Supreme Court New South Wales Medium Neutral Citation: Madden's Stable Bedding Pty Ltd v Reid [2014] NSWSC 554 Hearing dates: 28 February 2014 Decision date: 09 May 2014 Before: Button J Decision: (1) The appeal is dismissed. (2) The appellant, Madden's Stable Bedding Pty Ltd, is to pay the costs of the respondent, Ms Christine Maree Reid. Catchwords: APPEAL - civil - appeal from decision of Local Court pursuant to s 39 of the Local Court Act 2007 (NSW) - whether Magistrate erred in law by giving inadequate reasons Legislation Cited: Local Court Act 2007 (NSW), ss 39, 40 Cases Cited: Attorney-General (NSW) v X [2000] NSWCA 199; 49 NSWLR 653 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Housing Commissioner of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 Mifsud v Campbell (1991) 21 NSWLR 725 Pollard v RRR Corporation Pty Ltd [2009] NSWSC 110 SAS Trustee Corporation v Pearce [2009] NSWCA 302 Soulemeizis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 Category: Principal judgment Parties: Madden's Stable Bedding Pty Ltd (Appellant) Christine Maree Reid (Respondent) Representation: Counsel: Shaw McDonald Lawyers (Appellant) Rostran Carlyle Solicitors (Respondent) Solicitors: G Carolan (Appellant) N Allan (Respondent) File Number(s): 2013/223751 Judgment 1This is an appeal pursuant to s 39, and in the alternative s 40, of the Local Court Act 2007 (NSW), arising from a decision of his Honour Magistrate Andrews in the Local Court on 26 June 2013. That decision concerned a traffic accident between a truck and trailer owned by Madden's Stable Bedding Pty Limited (the appellant in these proceedings, and the plaintiff at first instance, to whom I will refer in these reasons as "Madden's") and driven by one of its employees, Mr Wray (the cross-defendant at first instance), and a car owned and driven by Ms Christine Maree Reid (the respondent in these proceedings, and the defendant at first instance). 2His Honour dismissed Madden's claim, and found for Ms Reid on her cross-claim. Madden's have appealed the decision on the grounds that his Honour failed to provide adequate reasons for dismissing it's claim. Summary of facts 3In truth the factual dispute at the hearing was of very short compass. There was no dispute that the truck driven by Mr Wray and Ms Reid's car were each travelling south along Anzac Parade, Randwick at about 11 AM on 13 June 2012. The truck was in the middle lane, and Ms Reid's car was in the kerbside lane. The truck commenced to turn into a rather narrow gate to the left of the roadway leading into Randwick Racecourse. A collision occurred between the front of Ms Reid's car and the left hand side of the truck. 4Stated with great succinctness, the issue for determination by his Honour was who was to blame for the accident. Did Mr Wray fail to check sufficiently whether there were any cars in the left hand lane, including that of Ms Reid's, before commencing to turn? Or did Ms Reid's car drive into the truck as it was slowly making a left hand turn, Mr Wray having made all the necessary checks? 5It is convenient to set out the portion of his Honour's judgment that deals with his findings of fact and determination: I make the following findings. [Ms Reid] was travelling south along Anzac Parade, Randwick, at about 11am on 13 June 2012 in the bus lane from at least the traffic lights at the intersection of Doncaster Avenue and Anzac Parade. [Ms Reid] was legally able to do so. She was travelling at a speed of approximately 40 to 45 kilometres per hour. [Ms Reid] intended to turn left at the lights at High Street and proceed to the Prince of Wales Hospital. She began to decelerate as she approached High Street. [Mr Wray] was driving [Madden's] Sterling rigid truck and trailer in the centre lane of the three lanes of Anzac Parade travelling in the same direction as [Ms Reid]. The vehicles travelled side by side for some distance. Mr Wray indicated what was his intention to turn left into gate 15 to Randwick Racecourse from the centre lane, a manoeuvre that necessitated [Mr Wray] crossing over the bus lane and the footpath. He began to decelerate as he approached the entrance to gate 15. [Mr Wray] put on his left indicator some short distance before commencing to do so. Whilst he was displaying a "Do not overtake" turning sign both on the rear of the truck and on the trailer it was not necessarily apparent that the truck was intending to enter the gateway, as opposed to indicating an intention to merge left into the bus lane with the intention of turning left at the next available intersection. In such circumstances [Mr Wray] needed to be especially vigilant. He failed to be so vigilant. [Ms Reid] was aware of the left indicator of [Mr Wray's] vehicle being activated and assumed the driver wanted to merge left before turning left at High Street, which was still some distance ahead. [Mr Wray] failed to adequately check his mirrors to ensure that there were no vehicles in the bus lane before he commenced to turn and in doing so he collided with [Ms Reid's] vehicle. After the collision [Mr Wray] said to [Ms Reid] that she should not have been travelling in the bus lane. I find that he did not expect [Ms Reid] or, indeed, any other vehicle perhaps other than a bus to be travelling in the bus [lane] and that he failed to see that vehicle when he would have done so if he had been keeping a proper lookout. If [Mr Wray] had kept a proper lookout and checked the bus lane for traffic he would have seen [Ms Reid's] vehicle and the collision would not have occurred. I am satisfied that [Ms Reid] was not travelling at an excessive speed in attempting to get past [Mr Wray's] vehicle after seeing the blinker indicating what she thought was an intention to merge to the left. I find that [Mr Wray] was negligent and his negligence was the cause of the collision, the subject of these proceedings. [Emphasis added] 6Before setting out the findings extracted, Magistrate Andrews outlined the evidence of Mr Wray and Ms Reid, including their evidence on the question of speed, in some detail. Statutory right to appeal 7Counsel for Ms Reid submitted at the hearing, albeit with less force than in his written submissions, that the statutory right to appeal on a "question of law" or a "question of mixed law and fact" under s 39 or s 40 of the Local Court Act is not engaged. Founded on the authority of Basten JA's judgment in SAS Trustee Corporation v Pearce [2009] NSWCA 302 at [118]-[121] (with whom Beazley JA, as her Honour then was, agreed), he submitted that the statutory right of appeal is only engaged when a question arising in the course of the decision of a trial judge or magistrate is answered incorrectly. 8He submitted that it would be absurd to suggest that his Honour asked himself a question about whether his reasons were adequate. Accordingly, notwithstanding that the phrase "question of law" is wider than the phrase "error of law" (see Attorney-General (NSW) v X [2000] NSWCA 199; 49 NSWLR 653 at 677) he submitted that while failure to give adequate reasons may constitute an "error of law", it cannot constitute a "question of law" as required by the legislation. 9I consider that the decision of the High Court of Australia in Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 severely circumscribes the significance of the semantic differences between "question of law", "error of law", and other similar expressions. To my mind, the sections under consideration here draw a distinction between appeals founded on asserted errors of law and of fact at first instance. The appeal-creating provisions do not call for a consideration of refined questions of concepts above and beyond that bifurcation. Accordingly, I am satisfied that the failure to give adequate reasons could engage the statutory right of appeal pursuant to s 39, or alternatively s 40, of the Local Court Act. Adequacy of reasons 10Madden's submitted that his Honour erred in failing to provide adequate reasons for dismissing the plaintiff's claim "in circumstances where: (a)He failed to refer to relevant evidence of the plaintiff; (b)He failed to adequately set out material findings of fact and the conclusions or ultimate findings of fact reached; (c)He failed to provide reasons for making the relevant findings of fact and conclusions and reasons in applying the law to the facts found." 11At the hearing, counsel for Madden's agreed that the nub of the appeal was point (c), and that points (a) and (b) were only faintly pressed. 12He submitted that his Honour did not make findings of fact about the relative speeds of Mr Wray's truck and Ms Reid's car at the time of the collision. Alternatively, he submitted that Magistrate Andrews failed to explain the basis of his findings of fact with regard to this critical issue, and in particular failed to explain why he accepted the evidence of Ms Reid over that of Mr Wray. He submitted that his Honour's treatment of the evidence suggested that he had overlooked Mr Wray's evidence, or failed to give consideration to it. Determination 13As for the first two complaints of Madden's, I consider that they cannot succeed. His Honour amply referred to the evidence in the case for the plaintiff in his review of the evidence before coming to a determination. Furthermore, it can be seen from the extracted portion of the judgment that his Honour made a number of clear and explicit findings of fact. 14Turning to the ground of appeal that was pressed with force, it is well established that judicial officers have a duty to give adequate reasons for their decisions, largely as result of the need to facilitate appellate review: Housing Commissioner of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 at 381; Soulemeizis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 257-8, 269; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 441. 15It is generally accepted that the failure to give adequate reasons constitutes an error of law: Soulemeizis v Dudley (Holdings) Pty Limited at 259; Beale v Government Insurance Office of NSW at 444. 16The judgment in Beale v Government Insurance Office of NSW sets out three fundamental elements of the statement of reasons (at 443). First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to. Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. The obvious extension of the principle in North Sydney Council is that, where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. ... Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. 17In determining whether the reasons given for a decision were adequate, the statement of reasons must be looked at as a whole: Beale v Government Insurance Office of NSW at 444. 18The scope of the duty to provide adequate reasons is incapable of precise demarcation, and will depend on the circumstances of the individual case: Housing Commissioner of NSW v Tatmar Pastoral Co Pty Ltd at 381; Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Beale v Government Insurance Office of NSW at 442. For instance, it is not necessary for a judge to make explicit his or her findings in respect of every disputed piece of evidence, particularly where there is no right of appeal against findings of fact: Soulemeizis v Dudley (Holdings) Pty at 271, 281. 19To my mind, the question of the speeds of the two vehicles before and at the time of impact, while relevant, was by no means central. Whilst it is true that there was quite a bit of cross-examination on the topic, the real issue in the hearing was not whether the car driven by Ms Reid or the truck driven by Mr Wray was travelling fast or slowly. As I have sought to explain, the real question was whether Mr Wray was negligent by not keeping a proper lookout as he turned, or whether Ms Reid was negligent by not keeping a proper lookout as she proceeded along Anzac Parade and allegedly tried to overtake a turning vehicle. 20In short, whilst the question of the speeds of the vehicle was relevant to the fact-finding exercise and the determination of legal liability, I do not consider that it was so central to the resolution of the matter as to require detailed analysis in the judgment. 21In contrast, the question of what was said between Mr Wray and Ms Reid immediately after the accident played an important role in the determination of his Honour. That is because of the two sentences in the extracted portion of the judgment that I have emphasised. 22In order to understand the importance of that topic, it is necessary briefly to review the written and oral evidence about it. In the affidavit of Michael Matthew Wray sworn 2 April 2013 it is said: 18. I now know that the driver of the Honda was Christine Maree Reid, the Defendant in these proceedings. I observed that the Defendant had a male passenger and two children in the vehicle. I was concerned for the driver and her passengers. Although it did not seem that anybody had sustained injuries, I immediately asked if she and all her passengers were okay. During our conversation, words to the following effect were said: Me: "Are you all OK?" Defendant: "Yes we are fine." 23In the affidavit of Christine Maree Reid sworn 8 April 2013 it is said: 18. I recall that we spoke very little of the accident, however he did state to me words to the effect of "You shouldn't have been in the bus lane. I didn't expect you to be there." I told him that the bus lane served as a regular lane at the time. 24During Mr Wray's cross-examination, the following exchanges took place: Q. It is correct to say, isn't it, that in the aftermath you said to Ms Reid that you didn't expect to see somebody in the bus lane? A. No, I didn't say that. HIS HONOUR: Sorry, what was that last thing you put to the witness? ALLAN Q. You didn't expect to see somebody in the bus lane, that's what you said? A. I wouldn't have said that, I didn't say that. Q. In fact your words were to Ms Reid, you shouldn't have been in the bus lane, I didn't expect you to be there? A. No. Q. What you were referring to was a passenger car being in that left hand lane? A. No, there's always passenger cars in that left lane. [Emphasis added] [TT 22.32 - 22.49] 25During Ms Reid's cross-examination, the following exchanges took place: Q. Now, when you spoke to Mr Wray after the accident, he didn't say to you, "you shouldn't have been in the bus lane, I didn't expect you to be there" did he? A. He did, he approached my car, opened the back passenger door, asked me if he could get the baby out, because my son was screaming, I said, "yes", he got the baby out, I met him at the back of the car, another person that was passing by helped me get the pram out of the car and that was and then he passed me my son and as he was getting the son, my son out of the car, he opened the door and said, you know, "Can I get the baby out, I'm so sorry" he was sort of babbling, you know, "I didn't expect you to be there" he was sort of babbling. Q. He was babbling? A. He was just, you know I think we were all panicked and he was just talking, you know when you're in those situations and something has happened and he was just talking and talking and talking. Q. Is it possible it was someone else? A. No, no, I recognise his face and it definitely was, because after that I got my son and he went and stood under the trees and then about ten minutes later we realised no-one had called the police, so he did that. [TT 34.16 - 34.36] 26The review of the evidence of Mr Wray set out in his Honour's reasons before the determinative extract relevantly provided: [Mr Wray] did not recall saying the words attributed to him in paragraph 18 of the statement of the defendant, namely that, "You shouldn't have been in the bus lane. I didn't expect you to be there." 27Later in the review of the evidence and before the determinative extract, while outlining the evidence of Ms Reid, his Honour stated: Mr Wray said to [Ms Reid] that she should not have been in the bus lane and that he did not expect her to be there. 28In short, it can be seen that there was a deal of written and oral evidence about the question. I infer that the parties were not unaware of its significance in demonstrating a contemporaneous surprise on the part of Mr Wray that the vehicle of the defendant had been in that location. 29I consider that his Honour's finding of fact that after the collision Mr Wray said to Ms Reid that she should not have been travelling in the bus lane plays a significant role in explaining the determination that surrounds it. 30As his Honour identified, the fact that Mr Wray made that comment is highly supportive of the fact that Mr Wray was not expecting that there would be any cars in the bus lane, and supported the finding that he did not keep a proper lookout. 31I consider that the detailed review of the evidence, combined with the detailed findings of fact, and in particular the findings of fact regarding Mr Wray's comment to Ms Reid, shows that the trial judge did undertake a thoughtful analysis of the evidence of Mr Wray, did make findings of fact as necessary, and did provide adequate reasons for those findings. 32That is particularly so given the low level of legal and factual complexity involved in this case, and the fact that it was heard in the Local Court. The purpose of providing reasons for a decision must be weighed against the burden that it imposes on the judicial system: Soulemeizis v Dudley (Holdings) Pty Limited at 259; Beale v Government Insurance Office of NSW at 444. Accordingly, the context in which a decision is made will shape what constitutes adequate reasons: see for example Pollard v RRR Corporation Pty Ltd [2009] NSWSC 110 at [56]. The volume of matters, pace of proceedings, and level of seriousness of matters heard in the Local Court must be kept firmly in mind in determining whether a ground such as this has been established. Orders 33I make the following orders: (1)The appeal is dismissed. (2)The appellant, Madden's Stable Bedding Pty Ltd, is to pay the costs of the respondent, Ms Christine Maree Reid. ********** 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. Decision last updated: 09 May 2014