Wang v Morcombe - [2020] SADC 22

District Court of South Australia
(Civil: Minor Civil Review)
WANG v MORCOMBE
[2020] SADC 22
Reasons for Decision of Her Honour Judge Schammer
13 March 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
A collision occurred on Rundle Street, between a Toyota turning left onto Rundle Street from the UPark Rundle parking lot and a Subaru travelling west along Rundle Street.
Immediately prior to the collision, the Subaru had crossed over two unbroken lines on the roadway. These lines marked both the commencement of two lanes for western bound traffic on Rundle Street, from what was only a single lane, and a demarcation of the two car park exit lanes.
In issue, was the status of the two unbroken lines, and whether they served to give drivers turning left from the car park onto Rundle Street, any right of way over vehicles on Rundle Street.
Fresh evidence was presented and received on review, including a photograph which depicted the relevant portion of the roadway at the time of the collision, which was not available to the Magistrate, and showed lines of yellow studs on the road surface between the two unbroken lines.
Held:
The area surrounded by the two unbroken lines is a ‘painted island’ within the meaning of the Australian Road Rules (ARR).
The driver of the Subaru breached ARR 68 in crossing over the two unbroken lines.
The primary responsibility for the collision however remains with the driver of the Toyota, who was required to give way to all vehicles on Rundle Street prior to exiting the car park.
Orders:
1 The judgment of the Magistrate made on 25 November 2019 is rescinded.
2 Liability for the collision is apportioned 75% as against the Applicant and 25% as against Edward, the third party.
3 Adopting the same reasoning as the Magistrate, having regard to the family relationship between the Respondent and the third party, the third-party claim is offset from the primary claim. Both the third-party claim and the counterclaim are therefore dismissed.
4 Judgment for the Respondent as against the Applicant in the sum of $3,577.12 (inclusive of costs) calculated as follows:
75% of the agreed quantum of the Respondent's claim (4,220.60) - $3,165.45
Less 25% of Applicant’s agreed quantum ($653.33) - ($163.33)
Sub-total - $3,002.12
Costs (as ordered by the Magistrate) - $575.00
Total - $3,577.12
5 No order as to the costs of the Application for Review, or the Interlocutory Application.
Magistrates Court Act 1991 s 38; Road Traffic Act 1961 s 80, referred to.
Lawrence v Sambevski (1997) 189 LSJS 451; Wilczynski & Anor v District Court of South Australia & Ors [2016] SASC 51; Sibley v Kais (1967) 118 CLR 424, considered.

WANG v MORCOMBE
[2020] SADC 22
Introduction

This is an application for review of the decision of a Magistrate in a minor civil action commenced by Neville Morcombe QC (Respondent) against James Wang (Applicant).
The Respondent claimed damages in the sum of $4,220.61 (plus costs) from the Applicant for damage sustained to his vehicle arising from a motor vehicle accident which occurred on Rundle Street, Adelaide on Saturday 25 May 2019 at approximately 11:45am.
At that time, the Respondent’s son, Edward, was driving the Respondent’s Subaru Outback WTV-827 (the Subaru) west along Rundle Street, approaching Pulteney Street, with the intention of turning left onto Pulteney Street.
As Edward drove past the exit of the UPark Rundle parking lot (the car park), a Toyota Corolla XLW-510 (the Toyota) driven by Applicant, turned left from the car park onto Rundle Street. A collision occurred between the front driver’s side bumper bar of the Toyota and the left rear passenger door of the Subaru (the collision).
Both vehicles were damaged in the collision.
The Applicant issued a Third Party Claim against Edward claiming damages in the sum of $777.14 (plus costs).
The action proceeded to trial before a Magistrate on 25 November 2019. At the commencement of the trial the Magistrate was informed that the parties had reached an agreement as to quantum, with the quantum of the Respondent’s damages agreed in the sum of $4,220.60 and the quantum of the Applicant’s damages agreed in the sum of $653.33. As such, the trial proceeded only on the issue of liability.
By an ex-tempore judgment delivered that same day, the Magistrate apportioned liability 90/10% as against the Applicant.
The Magistrate awarded judgment in favour of the Respondent in the sum of $4,308.21 (inclusive of costs) comprising:
90% of Respondent’s agreed quantum ($4,220.60)  $3,798.54
less 10% of Applicant’s agreed quantum ($653.33)  $65.33
Costs  $575.00
Total   $4,308.21
It is implicit that for reasons of practicality, the Magistrate treated the Third Party Claim as if it was a Counterclaim, when she entered judgment in these terms.
The Application for Review
On 13 December 2019, the Applicant filed an Application for Review, seeking an order that in lieu of the Magistrate’s decision, the Court determine liability 100% in his favour, and order Edward pay him the amount claimed, namely $653.33 (plus costs).
The primary ground of appeal pursued by the Applicant is that the Magistrate erred in finding that he was required to give way to the Subaru.
To understand the basis for this submission, it is necessary to outline the nature of the roadway immediately adjacent to the car park exit on Rundle Street.
There is a concrete median strip dividing western and eastern bound traffic on Rundle Street. As such, all traffic exiting the car park must turn left from the car park exit and travel towards the intersection with Pulteney Street. There are two exit lanes from the car park. Where the two lanes meet Rundle Street, a single line dividing them, painted on the roadway, separates into two parallel continuous lines (the two unbroken lines). Between (and joining) the two unbroken lines are several lines of yellow studs on the roadway, each several metres apart.
The two unbroken lines serve to delineate the continuation of the two car park exit lanes, separating those vehicles which intend to turn left at the Pulteney Street intersection, from those intending to turn right.
In addition, the two unbroken lines mark the commencement of two lanes for western bound traffic on Rundle Street, noting that until western bound traffic reaches the two unbroken lines, there is only one lane for such traffic.
The two unbroken lines end a short distance to the west of the car park exit, where they meet and become a single broken line, separating the two lanes for western bound traffic on Rundle Street in the approach to Pulteney Street. There are arrow markings on the roadway in each lane signalling the direction that drivers within that particular lane are required to turn at the Pulteney Street intersection.
Edward intended to turn left at Pulteney Street. As he drove past the car park exit, Edward drove the Subaru across the two unbroken lines, so as to move his vehicle from the single western bound lane on Rundle Street into what was the commencement of the left-hand lane.
The Applicant submitted that this manoeuvre was prohibited under the Australian Road Rules, and that Edward was therefore solely liable for the collision.
The Magistrate determined that the two unbroken lines only represented a guide for traffic moving out of the car park and did not prohibit Edward from crossing them to move into the commencement of the left lane, from what had previously been a single lane for western bound traffic.
In apportioning liability 90% as against the Applicant, the Magistrate determined that the Applicant, being the driver of a vehicle entering a road from adjacent land, had failed to comply with his duty to give way to the Subaru, a vehicle on that road. She attributed 10% of such liability to Edward on the basis that he ought to have been aware of the potential for the Applicant to fail to give way and be ready to take evasive action by deferring his change of lane.
The Respondent submitted that the Magistrate had not erred and sought an order affirming the judgment.
Thus, the primary issue in dispute and for my determination, was the status of the two unbroken lines and whether their presence on the road way effectively gave right of way to the Applicant.
The Procedure on Review
Section 38 of the Magistrates Court Act 1991 (MCA) outlines the procedure to be followed in the determination of minor civil actions in the Magistrates Court and provides a mechanism whereby a party dissatisfied with a judgment given in a minor civil action may apply to the District Court for a review of the matter.
Section 38(7) of the MCA states:
38—Minor civil actions
(7)The following provisions apply to such a review by the District Court:
(a)subject to paragraph (ab), the right of a party to be represented by a legal practitioner at the review will be determined in accordance with subsection (4);
(ab)if, in the case of a review that relates to a minor civil action in respect of a transferred proceeding within the meaning of Part 3A of the South Australian Civil and Administrative Tribunal Act 2013, a party was represented by a legal practitioner at the proceeding, then the party may be represented by a legal practitioner at the review by the Court;
(b)the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;
(c)the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;
(d)     in determining the matter, the Court may—
(i)    affirm the judgment; or
(ii)     rescind the judgment and substitute a judgment that the Court considers appropriate; or
(iii)    if the review arises from a default judgment or summary judgment, rescind the judgment and—
(A)substitute a judgment that the Court considers appropriate; or
(B)remit the matter to the Magistrates Court for hearing or further hearing;
(e)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.
The Hearing
Both the Applicant and the Respondent filed and served a Written Case on Review pursuant to District Court Civil Supplementary Rule 230.
In addition, I heard oral submissions from both parties.
The Applicant had filed an Interlocutory Application seeking an order that his father speak on his behalf at the hearing. The primary basis for the application was that the Respondent is an experienced Queens Counsel.
I allowed the Applicant to be assisted by his father, Mr Zhe, during the Hearing, pursuant to s 38(4)(d) of the MCA.
Preliminary Matters
Agreement as to Quantum
In his Written Case, the Applicant sought to revisit the issue of quantum. He submitted that the photographs depicting the damage to the Subaru showed only modest damage, such that the amount claimed for repair costs of $4,220.60 was excessive, particularly when compared to the amount quoted for the repair of the Toyota.
The Applicant acknowledged that prior to the trial he had agreed the quantum of the Respondent’s claim in the sum of $4,220.60 and that in return the quantum of his claim had been agreed in the sum of $653.33.
I am satisfied that at the time of that agreement the Applicant had seen the photographs depicting the damage to the Subaru and thus was fully informed of the nature of that damage when he reached the agreement.
In those circumstances, I explained that the court would not go behind that agreement and allow that issue to be re-opened and agitated upon review.
New Evidence
The Applicant’s Written Case included an Affidavit sworn by him on 1 March 2020, annexed to which were three exhibits he sought to rely upon. That evidence was not before the Magistrate.
In addition, the Application for Review included, on page 3, a diagram of the accident scene, and on page 4, a photograph of the relevant portion of Rundle Street, neither of which documents had been before the Magistrate.
The Respondent opposed the reception of this new evidence by the Court on review, relying upon the decision of Judge Lunn in Lawrence v Sambevski[1] and the more recent decision of Justice Doyle in Wilczynski & Anor v District Court of South Australia & Ors.[2] In addition, the Respondent submitted that this new material was either irrelevant, or of limited weight, or should not be received as being inconsistent with the evidence led at trial.
[1] (1997) 189 LSJS 451.
[2] [2016] SASC 51.
In Lawrence v Sambevski, Judge Lunn describe the power to receive fresh evidence on a review hearing as follows: [3]
The scope of any fresh evidence to be taken on a review cannot exceed that which the Magistrate was required to take on the trials of a minor civil action. It would defeat the objects of expedition and minimisation of costs if on a review a party could adduce fresh evidence which could go into all sorts or relevant issues which were not opened up in the trial before the Magistrate. Almost every party who loses an action would like the opportunity to re-run the trial on expanded evidence and arguments, but this would mean that there could be reviews in almost every minor civil action and potentially increase the costs and delays enormously. The basic rule must be that parties are bound by the conduct of the trial before the Magistrate and that good reason is required for any additional evidence to be admitted. It was suggested that because s38(1) (a) and (b) requires the trial to be an inquiry by the Court there was an onus on the Magistrate to see that all relevant evidence was adduced at the trial. While there is such a duty on a Magistrate on crucial and essential issues … it is not for the Magistrate to conduct the cases for the parties or to give them advice on evidence …It would make minor civil actions far more complicated and expensive than Parliament intended them to be if a Magistrate was obliged to ensure that all possible evidence was adduced on any issue to which he might ultimately have regard in the determination of the action. Ultimately, the duty of the Magistrate is to decide the claim on the material which is properly before him at the conclusion of the trial. If in his reasons he goes outside of that evidence, that may well be a ground for a District Court on a review to interfere with his findings on the basis that they were not justified by the evidence, but it is not in itself, as was contended here, a justification for a party to lead fresh evidence on the review on any such topic.
[3] (1997) 189 LSJS 451 at 453-454.
However, these comments were made in the interpretation of s 38 MCA in a form that differs from its present wording, and included, at s 38(6) the power for the Court to ‘set aside the judgment and give any judgment that should…have been given at first instance’. Judge Lunn interpreted the inclusion of the latter three words ‘at first instance’, as indicating that the District Court’s concern on review, was ‘with what should have happened as at the date of judgment in the Magistrates Court’ and considered this was contrary to a construction which allowed a re-hearing at large. Those three words no longer appear in s 38(6) MCA.
As outlined by Justice Doyle in Wilczynski,[4] in an ordinary ‘appeal’, the discretion of the appeal court to accept fresh evidence is generally only enlivened if two pre-conditions are met, namely the evidence was not available at trial and is such that it would likely have influenced the result. However, the current wording of s 38 MCA, with its focus being a ‘review’ of ‘the matter’, suggests a more flexible approach.
[4] [2016] SASC 51 at [63]-[65].
The fresh evidence sought to be relied upon by the Applicant fell into three separate categories:
1A diagram of the accident scene,[5] which differed from a diagram tendered as an exhibit before the Magistrate,[6] in that it depicted the point of impact in a different location, and further to the west of the car park, to the point of impact as marked by the Applicant on the relevant exhibit. In addition, the material included an email dated 23 February 2020 Mr Zhe had forwarded to the South Australian Police Department, attaching that diagram, and enquiring which driver, as depicted in that diagram, should ‘take the main liability’ for the collision, together with an email provided in response from Senior Constable Hartman dated 24 February 2020[7] (the Category 1 documents).
2A photograph taken by Mr Zhe of Rundle Street in the vicinity of the car park exit, depicting what appear to be lines of small yellow studs on the road, between the two unbroken lines.[8] Those yellow studs were not depicted in the photographs of the accident scene tendered at the trial. In addition, Exhibit JW3 to Mr Wang’s Affidavit comprised correspondence between Mr Zhe and the City of Adelaide, confirming that the yellow studs were installed on 24 January 2019 (and therefore before the collision) (the Category 2 documents).
3Correspondence between Mr Zhe and Ms Trudy Angove, Senior Transport Designer, City of Adelaide enquiring as to the obligations of road users with respect to the two unbroken lines[9] (the Category 3 documents).
Category 1 Documents
[5]    Application for Review at p 3.
[6]    Exhibit P1 at p 14, being a diagram annexed to the Third Party Claim and marked ‘D’ to represent the Respondent’s recollection of the point of impact.
[7]    Exhibit JW1 to the affidavit of the Applicant sworn on 1 March 2020.
[8]    Application for Review at p 4 (marked ‘From my camera’).
[9]    Exhibit JW2 to the affidavit of the Applicant sworn on 1 March 2020.
I refused the Applicant’s application to tender the Category 1 documents as fresh evidence at the review.
The evidence given by the Applicant at trial, and his pleadings, relied on a different point of impact to that depicted in the diagram.
The email from Senior Constable Hartman contained his opinion as to the obligations imposed on the driver of the red car depicted in the diagram, having regard to the presence of the two unbroken lines. This raises a myriad of issues including, but not limited to, arguments pertaining to Senior Constable Hartman’s expertise, the adequacy of the material relied upon and whether in offering his opinion he had had regard to other relevant road rules.
Further, it is the Court’s role to interpret the Australian Road Rules and to determine whether and how those Rules apply to the facts, as determined, in this action.
I explained to Mr Wang that I would allow him to advance arguments based on the information received from Senior Constable Hartman (in much the same way as a self-represented party may use legal arguments – as advised by their lawyer - to argue in favour of the court interpreting legislation in a particular way).
However, I declined to receive the Category 1 documents as new evidence.
Category 2 Documents
I allowed the Applicant’s application to tender the Category 2 documents as fresh evidence at the review.
The basis for that decision was twofold namely:
·If the evidence was to be admitted, the Respondent did not insist upon the author of the letter confirming the installation date of the yellow studs, being called to give evidence. In other words, the installation date was not in dispute.
·If received, that letter formed the basis for a finding that the yellow studs, as depicted in the photograph on p 4 of the Application for Review, were installed between the two unbroken lines as at the date of the collision, meaning that the photographs tendered at trial and relied upon by the Magistrate which did not depict those studs, were not an accurate depiction of the roadway as at the date of the collision.

The photograph was in the Applicant’s possession at the time of trial, but he decided not to present it to the court, instead relying on images downloaded from Google maps. Nevertheless, in my view, it is in the interests of fairness and justice to allow this new evidence to be tendered.
Category 3 Documents
I allowed the Applicant’s application to tender the Category 3 documents as fresh evidence at the review. However, in making that ruling, I outlined that there was very limited weight that could be attributed to the contents of the emails from Ms Angove, being her own views as to the obligations of road users at the point of impact. Again, it is the court’s role to both interpret and apply the law in this matter.
Factual Findings not in Dispute
The Application for Review only challenged the Magistrate’s interpretation of the law, and what if any obligations were imposed upon drivers heading west along Rundle Street due to the presence of the two unbroken lines.
The underlying findings of fact made by the Magistrate as to the circumstances of the collision were not challenged.
Those findings of fact appear to have included:
1Immediately prior to the collision, the Subaru was travelling at a speed of approximately 30-40km/h in a westerly direction along Rundle Street, approaching the car park exit.
2Edward observed the Toyota stationary at the car park exit waiting to turn left onto Rundle Street.
3Edward activated the left-hand indicator of the Subaru to signal his intention to move from the single lane on Rundle Street into the left-hand lane, where Rundle Street divides into two lanes for western bound traffic.
4While the Toyota was stationary at the car park exit, immediately behind a single unbroken white line, the Applicant looked to his right and saw the Subaru on Rundle Street approximately 20 metres to his right. He did not see the left indicator.
5The Applicant then turned his attention to his left.
6As the Subaru passed the car park exit, it moved across the two unbroken lines from the single western bound lane into the start of the left-hand lane.
7At or about the same time the Toyota then commenced to turn left from the car park onto Rundle Street.
8An impact occurred between the front driver’s side bumper bar of the Toyota and the left rear passenger door of the Subaru.
Although not expressly stated, the Magistrate appears to have accepted the point of impact as occurring at or about the point marked ‘D’ on page 14 of Exhibit P1, being consistent with the evidence of the Applicant and his passenger, Ms Hou.
Further, in accepting that Edward activated his left-hand indicator before commencing his manoeuvre, the Magistrate stated it was possible that indicator was not activated at the point in time the Applicant looked to his right and observed the Subaru approaching. There was no dispute that thereafter, the Applicant moved his attention to his left, and did not look again to his right, or see the Subaru again, before commencing to exit the car park.
Liability
Pursuant to s 80 of the Road Traffic Act 1961, the Governor may make rules (Australian Road Rules) to regulate traffic movement, flows and conditions, vehicle parking, the use of roads, and any aspect of driver, passenger or pedestrian conduct.
Both the Applicant and Edward had various obligations imposed on them under the Australian Road Rules (ARR). In issue, is the status of the two unbroken lines, and whether their presence on the roadway at the car park exit gave the Applicant’s vehicle right of way.
For the reasons that follow, I disagree with that contention.
There is no dispute that at the time of the collision, there was a single unbroken line marked on the roadway across the car park exit, roughly in line with the edge of the southern kerb of Rundle Street.
Immediately to the north of that single unbroken line was a marked bicycle lane.
The two unbroken lines start at or about the single unbroken line, run for a short distance north, then curve around to the west.
ARR 68 states:
68—Stopping and giving way at a stop sign or stop line at other places
(1)A driver approaching or at a place with a stop sign or stop line must stop and give way in accordance with this rule, unless the place is—
(a)     an intersection; or
(b)     a children's crossing; or
(c)     an area of a road that is not a children's crossing only because it does not have—
(i)children crossing flags; or
(ii)children's crossing signs and twin yellow lights; or
(d)     a level crossing; or
(e)     a place with twin red lights.
Offence provision.
Examples—
1       A stop sign at a break in a dividing strip dividing the part of the road used by the main body of moving vehicles from a service road.
2       A stop sign on an exit from a carpark where the exit joins the road.
Note 1—
Children's crossing is defined in rule 80, intersection, stop line and twin red lights are defined in the dictionary, and level crossing is defined in rule 120.
Note 2—
For this rule, give way means the driver must remain stationary until it is safe for the driver to proceed—see the definition in the dictionary.
Note 3—
For the stopping and giving way rules applying to a driver at an intersection or level crossing with a stop sign or stop line, see rule 67 (intersections) and rule 121 (level crossings). Rule 80 deals with stopping at a stop line at a children's crossing.
(2)The driver must stop as near as practicable to, but before reaching—
(a)     the stop line; or
(b)     if there is no stop line—the stop sign.
(3)The driver must give way to any vehicle or pedestrian at or near the stop line or stop sign.
The ‘Dictionary’ under the ARR defines ‘stop line’ to mean:
a continuous line that-
(a)is marked across all or part of a road; and
(b)is not part of a marked foot crossing, a keep clear marking or a bicycle storage area for hook turns.
In my view, the single unbroken line which divides the car park exit from Rundle Street as depicted in all of the various photographs (and is immediately adjacent to the point marked ‘A’ on page 14 of Exhibit P1) is a ‘stop line’ within the meaning of that definition.
As such, the Applicant had an obligation to give way to all vehicles on Rundle Street, before exiting the car park, not just bicycles within the marked bicycle lane.
If I am wrong about that, and that line is not a ‘stop line’, then ARR 74 applies, and also imposed an obligation on the Applicant to give way to all vehicles on Rundle Street before exiting the car park.
ARR 74 states:
74—Giving way when entering a road from a road‑related area or adjacent land
(1)A driver entering a road from a road‑related area, or adjacent land, without traffic lights or a stop sign, stop line, give way sign or give way line must give way to—
(a)     any vehicle travelling on the road or turning into the road (except a vehicle turning right into the road from a road‑related area or adjacent land); and
(b)     any pedestrian on the road; and
(c)     any vehicle or pedestrian on any road‑related area that the driver crosses to enter the road; and
(d)     for a driver entering the road from a road‑related area—
(i)any pedestrian on the road‑related area; and
(ii)any other vehicle ahead of the driver's vehicle or approaching from the left or right.
Offence provision.
Note 1—
Adjacent land, give way line, stop line and traffic lights are defined in the dictionary, and road‑related area is defined in rule 13.
Note 2—
Adjacent land or a road‑related area can include a driveway, service station or shopping centre—see the definitions of adjacent land and road‑related area. Some shopping centres may include roads—see the definition of road in rule 12.
Note 3—
Part 6 applies to the driver if there are traffic lights. Rule 68 applies to the driver if there is a stop sign or stop line, and rule 71 applies to the driver if there is a give way sign or give way line.
Note 4—
For this rule, give way means the driver must slow down and, if necessary, stop to avoid a collision—see the definition in the dictionary.
(2)In this rule—
road does not include a road‑related area.
Note—
A road‑related area includes any shoulder of a road—see rule 13.
As such, I agree with the Magistrate’s conclusion that the Applicant had a primary obligation to give way to the Subaru, irrespective of the status of the two dividing lines.
The Applicant contended that insofar as Edward drove the Subaru across the two unbroken lines, he had breached two Australian Road Rules, namely rr 138 and 148.
ARR 138 states:
138—Keeping off a painted island
(1)A driver must not drive on or over a single continuous line, or 2 parallel continuous lines, along a side of or surrounding a painted island, except as permitted under this rule or rule 139(4).
Offence provision.
SA NOTE—
For South Australia, see regulation 11B of the Road Traffic (Road Rules—Ancillary and Miscellaneous Provisions) Regulations 2014.
Note 1—
Painted island is defined in the dictionary.
Note 2—
Rule 139 deals with avoiding obstructions on a road.
Example—
Painted island surrounded by 2 parallel continuous lines
In this example, vehicle B is contravening the rule.
(2)A driver may drive on or over a single continuous line along the side of or surrounding a painted island for up to 50 metres—
(a)     to enter or leave the road; or
(b)     to enter a turning lane that begins immediately after the painted island; or
(c)     to enter a part of the road of one kind from a part of the road of another kind (for example, moving to or from a service road or emergency stopping lane); or
(d)     to park in angle parking on the opposite side of the road provided that the driver does not need to perform a U-turn to reach the parking area.
Note 1—
Angle parking, parking area, service road, turning lane and U-turn are defined in the dictionary and emergency stopping lane is defined in rule 95.
Note 2—
Rule 85 deals with the give way rules applying to a driver entering a turning lane from a painted island and rule 197 deals with stopping on painted islands.
Note 3—
Subrule (3) excludes certain painted islands from the application of paragraph (a).
(3)Subrule (2)(a) does not apply in the case of a painted island—
(a)     that separates a road that takes vehicles in one direction from another road that takes vehicles in the same direction at a place where the roads merge; or
(b)     that separates one part of a road from other parts of the road to create a slip lane.
Note—
Slip lane is defined in the dictionary.
Examples—

Example 1

Example 2

In these examples, vehicle B is contravening the rule.

Rule 138(1) only applies if the two unbroken lines are along a side of or surrounded by a ‘painted island’. This is clear not only from the language used in r 38(1), but by the heading of the Rule, which relates to keeping off ‘painted islands’.
The Dictionary in the ARR defines ‘painted island’ to mean:
painted island means an area of a road—
(a)that has painted on it stripes or chevrons in white or another colour that contrasts with the colour of the road; and
(b)that is surrounded either—
(i) by a line or lines (whether broken or continuous); or
(ii) partly by a combination of a line or lines (whether broken or continuous) and partly by a kerb or by a structure on or next to the road.
The area as defined by the two unbroken lines does not have stripes or chevrons painted on it, either in white or in another contrasting colour. Rather, between the two dividing lines are a series of parallel lines of small yellow studs applied to the road surface.
In addition, its visual appearance is very different from the examples included above in the ARR.
However, if the area is not a ‘painted island’, what is it?
By reference to the Dictionary in the ARR, I am satisfied that:
1Neither of the two unbroken lines are a ‘dividing line’, as the two unbroken lines are not ‘designed to indicate the parts of the road to be used by vehicles travelling in opposite directions’.
2The two unbroken lines are not a ‘dividing strip’, because the two dividing lines do not divide Rundle Street lengthways.
3The area between the two unbroken lines is not a ‘traffic island, as it is not a ‘structure’ on the roadway.
4The area between the two unbroken lines is not a ‘median strip’, as it is not ‘designed or developed to separate vehicles travelling in opposite directions’.
Further, I am not satisfied that the lane immediately to the left of the two unbroken lines is a ‘slip lane’, being an area on a road for vehicles turning left, separated from other vehicles on that road by a painted island. The road in question here must be Rundle Street, as the car park exit is not a ‘road’. This area of Rundle Street is not for vehicles turning left, at that part of Rundle Street, albeit such vehicles will eventually turn left, further west at Pulteney Street.
If the area is not a ‘painted island’, then it may simply be a ‘road marking’, namely:
a word, figure, symbol, mark, line, raised marker or stud, or something else, on the surface of the road to direct or warn traffic, but does not include a painted island.
However, when these definitions are considered carefully, in the context of the roadway in question, in my view the two unbroken lines, and the area between them, do not simply serve as a ‘direction’ or ‘warning’ to traffic. If they were simply intended to guide the movement of the two lanes of traffic exiting the car park, a single curved line could have served such a purpose.
In my view, after giving very careful consideration to the ARR and the respective definitions thereunder, the area between the two unbroken lines is, in fact, intended to be a ‘painted island’.
Once vehicles exit the car park from the right exit lane, they enter Rundle Street, to the right of the two unbroken lines. They then assume a position equivalent to that of western bound traffic on Rundle Street. The two unbroken lines are there to stop those exiting drivers from inadvertently turning (or drifting) into the wrong lane. They must be intended to similarly stop western bound traffic on Rundle Street from doing likewise.
I am satisfied ARR 138 applies. As such pursuant to ARR 138(1), a driver must not drive over the two unbroken lines, except as permitted under the rule, or by ARR 139(4). I am not satisfied that the manoeuvre undertaken by Edward was permitted otherwise by ARR 138 or pursuant to ARR 139(4).
The Applicant also submitted that Edward had breached ARR 148, which states:
148—Giving way when moving from one marked lane or line of traffic to another marked lane or line of traffic
(1)A driver who is moving from one marked lane (whether or not the lane is ending) to another marked lane must give way to any vehicle travelling in the same direction as the driver in the marked lane to which the driver is moving.
Offence provision.
Note 1—
Marked lane and multi‑lane road are defined in the dictionary.
Note 2—
For this rule, give way means the driver must slow down and, if necessary, stop to avoid a collision—see the definition in the dictionary.
Examples—
Giving way when moving from one marked lane to another marked lane

Example 1

Example 2

In these examples, vehicle B must give way to vehicle A
(2)A driver on a road with 2 or more lines of traffic travelling in the same direction as the driver, and who is moving from one line of traffic to another line of traffic, must give way to any vehicle travelling in the same direction as the driver in the line of traffic to which the driver is moving.
Offence provision.
(3)Subrule (2) does not apply to a driver if the line of traffic in which the driver is driving is merging with the line of traffic to which the driver is moving.
Note—
Rule 149 deals with giving way when lines of traffic merge.
Example—
Giving way when moving from one line of traffic to another line of traffic when the lines are not merging

In this example, vehicle B must give way to vehicle A

I am not satisfied that ARR 148 applied to Edward, although it arguably applied to the Applicant.
Although the manoeuvre undertaken by Edward involved him moving from one marked lane into another marked lane, at no time was the Applicant’s vehicle ‘travelling in the same direction as the driver in the marked lane’ into which Edward was moving.
Having regard to the point of impact on the road, and the respective areas of damage to both vehicles, it is clear that the Applicant’s vehicle never fully entered any lane on Rundle Street before the impact, and only entered Rundle Street at or about the same time as Edward drove past the car park exit.
If it could be said that both vehicles were travelling at any time, in the same direction on Rundle Street, then that must have been for only a split second, and during that time the Subaru must have been slightly ahead of the Toyota, meaning the Applicant was required to give way to Edward under ARR 148.
Findings
The Applicant had the primary obligation to give way to the Subaru, either pursuant to ARR 68 or ARR 74.
Further, I am satisfied that in driving over the two unbroken lines, Edward breached ARR 138(1).
As acknowledged by the Respondent, the road rules are not definitive of the respective duties of road users, nor is the breach of such rules conclusive as to the performance of those duties. The duty to act reasonably in all the circumstances is paramount.[10]
[10] Sibley v Kais (1967) 118 CLR 424.
Having regard to the point of impact, and the nature of the damage to both vehicles, the Applicant must have only moved from his stationary position and entered the roadway at or about the same time the Subaru crossed over the two unbroken lines. The Applicant knew the Subaru was approaching, but entered the roadway at a time when the Subaru was virtually in front of his vehicle.
The Applicant wrongly assumed that he had right of way, and despite having previously seen the Subaru approaching from his right, entered the roadway, without checking again to his right to ascertain the movements of the Subaru.
Edward simply assumed the Applicant would abide by his obligation to give way, and, as determined by the Magistrate, ‘he ought to at least have been aware of the possibility that (the Applicant) could fail to give way and be ready to take evasive action such as delay his lane change’.
However, in changing lanes when he did, over the two unbroken lines, rather than deferring that lane change until the two unbroken lines ended, Edward was not only failing to exercise his obligation to ‘take reasonable care’, but he was also in breach of ARR 138. Had he not breached that rule, the collision may have been avoided.
In those circumstances, having had the time to carefully consider the ARR, and the benefit of the photograph depicting the roadway in the condition as it presented at the time of the collision, I consider that Edward’s liability for the collision is greater than the 10% as ordered by the Magistrate.
Liability for the collision is apportioned 75% as against the Applicant and 25% as against Edward.
Orders
1The judgment of the Magistrate made on 25 November 2019 is rescinded.
2Liability for the collision is apportioned 75% as against the Applicant and 25% as against Edward, the third party.
3Adopting the same reasoning as the Magistrate, having regard to the family relationship between the Respondent and the third party, the third-party claim is offset from the primary claim. Both the third-party claim and the counterclaim are therefore dismissed.
4Judgment for the Respondent as against the Applicant in the sum of $3,577.12 (inclusive of costs) calculated as follows:
75% of the agreed quantum of the Respondent’s claim ($4,220.60) $3,165.45
Less 25% of Applicant’s agreed quantum ($653.33)  ($163.33)
Sub-total  $3,002.12
Costs (as ordered by the Magistrate)  $575.00
Total  $3,577.12
5No order as to the costs of the Application for Review or the Interlocutory Application.