Yisrael v Jones

[2001] NSWSC 1019

CITATION:	Yisrael v Jones [2001] NSWSC 1019
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 11802/01
HEARING DATE(S):	Monday 22 October 2001
JUDGMENT DATE:	22 October 2001
PARTIES :	Stanley Yisrael v David Frederick Jones and Oliver Demos Jones
JUDGMENT OF:	Michael Grove J at 1

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :	1129/00; 4106/00
LOWER COURT JUDICIAL OFFICER :	P. Russell

COUNSEL :	In Person (Plaintiff) M. Condon (Defendant)
SOLICITORS:	Braye Cragg (Defendant)
CATCHWORDS:	LOCAL COURT - NEGLIGENCE - PROPERTY DAMAGE TO COLLIDED MOTOR VEIHCLES - DECISION OF FACT - PARTICULARS - NO BASIS FOR APPELLATE INTERVENTION
LEGISLATION CITED:	Local Courts (Civil Claims) Act 1970
DECISION:	SUMMONS DISMISSED

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Monday 22 October 2001

11802/01 - STANLEY YISRAEL v DAVID FREDERICK JONES

JUDGMENT

1 HIS HONOUR: This is a summons seeking relief against a judgment entered in the Parramatta Local Court on 16 May 2001. Before the Local Court were two actions arising out of a motor vehicle collision which occurred on 17 February 1999 near the intersection of Marsden Road and Morris Street, Carlingford. It is unnecessary for present purposes to detail the facts of the accident beyond observing that one vehicle was owned and driven by the plaintiff, Stanley Yisrael, and the second vehicle was owned by David Frederick Jones and, on the occasion in question, driven by Oliver Demos Jones.

2 Mr Yisrael was sued in the Local Court in effect for property damage to Mr David Jones' vehicle and, in turn, Mr Yisrael sued Oliver Demos Jones seeking damages in respect of repairs necessary to his vehicle. It was common ground at the hearing that Mr Yisrael's vehicle had emerged from Morris Street into Marsden Road and that at all material times, what I will refer to as the Jones' vehicle was travelling in Marsden Road.

3 The Magistrate found in favour of the Joneses in both actions. The challenge to the judgment is limited in this Court by s 69(2) of the Local Courts (Civil Claims) Act 1970 which provides that a party to proceedings under this Act who is dissatisfied with the judgment or order of the Court as being erroneous in point of law may appeal to the Supreme Court therefrom. Accordingly, my jurisdiction does not extent to re-determination of any fact found by the Magistrate.

4 Mr Yisrael represented himself in the Local Court and has continued to do in this Court. In support of his summons, an affidavit was read which effectively is a submission rather than an assertation of fact but noting that matter, the affidavit, together with a number of attachments, was admitted into evidence.

5 The principal issues relied upon by the plaintiff can be refined to two. The first issue is that the Magistrate is alleged to have determined the matter contrary to the interests of Mr Yisrael outside of the parameters of the action before her. I should explain that matter in this context. The originating pleading in the claim by Mr David Jones against Mr Yisrael contained a conventional assertion of damage to a motor vehicle arising out of negligent driving of another vehicle. Particulars were supplied. These also were couched in the conventional and somewhat ritualistic terms that are frequently seen in pleadings of that nature. The important issue is that of the seven particulars, six alleged in various ways that Mr Yisrael had failed to make a right-hand turn with safety. It can be observed from the evidence in the Local Court, a transcript of which is attached to the affidavit, and indeed from Mr Yisrael's submissions, that he does not dispute that he made a right-hand turn out of Morris Street into Marsden Road but what he asserts is that he had completed that turn and the accident occurred when, in effect, the Jones' vehicle collided with the rear of his. The course of the evidence showed that the case being presented on the part of the Joneses was that after entry into Marsden Road, Mr Yisrael's vehicle moved into the extreme left or kerbside lane without signalling the intention so to do and thus precipitated the collision.

6 Mr Yisrael has complained in this Court that he went to the Local Court ready to meet a case asserted against him of failing to make a right-hand turn with safety but not a case of the content with which I have just sketched. The question for this Court, as I have indicated, is whether there has been an error of law. In order to determine this it is appropriate to call to mind the purpose of the provision of particulars. Particulars are given in order to enable a person sued to have a proper appreciation of the case that is being presented against them. It is clear that at trial the issue between the parties, insofar as there was an allegation on the part of the Joneses of movement from one lane into another, was being litigated.

7 In his affidavit and in his submissions, Mr Yisrael has drawn attention to a number of comments by the learned Magistrate which might be taken to elevate particulars into a greater importance than they actually had. As I have said, the purpose of particulars is to fairly apprise a party of the case that that party has to meet.

8 A further complaint was made by Mr Yisrael in this context concerning the acceptance by the Magistrate of the evidence of a Mr Hickey. Mr Hickey was driving a vehicle in Morris Street immediately to the rear of Mr Yisrael's vehicle. It is said by Yisrael that Mr Hickey was manifesting an impatience at delay. He has also indicated that Mr Hickey's evidence is manifestly unreliable in that he told a police officer that he had turned left at the intersection - that is to say away from the direction taken by Mr Yisrael - whereas he had testified differently to the Magistrate.

9 Part of the material attached to Mr Yisrael's affidavit includes the evidential statement of Mr Hickey who was called as a witness and a photocopy of the relevant entry in the policeman's notebook. A reading of that material shows that Mr Hickey's original intention was to turn left but that he had not turned left until he had observed the collision. There appears to be some uncertainty as to whether he turned left then made a U-turn towards the centre of the collision or whether he immediately turned right. Be that as it may, he testified that he had gone in that direction because he perceived wrongly, as it turns out, that Mr Yisrael may have been seeking to quit the scene of the accident.

10 It is plain that what Mr Yisrael did was move his vehicle into a side street out of a busy street after the collision had occurred. As I have said, my jurisdiction does not extend to the determination of facts. I have referred to these matters because it clear from a reading of them and of the transcript that the issues being litigated were revealed, were plain and were not in any way disguised.

11 Mr Yisrael's assertion that he was ambushed is not sustainable from a fair reading of the course of the proceedings. There was ample evidence upon which the Magistrate could find as she did. Indeed, it is not to the point for me to observe whether or not I would come to the same conclusion. What is to the point is the existence of available evidence. Thus, it cannot be said that there was no evidence upon which the Magistrate could found her verdict.

12 That being said, an error of law has not been demonstrated.

13 The evidence of Mr Hickey to which I have made reference is pertinent to the second matter canvassed by Mr Yisrael. He was in possession of material which had been acquired from the Police Accident Information Service. For ease of reference it was described at the hearing as the COPS material, no doubt a reference to the Police computer service known by that acronym. Mr Yisrael said that he submitted that document in accordance with directions of the Local Court Registrar that he put before the Court documentary material upon which he relied, and he was surprised to find at the hearing that neither the Magistrate nor his opponent had that documentation. Nevertheless, he affirmed that he was in possession of the documentation and he sought to tender it. The rejection of that tender is the second matter relied upon by the plaintiff in this Court.

14 The material which, as I have said, is attached in copy form to Mr Yisrael's affidavit, is not self proving. A peripheral complaint was made that had Mr Yisrael been aware that objection was going to be taken to the tender of this material, he would have called Sergeant Reid who made the relevant report.

15 However, Sergeant Reid could only testify on a hearsay basis. He could, of course, insofar as he had taken a statement from Mr Oliver Demos Jones, given evidence of what was said, but that material was available to be put before the Magistrate in the course of the evidence in any event.

16 The material in the COPS document was available at all relevant times to be used for the purpose of cross-examination, including the cross-examination of Mr Hickey.

17 As I have said, the issues at trial were unmistakable. There has been no legal error committed by the Magistrate in ruling that tender of the COPS material should be rejected.

18 For completeness, I observe that Mr Yisrael requested that I consider remitting the matter to the Local Court for re-determination on the basis that he is confident that before another Magistrate he can be successful on the facts. As is implicit in the remarks I have already made, which I now specifically affirm, my jurisdiction does not extend so far as to enable such an order to be made. I should add that I do not see any basis, on the material before me, which would provoke such an order even if I had relevant jurisdiction. What occurred before the Magistrate was the determination of an unfortunately all too common dispute between motorists concerning the responsibilities for a collision between two motor vehicles. That is quintessentially a matter of fact to be determined by a tribunal of first instance. There was no legal error in the approach of the Magistrate and although some of the comments made concerning particulars would, as I have said, appear to elevate particulars to an importance which they do not possess, upon analysis no error has been demonstrated.

19 Accordingly, it is inevitable that this summons must be dismissed and I so order. I order the plaintiff to pay the defendant's costs including reserved costs.

Last Modified: 11/14/2001