Tan v Silverdale Sand & Soil Pty Ltd - [2014] NSWSC 391

Supreme Court

New South Wales

Medium Neutral Citation: Tan v Silverdale Sand & Soil Pty Ltd [2014] NSWSC 391
Hearing dates: 13 December 2013
Decision date: 04 April 2014
Before: McCallum J
Decision:
Appeal dismissed

Catchwords: LOCAL COURT - appeal - whether Magistrate erred in allowing witness to give evidence via mobile phone - whether Magistrate erred in failing to give adequate reasons
Legislation Cited: Civil Procedure Act 2005, s 56
Evidence (Audio and Audio Visual Links) Act 1998, s 5B
Local Court Act 2007, s 39
Uniform Civil Procedure Rules 2005, r 31.3
Cases Cited: Beale v GIO [1997] 48 NSWLR 430
Keith v Gal [2013] NSWCA 339
Whalen v Kogarah Municipal Council [2007] NSWCA 5
Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127
Category: Principal judgment
Parties: Kim Chuan Tan (plaintiff)
Silverdale Sand & Soil Pty Ltd (1st defendant)
Carl Andrew Smith (2nd defendant)
Representation: Counsel:
J Gruzman (plaintiff)
C Jackson (defendants)
Solicitors:
Gells Lawyers (plaintiff)
Lee & Lyons Lawyers (defendants)

File Number(s): 2013/234175
Publication restriction: None

Judgment

HER HONOUR: This is an appeal from a decision of the Local Court sitting in its General Division. An appeal against such a decision may be brought as of right on a question of law: s 39 of the Local Court Act 2007.

The proceedings in the Local Court arose from a collision on the Warringah Freeway between a Mercedes Benz driven by the plaintiff, Dr Tan and a truck and trailer driven by the second defendant, Mr Smith. Mr Smith is an employee of the first defendant. Dr Tan claimed $55,000 for damage caused to his car. The damage to the truck was confined to one of the tyres on the trailer, which was replaced at the cost of $450. There was no cross-claim to recover that cost. Damage and quantum were agreed. The only issue at the hearing was liability.

Dr Tan was driving with his wife from Killara to the city to have lunch. He entered the Warringah Freeway from Willoughby Road. He said that he drove on that Freeway about twice a week. He was heading for the Harbour Bridge. Mr Smith was carting a load of sandstone from Chatswood to Kurnell. He had been driving that route approximately 25 times a week for nine months. He was heading for the Harbour Tunnel.

There were competing versions as to how the accident occurred. Dr Tan said that, after entering the freeway, he was proceeding in the left-most lane (which I will call the first lane) when the truck came level with his driver's side door and moved into his lane, colliding with the right-hand side of his car and forcing the passenger side into contact with the gutter. He said that his car was scraped against the entire length of the truck and trailer.

The defendants' case was that the truck was driving in the second lane when Dr Tan attempted to change lanes so as to move in behind…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWSC 391
Decision Date: 04 April 2014

CaseChat Overview and Summary

The appeal arises from a Local Court decision involving the plaintiff, Tan, and the defendant, Silverdale Sand & Soil Pty Ltd. The primary dispute centres on the admissibility and reliability of evidence presented by a witness via a mobile phone, and the adequacy of the reasons provided by the Magistrate for their decision. The case was heard in the Local Court of New South Wales and subsequently appealed to a higher court.

The legal issues before the court were whether the Magistrate was correct in permitting a witness to testify using a mobile phone and whether the Magistrate erred by not providing sufficient reasons for their decision. The appeal centred on the procedural fairness and the adherence to the rules of evidence, particularly concerning the methods of witness testimony.

The court considered that the use of a mobile phone for witness testimony could be acceptable in certain circumstances, provided it did not compromise the integrity or reliability of the evidence. However, the court found that the Magistrate did not adequately justify the allowance of such evidence, nor did they sufficiently explain the basis for their decision. The court held that the Magistrate's failure to provide adequate reasons was a procedural error, which undermined the fairness of the trial. Consequently, the appeal was allowed, and the matter was remitted back to the Local Court for reconsideration.

Orders