Stefanato v Butler No. DCCIV-03-1773

[2004] SADC 12

ADRIAN STEFANATO v JAMIE LEE BUTLER
[2004] SADC 12

Judge Lunn
Civil

MINOR CIVIL ACTION REVIEW

1. In the mid afternoon of 3 October 2002 the plaintiff, Adrian Stefanato, was driving his Holden Commodore car south along Main North Road at Elizabeth.  The speed limit in the vicinity was 80 kph.  There were three lanes for south bound traffic.  Immediately ahead of him was a truck travelling at a slower speed.  He pulled out into the next lane to his right to pass that truck.

2. The defendant, Jamie Butler, was driving an old Hillman Minx.  He made a left hand turn from Halsey Road onto Main North Road.  He was intending ultimately to go across into the far right lane of Main North Road and make a right hand turn at either Haydown or Hogarth Roads or John Rice Avenue.  The front of the plaintiff’s Commodore collided with the defendant’s Hillman at about its off-side rear corner.

3. The plaintiff sued the defendant in a Minor Civil Action for $3,907.33, being the cost of the repairs to the Commodore.  The defendant denied liability and counterclaimed $300.  The quantum of damage was agreed and the action proceeded to hearing only on the issue of liability.  A trial was conducted on 4 September 2003.  The only oral evidence was from the plaintiff and the defendant.  On 20 October 2003 the Magistrate published reasons finding that the defendant had been negligent and the plaintiff had not been negligent.  She gave judgment for the plaintiff for the amount claimed and dismissed the counterclaim.

4. The defendant has now brought an application under s38(6) and (7) of the Magistrates Court Act 1991 for this Court to review the decision of the Magistrate.  On the hearing of the review both parties addressed me concerning the circumstances of the accident.  However, I did not rehear the evidence taken before the Magistrate.  What was said about the accident before me was merely to enable me to better understand the evidence given before the Magistrate and her reasons.

5. On the Magistrates Court file was a plan and diagram purporting to show what had occurred in the accident.  It was prepared by, or on behalf of, the plaintiff.  It is wrong in some respects.  However, it was not referred to in the transcript of the trial or in the Magistrate’s reasons.  There is nothing to suggest that the Magistrate relied on this plan or was misled by the errors in its contents.

6. As I pointed out to the parties my task was merely to review what had occurred before the Magistrate and see whether there was any error on her part or other reason why it was proper that I should interfere with her conclusions about the matter.  It needs to be understood that the trial before the Magistrate was not an exhaustive and thorough examination of all aspects of the matters in issue as would have occurred if it had been a trial in the ordinary jurisdiction of the Magistrates Court.  I repeat what I said on this topic in Lawrence v Sambevski (1997) 189 LSJS 451 at 451-2:

   “The precise nature and scope of a review of a judgment in a minor civil action under Section 38(6) of the Magistrates Court Act 1991 has never been authoritatively determined. There are a number of uncertainties about what precisely is involved in this review process. In considering these questions it must always be kept in the forefront of the mind that the underlying purpose of s38 is to set up a special, and somewhat unique, procedure whereby claims involving less than $5,000 are to be resolved by expeditious and cheap procedures which substantially truncate many of the procedures usually employed for determining ordinary civil actions. The procedures laid down for ordinary civil actions are those which Parliament and the Rules of Court have, with the benefit of long experience, accepted to be the best and most practicable means reasonably available to achieve justice to all parties through a judicial process. However, because much of what has otherwise been seen as desirable for achieving justice in more substantial cases has had the consequence of producing substantial costs and delays s38 has renounced some of these procedures in the interests of reducing costs and obtaining speedier results. A necessary consequence of this is that the Courts are deprived, at least in part, of some of the procedures which are desirable to ensure that justice is done as best as can be in every case. Hence the ability of both the Magistrates Court in dealing with minor civil actions, and the District Court in dealing with reviews, to produce the best possible determination in accordance with justice is substantially impaired. While there is often a strong temptation to think that if all of the time-honoured procedures of judicial proceedings had been employed in a minor civil action a result more consistent with justice may well have been produced, it is not for the Courts to resort to such procedures where it is contrary to the clear intention of Parliament in s38 that they are not to be used. As was stated about the predecessor to s38 in Csordas v Galvanising Industries (1990) 157 LSJS 350 at 353 what is needed for justice is to be balanced against the cost of it. Section 38 can only produce second best justice and the Courts and the parties have to live with that. While better justice could probably be achieved it would only be at a higher price, which Parliament has decreed is not to be paid.”

   (There were changes to s38(6) and (7) of the Magistrates Court Act 1991 in 2000, but they do not affect the applicability of what I said.)

7. The crux of the dispute between the parties is the direction of travel of the defendant’s car immediately prior to the collision.  The plaintiff claimed the defendant was traversing the three lanes of Main North Road with the apparent intention of making a right hand turn at Haydown Road which was close to the accident scene.  He told the Magistrate that as he was passing the truck the defendant’s car came out into the lane in which he was travelling from immediately in front of the truck and too late for him to be able to avoid a collision with it.  The defendant told a significantly different story.  He said that while he was intending ultimately to make a right hand turn it was not then safe for him to pull out into the next lane and immediately before the collision he was travelling south in the centre lane, and slightly ahead of the truck on the lane on the inside of him. He stated that the plaintiff pulled out from behind the truck at high speed and ran into the back of his car, although he turned slightly to his left immediately before the impact in an effort to avoid it.  If the plaintiff’s version was accepted, the Magistrate’s conclusion on liability was clearly correct.  If the Magistrate should have accepted the defendant’s version, or something between that version and the plaintiff’s version, then her conclusions on liability were incorrect.

8. The defendant’s primary contention on the review was that the Magistrate’s finding that his car had been “side on” at the time of the collision was inconsistent with the damage caused to his car as shown in three photographs which he had tendered.  These three photographs are the only objective evidence which was before the Court.  Having carefully examined them I consider they are ambiguous as to the defendant’s direction of travel at the time of impact.  There is substantial damage to the rear off-side tail light assembly and a crumpling of the rear off-side panel which is generally consistent with the plaintiff’s version of events.  However, there is also a substantial dent in the rear bumper bar just to the left of the broken tail light assembly which could be consistent with more of a rear end collision as alleged by the defendant, but it does not explain the substantial damage to the tail light assembly.

9. The Magistrate did not refer to the photographs in her reasons.  Her conclusion was based on her accepting the version of the plaintiff on the balance of probabilities against that of the defendant.  She was the one who heard and saw the witnesses and she was in the best position to make that assessment.  The photographs do not contain anything which is sufficiently inconsistent with her conclusion about credibility to undermine the correctness of those conclusions.

10. The grounds of review referred to an alleged admission by the plaintiff that he had been speeding.  However, that evidence was not given to the Magistrate or to me.  Implicit in the Magistrate’s findings is an acceptance of the plaintiff’s evidence that he was travelling within the speed limit.

11. Accordingly, the application for review is dismissed and the judgment of the Magistrate will stand.