Petracca v Fitzgerald (No 2) No. Scciv-02-131

PETRACCA v FITZGERALD (No 2)
[2002] SASC 227
Magistrates Appeal
WICKS J
Preliminary

This is an appeal pursuant to s 40 of the Magistrates Court Act 1991 against a judgment of a Magistrate sitting in the Civil (General Claims) Division of that Court. The plaintiff in the action, Guiseppe Petracca, is the appellant and the respondent in the action is Michelle Fitzgerald.
The action was commenced on 6 July 2001 in the Civil (Minor Claims) Division of the Magistrates Court in which the plaintiff claims $2060.20 together with interest and costs.
On 27 July 2001, the defendant, Ms Fitzgerald filed a defence and counterclaim, the amount of the counterclaim being $7,762.08, together with interest and costs. In relation to this action, s 3(2) and s 3(3) of the Magistrates Court Act provide that a minor civil action is one founded on a small claim. If a claim that is not within one or more of the classes referred to in s 3(2) is introduced into a minor civil action, it ceases to be a minor civil action unless the court orders that the subsequent claim be tried separately. No order of that kind has been made in this case. The operation of s 3(2) and s 3(3) is automatic and does not require an order of the court. A counterclaim of the amount of $7,762.08 is plainly within the Civil (General Claims) Division of the Court and should be dealt with accordingly. The transcript of proceedings refers to the action as being:
"IN THE MAGISTRATES COURT
CIVIL (MINOR CLAIMS) JURISDICATION"
However, I believe this to be incorrect. As I have said above, the conversion of the claim from a minor claim to a general claim is automatic. I draw attention to the following note which appears in Lunn, Civil Procedure under the card “Magistrates Court Act” and is set out as follows:
"[MCA s 3.55] Counterclaims and third party proceedings in minor civil actions - subs (3) Where a counterclaim or a third party notice is raised in a minor civil action which is not in itself a minor civil action, the proceedings cease to be a minor civil action unless there is an order made for a separate trial of the counterclaim or the third party notice: Young v Mercantile Commercial Investigators (1991) 161 LSJS 77."
No order for a separate trial has been made. I draw attention to the terms of s 10AB of the Magistrates Court Act. This section provides that if proceedings involving a monetary claim have been duly commenced in the Civil (General Claims) Division, the Court may, if it thinks it appropriate to do so, on application by or with the consent of the parties, hear and determine the proceedings as a minor civil action and the proceedings will, in that event, for the purpose of the Act be a minor civil action. In the present case there is no evidence of any application by or with the consent of the parties. There is an endorsement on the file which reads in the following terms:
"Registrar to list matter for Small Claim Hearing and to notify both Parties."
In my view this does not go far enough. There was no application by the parties; nor was there evidence of any consent. I consider that s 10AB of the Magistrates Court has no application in the present case. The proceedings were commenced in the Civil (Minor Claims) Division and not the Civil (General Claims) Division of the Court. Section 10AB is only applicable where the proceedings were convened in the Civil (General Claims) Division.
Magistrate’s Judgment
At the commencement of the trial of the action before a magistrate, the parties indicated that they were in agreement as to the quantum of the claim and counterclaim for which judgment would be sought. The amounts claimed under the claim and counterclaim were to be the quantum of the claim or counterclaim, as the case may be. The only outstanding matter in the case was the question of liability.
At the conclusion of the trial the Magistrate delivered an ex tempore judgment in which he apportioned liability for the collision.
As the matter falls within the jurisdiction of the Civil (General Claims) Division a final judgment in the matter may be the subject of an appeal under s 40 of the Magistrates Court Act to a single judge of this Court.
In the circumstances, I find that I have jurisdiction to hear this appeal. If judgment had been given in the Civil (Minor Claims) Division of the Magistrates Court, I would not have had jurisdiction to deal with an appeal. The matter would have had to go before a District Court Judge for a review under s 38 of the Magistrates Court Act.
A notice of appeal in this matter was filed and served on 2 January 2002. The grounds of appeal were as follows:
"4.2The Learned Magistrate failed to take into account sufficiently or at all the photographic evidence presented at trial.
4.3The Learned Magistrate failed to take into account sufficiently or at all the location of the plaintiff’s (appellant’s) vehicle following the collision.
4.4The Learned Magistrate erred in concluding that on the balance of probabilities the plaintiff had pulled out from the stationery position at the kerb of Montacute Road at Newton into the roadway so as to have caused the collision to the extent suggested in the [Learned Magistrate’s] judgment on liability."
On 27 June 2002, at Montacute Road, Newton a motor vehicle owned and driven by the appellant came into collision with a motor vehicle owned and driven by the respondent. The appellant’s case before the Magistrate was that he was stationery, parked by the kerb and that he was about to go into his parents’ residence which was situated on Montacute Road adjacent to the point where he brought his motor vehicle to a standstill.
The appellant said that while he was in the act of turning off the ignition of his motor vehicle, he was struck from behind by the motor vehicle driven by the respondent.
The place where the appellant parked the motor was apparently the same place at which he parked on a regular basis. He described the place as “where I’ve always parked, just before the tree.”
It was the appellant’s evidence that he lived with his parents at their home on Montacute Road and that he has meals with them at their house each day. On this occasion he said that he had travelled in an easterly direction before parking his vehicle.
The respondent’s version of events was that she had been driving along Montacute Road in an easterly direction at the speed limit of 60 kmph and that the appellant’s vehicle, driven by him had come from the kerb and was moving diagonally across her path so that the left front of the defendant’s vehicle collided with the rear right side of the plaintiff’s vehicle.
Three photographs were before the learned Magistrate but it appears that they were not formally admitted in evidence. Counsel for the appellant raised this matter with me. I asked Mr Jolly, counsel for the respondent whether he had any objection to the photographs being in evidence. He said that he did not and the photographs were treated before me as admitted exhibits.
Except for the photographs, the case for each party seemed to rest solely on his or her testimony.
The learned Magistrate examined the photographs with some care. A coloured photograph and a black and white copy appear to be of the plaintiff’s vehicle and a photostat of a photograph appears to relate to the defendant’s motor vehicle.
The learned Magistrate’s finding in relation to the principal issue which has to be determined, namely the question of who is liable was as follows:
" I therefore find that the plaintiff was moving off, had encroached to a certain extent, much less than the defendant would have me believe, into her line of direction of travel. I do not think that he did so before checking properly as to the presence of the defendant’s vehicle. Similarly, I do not think that the defendant anticipated this possible manoeuvre. To a certain extent, though, the plaintiff must bear the majority of responsibility because it was he who was moving into an otherwise freely moving line of traffic that would otherwise be occupying their own lawful spaces. In other words, a vehicle moving from a semi or fully reposed position near the kerb bears the overwhelming responsibility to ensure that any manoeuvre to enter into the line of traffic does not constitute an embarrassment. Here it did. But the defendant must also bear a responsibility, as I have said.
I therefore determine this matter as follows. I find that the plaintiff was 60% liable for this accident. I find that the defendant was 40% liable. Applied to the agreed quanta, there will be a balance of judgment owing by one party to the other. Each party to bear their own costs."
It seems to me that the learned Magistrate’s conclusion is the correct one. If this had been a genuine rear end collision I would have expected there to be more damage to the rear left hand side of the plaintiff’s motor vehicle. It may be that the right hand side would sustain the greatest impact but I find it difficult to see how the left hand side could escape damage to the extent that it appears to have done. For example, I draw attention to the lights on the left hand side of the appellant’s vehicle at the rear. Rather than sustaining a rear end collision, it does seem to me that the accident may have occurred in the way described by the learned Magistrate. Instead of pulling into the spot on Montacute Road which the appellant’s motor vehicle occupied while he was with his parents, it may be that the appellant was leaving rather than arriving. From the damage that was sustained to the right hand side of the appellant’s vehicle as well as to the rear there is a strong inference to be drawn that the impact was sustained a second or two after the appellant left the kerb.
When leaving the kerb, the appellant did not maintain an adequate look-out. If he had, he would have seen the respondent’s vehicle approaching along Montacute Road in an easterly direction. The fact that the appellant was moving diagonally across the lane occupied by the respondent would leave him with the greater part of the fault which arises out of this incident. However, I consider that some blame must be attributed to the respondent for failure to keep an adequate look-out so that the incident which ultimately occurred may have been avoided altogether or its impact dramatically lessened.
I am inclined to think that it was more likely that this incident occurred as the appellant was leaving the parking spot which he uses when at home rather than that the appellant was merely arriving at that place and that the impact had occurred a few seconds after the appellant had brought his motor vehicle to the stationery position.
As to the grounds of appeal, as appears from the evidence, the learned Magistrate paid close attention to the photographs and as a result of perusal of them, formed a view of how this accident occurred which was materially different from that put forward by the plaintiff. Generally, see pages 6 and 7 of the transcript.
Also, it was alleged by the plaintiff that the learned Magistrate failed to take into account sufficiently the location of the appellant’s vehicle which followed the collision. There is no doubt that the learned Magistrate asked questions on this matter as appears, for example, on pages 5 and 6 of the transcript. The fact that the appellant’s motor vehicle on impact mounted the footpath and came to rest against the fence adjoining the footpath is consistent with the respondent’s version of events and is more consistent with that version rather than the appellant’s version.
The appellant further alleged that the learned Magistrate erred in concluding that on the balance of probabilities the plaintiff pulled out from a stationery position at the kerb of Montacute Road at Newton into the roadway so as to have caused the collision to the extent suggested in the learned Magistrate’s judgment on liability. In my opinion, the learned Magistrate’s finding in par 7 of his reasons for judgment are supported by the evidence.
I note that the notice of appeal seeks an order on the appeal that judgment be entered for the appellant against the respondent and that in the alternative the apportionment of liability be varied in favour of the appellant. I note that this is a matter which an appellate court would not likely interfere with the finding of the matter by the judge in the court below.
In Evers v Bennett (1982) 31 SASR 228 at p 229, King CJ said:
" The statute confers on the trial judge a wide discretion to apportion liability in a way which is just and equitable and an appellate court will interfere only in rare cases: Pennington v Norris (1956) 96 CLR 10. In many cases opinions will differ as to the precise apportionment which is just and equitable and the trial judge’s assessment must prevail unless it is clearly wrong."
In the present case, I do not consider the learned Magistrate’s apportionment of responsibility to be clearly wrong. On the authority cited I do not think I should interfere.
For these reasons, I would dismiss this appeal and refuse to vary the apportionment of responsibility as between plaintiff and defendant.
I will hear the parties as to costs.

[2002] SASC 227

17 July 2002