Rogers v Garrucio - [2006] SADC 30

District Court of South Australia
(Civil: Minor Civil Review)
ROGERS v GARRUCIO
Reasons for Decision of His Honour Judge Beazley (ex tempore)
8 March 2006
TORTS - NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES
Minor Civil Review - Magistrate's decision to dismiss the plaintiff's action on the evidence before him correct - Applicant for review seeks to adduce fresh evidence from an independant witness - Order that there be a rehearing of the evidence - Applicant's claim concerned property damage to vehicle - Purpose and objects of s38 Magistrates Court Act 1991 considered - After hearing fresh evidence the decision of the Magistrate quashed - Judgment entered for applicant against defendant in the sum of $1,280.75 - Order for witness fees in the sum of $100 set aside.
Magistrates Courts Act 1991 s38, referred to.

ROGERS v GARRUCIO
[2006] SADC 30

This is an application to review a judgment in a Minor Civil Action pursuant to section 38 of the Magistrates Courts Act. The application has been brought by Phillip Wayne Rogers (“the applicant”) a person dissatisfied with a judgment delivered on 17 November 2005. The applicant had been plaintiff in action No. 4367/2005 in the Adelaide Magistrates Court seeking damages for property damage against Joseph Daniel Garuccio (“the respondent”).
The Learned Magistrate dismissed the applicant’s claim and ordered the applicant to pay to the respondent, witness fees totalling $100.
On 30 November 2005 another Magistrate granted a stay of execution with respect to the order to pay the sum of $100. The background to this appeal is that on 17 November 2005 the Learned Magistrate heard evidence relating to a motor vehicle collision which had occurred on 1 April 2005 at Brompton, in consequence of which the applicant’s vehicle sustained damage. The applicant gave evidence and called as a witness a passenger in his vehicle, Ms Therese Peacock. A crash repairer, Mr Stan Magias, also gave evidence as to the value of the damage to the applicant’s vehicle.
The applicant’s case in short was that after driving down Port Road, he turned into the lane for vehicles travelling right at Chief Street, Brompton. He observed a stationary vehicle in front of him with its front wheels over the white line on Port Road. The vehicle was that of the respondent, Mr Garuccio. The applicant’s case was that he deliberately parked his vehicle half a car length from the rear of the defendant’s vehicle to ensure some room if the vehicle reversed.
Both he and Ms Peacock gave evidence to the Magistrate to the effect that the respondent’s vehicle had reversed into the applicant’s vehicle. The respondent gave evidence and called as a witness a passenger in his vehicle, Mr Carmen Paolino. Their evidence effectively was that the respondent’s vehicle had remained stationary so that the applicant’s vehicle must have moved forward to make contact with the rear of the respondent’s vehicle.
The Learned Magistrate delivered ex tempore reasons. He found that Mr Magias’s value for the repair of the applicant’s vehicle was reasonable, so that inferentially there had been some forceful contact. He was, however, unable to determine which version ought be accepted. Accordingly, he dismissed the applicant’s case because he had not satisfied the requisite onus of proof.
He dealt with the witnesses as follows. As to the evidence of Ms Peacock, he found that while she corroborated the applicant’s evidence in the very material respects that his vehicle was stationary, and that it was the respondent’s vehicle which had reversed into the applicant’s vehicle, it seemed to him that she had little or no recollection of the various other details.
Mr Garuccio presented to the Learned Magistrate as a reasonable witness “so far as his evidence went”. Of Mr Paolino, the Learned Magistrate said:
He was an important witness in the case, was the most reasonable of the witnesses. He was quite firm that Mr Garuccio’s vehicle was stationary and that while stationary he felt a slight smack at the rear of Mr Garuccio’s vehicle.
He then concluded at paragraph 23 of his reasons:
I’d mentioned at the very outset the onus on the plaintiff to prove his case on the balance of probability. While I’m very conscious that the plaintiff is adamant that he was stationary and that it was the defendant, Mr Garuccio, who reversed in front of his vehicle and I accept the possibility of that occurring, for me to find in favour of Mr Roger would be a complete travesty towards Mr Garuccio. Likewise, if I was to find in favour of Mr Garuccio and find that it was in fact Mr Rogers who drove his vehicle into the rear of Mr Garuccio’s stationary vehicle that might be a complete travesty for Mr Rogers.
Despite some trenchant criticism of that conclusion in the “written case” documents filed by the applicant, if the only issue before me was whether the Learned Magistrate had come to the wrong conclusion on the evidence, then I would not intervene. This is a very experienced magistrate dealing with a common and narrow issue. It could not be said that he misused his position or acted on facts which are inconsistent with facts incontrovertibly established by evidence or that the findings were glaringly improbable.
The problem here is that this is not the end of the matter. The applicant sought to call further evidence from another independent witness. In both his written outline and oral evidence on appeal, the applicant gave a proper explanation for the failure to call the witness at trial. That reason was that, having spoken for the first time to the witness on the day of the accident, he had lost the only means of identifying or locating the witness. It was merely by chance that he was able to find a means of contacting that witness three days after the matter had been dealt with in the Magistrates Court.
When considering the question of permitting fresh evidence on appeal three issues arise. See Caruso v Beard [1997] SASR 6512.
1Whether there’s some reasonable explanation for the failure to call the witness at trial. The applicant’s evidence satisfied that reasonable explanation. He was cross-examined quite properly and forcefully by the respondent about the inherent unlikelihood of that explanation. I however, accept the applicant’s evidence and am satisfied that there was a proper reason for the failure to call the witness at trial.
2Courts tend not to allow fresh evidence to be called where there were findings as to credit made by the trial court. If the Learned Magistrate had found that any of the witnesses had been untruthful, then it would have been a rare occasion where fresh evidence could be permitted to be called, as it were, to impact upon those findings. Here the Learned Magistrate made no adverse findings against anyone. In fact, the only reason why he dismissed the application, was he accepted all the witnesses, as witnesses of truth, but could not be satisfied as to which version was correct.
3The final prerequisite for admitting fresh evidence is whether the evidence could be regarded as being vital for the just determination of the case. Now, quite clearly in this case, if Mr van den Braak is a truthful witness, then in those circumstances it would be vital for the just determination of the case.
Mr Garuccio, with some degree of force, submitted that this fresh evidence should not be permitted because it should have been called at the trial and the Magistrate should have been given the opportunity to hear and determine it. Of course that is correct. It is most unfortunate that this evidence has come to light in the manner in which it has. But on the authorities, it seemed to me that it would not be a proper exercise of the discretion to refuse to hear that evidence.
I granted leave to the applicant to call the witness, Mr van den Braak. The parties agreed that there was no point in rehearing the evidence of the witnesses at trial. To a large extent the issue was whether Mr van den Braak was a credible independent witness such that his evidence would have necessarily resulted in the applicant having satisfied the onus of proof.
Mr van den Braak confirmed the applicant’s evidence in at least two major respects, namely that the gap between the respective vehicles of the applicant and the respondent; and secondly, the reversing of the respondent’s van. In his evidence, he deposed to the respondent’s van reversing forcefully and colliding with the applicant’s vehicle. He had been concentrating on that vehicle it as he had been aggravated by the fact that the applicant had created a gap. That gap had meant that his vehicle could not fully turn into the Chief Street turning lane. He said that he immediately contacted the applicant, who was a person he had not met prior to this occasion and, had had no association with before or after the accident. He offered his assistance to the applicant. He said that he was able to recall the events when he was subsequently contacted in November 2005. He was unable to give evidence for some time because he was away overseas.
I have no doubt that both the applicant and the respondent believe they are right. It is not a question of any one of them being untruthful. The applicant is adamant that he saw the respondent’s vehicle reverse into his vehicle. The respondent is equally adamant that he remained stationary.
The Learned Magistrate did not have before him a witness who appeared to be entirely independent. I am in a different position. Mr van den Braak presented as a highly credible witness who did not know the applicant, and had offered assistance as any member of the community should. Mr Garuccio cross-examined Mr van den Braak about many things including the respective clothes and general appearance of the passengers in the vehicles. He submitted that a witness like Mr van den Braak ought to be able to remember matters such as clothing, hair and various other items that may have been important at the time. I have to bear in mind, however, that these events occurred about seven or eight months ago.
Mr Garuccio submitted that I should be loathe to accept the evidence of Mr van den Braak and that I should find that there is some relationship between the applicant and him. There is no basis for that submission. Mr van den Braak was a very impressive witness. He seemed to me to be an entirely reasonable and credible witness. I do accept that he is a truly independent witness. There is no conspiracy by the two of them to provide a misleading account of the events. They had never met each other before the accident. Mr Van den Braak immediately made contact with the applicant, having been an eyewitness, following the accident and volunteered his assistance.
Mr Garuccio was driven to his assertions by the coincidence in time, that the witness suddenly became available three days after the trial
I accept entirely the evidence of Mr van den Braak. Had the Learned Magistrate had the benefit of his evidence he would undoubtedly have concluded that the applicant had made out his case.
Accordingly, because I am in the position of having heard and accepted this completely independent witness, I quash the decision made by the Learned Magistrate and substitute therefore a judgment for the applicant in the sum of $1,280.75 which includes the figure of $67.00 paid by the applicant as filing fees. I set aside the order of the Learned Magistrate with respect to the payment by the applicant of the sum of $100.00 in witness fees.
I will now hear the parties as to what witness fees ought to be payable. What do you say, Mr Rogers?
MR ROGERS:    I’d like to tender a document that I’ve prepared entitled “Costs” which sets out specifically what I’m asking for.
HIS HONOUR: Have you shown that to Mr Garuccio?
MR ROGERS:    I can give him a copy.
HIS HONOUR: That would be useful, thank you. Could you show me, thank you.
MR ROGERS:    It’s both the costs in the Adelaide Magistrates Court and this Court.
HIS HONOUR: Well Mr Rogers, the difficulty I see in relation to what occurred - I’ve already dealt with the filing fee of $67 that’s included in the figure I’ve allowed for. Just to say in the District Court first, I’ll deal with those first.
So far as the hearing fee on 28 February 2006 of the $180 it seems to me that for the reasons I suggested to you the other day that I should not allow that because you needed to get leave to call Mr van den Braak anyway as a witness. In those circumstances -
MR ROGERS:    What about my attendance fee?
HIS HONOUR: Even with that you see you needed - on the application for review you needed to get leave to call him as a witness. As I have already said to you the matter had been dealt with simply on the evidence below. Notwithstanding your submissions I would have found against you. So it seems to me that the fees for 28 February 2006 of $80 and $100 ought not be permitted.
So far as the figure of 8 March 2006 you have got the fee of $80. Where do you get the figure from, your figure?
MR ROGERS:    I consider that’s a reasonable figure.
HIS HONOUR: The magistrate seems to have allowed a figure of $50. It seems to be the common practice in relation to witness fees.
MR ROGERS:    I might add that this is a higher court and what goes on in the Magistrates Court, he allowed $50 for a witness. I would have thought that the fees would have been higher.
HIS HONOUR: I understand all that, but the problem is as I say I’m sitting here as a judge sitting on a minor civil review. I’m effectively sitting in the position of the magistrate in an area where no costs are generally to be awarded at all save and accept for witness fees.
It seems to me going through these one after the other, going firstly to the District Court, I’ve already allowed the figure of $67 in the figure I’ve allowed of $1280.75 that can be removed. I remove the two figures of $100 and $80 for 28 February 2006. In relation to your attendance today I am prepared to allow subject to hearing from Mr Garuccio the figure of $50 in lieu of $80. Why do you say Mr van den Braak is entitled to $250?
MR ROGERS:    Well I believe there was two piano jobs that he had today that have gone by the way because of his appearance.
HIS HONOUR: I need some proof of that. I need what the cost is or otherwise. Failing some proof otherwise the figure would be $50.
MR ROGERS:    I think it was $125 for tuning pianos. So double that is $250.
HIS HONOUR: Where is it though? Where is the evidence about that?
MR ROGERS:    There’s no evidence, it is just hearsay but Mr Van den Braak is here.
HIS HONOUR: We can turn to that in due course but in the absence of there being some formal proof of all of that the figure I’d allow for that would be $50 as a witness fee. The other two items by way of postage or otherwise would be allowed in those circumstances.
Dealing back with the Magistrates Court, you are asking for figures in the Magistrates Court of $80 when the figure as I say awarded by the magistrate is $50. Why should he be entitled to get $80?
MR ROGERS:    One, the $50 was a witness fee and this is an attendance fee.
HIS HONOUR: You’re not a lawyer. You’re not down here being paid fees for attendances. At best it is a fee for turning up on that particular day. At best it could be $50 and worst nothing at all.
MR ROGERS:    It’s a figure that I believed. But if your Honour sees differently that’s fine.
HIS HONOUR: All right. It seems to me quite frankly bearing in mind the scales referred to under the Act is that there be no fees and secondly, as I say the concern I got about the Magistrates Court is that you ran the case on a certain basis, before me it is on a different basis. I’d be inclined quite frankly to allow in lieu of the first two figures of $160 a figure totalling $50 for those two attendances given what I’ve just said to you. The trial attendance, again a figure of $50.
Why do you say a witness fee of Mr Magias of $350? Has he given you a bill for that?
MR ROGERS:    Yes, I have a document here that I can let you look at.
HIS HONOUR: Let me have a look at it. Why did you pay him $350?
MR ROGERS:    Sorry?
HIS HONOUR: Why did you agree to pay him $350?
MR ROGERS:    That’s what he wanted. If I hadn’t of paid him he wouldn’t have attended and I couldn’t prove my quantum of damages.
HIS HONOUR: You could have agreed to pay him $5,000 in those circumstances. Now unless you want to suggest to me that there ought to be some evidence tendered in relation to his loss of work that day or otherwise, then the figure which should be allowed it seems to me is as follows;
·In lieu of the $160 for 28 June and 2 August 2005, I’d allow a figure of $50.
·In relation to the figure of 17 November 2005, I’d allow a figure of $50 in lieu of $80.
·I will allow $50 for Mr Magias in lieu of $350, and,
·$50 in lieu of $80 for Ms Peacock.
That would be a total in the Magistrates Court of $200.
In relation to the this Court, unless there is to be some evidence called about the losses sustained by Mr van den Braak, I would allow $50 for your trial attendance today and $50 for Mr van den Braak, which together with the two other disbursements would be a total of $107.15. The combined total is $307.15. Do you want to make any further argument about that, Mr Rogers?
MR ROGERS:    The only argument really is the fact of the Stan Magias account that I paid.
HIS HONOUR: Yes.
MR ROGERS:    That’s the only one I really query because I mean that money was paid and I have the original receipt here too if your Honour wanted to see it.
HIS HONOUR: I understand that. I might hear from Mr Garuccio. You are unhappy with the result, but in any event what do you say about that?
MR GARUCCIO:       Basically like for something I haven’t done I’ve paid now $1,200 to a QC. I’m not working, I’m not going to have any money to pay him, I tell you that. I don’t know what I’m going to do to pay all these witnesses and his car for something I haven’t done. I’ve got no money at all, yet I’ve found $1,200 to pay this QC. Can I get locked up to pay it off because I haven’t got any money? Do you know what I mean?
HIS HONOUR: No.
MR GARUCCIO:       I feel pretty hard done by.
HIS HONOUR: I understand that you feel hard done by. All a court can do is to determine a matter on the basis of the evidence. There is no question of being locked up or otherwise. Mr Rogers, if he obtains this order will have to go through the normal procedures about trying to recover it.
The final orders of the Court are:
1I quash the decision of the Learned Magistrate and set aside his order as to witness fees.
2There will be judgment for the applicant in the sum of $1,280.75.
I order the respondent to pay in addition thereto the sum of $307.15 to the applicant as being the applicant’s out of pocket expenses.