Ruddick v Hseih & Anor (Appeal) - [2022] ACAT 14

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

RUDDICK v HSEIH & ANOR (Appeal) [2022] ACAT 14

AA 40/2021 (XD 315/2021)

Catchwords: APPEAL – civil dispute – motor vehicle accident – rear end collision – liability – whether original decision maker failed to consider contributory negligence and the Road Rules – whether respondent in stationary vehicle on highway behind banked up traffic had duty to warn other road users – claim for damages for car, towing, iPad and storage costs – whether evidence supported quantum – whether original decision maker took into account irrelevant considerations – whether original decision maker disregarded relevant considerations – whether original decision maker showed bias – appeal dismissed – application for costs against appellant’s solicitor dismissed

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 22, 32, 48, 79, 82
Civil Law (Wrongs) Act 2002 ss 102, 186, 188, 189
Legal Profession Act 1987 (NSW) (repealed) s 198J
Magistrates Court Act 1930 pt 4.2

Subordinate

Legislation cited: Road Transport (Road Rules) Regulation 2017 rr 121, 125, 177, 221
ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009 r 30

Cases cited:ACN 120 452 744 Pty Ltd v Newham Business Brokers Pty Ltd & Anor [2021] ACAT 37
Appellants v Council of the Law Society of the ACT and The Legal Practitioner [2011] ACTSC 133
Australian Capital Territory v Wang [2019] ACAT 65
Briginshaw v Briginshaw [1938] HCA 34
Browne v Dunn (1893) 6 R 67 (H. L.)
Bryant v Peaghman and Another (1987) 5 MVR 347
Calderbank v Calderbank (1973) 3 All ER 333
Campbell v Blackshaw & Evans [2017] ACAT 64
CIC Australia Ltd v ACT Planning and Land Authority & Ors [2013] ACTSC 96
Collins v Urban [2014] NSWCATAP 17
Council of the Sutherland Shire v Heyman [1985] HCA 41
Donoghue v Stevenson (1932) AC 562
Dwyer v Paffas and Another (1985) 2 MVR 505
Dzundza v Nielsen [2013] ACTSC 220
Ebner v Official Trustee in Bankruptcy [2000] HCA 63
Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4 Government Insurance Office (NSW) v Wolska-Gromek (1991) 13 MVR 547
Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275
House v R [1936] HCA 40
In the Matter of AB [2018] ACAT 18
In the matter of a notice of motion filed on behalf of Colin George Dunstan [2000] ACTSC 33
Kenny v Ritter [2009] SASC 139
Kleidon v Fuller and Others (1989) 10 MVR 239
Kollas v Scurrah [2008] NSWCA 17
Lanfranchi & Owners of Units Plan 806 [2011] ACAT 83
Lemoto v Able Technical Pty Ltd [2005] NSWCA 153
Maiolo v Hansen (1989) 10 MVR 200
Markarian v R [2005] HCA 25
Mifsud v Campbell (1991) 21 NSWLR 725
Nance v British Columbia Electric Railway Company Ltd [1951] AC 601
Nouri v ACT (No 2) [2018] ACTSC 328
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34
Rathchime Pty Ltd v Willat [2017] NSWCATAP 87
Ticehurst v Skeen (1986) 3 MVR 307
Tam v Du [2019] ACAT 94
Williams Love & Nicol Lawyers Pty Ltd v Wearne [2016] ACAT 123

Tribunal:Presidential Member E Symons
Date of Orders:  22 February 2022
Date of Reasons for Decision:      22 February 2022
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 40/2021

BETWEEN:

GRACE CHARLOTTE RUDDICK
Appellant

AND:

YI-CHUNG HSEIH
First Respondent

CHIN-JOU CHEN
Second Respondent

APPEAL TRIBUNAL: Presidential Member E Symons
DATE:22 February 2022

ORDER

The Tribunal orders that:

Leave is granted to the appellant to rely on the two photos annexed to the application filed 20 September 2021 as evidence.
The respondents’ application for interim or other orders filed 28 September 2021 being withdrawn is dismissed.
Pursuant to section 82(1)(b) of the ACT Civil and Administrative Tribunal Act 2008 the appeal be heard as a review of all or part of the original decision.
Order 1 of 16 August 2021 staying Order 3 of 4 August 2021 in XD 315/2021 is discharged.
The appeal is dismissed.
The respondents’ application for an order that the appellant’s solicitor personally pay the respondents’ costs is dismissed.

………………………………..
Presidential Member E Symons

REASONS FOR DECISION

Introduction

The reasons below explain why the Appeal Tribunal has found that the appeal wholly fails and has dismissed the appeal. The respondents’ costs application has also been dismissed.
In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Original Tribunal’ refers to the tribunal which made the first instance decision on 4 August 2021. ‘Appeal Tribunal’ refers to the presently constituted tribunal. The appellant is referred to as the ‘appellant’ or ‘Ms Ruddick’ and the respondents are referred to as ‘the first respondent’ or ‘Yi-Chung Hseih’ and ‘the second respondent’ or ‘Chin-Jou Chen’ or ‘the respondents’.

The original application and cross claim

On 18 January 2021 the motor vehicle owned by Yi-Chung Hseih and driven by Chin-Jou Chen was involved in a collision on the Federal Highway in the ACT with a motor vehicle owned and being driven by Ms Ruddick. Ms Ruddick collided with the rear of the respondents’ stationary motor vehicle and pushed their motor vehicle into the rear of the motor vehicle in front and that motor vehicle into the rear of the motor vehicle in front of it.
Yi-Chung Hseih brought a civil dispute damages application against Ms Ruddick alleging that Ms Ruddick breached her duty of care to Yi-Chung Hseih and was negligent and that the accident was caused by her negligence. He sought damages of $8,429.65, including interest and the filing fee, for the value of the damaged vehicle, the cost of the iPad that was written off as a result of the accident, the costs of towing the vehicle and storage fees for the vehicle.
Ms Ruddick filed a response and counterclaim against Yi-Chung Hseih in which she conceded that she had driven into the back of the respondents’ motor vehicle. However, she alleged that the respondents’ motor vehicle was stopped at the time of the collision and did not provide alerts to indicate that the vehicle was stopped. Ms Ruddick alleged that the accident had been caused by the respondent failing to follow the Australian Road Rules, namely rules 177 and 221. Ms Ruddick claimed damages of $8,462.50 for her motor vehicle and other associated costs of towing and the filing fee and interest.
On 4 August 2021 the matter was heard by the Original Tribunal. At the commencement of the hearing the respondent’s solicitor, Ms Bolas, informed the tribunal that the respondent, Grace Ruddick, was her daughter. During the hearing orders were made adding Chin-Jou Chen:
…as a party to the proceedings as the respondent to a counter-claim for property damage brought by Ms Ruddick so that all issues between the three parties are resolved in the matter XD 315/2021.[1]
[1] Tribunal Order dated 2 August 2021, Order 1
The Original Tribunal delivered reasons for decision at the end of the hearing, dismissed Ms Ruddick’s counterclaim against Chin-Jou Chen and ordered that Ms Ruddick pay the sum of $10,292.50 to Yi-Chung Hseih.

The appeal

On 12 August 2021 Ms Ruddick appealed the decision of the Original Tribunal.
On 16 August 2021 a Presidential Member made orders in chambers that:
1.       Order 3 of 4 August 2021 on matter XD 315/2021 is stayed.
2.       The appellant is required by 3 September 2021 to give the respondent and the Tribunal:
(a)the transcript of the hearing and reasons for decision;
(b)a list of the errors of fact, errors of law or discretionary errors in the decision which affected the decision;
(c)a copy of any proposed further evidence for the hearing of the appeal; and
(d)written submissions in support of the application for further evidence and the appeal, and specifying the orders sought if the appeal is successful.
3.       The matter is listed for a directions hearing on 6 September at 11:00am.
On 6 September 2021 directions were made for the hearing and the matter was set down for a further directions hearing on 18 October 2021.
On 20 September 2021 Ms Ruddick filed written submissions and an application for interim or other orders seeking that the photos attached to the application be admitted into evidence. On 1 November 2021 the respondents’ solicitors notified the tribunal that the respondents consented to this application.
On 28 September 2021 the respondents filed an application for interim or other orders seeking the following orders:
1) Appeal AA 40/2021 be dismissed;
2) The orders in the matter XD 315/2021 be re-instated; and
3) Costs be awarded in favour of the Respondents for contravention of the ACAT order dated 4 August 2021 by the Applicant (Appellant) pursuant to section 48(2)(b) and (c) and section 49 of the ACAT Act (2008).
On 5 October 2021 the first and second respondents filed their response to the ‘List of Errors’ filed by the appellant on 20 September 2021.
On 18 October 2021 a Presidential Member set both the appellant’s application to admit fresh evidence and the respondents’ interim application to strike out the appeal for hearing on 1 December 2021 and noted that the matter may proceed to a full hearing. Other procedural orders were made about the filing of any other interim applications and the filing and serving of lists of authorities.
On 1 November 2021 the respondents’ solicitors notified the Tribunal that they withdrew their application filed on 28 September 2021.

What the Original Tribunal decided

After considering the evidence and submissions the Original Tribunal found that the evidence established that the sole reason for the occurrence of the accident between the vehicles was Ms Ruddick’s fault or negligence. The Original Tribunal said:
During her evidence today Ms Ruddick said, according to my note, ‘I was blinded by the sun.’ Clearly Ms Ruddick was travelling behind the car owned by Mr Hseih and driven by Ms Chen. They had quite sufficient time to observe the bank-up of traffic ahead, and in spite of the sunshine, and Ms Chen was quite able to bring the car to a safe stop.
Ms Ruddick’s statement makes it clear that she did not see the cars stopped on the highway, in spite of having at least 150 metres in which to do so. She said she was blinded by the sun, but in spite of that, did not reduce her speed at all in order to drive at a speed that was safe in the circumstances of the difficulties she was having with the sun as she approached the intersection.
That leads me to the conclusion that she was not keeping a proper lookout and was doing something which was probably adjusting the sun visors in the car and concerned with the sun rather than being concerned with the state of the highway ahead of her.
It’s clear to me that the evidence establishes that the sole reason for the occurrence of this accident was the fault of Ms Ruddick and in the circumstances I dismiss the claim or counterclaim against the driver of the car in front, Ms Chen.[2]
[2] Transcript of proceedings 4 August 2021, page 102, lines 27-46, page 103, lines 1-2
The Original Tribunal dismissed Ms Ruddick’s counterclaim, entered judgment for the respondents in the amount of $10,292.50, being $7,000 for the loss and damage to the first respondent’s vehicle, towing fees of $330, $850 for the damage to the iPad, $1,800 storage fees for the first respondent’s vehicle, the filing fee of $162.50 and interest of $150. The Original Tribunal made no order for costs.

Legislation relevant to the appeal

Subsection 79(3) of the ACT Civil and Administrative Tribunal Act2008 (ACAT Act) provides that a party to the original application may, by application, appeal the decision to the tribunal on a question of fact or law. Therefore, Ms Ruddick has a right to appeal the decision of the Original Tribunal on a question of fact or law.
The general powers of the Appeal Tribunal are set out in section 82 of the ACAT Act. Subsection 82(1) provides:
(1) An appeal tribunal may, as the tribunal considers appropriate, deal with an appeal—
(a)as a new application; or
(b)as a review of all or part of the original decision on the application by the tribunal.
Subsection 82(2) of the ACAT Act provides:
(2) An Appeal Tribunal—
(a)has all the powers and duties of the tribunal that made the order appealed from; and
(b)may draw inferences of fact; and
(c)may, if leave is granted, receive further evidence about questions of fact, either orally in a hearing, by written statement or in another way; and
(d)may make an order confirming, amending, setting aside or replacing the order of the tribunal appealed from; and
(e)may make any other order it considers appropriate.

The appeal hearing

Ms Kim Bolas, Solicitor, appeared for the appellant, Ms Ruddick, at the hearing on 1 December 2021 and Mr David Richards of Counsel, instructed by Maliganis Edwards Johnson, Solicitors, appeared for the respondents. Ms Bolas and Mr Richards made oral submissions as an addition to the written submissions.
Pursuant to section 82(1)(b) of the ACAT Act the appeal was conducted and heard as a review of all of the original decision. A differently constituted Appeal Tribunal said of section 82(1)(b) in the Australian Capital Territory v Wang:[3]
… it falls to this Appeal Tribunal to decide the case by reference to the evidence before the Original Tribunal in light of the parties’ submissions and the applicable law. The Appeal Tribunal need not, and would not be expected to, go beyond that material.
[3] [2019] ACAT 65 at [52]
At the conclusion of the hearing the Appeal Tribunal reserved its decision. This is the Appeal Tribunal’s decision.

Questions to be decided on appeal

In the application for appeal, the appellant set out the following questions of fact or law:
A.      The decision maker failed to consider the issue of Contributory Negligence, as outlined in the case of Miaolo v Hansen (1989) 10 MVR 200. He made no mention of this issue in his summing up or in his final decision and did not therefore give any weight to the issues raised by the Respondent, Grace Ruddick.
B.      The lawyers for the Applicant, at the beginning of the case, identified a language barrier, but had not briefed an interpreter, so it cannot be clear whether or not the Applicants understood the case / questions asked properly or not.
C.      The Applicants gave evidence that there were many ( more than 10 cars ), in front of them, however this is not borne out by the photos, and nor in previous representation by the Applicant’s [sic] who said they could not see in front, and so, cannot be true.
a.The Applicant was unable to describe the cars in front or exactly what they saw. There was no corroborative evidence provided; it is clear the Applicant’s [sic] being a married couple, have discussed this issue previously. No direction, such as a Murrays Direction to himself, on this issue.
b.In fact, the photos show that the accident occurred some 200 metres back from the branch across the road and there were 2 cars in from of the Applicants. All photos were tendered in evidence in the Respondent’s bundle.
D.      The decision maker has stated in his decision, that the Respondent was travelling directly behind the Applicant, and has accepted the Applicant’s evidence without considering her admission that she was not looking in the rear-view mirror and without considering the Respondent’s evidence that she was not travelling directly behind the Applicant. The decision maker did not address the fact that the Applicants did not warn approaching traffic that they were stopped on the highway/freeway contrary to Australian Road Rules. They did not use the hazard lights and breached their duty of care to other motorists.
E.      The decision maker did not address the evidence given by the Respondent that she was blinded by the sun and did not see the car in front of her stopped in the middle of a freeway, as it was white and the sun was dashing off it making it invisible. The Respondent stated that had the hazard lights been on in the car in front, driven by the Applicant, (Ms Chen), then she would have seen it. The fact that Ms Ruddick was not wearing sunglasses and was blinded by the sun is a significant issue. The decision maker simply concluded that because the Applicant could see, then the Respondent was not paying attention. This is simply incorrect.
F.      The decision maker erred in making a compensation order for storage of an obviously written off vehicle. He accepted the Applicant’s evidence, given by their solicitor, that they did not know what to do. They did not provide a mechanic’s report, or other evidence as to the status of their vehicle. Instead of having the vehicle towed to a storage unit for over 150 days, it could have been towed directly to a mechanic at no additional cost, and then sold to the wreckers.
G.      In relation to the compensation order for the iPad, the decision maker has erred in allowing the sum of $850.00 for the replacement of an iPad that was bought several years ago, second hand, and for which the Applicant said he paid $1,000. He did not provide receipts, could not state what year model the iPad first came out and there was no evidence of the condition of the iPad prior to the accident.
H.      In relation to the compensation order for the written off car, the decision maker did not consider any parity other than whether or not the cars (in Exhibit 7) looked the same (as the Applicants’ car) or not. There was no consideration to the number of kilometres on the clock, no mechanic’s reports and no service receipts. The decision maker erred in making an order for full comparable compensation for similar looking cars.
In written submissions filed on 20 September 2021 the appellant sought the following orders from the Appeal Tribunal:
1.       That the Orders made on 4 August 2021 be dismissed.
2.       That the parties are equally at fault for the accident
3.       That no order for compensation be made for the cost of the Respondent’s vehicle.
4.       That no order for compensation be made for the storage of the Respondent’s vehicle.
5.       That no order be made for compensation for the damage to the Respondent’s iPad.
6.       Any other Order the Tribunal decides.
The Appeal Tribunal summarises the respondents’ submissions in response to the appellant’s submissions as follows:[4]
[4] At 5
(i)In relation to the alleged error of law being the failure to consider contributory negligence:
(i)      The respondents disagree that any error has been made on these grounds.
(ii)     Miaolo v Hansen (Miaolo) … is clearly distinguishable from the current case whereby the second respondent brought the vehicle to a stop in line with and as a result of a bank up of traffic. Malcolm CJ in Miaolo states “Negligence was rightly admitted by the respondent because he did not drive with sufficient care or drove at an excessive speed when the sun was shining directly into his eyes and he was unable to see.”
(iii)   The respondents were stopped in response to a build-up of traffic ahead of them.
(iv)   The respondents disagree that they ought to have known the danger of traffic colliding with their vehicle and that they were under a duty to warn others of the danger supposedly created by coming to a stop in a line of traffic.
(v)     The appellant’s reference to the ACT Road Rules Handbook at page 92 and the actions which she alleged the respondent failed to engage in – warning oncoming traffic of the danger by putting on her hazard lights, waving out the window and blowing her horn, and contributing to the accident, is headed by the words “When a breakdown or accident occurs”. There was, prior to the appellant’s vehicle colliding with the rear of the respondent’s vehicle, no breakdown or accident.
(vi)   It is implicit in the Original Decision maker’s reasoning that he was cognisant of but inevitably rejected any allegation of contributory negligence. His statement “that the sole reason for the accident was the fault of Ms Ruddick” indicates the consideration of any alternative fault or contribution and his subsequent rejection of such a possibility.
(vii)     The second respondent complied with regulation 126 of the Road Transport (Road Rules) Regulation 2017 (ACT) – She was able to bring her vehicle to a complete stop as a result of the traffic conditions ahead.
(viii)   The appellant failed to comply with regulation 126 of Road Transport (Road Rules) Regulation 2017 (ACT) – through a lack of observation or otherwise she failed to drive a sufficient distance behind the respondent’s vehicle such that she could safely stop to avoid a collision.
(ii)In relation to the alleged error of law being the failure to consider breach of Road Rules:
(i)      The Australian Road Rules are national model laws and do not, by themselves, have any legal effect.[5]
[5] Parliamentary Counsel’s Committee, ‘Australian Road Rules’, National uniform legislation – Official versions (Model Law)
(ii)     Assuming the appellant is referring to the Road Transport (Road Rules) Regulation 2017 (ACT) the respondents submit that that regulation 221 does not impose a duty on the respondent to apply the hazard lights in any situation. By no interpretation of regulation 221 does this apply in this case.
(iii)   Regarding the respondents alleged breach of regulation 177 of these Regulations, the respondents submit:
To suggest that every vehicle that comes to a stop as a result of traffic conditions, on a freeway, motorway or other roadway ahead, must pull off the road to the left, into the bike lane, as were the circumstances of this case, or into an emergency stopping lane is just not possible.[6]
[6] Respondents’ submissions at 6.5
This allegation should be dismissed in its entirety.
(iii)In relation to the alleged lack of evidence to justify the original decision:
(i)      The respondents submit that the Original Decision Maker made all awards for compensation based on the evidence submitted to the Tribunal.
(iv)In relation to the appellant’s submission that the Decision Maker took into account irrelevant considerations and denied natural justice:
(i)      The respondents submit that the Original Decision Maker did consider appropriate evidence.
(ii)     There was no denial of natural justice or procedural fairness against the appellant; the appellant’s solicitor did not raise questions in cross examination about the very matters of which she now complains.
(v)In relation to the appellant’s submission that the Decision Maker disregarded relevant considerations:
(i)      In his oral reasons the Decision Maker did refer to and consider the appellant’s evidence that she was blinded by the sun as well as her evidence that she did not reduce her speed from 80km/h in order to drive at a speed that was safe in the circumstances of the difficulties she was having with the sun as she approached that intersection and collided with the rear of the respondents’ stationary vehicle. This evidence led the Original Decision Maker to conclude that the appellant was not keeping a proper lookout and finding that the accident was solely the fault of the appellant.
(vi)In relation to the appellant’s submissions regarding Apprehension of Bias:
(i)      It was clear that the Decision Maker does not have interest in the outcome of the decision. No arguments have been raised as to the conduct of the Original Decision Maker that may reasonably give rise to an apprehension of bias. No suggestion of prejudgement arises from the appellant’s submissions or in the context of the transcript. There was no association between the Decision Maker and any other party to the proceeding.
(ii)     There was no evidence that the Decision Maker was under pressure. He was adhering to the Tribunal’s statutory duty to “ensure the procedures of the tribunal are as simple, quick, inexpensive and informal as is consistent with achieving justice”.[7]
[7] ACAT Act section 7(a)(i)
(vii)In relation to the appellant’s submissions titled Contributory Negligence and the Duty to Warn:
(i)      The respondents acknowledge that there is a duty of care owed by road users to other road users to exercise due care and skill when driving; but that otherwise Donoghue v Stevenson is of no relevance to the present case;
(ii)     The Original Decision Maker was not required to substantively discuss the case law raised by the appellant due to the circumstances of this case being clearly distinguishable from the case law which the appellant raised.
(viii)In relation to the appellant’s submission generally:
(i)      The respondents submit that the Tribunal was, in the first instance, entitled to draw the inference from the fact the drivers of other vehicles (including the respondents) were able to come to a safe stop, that it was possible for a driver in the appellant’s position to keep a proper look out to do likewise.[8]
(ii)     There is no proper basis for finding that the respondents’ vehicle’s hazard lights having been activated would have made any difference, particularly given that the appellant apparently failed to observe its rear brake lights were illuminated (at least in time to avoid the collision). In any event there is also no statutory duty or common law conferred duty upon an individual in the position of the respondents to apply the hazard lights.[9]

Consideration

[8] ACAT Act section 82(2)(b)
[9] Respondents’ response to ‘List of Errors’ dated 5 October 2021 at [12]

The Appeal Tribunal, in the present matter, has considered all of the material before the Original Tribunal, the applicable law and the parties’ oral and written submissions to the Appeal Tribunal.
In ACN 120 452 744 Pty Ltd v Newham Business Brokers Pty Ltd & Anor[10] another appeal tribunal referred to the interpretation of section 79(3) and said:
The case law has interpreted section 79(3) of the ACAT Act to mean that the appellant must show an error of fact or law in the decision under appeal and that the error affected the result.[11] In Excel Intelligent Pty Ltd v Thomson,[12] the tribunal distilled some important principles[13] that were discussed by Burns J in B&T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners – Units Plan 3324.[14] These principles were discussed in the context of an appeal by way of rehearing but they apply mutatis mutandis[15] to an appeal by way of review. The principles are stated as follows (with some paraphrasing to apply the principles to the present context):
(a)     An appeal tribunal must determine whether the decision appealed against is wrong because… an original tribunal fell into an error of law, made a finding of fact that is clearly wrong or exercised a discretion on a wrong principle or in a way that is clearly wrong.
(b)     Ordinarily, if there has been no further evidence admitted or no relevant change in law, an appellant tribunal in entertaining an appeal… can exercise its appellate powers only if satisfied that there was an error on the part of the original tribunal below.
(c)     The appeal tribunal will give proper allowance to the advantage of the original tribunal who saw and heard the witnesses, so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned.
(d)     The appeal tribunal is obliged to conduct a real review of the reasons of the original tribunal.
(e)     Once error below has been found (after making proper allowance for the advantages of the original tribunal), the appeal tribunal can substitute its own decision based on the facts and the law as they now stand. [Footnotes retained]
[10] [2021] ACAT 37 at [4]
[11] Tam v Du [2019] ACAT 94 at [22] citing Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275 at [29]-[39]; Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4 at [46]-[55]; In the Matter of AB [2018] ACAT 18 at [41]
[12] [2018] ACAT 4
[13] [2018] ACAT 4 at [53]
[14] [2013] ACTSC 219 at [13] ff
[15] This is a Latin term for ‘once the necessary changes have been made’.
These principles have guided the Appeal Tribunal when reviewing the Original Tribunal decision and reaching its conclusion.
Failure to consider contributory negligence
The Original Decision maker heard evidence on affirmation from both respondents to this appeal and the appellant. All witnesses were cross examined. It is clear from reading the transcript of his oral decision that he found the following facts:
(a)On 18 January 2021 the second respondent was driving the car owned by the first respondent along the Federal Highway in the ACT towards the Antill Street roundabout.
(b)The appellant was driving her vehicle behind the respondents’ vehicle along the Federal Highway.
(c)The second respondent slowed the vehicle in accordance with the speed limit from 100km/h to 80km/h and then brought the vehicle to a stop in response to traffic in the left lane ahead which had banked up and come to a stop.
(d)The appellant slowed her vehicle from 100km/h to 80km/h in accordance with the speed restrictions. She was blinded by the sun. She did not see the first respondent’s stationary vehicle. She did not reduce her speed. While she was adjusting the car’s visors to manage the sun, she struck the first respondent’s vehicle in the rear.
(e)There was a concertina effect when the first respondent’s vehicle then crashed into the rear of the car in front and that vehicle crashed into the rear of the vehicle in front of it.
The appellant did not dispute the above findings in the appeal. Rather the primary focus of her case was that the Original Decision Maker failed, in his decision, to consider her submission that the second respondent was guilty of contributory negligence.
This ground is able to be dealt with by reference to the transcript. It can be seen that the Original Decision Maker addressed what are now described as ‘errors’ by the appellant in [24] (A), (B) & (E) above. He said in his reasons:
The claim was resisted by the respondent [Ms Ruddick] and the substance of the resistance was that the driver, Ms Chen, of Mr Hsieh’s vehicle had acted unreasonably in the circumstances. On page 1 of a statement filed by Ms Ruddick, the respondent, she says that Ms Chen was unreasonable in that she stopped in the middle of the freeway, she did not put on her hazard lights, and that she must have been closer to the other vehicles in front of her by less than two to three chevrons apart. I interpret the last allegation as being an allegation that she was travelling too close to the vehicles in front.
Another particular of the alleged unreasonableness emerged during the course of the hearing that it was unreasonable of Ms Chen not to have moved from [sic] her left after she had come to a halt or had not at any time moved to her left and presumably left the road surface so that an accident would not have happened.[16]
[16] Transcript of proceedings 4 August 2021 page 101, lines 4-17
The Original Decision Maker then referred to the statements from each of the parties. In relation to the statements from each respondent he said:
The common thread that I do note that is to be seen in both of these statements is that both witnesses were able to see a bank up of traffic of more than 10 cars approximately 150 metres ahead of them; that is to say they were obviously keeping a good eye out for traffic conditions and were able to, or the driver was able to reduce the speed of the vehicle without braking urgently or the like, within 150 metres, bring it to a complete and safe halt on the road behind a line of traffic in exactly the same position but ahead of them and stationary.[17]
[17] Transcript of proceedings 4 August 2021 page 102, lines 1-9
In relation to the appellant’s statement, he said:
Ms Ruddick’s statement makes it clear that she did not see the cars stopped on the highway, in spite of having at least 150 metres in which to do so. She said she was blinded by the sun, but in spite of that, did not reduce her speed at all in order to drive at a speed that was safe in the circumstances of the difficulties she was having with the sun as she approached that intersection.
That leads me to the conclusion that she was not keeping a proper lookout and was doing something which was probably adjusting the sun visors in the car and concerned with the sun rather than being concerned with the state of the highway ahead of her.[18]
It is clear to me that the evidence establishes that the sole reason for the occurrence of this accident was the fault of Ms Ruddick and in those circumstances I dismiss the claim or counterclaim against the driver of the car in front, Ms Chen.^[19]
[18] Transcript of proceedings 4 August 2021 page 102, lines 33-43
[19] Transcript of proceedings 4 August 2021 page 102, line 45 – page 103, line 2
These statements satisfy the Appeal Tribunal that the Original Tribunal did, in delivering its oral decision, consider the evidence which the appellant now alleges was not considered in [24] (E) above.
The Appeal Tribunal is satisfied that the Original Decision Maker’s decision was based on the evidence before him and took into consideration the appellant’s submission that the second respondent had acted unreasonably and had contributed to the cause of this accident. While the Original Decision Maker did not use the words ‘contributory negligence’ in his reasons he did set out the allegations of contributory negligence identified by the appellant’s solicitor and found that the sole reason for the occurrence of the accident was the fault of Ms Ruddick. This finding was clearly open to the Original Tribunal on the evidence. There was no error of fact.
The Original Decision Maker also had Ms Ruddick’s counter claim before him which raised the same allegations. In the counter claim Ms Ruddick also alleged that the accident was caused by the second respondent’s failure to follow the Australian Road Rules 177 and 221.
The appellant’s solicitor submitted in written submissions for the appeal that the Original Tribunal had erred in failing to consider these Road Rules. As stated in [26](b)(i) above these Rules are national model laws and do not, by themselves, have any legal effect.
Assuming the appellant was referring to the Road Transport (Road Rules) Regulation 2017 (Regulation) the Appeal Tribunal notes that the appellant’s solicitor did not cross examine either respondent in relation to the Australian Road Rules or the Regulation. In her submissions to the Original Tribunal the appellant’s solicitor stated:
we are saying my client’s instructions are that she is not liable for this accident and she is not liable for a number of reasons. One of the reasons is that contrary to what my – what Mr Ehsan is saying, his client has also breached clause 126 of the Road Rules.[20]
[20] Transcript of proceedings 4 August 2021 page 93, lines 44-45, page 94, lines 1-3
Regulation 126 of the Regulation states:
Keeping safe distance behind vehicle
A driver must drive a sufficient distance behind a vehicle travelling in front of the driver so the driver can, if necessary, stop safely to avoid a collision with the vehicle.
Maximum penalty: 20 penalty units.
The Original Tribunal referred to the appellant’s failure to drive at a speed that was safe in the circumstances of the difficulties she was having with the sun, that she was not concerned with the state of the highway ahead of her and that the accident was solely the fault of the appellant. While the appellant’s conduct also breached Regulation 126, the Appeal Tribunal is not satisfied that it was necessary or appropriate for the Original Tribunal to include reference to Regulation 126 in the decision. It would not change the decision.
The Appeal Tribunal is further satisfied that the Original Tribunal was readily able to find, on the available evidence, that the second respondent had sufficient time to observe the bank-up of traffic ahead, in spite of the sunshine and quite able to bring the car to a safe stop as were the drivers of the stationary vehicles ahead of her. There was no need for it to refer to the second respondent complying with Regulation 126. It would not change the decision. It can be inferred from some of the wording used by the Original Decision Maker in his oral decision, namely “being quite able to bring the car to a safe stop” that he had taken the Regulation into consideration. The Appeal Tribunal is satisfied that the Original Tribunal did not err in not referring to the Regulation.
The appellant’s solicitor also submitted that the second respondent had breached Regulations 127 and 221. The Appeal Tribunal notes that Regulation 127 applies to drivers of long vehicles and has no application to the facts of this case as both vehicles involved in the accident were sedans. The appellant’s solicitor brought this to the Original Tribunal’s attention. Regulation 221 relates to the use of hazard warning lights. The relevant part of this Regulation on which the appellant’s solicitor relied provides:
221 Using hazard warning lights
(1) The driver of a vehicle fitted with hazard warning lights must not use the hazard warning lights, or allow them to be used, unless—
(a)the vehicle is stopped and is obstructing, or is likely to obstruct, the path of other vehicles or pedestrians; or
…
However, she did not refer the Appeal Tribunal to Regulation 125 which is relevant to this matter. It provides:
125   Unreasonably obstructing driver or pedestrian
(1)     A driver must not unreasonably obstruct the path of another driver or a pedestrian.
Maximum penalty: 20 penalty units.
(2)     For this section, a driver does not unreasonably obstruct the path of another driver or a pedestrian only because—
(a)the driver is stopped in traffic; or
(b)the driver is driving more slowly than other vehicles (unless the driver is driving abnormally slowly in the circumstances).
Example—driver driving abnormally slowly
A driver driving at a speed of 20km/h on a length of road to which a speed limit of 80km/h applies when there is no reason for the driver to drive at that speed on the length of road.
The second respondent was stopped in traffic. Applying regulation 125(2)(a) she, therefore, did not unreasonably obstruct the appellant’s path. Given the above, there was no need for the Original Tribunal to refer to the Regulation.
The appellant’s solicitor also submitted that the respondent breached Regulation 177 which provides:
177   Stopping on freeway
(1)     A driver must not stop on a freeway unless the driver stops in an emergency stopping lane. Maximum penalty: 20 penalty units.
(2)     In this regulation: freeway means a length of road to which a freeway sign applies.
(3)     A freeway sign on a road applies to a length of road beginning at the sign (including any road into which the length of road merges) and ending at the next end freeway sign on the road.
The accident occurred on the Federal Highway in the ACT. The ACT Road Rules Handbook 2019 states that “there are no freeways in the ACT”.[21] Counsel for the respondents submitted that they disagreed with the categorisation of the location of the accident as a ‘freeway’ under the definition of a ‘freeway’ in section 177(2) of the Regulation. The Appeal Tribunal is satisfied that the Original Tribunal did not err in not referring to this Regulation.
[21] Australian Road Rules Handbook 2019 page 84
In an earlier appeal decision of the tribunal in Campbell v Blackshaw & Evans[22] Presidential Member Daniel said:
[22] [2017] ACAT 64 at [57]-[60]
There are many authorities in relation to the adequacy of reasons in the judicial context. In Gary Nigel Roberts v Westpac Banking Corporation [2016] ACTCA 68 the Court of Appeal stated:
It is unnecessary for a judge to refer to all evidence led in proceedings or to indicate which of it is accepted or rejected: Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA. Nor is it necessary for reasons to be lengthy or elaborate: Ex Parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5. No mechanical formula can be given in determining what reasons are required: Beale v Government Insurance Office of NSW [1997] 48 NSWLR 430 at 443 per Meagher JA.
These authorities are increasingly applied in a Tribunal context, where some decisions historically made by Courts are now made.[23] While the public interest in the provision of reasons remains the starting point,[24] the objectives of timeliness and efficiency mandated by section 5 of the ACAT Act oblige the Tribunal to approach the preparation of written or oral reasons in a proportionate manner.
In NSW Police Force v Newby [2009] NSWWCCPD 75 Keating J stated:
To succeed in having the Arbitrator’s decision set aside on this ground, the Police Force must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator failed to exercise his statutory duty to fairly and lawfully to determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247). Reasons must set out the judge’s (Arbitrator’s) reasoning process and merely incorporating counsel’s submissions is not appropriate (Sourlos v Luv a Coffee Lismore Pty limited & anor [2007] NSWCA 203 at [30]).
The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). It is not necessary for an Arbitrator to refer to every piece of evidence (Yates Property Corporation Pty Limited (in Liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424).
When considering the adequacy of the reasons the decision must be read as a whole (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 443-444 (‘Beale’)). A Presidential member on review is not required to comb through the Arbitrator’s findings and reasons in search of error (Minister for Immigration and Multicultural Affairs v Wu Shu Liang [1996] HCA 6; (1996) 185 CLR 259). In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (‘Soulemezis’) McHugh JA (as he then was) stated at 280:
If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5: 63 WN 34 at 36.
The cautions expressed in Collector of Customs v Pozzolanic (1993) 43 FCR 280 as to overzealous scrutiny of reasons for administrative decisions also resonate in the quasi-judicial Tribunal context. It is not the role of the Appeal Tribunal to pore over written or transcribed oral reasons searching for possible inadequacies but rather to consider whether, taken as a whole, the reasons disclose that the Tribunal fell into error. A Tribunal at first instance should not feel obliged to slavishly record every detail of the evidence given by every witness, or to set out fine nuances or points of distinction, in order to demonstrate to a hypothetical Appeal Tribunal or Court that due consideration and weight has been given. The primary audience for reasons remains the parties, and reasons which set out the necessary elements in a manner proportionate to the context of the matter will ordinarily be sufficient. [footnotes retained]
[23] See for example Collins v Urban [2014] NSWCATAP 17; Rathchime Pty Ltd v Willat [2017] NSWCATAP 87
[24] See Mifsud v Campbell (1991) 21 NSWLR 725, page 728
As stated above, the Appeal Tribunal is not satisfied that the Original Tribunal should have felt obliged to record and refer to every detail of evidence given by every witness or to set out nuances or points of distinction in order to demonstrate, in the event of an appeal, that due weight and consideration has been given. Section 7 of the ACAT Act sets out the principles the tribunal must follow in exercising its functions, namely:
7. In exercising its functions under this Act, the tribunal must—
(a)seek to ensure the procedures of the tribunal—
(i)are as simple, quick, inexpensive and informal as is consistent with achieving justice; and
(ii)are implemented in a way that facilitates the resolution of the issues between the parties so that the cost to the parties and the tribunal is proportionate to the importance and complexity of the subject matter of the proceeding; and
(b)observe natural justice and procedural fairness.
Applying a common-sense and realistic approach to understanding the reasons as a whole and cognisant of the principles in section 7 of the ACAT Act, the Appeal Tribunal is readily able to see that the issue of liability was properly dealt with according to the evidence. The Original Tribunal’s finding was clearly available to it on the evidence. There is no error of fact or law.
If the Appeal Tribunal is wrong in this finding then it is satisfied that the fact that the Original Tribunal did not refer to the Australian Road Rules or the Regulation or any of them in its decision did not have a material impact on the Original Tribunal’s decision. For these reasons the Appeal Tribunal is satisfied that there is no merit in the appellant’s allegation that the Original Tribunal erred in failing to refer to the Regulation or to any of them. The evidence before the Original Decision Maker was unambiguous and entitled the decision maker to find, without any doubt, that the accident was solely caused by the appellant.

Before turning to the case law relied on by the appellant, the Appeal Tribunal makes the following observations and findings about the questions raised in [24] (B), (C) & (D):
(i)It was a matter for the respondents’ solicitor at the original hearing whether or not to brief an interpreter. It was apparent from reading the transcript that the Original Decision maker was not troubled by the respondents’ language in giving their evidence. The Tribunal finds that there is no merit in this ground.
(ii)In relation to the appellant’s claim that “the photographs did not corroborate the respondents’ evidence that there were many cars in front of them” the Appeal Tribunal is satisfied that the Original Decision Maker accepted the respondents’ evidence (see [33] above). It is also apparent that only three cars were damaged as a result of the appellant colliding with the rear of the respondents’ car and it was these cars that were shown in the photographs. The Original Tribunal’s finding was available to it on the evidence. There is no error of fact or law.
(iii)Finally, in relation to the claim that the Original Decision Maker accepted the respondent’s evidence that the appellant was travelling ‘directly behind the respondent without considering her admission that she was not looking in the rear vision mirror and the appellant’s evidence that she was not travelling directly behind the respondent’ – the Original Tribunal’s finding was open to it on the evidence. The appellant’s car was travelling in the same direction as the respondents’ car and hit the rear of the respondents’ car about 10 seconds after the respondents’ car had stopped in the traffic. The fact is the appellant’s car was behind the respondents’ car on the Federal Highway and was so close that it hit the rear of the respondents’ vehicle approximately 10 seconds after the second respondent brought the vehicle to a stop. There is no error of fact or law.

The case law

The Appeal Tribunal concurs with the respondents’ submissions in relation to the relevance of the majority of the various cases referred to by the appellant in the original proceedings. The Original Decision Maker was not required to substantively discuss the case law raised by the appellant due to the circumstances of this case being clearly distinguishable from the majority of the case law which the appellant raised. For abundant clarity the Appeal Tribunal makes the following observations about that case law:
(a)While the Briginshaw[25] principle is an inquiry into the state of mind of the decision maker as to the degree of certainty required to achieve the ‘requisite’ satisfaction on the balance of probabilities in serious civil cases, it is clear, by reference to the transcript that the decision maker had explicit clarity and certainty in his mind when he said:
It is clear to me that the evidence establishes that the sole reason for the occurrence of this accident was the fault of Ms Ruddick and in those circumstances I dismiss the claim or counterclaim against the driver of the car in front, Ms Chen.[26]
[25] Briginshaw v Briginshaw [1938] HCA 34
[26] Transcript of proceedings 8 August 2021 page 102, lines 45-46, page 103, lines 1-2
The Appeal Tribunal is satisfied that the Original Tribunal had reliable evidence, gave proper consideration to the facts and the evidence before it and that it did not err in its finding in relation to liability.
(b)House v R[27] details the court’s authority to interfere with an exercise of discretion and whether the exercise of discretion is dependent upon the demonstration of one or more of certain kinds of error. Markarian v R[28]supports the view that that the ‘House Principles’ are relevant in all areas of appeal, regardless of the facts or circumstances of each case.
[27] [1936] HCA 40
[28] [2005] HCA 25
The Appeal Tribunal is not satisfied, in the present case, that it should interfere with the Original Tribunal’s decision in relation to liability. There has not been a failure to properly exercise the discretion available to the Original Decision Maker; it did not act on a wrong principle; it was not guided by extraneous or irrelevant facts; it did not mistake the facts; it did not fail to take into account a material consideration; and its decision was not manifestly unreasonable.
(c)In Bryant v Peaghman and Another[29] the plaintiff collided with a stationary semi-trailer which was stuck on the road at night and sought damages for property damage. The District Court had found that the cause of the collision was the plaintiff’s failure to keep a proper lookout and that the defendant’s vehicle was disabled under regulation 75A(2)(b) of the Queensland Traffic Regulations. The Full Court of the Supreme Court of Queensland dismissed the plaintiff’s appeal as the evidence did not support the conclusion that a breach of the Regulations was causative of the subsequent collision. The cause of the collision was the plaintiff’s failure to keep a proper look out. If anything, this decision supports the Original Tribunal’s decision that Ms Ruddick caused the collision because she failed to keep a proper lookout.
[29] (1987) 5 MVR 347
(d)The only relevance of Donoghue v Stevenson[30] to the present case is that it set a legal concept of ‘a duty of care.’ In the present case the duty of care owed by road users to other road users is to exercise due care and skill when driving. The Original Tribunal stated, in relation to the duty of care, that:
[30] (1932) AC 562
The point is that there was a need to reduce speed approaching the point of the accident.
It is undisputed that the driver of Mr Hsieh’s vehicle, Ms Chen, did reduce speed because she observed that there was a general reduction in the speed of the traffic as it approached because much of the traffic she could see or the cars she could see, at least those in the left-hand lane, had come to a halt.[31]
and:
Ms Ruddick’s statement makes it clear that she did not see the cars stopped on the highway, in spite of having at least 150 metres in which to do so. She said she was blinded by the sun, but in spite of that, did not reduce her speed at all in order to drive at a speed which was safe in the circumstances of the difficulties she was having with the sun as she approached the intersection.
That leads me to the conclusion that she was not keeping a proper lookout and was doing something which was probably adjusting the sun visors in the car and concerned with the sun rather than being concerned with the state of the highway ahead of her.[32]
(e)The decision in Dwyer v Paffas and Another[33]concerned a stationary vehicle that had been stolen and abandoned in an unexpected location on a freeway, i.e. in the outside lane closest to the median strip. The plaintiff’s car collided with the defendant’s stationary vehicle. In that case the defendant was vicariously liable by statute as the owner of the stationary vehicle for the acts and omissions of the driver who left the vehicle on the highway but the major contributing cause of the accident was the plaintiff’s inattentive driving. The damages were apportioned.
(f)In Ebner v Official Trustee in Bankruptcy[34] the High Court restated the common law rules of actual bias and apprehended bias. The Appeal Tribunal is not satisfied that the appellant’s claim that the Original Decision Maker was biased has merit. The appellant did not provide any reliable particulars in support of such a claim.
(g)The NSW Court of Appeal decision of Government Insurance Office (NSW) v Wolska-Gromek[35] found no error in the Master’s rejection of the defence of contributory negligence by the injured motorist. The respondents submitted that this case is not relevant in the present proceedings due to the significant factual differences. The issue was whether the respondent had acted without due attention to her own safety when she stopped on the side of the road to attend to her radiator and was hit or knocked over by a passing vehicle. The Appeal Court said that that attention was to be judged by the standards of reasonable care and tested by what a reasonably careful motorist would have done in the respondent’s circumstances and found that she did not show any want of reasonable care. In the present case the respondents had not broken down and were not outside their vehicle at the time of the collision.
(h)In Kenny v Ritter[36] the South Australian Supreme Court considered an appeal and cross-appeal from the District Court. Mr Kenny had stopped his vehicle in the middle of a carriageway where a motor vehicle had already collided with a bough and another vehicle had stopped and the driver had set about removing the bough from the road. Mr Ritter, while seeing the red lights of the defendant’s vehicle when driving his vehicle along the same road and braking, collided with Mr Kenny’s vehicle. There was ample room for the defendant to have moved his vehicle off the roadway, but he elected not to. The trial judge found both parties at fault and assessed apportionment at 70% against the defendant and 30% against the plaintiff. On appeal the Supreme Court concluded that the parties were equally culpable. The Supreme Court referred to the following principles guiding the court on the issue of apportionment summarised by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd:[37]
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v Norris) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd; Smith v McIntyre and Broadhurst v Millman, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subject to comparative evaluation. [omitting citations]
[31] Transcript of proceedings 4 August 2021 page 100, lines 25-31
[32] Transcript of proceedings 4 August 2021 pages 102, lines 33-43
[33] (1985) 2 MVR 505
[34] [2000] HCA 63
[35] (1991) 13 MVR 547
[36] [2009] SASC 139
[37] [1985] HCA 34 at [10]; (1985) 59 ALJR 492, 493-494
In the present case the Original Tribunal clearly decided that the sole cause of the accident was Ms Ruddick’s negligence. The Appeal Tribunal has already determined that that finding was available on the evidence and that the Original Tribunal did not err.
(i)The Full Court of the Supreme Court of Queensland dismissed the appeal in Kleidon v Fuller and Others[38] where the learned trial judge found no contributory negligence on the part of drivers of the two stationary vehicles which were well off the bitumen before the appellant drove into the rear of one of the vehicles. The notice of appeal asserted that the learned judge failed to give any or sufficient weight to the alleged failure to activate hazard warning lights, post a lookout or otherwise warn the appellant of the stationary cars. The Supreme Court held that there was no contributory negligence on the part of either driver of the stationary cars and dismissed the appeal.
(j)In Kollas v Scurrah[39]the fact situation significantly differs from the present case. In that case the plaintiff, driving a prime mover, ran into the rear of a salvage tow truck with a heavy rigid tip truck and dog trailer in tow which the defendant was driving at about 35km/h. The words “oversize” and “towed vehicle” were displayed on a yellow reflective sign to the rear of the dog trailer. The defendant was not displaying hazard lights. By a 2:1 majority the NSW Court of Appeal dismissed the plaintiff’s appeal from the trial judge’s decision that the defendant was not negligent.
(k)The facts in Miaolo are distinguishable from the present case. In the decision of the Full Court of the Western Australia Supreme Court in Miaolo the appellant, Miaolo, was driving his 8-wheel truck on York Road when the truck’s motor cut out. He brought the truck to a rest so it was partly off the road but the rear was protruding onto the road about a metre. A motor car driven by Mr Liversey struck a glancing blow to the truck and subsequently stopped ahead of the truck. The respondent, Hansen, was affected by the sun and collided with the rear of the truck. The length of time between the truck stopping and the collision by Hansen’s vehicle was estimated to be between five to ten minutes. The trial judge found the plaintiff was 50% contributorily negligent. The main thrust of the appeal was the degree of apportionment. The appeal was dismissed by Malcolm CJ and Kennedy and Pidgeon JJ. Malcolm CJ said:
Contributory negligence where it is pleaded against a plaintiff does not depend on any breach by the plaintiff of any duty of care owed to the defendant. Contributory negligence consists of a failure on the part of the plaintiff to take reasonable care of his own safety which contributes to the injury of which the plaintiff complains.[40]
…
In my view, taking account of the nature of the respondent’s negligence and the appellant’s want of care for his own safety, having by his negligence created an obstruction by failing to pull off the road, each of them contributed equally to the causes of the accident and each of them was equally culpable.[41]
Pidgeon J said:
The test, to which I have already referred shows that this involved a comparison of culpability in the sense of the departure from the standard of care of a reasonable man. This is essentially a question of fact. The High Court in Pennington v Norris said at 15–16:
“It is clear that the Act intends to give 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 equitable. It is to be expected, therefore, that the cases will be rare in which the apportionment can be successfully challenged: …” [42]
[38] (1989) 10 MVR 239
[39] [2008] NSWCA 17
[40] Miaolo, 203
[41] Miaolo, 205
[42] Miaolo, 210
In the present case, the respondent’s vehicle had not broken down. It had stopped in traffic. The collision occurred approximately 10 seconds after the respondent brought the vehicle to a halt. Notwithstanding the appellant’s submissions that the respondent was contributorily negligent the Appeal Tribunal has already found above[43] that the Original Decision Maker did not err in finding that the accident was solely Ms Ruddick’s fault. The Appeal Tribunal is satisfied that there is no merit in this ground.
[43] Above at [50]
The Privy Council decision in Nance v British Columbia Electric Railway Company Ltd[44] concerned a “running-down” accident. Mr Nance, while crossing a road, was knocked down by a streetcar in Vancouver, which was operated by the respondent company. The company had pleaded in its defence that the negligence of the deceased was a contributory cause of his death. The error complained of before the Privy Council was whether the judge had misdirected the jury in relation to contributory negligence. Their Lordships came to the conclusion that the error complained of did not mislead the jury and the verdict that the respondent company was solely to blame should stand. In relation to contributory negligence Viscount Simon said:
When contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, all that is necessary to establish such a defence is to prove to the satisfaction of the jury is that the injured party did not in his own interest take reasonable care of himself, and contributed, by that want of care to his own injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff’s claim, the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full.
…
…when two parties are so moving in relation to one another as to involve risk of collision, each owes to the other a duty to move with due care, and this is true whether they are both in control of vehicles, or both proceeding on foot, or whether one is on foot and the other is controlling a moving vehicle.
[44] [1951] AC 601, page 611
In the present appeal it was the appellant whose car was moving and who owed a duty of care to the second respondent whose vehicle was stationary in a line of stationary traffic caused by the build-up of traffic.
The appellant also referred to Council of the Sutherland Shire v Heyman[45] as authority for the duty to rescue where the danger is created by the rescuer. The Appeal Tribunal accepts the principles enunciated in this case however, the facts in the present case are significantly distinguishable. The respondents did not create any danger by coming to a stop as the result of traffic build-up.
[45] [1985] HCA 41
The appellant also referred to Ticehurst v Skeen[46] as authority for a motorist, whose car is broken down and unlit on a roadway, owing a duty of care to other motorists including removing the hazard or warning of its presence. The present case can be distinguished on the facts. The respondents’ vehicle had not broken down. They had come to a stop as the result of traffic build-up.

Damages

Appellant’s submissions
[46] (1986) 3 MVR 307

The appellant submitted that the Original Tribunal erred in awarding damages for the first respondent’s car and the iPad without proper evidence to do so. The appellant also submitted that the Original Tribunal relied on unreliable evidence to assess the quantum allowed for the storage of the car.
In relation to the car the appellant submitted:
The tribunal did not have any evidence to substantiate the claim for the value of the car at the time of the accident, in that the Respondent did not have a mechanics report or other reliable evidence, to tender, such as the number of kilometres on the car to compare to the cars in the pictures shown at the hearing.
The value of the car was determined by photos of cars that “look like the one” the Respondent’s [sic] were driving.[47]
[47] Appellant’s submissions filed 20 September 2021 page 9
In relation to the iPad the appellant submitted that the only evidence was that the first respondent bought it second hand in Sydney for $1,000. He did not have a receipt; he did not know the make, model and year of the iPad; he did not provide the Original Tribunal with evidence that he had taken the iPad to the Apple Store as he claimed and he did not tender any photos of the iPad to the Original Tribunal. The appellant alleged that there was no evidence that it existed.
The appellant submitted that the tribunal awarded compensation for an iPad that could not be verified as in existence, and was not able to be realistically compared to the photos tendered by the respondent. The appellant’s solicitor also submitted that she had been denied the opportunity by the Original Decision Maker to ask the first respondent questions in cross examination in relation to the business the iPad was used for.
In relation to the storage charges for the first respondent’s car the appellant submitted the car was obviously not repairable and that the Original Tribunal awarded compensation for the car relying on hearsay evidence from the bar table. She said:
Nothing was written in the Respondent’s statements and no evidence was given from the Respondent’s [sic] at the time of the hearing as to why they stored an obviously non repairable vehicle.[48]
[48] Appellant’s submissions filed 20 September 2021 page 10
The appellant also alleged she was denied natural justice as she was not given an opportunity to cross examine the respondents on their decision to store the car, or to explore with them why they did not take other options available to them other than to run up a large storage debt. The storage invoice the respondents tendered, Exhibit 5, clearly states that the vehicle stored was written off. Further, the Original Decision Maker did not allow her to ask questions in relation to whether or not the respondents also made a claim on insurance for the car.

Respondents’ submissions

The respondents disagreed with the appellant’s various submissions above and submitted:
… the Decision Maker made all awards for compensation based on the evidence admitted to the Tribunal. It is implicit in the transcript that the Decision Maker took into account all evidence that was at hand when coming to a determination of the amount of compensation for all damaged property.[49]
[49] Respondents’ response to ‘List of Errors’ dated 27 September 2021 at [7.1]
In relation to the respondents’ car, the first respondent gave evidence on affirmation that he purchased the car in 2016. It was an automatic 2010 model. The car had done “roughly 100,000 kilometres” and that he did not have the logbook as it was left in the car which was crushed. Exhibit 7 comprised photographs of three 2010 Holden Cruze automatic motor cars and the asking prices from carsales.com.au.
In relation to the quantum of damage for the iPad the first respondent gave evidence on affirmation that it was a First-Generation iPad Pro which he had purchased second hand for $1,000 in Sydney three years ago. At the time of the accident, it had been in the trunk of his car. It was completely crushed and was inoperable. Exhibit 4 comprised photographs of three second hand Apple 12.9” First-Generation iPad Pros ranging in price from $869 to $899.
The respondents disagree that they did not give any evidence as to why the vehicle was in storage following the accident. The storage charges for the car are set out in the storage invoice dated 17 May 2021 which was Exhibit 5. The amount charged was $3,693.70 being $30 a day for 121 days. It was not until the respondents received this invoice that they learned that the car was written off. The Original Decision Maker did not allow the full amount claimed for storage. He allowed a period of 60 days as reasonable and included the amount of $1,800 for storage costs in his decision.
The respondents also disagree that the appellant did not have the opportunity to cross examine the respondents on the storage of their car and the iPad and submit:
…The mere fact that the Appellant did not raise any questions in cross examination in relation to why the vehicle was in storage for the period of time that it was does not amount to a lack of opportunity to do so. … there was [no] denial of natural justice or procedural fairness against the Appellant.[50]

Consideration

[50] Response filed 5 October 2021 to list of errors filed by the appellant at [8.3]

The Appeal Tribunal is not persuaded that the appellant has established any merit in the questions of fact raised about the quantum of damages awarded in the Grounds of Appeal.
The appellant submitted there was no evidence of the value of the car or the condition of the car or of the iPad or even if the iPad existed. She said:
That is weak. That is not good. That is poor judgment and it’s based on no evidence at all. No corroborative evidence whatsoever that there was even an iPad in existence and that – that should be struck out.[51]
[51] Appeal transcript of proceedings 1 December 2021 page 9, lines 18-21
The Appeal Tribunal notes that if the appellant’s solicitor had an issue about these matters, and also about the storage fees claimed, she could have asked questions of the respondents in cross examination. The rule in Browne v Dunn[52] requires, in this case, the solicitor for the appellant, put any allegations or imputations that she intends to make against a witness to that witness. She should have given the respondents the chance to respond to what she intended putting in her submissions to the Original Tribunal and has now put to the Appeal Tribunal.
[52] Browne v Dunn (1893) 6 R 67 (H. L.)
The Appeal Tribunal is satisfied that the findings of fact as to the various amounts claimed by the respondents were open to the Original Tribunal at the hearing. That tribunal had received into evidence photographs of three Holden Cruze Sedans with kilometres slightly in excess of 100,000 kilometres which was Exhibit 5. The first respondent was shown the photographs and asked in examination in chief:
Are they all the exact same models of the car that was destroyed in the accident?
The first respondent replied:
Yes, looks the same.[53]
[53] Transcript of original proceedings 4 August 2021 page 48, lines 9-10
The first respondent also confirmed that the damaged white car in the bundle of photographs that was exhibit 6 was his car. He gave evidence that the car was regularly serviced, he was not aware of any problems with the car and the brakes and the lights were working perfectly fine. He also gave evidence about his purchase of the car. He was cross examined about where he was sitting in the car, what he saw before the accident, how far from the car in front did his vehicle stop, whether he could see the vehicle in front’s braking lights, whether that vehicle was stopped, about the time of the accident and whether the sun was bright that day, whether the second respondent put on the hazard lights after the accident and whether he asked the first respondent to pull the car off the road. He was not asked any questions about the condition of his car nor was he cross examined in relation to the answers he had given in his evidence in chief about the condition of his car. His evidence was accepted by the Original Tribunal. As stated in the previous paragraph the Appeal Tribunal is satisfied that this finding was open to it on the evidence.
The first respondent gave evidence in relation to his purchase of the iPad and the price paid, that it was in the car’s trunk at the time of the accident and that it was crushed in the accident and inoperable after the accident. He was shown the photographs of the iPads tendered in evidence as Exhibit 4 and asked:
Are the iPads shown on that page that same as the iPad that was destroyed in the accident?
The first respondent replied:
Yes, just the colour is different.[54]
[54] Transcript of original proceedings 4 August 2021 page 43, lines 20-22
The appellant’s solicitor asked the first respondent some questions about the iPad in cross examination. She did not put to him that the iPad did not exist or that it was damaged before the accident. She had submitted to the Original Tribunal that the iPad was second hand and bought a couple of years ago and the first respondent had no idea of what year or make it was. He had described it as a big iPad, a PRO for which he said he paid $1,000. The appellant submitted that he had not presented any receipts for its purchase and stated:
There’s absolutely nothing for the value of that iPad and clearly an iPad that’s two, three, four years old is not selling for anywhere near that amount of money and there’s no evidence to suggest that it wasn’t faulty before. He said it was bent and the screen was cracked. The screen could have been cracked before. There’s just nothing. He had no photos, no evidence or anything else.[55]
[55] Transcript of original proceedings dated 4 August 2021 page 97, lines 8-13
Notwithstanding the appellant’s submissions in the preceding paragraph the Original Tribunal accepted the first respondent’s evidence in relation to the damaged iPad and assessed the damages for it at $850. The Appeal Tribunal is satisfied that this finding was open to the Original Tribunal on the evidence. It is not satisfied that the evidence accepted by the Original Tribunal was unreliable or irrelevant.
In relation to the storage costs the appellant’s solicitor had submitted to the Original Tribunal that the tax invoice for over $3,000 for storing a clearly written off vehicle was unreasonable.[56] It is clear that the Appeal Tribunal partly agreed with this submission as the Original Tribunal found that the extent of time claimed for the storage of the car was unreasonable. The Original Tribunal found that storage for a period of 60 days was reasonable storage at the rate of $30 a day and allowed $1,800 for that head of damages.
[56] Transcript of original proceedings dated 4 August 2021 page 97, line 1
The Original Tribunal had the storage fee invoice (exhibit 5) in evidence and assessed the total amount allowed using the daily rate of $30 by reference to that invoice. The Appeal Tribunal is satisfied that the allowance for storage of 60 days was within the discretion of the Original Decision Maker. The Original Tribunal did not err in including storage fees of $1,800 in the damages awarded against the appellant.
For these reasons the Appeal Tribunal finds that the Grounds of Appeal relating to the quantum of damages are without merit.
The Appeal Tribunal has concluded that the appeal should be dismissed because the appellant did not demonstrate an error of fact or law in the reasoning of the Original Tribunal or that the Original Tribunal exercised a discretion on a wrong principle or in a way that is clearly wrong.

The costs application

The default position in respect of costs in the tribunal is that parties to an application must bear their own costs unless the ACAT Act or other Territory law provides, or the Tribunal orders otherwise.[57]
[57] ACAT Act section 48(1)
In the ‘Application for Interim or Other Orders’ which the respondents filed on 28 September 2021 they sought a finding that the appeal was an abuse of process for the purpose of section 32 of the ACAT Act. That section gives the tribunal power to dismiss an application if the tribunal considers the application or a part of it, inter alia, an abuse of process. However, the respondents withdrew this application on 1 November 2021.
At the end of the appeal hearing Counsel for the respondents made an application under section 189 of the Civil Law (Wrongs) Act 2002 (CLW Act). Section 189 relates to a costs order against a lawyer acting without reasonable prospects of success. Subsection 189(1)(b) provides:
(1) If the court in which a pleading has been signed in relation to a claim for damages considers that legal services were provided by a lawyer for a client on the claim, or in defence of the claim, without the claim or defence having reasonable prospects of success, the court may (on its own initiative or on the application of a party to the proceeding) make either or both of the following orders:
(a)…
(b)an order directing the lawyer to indemnify a party other than the client against all or part of the costs payable by that party.
…
The costs application was opposed by the appellant’s solicitor. She said she believed that she had provided evidence and cases that support the view that the respondents have a duty to warn her client of their slow, static and stopped position on the freeway and that they failed in the exercise of that duty. She described her case as a ‘strong case’.
Counsel for the respondents submitted that the ‘Notice of Appeal’ is so lacking in merit and substance as not to be fairly arguable. He described it as ‘unreal’ that a solicitor has signed a ‘Notice of Appeal’ where the appellant has impacted the respondents’ stationary car while travelling at 80km/h and is alleging that the respondent in the stationary car is guilty of contributory negligence.
In support of his application seeking that the appellant’s solicitor be ordered to pay the respondents’ costs Counsel for the respondents informed the Appeal Tribunal that the respondents’ solicitor had forwarded a Calderbank letter to the appellant’s solicitor on 28 September 2021 relating to the appeal. The offer expired at 4pm on 15 October 2021. However, the letter included the words – If you require extra time to consider the offer please inform our offices. It also stated that if your client does not accept the offer and runs to hearing and loses, the respondents’ solicitor will rely on this correspondence for an order that the appellant pay the costs incurred by the respondents in relation to the appeal. The offer was not accepted.
The Calderbank offer was made in accordance with the principles in Calderbank v Calderbank.[58] It put the appellant on notice that if the outcome of the appeal is less favourable to the appellant than the Calderbank offer, then the respondents may be entitled to an indemnity costs order. The letter was marked ‘without prejudice save as to costs’; the offer was clear, precise and certain; it stated the time within which the offer must be accepted and gave a reasonable time for acceptance; it stated that the offer was made pursuant to the principles enunciated in Calderbank v Calderbank and that the respondents will rely on the correspondence on an application for costs if the offer is not accepted. While not necessary the Calderbank letter also included the respondents’ reasons why the offer should be accepted.
[58] Calderbank v Calderbank [1975] 3 All ER 333
The tribunal does not have inherent power to make costs orders. As noted by Refshauge J in Appellants v Council of the Law Society of the ACT and The Legal Practitioner,[59] citing Dal Pont’s Law of Costs, a tribunal’s power to order costs must be clearly conferred by statute.
[59] [2011] ACTSC 133 at [89] – [90]
In Lanfranchi & Owners of Units Plan 806 (Lanfranchi) a case decided in 2011 before a differently constituted tribunal that tribunal, departed from the presumptive rule that each party bear their own costs. The decision in Lanfranchi also considered the applicant’s offer to settle on terms and that offer specifically stated that the offer was made in accordance with the principles in Calderbank and that they would be seeking costs in the event of the offer being refused and the Applicant succeeding at the hearing. That tribunal stated:
ACAT notes that the existence of a Calderbank offer is not determinative of the issue of costs and is but one factor to be taken into account in considering an application for costs.[60]
[60] Lanfranchi & Owners of Units Plan 806 [2011] ACAT 83 at [9](e)
That tribunal decision was based on a broad interpretation of the power given in section 48 of the ACAT Act. It was satisfied that there were circumstances or matters of sufficient weight which justified a departure from the presumptive rule and ordered that the respondent pay the applicant’s costs following the letter to settle on terms.
However, later decisions have considered the meaning of section 48 of the ACAT Act. CIC Australia Ltd v ACT Planning and Land Authority & Ors (CIC)[61] was an appeal to the ACT Supreme Court from a decision of an original tribunal which made a costs order based on a broad interpretation of section 48. The key question in that appeal was the scope of ACAT’s costs powers in relation to applications of the kind dealt with in the decision under appeal. Penfold J said at [37]:
[61] [2013] ACTSC 96
37. There are four main elements of s 48:
(a)That the default position is that the parties bear their own costs.
(b)That the default position may be varied by provisions of the ACAT Act.
(c)That the default position may be varied by an order of ACAT.
(d)That in four specified circumstances, ACAT may make particular costs orders.
38. For the purpose of my consideration of s 48, I note first the requirement in s 139 of the Legislation Act 2001 (ACT) to prefer the interpretation of a provision that would best achieve the legislative purpose.
…
Her Honour examined the ACAT Act, the Explanatory Statement for the Act and earlier decisions, including the Appellants v Council of the Law Society of the ACT and The Legal Practitioner,[62] At [144] Penfold J stated the questions of law before her and their answers, of which only Question 1 is relevant in the present appeal, namely:
Question 1: Does ACAT have power to make costs orders under s 48 of the ACAT Act apart from the power to make costs orders of the kinds specified in s 48(2) in the circumstances specified in s 48(2)?
Answer: No. ACAT’s only powers to make costs orders are found in s 48(2) of the ACAT Act and any other applicable legislative provisions.
[62] [2011] ACTSC 133
In 2016 the then ACAT President, President Crebbin, considered the meaning of section 48 and the relevance of CIC in Williams Love & Nicol Lawyers Pty Ltd v Wearne[63]and, in dismissing the respondent’s application for costs, said in relation to CIC:
5. … Her Honour’s decision involved an interpretation of the tribunal’s generic powers in the ACAT Act. The answer to the question did not turn on the particular law, the facts or circumstances of that case. It is a decision of broad application. It is a decision of a superior court, directly on point and binding on the tribunal.
…
13. There is no other applicable legislative provision that enables the tribunal to make a costs order in favour of the respondent.
[63] [2016] ACAT 123 at [5]
The Appeal Tribunal is bound by the decision of the ACT Supreme Court in CIC as applied in Williams Love & Nicol v Wearne. Notwithstanding the respondents’ Calderbank offer and the earlier decision in Lanfranchi, the Appeal Tribunal is unable to make a costs order in favour of the respondents pursuant to section 48(2) of the ACAT Act as the circumstances of the present appeal are not specified in section 48(2).
Returning to section 189 of the CLW Act, the Appeal Tribunal notes that it refers to ‘the court’ and the definition section in section 186 of the CLW Act provides that ‘court includes a tribunal or arbitrator’.
However, section 189 then states:
… in which a pleading has been signed in relation to a claim for damages …
Pleadings are not used in the tribunal. There is no definition of ‘pleading’ in the CLW Act. If the Appeal Tribunal takes a broad view of the word ‘pleading’ and were to find that it included an application or a submission, the Appeal Tribunal is not satisfied that section 189 would be enlivened because of subsection 188(2) of the CLW Act which states:
188 Certificate that claim or defence has reasonable prospects of success
(1)This section applies to a lawyer who is providing legal services on a claim for damages, or in defence of a claim for damages.
(2)The lawyer must not lodge a pleading in a court for filing, or file a pleading in a court, in relation to the claim unless the lawyer has lodged for filing or filed in the court, or the pleading is accompanied by, a certificate stating that the lawyer believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success.
In the present case the appellant’s lawyer had not lodged or filed a certificate stating that the lawyer believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success. The respondent’s application for costs under section 189 of the CLW Act fails at this point.
Whilst further consideration is not needed at this point, during the hearing, Mr Richards took the Appeal Tribunal to four cases which he suggested supported his application. For completeness I have addressed those cases below.
The first case was the ACT Supreme Court decision in Dzundza v Nielsen[64] (Dzundza) in which Dr Nielsen sought an order that Mr Dzundza’s solicitor pay all orders as to costs made against Mr Dzundza pursuant to section 189(1)(a) of the CLW Act. The originating claim of Mr Dzundza contained the required certification of a solicitor on the record, signed by his solicitor in accordance with section 188 of the CLW Act. As there were no authorities concerning the interpretation of section 189 of the CLW Act to which the Supreme Court was able to refer in order to assess the circumstances which constitute reasonable prospects of success the Supreme Court the Supreme Court referred to the decision of the New South Wales Court of Appeal in Lemoto v Able Technical Pty Ltd[65] (Lemoto) which considered the application of section 198J of the now repealed Legal Profession Act 1987 (NSW). Section 198J was similar, but not identical, to section 189 of the CLW Act. The ACT Supreme Court referred to the following passages from Lemoto (references omitted):
[64] [2013] ACTSC 220
[65] [2005] NSWCA 153
55.    At [92] in Lemoto, McColl JA considered the following general principles regarding the power to order legal practitioners to pay the costs of proceedings in which they have represented parties:
(a)The jurisdiction to order a legal practitioner to pay the costs of legal proceedings in respect of which he or she provided legal services must be exercised “with care and discretion and only in clear cases”;
(b)A legal representative is not to be held to have acted improperly, unreasonably or negligently simply because he or she acts for a party who pursues a claim or a defence which is plainly doomed to fail;
(c)the legal practitioner is not “the judge of the credibility of the witnesses or the validity of the argument… [and] the legal practitioner is not “the ultimate judge, and if he reasonably decides to believe his client, criticism cannot be directed to him”;
…
56.     At [131] in Lemoto, McColl JA referred to the decision of Barrett J in Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284 where his Honour at [28] of his decision found ‘without reasonable prospects of success’ to equate in meaning to ‘so lacking in merit or substance as to be not fairly arguable’. His Honour also found that the ‘concept is one that falls appreciably short of ‘likely to succeed’’.
57.     At [133] in Lemoto, McColl JA said:
Although it might be assumed that the question whether a s 198M order should be made will ordinarily arise where a litigant has been unsuccessful, it needs to be emphasised that the mere fact litigation is resolved adversely to a party does not mean costs should, in consequence, be ordered against the legal adviser, whether he or she be a solicitor or a barrister.

In Dzundza the ACT Supreme Court relied on the decision of Lemoto and found at [65] that:
…even without adopting the Briginshaw approach the evidence does not support the proposition that Mr Howes provided legal services to Mr Dzundza without Mr Dzundza’s claim having reasonable prospects of success. This is based upon the inconsistent and incomplete nature of the accounts of the accident provided by various witnesses, and upon the conduct of Mr Howes, which can be described as diligent. As was observed by McColl J at [92] in Lemoto, a legal practitioner is not ‘the judge of the credibility of the witnesses’.
The claim for the solicitor to pay for costs and indemnity costs in Dzundza failed.
Counsel for the respondents also referred the Appeal Tribunal to the decision of the ACT Supreme Court in Nouri v ACT (No 2).[66] Elkaim J dealt with an application by the defendant that certain costs be paid personally by the plaintiffs’ solicitor. The reason the defendant sought costs against the plaintiffs’ solicitor personally arises from the solicitor’s completion of a ‘Listing Hearing Questionnaire’ on 8 September 2016. The questionnaire was incorrectly completed. The solicitor was ordered to pay the costs on a solicitor client basis of the two hearing dates, including Senior and Junior Counsel, necessitated by the incorrect filling out of the form.
[66] [2018] ACTSC 328
Counsel also referred the Appeal Tribunal to the comments of Miles CJ In the matter of a notice of motion filed on behalf of Colin George Dunstan [2000] ACTSC 33 (Dunstan). He said at [18]:
I accept that the power to make a costs order against a legal practitioner personally must be exercised with care and discretion and only in clear cases. … Mere negligence or incompetence is not enough, nor is it enough that the decision is to bring or pursue a claim that is bound to fail. In England there is statutory provision for ‘wasted costs” orders against solicitors and barristers as a result of “improper, unreasonable or negligent” conduct (see Ridehalgh v Horsefield [1994] Ch 205). That is not the position in this country, or at least this Territory. In Australia, it has been said that there has to be something which amounts to a serious dereliction of duty, although it is not necessary to show serious professional misconduct: Cassidy v Murray [1995] FamCA 91; (1991) 124 FLR 267. I do not, with respect, agree that it is necessary in all cases to show gross negligence, although that may be a factor in certain cases: see Re Bendeich [1993] FCA 98; (1993) 113 ALR 702; Myers v Elman [1940] AC 282.
The Chief Justice found that there was serious dereliction in the duty owed by counsel to the Court and ordered that the costs of Pappas J – attorney occasioned by the filing of the notice of motion be paid by counsel who appeared for Colin George Dunstan on the hearing of the notice of motion. Miles CJ stated:
… The dereliction was not simply in failing to recognize the nature of the application being made by the notice of motion and that it was bound to fail, but in seeking further to invoke the procedures of the Court in the criminal jurisdiction whereby the application was listed peremptorily without notice to the respondent and requiring the attendance of the respondent, if the order was not to be made in the respondent’s absence, knowing that it was likely that the respondent would have opposed the order. Counsel further knew, or ought to have known, that an adjournment was virtually inevitable and that the costs of the day would be wasted. The further aspect of the use of the directions hearing procedure is of importance because it required the attendance of the Director of Public Prosecutions at public expense and, inevitable, to no purpose as far as the order sought was concerned. Counsel also knew, or should have known, that in proceedings which had to be determined, ultimately in the civil jurisdiction, it was unlikely that his lay client, being in receipt of legal aid and of restricted means, would have been in a position to meet any costs order made in favour of the respondent to the notice of motion.

Conclusion

The Appeal Tribunal concludes that no order should be made that the appellant’s solicitor pay the respondents’ costs because the requirements under section 189 of the CLW Act have not been met. While Mr Richards variously submitted that Ms Bolas should be ordered to pay the respondents’ costs of successfully opposing the appeal as she pursued this claim which was doomed to fail, the Appeal Tribunal notes McColl JA’s comments in Lemoto (see [106] above). It follows that Ms Bolas is, therefore, not to be held to have acted improperly, unreasonably or negligently for the appellant.
Miles CJ’s statements in Dunstan (see [110] above), reinforce that a failure to recognise that an application is bound to fail without more is not enough to justify making a costs order against a legal practitioner personally. The Appeal Tribunal is not satisfied that Counsel for the respondents has established that Ms Bolas engaged in a serious dereliction of duty.
The respondents’ application for costs is dismissed.

………………………………..

Presidential Member E Symons

Date(s) of hearing:	1 December 2021
Solicitors for the Appellant:	Ms K Bolas, Kim Bolas Criminal Law
Counsel for the Respondents:	Mr D Richards
Solicitors for the Respondents:	Mr H Ehsan, Maliganis Edwards Johnson Lawyers