By Emre Ozgezici, Partner and Nick Melios, Senior Associate

Background

The Appellant commenced proceedings against the Respondent claiming property damage arising from a motor vehicle collision that occurred on 5 July 2022 between vehicles driven by the parties. The Respondent filed a competing counterclaim, and the matter was heard by way of Arbitration on 11 October 2023 at the Sunshine Magistrates’ Court before a Judicial Registrar.

The Appellant was a self-represented litigant with limited proficiency in the English language, and the Respondent was represented by lawyers appointed by their insurer.

Primary Decision

A Magistrates’ Court Judicial Registrar held that the collision occurred due to the negligent driving of the Appellant and on that basis, made a finding in favour of the Respondent.

Judicial Registrar Review

Following this decision, the Appellant sought a Magistrates review of the Judicial Registrar’s decision on the basis that they were denied procedural fairness insofar as the Judicial Registrar refused to admit call recordings between the parties and a party assisting the Appellant with the claim into evidence.

The review proceeded on 14 December 2023, 24 January 2024 and 30 January 2024 wherein the Appellant argued that the call recordings were central to establishing their case that the Respondent was negligent and liable for the collision.

While the Magistrate found that the Judicial Registrar erred in deciding that the call recordings were illegally obtained and excluded from evidence, it was ultimately determined that this error did not result in any unfairness or disadvantage to the Appellant because they had been given the opportunity to cross-examine the Respondent about the contents of the call recordings and the Magistrate held the view that Respondent’s answers did not advance the case of the Appellant.

Appeal to the Supreme Court of Victoria

The Appellant then filed an appeal with Supreme Court of Victoria and submitted the following questions of law in the notice of appeal:

1. In the circumstances where judgmental reasons of Magistrate Thomas are so unreasonable to amount to the Wendnesbury unreasonableness, will one fair-minded and reasonably informed observer might consider that Magistrate Thomas might not have approached his task with a sufficient level of impartiality? Or whether his baseless decision of refusing to give effects of ss 55, 58, 106, and 140 of Evidence Act 2008 to evidence of the appellant, that imposed a duty on court to find the appellant’s claim being proved as a fact that the appellant did not reverse his car to cause the collision, when Magistrate Thomas’s decision might certainly and must be then caused by one of all other possible causes?
2. To consider all other possible causes, whether Magistrate Thomas has violated the appellant’s human right arising under ss 8 and 24(1) of the Chater [a misspelled reference to the Charter of Human Rights and Responsibilities Act 2006], and particularly the causes of interpreter at the hearing, and causes of poor English skills for his case to be considered as whether he had a fair contest hearing?”

Outcome on Appeal

The Victorian Supreme Court found in favour of the Appellant and permitted the appeal. In particular, the Court gave significant weight to the fact that the call recordings appeared to be admissible pursuant to section 106 if the Evidence Act and because the review application was refused, the Appellant was denied the opportunity to subpoena material from the Respondent’s insurer including any dashcam video which would be critical to the Appellant establishing that the collision occurred due to the negligence of the Respondent.

The Court noted that any failure by the Respondent or its insurer to produce any existing dashcam footage at hearing may have supported inferences adverse to the Respondent relevant to liability.

Reasons for Decision and Implications

For the following reasons the Court found that the Magistrate did not address the unfairness to the Applicant in the way the Arbitration was conducted and submissions made by the Applicant on the review application:

1. the Magistrate’s assessment of the Respondent’s credibility by comparing transcripts of the recordings against the transcript of the Arbitration did not assist the Magistrate in assessing the Respondent’s credibility.
2. the Magistrate’s finding that the Respondent’s explanation for why they told the Appellant that they had given dashcam video to the Respondent’s insurer was plausible, was inconsistent based on the evidence and the Appellant was not provided with any opportunity to respond to the explanation given and further inconsistencies in relation to evidence given by the Respondent and a Third Party were not addressed.
3. the Magistrate did not address the additional unfairness.

The decision is a timely reminder that a party should not be denied the opportunity to present evidence and make submissions in relation to issues central to the dispute.