Johnson v Commercial Union Assurance Co of Australia Ltd
[2002] QDC 364
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- Johnson v Commercial Union Assurance Co of Australia Ltd[2002] QDC 364
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Johnson v Commercial Union Assurance Co of Australia Ltd[2002] QDC 364
Johnson v Commercial Union Assurance Co of Australia Ltd[2002] QDC 364
DISTRICT COURT | GLADSTONE REGISTRY No. D33 of 2002 |
CIVIL JURISDICTION
JUDGE HOWELL
IVAN DAVID JOHNSON | Appellant |
and
COMMERCIAL UNION ASSURANCE COMPANY OF AUSTRALIA LIMITED CAN 004 478 371 | Respondent |
TOOWOOMBA
..DATE 24/12/2002
JUDGMENT
HIS HONOUR: I shall deliver my decision ex-tempore. This is appeal D33 of 2002 in the Gladstone District Court. The appeal was filed at such a time that it was not possible to give a date for such appeal in Gladstone before the end of this year. The Judge presiding at the first sittings at Gladstone in 2003 has a long part-heard case and it was not, in the circumstances, possible to give a date - more particularly a fixed date - for this appeal in the first sittings. I am listed to commence the second sittings at Gladstone in 2003, commencing on the 24th of February 2003. Accordingly, such date was offered to the parties. This Court gives priority to appeals. It seemed to me that the 24th of February 2003 was a long way off in the circumstances for the appeal. I instructed my associate to ask both parties if they would consent to the appeal being done in Toowoomba on the 23rd or 24th of December 2002. Both parties consented to the appeal being heard in the Toowoomba District Court today, before me, instead of before me in the Gladstone District Court on the 24th of February next year.
I shall refer to Ivan Johnson as “the appellant” throughout. Ivan Johnson was, at all material times, the owner and driver of an International truck, registered number 098-CJJ. I shall refer to Commercial Union Assurance Company of Australia Limited as “the respondent”. On the 30th of January 1997 the respondent was the third party insurer of the appellant's said motor vehicle. I shall refer to Ian Allen, the owner of the damaged vehicle, the Holden panel van, registered number 803-DMV as “Allen”. I shall refer to the Uniform Civil Procedure Rules 1999 as “the Rules”. I shall refer to the Motor Accident Insurance Act as “the Act”. I shall refer to the Queensland Criminal Code as “the Code”. I shall refer to the Evidence Act as “the Evidence Act”.
A chronology of the matter is that a collision occurred in Gladstone on the 30th of January 1997 between the appellant's vehicle being driven by the appellant, and Allen's motor vehicle. On the 28th of April 1997 the appellant pleaded “guilty” in the Gladstone Magistrate's Court to wilful and unlawful damage to Allen's vehicle arising out of such-incident. On or about the 22nd of June 2000 in a personal injury action by Allen arising out of the said incident, the respondent settled such claim in the sum of $20,000 plus costs. Consequent on the payment of such sum, the respondent filed a plaint in the Brisbane Magistrate's Court on the 18th of January 2002, seeking recovery from its insured third-party driver, the appellant, the sum paid out as a result of the settlement with Allen, namely $20,000 plus costs thereon, amounting in total to $29,454.02.
The incident occurred in Gladstone, and the appellant lived in Gladstone. An unnecessary delay was caused to the expeditious procedure of the trial in the matter by virtue of the respondent's proceeding in the wrong jurisdiction. The appellant gave conditional notice to defend on the 22nd of February 2002. On the 28th of March 2002 there was a consent order in the Brisbane Magistrate's Court, transferring the action to the Gladstone Magistrate's Court. The appellant filed a notice of intention to defend, and its defence, on the 14th of May 2002. On the 18th of July 2002, the respondent served a notice to admit facts, which will be referred to in more detail later, such being faxed to the appellant's solicitor on the 18th of July 2002. Such sought an admission inter alia that the appellant “deliberately caused Allen to suffer personal injury”. The due date to serve a notice to dispute facts mentioned therein was the 1st of August 2002. In the absence of such notice disputing facts, the facts alleged in the said notice to admit facts would be deemed to be admitted. The respondent was notified of the notice to dispute facts on the 6th of August 2002; that is five days later.
In addition, there is the facsimile of the appellant's solicitor of the 8th of August 2002, and the respondent's reply thereon of the 16th of August 2002. On the 2nd of September 2002 the appellant filed an application to withdraw the admissions taken to have been made under Rule 189(2) of the Rules, with the application that the appellant be entitled to dispute such facts. Such material included a somewhat detailed affidavit of the appellant's solicitor. Such affidavit was detailed, relevant and meaningful. There is also a meaningful and relevant affidavit of the appellant filed in support of such application.
On the 23rd of September 2002, the respondent made an application for summary judgment. On the 2nd of October 2002, the learned Magistrate had written submissions from both parties, heard further oral submissions, and thereupon reserved his decision. Such was unsurprising and understandable, as there were at least two points of very real concern that required an amount of research to ascertain exactly what the law was and the consequences thereof, and then to evaluate the submissions of both parties in the light of what he ascertained the law to be. Somewhat surprisingly, one might say, in the circumstances, his Worship delivered his just under one-and-a-half page decision the same day. The appellant filed his notice of appeal to the District Court in the Gladstone District Court on the 17th of October 2002.
To go through the matters chronologically, the appellant pleaded “guilty” in the Gladstone Magistrate's Court to a charge of wilful and unlawful damage to Allen's motor vehicle. Wilful and unlawful damage, section 469 of the Code, occurs within that section of offences in Chapters 45 and 46 of the Code, namely sections 458 to 479, dealing with injury to property.
It is not necessary to go any further back in relation to the history of the offence of wilful and unlawful damage to property than Burnell's case 1966 QdR 348. Burnell's case was concerned with Section 461 Arson, but the elements of each of Section 461 (arson) and 469 (wilful and unlawful damage) have, in effect, important similar component parts. Arson is to wilfully and unlawfully set fire to a place. In Burnell, supra, Gibbs J, as he then was, stated:
“Under Section 461 it is not enough that the accused did the act which resulted in setting fire to the building, foreseeing that his act might have that effect, but recklessly taking the risk. It is necessary that the accused did the act which resulted in setting fire to the building with the intention of bringing about that result”.
Such ruling was the cause of very much concern, and ultimately a special Court of Criminal Appeal of five Judges was convened on an Attorney's reference in Lockwood, CA 38/80. Lockwood actually concerned a wilful and unlawful damage, but the Court was particularly concerned in relation to the use of the words “wilful and unlawful” as the words appeared in Chapters 45 and 46 of the Code. Of the five members of the Court, Lucas ACJ wrote a judgment with which Matthews J and W B Campbell J, as he then was, agreed. Douglas J made some separate comments and WB Campbell J agreed with those comments also. DM Campbell J made some further observations. Lucas ACJ, after citing the statement of principle by Gibbs J, as he then was, in Burnell, stated:
“It was argued for the Attorney-General in this case that the meaning to be attributed to the word ‘wilfully’ in Section 469 is that which was specifically rejected by Gibbs J in relation to Section 461” (in the passage which I have quoted above).
His Honour accepted the said argument of the Attorney-General, and the Court thereby permitted a second wing of inculpation for wilful and unlawful damage, namely extending liability to included “reckless” acts in addition to “intentional” acts.
The Burnell principle was that a person must do the act resulting in the fire/damage with the intention of bringing about that result. The principle enunciated by the Court in Lockwood was that the second wing inculpated an accused if such person “did the act which resulted in setting fire to the building, foreseeing that his act might have that effect, but recklessly taking the risk”. In relation to the second wing, the Court was saying you do not have to intend to set fire to that particular building or to cause damage to that particular article, but if you foresee that your act might have that effect, but recklessly take the risk, you are inculpated. Such second wing is usually referred to as “wilful damage by recklessness”, and the first wing, “wilful damage by intention”. In Lockwood, D M Campbell J stated:
“I am nevertheless of the opinion that the meaning of the word is wide enough to include a brand of recklessness, namely acting with indifference to the likelihood of a foreseen result occurring.”
Subsequent statements thereon include those in Webb CA 233/89, wherein Macrossan CJ, with whom Lee J agreed, stated, inter alia:
“‘Wilfully’ should be understood as meaning to refer to either an intended consequence or a consequence which is in mind as likely, but is recklessly ignored... the meaning given to wilfully is more extensive than would be conveyed by the word ‘intentionally’ which might be thought, in some context, to mean ‘of one's own free will’; this meaning to be given to ‘wilfully’ should also embrace a result not positively desired, but foreseen as a likely consequence of the relevant act.”
Such is another clear statement that “wilful” in s.469 covers a wider field than “intentional”, namely it also covers “recklessness”. In “T”, CA 306/95, Fitzgerald P stated:
“The act is properly described as ‘reckless’ in circumstances in which recklessness may be such as to attract criminal responsibility for a serious offence”.
Before I move on to the appellant's affidavit in relation to the circumstances of the incident, the Evidence Act permits the respondent to tender a certificate of conviction in relation to the appellant's plea to the said wilful and unlawful damage to property arising out of the incident, and may make use of such in any civil proceeding. Section 79(2) of the Evidence Act states:
“In any civil proceeding, the fact that a person has been convicted by a Court of an offence is admissible in evidence for the purpose of proving where to do so is relevant to any issue in the proceeding that the person committed that offence.”
Section 79(3) states:
“In any civil proceeding in which, by virtue of this Section, a person is proved to have been convicted by a Court of an offence, the person shall, unless the contrary is proved, be taken to have committed the act and to have possessed the state of mind (if any) which, at law, constitute that offence”.
The appellant, on the material, would seem to have been involved in to what is referred to in the vernacular as a “road rage incident”. Most road rage incidents usually, in my experience, fall into one of two categories. Firstly, that the offending driver has a mental problem, a very serious problem with anger management control or something similar, or secondly, there has been antecedent behaviour by another which can go some way to explaining what ultimately occurred.
The respondent was driving on a major arterial road, a dual carriageway or four-lane highway in Gladstone, namely Glenlyon Road. He said that Allen behaved in an offensive and worrying manner whilst driving his said Holden motor vehicle. He said that Allen gestured in an offensive manner, that is, “He gave me what is commonly known as the finger and then pulled out directly in front of me”. If the appellant's evidence were accepted, Allen had committed an offence against - to use the short title - the Vagrants, Gaming and Other Offences Act. He then referred to driving of Allen, which would, if accepted, amount to breaches of some concern of the Traffic Act. He said that Allen pulled directly in front of him, causing the appellant to brake suddenly to avoid a collision, and that Allen then commenced to stop and start, by necessary inference, deliberately and unnecessarily, thereby creating situations of some possible danger.
The appellant is of the view that Allen was driving intentionally to create the said problems for the appellant. The appellant says, in effect, that as a result of Allen's said behaviour, he then overtook Allen's vehicle, pulled up; Allen pulled up behind him; that he got out of his vehicle and said to Allen, “Driving like that is very dangerous and you can cause injuries to yourself and others”. He said that Allen was screaming and shouting obscenities. It appears on an occasion at which Allen was back in his vehicle, and the appellant was back in his vehicle, the appellant said, “I got back in my truck and with the intention of scaring him, put the vehicle into reverse gear and backed up. I reversed only momentarily”.
His plea of “guilty” means that an impact occurred which caused the damage to which he pleaded “guilty”. So what he is saying is that he deliberately reversed his vehicle and a consequence was that a collision occurred. He does not say, “I deliberately reversed my vehicle into that vehicle”, but that is not relevant - that is only for completeness.
On the application for summary judgment by the respondent, the appellant's affidavit seemingly goes as far, and if anything, possibly a little further, than the Certificate of Conviction with its relevance, using the provisions of Section 79 of the Evidence Act, would have. The question then is: what is the appropriate law and test upon an application by the respondent for summary judgment? There were two bases open to the respondent for the application. Firstly, pursuant to rule 292(2) of the Rules which states that:
“The Court may give judgment for the plaintiff for all or part of the relief claimed in the application if the Court is satisfied (b) the defendant has no defence other than in relation to the amount of the claim”; and “(c) there is no need for a trial of the proceeding”.
Secondly, with the notice to admit facts not being the subject of a notice to contest, and those facts being deemed to be admitted, the respondent may proceed under Rule 190(1):
“If an admission is made by a party...the Court may, on the application of another party, make an order to which the party applying is entitled on the admission”.
The original claim, just for completeness, by the respondent against the applicant, proceeds pursuant to Section 58 of the Act, and such states that “The insurer may recover as a debt from the insured person, any cost reasonably incurred by the insurer on a claim for the personal injury; subsection (2) if (a) personal injury arises out of a motor vehicle accident and (b) the insured person intended to injure the claimant or some other person”.
On the application for summary judgment in National Australia Bank Limited v Hart and Others, QSC 51/02, Mullins J adopted the test as enunciated by Wilson J in McPhee v Zarb, QSC 4/02, namely:
“They are not simply a reformulation of the test which applied to a plaintiff's application for summary judgment under the former Supreme Court Rules, namely whether the defendant had raised a triable issue. The new tests (which apply to both a plaintiff's application and a defendant's application) call for a more robust approach by the Court consistent with the overriding purpose of the Rules which is, ‘to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense’. The Court should give summary judgment if the prospects of defending the claim are so slim as to be fanciful”.
The learned Magistrate, in his short judgment, made these comments in effect on the significance of the conviction for wilful and unlawful damage and the appellant's affidavit herein-before referred to. His Worship said:
“The defendant has pleaded ‘guilty’ to a charge of wilfully and unlawfully damaging the vehicle in which Allen was travelling. This is a very damaging fact alone to satisfy the defendant's intention under Section 58 of the Motor Insurance Act of 1994. It is a likely consequence that injury would result and the defendant be held liable for those injuries”.
As a result of making that finding, such would seem arguably to explain his minimal attempt at dealing with another point when he moved on:
“I am not satisfied the defendant should be able to resile from his admissions. There appears to be very little point or need for this matter to proceed to trial.”
So the clear starting point is exactly what does the appellant's affidavit admit to?; how far does the evidentiary effect of the certificate of conviction go? I have been referring to Chapters 45 and 46 of the Criminal Statute dealing with property offences. I have not referred to the general provisions in relation to intention. I have not referred to Section 4 of the Criminal Statute in relation to “attempt” in which “intention” is a specific element of the offence. Lockwood's case enunciates the tests to apply on s.469 on obvious factual situations such as I throw a rock intending to break A's windscreen and instead hit a nearby valuable statue or jug, or whatever. In another situation I miss both the windscreen and the jug, and hit a person standing nearby. If I hit the windscreen at which I am aiming, within the Burnell principle, or within the first wing of the Lockwood test, I am guilty of intentionally causing that damage - of causing the damage that I intended to cause. If, when throwing at the windscreen, although I am intending to hit the windscreen, I foresee that I might damage something else thereby, but recklessly throw the rock and recklessly damage that second item, I am guilty within the second wing, the recklessness wing, of the Lockwood test. If the rock hits and injures another person, of course I have not intended to injure that other person, although my action was reckless.
Here, leaving aside whatever consideration there may be of any alleged antisocial behaviour by Allen prior to the incident, what the appellant is saying, and has said throughout, and has been the matter that has clearly been put in issue throughout, is that “I intended to scare him by reversing my truck in the direction of his truck” (not that it is relevant to this particular point, he would seem to say, “I didn't intend to hit that truck”). He is thereby clearly guilty of wilful and unlawful damage on the basis of recklessness, the second wing.
He is, of course, also liable for negligence in the Civil Court for any property damage that occurred, and obviously for any causally connected personal injury that was suffered by someone who was in the vehicle, as Allen on one view says he was (or if he was out of the vehicle as he told a doctor). So one then gets to the central question: how can the respondent prove the different matter that the appellant intended to injure Allen or another person. As has been referred to, there would be the plea of “guilty”, the Certificate of Conviction, the affidavit of the respondent; perhaps Allen or any other eyewitness or any other expert witness or any other relevant witness; the arbiter of fact would decide the appellant's intention on all his words and actions and all the circumstances as the arbiter of fact finds them to be.
As far as the application for summary judgment is concerned, what first has to be decided: are the prospects of defending the claim so slim as to be fanciful? In my view, on this particular point, far from the appellant's chances of defending the claim being slim or fanciful, his chances are realistic and arguably more. It would be unsurprising if an arbiter of fact, acting on his evidence, found for him in a Civil trial. If the arbiter of fact accepted that evidence, it would mean that the appellant was guilty of recklessness in causing that property damage, such that he would have no defence under the second wing of the Lockwood principle.
He would clearly be civilly negligent for property damage that resulted and for causally connected personal injury that was in fact suffered to the person. (More precisely, his third party insurer would be prima facie liable for the latter). But in relation to the functional question, did he intend to injure Allen or any other person, the respondent may well have difficulties of proof thereon. An arbiter of fact may be prepared to draw the inference in the light of all the evidence in all the circumstances and all the words and actions of the appellant, to say that he did intend to injure a person. In certain minds that may arguably be drawing somewhat of a long bow, but that would be for any ultimate arbiter of fact in a trial. So the appellant's defence is clearly not slim or fanciful. I am of the view that the learned Magistrate erred in law in relation to matters including the significance or true meaning of a plea of “guilty” under the second wing of Lockwood, namely recklessness; that he erred in deciding the consequences thereon and that he erred in law in saying that such plea of “guilty” is “a very damaging fact alone to satisfy the defendant's intention under Section 58”.
The learned Magistrate, in my view, erred in law and applied the wrong test when he said, “It is a very likely consequence that injury would result and the defendant be held liable for those injuries”. What needed to be concluded was that the appellant intended to injure Allen or another person. It is not necessary to refer to the semantic point in relation to the actual extent of the admissions of fact sought. One can only wonder why the wording was not “Did he reverse his vehicle intending to cause Allen to suffer injury?”, as distinct from the way it is worded, one might say, as a deliberate act with the causal connection that injury, in fact, resulted; it is not necessary to deal with that semantic point.
The learned Magistrate, as I said, in my view fell into error, and pursuant to Rule 292, the application for summary judgment should not have been allowed under that part. One then has to consider the application under Rule 190; that is tied up with the notice to dispute facts asked to be admitted, not having been done within 14 days, but being five day's late. Rule 189(1) says - and I will tailor it to this matter:
- (1)“The respondent may, by notice served on the appellant, ask the appellant to admit, for the proceeding only, the facts specified in the notice;
- (2)if the appellant does not, within 14 days, serve a notice on the respondent disputing the fact, the appellant is taken to admit, for the proceeding only, the fact specified in the notice.
- (3)The appellant may, with the Court's leave, withdraw an admission taken to have been made by the party under sub-rule (2).”
If the respondent were not permitted to withdraw the admission, the Court would then have to consider whether summary judgment may be entered under rule 190.
I have a number of authorities which enunciate the principles. There were a number of statements of principle by each member of the Court in Rigato Farms Pty Ltd v Ridolfi, CA 292/2000. Counsel for the respondent before me was counsel for the appellant/defendant therein. Before referring to the - principles, Rigato's case provides a very interesting contrast on the questions of merit, expeditiousness, promptness, efficiency, prejudice, material relied on and relevancy to the matter before me. The plaintiff therein on the 3rd of August 1999 served on the then solicitors for the defendant a notice to admit facts pursuant to rule 189. The plaintiff in giving such notice also said to the defendant, “We respectfully refer you to rule 189 of the rules (particularly sub-rule (2)) as to the consequence of your client's failure to service a notice disputing the facts specified in the notice to admit facts, and should we not hear from you within 14 days from the service of both notices we shall assume that your client has admitted those facts in the notice.” The defendant did not respond to the notice as required. The plaintiff on the 20th of August 1999, that is three days outside the 14 days, again drew to the attention of the defendant's then solicitors the consequence: “We refer to our letter dated the 3rd of August which enclosed by way of service notice to admit facts...”
The defendant's then solicitors still did not respond. Ultimately the trial was listed on the running list for the sittings commencing the 29th of November 1999. On the 29th of November 1999 the defendant's new solicitors foreshadowed an application under rule 189(3) for leave of the Court to withdraw the admissions. Not unimportantly, the plaintiff's solicitors stated that they had “placed significant reliance upon the admissions made by the defendant” in preparing their client's matter for trial. On the day the trial actually commenced, the 6th of December 1999, the defendant made application to withdraw the admissions. The Judge hearing the matter said inter alia that the Judge had to weigh the competing disadvantage, particularly in the context of the philosophy of the rules. He refused leave’ to withdraw the admissions. The judgment was a discretionary matter and, of course, the oft enunciated principles of the High Court in House 55 CLR 499 set out the well-established limitations on an appellate Court's capacity to review such a judgment. The Court has to consider whether the Court at first instance acted on any wrong principle, took account of irrelevant or extraneous matters, failed to take account of some material consideration or proceeded upon a misapprehension of the facts.
There was a further feature to distinguish the situation confronting the Court in Rigato and the one here before me. The defence there in the material placed before the Court was such that de Jersey CJ said, “There is no sworn evidence of those claims. There is indeed no sworn evidence of any explanation for the solicitor's failure to respond to the notice.” One might have thought the defendant making such application in that circumstance would have to be a supreme optimist indeed to anticipate a favourable result. De Jersey CJ states:
“The potentially important role of procedure as reflected in rule 5(1), especially ‘the purpose of these rules' is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum expense. It also overlooks injustice to the respondent where the appellant is allowed to withdraw admissions on which for months the respondent to the knowledge of the appellant relied in preparing his case. Asked to exercise a discretion under rule 189(3), a Court would ordinarily expect sworn verification of the circumstances justifying a grant of leave. Those circumstances may include why no response to the notice was made as required, the response the party would belatedly seek to make and confirmation that the response would accord with evidence available to be led at a trial. Here none of the matters was so verified. Issues of prejudice may also fall for consideration upon the hearing of such an application...”
“There is no principle that admissions made or deemed to be made may always be withdrawn “for the asking” subject to the pain of costs. The discretion is broad and unfettered as exemplified in Equus Corp v Orazio QSC 354/99. The charter of procedure contained in the rules cannot be approached on the basis that if important provisions are ignored, even inadvertently (and that is not established here) the Court may be expected to act indulgently and rectify the omission...parties do not have an inalienable right to a hearing of all issues on the merits”.
McPherson JA stated inter alia adopting the principle that “admissions are required for the purpose of ensuring that the Court is called upon to determine only questions bona fide in dispute”. In Equus Corp Mackenzie J substituted “genuinely” for “bona fide”. His Honour said:
“Some proper basis must be laid for the assertion which would ordinarily include an explanation of how the earlier admission came to be made and why it should now be permitted to be withdrawn. That is not shown by saying simply that there has been a change of solicitors or that it is possible to see that before the admission was made the issue of liability was an open question. Here the defendant has not condescended to swear to the circumstances in which the admission came to be made or show that it occurred by inadvertence, mistake or in some other way that might now justify its withdrawal”.
Williams J, as he then was, said:
“Essentially it is no more than a recognition that Courts will so far as possible ensure that a party has a fair trial but, for example, where the detriment or prejudice is self-induced the party may not be entitled to relief.”
Later:
“Certainly an admission flowing from the operation of rule 189 should not be withdrawn merely for the asking. In my view, a clear explanation on oath should be given as to how and why the admission came to be made and then the detailed particulars given of the issue or issues which the party would raise at trial if the admission was withdrawn...that ought not to be an exhaustive statement of what is required. Each case should be considered in the light of its own facts and the circumstances may well require even more extensive material in order to obtain leave to withdraw the admission.”
In this case one conclusion would seem clear, unarguable and inescapable and that is that the appellant's solicitor, except for this one delay of five days, has acted expeditiously, promptly, efficiently and relevantly. Throughout, the appellant and his solicitor have concentrated on the relevant issue in the trial. It is not that there has been voluminous material that is padding and full of irrelevancies. It has concentrated on what one might be said the one central issue throughout. If one looks at how the matter has been delayed, the delay caused by the respondent commencing proceedings in clearly the wrong jurisdiction, was arguably greater than the delay which concerns this appeal. I am aware that actions often start in another jurisdiction but simple steps can be undertaken before a matter is commenced in the wrong jurisdiction, for example, a simple consent or do you object.
In relation to the material on the central issue referring to prospects of a claim being much more than slim or fanciful, the appropriate material is before the Court and one might say promptly, expeditiously and relevantly. So one then looks to see why in the circumstances that notice was five days late. One might have thought this would have required a careful examination by the learned Magistrate with appropriate reasons for his findings thereon. It could not be suggested for one moment that the five days' delay in any way caused any prejudice to the respondent. Clearly it did not. A compelling and acceptable explanation has been given for the delay of five days.
The explanation in the affidavit of the appellant's solicitor says that at the material time his wife was seriously ill in Melbourne. She was there seeking treatment. He unfortunately and understandably had to absent himself from his practice from the 17th of July 2002 to the 28th of July 2002. He states that he had the only other solicitor in the firm, an associate solicitor “who was on maternity leave at the time and she would come in every alternate morning to have a general supervision and facilitation of the conduct of the practice as the limited availability allowed”, and he kept in regular contact with the office. When he returned to his practice on the 29th of July 2002 he, unsurprisingly, was confronted, in his words, “with the expected backlog of matters requiring immediate attention”.
In relation to this matter, the next day he dispatched an urgent brief to Rockhampton counsel and matters were attended to and, as I said, in the circumstances the notice was not received by the respondent until five days after the 1st of August 2002.
The learned Magistrate with that amount and quality of material dealt with the matter in totality to this extent: “The reasons for not responding to the notice to admit facts by a very short period of time were given by the affidavit of the appellant's solicitor. I do not intend to make any further comment in this regard.” As the learned Magistrate, in my view, had fallen into error in his interpretation and application of the law in relation to the plea of guilty to the second wing of the Lockwood principle on wilful and unlawful damage and in relation to the significance and use of the certificate of conviction as per the Evidence Act and what use may be made of what was stated in the appellant's affidavit, by acting on such error, his Worship would arguably have been of the view that it was not necessary to decide this further question.
Before me the respondent's counsel arguably seemingly conceded there was certain merit in the appellant's application thereunder. If he had opposed it strenuously, I would clearly have come to a contrary conclusion. One might say that on the merits if ever there were a situation in which the deemed admissions should be permitted to be withdrawn it is this and, as I said, it is in very real and striking contrast to the situation in Rigato Farms.
In my view, it would not be open to the learned Magistrate to enter judgment against the appellant under rule 190 either.
If I may perorate:
In considering whether I should give summary judgment to the respondent pursuant to rule 292, what evidence was there in relation to the question of the appellant's intention to injure a person. Looking at the evidence at the best for the respondent in relation to the person, Allen, who apparently says that he was seated in the vehicle at the time of impact, the learned Magistrate had the combination of the plea of guilty to wilful and unlawful damage, the use that could be made of a certificate of conviction thereon pursuant to s.79 of the Evidence Act, with the appellant's affidavit being the most useful of the three to the respondent remembering that there was no affidavit for the application from Allen. The most that such would establish would be the following:
That the appellant would be guilty of the offence of wilful and unlawful damage to the vehicle by virtue of his reckless act even though as he said he had no intention to damage the motor vehicle but more importantly that he had no intention to injure Allen or any other person. By virtue of the second wing of the Lockwood test he was guilty of wilful damage by such recklessness, that causing damage by recklessness within s.469 of the Code is clearly different from an intent to injure a person although it may provide part of the evidence in an attempt to establish that he did intend to so injure a person, that such act would make him liable in the Civil Court for his negligence in causing damage to property and further making his third party insurer prima facie liable by his said negligence in the Civil Court for any personal injuries that Allen may have suffered on the establishing of an appropriate causal connection, but clearly if the learned Magistrate had interpreted and applied the law properly he could not have found without further that the respondent was entitled to summary judgment pursuant to rule 292. Applying the proper test he could not have found that the said defence of the appellant to such claim was slim or fanciful - far from it. Not only would the appellant have a defence that should be appropriately litigated, but further, the respondent may well have difficulties in the evidence that he does in fact present at a trial in establishing, on the balance of probabilities, that the appellant did intend to cause personal injury to a person. It would be unsurprising indeed on a subsequent trial if the respondent failed to discharge his onus of satisfying a Court on the balance of probabilities with appropriate evidence that the appellant did so intend to injure a person. In relation to the appellant's application to withdraw facts deemed to be admitted, if the learned Magistrate had applied the proper test he could not reasonably have come to any conclusion other than the appellant should be permitted to withdraw such deemed admissions. The learned magistrate, in effect, did not really consider the question at all, or he did not consider it fully and properly. But this, of course, was contributed to perhaps not insubstantially by the conclusion he had drawn on the respondent's application for summary judgment, such conclusion in my view which was clearly unfounded on a proper understanding and application of the law thereon.
On the appellant's successful application to have the deemed admissions withdrawn there was no basis to enter summary judgment for the respondent pursuant to rule 190. I repeat, if ever there were a strong case for allowing an application to withdraw deemed admissions, this was it. In my view, if ever there were an appropriate matter for a trial to be fully and properly litigated, this is it. I repeat that the successful party on the application for summary judgment, namely the respondent, will arguably and unsurprisingly have very real problems in proving his case on appropriate evidence on the balance of probabilities at the ultimate trial.
It is to be remembered that if the appellant's evidence is not accepted at trial, or the appellant does not give evidence at the trial, that does not mean necessarily that the respondent will have proved its case on appropriate evidence on the balance of probabilities that the appellant intended to injure a person. On the evidence that the arbiter of fact ultimately accepts and acts on, there has to be evidence from which the arbiter of fact can safely draw the inference that he had such intention. It would be unsurprising if an arbiter of fact found that somewhat difficult - even ratherly difficult.
An important question the learned Magistrate had to decide is how far does the material available to the respondent on the hearing of the application go towards establishing the crucial and somewhat difficult to prove element of an intent to injure a person. The material in combination he would use was the appellant's plea of guilty to wilful and unlawful damage, the use that may be made of such plea of guilty pursuant to s.79 of the Evidence Act and the appellant's own affidavit. The appellant's own affidavit would seem to cover the matters available for use by the respondent in the plea of guilty and the use that s.79 of the Evidence Act permits of the Certificate of Conviction thereon. It is to be remembered that s.469 relates to wilful and unlawful damage to property. The offence is not worded “intentional damage to property”. The word “wilful” is wider and includes the Burnell test of intending to cause the specific damage that in fact resulted. The term “wilful and unlawful” includes the wider second category according to the second wing of the Lockwood test, namely that of recklessness. It was therefore crucial to the Magistrate's consideration of the relevant law thereon to decide how far the plea of guilty to such recklessness assists the respondent on the application for summary judgment. The appellant's said recklessness means he has no defence to the charge of wilful and unlawful damage pursuant to the second wing of the Lockwood test. It also means that in a Civil Court on a claim for negligence relating to property damage he would have no defence. It would also mean that if it could be established that Allen, who was said to be in the vehicle, in fact suffered any injury and there was a causal connection between the negligent driving of the appellant and the injury allegedly so caused to Allen in the vehicle that the appellant (more precisely, his third-party insurer, the respondent) would have no defence in relation to liability for such personal injury. It is not necessary to consider a possible question that may be the subject of cross-examination at a subsequent trial that Allen may well have made a previous inconsistent statement to a doctor stating that he was out of the vehicle at the time of the impact, whereas apparently in his original statement to the police he said he was in the vehicle at the time. Section 58 of the Act is careful to restrict the availability of recovery to the respondent from the insured driver to a limited number of cases and one would imagine in many such cases proof thereof would be difficult indeed. To state the obvious there would be many a case in which a person recklessly caused damage or even intentionally caused damage to property but had no intention to injure a person even though injury to a person may have in fact resulted. A proper consideration of the material available before the learned Magistrate clearly showed that the appellant pleaded guilty to wilful damage by recklessness and (even leaving aside the question of any use the appellant may make of the provisions of s.79(3)) that would be the limited use that could be made of the evidentiary provision of the Evidence Act namely s.79 in relation to the said Certificate of Conviction. The appellant's affidavit before the Magistrate in fact admits those matters.
It is for the respondent to produce any further evidence, if any, that may be available in relation to the appellant's intention. There may be none available; there may be some evidence which may not be acceptable or compelling; it may well be that the evidence for the respondent in its current state, is as good as it will get for the respondent. The learned Magistrate with a proper appreciation of the law in relation to such plea of guilty to wilful and unlawful damage by recklessness could not have come to the conclusion so briefly stated in his reasons to which I have already referred. I have repeated them because it clearly, in my view, illustrates how the said misinterpretation of the relevant law led him into error in making a vital finding “however taking a robust approach in this matter I can only conclude that inevitably the appellant must be held responsible for the damages suffered by Allen and paid out on settlement by the respondent. The defendant has pleaded guilty to a charge of wilfully and unlawfully damaging the vehicle in which Allen was travelling. This is a very damaging fact alone to satisfy the defendant's intention under s.58 of the Motor Insurance Act of 1994. It is a very likely consequence that injury would result and the defendant be held liable for those injuries...there appears to be very little point or need for this matter to proceed to trial”. As I have made clear, not only was the said finding not open, but far from the respondent having an overwhelming and/or unanswerable case, a not insubstantially different prospect of success awaits the respondent. The respondent will, in my view, have no little difficulty in establishing a case against the respondent of intending to injure a person.
The ultimate arbiter of fact may well wish to consider in which road-rage category the appellant falls, after looking at the appellant's age, mental health, traffic history, criminal history, seeming balance and responsibility. Is the appellant an immature, irresponsible, perhaps callow youth with a bad traffic history for similar incidents and short fuse anger incidents, with a clear indication of mental illness? Or is the appellant a mature person, a balanced and responsible good citizen with no traffic history, no criminal history, who, out of character, reacted to antecedent behaviour by Allen which was deliberate, provocative and unlawful? Using the same criteria, what are Allen's antecedents - how credible is he? The material shows Allen, in alleging he suffered personal injuries out of this incident, told a doctor he was out of his car, but told the police he was in the car.
Accordingly, it is ordered:
I allow the appeal.
I set aside the orders of the Magistrate.
The respondent's application for summary judgment is dismissed.
The appellant's application to withdraw the deemed admissions and to contest and place in issue all matters therein is granted.
...
HIS HONOUR: I further order that the respondent pay the appellant's costs of and incidental to the appeal; such costs to be assessed.
In relation to the application and hearing before the learned Magistrate, such costs shall be costs in the cause.
The matter is adjourned for mention in the Gladstone Magistrates Court on 29 January 2003.
The ultimate trial is to be heard by a Magistrate other than the Magistrate appealed from.
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