Miles v Ivanovski

[2008] NSWSC 367

CITATION:	Miles v Ivanovski [2008] NSWSC 367
HEARING DATE(S):	Tuesday 22 April 2008
JUDGMENT DATE :	24 April 2008
JUDGMENT OF:	Malpass AsJ
DECISION:	Appeal fails; proceedings dismissed; plaintiff to pay the costs of the proceedings.
CATCHWORDS:	COMMON LAW - appeal from Small Claims Division - denial of natural justice - assessor informing himself - obligation to warn
CATEGORY:	Principal judgment
CASES CITED:	Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
PARTIES:	Paul Miles (Plaintiff) Boris Ivanovski (First defendant) Magdalena Ivanovski (Second defendant)
FILE NUMBER(S):	SC 13275/07
COUNSEL:	D Aquilina (Plaintiff) PJ Gow (1st & 2nd Defendants)
SOLICITORS:	E C Legal (Plaintiff) McLachlan Chilton (1st & 2nd Defendants)
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	70665 of 2007
LOWER COURT JUDICIAL OFFICER :	Assessor Roberts
LOWER COURT DATE OF DECISION:	4 June 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

Thursday 24 April 2008

13275/07 Paul Miles v Boris Ivanovski & Anor

JUDGMENT

1 HIS HONOUR: The defendant brought proceedings in the Small Claims Division of the Local Court. The proceedings were brought to recover damages against the plaintiff. The claim arose out of an alleged collision between two motor vehicles. The plaintiff was driving a hire car.

2 The proceedings came before Assessor Roberts. He found in favour of the defendant. The judgment was in the order of $5,000.00.

3 The plaintiff now challenges that judgment by way of appeal in this Court. In such circumstances a limited avenue of appeal is available. For present purposes, denial of natural justice is the only available ground of appeal.

4 Denial of natural justice is a flexible concept of fairness. Each case can be expected to turn on its own particular facts. The onus rests on the party alleging the denial of natural justice. There must be materiality between any demonstrated denial of natural justice and the decision that is sought to be disturbed (it needs to be shown that the denial deprived the plaintiff of the possibility of a successful outcome).

5 In the Local Court the parties were legally represented. The hearing followed the usual practice. Each party tendered a statement. There was no cross-examination.

6 The defendant tendered other material (including a damage assessment report from a loss assessor). The plaintiff did not rely on any other material.

7 The competing versions set forth in the statements raised substantial conflict. Indeed, there was little in common.

8 In his judgment the assessor made a number of findings. At least largely, the findings brought about an acceptance of the defendant’s account of what took place.

9 The plaintiff was driving what has been described as a silver vehicle. His case was that no collision took place between the two vehicles and accordingly he was not responsible for any damage to the defendant’s vehicle.

10 The judgment contained, inter alia, the following:

“The defendant is driving a rental vehicle. The significance of that to the court is there would have been a report readily available to the defendant that would have shown the damage on the vehicle when he rented it, and the damage on the vehicle when he returned it, and by “damage”, as we all know, we do not just mean significant damage, they will note scratches, dents, very minor damage. They note that on the report when you hire the vehicle, and they note that again on the report when you return it. That was readily available. The defendant would have a copy of it, and he has not produced it. The court says it is open to draw the inference he has not produced it because it would not assist his case.”

11 In this Court the plaintiff now proceeds on a Further Amended Summons. Broadly speaking, he contends that there has been denial of natural justice in two respects.

12 Firstly, it is said that there was no evidence of a damage report being readily available to the plaintiff and that he was denied natural justice by reason of the assessor relying on the existence of such a report. Secondly, it was said that the assessor should have given the plaintiff prior warning that he intended to rely on the existence of such a report in making his findings.

13 In my view, there was no denial of natural justice in the circumstances of this case. Further, even if a different view had been taken on that matter, I would not have been satisfied as to the requisite materiality to the decision.

14 It seems to me that the submissions overlook the procedure that is followed in the Small Claims Division. Firstly, the rules of evidence do not apply. Secondly, an assessor or magistrate may inform himself or herself on any matter relating to proceedings being heard in the Division in such manner as he or she thinks fit.

15 It could be expected that, inter alia, the assessor has heard numerous cases in the Division involving motor vehicle collisions (including those where one of the vehicles is a rental vehicle). It could be expected that he was familiar with the practices of hire car companies. It seems to me that he did no more than inform himself as he was permitted to do under the applicable procedure.

16 In using that information, he came to the view that it was open to draw a Jones v Dunkel inference.

17 This inference was just one of the many matters that led him to the view of not accepting the evidence of the plaintiff (inter alia, it was one of the matters that might have been adduced to corroborate the plaintiff’s version).

18 For the purposes of completeness, it might be added that there was other material that supported such a result which was not adverted to by the assessor. By way of illustration, it may be mentioned that the defendant gave evidence of the plaintiff photographing the damage to her vehicle. The defendant did not seek to tender any photograph which depicted the condition of his vehicle immediately following the alleged collision.

19 In the circumstances of this case I do not consider that the assessor had an obligation to warn as alleged by the plaintiff. The matter of the failure by the plaintiff to adduce evidence that supported his version was well and truly ventilated (see page 5 of the transcript).

20 The plaintiff alleges that if warned, he would have sought an adjournment. Firstly, there is no evidence to support that allegation. Secondly, it seems somewhat unrealistic in the circumstances of this case. It might also be added that it was open to the legal representative to make application to the assessor, whilst judgment was still being delivered, and seek inter alia to be heard on the matter. This was not done.

21 The appeal fails. The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings.

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