Vellar v Stidston

[2005] TASSC 83

[2005] TASSC 83

CITATION:              Vellar v Stidston [2005] TASSC 83

PARTIES:  VELLAR, Kane
  v
  STIDSTON, Nyree

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA109/2004
DELIVERED ON:  30 August 2005
DELIVERED AT:  Hobart
HEARING DATE:  22 August 2005
JUDGMENT OF:  Slicer and Evans JJ, Hill AJ

CATCHWORDS:

REPRESENTATION:

Counsel:
           Appellant:  P A Warmbrunn
           Respondent:  K R Somann-Crawford
Solicitors:
           Appellant:  Butler McIntyre & Butler
           Respondent:  PWB Lawyers

Judgment  Number:  [2005] TASSC 83
Number of paragraphs:  9

Serial No 83/2005
File No FCA109/2004

KANE VELLAR v NYREE STIDSTON

REASONS FOR JUDGMENT  FULL COURT

SLICER J
EVANS J
HILL AJ
30 August 2005

Order of the Court

Appeal dismissed.

Serial No 83/2005
File No FCA109/2004

KANE VELLAR v NYREE STIDSTON

REASONS FOR JUDGMENT  FULL COURT

SLICER J
EVANS J
HILL AJ
30 August 2005

1. The appellant claims error in the determination of the learned primary judge (Vellar v Stidston 16 November 2004), dismissing an appeal against a judgment given in favour of the respondent in an action for damages conducted pursuant to the Magistrates Court (Civil Division) Act 1992.

1. The grounds of appeal claiming error state:

"1That the learned judge erred in law by finding that the learned magistrate at first instance gave sufficient reasons for his decision;

2That the learned judge erred in law by failing to determine whether or not the learned magistrate at first instance erred by admitting into evidence a proof of evidence of the witness Steven Legros in the absence of Mr Legros giving sworn evidence;

3That the learned judge erred in law and in fact by not finding that the learned magistrate's decision at first instance went against the weight of the evidence;

4That the learned judge erred in law by dismissing the appellant's application to extend time on the basis that there was no merit in any of the grounds of appeal from the decision of the learned magistrate at first instance."

1. The basis of disposition by the learned primary judge was refusal to grant an extension of time since, in his conclusion, none of the grounds, or substantive grounds, had been made out.  On the hearing of this appeal, the parties agreed that if a substantive ground was made out, ground 4 ought be allowed, but not otherwise.

1. None of the remaining grounds have been established.  The appellant and respondent were the only witnesses to give evidence at the hearing.  The learned primary judge correctly assessed the case as being one of "oath against oath".  He correctly concluded that:

"If two witnesses give unshaken evidence as to different versions of events, then it simply cannot be said that a finding preferring one version of events to the other, or preferring the evidence of one witness to the other, went against the weight of the evidence."

1. There was evidence which entitled the primary fact finder to conclude that the version given by the respondent was both accurate and sufficient to ground the findings giving rise to judgment.

1. It is not certain from the transcript of proceedings whether the statement of the other occupant of the vehicle, Steven Legross, was formally received into evidence after objection, but accepting that it was, the hearing magistrate gave it no weight, stating in words referred to by the learned primary judge in his reasons for judgment:

"Whilst I have accepted into evidence a statement by Mr Legross that was typed and unsworn, having struck out a number of paragraphs before doing so, the remainder's had no bearing upon my decision.  It was clearly self-serving, it was untested in court, and Mr Legross failed to appear on both occasions after prior arrangement with the claimant's counsel and today under summons.  I'm not prepared to hypothesise as to why he did not attend.  It is not appropriate to draw any adverse implication against the claimant because I consider she did all that was reasonable to secure his attendance."

1. Whilst the learned primary judge observed that "the learned magistrate's reasons are far from ideal", he correctly assessed them as being adequate and concluded that "the deficiencies in them [were not] so bad as to constitute an error of law", citing as authority Pettitt v Dunkley [1971] 1 NSWLR 376; Xiong v McCarthy, A45/1994 and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.

1. This was a "facts case" dependent on the evidence of two opposing witnesses.  The respondent had sued only the appellant.  The appellant had contended at the hearing that it was Steven Legross who had caused the accident.  The fact finder had accepted the evidence of the respondent and, in doing so, concluded that it was not the passenger Legross who had activated the hand brake.  That conclusion itself permitted the finding that it was the remaining person in the vehicle, namely the appellant who had performed the action.  The finding was not against the weight of the evidence.

1. In our opinion, none of the grounds have been made out and the appeal ought be dismissed.