and yet continued driving in a left-hand arch. She denied telling Mr Knapton that she had felt a bump and had turned her radio down and kept driving. Her evidence was that that damage had been inflicted beginning at the right-hand rear of her car and progressing forward to her right-hand driver's door, from rear to front. 58 When asked to comment on Mr Knapton's sketch of the carpark (Exhibit 5), Ms McKeon disagreed that her car was in the third bay from the south and maintained it was further north, in the fifth bay. She did agree, however, with the position where Mr Knapton had marked his vehicle as having become stationary. That was directly opposite the fifth bay from the south, quite contrary to her evidence that he stopped possibly three bays north of her. Perhaps what she meant was that the gap between the cars when he stopped was as shown in the sketch. 59 So in essence, Ms McKeon's version of events was that, by the time the impact occurred, she was well and truly out of her parking bay and was driving south on the carriageway between the bays and had passed at least four cars. Even on her evidence, there were only four cars for her to pass. Looking at Mr Knapton's sketch, after those cars, she would have passed a tree then been at the southern exit. 60 On that description, though she did not see it, Mr Knapton's utility must have reversed parallel to the driver's side of her car, impacting first with the rear right-hand side of her car and then continuing to reverse, scraping along the side of her car until finally stopping with the right-hand rear of his car impacting her driver's door. He must have reversed some distance, from the position where he first stopped, passing the bay where she had been and then travelling the distance of another four car bays, before he collided with her. During that entire reversing manoeuvre, she did not see him and, presumably, given the collision, he did not see her. To my mind, that account was somewhat unlikely. 61 Mr Knapton's version of events was very different. After stating what was common ground, that he entered the carriageway from the south (Page 14)
driving north between the two rows of parked cars, he placed Ms McKeon's car in bay number seven from the north (bay number three from the south), two bays further south that she did. He said each of the bays were 2.5 metres wide. 62 He realised he had driven into a dead-end and consequently stopped his vehicle, planning to reverse. He said the front of his vehicle would have been within 10 metres of the northern end of the carriageway, placing the front of his vehicle approximately level with the southern end of bay seven from the south (bay four from the north). The rear of his vehicle he thought was about 1½ bays north of Ms McKeon's car, approximately the middle of bay five from the south (also bay five from the north). Ms McKeon had agreed with that position of his car, even though she placed herself in the same bay five. 63 He said that he checked both his left and right large reversing mirrors and the carriageway was clear and he then reversed very, very carefully because he said he absolutely hates parking bays. Though he was not asked and did not state his position on the carriageway, that would be consistent with taking up a position in the middle of the road as Ms McKeon described and as his sketch shows, as opposed to hugging either the left or right side of the carriageway. In cross-examination he also said that he checked his blind spot by looking over his shoulder. 64 He said he reversed very, very slowly and looked from his right-hand mirror to his left-hand mirror and, in the time between that and looking back again to his right-hand mirror, he felt his vehicle touch something on the right-hand side of his vehicle and stopped immediately. He estimated he had reversed, at the most, 4 metres, which would place him in the vicinity of bay number three from the south, where he testified Ms McKeon's vehicle had been parked. 65 He saw Ms McKeon's vehicle. He estimated she had moved out of her parking bay 2 to 3 metres at the very, very outside and said the back of her car was definitely not yet out of her parking bay. However, he said, after impact, she kept driving and he could then see the rear of his vehicle, now stationary, scratch along the side of her car. She kept driving until there was a gap between the vehicles which he could have walked between. 66 He got out of his car, but Ms McKeon stayed inside her car for a time and was shaking. He agreed that he hugged her and that he apologised because it was an accident, but he said he did not mean by that apology to (Page 15)
admit that he was at fault. He said it makes no difference who hit who, "it still should be that you feel sorry". 67 He said he asked her "Why did you not stop?" and she replied "I felt my vehicle shake so I turned the radio down and kept driving". In cross-examination Ms McKeon's counsel summarised what he had said as "Look, I felt the bump but I didn't hear it because my music was up too loud" and he agreed that is what Ms McKeon had said, so they were two different versions of what she said, but the theme was consistent. He said Ms McKeon said that when she first got out of the vehicle and then said it again once his wife had approached. 68 Mr Knapton denied that there were empty car bays into which he could have simply reversed, in order to then drive forward out of the carriageway. There is no evidence there were. 69 It was put to him in cross-examination that he could see almost immediately after entering the carriageway from the south that it was a dead-end at the northern end and should therefore have reversed out immediately. He denied noticing it was a dead-end immediately and I cannot see any real basis for that cross-examination, particularly when Ms McKeon herself was insisting that the carriageway was not a dead-end at all. The weight of the evidence was against her on that point and her counsel appeared to accept that. There is no reason to suppose Mr Knapton would have continued driving up the carriageway towards the northern end if he already appreciated that it was a dead-end. 70 Mr Knapton was quite definite that Ms McKeon was parked in the third bay from the south, the equivalent of the seventh bay from the north. It was put to him that he had decided to reverse so quickly that he took no steps to look at all, but he denied that and said that the whole time he reversed he was looking in his mirrors. He placed his speed at no more than 5 to 10 kilometres per hour. 71 He adamantly denied that the damage to the side of her vehicle had been caused by his continuing to reverse, scraping along her vehicle from its back to her driver's door. He denied that the initial impact was to the rear of her vehicle. 72 So these were two very different versions of the collision. On Mr Knapton's version of events, Ms McKeon's car was pulling out of her parking bay when the right rear of the utility struck her driver's door and she continued to drive, hence scraping the driver's side of her car, causing damage from the driver's door to the rear of the car. Though the timing (Page 16)
must have been close, on Mr Knapton's version, his way was clear when he commenced reversing and so Ms McKeon must have failed to look to her right, pulling into his path, shortly after he began moving. He had reversed only around 4 metres before the impact. 73 Mr Knapton's version was supported by his wife's evidence. Ms Lerlene Luff testified that she was waiting outside the Telstra Shop and saw her husband's car enter the carriageway between the parking bays and drive north towards her. From the sketch drawn by Mr Knapton and from her evidence, Ms Luff was standing to the north-west of the accident and his car must have impeded her view of Ms McKeon's car to an extent. 74 She saw him clearly realise that his path was impeded by an island and start reversing back. Ms Luff said she saw her husband reverse his car and then stop and she saw a car to his right pull out and then that stopped too. She said that second vehicle came out on a 45-degree angle from a parking bay on her husband's right. 75 She said his manner of stopping was sudden, but she did not notice an impact, which is not surprising given both the angle of vision and lack of damage to his car. The impact cannot have been dramatic. Ms Luff thought the vehicle on his right side continued to drive a little way before stopping a couple of metres from where he stopped. 76 Ms Luff said she then approached the cars and heard Ms McKeon say "I felt a bit of a bump and I turned my radio down and then I kept driving". She said she recalled the comment because it struck her as a weird thing to say and to do. She said she had a clear view from where she stood, although clearly her description is influenced by the angle of her vision. She readily accepted that she and her husband had discussed the collision on the way home and believed she might also have assisted to type up his statement for him, but maintained that she had not simply adopted his version of events. 77 As part of the appellant's case, Mr Richard Oborne was called to testify. He is a motor vehicle assessor at Provincial Assessing and his affidavit, attesting to the cost of repairs needed to be done to Ms McKeon's vehicle, was tendered (Exhibit 6). The appellant's counsel commenced by asking him to state his trade qualifications and at that point the respondent's counsel indicated that he did not object to the witness's expertise. (The transcript, which indicates Mr Owens objected, is inaccurate.) Through Mr Oborne were tendered several photographs (Page 17)
that he took of Ms McKeon's car (Exhibits 2 - 5) showing the damage to the driver's side of her car. 78 The following exchange took place between and the appellant's counsel and the witness (AB 21): "COUNSEL: Knowing that there was a collision and obviously there's marks alongside the car, is there any way that you would be able to tell from your experience where the collision occurred or the point of impact? – Okay. Yeah, I think from what I can tell from these photos and what I remember of the cars that the point of impact would have been on the front door and looks as though the damage went backwards in a – like a towards the back of the car, so I'm not sure whether the – I don't recall whether the insured vehicle was moving at the time, but I can assume that the damage commenced at the front door and went towards the back of the car. Okay, that's just an assumption? – Yeah. Not overly sure about that. OWENS, MR: Well, that's leading. HER HONOUR: I don't know that that was an appropriate comment for you to make. You showed him the photographs and asked him to comment and that was the evidence that he gave." 79 Not surprisingly, counsel for the respondent explored this issue in cross-examination (AB 21): "COUNSEL: Could the witness please be shown exhibit 2, the two photographs in exhibit 2? I think you took those two photographs as well, did you? – Yes. Exhibit 2 shows some internal damage in the internal panelling of the driver's door? – Yeah, that's the door trim on the inside, yes. And you recall seeing that? – Yes. Could you keep that with you and then can you have a look at exhibit 3? – Yes. (Page 18)
That appears to show an impact point on the driver's door? – Yes, it does, yes. Which is consistent with the internal damage of the first two photographs? – Yes. Can we have a look at 4 and 5 – sorry, 4 which shows two photographs. That appears to show – or does show scraping going from the indentation in number 3 towards the rear of the right-hand side of the vehicle? – Yes. You can tell that from how the ending finishes, that it has come from the front of the vehicle going backwards? – I believe so, yes. Just to get this correct. You are pretty confident that impact's occurred at the driver's door where it's the impact point shown on number 3 and it has gone from the right front to the right rear? – I believe so, yes." 80 Finally, in re-examination, this exchange took place (AB 24): "COUNSEL: You had a look at the photos, Mr Oborne. Is it at all possible that the point of impact assuming – sorry, I will rephrase that. That a point of impact could have occurred at the rear of the vehicle? – I just don't think so now that I've had a good look at these photos. They all look – when you look at this photo here that the angle to me looks like it's hit that way, and also this photo here the scraping does go towards the back of the car, so yeah, I'd have to say that that's how it happened, yeah." 81 This evidence, of course, from the appellant's own witness, completely supported Mr Knapton's version of events and was completely contrary to Ms McKeon's account. 82 Finally, there were the photographs themselves (Exhibits 2 - 4). The first and second photograph (Exhibit 2) show the inside driver's door of Ms McKeon's car, buckled at approximately the mid-point, below the window. The exterior view of that same door (Exhibit 4) shows corresponding damage, beginning or ending, depending on how the collision occurred, rather sharply at that point. From that point, extending to the rear edge of the driver's door, is a large mark where paint has been removed. That mark continues (whatever direction it was inflicted) to the (Page 19)
front edge of the rear driver's side door. Unfortunately, there is no close-up view of that damage. Below that large mark, which is parallel to and below the windows, are further scrapes. 83 There is a close-up view of the rear edge of the rear driver's side door (Exhibit 3). This shows a thin scraping of missing paint below the window, extending right to the rear edge of that door. The edge itself bears a thin scrape where paint is missing, but shows no buckling. Its edge shows a clean uninterrupted contour. The front-most part of the rear right panel immediately adjacent and behind it, however, is not only missing a substantial strip of paint, much more substantial than the thin scrape mark off the door, but is very noticeably buckled. It is buckled immediately adjacent to the unbuckled rear door edge. 84 Even without Mr Oborne's evidence on this point, logic says that that damage must have been inflicted front to rear, on that point of the rear door edge at least. It is difficult to imagine how the damage could have been inflicted so close to the rear door edge that it appears to almost begin under the protection of the edge of the door, and yet leave the door edge not visibly buckled, had that damage been inflicted rear to front, as Ms McKeon alleged. 85 The rather obvious point of impact to the mid-point of the driver's door might possibly indicate an end point of impact if the utility had struck the back of the car with the merest glancing blow, scraped along the side, then angled in slightly at the last moment and come to a rest with some final more forceful blow to the window. That is perhaps not impossible. It is unlikely, however. The obvious inference is that the driver's door was the point of initial impact. 86 When coupled with the damage to the rear of the vehicle and the unbuckled rear door edge, that inference is irresistible. It was certainly open to the court to draw an inference on the balance of probabilities based solely on the photographs that the damage was inflicted front to rear. They are very compelling evidence in their own right. 87 Her Honour may have needed persuading on that point. When the respondent's counsel submitted that the photographs alone, without Mr Oborne's evidence, were persuasive evidence against Ms McKeon's evidence, her Honour commented "I don't know about that, Mr Owens". I take a contrary view. In any event, however, there was the evidence of Mr Oborne, who examined the vehicle in person and took those photographs and therefore enjoyed an advantage that the Court did not. (Page 20)
88 Her Honour accepted that the collision occurred as Mr Knapton described it. I turn now to the grounds raised on appeal.
Did regs 57 and 58 Road Traffic Code 2000 have any application to this case? If not, did the learned Magistrate err in finding the appellant liable? 89 The appellant submits that the learned Magistrate erred in law in finding Ms McKeon responsible for the collision by reason of a breach of regs 57 and 58 of the Road Traffic Code 2000 when those regulations have no application to the facts. 90 In her reasons for decision (AB 49) the learned Magistrate, having found that the collision occurred in the manner described by Mr Knapton and not in the manner described by Ms McKeon, reasoned: "In addition to that evidence there is a duty on a driver entering a carriageway, as set out in regulations 57 and 58 of the Road Traffic Code, to give way to any vehicle travelling on the carriageway and in this instance Mr Knapton was in the vehicle travelling on the carriageway and Ms McKeon was entering – or intending to enter the carriageway. She had a duty to give way to the vehicle being driven by Mr Knapton. Obviously too Mr Knapton had a duty to keep a proper lookout for other vehicles on the carriageway, given in particular that he was reversing …" 91 Her Honour's reasoning concluded: "At the end of the day, as I have said, I don't accept that the incident occurred as Ms McKeon testified, that it occurred the way Mr Knapton testified. Ms McKeon had a duty under the Road Traffic Code to Mr Knapton and she failed in that duty. Accordingly, the claim is dismissed." 92 Regulation 57(1) provides, in essence, that a driver "entering a carriageway from land abutting the carriageway", which is not governed by some form of traffic control indication, shall give way to any vehicle travelling on the carriageway. A picture is given in the regulations as an example which shows a car in a driveway waiting to turn left into the road and giving way to a motor vehicle already on the road approaching from the right. The respondent's argument at trial was that a marked parking bay in a shopping centre amounts to land abutting the carriageway between the rows of bays and that, therefore, Ms McKeon had a duty to give way to any car in the carriageway. (Page 21)
93 Regulation 58 certainly has no application to the factual scenario in this case. It provides that when a driver is leaving a carriageway or a road and entering land abutting that carriageway or road it must give way to various parties. Neither Ms McKeon nor Mr Knapton was leaving a carriageway. It was only mentioned at trial because counsel for the respondent remarked at trial that he could not see the difference between them and the learned Magistrate did not dwell on the distinction, rolling them into one. Nothing turns on that. The real issue is whether reg 57 applied. 94 The Road Traffic Code 2000 is subsidiary legislation to the Road Traffic Act 1974. Section 4(1) of the Code provides that: "Unless the context requires otherwise, these regulations apply to persons, vehicles and things on roads only …" 95 If a carpark is not a "road," then reg 57 did not apply. "Road" is defined by s 5 of the Road Traffic Act to mean "any highway, road or street open to, or used by, the public and includes every carriageway, footway, reservation, median strip and traffic island thereon". The definition of road includes "road" and one must therefore look to its ordinary meaning for any further guidance. The Oxford English Dictionary (2nd ed) defines "road" as an ordinary line of communication used by persons passing between two different places, usually one wide enough to admit of the passage of vehicles as well as of horses or travellers on foot. The MacQuarie Dictionary (4th ed) defines "road" to mean a way, usually open to the public for the passage of vehicles, persons and animals, and any street so called. The respondent argues that the carriageways in a carpark do provide passage from one place to another and are open to the public and are surfaced as roads. 96 The appellant argues that neither the Road Traffic Act nor the Road Traffic Code are concerned with carparks. Certainly the Road Traffic Act is not limited to roads. The Act does not contain any general provision limiting its application to driving which occurs on roads and many of the offence creating provisions contain no limitation as to location, but are rather defined by the method of driving. Several are expressly confined to driving on roads: see, for example, s 15. Were a person to drive dangerously through a carpark, however, causing grievous bodily harm to a pedestrian, there would be no bar to his being charged under the Road Traffic Act. The Code however is expressly limited to roads. (Page 22)
97 There are several authorities on what does not constitute a road. A privately owned track to which the public was not permitted access, but along which trucks drove on occasion to collect bore water, was held not to be a "road" for the purposes of the Main Roads Act 1920 (QLD) in which the term "road" was not defined: Mason v Nominal Defendant (Qld) (1986) 5 MVR 62. A private track in a vineyard was held not to be a "road": McBain v Reyne (1997) 27 MVR 163. 98 I have found no authority directly on point. The closest factually is that of Gray v Purvis (1991 - 1992) 15 MVR 455, in which a paddock on a private farm being used as a carpark for the attendees of a ball was held not to be a road within the meaning of the Road Traffic Act 1961 (SA). That Act defined "road" to mean a "road, street or thoroughfare … and any other place commonly used by the public or to which the public are permitted to have access". The whole issue in the case was whether the public at large had been permitted to have access. That definition of "road" is quite different to that contained within our Road Traffic Act, however, being rather broader. Further, the paddock was not regularly used as a carpark, an important distinction on the facts. 99 In Ryan v Nominal Defendant (2005) 43 MVR 77, a case in which the definition of "road" under consideration included the requirement that it be "open to or used by the public", in the same terms as our Road Traffic Act, a dirt track on private land which was regularly used by trail bike riders and walkers, was held to be a "road", notwithstanding that the owner had tried to discourage such usage by the public and that the public users were trespassers. 100 A carriageway in a carpark of a shopping centre is "open to, or used by, the public". Within the ordinary meaning to be ascribed to the word "road" it is a way for the passage of vehicles. It is habitually used as such, by design. Further, given the regularity with which carparks in large shopping centres are frequented by members of the public in their cars and given the large number of carparks in modern suburbia, there is much to be said for imposing the obligations of the Road Traffic Code on those drivers. 101 As against that, however, s 62A of the Road Traffic Act draws a distinction between the two concepts, creating the offence of wilfully driving a motor vehicle "on a road or in a carpark" so as to cause excessive noise or smoke. That is the clearest indication that a carpark is not a road within the meaning of the legislation. (Page 23)
102 The respondent argues that this express reference to a carpark merely indicates that parliament wished to expressly capture carparks, given that they are often the location of such antisocial offences, so as to leave the matter beyond doubt, but parliament might more aptly in those circumstances have written "on a road, which expression in this section includes a carpark" or given a specific definition of road for that offence which included a carpark. Parliament instead chose to distinguish between the two. 103 On that basis, and not without some reservations, I conclude that a carpark is not a road and the Road Traffic Code has no application. Drivers within carparks would, however, be subject to the various offence creating provisions in the Road Traffic Act which are not limited in their application to "roads". 104 The appellant's first ground of appeal is therefore made out to the extent that I find the learned Magistrate did err in applying regs 57 and 58 of the Road Traffic Code to this dispute. 105 The error is one of form and not substance, however. Mr Knapton had always pleaded negligence on the part of Ms McKeon in his defence, that negligence consisting of failure to keep a proper lookout, failure to stop or take evasive action, driving into the path of Mr Knapton, driving without due care and attention and failure to comply with regs 57 and 58 Road Traffic Code. 106 Had the learned Magistrate, instead of having recourse to the Code, applied the standard of care to be expected of a reasonable driver in the circumstances, her Honour would inevitably have concluded that Ms McKeon, in entering the laneway from a parking bay, was under a duty of care to give way to any vehicle on that laneway. In other words, while the Code had no application because a carpark is not a road, in the circumstances of this case, reg 57 encapsulates the standard of care to be expected of a reasonable motorist entering the carriageway from the parking bay. 107 It is also apparent that the learned Magistrate considered that the standard of care expected of a reasonable driver imposed upon Mr Knapton a duty to keep a proper lookout, given in particular that he was reversing (AB 49): "Obviously too Mr Knapton had a duty to keep a proper lookout for other vehicles on the carriageway, given in particular that he was reversing, but I do accept his evidence that he looked into (Page 24)
his mirrors, he had seen the carriageway clear behind him and that he commenced to reverse down the carriageway slowly keeping an eye on both wing mirrors and his rear vision mirror and I accept his evidence that Ms McKeon entered the carriageway while he was turning his gaze from one mirror to the other. Certainly the damage to Ms McKeon's vehicle would suggest that the speed of the vehicles was as slow as each of them has given in evidence." 108 Her Honour was satisfied that he did take sufficient care, whereas her Honour was satisfied that Ms McKeon failed in her duty to give way to an oncoming vehicle. 109 The appellant submits that the learned Magistrate, in resorting to reg 57 of the Road Traffic Code, applied too simple a test for liability and failed to balance the respective duties resting upon each of Ms McKeon and Mr Knapton. The submission is that her Honour determined the issue of liability entirely on the basis of the regulations. 110 There is ample authority for the proposition that the provisions of the Road Traffic Code do not necessarily define the duty to take reasonable care: see Sibley v Kais (1967) 118 CLR 424, cited in Tweed v Shepherd [2008] WASCA 59 per Miller JA at [112 – 113]. But the learned Magistrate did not decide this case simply by the application of reg 57 to the facts. It needs to be borne in mind that this was a trial in the Magistrates Court for a very modest amount of damages and her Honour delivered her judgment on an extempore basis immediately following submissions. The reasons are not set out with the sort of detail one would have expected in a written judgment, but the heart of her Honour's reasoning is that she accepted Mr Knapton's evidence and, on that version of events, Ms McKeon failed in her duty to give way to him, while he did not fail in his duty to take reasonable care in reversing. 111 Her Honour expressly considered the standard of care to be expected from a driver in Mr Knapton's position, which her Honour described as Mr Knapton's "duty to keep a proper lookout for other vehicles on the carriageway, given in particular that he was reversing". There is no substance in the complaint that her Honour simply applied the Road Traffic Code to determine that Ms McKeon was liable. It is implicit in her Honour's words that she was mindful of the risks in the manoeuvre Mr Knapton undertook and considered his manner of driving against those risks and balanced the respective duties against each other. (Page 25)
112 The appellant submits that her Honour should have found that Mr Knapton was carrying out an unusual manoeuvre and one which required him to exercise more than an ordinary degree of care of a reversing driver, because reversing in a carpark is fraught with risk. The appellant submits that her Honour ought to have found that Mr Knapton should have taken further steps, such as looking over his shoulder, to minimise the risk of collision. 113 Mr Knapton was under a duty to exercise care to the standard to be expected of a reasonable driver in all of the circumstances. Those circumstances included the manoeuvre he was carrying out, an act of reversing, in circumstances where there were cars in bays. There is no basis for saying that he had to exercise more than an ordinary degree of care, but he had to exercise care to the standard to be expected of a reasonable driver facing the risks he was facing. 114 The appellant cites the decision of the South Australian Supreme Court in Hooker v Grinham (1997) 26 MVR 233, another shopping centre carpark case, but one readily distinguishable on its facts. The plaintiff reversed out of her parking bay into the carriageway. The defendant reversed into her parking bay from the carriageway. Each, as Doyle CJ said (at 234) was "performing the sort of manoeuvre that takes place every day in shopping centres". They reversed into each other, neither having seen the other. Both were driving slowly. Each considered she had looked and seen the way clear. Clearly each was wrong about that. The trial Judge assessed the plaintiff's contributory negligence at 50 per cent and the court on appeal saw no reason to disturb that finding. 115 In this case, Mr Knapton was reversing and, as her Honour expressly noted, that placed him under a duty to take care. He checked, including checking his blind spot, and the way was clear before he began reversing. He drove slowly. He drove in the middle of the carriageway. He did not see Ms McKeon. There was no evidence before the Court to suggest that a driver looking behind him over his left shoulder (as it could only have been as he also had to be mindful of cars to his left) is a more sure means of avoiding a collision with a driver pulling into his path from his right side than to use his mirrors. The opposite may be the case. The evidence in this case indicates, in contrast to the facts in Hooker v Grinham, that Ms McKeon was not in his path to be seen, until she began to exit her bay. 116 Ms McKeon saw Mr Knapton, however. Ms McKeon was driving forward from her bay, a much easier manoeuvre, and could and did see Mr Knapton's car stationary, only a relatively short distance from her. (Page 26)
She can have had no idea what he was planning to do next yet, in those circumstances, entered his path. Ms McKeon must, on Mr Knapton's version, have pulled into his path after he commenced to reverse and cannot have looked to her right before beginning to do so. 117 It was entirely open to the court, having accepted Mr Knapton's evidence, to find Ms McKeon solely responsible for causing the collision. 118 In any event, the appellant's submissions overlook how the appellant's case was run at trial. Trial counsel made it clear in submissions that, notwithstanding Mr Oborne's evidence, the appellant's case was based on Ms McKeon's evidence. The appellant did not raise any fall-back position based on a possible acceptance of Mr Knapton's version. The appellant's case was that Mr Knapton failed to look at all before reversing quite a distance and scraping alongside her driver's side damaging her car from the rear, coming to a rest at her driver's door. 119 It is implicit in her Honour's findings that she found Mr Knapton did keep a proper lookout, drove at an acceptably slow speed, continued to keep a proper lookout while reversing and took proper precautions to alert himself to any traffic in his way, but that Ms McKeon entered the carriageway into his path, giving him insufficient opportunity to be alerted to her presence before he struck her vehicle. 120 Based on her Honour's finding that Mr Knapton's evidence was to be accepted, it was well open to her Honour to find that Mr Knapton did comply with the standard of care required of a reasonable driver and was unable to avoid colliding with Ms McKeon, who failed to meet the standard required of a reasonable driver by pulling out into the path of an already reversing vehicle, having failed to keep a proper lookout. 121 While I am satisfied, therefore, that the appellant has made out an error of law on the part of the learned Magistrate in referring to regs 57 and 58 of the Road Traffic Code as being applicable and as having defined the duty of care resting upon Ms McKeon, I do not consider any different outcome could have emerged had her Honour instead determined Ms McKeon's duty of care according to the ordinary principles of common law. This ground fails.
Did the learned Magistrate err in equating the cause of the damage with the cause of the collision? 122 The appellant submits that the learned Magistrate regarded the determination of the cause of the extent of the damage as the same as the (Page 27)
determination of the cause of the collision. The appellant submits that the scraping along the side of the car after the point of initial impact only goes to the issue of whether, if the respondent was liable, the further damage was also as a result of his negligence. The appellant submits that the only question answered by the extent of the damage is what occurred after the impact, because on any version of events, Mr Knapton's utility impacted with the side of Ms McKeon's car. 123 I reject this submission. The cause of the damage to Ms McKeon's car was inextricably linked to the cause of the collision itself. Ms McKeon gave a version of events accounting for that damage following the initial point of impact which was critical to the determination of how the collision occurred. Once her Honour found that the damage was caused from front to back, it was inevitable that Ms McKeon's entire version of events would be rejected. 124 There was some further relevance to the issue of how the damage was caused: the respondent, as a fall-back position at trial in the event that Mr Knapton was found to have caused the collision, argued that, if Ms McKeon had stopped immediately upon impact, the damage inflicted to her car would have been less. The appellant complains that her Honour failed to have regard to the possibility that Ms McKeon may not have been able to stop immediately. On appeal, however, there is no substance in the point. Mr Knapton was not found liable for the collision at all. It matters not, therefore, whether Ms McKeon could stop. 125 The appellant further submits, however, that the rejection of Ms McKeon's evidence did not of itself determine liability and that her Honour did not separately consider the impact of that finding on the issue of liability. For reasons which I have stated above in relation to the first ground of appeal, I reject that submission. Having rejected Ms McKeon's version of events and having accepted Mr Knapton's evidence, her Honour did then engage in the balancing of the two respective duties of care. It was that balancing and the finding that Mr Knapton did meet his duty of care while Ms McKeon did not that led to the finding against the appellant, not merely the finding that the damage had been caused from the rear moving to the front of Ms McKeon's vehicle. This ground of appeal fails.
Ought the court to have found that Mr Knapton failed to keep a proper lookout, causing the collision? 126 The appellant complains that the finding that Ms McKeon entered the path of Mr Knapton during the time between his looking to his left (Page 28)
side mirror then back to his right side mirror is not in keeping with the logical sequence of events. 127 Her Honour found (AB 49) that Mr Knapton "had seen the carriageway clear behind him" and that Ms McKeon entered the carriageway while he was in the act of reversing and "turning his gaze from one mirror to the other". Her Honour therefore concluded, in effect, that Mr Knapton did not see Ms McKeon because she was not, at that point, there to be seen. It is implicit in her Honour's reasons that she concluded that Ms McKeon pulled out of her bay after Mr Knapton had commenced reversing. 128 The appellant submits that the act of reversing on the part of Mr Knapton and the act of pulling out of her bay on the part of Ms McKeon appear to have occurred simultaneously. No basis is given for this assertion. Clearly this does not arise from Ms McKeon's evidence at trial, which was in any event rejected. No witness could testify as to the precise timing of events, but Mr Knapton's evidence, which was accepted, was that he did not see Ms McKeon's car in his mirrors. On his version, he had reversed the length of almost two car bays very, very slowly, while Ms McKeon's car did not fully make it out of her parking bay. 129 Having accepted Mr Knapton's version of events, I see no reason why her Honour should have concluded that both cars began to move simultaneously. The evidence of Mr Knapton logically implies the opposite. 130 The appellant argues that that is not the end of the matter: that, even accepting she was not there to be seen at the outset, Ms McKeon must nevertheless at some point have been visible as she entered his path and yet Mr Knapton did not stop in time to avoid a collision. Counsel for the appellant argues this fact should have led to a finding, at least, of contributory negligence on Mr Knapton's part. 131 That was not the appellant's case at trial. Given that Ms McKeon utterly denied that the collision occurred as she pulled out of her parking bay, she gave no evidence as to how long she was in the path of Mr Knapton prior to impact. Given that she did not see his car in the act of reversing, because she did not look, she gave no evidence as to the speed at which it reversed. 132 While a person reversing is under a continuing duty to take care and must maintain vigilance while reversing, the evidence in this case (Page 29)
indicates that Ms McKeon pulled into the path of the reversing utility only shortly prior to the collision, given that her car had not made it out of its bay completely. Mr Knapton had reversed only some four metres or so. I see no reason why the evidence should have compelled her Honour to find that Mr Knapton had sufficient opportunity to see Ms McKeon's vehicle behind him and stop in time to avoid a collision. Her Honour was entitled to accept his evidence that he did not see the car. 133 The appellant submits that Mr Knapton ought to have seen Ms McKeon start her vehicle, at which point her headlights would have come on, and ought to have seen her then start moving into the lane behind him. 134 The issue of the headlights is a red-herring. Ms McKeon testified that her lights were left in the automatic position and automatically came on whenever she switched the car on. She gave no evidence and was not asked about what sort of automatic lights her car was fitted with: whether they responded to dimming light and came on only when needed, or whether they came on in broad sunlight. Further, the collision was described in her statement as having occurred at 3.45 pm. No evidence was given about the lighting conditions on the day. Her car was parked perpendicular to the carriageway and Mr Knapton's car. When she did enter the carriageway, it was to face away from his car. In all of these circumstances, there is no reason to think that Mr Knapton would have seen her headlights, if indeed they came on. 135 There is no reason to think, and no evidence upon which to conclude, that Mr Knapton had any reason to anticipate that Ms McKeon's car was going to pull out behind him. Her Honour clearly found that he took appropriate steps to guard against the risks entailed in reversing, including the general risk that a car would pull out from a bay. 136 By contrast, Ms McKeon, knowing the utility had stopped not far away to her right, had every reason to wonder what that driver's next manoeuvre would be. It is apparent she gave it no further thought and did not look before pulling out of the bay. In those circumstances, her Honour was amply justified in coming to the conclusion that Ms McKeon was solely responsible for the collision. I see no error in her Honour's conclusion. 137 That disposes with the grounds going to the issue of liability. What remains is her Honour's order that the appellant pay Mr Knapton's legal costs of the matter. (Page 30)
Did the learned Magistrate err in ordering costs against the appellant? 138 The Magistrates Court (Civil Proceedings) Act provides generally that the court may order a party to a case to pay the whole or a part of another party's costs in the case: s 25(1). However the Act sets out a regime whereby cases fall either within the category of a "minor case" or are dealt with under the general procedure. To constitute a minor case, the proceedings must both involve less then the minor case jurisdictional limit of $7,500 and the party must elect for the matter to be dealt with under the minor cases procedure. In broad terms, the minor cases procedure is less formal. A successful party in a minor case is entitled to costs pursuant to s 25(1), but those costs are confined to "allowable costs" which refers only to court fees, service fees and the costs of enforcing judgment: s 31(1) and (2). There is an exception to that rule: s 31(3). I will return to that shortly. 139 This case was not dealt with under the minor claims procedure, though it might have been, involving a sum less than $7,500. 140 Pursuant to s 25(1), the court may make an order for costs. Section 25(5), however, provides: "(5) In a case where — (a) the value of the claim, or of the relief claimed, by the claimant is not more than the minor cases jurisdictional limit; and (b) the claimant did not elect to have the claim dealt with under the minor cases procedure … the Court may only make an order under subsection (1) in favour of a successful party if the order would be permitted by section 31 were the case being dealt with under the minor cases procedure." 141 Returning to s 31(3), it provides: "(3) Despite subsection (2), the Court may make an order under section 25(1) as to the payment of the party's other costs by another party if it is satisfied that — (a) because of the existence of exceptional circumstances an injustice would be done to the (Page 31)
successful party if that party's other costs were not ordered to be paid; or (b) the unsuccessful party's claim or defence was wholly without merit; or (c) …" 142 In this case, after her Honour ruled in favour of Mr Knapton, his counsel sought an order for costs. He referred her Honour to s 31(3) of the Act and mounted his argument in relation to both (a) and (b) of s 31, submitting, firstly, that the unsuccessful party's claim was wholly without merit. He submitted that he had received Mr Oborne's photographs of the damage to Ms McKeon's vehicle at the pre-trial conference in July 2007 and had put to the appellant's lawyers then that it was apparent from the photographs that Ms McKeon's version of events could not be maintained. 143 Counsel further submitted that her Honour "may consider it is exceptional" that the matter had proceeded to trial at all, given that the appellant's action was mounted by a subrogated insurer which was armed with the photographs taken by the assessor, which photographs should have brought home to the insurer that its claim would be in difficulty. He submitted that, given that the appellant was legally represented, it would be unjust to either expect Mr Knapton not to engage a lawyer himself, or, if he did, to then not to be able to recover his legal costs when his position from the outset had been wholly vindicated. 144 In opposition to the order sought, counsel for the appellant reminded the court that costs "are only granted in extraordinary circumstances", arguing that the appellant had not initially intended to call Mr Oborne and planned simply to tender his affidavit, until the respondent indicated that he would not consent to that course. 145 Her Honour concluded at (AB 44): "It is my view that if the assertion of the defence regarding the photographs had been followed up then this matter may never have ended up in a trial today. It seems to me that it was, at the very least, an oversight not to follow up with the expert witness the assertion together with the photographs and the nature of the damage and for him to have previously provided that opinion to the claimant's advisers. To simply assume that the photographs supported the evidence of the claimant was perhaps a dangerous assumption to have made without the benefit of following it up (Page 32)
with your own witness. I am prepared to grant costs in that situation." 146 The appellant complains that discussions held at pre-trial conferences are without prejudice and cannot be used at any stage for the determination of a civil dispute. Counsel submits that the comments made by the respondent's counsel at trial concerning what was discussed at the pre-trial conference contravened r 43(2) of the Magistrates Court (Civil Proceedings) Rules 2005. Before me, Mr Owens conceded the point. 147 His concession may have been overly generous, given that r 43(2) does not appear to contain the blanket prohibition urged by the appellant. It provides that: "Anything said or done by a party for the purpose of attempting to settle a case at a pre-trial conference is to be taken to be said or done without prejudice to any evidence or submission that the party – (a) has adduced or made; or (b) may subsequently adduce or make, in or in respect of the proceedings." 148 It appears only to prevent statements made by a party being used against that same party. The respondent's counsel did not rely upon any admission or concession made by the appellant's lawyers during a pre-trial conference to undermine or contradict a submission made by them at trial. He merely stated what his own position had been at the pre-trial conference. 149 I am mindful however of the body of law relating to statements made without prejudice and, in particular, those factors described by the learned authors of "Cross on Evidence" (7th ed, Ed. JD Heydon, Butterworths, Aust. 2004) at par 25,350. The rule is not confined to admissions being used against the party which made them, though that is the obvious rationale behind the rule, but parties may not speak freely at a pre-trial conference if they must be mindful of the distinction between admissions and statements generally made with a view to negotiating. 150 It is not necessary for me to decide whether r 43(2) was contravened, or whether it has narrowed the scope of the privilege at common law. (Page 33)
Given the concession, I asked counsel during submissions to clarify for me whether, quite apart from any discussions during a pre-trial conference, Mr Owens had raised with the appellant the issue of the photographs. Consistent with what the appellant's counsel said at trial in her submissions, the respondent confirmed that the same point was made in the correspondence between the parties prior to trial, when the respondent informed the appellant that he did not consent to Mr Oborne's affidavit being tendered and that the photographs supported Mr Knapton's version. That evidence was put before me during submissions without objection and, if it does amount to further evidence on appeal (which I do not consider it does), I give leave for it to be adduced. While the learned Magistrate did not, it seems from the transcript, view that correspondence, it is consistent with the submissions at trial. I conclude that there was no error in her Honour concluding that the appellant was on notice prior to trial that the photographs were said by the respondent to support his version of events and disprove the appellant's account. That was a relevant consideration on the issue of costs. 151 The appellant complains that the respondent's counsel also made comments at trial that the appellant's case was being mounted by an insurance company. It is not clear to me just what the basis of the complaint is. It is not suggested in either the written or the oral submissions before me that this was information only conceded within the confines of a pre-trial conference. It is a conclusion rather naturally to be drawn from the fact that an insurance assessor viewed the vehicle. It is the usual way of things in such cases that a subrogated insurer be behind the action mounted in the driver's name. 152 Nor was it an irrelevant consideration. The salient point argued by the respondent's counsel at trial was that the insurer and its lawyers had, or should have had, access to the photographs taken by the assessor and should have considered the photographs as part of the decision to proceed. There was no suggestion in the submission by Mr Owens that her Honour should award costs against the appellant merely because there was an insurance company involved, in the sense that there was a large company against a small individual. The point being made concerned assessment of the fundamental evidence before instituting proceedings and before then pressing to trial. Had the appellant instead been an unrepresented person with no experience in legal matters or garnering of relevant evidence, those facts also would have been relevant also. There was nothing improper in the submission. (Page 34)
153 An award of costs pursuant to s 25(1) involves the exercise of a judicial discretion on the part of the trial Judge. The principles as to how an appellate court should approach its task are well known and are stated in House v R (1936) 55 CLR 499, at 504 - 505. An appellate court should not interfere simply on the basis that it considers it would have taken a different course to that taken by the trial Judge. There must be shown some error in the exercise of the discretion, that the trial judge has acted upon some wrong principle, or taken some irrelevant matter into account, or failed to take some material matter into account. It may be that the precise error cannot be identified, but that the result is so unreasonable or plainly unjust that it reveals error. In those circumstances, the court will interfere. 154 While her Honour did not, in her reasons, refer to the express words of the Act, her Honour was specifically referred by counsel to the provisions of the relevant sections and heard submissions addressing the specific wording of the section. Her Honour must have been aware of the contents of s 31(3). It would, with respect, have been preferable for the learned Magistrate to expressly refer to the terms of the section, but I consider that her Honour did reveal her reasons sufficiently to enable an appellate court to consider and determine whether the exercise of her decision was erroneous: Lloyd v Faraone [1989] WAR 154 per Malcolm CJ at 163; also Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273, at 283. 155 Though the appellant submitted that her Honour approached the matter as a simple question of whether, on balance, costs ought to be awarded, counsel also submitted that her Honour appears to have awarded costs on the basis of the first limb of s 31(3). The two propositions do not sit well together and I reject the first and agree with the second. 156 Given that I have concluded that her Honour was mindful of the terms of s 31(3), it is implicit in her Honour's comments that "this matter may never have ended up in a trial today", "it was, at the very least, an oversight not to follow up with the expert witness" and "to simply assume that the photographs supported the evidence of the claimant was perhaps a dangerous assumption" that her Honour had formed the view that there were exceptional circumstances which meant an injustice would be done to Mr Knapton if his costs were not paid and those exceptional circumstances revolved around the preparation of the matter on the part of the appellant, whether that be on the part of the lawyers or the insurer. (Page 35)
157 It was also implicit in her Honour's reasons that the injustice done to Mr Knapton was that he had to defend himself at trial, when a more discerning assessment of the appellant's version of events, taking into account the photographs which were available to the appellant, coupled with proper preparation including proofing of the assessor, should have seen a different course taken and that he had to defend himself even though he had taken steps to alert the appellant to the deficiency in its case. It is apparent from her Honour's comments that she considered the assessment of the case by the appellant prior to trial to have been insufficient. |