NRMA Insurance for the Nominal Defendant v Al-Bayati

[2018] NSWCA 258

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	NRMA Insurance for the Nominal Defendant v Al-Bayati [2018] NSWCA 258
Hearing dates:	7 November 2018
Date of orders:	07 November 2018
Decision date:	07 November 2018
Before:	Macfarlan JA Barrett AJA
Decision:	The application for leave to appeal is dismissed with costs.
Catchwords:	APPEAL – application for leave to appeal – less than $100,000 in issue – motor vehicle accident – no issue of principle or clear injustice – leave refused
Legislation Cited:	District Court Act 1973 (NSW), s 127(2)(c)(i)
Cases Cited:	Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 Lee v New South Wales Crime Commission [2012] NSWCA 262; (2012) 224 A Crim R 94 Nguyen v Tran [2018] NSWCA 215 Ziliotto v Hakim [2013] NSWCA 359
Category:	Procedural and other rulings
Parties:	NRMA Insurance for the Nominal Defendant (Applicant) Shahed Al-Bayati (Respondent)
Representation:	Counsel: P Morris SC / E Kovacs (Applicant) M Robinson SC / J Jobson (Respondent)   Solicitors: Hall & Wilcox (Applicant) Thomas Booler Lawyers (Respondent)
File Number(s):	CA 2018/222259
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Date of Decision: 21 June 2018 Before: Strathdee DCJ File Number(s): DC 2017/116637

Judgment

1. THE COURT: The applicant seeks leave to appeal against a decision of Strathdee DCJ of 21 June 2018 determining a claim for damages for personal injury resulting from a motor vehicle accident. Her Honour directed the entry of judgment in favour of the present respondent, Ms Shahed Al-Bayati (“the plaintiff”), against the applicant (“the Nominal Defendant”) in the sum of $60,898.56. As that amount is less than $100,000, the applicant requires leave to appeal (s 127(2)(c)(i) of the District Court Act 1973 (NSW)).

2. The plaintiff’s case was that she was driving in the left of two lanes when an unidentified vehicle veered from the adjacent lane into her lane. She said that in attempting to avoid the other car she lost control of her vehicle resulting in it colliding with a telegraph pole.

3. The plaintiff herself was the only witness called in her case on liability. The primary judge accepted her evidence, finding that she was “consistent in her version of events” despite strenuous cross-examination (p 5).

4. The Nominal Defendant called three witnesses on liability.

5. The first, Ms Kerrie Kimes, was driving her vehicle behind and in the same lane as the plaintiff’s but with a vehicle between them. She was adamant that there were no vehicles in the adjacent lane which might have caused the plaintiff to lose control of her vehicle. Her Honour said that Ms Kimes was an “impressive witness” and that her Honour had “no reason to believe that she was not telling the truth about what she remembers of the accident”.

6. The Nominal Defendant also called Mr Sam Adib-Ajeel to give evidence. He was the driver of a vehicle travelling behind and in the same lane as the plaintiff’s vehicle, situated between the vehicles of the plaintiff and Ms Kimes. Her Honour noted that he agreed that his recollection of the accident was “not great” but nevertheless asserted that there was not at the relevant time any vehicle in the adjacent lane.

7. Over objection, her Honour allowed the Nominal Defendant to tender a statement made by Mr Safa Adib-Ajeel, Mr Sam Adib-Ajeel’s brother, who was a passenger in his brother’s car. Mr Safa Adib-Ajeel could not be located and was consequently unavailable for cross-examination. Her Honour said that she therefore gave his statement “considerably less weight” than the oral evidence of the witnesses. The thrust of Mr Safa Adib-Ajeel’s statement was that there were no cars in the adjacent lane at the relevant time.

8. Her Honour referred to an inconsistency between the evidence of Ms Kimes and that of the two Messrs Adib-Ajeel and then, having acknowledged the difficulty of reconciling the differing versions of events, stated that she was “satisfied that there was another vehicle that came close to the plaintiff’s car which caused her to swerve to avoid a collision”.

9. Before this Court the Nominal Defendant argued, first, that the primary judge erroneously thought that at the scene of the accident the plaintiff had made a statement to police referring to the presence of a vehicle in the adjacent lane when in fact her statement to this effect had been made at a hospital about one and a half hours after the accident. The Nominal Defendant submitted that by this time the plaintiff had “had time to concoct a favourable account of the accident” (written submissions [30]). It also submitted that the version of events recorded was inconsistent with the version she gave in evidence, although it does not allege that there was in fact concoction.

10. Secondly, the Nominal Defendant submitted that the primary judge made no reference in her judgment to a written statement of Mr Sam Adib-Ajeel and “very little reference to the statement by his brother” (ibid [31]).

11. Thirdly, the Nominal Defendant submitted that her Honour had given insufficient reasons for her preference for the plaintiff’s evidence over that adduced in the Nominal Defendant’s case.

12. In Nguyen v Tran [2018] NSWCA 215 at [4], Beazley P referred with approval to the following summary by Bathurst CJ in Lee v New South Wales Crime Commission [2012] NSWCA 262; (2012) 224 A Crim R 94 at [12] of the principles relevant to the grant of leave:

“The principles upon which leave to appeal is granted are well established. Ordinarily it is only appropriate to grant leave concerning matters that involve issues of principle, questions of general public importance or where it is reasonably clear there has been an injustice in the sense of going beyond it being reasonably arguable that the primary judge was in error: Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69; Zelden v Sewell [2011] NSWCA 56 at [22]; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; GKD v Director of Department of Family & Community Service [2012] NSWCA 219 at [10]; Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[34].”

13. Her Honour also quoted at [6] the well-known explanation by Kirby P in Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 of the rationale for imposing a monetary limit on a right of appeal to the Court of Appeal and for requiring leave to be obtained where a lesser sum is in issue:

“(3)   The discouragement of unnecessary litigation in small amounts where public costs are necessarily involved including the time of the Judges, court officers, use of court buildings and functions, court reporters and the other expensive features of public litigation;

(4) A recognition of the fact that, particularly in small claims, the amount of costs that can be recovered on a party and party costs order, are typically below those which are actually incurred by a party and which, in respect of a small claim, may be completely disproportionate to the amount actually at stake;

(5) The need ordinarily to conserve the time of the Court of Appeal in small claims to matters which involve issues of principle, questions of general public importance or an injustice which is reasonably clear, that is to say goes beyond merely being arguable.”

14. The present case does not raise any issue of principle or of general public importance. Nor in our opinion is it “reasonably clear there has been an injustice in the sense of going beyond it being reasonably arguable that the primary judge was in error” (see [11] above). The Nominal Defendant’s submissions summarised above raise arguments that cannot be dismissed out of hand but they do not indicate that the Nominal Defendant has plainly suffered an injustice. Contrary arguments proffered by the plaintiff would have to be examined to determine an appeal lodged pursuant to leave granted by us. These would include arguments as to the effect of alleged inconsistencies not being raised in cross-examination concerning the materiality of the matters the subject of the Nominal Defendant’s first and second arguments and, as to the third argument, the extent, if at all, to which the primary judge was, in the particular circumstances of this matter, obliged to do more than indicate her preference for the evidence of the plaintiff over that of the other witnesses (see for example Ziliotto v Hakim [2013] NSWCA 359 at [2]-[9], particularly at [5]). Whilst we consider the proposed appeal to be reasonably arguable, we do not consider that its prospects can be assessed as higher than that.

15. For these reasons, the application for leave to appeal is dismissed with costs.

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Decision last updated: 07 November 2018