New South Wales Supreme Court CITATION : Dimascio v R & A Piccoli [2001] NSWSC 675 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 10280/2001 HEARING DATE(S) : 25 June 2001 JUDGMENT DATE : 10 August 2001 Alfonso Dimascio (Plaintiff) PARTIES : R & A Piccoli t/as R & A Piccoli Bulk Haulage (Defendant) JUDGMENT OF : Master Harrison LOWER COURT Local Court JURISDICTION : LOWER COURT 12154/98 FILE NUMBER(S) : LOWER COURT J Mottley LCM JUDICIAL OFFICER : Mr R Greenaway (Plaintiff) COUNSEL : Mr M Johnston (Defendant) L W Williams & Associates (Plaintiff) SOLICITORS : Marina Gordon Solicitor (Defendant CATCHWORDS : Appeal decision of Local Court Magistrate LEGISLATION CITED : Supreme Court Rules Local Courts (Civil Claims) Act 1970 (NSW) Allen v Kerr & Anor (1995) Aust Torts Reports 81-354 CASES CITED : Azzopardi v Tasman UEB Industries Ltd (11985) 4 NSWLR 139 Devries v Australian National Railways Commission (1993) 177 CLR 472 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 CLR 588 DECISION : (1) The plaintiff is granted an extension of time to appeal up to and including 1 February 2001; (2) The decision of Mottley LCM dated 17 October is affirmed; (3) The appeal is dismissed; (4) The summons is dismissed; (5) The plaintiff is to pay the defendant's costs THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON FRIDAY, 10 AUGUST 2001 10280/2001 - ALFONSO DIMASCIO v R & A PICCOLI t/as R & A PICCOLI BULK HAULAGE JUDGMENT (Appeal decision of Local Court Magistrate) 1 MASTER: By summons filed 1 February 2001 the plaintiff seeks an order firstly, that leave be granted to appeal out of time; secondly, that leave be granted to appeal from a decision of J Mottley LCM on 17 October 2000; and thirdly that the orders of the Magistrate be quashed and in lieu thereof that there be an order of verdict for the plaintiff and the defendant pay the plaintiff's costs and incidental to the hearing as agreed or assessed. The plaintiff relied on two affidavits of John Peter Donnellan sworn 31 January 2001 and 26 March 2001. The list judge referred this matter to me for hearing. Extension of time 2 The plaintiff sought an extension of time pursuant to Part 51B r 5(5) of the Supreme Court Rules (SCR) for leave to appeal the decision which was made on 1 February 2001. The plaintiff's solicitor, John Peter Donnellan in his affidavit sworn 31 January 2001, explains the reason for the delay. On 31 October 2000 the plaintiff gave written instructions to his solicitor to commence proceedings in the Supreme Court. The solicitor researched the Civil Claims Practice book and Ritchie's Supreme Court Practice to determine the correct way to lodge an appeal. He encountered much confusion in how to go about filing an appeal and consulted the Supreme Court directly for procedural advice. As a result a Form 59A was filed. The solicitor was also handed a notice Court of Appeal "Summons for Leave to appeal Requirements". 3 On 29 January 2001 the solicitor spoke with Mr Greenaway of Counsel, who after speaking with a representative of the Supreme Court, indicated that a summons pursuant to Part 51B r 5 SCR should have been filed. As a consequence a summons was prepared for filing in the common law division. The summons was rejected on the basis that the wrong procedure had been followed to lodge an appeal. 4 On 1 February 2001 the summons seeking leave to file an appeal out of time was filed in the common law division. The original appeal to the Court of Appeal was filed and served on the defendant within time. The defendant had knowledge of the plaintiff's intention to appeal. The defendant conceded that it does not suffer prejudice. In these circumstances it is my view that an extension of time to appeal is granted. 5 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 69(2) of the Local Courts (Civil Claims) Act 1970 (NSW) permits a party who is dissatisfied with a judgment as being erroneous in point of law to appeal to this Court. The onus lies on the plaintiff to demonstrate that there has been an error of law. What is a question of law (as opposed to a question of fact) was considered, inter alia, in Allen v Kerr & Anor (1995) Aust Torts Reports 81-354 and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156. Grounds of Appeal 6 The plaintiff submitted that the learned Magistrate failed to give any or any adequate reasons for her decision. During submissions it was elicited that there were two specific areas of contention. The first was that the evidence of Mr Heta was overlooked; and secondly, that there was no evidence to support the claim for demurrage. The plaintiff conceded that loss of income includes demurrage. 7 Hence the plaintiff submitted that the learned Magistrate did not adequately consider the evidence or the nature of the evidence before her as to liability and failed to give due consideration to the nature of the evidence supporting the defendant's claim for demurrage. The Magistrate's reasons for her decision 8 On 12 March 1998 the plaintiff was travelling in the left hand lane and the defendant was in the right hand lane, both vehicles were travelling in the same direction along Stoney Creek Road, Bexley. The defendant attempted to manoeuvre or manoeuvred his vehicle into the plaintiff's lane. The plaintiff observed the manoeuvre, took evasive action and applied his brakes. There were skid marks on the roadway. 9 On the issue of liability the learned Magistrate stated: "Mr Dimascio has manoeuvred or attempted to manoeuvre his vehicle into the plaintiff's lane. It's agreed by Dr Dimascio that at the point that he endeavoured to manoeuvre into that lane he determined that it was unsafe to do so and made a movement back into the lane into which he was he was travelling. Mr Piccoli has that manoeuvre at a greater degree than that of the defendant, but it is certainly agreed that there was a manoeuvre of sorts. Following action was taken by Mr Piccoli upon observing that manoeuvre. He took evasive action, he applied his brakes. And there is no dispute as to that issue particularly as both parties have given evidence as to skid marks on the roadway. The evidence before this Court is that there was nothing impeding the flow of traffic in Mr Piccoli's lane and in fact it was Mr Dimascio's intention to move into that lane. I find, on the evidence before me, that in fact Mr Dimascio did move into the lane travelled by Mr Piccoli, albeit briefly. He then realised the presence of Mr Piccoli's truck and moved back. Mr Piccoli has seen this and endeavoured to avoid the impact by applying his brakes. Both Mr Dimascio and Mr Piccoli have the defendant's vehicle on an angle in the inside lane, the gutter lane. It is inconceivable, given the proximity of the vehicle to the lane line about which we have heard evidence, that Mr Dimascio's vehicle had not crossed the lane line. He has given evidence that at the point of impact his vehicle was only some 4 centimetres from the lane line. Given the size of the vehicle and the description of his movements, I find that his vehicle had in fact crossed into the lane travelled into by Mr Piccoli. Had Mr Dimascio not acted to change lanes, then this collision clearly would not have occurred." 10 The Magistrate reached these conclusions after listening to the evidence of four eyewitnesses to the incident, three of which are relevant, namely Mr Robert Piccoli, the driver of the 12 ton truck in the left hand lane; Mr Alfonso Dimascio, the driver of the ute in the right hand lane; and Mr Shane Heta, an employee of Dr Dimascio and a passenger in his ute at the time of the accident. The Magistrate stated that Mr McCloskey's evidence was not particularly helpful and the appellant did not dispute this finding. 11 Mr Piccoli, the first witness to give evidence, stated that at the time just prior to the accident he was travelling in the left lane at 60 kilometres per hour when he observed a silver Mitsubishi in the right hand lane stationary and about to make a right turn. He also noticed the white Ford, belonging to Mr Dimascio, was in the right lane, and had not always been there, in other words at some stage it had overtaken him (t 17.14). Mr Piccoli alleged that the white Ford swerved into his lane so as to not hit the stationary silver Mitsubishi (t 7), at which point he was forced to brake and this braking was so sudden that his brakes locked up and he hit the white Ford (t 19.52). 12 Mr Dimascio claimed that upon seeing the stationary Mitsubishi in his lane he commenced to execute a change to the left lane. He alleged that he indicated, checked the lane using his mirrors and then began to veer left. However at the time Mr Dimascio observed the truck and ceased the manoeuvre and straightened his vehicle. Mr Dimascio claimed that while he veered left at no time did he ever cross the lane markers (t 42.10). When cross examined Mr Dimascio admitted that he had come very close to the edge of his lane and was in all probability only a few centimetres from the edge (t 45.34) but he repeatedly denied entering the lane. He claimed to have felt the collision impact as no more than a light bump (t 42.30). He also alleges that one of the causes of the accident was that Mr Piccoli must have lost control of his vehicle (t 53.3). 13 Mr Heta was a passenger in Mr Dimascio's vehicle. The evidence of Mr Heta was corroborative of Mr Dimascio as he too stated that Mr Dimascio's vehicle, while as close to the lane edge as a few centimetres, never left its lane (t 62.48). While the Magistrate did not specifically mention Mr Heta in her judgment, it is clear that she took into account his version of events. Although his version was corroborative of Mr Dimascio's version he too put Mr Dimascio's vehicle only a few centimetres from the lane marking. The Magistrate took into account that there were skid marks, the description of the movement of Mr Dimascio's vehicle and the size of his vehicle. After taking those factors into account, she preferred Mr Piccolo's version of events. 14 It was open to the Magistrate to come to the decision that she did. On the evidence presented to the court it is reasonable that the Magistrate determined Mr Dimascio left his lane, however as she stated, albeit briefly, in order to avoid the stationary car in his lane. Such a movement caused Mr Piccoli to take evasive action and this action led to the collision. It cannot be said that the Magistrate acted on evidence inconsistent with facts incontrovertibly established by the evidence - see Devries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588. Therefore the appeal against the Magistrate's decision in regard to this matter fails. Demurrage 15 In relation to demurrage on appeal there was no challenge to finding that the truck took 19 days to repair and the costs of the repairs. Before the Magistrate were two documents (Ex 2 & 4). In a fax from Mr Piccoli to his solicitor which relevantly states: "We received a total of $15,404.17 for 16 days work (invoices attached) Average daily payment received $962.76 per day. Deduction of $151.00 per day for fuel, oil, maintenance and tolls should be allowed for. Leaving a total loss per day @ $811.76 Total number of days lost 19 days." 16 and a letter from ARC Plant Hire dated 18 May 1998 relevantly stated: 'We wish to advise by way of this letter that R & A Piccoli Bulk Haulage were to be contracted to work for A R C Plant Hire from 12th March 1998 to 25th April 1998. R & A Piccoli Bulk Haulage were unable to present for the abovementioned contract due to a motor vehicle accident, which occurred on 12th March 1998 while travelling to the work site. R & A Piccoli Bulk Haulage resumed work on the contract on 3rd April 1998 missing 19 days of work. The rate of pay for this contract is the contract rate set by the Transport Workers Union - Tip Truck Owners Section of N.S.W." 17 The learned Magistrate stated: "Mr Piccoli has given evidence that he was in a contract with ARC Plant Hire, there is no challenge as to that evidence. The only evidence I have as to an amount of demurrage is from Mr Piccoli. There is not evidence being led from Mr Dimascio as to any other sums which this Court could consider and in the circumstances I find those sums as set out by Mr Piccoli to be reasonable." 18 Given that the Magistrate had no evidence from or on behalf of Mr Dimascio before her at the trial, it is not unreasonable that she accepted the evidence of Mr Piccoli. The plaintiff submitted that "were to be contracted to work" indicated an intention to contract. If the whole of the letter is read it is clear that ARC Plant Hire is saying that R & A Piccoli Baulk Haulage missed 19 days work. It is my view that the appeal on this matter fails. The decision of learned Magistrate Mottley dated 17 October 2000 is affirmed. The appeal is dismissed. The summons is dismissed. 19 Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendant's costs. 20 The orders I make are: (1) The plaintiff is granted an extension of time to appeal up to and including 1 February 2001. (2) The decision of Mottley LCM dated 17 October 2000 is affirmed. (3) The appeal is dismissed. (4) The summons is dismissed. (5) The plaintiff is to pay the defendant's costs. ********** Last Modified: 08/13/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.