AZRIEL v SFHIR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, SHELLER and POWELL JJA 28 March 1996, 28 March 1996 [1996] NSWCA 37 Practice and Procedure — Appeal — From Local Court (Small Claims Division) — To Supreme Court in Common Law Division — Further Appeal to Court of Appeal — Not without leave — Leave not granted Powell JA There is listed before the court today what purports to be an appeal from the Judgment delivered, and order made, by Grove J in the Common Law Division of this Court on 21 May 1993, on which day his Honour ordered that the Summons which had been filed by the Appellant on 1 April 1993, which Summons sought (inter alia) an order that the Judgment entered by the Second Respondent, Bailey LCM, in favour of the First Respondent in the Waverley Local Court on 24 September 1992 in proceedings No. 709/92 be set aside, be dismissed. For the reasons which I will shortly record, the appeal is incompetent, and, even if that were not so, the appeal is lacking in substance. Although the materials which are before the court are incomplete - in particular, they do not include the Statement of Claim which originated the proceedings in the Local Court and the Notice of Grounds of Defence which was filed on behalf of the First Respondent in the Local Court - the statement of facts which I set out below is, I believe, not the subject of any real dispute. The proceedings in the Local Court arose out of a motor accident which occurred in March 1992 near the intersection in Bondi which, at least in former times, was known as "Six Ways". At the time, the Appellant's motor vehicle, which had been standing near, or adjacent, to the Northern side of O'Brien Street, was undertaking a U-turn at the intersection of O'Brien Street and Glenayr Avenue with a view to parking on the Southern side of O'Brien Street, when it was struck by the First Respondent's motor vehicle, which was proceeding East in O'Brien Street in the centre lane. The Appellant's case appears to have been that, at the time when he commenced his U-turn, there was no vehicle to be seen to his rear for some considerable distance, whilst the First Respondent's case was that, as he approached the "Six Ways" intersection, the Appellant, without warning, moved from the Northern side of O'Brien Street across his front and, although he took immediate evasive action, and applied his brakes, he was unable to avoid a collision. Although, in the absence of the Statement of Claim which was filed by the Appellant in the Local Court, one cannot be certain that this was so, such material as is before the Court suggests that the damages which the Appellant sought to recover against the First Respondent were such as to permit the Appellant's claim to be brought within the Court's Small Claims Division. In the absence of the Notice of Grounds of Defence filed on behalf of the First Respondent, one cannot know what were the defences which were raised, but it seems reasonable enough to assume that, at the very least, the First Respondent put in issue any allegation of negligence made against him by the Appellant. 2 UNREPORTED JUDGMENTS The proceedings came before Bailey LCM on 24th September 1992, at which time the Appellant appeared in person and a Mr James appeared for, and with, the First Respondent. It is said, and it does not appear to be in issue, that shortly before the proceedings were called on for hearing, Mr James handed to the Appellant a form of Notice of Cross-Claim, by which Cross-Claim the First-Respondent sought to recover against the Appellant damages in the sum of $1,675.38, that sum being said to be the cost of repairs to the First Respondent's vehicle rendered necessary by the collision which was said to have been caused by the negligence of the Appellant. It does not seem to be disputed that, at the same time, Mr James handed the Appellant a statement by the First Respondent containing his version of the events of the day in question, a copy of the Self-Reporting Collision Form which the First Respondent filled in and delivered to the Bondi Beach Police Station on the day in question, a road map of the relevant area, diagrams prepared by each of the Appellant and the First Respondent in April 1982 depicting their respective versions of what occurred on the day in question, and a Smash Repair Quote for the repair of what was said to be the damage to the First Respondent's motor vehicle. There were also some 26 photographs but the Appellant seems to deny that these were handed to him at the time. The transcript record of the proceedings before Bailey LCM commences as follows:- "PLAINTIFF: Your Honour, I can ask subpoena for - that I made before please. BENCH: Yes, there are some documents here under subpoena by the looks of things. You want access to that, yes, you should have done that earlier to save a bit of time. What is this a motor vehicle accident is it. JAMES: It's a motor vehicle accident occurring in O'Brien Street, Bondi Beach. It may be simpler for the Court for the defendant, the cross claimant to hand up a statement prepared by the cross-claimant, on behalf of the cross-claimant, a road map and copies of the smash repair quotations and some photographs with their descriptions. I've shown a copy of those to Mr Azriel and I don't - BENCH: You can hand it up now, I'll have a look at it. Are you ready to proceed now. PLAINTIFF: Yes please. BENCH: Well have you got any statements as to how you say the accident occurred on this particular occasion. PLAINTIFF: I have no statement because I couldn't know what exactly do, but I tell you what about there, so exactly - BENCH: Well you can give some brief evidence, come up here and give evidence as to what you say - " The Appellant, then, with the assistance of Bailey LCM, proceeded to give evidence as to his version of what had occurred on the day in question. Regrettably, however, and despite the assistance which Bailey LCM sought to provide to the Appellant, the Appellant's evidence is garbled and, at times, well nigh incomprehensible. After some short cross-examination, the Appellant's case was concluded. Although Mr James had tendered the documents and photographs to which I have earlier referred (see Local Courts (Civil Claims) Rules 1988 Pt23 rl) the First Respondent was then called to give oral evidence, following which he was cross-examined by the Appellant. Although the Appellant's attempts at cross-examination, in their turn, were, at times, garbled and, at times, well nigh URJ AZRIEL v SFHIR (Powell JA) 3 incomprehensible, enough appears to make it tolerably plain that the Appellant was seeking, first, to challenge the First Respondent's version of the accident, and, second, to dispute that the First Respondent's vehicle had suffered any of the damage claimed by him to have been sustained in the accident. At the end of the oral evidence, Bailey LCM entertained submissions from both the Appellant and Mr James, at the conclusion of which he delivered his Judgment which, so far is relevant, commenced as follows: "BENCH: Yes, the evidence to be determined by the Court as to whether or not the plaintiff has a right of action or whether it's the defendant cross claimant, the question is here to be determined is the simple one as to which of the parties was indeed negligent on this particular occasion, or perhaps were both liable in relation to this particular event and secondly as to the question of quantum there's no challenge in relation to the plaintiffs claim for quantum but the plaintiff in relation to the cross action disputes that the damage occasioned to the van on this particular occasion or all of the damage on the van was the result of this particular accident." and which concluded as follows: "\..In considering this particular matter the manoeuvre made by the plaintiff on this particular occasion I hold in all the circumstances was negligent and ''m satisfied as to the damages in relation to the cross-claim. So that being so, in relation to the statement of claim there'II be a verdict for the defendant and there will be a verdict for the cross-claimant defendant in respect to the cross-claim, and that will be an amount of $1.675.38. I make no order as to costs." It is convenient to pause here to record certain statutory provisions which are relevant. S69 of the Local Courts (Civil Claims) Act 1970, provides as follows: "69(1) Subject to subs(2), all judgments and orders of the court exercising jurisdiction under this Act shall be final and conclusive. (2) 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. (2A) However, in the case of proceedings in the Small Claims Division of a court, an appeal under subs(2) lies only on the ground of lack of jurisdiction or denial of natural justice. (3) The provisions of s101 to s115, both sections inclusive, of the Justices Act 1902, apply, to the extent to which they are applicable, to appeals under subs(2) in the same way as they apply to appeals to the Supreme Court under those provisions." while the relevant provisions of s101-s115 of the Justices Act 1902 are s101, s106 and s112 which, so far as is relevant provide as follows:- "101.(1) Any party to the proceedings, if dissatisfied with the determination by any Justice or Justices in the exercise of their summary jurisdiction of any information or complaint as being erroneous in point of law may, within 35 days (or such longer period as may be fixed under s102A (1) in respect of the party) after such determination, apply in writing to the said Justice or Justices to state and sign a case, settling forth the facts and grounds of such determination for the opinion thereon of the Supreme Court. 106.(1) The Court shall hear and determine the question or questions of law arising on such case; and shall: (a) reverse, affirm, or amend the determination in respect of which the case was stated; or 4 UNREPORTED JUDGMENTS (b) remit the matter to the Justice or Justices with the opinion of the Court thereon: or (c) make such other order in relation to the matter as seems fit: Provided that the Court may cause the case to be sent back for amendment, and thereupon it shall be amended accordingly, and judgment shall be delivered after it has been so amended. 112.11) Any person aggrieved by any summary conviction or order of any Justice or Justices may commence proceedings in the Supreme Court for relief in accordance with this section. (5) Where, in proceedings under this section, it appears to the Supreme Court after inquiry and consideration of the evidence adduced before the Justice or Justices that the convictionor order cannot be supported, the Supreme Court may, subject to s115: (a) by order restrain the Justice or Justices and the prosecutor or person interested in maintaining the conviction or order from proceeding or further proceeding, as the case may be, upon or in respect of such conviction or order; and (b) make such further order as the nature of the case requires." In the Summons which he filed on 1 April 1993, the Appellant sought to have the Judgment of Bailey LCM set aside "on the ground of denial of natural justice" (Local Courts (Civil Claims) Act 1970, s69(2A); Supreme Court Rules 1970 Pt5S1A r4, Pt51A r5). The appeal came before Grove J on 21 May 1993, on which day the Appellant again appeared in person and Mr James appeared for the First Respondent. As the transcript record of proceedings does not record any appearance on behalf of Bailey LCM, I can but assume that a submitting appearance had been filed on his behalf by the State Crown Solicitor The transcript record of proceedings would appear to record that Grove J had read the Court file during the course of the luncheon adjournment. The transcript also records that, when the matter was called on for hearing, his Honour sought to confirm with the Appellant that his (Grove J's) understanding of what the Court file recorded as to the circumstances which had given rise to the proceedings, and as to the matter which the Appellant sought to raise on the hearing of the appeal, was correct. There then followed a discussion between the Appellant and his Honour, in the course of which discussion his Honour sought to explain to the Appellant what were the relevant principles of law which he was required to apply, while the Appellant sought to expound the nature of his complaint as to what had happened below. At the conclusion of that discussion, his Honour then delivered his Judgment. So far as is relevant Grove J's Judgment was as follows:- "The complaints advanced as to denial of natural justice would appear to be these: I say 'would appear to be" as Mr Azriel has represented himself and without intending any offence to him, I am doing my best to recapitulate the submissions which he advanced. He says that he is denied natural justice because there was no prior notice given to him of a cross-claim which was filed at the commencement of the proceedings. There could conceivably be no different outcome on the issue of negligence whether the cross-claim had been filed beforehand or at the later point. The transcript shows that when the solicitor for the defendant sought to file URJ AZRIEL v SFHIR (Powell JA) 5 the document the Magistrate specifically asked the plaintiff whether he was then ready to proceed and Mr Azriel made an affirmative response. I am unpersuaded that a denial of natural justice in the technical or any other sense arises out of the filing of the cross-claim at the commencement of the proceedings. Of course, this rendered the plaintiff vulnerable to not only losing his own claim but having damages awarded against him for the repairs to his opponent's motor vehicle. This is what in the event occurred. Mr Azriel has stated that he is qualified engineer and indeed has multiple other qualifications. As I understand it, he wishes to suggest that his scientific expertise, if applied by the Magistrate, would lead to a conclusion different from that which was reached. The conclusion upon the facts was a matter for the Magistrate and my jurisdiction does not extend to re-hearing. Mr Azriel has complained that sufficient attention was not paid to certain photographs which he tendered. I gather that these photographs were relevant possibly in two ways, first, the photographs might have supported the argument advanced by Mr Azriel that the accident did not happen in the way contended by the defendant and second, they may be used in order to establish that the damage to the defendant's vehicle was not sustained in the particular accident. Potentially there might be some denial of natural justice or jurisdictional defect of a relevant kind if the Magistrate had neglected to deal with some matter altogether but it is plain that what is now contended was the subject of vigorous dispute before the Magistrate and it was specifically adverted to in the reasons for decision. The Magistrate noted the plaintiff's contention that the damage on the defendant's vehicle was 'too high' but he plainly preferred the evidence of the defendant. It is trite law that the preference between witnesses is a matter for the tribunal of first instance and there is certainly no vested jurisdiction in this Court which is limited, as I say, to grounds of lack of jurisdiction or denial of natural justice to substitute any view that I may or may not have for that expressed by the Magistrate. This appeal cannot succeed and accordingly the summons is dismissed." Thereafter on 16th June 1993 the Appellant filed the Notice of Appeal which has led to the matter being listed before the Court today. So far as is relevant, that Notice of Appeal is in the following terms:- "The proceedings appealed from were heard on 21 May, 1993 before Justice Grove and on 24 September 1992 before Magistrate JA Bailey. The appellant appears from the decision of Mr Justice Grove and thereby the decision of Magistrate JA Bailey on the grounds that natural justice has been denied. The appellant relies upon the Affidavit of Eliezer Azriel, affirmed and tendered herewith. Order Sought: That the decision of Mr Justice Grove be overturned and the appeal against Magistrate JA Bailey and Peter Sfhir be re-heard." It is, in my view, clear that the purported appeal is incompetent. In this regard it is sufficient to record, first, that s101(2) of the Supreme Court Act 1970 provides (inter alia) as follows:- "101... (2) An appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal from:- (h) an opinion, decision, direction or determination of the Court in a Division pursuant to s104, s106 or s112 of the Justices Act 1902. 6 UNREPORTED JUDGMENTS and, second that, in this case, leave to appeal, which was not sought until this morning, in my view, should not be given. Even if this were not so, it seems to me that, what I have recorded as to the hearing before Bailey LCM in the Waverley Local Court, would demonstrate that the Appellant elected to proceed with the hearing notwithstanding the late service of the Cross-Claim; that he had the opportunity, of which he took advantage, both to raise his version of the events in question, and to advance the arguments upon which he sought to rely to demonstrate that the First Respondent's vehicle had not suffered any damage as a result of the accident. This being so, it seems to me that the Appellant was not subjected to any denial of natural justice. For these reasons, | would propose that leave to appeal be refused and that the appeal be dismissed with costs. Meagher JA I agree. Sheller JA In this matter when it came before Grove J the appellant relied upon an affidavit in which he complained that a cross-claim had been given him by the respondent just before the Court hearing and that this prevented him from preparing his case. He also complained that the Magistrate neglected to look at his photographs. He attached to his affidavit reports from someone he described as an expert of road accident analysis. In his judgment of 21 May 1993 his Honour dealt with those complaints. He said that there could not conceivably be a different outcome on the issue of negligence whether the cross-claim had been filed beforehand or at the later point the appellant asserted. Grove J went on to say that the transcript showed that when the solicitor for the defendant sought to file the document, the Magistrate specifically asked the appellant whether he was then ready to proceed and the appellant made an affirmative response. His Honour was unpersuaded that there was any denial of natural justice in the technical or any other sense arising out of the filing of the cross-claim at commencement of proceedings. I, likewise, am unpersuaded. His Honour then referred to the complaint that sufficient attention was not paid to photographs which were tendered and for reasons his Honour gave, with which I agree, he concluded that that assertion was simply not made out. Finally, his Honour rightly pointed out that it was not appropriate on an appeal of this sort to be considering further expert evidence. Nothing that has been said in the arguments that have been put today by Mr Crowley has persuaded me that there was any error in his Honour's judgment. Mr Crowley has put all that could be put on behalf of the appellant, Powell JA has dealt with those submissions in his judgment and I agree with what his Honour has said. It seems to me therefore that the appropriate orders are those that are proposed, namely, that the application for leave to appeal be refused and the appeal be dismissed with costs. Meagher JA The order of the Court therefore is that the application for leave be dismissed and the appeal be dismissed with costs. Counsel for the Appellant: M Crawley Counsel for the Respondent: DJ Hooke Solicitors for the Respondent: William B Beilby