Reported Decision : 10 DCLR (NSW) 110 New South Wales District Court CITATION: Jolly v Houston [2009] NSWDC 352 HEARING DATE(S): 13 August 2009 EX TEMPORE JUDGMENT DATE : 18 August 2009 JURISDICTION: District Court - Civil JUDGMENT OF: Sidis DCJ 1. The appeal is upheld. 2. The decision of the Magistrate is set aside. 3. On the claim brought by Mr Houston, there will be verdict in judgment in his favour in the sum of $1,130 comprising $1,007.98 in damages and $123 for filing and service fees. DECISION: 4. Mr Jolly is to pay Mr Houston's costs of that action at the scale fixed according to Local Court Regulations and as assessed by the Registrar. 5. Interest is to be paid on the judgment sum in the amount calculated by the Registrar. 6. The cross-claim brought by Mr Jolly is dismissed. 7. Each party is to pay their own costs of the cross-claim. 8. Mr Houston is to pay the costs of the appeal and is to receive a certificate under the Suitors' Fund Act if applicable in respect of those costs. LEGISLATION CITED: Local Court Act 2007 Suitors Fund Act 1951 CASES CITED: Alesh v Maunce 203 CLR 172 Podrebersek v Australian Iron and Steel Pty Limited 59 ALJR 492 PARTIES: Dann Jolly (Appellant) Adam Houston (Respondent) FILE NUMBER(S): 79/09 SOLICITORS: Armstrongs Solicitors (For the Appellant) Mclachlan Chilton Lawyers (For the Respondent) JUDGMENT 1 The parties in these proceedings were involved in a motor vehicle accident on 12 November 2007 at the intersection of Turton and Griffiths Roads, Newcastle. This is a large intersection carrying significant volumes of traffic north-south on Turton Road and east-west on Griffiths Road. Adam Houston was riding a motorcycle east on Griffiths Road. Dann Jolly was riding his bicycle north on Turton Road. 2 Mr Houston brought proceedings in the Local Court to recover the cost of repairing his motorcycle. He claimed the sum of $3,139.94. Mr Jolly cross claimed to recover the cost of repairs to his bicycle and damage to his helmet and clothing. He claimed the sum of $290. Each claimed in addition costs and interest. 3 The proceedings came before Magistrate Holdsworth in the small claims division of the Local Court at Newcastle on 24 February 2009. The proceedings were called on at close to 4pm on that date; it was hot and humid, there was no air-conditioning in the court and I am reliably informed that the temperature in the court room was in excess of forty degrees. The Magistrate found for Mr Houston in the sum of $4,109.34 together with interest to be calculated. She dismissed the cross-claim. 4 Mr Jolly appealed to the District Court against this judgment, relying on s 39 of the Local Court Act 2007. This provision allows a right of appeal on the grounds of lack of jurisdiction or denial of procedural fairness. Mr Jolly claimed that the Magistrate failed to afford him procedural fairness when she declined to consider authority quoted to her by his solicitor in the course of submissions. To succeed in his appeal he must establish that procedural fairness was denied and that if the requirement for procedural fairness had been met, the outcome of the proceedings would have been different. 5 On the question of the denial of procedural fairness, the exchange of which Mr Jolly complained, occurred after his solicitor referred the Magistrate to an extract from an authority that appeared in Lesley and Britts Motor Vehicle Law as follows: A driver has not an absolute right to enter a road junction when and merely because traffic lights have turned in his favour. He is bound to ensure that it is safe for him to do so and once he has entered the intersection, he has no right to proceed further without taking the utmost care to avoid vehicles and persons already in the intersection. Her Honour responded as follows, quoting from the transcript at page 5: HER HONOUR: It's not fair of you to quote cases to me sir when you can't provide them. CHURCHES: Your Honour, I'm sorry they're not New South Wales cases and I've not been able to get - they're quoted in the book; one's a - I can give you the references for them. HER HONOUR: I'm not going to look them up at 4 o'clock this afternoon. CHURCHES: No your Honour and I'm more than happy to try and provide them if I can at some stage, but I've not been able to get them. One's a South Australian case your Honour and the other one is a Weekly Law Report case. I can give you the case and I can give you the reference. HER HONOUR: No. Well I'm not looking it up. I've been sitting here all day waiting for this letter (matter) to come on. Better enquiries should have been made. If you're expecting me to take note of case law rather than simply quoting it to me from the Bar table without providing anything other than a reference. CHURCHES: Well your Honour, in my respectful submission, that is the law and indeed that's what the Australian Road Rules say your Honour, that once you're in the intersection, you're entitled to continue. HER HONOUR: So long as it's safe to do so. 6 It was argued for Mr Houston that there was no denial of procedural fairness because Mr Jolly's solicitor in subsequent argument repeated the principle that he sought to place before the court by citing authority. However, it was apparent from the terms of her decision that the Magistrate, as she stated, did not take note of the cases or the legal principle to be drawn from them. Her Honour acknowledged the road rule that permits the driver of a vehicle once in an intersection to continue to drive through the intersection after the traffic light had changed from green. She emphasised that the right to continue operated only if the path of continued travel was safe. She decided that in this case it was not safe for Mr Jolly to continue to ride his bicycle across the lanes of traffic that were heading east and she held Mr Jolly entirely responsible. 7 The Magistrate made no reference in her reasons to the principle quoted by Mr Jolly's solicitor binding Mr Houston to ensure that it was safe to proceed into an intersection and to take utmost care to avoid vehicles or persons already in the intersection. 8 In electing to proceed without reference to authority to confirm the principle of law put to her, the Magistrate breached a fundamental principle of justice stated as follows by Kirby J in Alesh v Maunce 203 CLR 172 at 35 in the following terms: It is a principle of justice that a decision maker, at least one exercising public power, must ordinarily afford a person whose interests maybe adversely affected by a decision, an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as 'an indispensable requirement of justice'. It is a rule of natural justice or 'procedural fairness'. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed it long preceded the common law and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden. 9 I thus find that the Magistrate having elected not to take the authority to which she was referred into account, failed to apply that authority to the facts of this case. In so doing she denied Mr Jolly procedural fairness. 10 On the issue of whether the outcome would have been different, it appeared to me that it was very clear that had the Magistrate considered the relevant authority, she would inevitably have reached the conclusion that Mr Houston did not take the utmost care to avoid vehicles or persons in the intersection at the time the traffic lights facing him turned to green. Mr Houston admitted that his view of the intersection was obstructed by traffic in the lanes to his right so that he did not see Mr Jolly until he reached his lane and was unable to avoid a collision. 11 The Magistrate appeared to be influenced by the safe passage through the intersection of a motorcycle that was travelling ahead of that driven by Mr Houston. There was no evidence from that driver of what steps he or she took to observe or take care to avoid Mr Jolly before proceeding through the intersection. It was apparent from the fact that Mr Jolly was able to cycle in front of them, that the motor vehicles in the lanes to the right of the lane in which Mr Houston travelled did not move forward, or moved forward very slowly, notwithstanding that they were facing a green traffic light. This factor might well have alerted Mr Houston to the need to proceed with caution. 12 In my view therefore the appeal must succeed. 13 I was invited by the parties to consider the facts and to decide the matter afresh having regard to the requirement of the proceedings in the small claims division of the Local Court should be determined with minimum cost and formality. In so doing I noted the following: Neither Mr Jolly nor Mr Houston could see the other. Mr Jolly cycled more quickly in order to complete the crossing when the lights changed against him. Mr Houston proceeded slowly, but entered the intersection with no vision of what was approaching to his right. 14 Mr Jolly was already in the intersection in a dedicated pedestrian/cycle lane. There was no evidence to contradict his statement that when he commenced his crossing the traffic light was green in his favour. Precisely when it changed to orange was unknown. Mr Jolly suggested that it was about the time he reached the traffic island before attempting to cross the east bound lanes. He decided to cycle faster at that point in anticipation of reaching the other side of Griffiths Road before the light changed to red. His other option was to wait on the small centre island with his bicycle with the substantial amount of traffic moving around him. Neither option was perfect. In my view it was not unreasonable for him to take the decision to proceed, provided he did so with caution. He saw one motorcycle travel through the intersection from the furthest traffic lane. Having seen this vehicle proceed, in my view he should have slowed rather than speeding up to ensure that nothing was following it. Thus I concluded that Mr Jolly was negligent in the way in which he crossed the east bound lanes of the intersection. 15 Mr Houston's evidence was that the light facing him was red as he approached it, but it changed to green before he reached the boundary of the intersection. Another motorcycle went through the lights ahead of him. The traffic in the lanes to his right was not moving or it was just starting to move slowly. He could not see to the right because of this traffic. In my view he should have been alerted by the slow movement of these vehicles to the possibility that something was happening in the intersection. He should not have proceeded into the intersection without a clear view of the situation to his right. I have reached the conclusion that in doing so he was negligent. 16 This results in a requirement that I apportion liability and I have done so in accordance with the principles set out in Podrebersek v Australian Iron and Steel Pty Limited 59 ALJR 492 at [10], where the High Court stated: The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison of culpability, ie of the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case. For example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance. 17 In this case Mr Jolly was lawfully in the intersection. The law permitted him to proceed, albeit with caution. The law required that Mr Houston not enter the intersection unless it was safe. This, in my view, led to a finding that the culpability of Mr Houston was greater than that of Mr Jolly. Further Mr Houston, because of the nature of his motor vehicle, had the greater capacity to cause damage. I have therefore apportioned his responsibility for the accident at 70% and that of Mr Jolly at 30%. 18 The result is that Mr Houston will recover 30% of his damages. As far as the damages of Mr Jolly were concerned, I could find no evidence to support his claim as submitted before the Magistrate. 19 The orders that I make are as follows: 1. The appeal is upheld. 2. The decision of the Magistrate is set aside. 3. On the claim brought by Mr Houston, there will be verdict in judgment in his favour in the sum of $1,130 comprising $1,007.98 in damages and $123 for filing and service fees. 4. Mr Jolly is to pay Mr Houston's costs of that action at the scale fixed according to Local Court Regulations and as assessed by the Registrar. 5. Interest is to be paid on the judgment sum in the amount calculated by the Registrar. 6. The cross-claim brought by Mr Jolly is dismissed. 7. Each party is to pay their own costs of the cross-claim. 8. Mr Houston is to pay the costs of the appeal and is to receive a certificate under the Suitors' Fund Act if applicable in respect of those costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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