Ventrice v Ipseftel - [2008] SADC 147

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
VENTRICE v IPSEFTEL
[2008] SADC 147
Judgment of His Honour Judge David Smith
7 November 2008
MAGISTRATES
Review of Minor Civil Decision pursuant to s 38 of Magistrates Court Act – discussion of the parameters for the exercise of the discretion to rehear evidence and also take “fresh evidence” – whether the principles applicable to the conduct of appeals generally have application to reviews under the Magistrates Court Act – held decision of Magistrate affirmed – Application for Review dismissed.
Magistrates Court Act 1991 s 38, referred to.
O’Sullivan v Farrer (1989) 168 CLR 210; Fox v Percy (2003) 214 CLR 118; Beare v Slattery (2002) 218 LSJS 346; House v The King (1936) 55 CLR 499; Devries v ANR (1992-93) 177 CLR 472; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306; Orchard v Orchard (1972) 3 SASR 89, considered.

VENTRICE v IPSEFTEL
[2008] SADC 147
Introduction

On the afternoon of 28^th June 2007 on Magill Road at Kensington Park a vehicle driven by Francesco Ventrice collided with a vehicle driven by John Ipseftel. Damage resulted to both vehicles. The matter did not resolve and legal proceedings were instituted in the Magistrates Court. Those proceedings by agreement were treated as a “minor civil action” (see s 38 Magistrates Court Act 1991). On 24^th April 2008 after a trial, in an extempore judgment the Magistrate found for the plaintiff, Mr Ipseftel, and entered judgment in his favour in the sum of $6,837.07 being the cost of repairing his damaged vehicle. The defendant, Mr Ventrice’s counterclaim of $1,073.60 being the cost of repairing the damage to his vehicle, was dismissed.
The defendant, Mr Ventrice, applied pursuant to s 38(6) of the Magistrates Court Act1991 to this Court to review the decision of the Magistrate. The Application for Review came on before me on 23^rd September 2008. The applicant sought a rehearing of the action on the ground that he was disadvantaged in the conduct of the trial by his poor English.
In particular the following submission was made by the applicant’s counsel, Mr Reid:
MR REID:It has but the main problem has been that Mr Ventrice has got a very poor command of English and he didn’t have the advantage of an interpreter. So his evidence really, it is uncertain as to what it was and we say it would be unsafe for the magistrate to have made a decision on his evidence, given his command of English. We have had to have a friend of his come to our office to take instructions.
HIS HONOUR: Why was this not raised aggressively with the magistrate?
MR REID:I don’t know. We got involved only in relation to this review. That is the major issue and, as I said, I can’t say without taking instructions as to why it proceeded without an interpreter. Although it was a small claim, the plaintiff had the advantage of a professional person conducting the case for him.
In fact the transcript of the proceedings before the Magistrate revealed that a Mr Piero Merendi from the Court Interpreting Service was in attendance and interpreting. Unfortunately at the time of submissions on 23^rd September I had not read the transcript and so, after further argument, on that false premise I reluctantly permitted the rehearing of the matter but only as to liability. I fixed a hearing date.
Upon discovering that the applicant Mr Ventrice did have the assistance of an interpreter I considered recalling my order and requiring the applicant to convince me that I should interfere with the Magistrate’s decision. However, I accept that no one deliberately misled me and so bearing in mind that arrangements were in place and witnesses arranged I proceeded to rehear the matter.
I have set out the above explanation of my decision to rehear this action because though the legislation, in unfettered terms, confers a power on this Court to “rehear evidence”, this Court should not permit such a course without good reason. I set out some parameters for not only the exercise of the discretionary power to “rehear evidence”, but also for reviewing Minor Civil decisions generally.
First, notwithstanding the unconstrained language of sub-s (7) of s 38 of the Magistrates Court Act, it is always the case that the context, scope, intent and purpose of such legislation confines even the most generously framed exercise of discretion (see O’Sullivan v Farrer[1]). The clear policy and purpose in the Minor Civil Actions legislation (see Division 2 of Magistrates Court Act 1991) is to provide a judicial framework to enable litigants in person, efficiently and economically to dispose of claims involving relatively small amounts of money. This Court should not, without adequate reason, permit Reviews to become rehearings. To do so would be impermissibly to introduce another tier of fact finding into the framework.
[1] (1989) 168 CLR 210 at 216
Further, whilst the legislation sets the parameters for Reviewing a Minor Civil Decision, still the principles which apply to the hearing of appeals generally should remain as a guide (see Fox v Percy[2]; Beare v Slattery[3]; House v The King[4]; Devries v ANR[5]; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq)[6]).
[2] (2003) 214 CLR 118
[3] (2002) 218 LSJS 346 per Gray J at [35]
[4] (1936) 55 CLR 499 at 504, 505
[5] (1992-93) 177 CLR 472 at 479
[6] (1999) 73 ALJR 306
So too, if a party seeks to adduce “fresh” evidence, as opposed to evidence already given before the Magistrate, (e.g. Claudio Ventrice’s evidence in this case), subject to the specifically applicable legislation, in particular in s 38(7)(b), (c) and (e), general regard should be had to the principles upon which fresh evidence should be received on appeal (see Orchard v Orchard[7]).
[7] (1972) 3 SASR 89 per Bray CJ at 98-100
I emphasise that, given the purpose of this legislation, and in particular the likelihood that the litigants will be unrepresented, rigid adherence to the common law principles alluded to above would not be appropriate.
Parameters
In a Review by this Court, the following statutory parameters apply:
·“... the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence” (s38(7)(b));
·“... the Court may, if it thinks fit, rehear evidence taken before the Magistrates Court” (s38(7)(c));
·“... in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms” (s38(7)(e)).
I turn then to the evidence and my findings.
Evidence
On the afternoon of the 28^th June 2007, Mr Ventrice was driving his vehicle west on Magill Road en route to pick up his daughter from Loreto College which is situated on the corner of Magill and Portrush Roads. His 14-year-old son, Claudio, whom he had picked from his school in Hectorville, was a front seat passenger. It was sometime after 3.00 pm in the afternoon. At the same time Mr Ipseftel was driving his four-wheel drive also west on Magill Road. He had been to a funeral and was en route to his parents’ home in Lomond Avenue which intersects Magill Road. Mr Ipseftel’s four-wheel drive, initially at least, was a considerable distance behind Mr Ventrice’s vehicle.
The collision occurred at or very close to the mouth of Lomond Avenue which runs to the south off Magill Road. The two vehicles after the collision eventually turned left into Lomond Avenue where particulars were exchanged. Further it is common ground that on the opposite side of Magill Road at this intersection namely, the north eastern corner, there is a shop and bakery frequented by the Ventrices called La Casa Del Pane.
I accept also, that at this place on Magill Road, though there are two lanes on each of the carriageways, if there are cars parked at the kerb there is barely enough room in the inside lane to accommodate a passing vehicle.
I turn to the respective versions.
Mr Ipseftel said that as he drove down Magill Road he saw in the distance, which he fixed at 200 metres or so, a person he later recognised as Mr Ventrice, crossing Magill Road from the Bakery shop and carrying a plastic bag. He said he saw this man get into the vehicle with which he eventually collided. It was parked, he said, on the left hand side of Magill Road approximately 20 metres back from the mouth of Lomond Avenue. He said that as he drove on west down Magill Road he changed from the left lane into the right lane to pass Mr Ventrice’s vehicle, which he described as a small truck. He slowed and commenced the left hand turn into Lomond Avenue. As he did so he said he felt the collision. The bullbar of Mr Ventrice’s vehicle collided with and damaged the two passenger side doors of his four-wheel drive vehicle. He said both vehicles stopped immediately. He said that half his car was inside Lomond Avenue and half the car was on Magill Road. He said he separated the two vehicles by reversing his away and then they both drove into Lomond Avenue where they alighted and spoke to one another.
Mr Ventrice said that he was driving west in the left hand road on Magill Road for westbound traffic when Mr Ipseftel, in a four wheel drive vehicle, overtook him on the right hand lane and then attempted to turn across his path into Lomond Avenue. He agreed that his son Claudio wanted him to stop and purchase an ice-cream at La Casa Del Pane. Mr Ventrice said that his response was “... it’s late, we have to go and pick up Laura ...” He said that he kept driving and then Mr Ipseftel’s vehicle cut across him and the collision resulted. He said that both vehicles stopped and eventually moved off Magill Road and stopped to exchange particulars around the corner in Lomond Avenue. He agreed with his son Claudio’s evidence to the effect that he slowed down on the approach to La Casa Del Pane but he insisted he did not stop. He said he was then travelling at 30–40 kph “… more or less …” He agreed that having slowed down there he would have accelerated away “... but slowly yes ... just gave it a bit of gas ...” He also insisted that he was not looking for a park and that, if he had been, there were no difficulties finding one. He agreed that the La Casa Del Pane was a shop which was near his place of work and which he frequented. Finally, after some hesitation he agreed with his son’s evidence that they stopped and purchased a loaf of bread from that shop on the way back after the accident.
Claudio Ventrice said that he asked his father to stop at the La Casa Del Pane to buy an ice cream. In particular, he said:
We were driving along the left lane and then as my father stopped at one of the shops to get me an ice cream and then he slowed down, and then as he looked at the clock he saw what it was, he said, nah, we’ll go pick up my sister first, and he kept driving and then I think his name is Joe, I’m not sure, came around and hit our car.
(46).
He later said that his father slowed down to 10-20 kph and that his father’s vehicle was close to the kerb. He said that on the way back after the accident they did stop at La Casa Del Pane and purchased some bread.
So the issue for me is whether or not Mr Ventrice stopped and then drove off into the unsuspecting left turning vehicle of Mr Ipseftel or whether Mr Ipseftel oblivious of the presence of Mr Ventrice’s vehicle proceeding lawfully in the left lane, simply cut him off in an effort to turn left into Lomond Avenue.
Sometimes what is said at the scene immediately after a collision throws some light on what happened in the collision itself.
As to this Mr Ipseftel said Mr Ventrice said words to the effect that he failed to see the four wheel drive vehicle because it was in what Mr Ipseftel described as a ‘black hole’. Mr Ipseftel was clearly referring to what is colloquially known as “the blind spot”. Mr Ipseftel said that Mr Ventrice then told him that he was a crash repairer by occupation and would fix up the damage to his vehicle. According to Mr Ipseftel, they then exchanged particulars and shook hands. He was expecting a telephone call from Mr Ventrice about repairing his car. There was no telephone call and so Mr Ipseftel rang Mr Ventrice’s place of work and was told in clear terms by a colleague of Mr Ventrice, who came to the telephone, that Mr Ventrice did not consider himself to blame.
Accordingly, Mr Ipseftel lodged a claim against his own insurance company.
Mr Ventrice denied that any such conversations or arrangements occurred at the accident scene. He said merely that there was an exchange of particulars and he went on his way. In particular he denied that he had talked about a ‘black hole’ or a ‘blind spot’ or that he shook hands. He denied in particular that he offered to repair the damage to the four-wheel drive vehicle.
Claudio Ventrice did not alight from his father’s vehicle at the scene and so could throw no light on the exchange that might or might not have taken place between them.
Findings
I prefer the evidence of Mr Ipseftel.
I find that Mr Ventrice did stop opposite the La Casa Del Pane and then drove off from the kerb without exercising due care and collided with the slow moving and turning four-wheel drive vehicle of Mr Ipseftel. I find that Mr Ventrice’s negligent driving caused the collision and the ensuing damage.
I so find on the following bases:
·The evidence of Mr Ipseftel commencing with his observations from afar of Mr Ventrice returning to his vehicle and concluding with the telephone contact after the accident, is intrinsically more likely and it also fits in with the broader circumstances established in the evidence.
·If the accident occurred as Mr Ventrice alleges then it would indicate an almost inexplicable lack of care on the part of Mr Ipseftel who, oblivious to a vehicle travelling lawfully within the lane to his left virtually abreast, moved into the path of that vehicle thereby causing the collision.
·The failure of Mr Ventrice to even mildly protest at the scene about such a serious departure from the appropriate standard of care, even given his language difficulties, is almost inconceivable. Rather, Mr Ventrice would have me accept that there was a rather passive and sterile exchanging of particulars at the scene.
·So too, Mr Ipseftel’s claim that Mr Ventrice, whose occupation is that of a crash repairer, volunteered to repair his vehicle, rings true and of course it is capable of amounting to an admission of blameworthiness.
·Further, there is no suggestion that Mr Ipseftel did not telephone Mr Ventrice’s place of work, as he says he did, in an effort to arrange for Mr Ventrice to do what he said he would do. Clearly Mr Ipseftel was attempting to make arrangements to have his vehicle repaired in accordance with the understanding at the scene. It fits in with his version.
·Further, if Mr Ventrice’s version is correct then Mr Ipseftel’s account of Mr Ventrice walking across the road from La Casa Del Pane – a shop which Mr Ventrice frequently patronises, is a surprising coincidence, which is not reasonably explained by alleging, as Mr Caruso did that Mr Ipseftel saw Mr Ventrice at the shop later that day. I note that consistently with his evidence, at an early time and before the issue of proceedings, Mr Ipseftel told his insurer that he saw Mr Ventrice crossing the road from the shop (see letter dated 19^th July 2007 to his insurer Exhibit R8).
·The evidence of Mr Ventrice that he was never looking for a park is inconsistent with the following items of evidence:
·       His account of the accident as provided to RAA Insurance in July 2007 (see Exhibit R7).
·       His letter to the Magistrates Court dated 15^th November 2007 (see Exhibit R4).
·       His evidence in the Magistrates Court as given on 24^th April 2008 (see Exhibit R5 at pp 14 and 15).
·       Paragraph 4 of the affidavit sworn by him in these proceedings on the 19^th September 2008 (see Exhibit R6).
·       Written submissions in support of application to review filed at the Court on 23^rd September 2008.
·I note that the 14-year-old Claudio Ventrice did begin his description of the accident by saying that his father stopped, but then he withdrew that (see 46). Because of his youth, I do not rely heavily on this point.
There is another finding open on the evidence, namely that Mr Ventrice slowed to a speed in the region of 10 kilometres – 20 kilometres per hour in preparation for stopping at the kerb opposite the shop and then, having consulted his watch he decided there was not enough time to go to the shop, and albeit slowly, accelerated away and so collided with the turning vehicle of Mr Ipseftel. In such circumstances I would also regard Mr Ventrice as responsible for the collision.
In my view there is no evidence justifying any finding of contributory negligence against Mr Ipseftel.
Clearly both vehicles at impact were travelling at very slow speeds. The damage to the respective vehicles indicates that (see photos Exhibit A1). Both vehicles were able to turn into Lomond Avenue and did not travel beyond the mouth of that avenue. It was a slow minor collision. Mr Ventrice drew away from the kerb virtually at the same time as Mr Ipseftel was overtaking and commencing to turn. In particular, I accept Mr Ipseftel’s evidence that Mr Ventrice was stationary at the time Mr Ipseftel was in the process of preparing for his turn.
Therefore I find that Mr Ventrice is wholly to blame for this collision.
Conclusion
I affirm the decision of the Magistrate.
To the extent that I have reheard the matter, and therefore am constrained to make my own decision, I enter judgment for Mr Ipseftel for the full amount of the damage to his vehicle namely $6,837.07 and I dismiss the counterclaim of Mr Ventrice. Therefore, the Application for Review is dismissed.
I confirm the orders for costs made by the Magistrate in respect of the costs incurred in the Magistrates Court. I will hear the parties as to the question of the further costs incurred on this Application for Review.