Pelenyi v Clarke

[2002] QCA 150

[2002] QCA 150

COURT OF APPEAL

DAVIES JA
McPHERSON JA
ATKINSON J

Appeal No 2118 of 2002

PETER PELENYI  Appellant

and

JUSTINE LESLIE CLARKE  Respondent

BRISBANE

..DATE 24/04/2002

JUDGMENT

DAVIES JA:  This is an application for leave to appeal from a judgment in the District Court.  The applicant was the defendant in an action in the Magistrates Court for damage to the plaintiff/respondent's motor car alleged to have been caused by the negligent driving of the applicant.  Judgment was given against him in the Magistrates Court on 23 May 2000. He then appealed against that judgment to the District Court and on 5 February 2002 the District Court dismissed his appeal. 

On 6 March 2002 he filed a notice in this Court seeking leave to appeal against the judgment given in the District Court and seeking an extension of time, the notice having been given more than 28 days after the date of the judgment sought to be appealed from.

In the action in the Magistrates Court, the plaintiff/respondent was legally represented, but the applicant represented himself.  The facts were uncomplicated. The plaintiff was proceeding in an easterly direction along Browns Plains Road towards its intersection with Wembley Road; the defendant was proceeding in the opposite direction.  The plaintiff intended to proceed straight ahead, the defendant intended to turn right into Wembley Road.  There were two lanes of traffic in each direction on both roads and the intersection was controlled by traffic lights.  A green light was facing each of the plaintiff and the defendant.

The learned Magistrate found that the defendant turned right into the path of the plaintiff's vehicle causing it to swerve to its left, mount a raised triangular area and strike a pole before coming to a halt.  The Magistrate held that the ensuing damage to the plaintiff's vehicle was caused solely by the negligence of the defendant.  Accordingly he gave judgment for the plaintiff in respect of the damage to her car.

When the applicant's appeal came on for hearing in the District Court, he was represented by counsel but the respondent did not appear.  The appeal proceeded in her absence.

The primary complaint of the applicant as appears from his notice of appeal to the District Court was that he was not given sufficient time to provide all the evidence and that consequently there was some evidence not put before the Court. He sought a new hearing.  However this relief was not pursued in the District Court, counsel for the applicant confining his argument to the question whether a finding of contributory negligence should have been made against the plaintiff.  In my opinion that is surprising.  Nothing has been put before this Court which would indicate that the applicant, on the trial in the Magistrates Court, was denied procedural justice, or that, on any other basis, he would have been entitled to a new hearing.

The basis upon which the applicant seeks leave to appeal to this Court appears to be contained in paragraphs 8 and 9 of his first affidavit.  First he says that the respondent did not appear in the District Court, thereby effectively destroying his chance to prove that he was not liable and that he did not cross in front of oncoming traffic.  Secondly he says that his solicitor and counsel did not put his case forward in that they failed to follow his instruction and request which was to conduct a new trial in the District Court.  He said they had not put his case in a professional manner and prove the fact that he did not turn in front of the plaintiff's car.  That in effect seems to be his main complaint before this Court.  He says that he had more evidence to give and that the Magistrate tended to hurry him up and he said that he was prevented from asking some of the questions because of the way he put them in cross-examination.

Neither of these complaints, in my opinion, are sufficient to justify a grant of leave to appeal.  He does not suggest that there are any witnesses that he wished to call whom he was prevented from calling, merely that he had more to say.  He has presented his own case in this Court and he has expressed himself articulately, but like many people who appear for themselves, he is inclined to include irrelevant with relevant matter.  From the way he described the way in which the Magistrate prevented him from cross-examining, it appears to me plain enough that the Magistrate was simply preventing him from asking questions in which he simply made statements rather than asking a question.  The prevention therefore seems to me to be quite appropriate in the circumstances.

It follows that nothing in any of this discloses any basis for a grant of leave to appeal.  The decision in the Magistrates Court involved a simple question of fact.  It is not shown to be plainly wrong.  The highest that the applicant appears to put his case is that, had he had more time, he would have been able to prove the facts were other than those as found by the learned Magistrate. 

No question of law is involved.  Nor is there any important question of justice involved.  Nor, indeed, has the applicant even demonstrated that he has an arguable basis for showing that the learned Magistrate's decision was wrong, a question which in any event has already been litigated in the District Court.

In my opinion, the application should be refused with costs.

McPHERSON JA:  I agree.

ATKINSON J:  I agree.

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