Robinson v Ware and Orix Australia Corporation Ltd
[2011] QDC 39
•8 April, 2011
DISTRICT COURT OF QUEENSLAND
CITATION:
Robinson v Ware & Orix Australia Corporation Ltd [2011] QDC 39
PARTIES:
ROBERT RAYMOND LLOYD ROBINSON
(Appellant)v
JOAN WARE
(First respondent)And
ORIX AUSTRALIA CORPORATION LTD
(ACN 002 992 681)
(Second respondent)FILE NO/S:
B1/2008
DIVISION:
Appeal
PROCEEDING:
Appeal from Magistrates Court
ORIGINATING COURT:
Charleville
DELIVERED ON:
8 April, 2011
DELIVERED AT:
Beenleigh
HEARING DATE:
14 October 2010 (Brisbane)
JUDGE:
Dearden DCJ
ORDER:
Appeal dismissed
CATCHWORDS:
APPEAL – motor vehicle collision – property damage – where the learned magistrate found that the appellant was solely responsible for the collision with first respondent’s vehicle –where learned magistrate found that the second respondent was not liable to either party – where the second respondent should not have been joined as a party but did not take steps to protect itself – where the learned magistrate ordered via a “Bullock Order” that the appellant pay second respondent’s standard costs –where on appeal the learned magistrate displayed no errors of law
LEGISLATION:
Uniform Civil Procedure Rules (1999) Qld
COUNSEL:
Ms D Spence for the appellant
Mr D Keane for the first respondent
Mr G Del Villar for the second respondentSOLICITORS:
Creevey Russell Solicitors for the appellant
Cooper Grace and Ward Solicitors for the first respondent
McLachlan Chilton Solicitors for the second respondent
Introduction
The appellant, Robert Raymond Lloyd Robinson, appeals against the decision of the learned magistrate at Charleville on 2 May 2008 ordering judgment against him, and costs, arising out of a motor vehicle collision which occurred on 21 October 2004.
Ground of Appeal
The appellant appeals on the following grounds:-
“1.[The learned magistrate] erred in law in finding that [the second respondent] was not vicariously liable to the [appellant].
2.[The learned magistrate] erred in law in failing to give due weight to the evidence of the [appellant] as to the circumstances of the accident.
3.[The learned magistrate] erred in failing to attribute any negligence to the [first respondent].
4.[The learned magistrate] erred in failing to consider the contractual obligations existing between ATSIC and/or ATSIS and the [second respondent].
5.[The learned magistrate] erred in failing to give due weight to the delay of the [first respondent] and the [second respondent] in failing to prosecute the matter with due haste in making the costs orders made.
6.[The learned magistrate] erred in law in allowing the matter to proceed to trial on 18 April 2008, following the withdrawal of the admission by the [second respondent] as to the ownership of the vehicle thereby prejudicing the [appellant’s] defence.
7.[The learned magistrate] erred in failing to give due weight to the fact that the [appellant] was unrepresented in the proceeding.”
During the course of the argument of the appeal before me at Brisbane on 14 October 2010, Ms Spence, who appeared on behalf of the appellant, sought to amend the notice of appeal to add a further ground namely “that the learned magistrate failed to give due weight to the fact of the knowledge of the [first respondent] and the [second respondent] that the [second respondent] was the incorrect party for the [first respondent] to sue, and the costs orders made by [the learned magistrate] against the [appellant] should be set aside.[1]
[1]Appeal transcript 1-14.
I indicated to the parties that I would reserve the issue of amending the notice of appeal and consider the question of leave to amend the notice of appeal, and the substantive appeal, at the same time.
Background
The collision occurred in Charleville on 21 October 2004. The first respondent commenced proceedings in the Charleville Magistrates Court on 27 June 2005 against the appellant, and the second respondent, Orix Australia Corporation Ltd, alleging that the second respondent was the owner of the vehicle driven by the appellant, and that the second respondent was vicariously liable for the negligence of the first respondent.
The appellant denied liability and alleged that the first respondent was solely responsible for the collision, and claimed an indemnity from the second respondent to the extent that he [the appellant] was found negligent. The second respondent filed a defence in which it admitted it was the owner of the vehicle. Evidence at the trial indicated that this was factually incorrect, but at no stage did the second respondent seek leave to amend its pleadings as it was required to do pursuant to Uniform Civil Procedure Rules r. 188. In fact, the evidence at the trial showed that the registered owner of the vehicle was Aboriginal and Torres Strait Islander Services (ATSIS).
Evidence at the trial indicated that the appellant was a Commissioner of the Aboriginal and Torres Strait Islander Commission (ATSIC) and was the driver of a motor vehicle which was made available to him as part of his remuneration package at the time of the collision, travelling from his place of residence to his place of work. The evidence at trial indicated that ATSIS was a successor entity of ATSIC, and the second respondent was the fleet manager of vehicles registered in the name of ATSIC (and subsequently ATSIS).
The first respondent, and a passenger, Ms Wong, gave evidence that the first respondent was travelling south on Sturt Street at about the speed limit, that she slowed as she approached the intersection with Alfred Street and that the appellant failed to stop at a stop sign on the intersection between Alfred Street, and Sturt Street, and collided with the first respondent’s vehicle at the driver’s side door and passenger door.
The appellant gave evidence and asserted that he had stopped at the stop sign on Alfred Street, and stated that he had travelled over 80% across the width of Sturt Street when his vehicle collided with the first respondent’s vehicle. The appellant accepted that he had pleaded guilty to an offence of failing to stop at a stop sign, arising out of the same collision.
Magistrates Conclusion
The learned magistrate concluded on the balance of probabilities that the appellant was solely responsible for the accident which occurred on 21 October 2004 and that the first respondent was entitled to her claim in full, plus interest.
In my view, the learned magistrate displayed no error of law in reaching that conclusion. On the contrary, it is in my view the only conclusion he could and should have reached on the evidence placed before him.
The learned magistrate also concluded that the second respondent was not liable to either the first respondent, nor the appellant. The second respondent had clearly been joined as a party to the proceeding incorrectly, and was neither the owner of the appellant’s vehicle, nor in any way vicariously liable for the actions of the appellant.
With respect, this also appears not only to be an inescapable conclusion, but the only conclusion open to the learned magistrate on the evidence placed before him.
Costs of the Magistrate’s Court Trial
The learned magistrate ordered that the appellant pay the first respondent’s costs, to follow the event, in the amount of $6,589.30, plus $215 for an adjourned hearing. That too appears to be an unexceptional decision, given the finding that the appellant was 100% liable for the collision.
The second respondent then sought an order for costs, either on a “solicitor and client” basis, or on a standard basis.
The learned magistrate concluded that the first respondent had incorrectly commenced proceedings against the second respondent, but that the appellant had failed to protect his interests in the litigation, and accordingly, pursuant to a “Bullock Order”, ordered that the second respondent’s costs should be paid by the appellant.
In addition, it was clear that the second respondent had, to some substantial degree, contributed to the confusion, because it had pleaded to owning the appellant’s vehicle, a position which it only corrected at trial (but which was easily ascertainable prior to trial by a straightforward vehicle registration search). No other entity (ATSIC, its successor entity ATSIS, or the Commonwealth of Australia), was ever substituted for the second respondent.
In the circumstances, the learned magistrate concluded that the second respondent was entitled to costs, but restricted to costs on a standard basis ($7,825.16 plus $215.00 for the adjourned trial). The learned magistrate ordered that the appellant pay those costs, on the basis that he had promoted or exacerbated the error of the first respondent in joining the second respondent to the proceedings.
It is clear that all three parties to the Magistrates Court proceedings contributed in some way to the difficulties faced by the learned magistrate. The first respondent incorrectly joined the second respondent as a party to the proceedings when (as would have been obvious from a motor vehicle registration search), the second respondent was not the owner of the motor vehicle, but only the fleet manager of the relevant motor vehicle.
The appellant, as an ATSIC Commissioner, was well aware of the relationship of the second respondent to ATSIC and its successor entity (ASIS), and was in the best position to join the appropriate entity (ATSIC or its successor entities) as a third party, and to facilitate the removal of the second respondent from the litigation. The first respondent, of course, could also have easily identified the owner of the motor vehicle driven by the appellant with a motor vehicle registration search.
In those circumstances, the learned magistrate exercised his discretion in respect of costs, to confine the costs order to the second respondent’s standard costs (rather than “solicitor and own client” costs), found the first respondent liable to pay those costs, but then ordered that they be paid by the appellant, given the learned magistrate’s conclusion that the first respondent was entitled to an indemnity from the appellant, who had promoted or exacerbated the error of the first respondent.
With respect, it again appears an inescapable conclusion that the learned magistrate has not erred in his discretion in coming to this conclusion. It was a discretion which the learned magistrate was entitled to exercise, and he did so judicially, for sound and appropriate reasons, which he articulated.
Turning then to the grounds of appeal, I reach the following conclusions:
1. The learned magistrate clearly did not err in law in finding that the second respondent was not vicariously liable to the appellant. On the contrary, there was no relationship relevant to vicarious liability between the second respondent and the appellant, and this was a matter which both the appellant and the second respondent could and should have easily established well prior to trial.
2. The conclusions of the learned magistrate finding the appellant wholly liable for his negligence in causing the collision was a conclusion clearly open to the learned magistrate on the weight of the evidence, in particular the evidence of the first respondent and Ms Wong that the appellant had caused the collision by proceeding through a stop sign without stopping.
3. In the circumstances, the learned magistrate was clearly not in error in concluding that the appellant was 100% liable for the collision.
4. The learned magistrate was under no obligation, in the manner in which the proceedings were pleaded and litigated, to consider any contractual obligations existing between ATSIC, ATSIS and the second respondent.
5. There was no error by the learned magistrate in “failing to give due weight to the delay of the [first respondent] and the [second respondent] in failing to prosecute the matter with due haste” in making the costs orders made. There were substantial delays, but in a practical sense, they were irrelevant to the issue of the costs orders.
6. Given the substantial delays that had already occurred prior to the trial on 18 April 2008, there was no error of law in allowing the matter to proceed to trial. The issues as to the withdrawal of the admission by the second respondent as to ownership of the vehicle, did nothing to prejudice the appellant’s defence, and was, in any event an issue which the appellant could have easily ascertained by his own enquiries.
7. The learned magistrate, in my view, did not err in any way arising from the fact that the appellant was unrepresented in the proceedings. The appellant clearly received the fair trial that he was entitled to in the circumstances.
Amendment of the Notice of Appeal
The appellant, as indicated above, sought to amend the Notice of Appeal in order to litigate, on appeal, the issue of the costs orders. In my view, it is appropriate to grant the appellant leave to amend the Notice of Appeal in the terms outlined above. I do not consider either the first or the second respondents were taken by surprise in any practical sense, and each were able to clearly articulate relevant arguments in respect of the costs orders relevant to each.
Having granted the appellant leave to amend the Notice of Appeal, I conclude that the appellant has failed to demonstrate that the learned magistrate erred in law in respect of any of Grounds 1-7 of the original Notice of Appeal. Further, I do not consider the learned magistrate has erred in the exercise of his discretion in respect of his orders as to the costs. As set out above, I consider that the decision of the learned magistrate was, in the circumstances, the only reasonable decision, given the relevant contributions of all three parties to the unsatisfactory nature of the trial before the learned magistrate on 18 April 2008.
Order
Appeal dismissed.
Costs
I will hear the parties on the costs of the appeal.
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