Nora Preston v Renae Dukes
[2011] ACTSC 194
•2 December 2011
NORA PRESTON v RENAE DUKES
[2011] ACTSC 194 (2 December 2011)
APPEALS – appeal in form from Magistrates Court against money order – treated as application for leave to appeal from ACT Civil and Administrative Tribunal – appeal having no prospects of success – appeal dismissed.
ACT Civil and Administrative Tribunal Act 2008, Part 4, ss.6, 7, 8, 23, 71, 79, 86.
Court Procedures Rules 2006, Part 2.18.
No. SC 95 of 2011
Judge: Master Harper
Supreme Court of the ACT
Date: 2 December 2011
IN THE SUPREME COURT OF THE )
) No. SC 95 of 2011
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:NORA PRESTON
Appellant
AND:RENAE DUKES
Respondent
ORDER
Judge: Master Harper
Date: 2 December 2011
Place: Canberra
THE COURT ORDERS THAT:
leave to appeal from the decision of ACAT refused.
the respondent’s costs be paid by the appellant.
the money in court be paid out to the respondent in partial satisfaction of the money order.
the stay of the enforcement order in the Magistrates Court be removed with effect from 9 December 2011.
The appellant, Ms Preston, has filed a notice of appeal (subsequently replaced by an amended notice of appeal) from an enforcement order made in the Magistrates Court. The order related to a decision made by Mr W Stefaniak, Appeals President of the ACT Civil and Administrative Tribunal.
On 15 November 2010, Mr Stefaniak heard and determined a civil dispute between the parties. The amount at issue was less than $10,000.00, and the Tribunal had jurisdiction to determine it under Part 4 of the ACT Civil and Administrative Tribunal Act 2008.
The claim had been made in the Tribunal by the respondent, Ms Dukes, for damage to her car in a collision with a car driven by the appellant at the junction of Boddington Crescent and Barritt Street, Kambah at about 9:00pm on 28 August 2009.
It is apparent that notwithstanding the terms of the notice of appeal to this court, Ms Preston’s real interest is in challenging Mr Stefaniak’s decision.
Section 79 of the ACAT Act provides for an appeal within the Tribunal on a question of fact or law. The appellant did not avail herself of this procedure within the prescribed time. There is a right of appeal from the Tribunal to this Court by leave under section 86, although strictly this right is triggered only following a decision on appeal within the Tribunal.
The order made by Mr Stefaniak was a money order, which he expressed as a judgment in favour of Ms Dukes against Ms Preston for $4730.00. Section 71 provides that a money order is taken to have been filed in the Magistrates Court for enforcement on the day the order is made. Enforcement proceedings are thereafter governed by Part 2.18 of the Court Procedures Rules 2006, pursuant to which the order from which Ms Preston seeks to appeal was made.
On 11 November 2011 I made an interlocutory order staying the order of the Magistrates Court until further order, subject to the appellant paying $2,000.00 into Court, which she has done.
In order to deal with the practicalities of the dispute between the parties at the stage it has now reached, I propose to treat the proceeding before this Court as though it were an application for leave to appeal from the decision of the Tribunal.
I have read the transcript of the hearing before Mr Stefaniak. I note by way of background that one of the objects of the ACAT Act is to ensure that access to the Tribunal is simple and inexpensive for all people who need to deal with the Tribunal: s.6. The Tribunal is required to ensure that its procedures are as simple, quick, inexpensive and informal as is consistent with achieving justice; and to observe natural justice and procedural fairness: s.7. The Tribunal need not comply with the rules of evidence: s.8. The Tribunal may decide its own procedure in relation to a particular matter: s.23.
10.At the hearing, and also before me, Ms Preston was unrepresented. Mr WM Redpath, solicitor, appeared for Ms Dukes. Oral evidence was given by Ms Dukes and her mother, and by Ms Preston. Documents admitted into evidence were a set of photographs taken by the plaintiff of her car within a few days of the accident; a copy of the police report into the collision; an internet printout of portion of the Red Book Guide as to the value of cars of the make and model of the plaintiff’s vehicle at the date of the accident; a diagram of the accident scene drawn by the plaintiff; and a copy of a statement made to the police by Ms Preston.
11.The plaintiff’s case was that she was driving north-east on Boddington Crescent with her headlights on. As she approached the T-junction with Barritt Street on her left, she observed a car approaching and stopping at the give-way sign. Without warning the car pulled out in front of her, giving her no time to avoid the collision.
12.Ms Preston’s version was that she was driving south-east on Barritt Street. She stopped at the junction and looked both ways. She did not see any cars approaching, or headlights, and proceeded to make a right turn. She had completed the turn and was some distance past the intersection when the other vehicle came onto its incorrect side on Boddington Cresant and collided with her car. On her evidence the light was poor, and it was foggy and smoky.
13.The plaintiff’s mother gave evidence that she arrived at the scene soon after the collision and observed Ms Preston’s car within the intersection.
14.The police report described the weather as fine and clear and the intersection as well-lit.
15.Mr Stefaniak took into account the location of damage to the vehicles in arriving at his decision as to what probably happened.
16.As was open to him, he preferred the version of Ms Dukes to that of Ms Preston. He found on the balance of probabilities that a collision had occurred in the manner she described. He considered whether she might have been guilty of any degree of contributory negligence but decided not. He came to the view that the collision was entirely due to the negligence of Ms Preston, who for some unexplained reason had failed to see the respondent’s car approaching from her right although it had its headlights on. She had moved out to make a right turn, straight into the path of the oncoming vehicle.
17.As to quantum, Mr Stefaniak took into account the various items of information before him. He noted the Red Guide range of $5,500.00 to $7,100.00 for a car in good condition of the same make and model, but took account of the fact that the car had travelled 150,000 kilometres, and that Ms Dukes had bought it for $4,500.00 about a year before the accident then spending about $1,500.00 to have some existing damage repaired. He noted that the Red Guide figures had a range for trade-in prices as well as for sale prices, and ultimately arrived at what I think was a conservative figure of $4,000.00 for the value of the vehicle at the date of the collision. He added $330.00 which he accepted as a towing fee. Further towing fees of some $300.00 had been incurred on the evidence but had not been paid, the amount being set off against the salvage value of the vehicle. He added $400.00 to cover interest and filing fees, making a total of $4,730.00.
18.Having considered the transcript of the evidence and reasons for decision, I am persuaded that there was no error of law or of fact. Mr Stefaniak arrived at an outcome which was available and justified on the evidence and the materials before the Tribunal.
19.I should deal with one issue which arose on the material before Mr Stefaniak and clearly caused some confusion, at least in the mind of Ms Preston. Ms Dukes’s car was not comprehensively insured, but was insured under a third-party property damage policy. Such a policy generally covers the owner or driver of the car only against liability for damage to someone else’s property. However, the particular policy in this case included an extension, whereby if the insured vehicle was damaged due to the negligence of the driver of another vehicle which was not insured, the insurer would pay to the insured the cost of repairing the insured vehicle up to a limit of $3,000.00. In the present case, the cost of repairs, though not specified in evidence, was clearly well in excess of the pre-accident value of Ms Dukes’s vehicle. Hence, if she could establish that it had been damaged beyond repair by the negligence of the driver of an uninsured vehicle, she could have recovered $3,000.00 from the insurer. It appears that the insurer has not thus far been satisfied that Ms Preston’s vehicle was uninsured, and therefore has not paid Ms Dukes $3,000.00 under the policy, that condition not having been established to the satisfaction of the insurer. A document produced by the insurer, in evidence before the Tribunal, showed $3,000.00 as the pre-accident value of Ms Dukes’s vehicle. It is clear to me that this was a mistake in terminology. $3,000.00 was the limit of the insurer’s liability under the extension clause in the policy, and applied regardless of the value of the car. I can see how this confused Ms Preston but it is really of no relevance to the issue before the Tribunal or this Court.
20.I take account of the fact that if the decision were the subject of an appeal, the Court would interfere only if persuaded that the Tribunal at first instance had acted on a wrong principle or that the outcome was not reasonably open on the evidence. As to quantum, an appellate court would interfere only if satisfied that the damages assessed were so far outside the permissible range as to warrant interference, and would not interfere only because the appellate court itself might have arrived at a different figure on the evidence.
21.I also take account of the fact that Mr Stefaniak had the benefit of assessing the witnesses live before him, whereas I have had the opportunity only of reading a transcript of their evidence and have not had the advantage of assessing their credibility while they were giving their evidence.
22.I am accordingly persuaded that there would be no prospect of an appeal succeeding. In those circumstances, for a number of reasons this Court would not grant leave to appeal. One of those reasons is that orders for costs are generally not made in the Tribunal, and such an order was not made in this case. The framework provided by the legislation was clearly one which militates against legal representation before the Tribunal for claims of less than $10,000.00, whereas in this Court a party to an appeal would be well advised to be legally represented and an unsuccessful party to an appeal could expect to be ordered to pay the costs of the other side.
23.Having arrived at that conclusion, I am of the view that it would be futile to investigate the issues which have arisen subsequently in the Magistrates Court surrounding the enforcement proceedings.
24.Leave to appeal will be refused with costs. I order that the money paid into court be paid out to the respondent in partial satisfaction of the money order below. The stay of the enforcement order will be removed with effect from 9 December.
I certify that the preceding twenty- four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 2 December 2011
Appellant: In person
Counsel for the respondent: Mr WM Redpath
Solicitors for the respondent: Nicholl & Co
Date of hearing: 25 November 2011
Date of judgment: 2 December 2011
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