R v Hemming Esq, Magistrate; Ex Parte
[1991] TASSC 92
•9 October 1991
83/1991
List "A"
COURT: SUPREME COURT OF TASMANIA
CITATION: R v Hemming Esq, Magistrate; ex parte Drew [1991] TASSC 92; A83/1991
PARTIES: R
v
HEMMING, Andrew Esq, Magistrate
DREW; Ex parte
FILE NO/S: M80/1991
DELIVERED ON: 9 October 1991
JUDGMENT OF: Cox J
Judgment Number: A83/1991
Number of paragraphs: 11
Serial No 83/1991
List "A"
File No M80/1991
THE QUEEN v ANDREW HEMMING, ESQ, MAGISTRATE;
EX PARTE DREW
REASONS FOR JUDGMENT XOC J
9 October 1991
This is the return of an order nisi for certiorari in respect of the order of the respondent magistrate sitting in the Small Claims Division of the Magistrate's Court whereby he determined that the prosecutor, who was the respondent in those proceedings, was 80% responsible for damage sustained in a motor vehicle accident by the claimant therein, Mr Hoskinson, and ordered the prosecutor to pay to the claimant the sum of $932.00 at the rate of $50.00 per month from 25 April 1991. The prosecutor claims that the magistrate exceeded his jurisdiction and that he was denied natural justice by the magistrate in the course of the proceedings in respect of which the order was made.
The record of the court in respect of the proceedings includes, by virtue of s9(1)(b) of the Magistrates Court (Small Claims Division) Act 1989 ("the Act"), "a summary of the facts of the issue in dispute in the relevant small claim as determined and recorded by the magistrate during the hearing of that claim". By virtue of s25(4) a magistrate is not required to keep a record of evidence given in a proceeding before him but shall make:
(a) a summary for the purposes of s9(1)(b); and
(b) notes of the proceedings.
The latter are not part of the record (s9(2)).
The claimant commenced proceedings in the Court of Requests on 20 December 1990 seeking damages sustained by him in respect of his car in a motor vehicle accident on the Midlands Highway at Brighton on 12 July 1990. The prosecutor entered a defence on 15 January 1991, and on 22 January 1991 filed a Notice of Election referring the matter to the Small Claims Division. On 5 February 1991 a notice of hearing was sent to both parties by the court notifying 27 February 1991 as the hearing date. The notice (inter alia) contained advice to the following effect:
"NOTE: If you intend to call a police officer as a witness, no less than fourteen (14) days' notice should be given to the District Superintendent, Police Headquarters, Hobart
TAKE FURTHER NOTICE that you should bring with you any documentary evidence upon which you intend to rely and any witnesses you intend to call".
On the day of the hearing the magistrate's record is as follows:
"TOOK SWORN EVIDENCE FROM THE PARTIES. CLAIMANT GAVE EVIDENCE HE WAS FOLLOWING A WHITE CAR ON MIDLANDS HIGHWAY AND THAT CAR WENT LEFT TO GO TO SALEYARDS.
HE PULLED OUT TO (sic) VEHICLE AND THEN HIT ONA (sic) SIDE BY A CAR DRIVEN BY RESPONDENT. R'S CAR HAD BEEN SIGHTED SOME WAY FURTHER BACK DOWN THE ROAD PRIOR TO IMPACT.
R ADMITTED HE WENT TO OVERTAKE CL OVER A DOUBLE WHITE LINE BUT SAID CLAIMANT HAD PULLED OUT TO OVERTAKE WHEN NOT LOOKING AND HAD CROSSED THE SAME WHITE LINE. CL CALLED 1 WITNESS AFTER EVENT (FATHER) NOT HELPFUL.
CL WISHES ADJ TO PROVE DAMAGE AND GET POLICE STATEMENTS.
I ASSESS LIABILITY AT 80 R : 20 Cl. CL NOT LOOKING BUT R MAINLY IN WRONG.
ORDER
A SD FOR ASSESSMENT OF DAMAGES.
APH"
Mr Crotty for the prosecutor submitted that there is a missing word "overtake" in the sentence, "HE PULLED OUT TO VEHICLE". Clearly something is missing, possibly "overtake", "avoid" or "pass". I find also from the affidavits filed that it was the respondent not the claimant who called his father as a witness.
It is submitted that there is an error on the face of the record which indicates an exceeding of jurisdiction by the magistrate. It is submitted that the magistrate, having found that the claimant was not looking, and not having assigned any reason for the prosecutor being "mainly in wrong", the apportionment of fault 80% against the prosecutor and 20% against the claimant was demonstrably wrong. I reject this contention. In view of the prosecutor's recorded admission, the magistrate must be taken to have found that the prosecutor overtook the claimant when he was wholly on the wrong side of the road, notwithstanding the presence of double white lines. He should clearly not have been in that position, and the claimant, while not relieved of the obligation to keep a proper look out and not entitled to ignore the possibility that a foolish driver might endeavour to pass his vehicle in contravention of such lines, could not be said in the circumstances to have been solely to blame for the collision even if, furthermore, his own vehicle had drifted partially over the double lines. A finding of negligence in the prosecutor and contributory negligence in the claimant was amply justified. The Tortfeasors and Contributory Negligence Act 1954 requires the judge of fact to arrive at a just and equitable apportionment, as between the two drivers, of the responsibility for the damage, comparing their respective culpability. It gives "a very wide discretion to the judge or jury entrusted with the original task of making the apportionment. Much latitude must be allowed to the original tribunal in arriving at a judgment as to what is just and reasonable", (Pennington v Norris (1956) 96 CLR 10, at pp15–16; see also McIntyre v Smith [1958] Tas SR 36). In the present case the prosecutor's departure from the standard of care required of road users was substantial and clearly much greater than that of the claimant, and in terms of causation, his unexpected presence on the wrong side of the double white lines adjacent to the claimant's vehicle more significantly contributed to the collision. An apportionment of responsibility on the basis that he was 80% responsible for the collision was well within the province of the magistrate. I find it impossible to detect any error on the face of the record in respect of that assessment.
The Act does not grant any right of appeal from an order made by a magistrate sitting in the Small Claims Division and a prerogative writ only lies on the following grounds:
(a)that the magistrate had no jurisdiction under the Act to determine the small claim in respect of which the order was made;
(b)that the magistrate exceeded his jurisdiction under the Act in relation to the small claim in respect of which the order was made;
(c)that the party was denied natural justice by the magistrate in the course of the proceeding in respect of which the order was made (s32(2)).
I have considerable doubt as to whether such an error as is claimed here falls within the above grounds, but as in my view the error has not been demonstrated, I need not determine that issue.
The prosecutor claims that he was denied natural justice. I have already pointed out that he received a notice of hearing indicating that he should attend with documentary evidence and any witnesses he intended to call on the hearing. He claims that at the hearing on 25 February 1991 he was told that he did not have to prove anything and that it was up to the claimant to prove his case. In his affidavit he says:
".....
7Hoskinson was asked for his version of events. I was then asked for mine. I was then allowed to ask questions and did so. Hoskinson asked questions of me. The Magistrate then asked Hoskinson if he had police statements or damage quotations. Hoskinson said he did not. The Magistrate told Hoskinson to bring those documents on the next occasion and then adjourned to the 25th March, 1991. He did not ask me to adduce any further evidence or give me any indication I could, or that it would be beneficial for me to do so.
.....
9On the 25th March, 1991 I again attended the Small Claims Division. On that occasion I was present, as was Hoskinson and the Magistrate and his Clerk.
10The Magistrate asked Hoskinson for the statements to police and the quotations. I was shown the documents. The Magistrate read the documents and then asked me if I had anything to say about the documents. I said that the quote showed damage to the passenger side of Hoskinson's car. I also said the police statements agreed with me about the location of the accident. The Magistrate took off $60.00 from the quote and said I was 80% responsible for the balance. He then said I had to pay from 24th April 1991 at $50.00 per month.
11I asked the Magistrate if I could produce photographs of both cars so he could see the way the damage was caused to both cars and he said no. I then asked if I could have an assessor look at both cars to see whether the damage to Hoskinson's car could possibly be caused by my car and the Magistrate said no. I then asked why not and he said 'Because you can't. It's over.' He then got up and left."
It is clear from his father's affidavit filed herein that he also gave evidence, which is consistent with the magistrate's record of 25 February save as to the error concerning the person calling him which I have noted.
The magistrate's record of the proceedings on 25 March 1991 is as follows:
"CL SUBMITTED. POLICE STATEMENTS A QUOTATION FOR REPAIRS OF VEHICLE. R STILL WISHES TO DISPUTE THE DAMAGE AND WISHES TO CALL FURTHER EVIDENCE ABOUT IT. THIS IS NOT A MATTER WHICH HE CAN DO AS I HAVE TAKEN ALL THE EVIDENCE IN RELATION TO THE MATTER AND ASSESSED LIABILITY 80:20. I DEDUCT $40 FROM THE AC FOR REPAIRS AS UNRELATED TO THE ACCIDENT.
I BELIEVE R IS ATTEMPTING TO EVADE LIABILITY BY UNNECESSARILY PROLONGING MATTER.
ORDER
R PAY CL $932.00 AT $50.00 PER MONTH FROM 25/4/91.
IN DEFAULT BALANCE DUE & PAYABLE.
APH"
That hearing was also preceded by a notice in identical form to the first, save that it was headed "Assessment of Damages". In my opinion, it cannot reasonably be said that the prosecutor was in any way denied natural justice. The statement that he did not have to prove anything and that it was up to the claimant to prove his case could not have reasonably induced a belief in him that he would be given some opportunity at a later time to challenge the claimant's evidence or to adduce evidence himself. From his own account of the proceedings he was given the opportunity to present such material as he wished, he had had written notice warning him to bring any relevant witnesses and documents, and in fact he gave evidence and called a witness in support. The magistrate decided to adjourn the matter for assessment of damages after he had determined liability as the claimant apparently did not then have his quotation for repairs or the police statements. The magistrate had every right to adopt this course, and no breach of natural justice was involved in his doing so. He was under no obligation to advise the prosecutor what course the prosecutor should adopt, and prior to the adjourned hearing the prosecutor again had written warning to bring his witnesses and relevant documents. He was not entitled to demand an adjournment of the second hearing so as to further litigate the issue of damages let alone that of liability which, whether he realised it or not, had been determined at the first hearing, and the refusal of his application cannot amount to a denial of natural justice.
The order nisi is discharged.
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