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- Unreported Judgment
Thompson v Ruska QDC 137
DISTRICT COURT OF QUEENSLAND
Thompson v Ruska  QDC 137
District Court at Brisbane
24 May 2017
16 May 2017
Application for leave to Appeal refused
The applicant is ordered to pay the respondents costs to be assessed unless otherwise agreed
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – whether leave to appeal should be granted
Magistrates Court Act 1921 (Qld), s 45
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
American Express International Inc v Hewitt  2 Qd R 352
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588
Mr M Walker for the applicant/appellant
Mr P Van Grinsven for the respondent
IM Lawyers for the applicant/appellant
ULR Lawyers for the respondent
- The applicant/appellant seeks leave to appeal from the judgment of Magistrate Shearer dated 3 May 2016 whereupon he entered judgment for $4,125.42 against the applicant/appellant together with costs on an indemnity basis fixed at $6,406.45 and interest. The appellant lodged an appeal against that decision on 31 May 2016. Her grounds were:
“1. The magistrate failed to find fact and failed to apply facts in a recent decision.
2. The magistrate failed to give correct weight to the appellant’s evidence and preferred the inconsistent and erroneous statements made by the respondent.
3. The magistrate failed to give substantive reasons for his decision.
4. The magistrate appeared to be snoozing during the respondent’s testimony and then asked contradictory questions and made confusing statements.”
- No leave was sought at that stage to appeal.
- The judgment entered against the applicant/appellant is for a sum of less than $25,000 and as such it is classified pursuant to the Queensland Civil and Administrative Tribunal Act 2009 (Qld) as being a minor civil dispute. As such leave to appeal is required under s 45 of the Magistrates Court Act 1921 (Qld) which provides, relevantly, under subsection 2:
“(2) Provided that—
- (a)where in any of the cases above referred to in subsection (1) the amount is not more than the minor civil dispute limit, an appeal shall lie by leave of the District Court or a District Court judge, who shall not grant such leave to appeal unless the court or judge is satisfied that some important principle of law or justice is involved;”
- At the hearing of this matter the applicant/appellant, through her counsel, submitted that leave should be granted to appeal and counsel for the respondent did not take issue with the fact that there had not been a formal application for leave to appeal made prior to the hearing. Accordingly, it was agreed that the application for leave to appeal would be heard at the same time as the appeal and a decision would be made in relation to the former before the merits of the appeal were considered by the court. The applicant/appellant abandoned the fourth ground of appeal at the hearing of this matter.
Leave to Appeal
- The grant of leave to appeal depends on whether there is some important principle of law or justice involved in the appeal. It has been held in American Express International Inc v Hewitt  2 Qd R 352 that this requires the question involved going beyond the consequence of the particular decision upon the parties to the action in the matter. At p 353, line 40 of that case, Davies JA stated:
“…it is not speaking merely of the injustice which a party will generally suffer when a decision is made against that party which appears to be wrong. It is speaking of a question which goes beyond the correctness or otherwise of the decision…Merely demonstrating that a decision is arguably or even probably wrong does not establish that an important question of justice is involved.”
- In this case the appellant has submitted that the important principles of law or justice raised in this case are:
- (a)The limits to the discretion to make findings of reliability of witnesses;
- (b)The power of magistrates to take into account their own observations in making findings of fact; and
- (c)The requirement of the Magistrates Court to give adequate reasons.
Reliability of witnesses
- The magistrate in his reasons held that the evidence of the defendant was exaggerated, overly dramatic, argumentative and, generally speaking, unreliable. He decided that, on the whole, he would reject her evidence in its entirety. The applicant/appellant maintains that this was not open to the magistrate and that despite the fact that the magistrate had the opportunity to observe the applicant whilst giving evidence, his observations cannot outweigh the objective evidence.
- It is generally accepted that the court that hears a matter is in the best position to assess the credibility of witnesses because they have the opportunity to observe the witnesses’ demeanour. However that advantage is not without limits and it was submitted that the discretion has been exercised incorrectly because independent evidence discredited the plaintiff and supported the defendant’s case. In that regard, the applicant/appellant relied on State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588 at 620, where Kirby noted that there were instances in which a credibility finding would be far from conclusive to the proper outcome of the entire trial and referred as one of the examples to cases where:
“It may be possible to show, by reference to incontrovertible facts or uncontested testimony, that although the trial judge reached conclusions which were adverse to the credibility of an important, even crucial, witness, such conclusions are plainly wrong. For example, they may be based upon expressed or implied assumptions about the evidence (e.g. that witnesses are in conflict) which careful analysis of the record demonstrates to be incorrect.”
- The comment by the magistrate that the defendant’s demeanour, and thereby her evidence, was overly dramatic, argumentative and exaggerated cannot be looked at in isolation. The magistrate also found throughout his reasons that he rejected the defendant’s evidence that there was no or very little signage of the bus lanes; that the points of impact between the two cars and the relative damages was supportive of the plaintiff’s case rather than the defendant’s; that the photos (Exhibit 4) objectively supported the evidence of the plaintiff, namely that the defendant’s vehicle veered across in front of the left-hand front of his vehicle; that the fact that she did not notice that she was in a bus lane adversely affected his assessment of her reliability. He also rejected the evidence that hers was the only car in the bus lane and her evidence that the reason she did not hand over her license to the plaintiff was because she was scared of him.
- Her demeanour whilst giving evidence and her comments whilst giving evidence left open a conclusion that she was exaggerating and being overly dramatic. At one point the magistrate had to ask her to keep her voice down because apparently she was speaking in a raised voice towards the barrister cross-examining her. Her comments that she felt in fear of her life, that she thought her handbag might be stolen by the plaintiff and that she thought her leg had been nearly cut off (T1-40, L 5) contrasted with the objective and relatively minor damage to her vehicle (Exhibit 4) and supported a contention that her evidence was exaggerated. When asked about her failure to hand over her identifying particulars in her license she commented as follows at (T1-36, line 10):
QUESTION: “And the reason you did not give him the license is you looked at it and you realised your license had expired.”
ANSWER: “No, I was totally terrified based on how abusive he had already been at that point that he might come to my house and abuse me or do other things to me and I was totally fearful for my life.
…I’ve only ever seen road rage on TV until that point but I saw that people get killed from this sort of stuff and I was terrified he was going to kill me.”
- The magistrate in his reasons commented that he did not accept her evidence that she thought the plaintiff would steal her bag and that she was fearful for her life and that is why she didn’t hand over her driver’s licence. He found it was more probable than not in the circumstances that she would not hand over her driver’s license because at the time she was unlicensed and didn’t want that situation to be revealed. This was a reasonable assumption to make in my view and certainly open on the evidence. Throughout his judgment the magistrate gave a number of reasons why he rejected the evidence of the defendant and that, of course, included her demeanour on the day of the accident and her demeanour on the day of the trial.
- Additionally, the magistrate was entitled to take into account her evidence that she was very confused about the signage on the road, she was unfamiliar with the intersection and that she was focused ahead on Swan Street because she wanted to look at a building that was on sale on that street. She commented that afterwards she was in total terror and shock and sat there frozen, doing triage on her leg to see if her leg was still there. She was asked (at T1-31):
QUESTION: “And were you aware that cars were in the right-hand lane?”
ANSWER: “I had some awareness of cars. I don’t have specific awareness of how many cars, colour of cars, number of cars and I didn’t have any awareness of his car.”
QUESTION: “Right, and that was because you were solely focused on that for sale sign in Swan Street?”
- The applicant/appellant in her submissions, focused on the fact that the respondent was accepted by the magistrate despite admitted inconsistencies in his evidence and independent proof that there had been changes or a change to the signage of the bus lane. This independent evidence, it is submitted so, discredits the respondent such that he should not have been believed despite other evidence which supported his case. The applicant/appellant submits that there are three significant errors in relation to the assessment of reliability made by the magistrate in relation to the respondent. Firstly, the magistrate’s comment that he “accept[s] the plaintiff’s evidence that there’s been no material change in the signs since the last two and a half odd years” is said to be inconsistent with the photo in Exhibit 4 which shows a blue and white sign which is present in Exhibit 2 and above the busway lane was not there at the time of the accident. This is said to be a significant error of fact and inconsistent with the evidence of the plaintiff where he said, “some of the signage might have changed. I don’t know but the lanes are all exactly the same, the bus lane is the same, the right turn lane is the same, the number of lanes are all the same.” The submission turns on whether the addition of a blue and white sign above the lane indicating that it was a bus lane is a material change in the signage. It seems to me, with the fact that there has been an additional sign added after the accident which does constitute a change to the signage does not mean that the lane was not clearly marked. Whilst this is a poorly worded statement, it does not defeat the plaintiff’s claim.
- Secondly, the applicant/appellant says that the respondent gave evidence that there were two or three other cars ahead of him in the bus lane at the time he pulled over and he saw them merge into the traffic lane in front of him as he moved off. He said he did not see the respondent’s car until just before she was coming from the bus lane into his lane. The respondent accepted in cross-examination that he’d made an earlier inconsistent statement to the effect that there was only one car in the bus lane when he filled out his insurance claim. The magistrate did not mention this in his reasons, however accepted the respondent’s evidence that there were two or three cars in that bus lane that he saw merge into the traffic lane in front of him. The applicant/appellant seeks to elevate this inconsistency into an error that is so telling that all of his evidence should be rejected. The earlier inconsistent statements is as follows (at T1-15):
“I was driving my Mazda BT57 on Gympie Road, Kedron. I drove into the car lane to the left of the tunnel entrance. To my left was a lane marked “buses only”. To the left of the bus lane was several lanes heading towards the Kedron Park Hotel. I stopped in the line of traffic in the car lane. I was the third car back from a red traffic light. I saw a car in the bus lane to my left. This was not the car that ran into me.”
- This clearly is an inconsistency. The plaintiff accepted it to be so but it is noted that he was clear in the earlier statement that the car he noticed in the bus lane was separate to the one that ran into him. The important fact is that it was not the car driven by the defendant and in my view the fact that some three years later he remembers it as being two or three cars rather than one is not such that would destroy the credibility of the plaintiff. Further, this appears to be the only real inconsistency that the applicant/appellant could point to in his evidence.
- Thirdly, the applicant/appellant relies on the rejection of her excuse about handing over her license after the accident as something that the magistrate took into account in finding liability. It is said by the applicant/appellant that that factor is irrelevant to a finding of liability. I do not accept that this is a finding that was made by the learned magistrate. In any event, it is accepted that the evidence does not support liability, however, it is relevant to credibility and reliability because of the applicant/appellant’s rather outlandish suggestion that she was in fear of her life. The magistrate was entitled to reject that evidence, given that she was an unlicensed driver at the time and renewed her license before she went to the police station. This tends to support the suggestion that the real reason for her not handing over the license was because her license had expired. This was a significant matter of credit in my view.
- Finally as an example of the magistrate taking into account erroneous factors, the applicant/appellant points to the comment by the magistrate that he is “familiar with the intersection and knew the streets perfectly well so that the physical evidence would not be of any great assistance to him” as indicative of error in that the magistrate did not invite submissions on his observations. It is submitted that this statement shows that he took into account evidence which was not led at trial and upon which counsel did not have the opportunity to comment. It is submitted that this knowledge may have been used to conclude that the respondent’s evidence was more reliable. In my view, whilst the magistrate made that comment, he then clearly relied on the exhibited photographs in exhibits 2 and 4 in coming to the conclusion that there was significant signage of the bus lane and that the points of impact supported the respondent’s case.
Sufficiency of Reasons
- The applicant/appellant submits that insufficient reasons have been given in this case, particularly in relation to the way in which her failure to supply a driver’s licence affected liability and the finding of reliability in relation to the plaintiff without dealing with his previous inconsistent statement about the number of cars in the bus lane.
- The applicant submits that the magistrate equated the failure to turn over the driver’s license with liability issues. At no stage was it suggested by him that it was relevant to liability. The comments about the driver’s license were found in the passage of the judgment where he talks about the defendant’s credibility and that her evidence was exaggerated, overly dramatic, argumentative and generally speaking, unreliable. In pointing to that unreliability, he then goes on to talk about the license issue. This was merely an illustration of the overly dramatic and exaggerated way in which she gave her evidence. It was not a finding that somehow this affected liability. Having rejected her evidence in its entirety, he then found that the plaintiff was successful in his suit and made the necessary orders.
- It is correct to note that the magistrate did not deal with the inconsistency in relation to the number of the cars, however he did deal extensively with whether the defendant was in the bus lane and particularly relied on the damage to the cars as pointing to the plaintiff’s version being the correct one. In my view, the case does not rise or fall on whether the magistrate referred to the one inconsistent statement made by the plaintiff, although it would have been preferable if he had done so.
Should leave to appeal be given?
- Counsel for the applicant/appellant has made a valiant attempt to transform what were findings of credit into important principles of law or justice. However, in my view, there is nothing in relation to the applicant’s submissions in relation to credibility of the witnesses which amount to an important principle of law. The law in this area is well-settled and in my view the assessment by the magistrate was not without merit and was within his discretion. I note that this was a trial which occupied the morning of 3 May 2016. There were two witnesses, the plaintiff and the defendant, so it was a clear contest of fact between those two witnesses who gave differing accounts of what happened on the morning in question. The magistrate gave ex tempore reasons and as such did so without the benefit of the transcript. It is not unusual in a case such as this for the reasons to be somewhat truncated.
- The fact that the magistrate may have been able to given fuller reasons or to refer to the inconsistency in the evidence of the respondent to give a clearer indication of reasons for his preference for his evidence does not elevate the matter to an important matter of principle of law or justice. In my view, the argument really is that the magistrate erred in preferring one party’s evidence over the other. It was very much a matter of assessment of the witnesses as they gave their evidence and the magistrate was entitled to prefer the plaintiff over the defendant having seen them give their evidence. There is nothing in the objective evidence which displaces the advantage the magistrate had in observing witnesses. In my view this is not an appropriate case to grant leave to appeal.
- If I am wrong in this conclusion that leave should not be granted, in any event, in my view the magistrate’s decision in relation to liability was correct and as such the appeal should be dismissed.
- There was also argument in relation to the costs awarded under the appeal. I note that there was no appeal lodged in relation to the question of costs and leave was not sought to amend the appeal notice in that regard. The applicant/appellant has submitted that indemnity costs were not appropriate in this case as the prerequisites for the application of Rule 260 were not present. This point was not raised at the hearing of this matter, no notice of the point was given to the respondent and, as I have already noted there was no appeal in relation to costs. In those circumstances I do not propose to deal with this issue.
The application for leave to appeal is refused. The applicant is ordered to pay the respondents costs to be assessed unless otherwise agreed.
- Published Case Name:
Thompson v Ruska
- Shortened Case Name:
Thompson v Ruska
 QDC 137
24 May 2017