DISTRICT COURT OF QUEENSLAND

CITATION:	Real Property Consultants Pty Ltd & Anor v Miller [2019] QDC 262	
PARTIES:	REAL PROPERTY CONSULTANTS PTY LTD
(First Appellant)
and
ANDREW TOUMBAS 
(Defendant by counterclaim/Second Appellant)
v 
PAUL MILLER
(Defendant/Respondent)	
FILE NO:	2135 of 2018	
DIVISION:	Civil	
PROCEEDING:	Appeal	
ORIGINATING COURT:	Magistrates Court	
DELIVERED ON:	18 December 2019	
DELIVERED AT:	Brisbane	
HEARING DATE:	11 February 2019	
JUDGE:	Sheridan DCJ	
ORDER:	1.	Appeal dismissed.
2.	The appellants pay the costs of the appeal.
3.	If an alternate order as to costs is sought, the parties are to provide written submissions by 4.00pm on 22 January 2020.	
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDING OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES – GENERALLY – where the first appellant was unsuccessful in a claim for damages in relation to a motor vehicle accident in which both the first appellant and respondent’s vehicles were damaged – where an order was made for the second appellant, as the driver of the vehicle owned by the first appellant, to pay damages to the respondent – whether magistrate erred in findings of fact 
Magistrates Court Act 1921 (Qld), s 45
Uniform Civil Procedure Rules 1999 (Qld), r 765, r  782,  r  785 

Allesch v Maunz (2000) 203 CLR  172, cited
Australian Partners Pty Ld v Kerr [2018] QDC 148, cited
Devries v Australian National Railways Commission (1993) 177 CLR 472, cited
Dufficy v Berry [2007] QDC 227, cited
Fox v Percy [2003] 214 CLR 118, cited
Hart v Consolidated Meat Group Pty Ltd [2005] QCA 421, cited 

JJ Richard & Sons Pty Ltd v Precast Concrete Pty Ltd [2010] QDC 272, cited 
Lehmann v Warren & Anor [2017] QDC 69, cited
Teelow v Commissioner of Police [2009] QCA 84, cited
	
COUNSEL:	KA Gothard for the first and second appellants
C Templeton for the respondent	
SOLICITORS:	Cantwell Lawyers for the first and second appellants
Shaw McDonald Lawyers for the respondent	
[1]	This is an appeal against a judgement made in favour of the respondent on 11 May 2018 in the Brisbane Magistrates Court. The learned acting magistrate dismissed the first appellant’s claim and gave judgment for the first respondent on his counterclaim as against the second appellant in the amount of $4,983.28 plus interest and costs.
Facts
[2]	On 28 March 2016, there was a collision between a motor vehicle owned by the first appellant driven by the second appellant (the BMW), and a motor vehicle driven by the respondent (the Kia) on Ann Street in Fortitude Valley. That road is four lanes wide with all traffic flowing one-way towards Brisbane City. 
[3]	The witnesses described lane 1 as being that closest to the left side of the city bound traffic, the lane to the right of that as lane 2, then lane 3 and then lane 4 on the far right side. 
[4]	The first appellant alleges the collision occurred by reason of the negligence of the respondent.  It says that the respondent, in attempting to turn right from Ann Street into Church Street, drove across two lanes and into the pathway of the first appellant’s vehicle. 
[5]	The respondent alleges that the collision occurred by reason of the negligence of the second appellant.  The respondent alleges that he had merged safely into the third lane and the appellant’s vehicle was travelling behind him in that lane.  The respondent alleges that there were vehicles parked in the fourth lane until shortly before Church Street.  While the respondent was attempting to turn into Church Street from the third lane, the second appellant entered the far right (fourth) lane and accelerated causing the collision with the respondent’s vehicle.
[6]	There were four witnesses who gave evidence at the trial, the second appellant, the respondent and two independent witnesses, John Michael McCormack and Caroline Davey McCormack.  Mr and Mrs McCormack were in a third vehicle (the Skoda) which was driving behind the parties’ cars at the time of the incident.
The learned Magistrate’s findings 
[7]	The learned Magistrate preferred the version of events given by the defendant and Mr and Mrs McCormack of the incident. 
[8]	The learned Magistrate found that the collision occurred by reason of the BMW accelerating into the fourth lane as the respondent was turning into Church Street.  The learned Magistrate found that, prior to this event, the BMW had previously overtaken vehicles in the third lane by using the fourth lane.  Specifically the learned Magistrate found that the BMW had pulled up quickly behind the Skoda in the third lane, before the first of the two parked cars (between Brookes Street and Church Street) and then overtook the Skoda in the fourth lane by accelerating into the gap between those two parked cars and then ‘cutting in’ to the third lane in front of the Skoda and later returning to the fourth lane in an apparent attempt to overtake vehicles travelling in the third lane.
[9]	Moreover, the learned Magistrate had found that prior to the collision the respondent had properly merged into Ann Street from a street on the left hand side (Wandoo Street) into the second lane, and then the third lane of Ann Street by checking his mirror and looking over his shoulder.  Just as the respondent began moving to the right into Church Street from the third lane, the BMW moved into the fourth lane. The learned Magistrate found that when the respondent’s car was partly in the fourth lane, his car was struck by the BMW which had accelerated back into the fourth lane after the second parked car.
[10]	In assessing liability, the learned Magistrate found that the respondent could not reasonably have been expected to anticipate that another vehicle would accelerate from behind him in the fourth lane which, until then, had been blocked by intermittently parked cars.  Given their presence, the learned Magistrate held that it was reasonable for the respondent to commence executing that turn from the third lane.  The learned Magistrate found that a reasonably prudent driver in the respondent’s position would not have been able to see the first appellant’s vehicle as it accelerated quickly into the fourth lane after the parked car, nor would they have been able to stop or steer clear of the appellant’s vehicle or otherwise avoid the collision.
[11]	In summary, the learned Magistrate was not satisfied on the balance of probabilities that the respondent drove negligently.  The learned Magistrate was satisfied that the second appellant changed lanes when it was unsafe to do so, drove at an excessive speed, failed to exercise reasonable care and judgement in the management of his vehicle and failed to keep a proper lookout.
Assessment of evidence
[12]	The learned Magistrate made her findings based on the assessment she made of the various witnesses evidence during the trial.  The learned Magistrate found both the respondent and Mr Toumbas, the second appellant, to be unreliable witnesses.  She said that Mr Toumbas was “at times unclear and evasive in his answers, and seemed to be speculating”.  The learned Magistrate considered that the respondent gave his “evidence more honestly, but had a poor recollection of what had occurred”.
[13]	The learned Magistrate placed particular emphasis on the witnesses in the Skoda.  The Magistrate stated that while “there were some inconsistencies in the evidence of the two independent witnesses they were both unshaken in their evidence that Mr Toumbas had been driving, in their opinion, too quickly in the circumstances, that there were two cars parked in the fourth lane, that the BMW was moving back and forwards into the fourth lane to overtake cars and that the BMW was in the fourth lane when the collision occurred”. In particular, she found the evidence of Mr McCormack to be clear and reliable. 
Nature of the appeal
[14]	The first appellant’s claim is for $29,284.14, which is above the minor civil dispute limit, and as such the appeal is by way of right under s 45(1)(a) of the Magistrates Court Act 1921 (Qld).  Under rules 765, 782 and 785 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), the appeal is by way of a rehearing. 
[15]	The characteristics of an appeal by way of a rehearing are well established.  It is necessary for the appeal court to make up its own mind on the basis of the findings of primary fact made at the previous hearing, but it should not be “excused from the task of “weighing conflicting evidence and drawing [its] own considerations”.  The appeal court must give proper respect and weight to the advantage that a trial judge has, such as in evaluating the credibility of witnesses, but “once having reached its own conclusion” it should not “shrink from giving effect to it”.  It is necessary for the appellant to show that the decision being appealed is incorrect. 
[16]	The High Court in Robinson Helicopter Inc v McDermott and Others stated:

But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”.
Grounds of appeal
[17]	The appellants advance their appeal on three grounds, namely that the learned Magistrate:
1.	based the judgement on erroneous factual findings that are not supported by the evidence before the Court;
2.	erred in failing to find the objective evidence of the photographs of damage to the vehicles were of any assistance; and
3.	erred in her estimation as to the location of the alleged parked cars and generally her spatial estimations as to the area in which the collision occurred in light of the objective evidence before the Court.  
Ground 1 – factual findings 
[18]	There were a number of arguments adopted to found ground one of the appeal.  The arguments were fashioned by way of reference to the various findings made by the learned Magistrate.  Given that some of the same criticisms were made for the various findings, the simplest approach is to assess each of the criticisms individually. 
Criticisms of the McCormacks’ Evidence
[19]	The major ground of appeal was an attack upon the acceptance by the learned Magistrate of the evidence of Mr McCormack, and to a lesser extent Mrs McCormack. 
[20]	In submitting that the evidence of Mr McCormack was unreliable, the appellants relied upon a number of matters. 
[21]	First, it was said that Mr McCormack initially marked the path of the second appellant’s travel consistent with the version of events given by the second appellant and only corrected his evidence after “some coaching” from the respondent’s counsel.
[22]	Second, it was said that the express and implicit evidence of Mr and Mrs McCormack about the traffic conditions was inconsistent with that of the second appellant and the respondent and implausible.  They say that Mr McCormack’s recollection that there was heavy traffic was inconsistent with the respondent being able to cross three lanes of Ann Street in the space of 50 metres and the respondent not recalling any other vehicle on the road until the time of the collision. 
[23]	Thirdly, it was contended that Mr McCormack’s evidence as to the number of cars that could have been parked in the section of Ann Street between Brookes Street and Church Street must, on the objective evidence, be wrong.  
[24]	Fourthly, it was submitted that it would have been impossible in the short time available for the second appellant to move into the fourth lane, pass a car on his left which was travelling in the third lane and then move back into flowing traffic.  It was submitted that it would have been impossible for the second appellant to accelerate from 30-40km per hour to 60-70km per hour twice over a distance of 50 metres. 
[25]	Fifthly, it was submitted that Mr McCormack could not be relied upon given that, although he said he was reasonably familiar with Ann Street, he could not remember correctly, until cross-examination, that one of the lanes was a bus lane and hence not used for parking.
[26]	Finally, the appellants argued that Mrs McCormack’s evidence as to when she saw the appellant’s car was inconsistent, and her evidence, therefore generally unreliable. It was said her initial evidence was that she first observed the appellant’s car when it was a blur of white on her right hand side and cut in front of their vehicle.  In cross-examination it was said her evidence was that the flash she had seen was a few blocks back when the appellant passed them.  It was said that she also said it was driving at a fast speed behind their vehicle; suggesting she saw the vehicle before it passed theirs.
Analysis of Specific Criticisms of the McCormacks’ evidence
[27]	There is no substance to the first and fifth criticisms of the evidence of Mr McCormack relating to his marking of the path of travel or the use of the four lanes of traffic.  It is not unusual for witnesses to make errors in examination, and for the witness to correct the errors either subsequently in evidence in chief or in cross-examination. There is no justification for describing the first correction as being subsequent upon coaching. Neither of these matters would be sufficient to conclude that Mr McCormack was not reliable in any event.
[28]	There is also no substance to the second criticism that the evidence of Mr and Mrs McCormack should not have been accepted because the second appellant and the respondent gave different evidence about the level of traffic. There is nothing inherently improbable about the respondent being able to cross three lanes of slow moving but heavy traffic in a relatively short distance.  Simply because two other witnesses gave different evidence is no reason of itself to disregard the evidence of two witnesses; especially when those witnesses are independent of the parties.
[29]	As to the criticisms of the evidence of Mrs McCormack, it is not clear that her evidence was inconsistent. It is clear that her evidence in chief and cross-examination in relation to the blur of white or flash was a reference to what she saw.  It is less clear that her reference to the fast speed of the BMW travelling behind their vehicle was to something she had observed: given her earlier evidence, it is equally possible that she was relying upon something that Mr McCormack said to her at the time.  In any event, the learned Magistrate placed less reliance on her evidence than that of Mr McCormack; though interestingly because the Magistrate found her answers in cross-examination difficult to follow given that she was frequently interrupted.
Speed
[30]	The fourth criticism of Mr McCormack’s evidence really depends upon a finding as to the speed at which the second appellant was driving.  If he was driving at the speed estimated and with a degree of confidence, there is nothing which demonstrates that the second appellant could not have undertaken the manoeuvre alleged without the respondent observing it.
[31]	The basis for the submission that it would have been impossible for the BMW to accelerate from 30-40km per hour to 60-70km per hour twice in a short distance is not clear. No mathematical or engineering equations were provided or evidence was called in support of the submission.  The second appellant described the vehicle as a bottom of the range 6 series BMW and capable of fairly rapid acceleration.
[32]	There is moreover some evidence of the second appellant which supports at least the finding that he was driving faster than the speed of the rest of the traffic.  The second appellant says he was behind the Skoda as he was coming up to Brookes Street.  In examination in chief, he admitted to being in the fourth lane as he slowed towards Brookes Street and that he accelerated off when the lights changed to green.  He admitted that he overtook the Skoda at that time when he merged into the third lane. 
[33]	It may be, as the appellant submits, that it may have appeared to Mr McCormack that the BMW drove up at speed behind him when Mr McCormack entered Ann Street from the Emporium only because Mr McCormack was driving in steady flowing traffic, but that does not alter the accepted fact that the BMW did overtake the Skoda.
[34]	This manner of driving took place in circumstances where the second appellant says it was his intention later to be in either lane 1 or lane 2 to turn left towards the Story Bridge. 
[35]	Finally, the second appellant said he was not sure it would be a dangerous manoeuvre to travel in the fourth lane with parked cars in it and merge into the third lane.  
Other criticisms
[36]	Other criticisms of the findings of the learned Magistrate were based on the submission that, in view of the criticisms of the evidence of Mr and Mrs McCormack, there was insufficient evidence to justify the findings of negligence on the part of the appellants.  As should be clear by now, in my view, the appellants have not established that the learned Magistrate erred in favouring the evidence of the McCormacks, nor that the impugned factual findings relating to the presence of the BMW in the fourth lane and that the collision occurred in the fourth lane were not open on the evidence.  That is particularly so given the advantage the learned Magistrate had in witnessing each witness give their evidence.  
[37]	It has long been recognised that, when a trial court has had the benefit of seeing and hearing the parties give their evidence and been able to form an impression of the credibility of the parties, the decision is not lightly interfered with on appeal unless it can be shown that the advantage which the trial court had in this way has been in some way misused.
[38]	In addition, the learned Magistrate found the second appellant to be an unreliable witness who was unclear and evasive in his answers.  That finding was not challenged on appeal.  Having the second appellant’s recollections unreliable, it was proper to prefer the evidence of the two independent witnesses to the incident. 
Google Map
[39]	The third criticism of the finding of the learned Magistrate related to a coloured photo of the area downloaded from Google Maps; which had been marked as exhibit 3.  Mr McCormack marked two parked cars on the exhibit. Relying upon those markings and the exhibit, the learned Magistrate made findings as to the car lengths between Wandoo Street and the first parked car, the two parked cars and the second parked car and Church Streets.  It was submitted that this finding necessarily involved a finding that there were eleven car parking spaces on Ann Street between Wandoo and Church Street.  It was submitted that there could not have been that number of car parking spaces in that area.
[40]	The submission was made that this not only made Mr McCormack’s evidence inherently implausible, but showed that it was impossible for the second appellant to have merged in and out of the third lane twice in the short distance alleged.
[41]	Although another Google Map, which gives directions as to the path of travel from Wandoo Street to Church Street, stated that the distance along this part of Ann Street was 53 metres, no measurements were taken of the area, the photo itself did not contain a scale, nor did it actually show any cars or car parking spaces in the fourth lane.  No evidence was adduced as to the standard length of a motor vehicle or car parking space, nor was the court asked to take judicial notice of the same (assuming that to be justifiable).
[42]	It was submitted that perspective should be taken from the three cars parked in Wandoo Street (which appear on the map) to reach the conclusion that at most six cars could have been parked in the area.  That conclusion is not clear to me from my observations of the exhibit.
[43]	In any event, as already stated, there was evidence from two independent witnesses, Mr and Mrs McCormack, that the second appellant manoeuvred his vehicle between the parked cars and the third and fourth lanes. The google map itself does not demonstrate that this evidence was wrong. 
Negligence
[44]	The appellants argued that if, as the learned Magistrate found, there was sufficient distance for the second appellant to have merged into the fourth lane, there should have been sufficient distance for a reasonably prudent and responsible driver to have fully merged into the fourth lane before attempting to turn into Church Street, as opposed to turning directly from the third lane.  Accordingly, it was submitted the respondent could have reasonably been expected to anticipate that there may have been a vehicle in the fourth lane and, on the balance of probabilities, the learned Magistrate should not have found that the second appellant’s negligence caused the collision.
[45]	In my view, the learned Magistrate was entitled to conclude that the respondent could not reasonably be expected to anticipate that another vehicle would accelerate from behind him into the fourth lane which until then had been blocked by parked cars. The evidence from the respondent and Mr and Mrs McCormack was that the respondent had indicated his intention to turn right.  In these circumstances, it was reasonable for the respondent to execute the turn from the third lane after the parked car. 
[46]	The appellants argued that the use of the indicator could be interpreted by surrounding traffic, as a signal that the respondent was intending to merge into the fourth lane rather than turn into Church Street. That submission is irrelevant given that the second appellant did not see the Kia until the vehicles were about to collide, but it would make no difference to the result given that the Kia, in any event, was intending to travel into or to cross over the fourth lane. 
Resting place of BMW
[47]	One final argument was that the learned Magistrate was in error in concluding that if the evidence happened in the way the second appellant stated, that is with him driving in the third lane at 30-40km per hour, the Magistrate would not have expected the impact of the collision to have propelled the appellant’s vehicle onto the footpath on the city side of Church Street.  It was submitted that an equally plausible explanation for the resting place of the BMW was the second appellant slamming on the brakes when he saw the other vehicle and trying to swerve out of the way.
[48]	This finding was regarded by the learned Magistrate as something that reinforced the finding as to how the collision occurred.  It is not clear to me that the finding was wrong.  In any event, reaching a different conclusion as to the value of the resting place of the BMW as a piece of evidence in resolving the issue as to the cause of the collision would not change the result that there was plenty of evidence justifying the conclusion that the second appellant was responsible for the damage to both vehicles.
Conclusion
[49]	Ground one of the appeal fails.
Ground 2 – Photographic evidence
[50]	The learned Magistrate had the benefit of photographs of damage to both vehicles, but found that they were not of any assistance in deciding how the collision occurred. 
[51]	The photographs show damage to the very front left side of the BMW and damage to the front right hand side of the Kia. The damage to the front right hand side of the Kia is not as far forward to the front of the Kia as the damage to the BMW suggesting that the Kia was slightly ahead of the BMW at the time of the collision. 
[52]	The damage is consistent with the finding that the second appellant was driving at an excessive speed and passing vehicles by the use of the fourth lane.  This is consistent with the evidence of the respondent; namely that he merged over the lanes in order to turn right into Church Street and he did not see the BMW until the point of impact.  It is consistent with the observations of Mr and Mrs McCormack; whose evidence was accepted by the learned Magistrate and whom the appellants have not succeeded in demonstrating was wrong.
[53]	The damage itself is not necessarily inconsistent with the evidence of the second appellant; namely that he was driving along Ann Street until his vehicle was hit by the Kia.  If it is correct that the damage to the Kia places that vehicle slightly ahead of the BMW, however, the evidence would not support the appellant’s case unless it was also found that the respondent was driving at a speed in excess of the second appellant.  There is no evidence supporting such a finding.  In any event, the evidence of the second appellant was not consistent with the evidence of Mr and Mrs McCormack, who had observed the BMW overtaking numerous vehicles and doing so at a speed in excess of the other traffic. 
[54]	The submission made on behalf of the appellants is that the photographs are not consistent with the other finding of the Magistrate that the collision occurred when the respondent’s vehicle was partly into the fourth lane and the appellants wholly in the fourth lane.  It was submitted that if the collision had occurred in this way, it would be expected that there would be more damage visible to the front of the appellant’s vehicle, not the side.  I do not accept that submission.  If anything, the absence of damage to the front of the BMW supports either version: the respondent turning sharply into the path of the BMW or the BMW driving at a speed in excess of the other traffic.  As indicated earlier there is no evidence in support of the first possibility and there is evidence in support of the second finding.
[55]	As I noted during the hearing of the appeal, it is very difficult, in those circumstances, to interpret anything from the photographs alone.  That was the conclusion reached by the learned Magistrate.  All they show is that there was a definitive point of impact and not how that impact occurred.
[56]	Ground Two of the appeal fails.
Ground 3 – spatial estimations and Google Map 
[57]	The third ground of appeal, relating to the google map and various spatial estimations, also formed part of the first ground of appeal.  For the reasons outlined above, this ground also fails. 
Orders
[58]	The appellants have not made out any ground of appeal.  The appeal is dismissed. 
[59]	The appellants pay the costs of the appeal.  If an alternative order as to costs is sought, the parties are to provide written submissions by 4.00pm on 22 January 2020.