Darlco Transport Pty Ltd v Knight

Judgment 1HIS HONOUR: This is an appeal pursuant to s 39(2) of the Local Court Act 2007 from a decision of Assessor Olischlager sitting in the Small Claims Division of the Downing Centre Local Court on 5 December 2013. The plaintiff in the Court below is the defendant in these proceedings, and the defendant in the Court below is the plaintiff in these proceedings. To obviate confusion, I shall refer to the plaintiff in these proceedings as the appellant and the defendant in these proceedings as the respondent. 2The respondent claimed the sum of $9,801. That was the cost to the respondent of the hire of an alternative vehicle whilst his own motor vehicle was being repaired. The period of the hire of the alternative vehicle was 75 days. The cost of the 75 days' demurrage was the sum claimed in the statement of claim. The appellant filed a defence in the Local Court not admitting any allegation of fact and denying the allegations of negligence. The ninth plea in that defence is this: "The Defendant denies that the Plaintiff is entitled to the loss or damage as claimed. In addition, the Defendant says that the Plaintiff's claim is excessive and extravagant and that the Plaintiff has failed to take reasonable steps to mitigate it's [sic] loss." At the hearing in the Small Claims Division of the Local Court, liability was admitted. 3Counsel for the appellant in the Court below, Mr Phillips, first made a submission that the first aspect of the defence to the respondent's claim was that the respondent's evidence did not establish the need for a replacement vehicle and therefore the plaintiff was not entitled to any aspect of his claim for demurrage. Eventually after the assessor referred to certain case law, Mr Phillips elected not to press on with that submission. 4Eventually the only issue left for determination by the assessor was the extent of the claim for demurrage; namely, for how long the Court would allow the respondent to have an alternative car at the appellant's expense. The second submission made by Mr Phillips to the assessor was that the extent of the need for the replacement vehicle was no greater than 21 days. As I have already stated, the period in which demurrage was claimed was in fact 75 days. 5The respondent's Toyota Hilux was involved in a collision with a vehicle owned by the defendant at about 3.10pm on Friday 12 April 2013. The respondent was driving that vehicle southward on the Princes Highway at Tempe in the kerbside lane. A vehicle driven by a servant or agent of the defendant was travelling in the middle of three southbound lanes when it changed lanes from the middle lane to the kerbside lane, colliding with the plaintiff's vehicle. Liability as I have said was eventually admitted. 6The respondent's vehicle was not drivable. It was taken by a tow truck to Kirrawee Motors, 15 Yalgar Road, Kirrawee. The reason it was towed there is probably because the plaintiff and his wife were living in that suburb. The principal of Kirrawee Motors, Mr Sidney Bush, examined the vehicle on Monday 15 April 2013 and he prepared a written estimate. Paragraph 5 of Mr Bush's statement is this: "On Monday, 15 April 2013, I inspected the vehicle and prepared a written estimate. There was extensive panel damage along the driver's side of the vehicle. The damaged areas included - but were not limited to - the cabin mounts and the bolts that secure the cabin mount to the chassis, and major parts such as the hinge pillars needed to be replaced. I could see that the righthand skirts needed to be replaced and the windscreen and dashboard required removal to access the damaged areas." 7The quotation was sent by Mr Bush to the respondent's insurer Aioi Nissay Dowa Insurance Co Ltd, which the respondent referred to as "Toyota Insurance". If I need to mention the name of that insurer again, I shall merely refer to it as "Toyota Insurance". Arrangements were made for an assessor, Mr Daniel Ojeda, to assess the damage and to determine whether the vehicle should be either written off or repaired. Prior to the assessment by Mr Ojeda, the vehicle had its wheels re-aligned by Kirrawee Motors to ascertain whether there was certain mechanical damage to the vehicle. 8On Monday, 6 May 2013, exactly three weeks after Mr Bush had first inspected the respondent's damaged vehicle, Mr Ojeda, clearly on behalf of Toyota Insurance, authorised the commencement of repairs to the vehicle. The reason for the three-week delay is not clear. It could be due to a need for the insurer to carefully consider whether it was in its best interests to write the vehicle off or to proceed to have it repaired. Competing costs are the obvious consideration. 9Once the insurer had given approval for the repairs to commence, Mr Bush ordered the parts that were necessary for the repairs. In his statement he says that the majority of the parts arrived soon after they were ordered. The rest of Mr Bush's statement is this: "11. There were subsequently further parts ordered due to the nature and extent of the damage during the repair process. Additional estimates needed to be prepared and they were authorised on 21 June 2013 and 24 June 2013. 12. Some of the parts were unavailable or on back order from Japan which caused a delays [sic] and repairs were unable to continue until these parts arrived. 13. The repairs, which were quite extensive, proceeded as expected once the parts arrived. 14. There were no other untoward delays during the repairs and they were completed so that Mr Knight was able to collect his vehicle from the repair shop on 26 June 2013." 10The paperwork generated by Kirrawee Motors is of little assistance to me. It does outline what items it was necessary to remove and replace, and the cost of the labour involved in that and also the cost of the parts that needed to be replaced. There were two additions to the original estimate. They were known as "additional 1" and "additional 3", but when exactly it was determined that these additional works and parts were necessary is quite unclear. It may be that the dates given for those additional works were when approval was given after the repair. 11There is accordingly, no dispute, that the respondent was without his personal vehicle from the afternoon of Friday, 12 April 2013 until he obtained it back from Kirrawee Motors on Wednesday, 26 June 2013. The hiring of the replacement vehicle commenced on Saturday, 13 April 2013, and that vehicle was returned to its owner on 26 June 2013 at 2.30pm. The total period of demurrage was 75 days. 12The statement of claim was filed by the respondent's solicitor on 26 July 2013. The defence to it was filed on 30 August 2013. On 1 October 2013, the Downing Centre Local Court issued a "Notice of Listing - Small Claims Division hearing" to each of the parties. It listed the matter for hearing on 5 December 2013 at 10am on level 7 of the John Maddison Tower at 86 Goulburn Street, Sydney. It fixed the last date for the exchange and filing of documentary evidence as 21 November 2013. There followed on that notice, which became exhibit 1 before me, certain case management orders. Orders 1, 3, 4 and 5 were these: "1. Unless the court makes an order permitting oral evidence to be given at the hearing, the proceedings will be determined on the basis of the written witness statements and other documentary material that is filed and served no later than the date referred to above (being not later than 14 days before the hearing). 3. If a party fails to file and serve affidavits and other documentary material at least 14 days before the hearing, then the court may refuse to allow the party to rely on that evidence at the hearing. 4. The hearing will be conducted with as little formality as possible. The rules of evidence do not apply at the hearing. 5. Each party will have the opportunity to attend and make comments and present arguments and provide final submissions on the evidence." 13On the day after the final date for the exchange of documentary evidence, 22 November 2013, the respondent served copies of statements by himself, by his wife, who was a passenger in the vehicle at the time of the collision, by the principal of Kirrawee Motors, Mr Sidney Bush, and by Mr Damian Mullins, the chief executive officer of Right2Drive Pty Ltd, which was the lessor of the vehicle the subject of the claim for demurrage. 14On 29 November 2013, a Friday, the appellant served a report, which is undated, from a Mr Brad Carter, a motor vehicle loss assessor who is either a principal of or an employee of Hills Assessing West Ryde Pty Ltd. Mr Carter's report essentially provides opinion evidence. 15The hearing was conducted by the assessor on the following Thursday, 5 December 2013. Each party was permitted to rely upon each of the statements which the party had served and clearly the four statements prepared by the respondent were before the assessor, as was the report of Mr Carter. Each of the parties was represented by a lawyer, and each of the parties made submissions to the assessor. The assessor proceeded immediately after the addresses to give his reasons. They commence on p 7, line 23 of the transcript of 5 December 2013. 16The appellant has only a limited right of appeal. Section 39(2) of the Local Court Act 2007 is in the following terms: "A party to proceedings before the Court sitting in its Small Claims Division who is dissatisfied with a judgment or order of the Court may appeal to the District Court, but only on the ground of a lack of jurisdiction or denial of procedural fairness." For the appellant to succeed, it must establish that there was a "denial of procedural fairness". There is no submission made that the Small Claims Division of the Local Court had no jurisdiction to hear and determine a claim for the princely sum of $9,801, based upon the common law tort of negligence. The Local Court Act 1982, s 7(2), referred to a denial of "natural justice" as the basis for an appeal from the Small Claims Division. Denying a person the right to call admissible evidence which that person wished to call to rebut a claim is a denial of natural justice; so is denying a party the right to tender admissible evidence in support of his or her claim. It is also a denial of natural justice to deny an adjournment when the refusal of the adjournment may be said to bring about a miscarriage of justice. However, for the purpose of an appeal under s 39(2), an appellant needs to demonstrate not only legal error but an error that is material to the outcome of the decision appealed from; that is, the decision must be one which is vitiated by error: Hamod v Suncorp Metway Insurance Ltd [2006] NSWCA 243 at [11] and Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LJRA 409 at 419, which has been subsequently cited with approval in the Court of Appeal. However, a simple error of law is not a ground for appeal from the Small Claims Division: Habra v Reinke [2005] NSWSC 1090, a decision of Malpass AsJ. 17The vitiating legal error must equate with the denial of procedural fairness. There are two aspects to procedural fairness summed up in two Latin maxims. The first one is nemo debet judex in propria sua causa: no-one ought be the judge in his own cause. There is no suggestion that that principle has been infringed. The other principle is audi alteram partem: hear the other side. The court or tribunal must hear each side of a case and consider the evidence adduced by each party. The current appellant relies upon a breach of that principle. 18The appellant has advanced a number of arguments. The principal argument is that the assessor gave inadequate reasons and, although the giving of inadequate reasons is not a denial of procedural fairness, the failure to give adequate reasons points to the assessor's not giving consideration to the defendant's case, and therefore the assessor must have not considered the evidence contained in the report of Mr Carter. The appellant also argues that there was no evidence which could have supported the assessor's ultimate finding which enabled the plaintiff to succeed. 19I am not persuaded that there is any substance in either of those principal submissions or in any of the subsidiary submissions. At p 8, line 4 of the transcript the assessor said: "The defendant relies on evidence to the effect that the loss assessor Mr Carter has expressed the view that the time taken ordinarily for the repairs of this vehicle should be between 18 and 20 days and that therefore the Court should be confined in terms of any award to that period of time, perhaps 21 days." The next paragraph of the assessor's reasons is irrelevant to the current issue, but this does give me an opportunity to interpolate the origin of "21 days". At the time of hiring the replacement vehicle, the respondent made a declaration dated 13 April 2013. That declaration is on a two-page form which gives details which can only have been given by the respondent to Right2Drive. At the top of the second page of that document, the respondent had been asked to provide "estimated days to complete repairs", and typed in beside that is the number 21. The appellant below appears to have accepted that there was so little difference between Mr Carter's estimate of "between 18 and 20 days" and 21 days that it could safely make a submission to the assessor that he only ought allow demurrage for 21 days. That was a very proper concession or submission. 20The assessor's reasons then continue thus: "In terms of the duration of the loss [demurrage], the issues of duration were dealt with by this Court in earlier decisions such as Miller v Walker [2011] NSWLC 10 and Tang v Driden [2010] NSWLC 17. In Tang v Driden the Court said that it is foreseeable that there may be delays when vehicles are given to a repairer due to either the need to obtain parts or due to heavy workloads for repairers or insurance assessors having competing priority. These delays, while caused by third parties, are inexorably linked to the original caused [sic] by the tortfeasor and cannot be considered to be an independent cause of the damage. The Court in Miller v Walker indicated that ultimately the test to be applied is one of causation and provided that there was no intervening event, the defendant would remain liable for the deprivation of the property and that was the approach taken by the Federal Court [Rares J] in the decision of Consort Express Lines Ltd v J-Mac Pty Ltd [2006] FCA 833. In this instance the Court cannot see anything in terms of any supervening incident that might have been said to break the chain of causation. There was [sic] clearly issues in terms of the repairs taking longer than what might ordinarily occur, however there is nothing in terms of principles of law that suggest that the plaintiff is only entitled to seek compensation for the period in which theoretically the vehicle might have been repaired, but rather the Court deals with the actualities and in this instance there were reasons put forward by Mr Bush as to why it took longer than what might have ordinarily been considered necessary in terms of the cost of repairs, but those are matters that are part and parcel of what might occur in the daytoday running of a business for smash repair and the reinstating of the vehicle. There is nothing in the nature of a supervising incident and the Court accepts what Mr Bush puts forward in terms of the need to obtain further and subsequently supplementary ... estimates to be authorised to give explanation as to why the repairs took longer than ordinary. However, ultimately, unless there is some supervening incident that breaks the causal chain of causation, the defendant remains liable for the entire period. Based on that, the Court is satisfied it should enter a verdict in favour of the plaintiff." The assessor then entered a judgment for the plaintiff for the sum claimed in the statement of claim. 21It is clear that the assessor was acutely aware of the difference between the sum claimed for demurrage by the respondent and the amount which the appellant's evidence would only allow him to award: demurrage for 21 days, not demurrage for 75 days. It is clear that he must have considered the evidence of Mr Carter. It is clear that he preferred the evidence, which I have quoted, of Mr Bush. Mr Carter gave evidence of what one would expect to be a reasonable time for the repairs to be carried out based upon his knowledge and expertise. His evidence was the "theoretical" evidence referred to by the assessor. However, the repairs actually took 75 days or, rather, the repair period covered 75 days, as it is unlikely that the repairer worked on weekends. Clearly the "untoward delays" referred to by Mr Bush in that section of his statement which I have quoted related to the discovery of additional repairs that needed to be carried out once the initially proposed repairs had been undertaken and also the need to obtain parts that were then unavailable or were to be ordered from Japan. 22In that regard, there is some corroborative evidence adduced from the respondent himself to which the appellant raised no objection in the Local Court and probably could not because the Local Court in its Small Claims Division is not bound by the rules of evidence. That part of Mr Knight's statement is this: "Throughout the repair process I maintained regular contact with the repairer and my insurer. I was told that my vehicle needed a lot of parts due to the serious panel damage and some of these parts needed to be dispatched from overseas." There was some explanation for the delay. 23I should indicate, because it was the subject of one written submission by the appellant, that there was a challenge to Mr Bush's status. The first three paragraphs of Mr Bush's statement are these: "1. I have had 48 years' experience in the motor trade. I initially served an apprenticeship and was then engaged as a panel beater. My duties included the preparation of quotations for the repair of damaged motor vehicles and carrying out those repairs. 2. I have been the owner of Kirrawee Motors for 33 years and I have inspected many vehicles for the purpose of assessing the reasonable cost of repairing them including determining the best and most effective method of repair. 3. I rely on my knowledge and experience, accepted industry standards for the repair of motor vehicles which includes the amounts that are sought and accepted by repairers for individual items of work, as well as manufacturers' specifications that determine the manner in which some repairs must be effected." 24On the other hand, Mr Carter tells me that he has 18 years' experience as a panel beater and assessor during which he has worked on many Toyota Hilux vehicles and he had assessed many Toyota Hilux vehicles with the amount of damage which he understood the respondent's vehicle had suffered. The first substantive paragraph of Mr Carter's opinion is this: "It is our [sic] opinion that a maximum repair time of between 18 and 20 days would be required to repair the said third party vehicle. This maximum repair time is based on the assumption that labour hours in quote number 12387 are reasonable (131.1 hours) with allowances for external factors such as paint drying time, an allowance for parts being unavailable and other factors outside of the repairer's control." Mr Carter then states the evidence upon which he was relying. I point out that quote number 12387 appears to be the initial quotation addressed to Toyota Insurance in Melbourne and is for a total payable of $16,049.62. However, the final estimate was numbered 12138 and whilst giving the same total amount payable, lists only the total amount authorised for labour on 6 May 2013, the total amount for labour authorised on 21 June 2013 and, finally, lists item by item the additional amount allowed for labour because of the final quotation authorised on 24 June 2013. I have no way of ascertaining whether all the information contained in estimate 12138 was before Mr Carter when he produced his opinion and whether all of what is in estimate 12387 is contained in estimate number 12138, nor do I know how he has arrived at 131.1 hours from what is contained in estimate number 12387, nor can counsel assist me in that regard. However, if I divide 131 hours by seven, I reach a result of 18.7, which represents a number of days clearly between 18 and 20. 25The second substantive paragraph of Mr Carter's report is this: "My maximum repair time is based on the repairer's labour charges in quote 12387 (131.1 hours). This is broken down as to 80.9 hours R & R [remove and replace], 23 hours repair and 27.2 hours to paint, repair procedures required, parts required and miscellaneous items needed to repair damage. Based on one staff member working on the vehicle fulltime in a standard 40 hour week, it would take 16.4 days to complete the above repairs. Normally more than one staff member would work on the vehicle at one time, which would ultimately reduce the repair time to less than 16.4 days. I have allowed an addition [sic] 3.6 days or approximately 20% to take account of the external factors referred to in 2.1 above." However, there is no 2.1 above. There is 2(a) above to which he is obviously referring. I should point out that the standard working week has not been for a long time 40 hours; it is 38 hours and in many industries less. 26The next substantive part of Mr Carter's report is this: "It is common practice for the repairer to provide an estimate as to how long it should take to repair their vehicle. However, these estimates are usually provided verbally [scil. orally] with the understanding that this estimate is always subject to parts availability, which vary somewhat depending on vehicle make and model." Of course, there we have a concession that initial estimates of time can be varied because of the availability of parts and the availability of parts depends upon the make and model. Presumably it would take a shorter period of time to obtain a part made for an Australian constructed car than it would for a car constructed in Japan or for a car constructed in any part of Europe. Furthermore, it might be quicker to obtain a part from England than it might be to obtain a part from Sweden. 27Clearly, an oral estimate was initially provided to the respondent of 21 days, but that oral estimate, consistent with Mr Carter's assessment, was exceeded substantially, and the only reason advanced is the discovery of certain further damage once initial repairs had commenced or once the vehicle was stripped down to expose unexpected damage and for necessary parts to arrive from overseas. 28The next three substantive paragraphs of Mr Carter's opinion are based on his 18 years of experience in which he thought that a delay of more than five days for a Toyota Hilux part would be "exceedingly rare", and that parts for such vehicles can be sourced from a city other than Sydney or from interstate and would be readily available either locally or within the Commonwealth of Australia. However, expectations can be blasted, and the evidence before the assessor clearly suggested such, evidence which he accepted. 29To suggest that the assessor failed to consider Mr Carter's evidence or failed to resolve the issue joined between the parties is insupportable. Indeed, much of the case law to which he refers, including his own two decisions, refer to other case law which make very valuable points. For example, in Miller v Walker, the assessor said this: "24. The approach taken by this Court in Tang v Driden followed the United Kingdom decision in Clark v Tull (T/A Ardington Electrical Services) [2002] EWCA Civ 510. In that case, repair to Mrs Clark's vehicle should have taken five days to repair, but due to factors beyond her control it took ten days. In a joint judgment the Court of Appeal held that the tortfeasor remained liable for the entire period of the loss on the basis that the vehicle had been placed in the hands of a respectable repairer and there was no supervening event. 25. The Court of Appeal followed an earlier decision of Mattocks v Mann [1993] RTR 13. In that case Mrs Mattocks took her car to a reputable repairer. It was estimated that it would take six weeks to repair but the repairs took 12 weeks to complete. Thereafter the vehicle was held for a further period of seven months pending payment. Beldam LJ said at [18]: 'For a supervening cause or a failure to mitigate to relieve a defendant of a period of hire there must, in my judgment, be a finding of some conduct on her [Ms Mattocks] part or on the part of someone for whom she is in law responsible, or indeed of a third party, which can truly be said to be an independent cause of loss of her car for that period.' 26. In Daily Office Cleaning v Shefford [1977] RTR 361 the Court held that since the plaintiffs had placed the repairs in reputable hands, had pressed for early completion of the repairs and were not to blame for the delay in delivering the spare parts, their conduct was not unreasonable, and notwithstanding that the length and cost of the hire at first sight seemed inordinately great, the plaintiffs were entitled to recover the sum claimed. 27. In that case, Judge Stabb QC considered the issue as to whether the conduct of the plaintiff contributed to the cost. He adopted what was said by Lord Macmillan in Banco de Portugal v Waterlow and Sons Ltd [1932] AC 452, at 506 as being equally applicable to tort: 'The law is satisfied if the party placed in a difficult situation by reason of the breach of a duty owed to him has acted reasonably in the adoption of remedial measures and he will not be held disentitled to recover the cost of such measures merely because the party in breach can suggest that measures less to him [might] have been taken.'" 30The assessor then referred to the decision of Rares J to which I have already referred. In quoting that case law the assessor was dealing with the very issue joined between the parties and pointing out that, as the law stands, unless the defendant can establish that the respondent's claim was unreasonable or extravagant, or was due to some intervening event which could be seen as a novus actus interveniens, then the respondent was entitled to recover the whole of his loss. 31In my view, this appeal is without substance. There was a clear joinder of issue between the plaintiff's claim and the defendant's position on it, a clear acknowledgment by the assessor that he had to determine whether he ought allow the plaintiff's claim for 75 days' demurrage or the respondent's assertion that he should only allow for 21 days' demurrage. The assessor preferred the evidence of the man at the coalface, so to speak, Mr Bush, rather than the man who was giving an opinion from afar. 32In the appellant's submissions, it was said that there was no evidence that the actual repairer, Mr Bush, was "a reputable repairer", as the English authorities refer to. However, the simple fact is that Mr Bush had spent 48 years in the motor trade and had run his own business at Kirrawee for 33 years, and if one is not a reputable repairer, one wonders how one could survive in the trade, carrying on one's own business for such an extended period of time. 33There is much force in what has been put by the respondent in written submissions that the complaint in essence made by the appellant is that the assessor was not persuaded by the arguments advanced by the appellant to limit the respondent's claim in the Court below. 34Perhaps the most convenient authority to cite on the extent to which the assessor was required to give reasons is the decision of the Court of Appeal in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 in the judgment of McColl JA, in particular commencing at [66]: "66. Because a primary judge is bound to state his or her reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were taken in arriving at that result. Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried. This is because, so far as the reasons reveal, no examination was made why the evidence which was accepted was to be preferred to that of other witnesses... 67. Where an appellate court concludes that the primary judge has failed to give adequate reasons, it has a discretion as to whether a new trial should be ordered. If the only conclusion open on the evidence available at trial was the conclusion reached by the primary judge, then, notwithstanding an inadequate statement of reasons, the matter need not go to a new trial: Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 444 per Meagher JA, applying NSW Insurance Ministerial Corporation (formerly Government Insurance Office (NSW)) v Mesiti (Court of Appeal, 1 December 1994, unreported). In the latter case where the trial judge accepted the respondent's version of what occurred, Sheller JA (with whom Handley JA agreed) said, "[i]f there had been persuasive and critical contrary evidence the principles enunciated by Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725 would suggest that a new trial must follow". In some cases of inadequate reasons, where there is no credit issue, the appeal court may be in as good a position to decide the matter as the trial judge: see Hunter v Transport Accident Commission (2005) 43 MVR 130; [2005] VSCA 1 (at [37]) per Nettle JA." Here, even if I could discern - which I cannot - some denial of procedural fairness, I would reach the same conclusion as the assessor and, furthermore, as this is a case where no credit issue arose in fact (there was only a competing opinion versus a statement of what had actually occurred) I would be in just as good a position to decide the issue as was the assessor. 35However, I come back to the primary point that this was decision of the Small Claims Division of the Local Court, constituted by an assessor with obvious long experience and expertise in dealing with claims for property damage and the like resulting from collisions between motor vehicles. His own two decisions to which I have referred have persuasive influence because they are based on binding or very persuasive authority themselves. Even if there had been some unsoundness of reasoning adopted by the assessor, that does not constitute an error of law. It could also not be an error as to jurisdiction and certainly could not amount to a denial of procedural fairness. Illogicality and perversity equally do not involve a denial of procedural fairness. 36Appeal ground A alleged a failure by the assessor to consider Mr Carter's report. I have pointed out that he in fact did so. The second appeal ground relied upon was a failure to consider deficiencies in the plaintiff's case. The appellant's real complaint, I accept, is not that the assessor failed to consider the appellant's characterisation of the weight of the respondent's case but that he failed to accept that characterisation. As submitted by the respondent, Mr Bush's evidence - which was clearly accepted by the assessor - was rationally probative of the crucial issues joined between the parties, even though the evidence might be thin. The paucity of evidence can be gleaned from the fact that Mr Bush's evidence was served on 22 November 2013, whereas Mr Carter's evidence was served on 29 November 2013, effectively with only three clear days before the date fixed for hearing in the Local Court. 37The final issue agitated before me was the award by the assessor of interest. As has been submitted by the respondent, unless and until the appellant succeeds in establishing a denial of procedural fairness, the Court's incidental jurisdiction to review the assessor's exercise of his discretion to award pre-judgment interest in accordance with the Civil Procedure Act 2005, s 100 is not enlivened. Because of a lack of any procedural unfairness, I am unable to intervene in the actual orders made by the assessor. For those reasons the appeal is dismissed.