Gabriel v Grech

The Local Court proceedings

1. On 28 February 2014, the plaintiff filed a statement of claim in the Local Court seeking damages for negligence against the first defendant arising out of a motor vehicle collision at a roundabout in Camperdown, New South Wales ("the collision").
2. The plaintiff pleaded that the collision occurred on 4 August 2011, when the vehicle driven by the first defendant, a Holden Commodore, collided with a BMW motor vehicle registration NB5735 ("the BMW") driven by the plaintiff's son, Mark Gabriel. The plaintiff claimed to be the owner of the BMW.
3. The collision sandwiched the BMW between the first defendant's car and another vehicle driven by a Mr Hafda, who was neither a party to the Local Court proceedings nor those in this Court.
4. The insurer of the first defendant's vehicle was Drive My Car Rentals Pty Ltd, the cross defendant in the Local Court and the second defendant on appeal. For convenience, I shall refer to Drive My Car Rentals Pty Ltd as the second defendant. The second defendant did not pay out the claim, claiming the collision was, essentially, the subject of fraud. The first defendant cross claimed against the second defendant seeking indemnity in the event that he was found liable to pay damages to the plaintiff ("the cross claim").
5. The claim and cross claim were heard before the Local Court of New South Wales ("the Local Court proceedings"). The Magistrate, Atkinson LCM, delivered the substantive judgment on 10 March 2017 and the costs judgment on 11 August 2017. Her Honour dismissed the claim and cross claim and ordered the plaintiff to pay the first defendant's costs and 50% of the second defendant's costs on an ordinary basis.

The pleading in the Local Court

1. In his statement of claim filed 28 February 2014, the plaintiff relied on the following facts and assertions: "1. The plaintiff was at all material times the owner of motor vehicle registered number XXXX ("the plaintiff's vehicle"). 2. The defendant was at all material times the driver of motor vehicle registered number XXXX ("the defendant's vehicle"). 3. On or about 4 August 2011, the plaintiff's vehicle was stationary on Sailsbury Road, Camperdown in the State of New South Wales. 4. At the same time and place, the defendant's vehicle collided with the rear of the plaintiff's stationary vehicle and pushed the plaintiff's vehicle into [Mr Hafda's vehicle]. 5. The collision was caused by the negligence on the part of the defendant."
2. The plaintiff then provided particulars of negligence. He also claimed for the costs of a hire car during the period the BMW was being repaired. He sought the sum of $76,308.89 for damage, interest and costs.

The defence and cross claim in the Local Court

1. By defence filed 28 August 2014, the defendant admitted that the plaintiff was the owner of the BMW and that he was the driver of the hire car. The defendant cross claimed against Drive My Car, the second defendant in these proceedings, seeking indemnity. By amended defence to the cross claim, Drive My Car denied indemnity and alleged, in effect, that the accident had been staged.

The Local Court hearing

1. The hearing took place on 9-11 March 2016, 13-15 July 2016 and 15 November 2016. The costs hearing took place on 24 May 2017 and 14 June 2017, with a total hearing time of nine days.

The Magistrate's decision dated 10 March 2017

1. In her decision at [1]-[4], the Magistrate set out the parties and circumstances involved in the claim as summarised at [7]-[9] of this judgment. Her Honour then summarised the issues in dispute at [5] as follows: 1. Did Joseph Gabriel own the BMW at the time of the collision? 2. How did the collision occur? Was it an accident as alleged by Mark Gabriel and Paul Grech or was it staged as alleged by DMC? 3. Is DMC liable to indemnify Joseph Gabriel and/or Paul Grech? 4. If DMC is liable, what is the quantum of damage of repairs and hire car costs?
2. Her Honour then addressed each issue in turn. In relation to the first, under the heading "Did Joseph Gabriel own the BMW at the time of the Collision?" the Magistrate set out her factual findings at [24]-[43]. She concluded the issue at [40], [41], [43] as follows: "[40] Despite the Gabriels' evidence to the contrary, I am not satisfied on the balance of probabilities that Mark Gabriel purchased the vehicle for Joseph Gabriel as:  The Pickles receipt and a number of the receipts said to relate to the repair of the BMW were in Mark Gabriel's name. If the vehicle had indeed been purchased and repaired for Joseph Gabriel, it is reasonable to expect that the receipts would have been put in his name.  Mark Gabriel and Joseph Gabriel apparently signed a document showing that Mark Gabriel had sold the car to Joseph Gabriel sometime after the Pickles Auction. (However as indicated earlier, the document was not tendered as proof of its contents.) In my view, if the document in fact reflected a transaction between the two men, the most plausible explanation for it was that Mark Gabriel had purchased the BMW and on sold it to his father once it was repaired. [41] In relation to the question of who owned the BMW at the time of the collision, I am comfortably satisfied on the balance of probabilities that Mark Gabriel still owned it as:  Joseph Gabriel apparently had a limited understanding of spoken and written English and was dependent on Mark Gabriel for assistance with transactions requiring a reasonable understanding of English. This situation is not uncommon as there are many families in Australia where children act as interpreters for immigrant parents with a limited command of English.  However despite his poor English language skills, it appears that Joseph Gabriel had been able to run a successful business over many years that enabled him to save the tens of thousands of dollars he had in his safe.  I had real concerns about both Joseph Gabriel's and Mark Gabriel's credibility and in particular, Mark's (see the discussion in relation to whether the accident was staged). In my view, it was plausible that Joseph Gabriel and Mark Gabriel had decided that the BMW would be registered in Joseph's name even though it was actually Mark's car.  Mark Gabriel was clearly using the vehicle for his personal purpose  Mark Gabriel organised for the partial and then full repairs of the BMW once it became apparent that DMC's insurer would not cover the cost of repairs.  Mark Gabriel paid for the repairs (see the discussion under quantum for more details)  Joseph Gabriel and Mark Gabriel say they were using it but Joseph Gabriel appeared to only use it for minor trips (e.g. to take his wife to work) as he was also using his work vehicle through the week  Joseph Gabriel did not get back until 106 days after the replacement vehicle was hired.  It is most curious that Mark Gabriel would need to organise a replacement car from the time of the collision if Joseph Gabriel was overseas and Mark Gabriel had access to another vehicle/s.  If the BMW was indeed Joseph Gabriel's car, it would not have been necessary to incur the cost of a hire car until Joseph Gabriel got back from overseas.  While the receipt for the hire car was in Joseph Gabriel's name it was not issued until the end of the hire period and there was no other supporting documentation in evidence in relation to the hire of the replacement car.  In my view the only plausible explanation for hiring a car from the date of the collision is that Mark Gabriel was driving the BMW far more frequently than he would have the court believe and he needed a similar type of vehicle to use in its place.  There was a receipt purportedly showing that Mark Gabriel had sold the BMW to Joseph Gabriel however it was only tendered as a document produced on subpoena by the RMS and not as to the proof of its contents.  While the certificate of registration and the two registration transfer certificates showed Joseph Gabriel as the registered operator, there was no satisfactory explanation as to why there would be two registration transfer certificates to two different purchasers. I note that Joseph Gabriel denies signing more than one transfer document. … [42] On this basis, I find on the balance of probabilities that Joseph Gabriel was not the owner of the BMW at the time of the collision and so he is not entitled to bring the proceedings to recover damages arising out of the collision."
3. Under the heading, "How did the collision occur? Was it an accident as alleged by Mark Gabriel and Paul Grech or was it staged as alleged by [Drive My Car]?" her Honour stated: "[62] But for Paul Grech's actions in failing to stop clear of the BMW, the owner of the BMW would not have suffered particular harm. There is no evidence that Mark Gabriel contributed to the collision as the BMW had been stopped for a few seconds before it was hit by Paul Grech's car. [67] Accordingly, I find on the balance of probabilities that Paul Grech was negligent when he collided with the rear of the BMW and pushed it into the Citroen."
4. Overall, the Magistrate concluded at [95]-[98]: "[95] For the above reasons, I dismiss the statement of claim. [96] In relation to the cross-claim, I find that Drive My Car would have been liable to indemnify Paul Grech in relation to the collision had Joseph Gabriel recovered damages against him. [97] I propose dismissing the statement of cross-claim unless the parties apply within 14 days to have the proceedings relisted for an argument as to the appropriate order to be made. [98] The parties have liberty to apply within 14 days to relist the proceedings for a costs argument and for an argument as to the appropriate order to be made in relation to the statement of cross-claim."
5. On 11 August 2017, the Magistrate made the following orders: "1. Dismiss the claim. 2. Dismiss the cross-claim 3. Joseph Gabriel to pay Paul Grech's costs on the ordinary basis as agreed or assessed. 4. Joseph Gabriel to pay 50% of the cross defendant's costs on the ordinary basis as agreed or assessed."

The summons and amended summons

1. On 8 September 2017, the plaintiff filed a summons in this Court seeking leave to appeal pursuant Part 50 of the UCPR.
2. On 3 October 2017, the plaintiff filed an amended summons both seeking leave to appeal and commencing an appeal. The main grounds of appeal were as follows: 1. The question of ownership of the vehicle was never a fact in issue on the plaintiff's claim, as it was foreclosed on the pleadings. The statement of claim alleged that the plaintiff was the owner of the vehicle and the statement of defence admitted that allegation. 2. The lack of a proper or necessary plaintiff is not a basis for defeating a claim. The question as to whether a proper or necessary party has been joined is a matter of formality, not of substance (see UCPR 6.23). 3. The Magistrate applied a demonstrably incorrect test of standing. Legal ownership is not the test for standing to sue for tortious damage to goods; standing to sue is dependent upon a possessory interest or title in the good.
3. By seeking to claim that he was the owner of the vehicle, the plaintiff sought to challenge a factual finding, and to do so in circumstances where he expressly disavowed that opportunity and took an alternate path. Whether or not someone was the owner of a car at any point in time is a finding of fact, not a finding of law: see Vetter v Lake Macquarie City Council [2001] HCA 12 202 CLR 439; 75 AUR 578; 178 ALR 1 per Gleeson CJ, Gummow and Callinan JJ, and per Hayne J.

The second defendant's submissions

1. In its submissions in relation to the plaintiff's amended summons, the second defendant first addressed the plaintiff's argument that the second defendant was bound by the first defendant's claims that he owned the vehicle. The second defendant submitted that on the contrary, it is bound by the evidence of the true facts. In Harrison v Retail Employees Superannuation Pty Limited and Anor [2015] NSWSC 1665, Lindsay J observed at [20]: "[20] In the absence of a compelling reason to hold the second defendant to any admission thus made, evidence of the true facts should be preferred. The Court is not bound to act on an admission contrary to evidence properly before it: Termijtelen v Van Arkel [1974] 1 NSWLR 525 at 527A-B, 529F, 530B-F and 534f-535A; Embleton Motor Co Pty Limited v St Kilda Beach Taxi School and Staffing Pty Limited [2014] WASCA 183 at [46]; Gramophone Co limited v Magazine Holder Co (1911) 28 RPC 221 at 225."
2. The second defendant noted that if it were otherwise, the court could be made party to egregious frauds and insurers would have no recourse.
3. The pleading in the Local Court was that the plaintiff owned the vehicle. The second defendant argued that there is no power for the Supreme Court to grant leave to amend the pleading ex post facto to claim that a different person owned the vehicle. In Labour Power Recruitment Services Pty limited v No/land [2019] NSWSC 512, Adamson J said at [17], "This Court's jurisdiction under s 39 of the Local Court Act would not appear to extend to allowing amendments to pleadings."
4. The second defendant argued that as the plaintiff argued throughout the hearing below that he was the owner of the vehicle, he cannot now claim any sort of mistake in his name which warrants an amendment: see Seas Sap/or Ltd and Anor v Far Eastern Shipping Company, [1995] NSWSC, 31 August 1995, per Rolfe J.
5. At the hearing of this motion, counsel for the plaintiff assured this Court that the hearing of the appeal would be short, of three hours duration, and that it was not necessary to refer to the Local Court exhibits. Much was made by both parties of the fact that the exhibits were missing. In an attempt to put an end to this controversy, I ordered the Local Court file from the repository. The exhibits are with the court file. My associate has notified the parties to this effect. I grant access to both parties to the Local Court file (including the exhibits).

The prior motion in this Court

1. The second defendant had earlier filed an amended notice of motion seeking firstly, that the amended notice of motion be heard and determined in advance of the hearing of the amended summons; and secondly, that the plaintiff's amended summons filed 3 October 2017 be dismissed as incompetent for having been filed out of time pursuant to UCPR 50.16. On 20 March 2018, this amended notice of motion came before Walton J for hearing. On 1 November 2018, his Honour dismissed the amended notice of motion and reserved costs.
2. I now turn to address the topic of security for costs of the appeal.

The law

1. As this matter is an appeal, security for costs is governed by UCPR 50.8. UCPR 50.8 reads: "50.8 Security for costs (1) In special circumstances, the court may order that such security as the court thinks fit be given of the costs of an appeal to the court. (2) Subject to subrule (1), no security for the costs of an appeal to the court is to be required. (2A) If an appellant or cross-appellant fails to comply with an order under this rule, the court may order that the appellant's appeal or cross-appellant's cross-appeal be dismissed. (3) Subrules (1), (2) and (2A) do not affect the powers of the court under rule 42.21 (which relates to security for costs)."
2. In Charara v lntegrex Pty Ltd [2010] NSWCA 342 ("Charara"), McColl JA discussed whether the Court had jurisdiction under UCPR 50.8 to order security for costs on an application for leave to appeal. Her Honour referred to Fleming v Marshall [2010] NSWCA 152, where Handley AJA noted at [12] that UCPR 51.50 authorises the Court of Appeal to make orders for security for costs, but is not applicable to an application for leave to appeal. In Charara at [15]-[17], [19] McColl JA continued: "[15] It is clearly established that there is an inherent jurisdiction in this court to order security for costs: Green v CGU Insurance Ltd [2008] NSWCA 148; (2008) 67 ACSR 105 (at [33]) per Hodgson JA (Campbell JA agreeing). Hodgson JA referred with approval to Rajski v Computer Manufacture & Design Pty Ltd [1982] 2 NSWLR 443, in which Holland J analysed the question of whether there was an inherent jurisdiction to order security for costs and concluded (at 447) that there was as part of courts' 'inherent power to regulate their own practice and procedure to procure proper and effective administration of justice and prevent abuse of process.' His Honour rejected (at 448-449) a submission that the inherent jurisdiction was confined by reason of the limited past examples of its exercise, referring to Billington (at 109) where Lord Alverstone CJ in rejecting a like submission stated: … the … Superior Courts had theoretically the power to order security to be given in all cases where they thought it just to do so. [16] Holland J's decision was affirmed on appeal in Rajski v Computer Manufacture & Design Pty Ltd [1983] 2 NSWLR 122, albeit in a part of that decision not necessary to the reason for disposing of the appeal. [17] Both Holland J's decision in Rajski and the matters to which I have referred in Iskandar, indicate the exceptional nature of the case in which the court, in exercise of its inherent jurisdiction, would consider ordering security for costs. Although Holland J referred to the jurisdiction as being one to 'prevent abuse of process', I do not understand the jurisdiction to be confined to such cases - as is apparent from Green (at [7(2)], [36]-[40]). The factors informing the discretion cannot be stated exhaustively - the only limitation is that the discretion be exercised judicially by determining how 'on the whole, justice will be best served': King v Commercial Bank of Australia Ltd [1920] HCA 62 ; (1920) 28 CLR 289 (at 292) per Rich J. … [19] I am concerned, however, that the amount involved is small and that the effect of Palmer J's decision is to send to trial an issue of fact over that small amount. Further, on its face, Mr Charara's prospects of obtaining leave to appeal do not appear great. I would not go so far as to say it is an abuse of process. Nevertheless, it is relevant, as the decision in Bell indicates, to take into account the prospects of success as one of the factors."
3. Here, the plaintiff seeks both leave to appeal and to commence an appeal, and possibly an extension of time to appeal. It is true that the plaintiff will need leave to appeal to have been granted before he has a right to appeal, but it is usually a better use of court time and incurs less expense to the parties if these applications for leave to appeal and the appeal are heard at the same time. Hence, I am content to apply UCPR 50.8, or alternatively the inherent power of this Court.
4. The exceptional circumstances requirement is similar to that required by UCPR 59.11 (in respect of judicial review or UCPR 51.50 to appeals to the Court of Appeal). "Special circumstances" must be demonstrated to justify the making of an order for security for costs of an appeal under UCPR 51.50. The test for "special circumstances", not exceptional circumstances, was stated by Basten JA in Preston v Harbor Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 at [18] as follows: "The principles governing applications for security were helpfully set out by Beazley J in the Federal Court in KP Cable Investments Pty Ltd v Meltglow Pty Ltd [1995] 56 FCR 189 at 197-198. Although the factors are discussed in the context of an unfettered discretion, in contrast to the power conferred by Pt 51 r 16, the factors themselves remain relevant in assessing special circumstances. The considerations engaged by the concept of 'special circumstances' in relation to security for costs were considered by this Court in Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143 (Beazley, Santow and lpp JJA), and in Porter v Gordian Runoff Ltd [2004] NSWCA 171 (Bryson JA, Sheller and Giles JJA agreeing). The following principles were identified: (1) no order for security should be made in the absence of 'special circumstances'; (2) consideration of what may constitute special circumstances should not be fettered by some general rule of practice; (3) impecuniosity, without more, will usually be insufficient; (4) an order may be appropriate if the appeal is shown to be hopeless, unreasonable or of an harassing nature; (5) where a bona fide and reasonably arguable appeal would be stifled by an order for security, such an order should usually not be made, and (6) the subject matter of the appeal, including an issue as to the liberty of the individual, or a public interest may provide a reason for not imposing a security order which would stifle the continuation of the appeal."
5. In addition to these factors, the Court should take into account ss 56-58 and 60 of the Civil Procedure Act. Of particular importance here is s 60, which reads: "60 Proportionality of costs In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute."
6. To date, the parties have incurred costs of a nine day hearing in the Local Court, where the plaintiff lost. Even if the plaintiff had been successful, the damages would have been assessed at a relatively modest sum of $15,900.00. The costs incurred by both parties in the Local Court proceedings far outweighed the possible judgment sum. Nevertheless, the plaintiff has elected to appeal.
7. In Young v Cooke [2018] NSWSC 588, Walton J referred to numerous authorities, in particular Gleeson JA in Xenos v FAL Healthy Beverages Pty Ltd [2017] NSWCA 240 ("Xenos") where his Honour discussed the principles applicable to the application of UCPR 51.50. Although 50.8 refers to special circumstances and UCPR 51.50 refers to exceptional circumstances, Walton J equated the two expressions.
8. In Leighton International v Hodges [2012] NSWSC 458 ("Hodges"), a case which concerned exceptional circumstances required for disclosure, McDougall J stated at [20]: "As a matter of language, something is exceptional if it is out of the ordinary, or unusual. To my mind, the exceptional circumstances referred to in paragraph 4 of the practice note must be circumstances that are not normal, or usual; they must be something out of the ordinary; they need not be unique; but however one characterises them they are not 'exceptional' at large, but 'exceptional' because they necessitate disclosure".
9. In The Owners Strata Plan SP 69567 v Baseline Constructions Pty Ltd [2012] NSWSC 502 at [31], Stevenson J agreed with the statement of McDougall J in Hodges at [20].

The second defendant's submissions

1. The second defendant submitted that the circumstances in this matter are special, or exceptional, for the following reasons. The first is that the plaintiff appears to be impecunious. To paraphrase Ward CJ in Eq in Green Camel Pty Ltd v Urban Ecological Systems Ltd [2017] NSWSC 362, the test for a belief of a real risk of inability to pay the opposing party's costs has been described as setting a "low threshold" and involving an "undemanding test": see Living Spring Pty Ltd v Kliger Partners (2008) 20 VR 377; [2008] VSCA 93 at [15]-[16]; In the Matter of Felon's Fisheries Pty Limited [2016] NSWSC 1351 at [101].
2. I note that the plaintiff has not elected to put on evidence, and therefore cannot be cross examined. Instead, his son, Mark Gabriel, has provided information concerning the plaintiff's financial circumstances. His evidence is that the plaintiff works part time in a bakery owned by another of his sons.
3. The second defendant submitted that the plaintiff's ability to pay is a matter which itself can constitute an exceptional circumstances in accordance with Xenos.
4. The second defendant noted the following: 1. The address on the amended summons filed by or on behalf of the plaintiff in these proceedings nominated his address as the address of his solicitors (UCPR 42.21(b)). 2. The plaintiff appears to have sold the property in which he was living and divested himself of that asset and/or the proceeds of sale. The second defendant does not know whether the proceeds of that sale are in a bank account. The sale occurred after the solicitors for the second defendant had written to the plaintiff on 2 October 2018. Given the amount of costs which had been claimed by the second defendant, together with the likely costs claimed by the plaintiff's former solicitors, the plaintiff likely changed his address without nominating himself on the new purchase so as to divest himself of his assets and avoid the consequences of the Local Court proceedings and/or of this appeal. The affidavit of Mark Gabriel does not allay any of those concerns (UCPR 42.21(f)). 3. The plaintiff has not notified a new address (UCPR 42.21(c)). 4. The plaintiff usually goes to Lebanon and stays for about six months (T 31.15-19), and may in fact be ordinarily resident outside Australia (UCPR 42.21(a)). 5. Although the plaintiff seeks to appeal, and although the second defendant's costs in the Local Court have not been quantified, the plaintiff has not paid even a partial payment of those costs. An appeal does not operate as a stay. 6. The plaintiff appears not to have paid his previous solicitors (Aff Clancy 1 Feb 2018, [24]) and to be unable to do so ([261]). I note on this point that in his affidavit at [32], Mark Gabriel explains that the previous solicitors hold $26,412.10 in trust with Elmassian Lawyers. There is a trust account statement annexed to his affidavit to this effect. He explains that there is currently a dispute with Elmassian solicitors as to the quantum of fees that remain due and payable. 7. The costs of these proceedings are likely to surpass the costs of an ordinary appeal because it is common ground that the Local Court exhibits have been discarded (cf UCPR 42.21(1A)(j)). As I clarified above, the exhibits are available on the file and this submission is incorrect.

The plaintiff's submissions

1. Counsel for the plaintiff submitted that the plaintiff has incurred significant expenses, principally due to the second defendant's prior motion and this current motion. For these reasons, it would be oppressive to grant a stay. The plaintiff submitted that it would be unfair or oppressive to grant security given that the second defendant allowed 20 months to elapse before it filed its motion, and the plaintiff was required to take steps and incur costs in the proceedings in the interim.
2. Counsel for the plaintiff also submitted that the application for security is misconceived for two reasons. They are firstly, that there are two moving parties in the present appeal: the plaintiff and the third defendant. They are represented by the same legal representative and their interests in the appeal are the same.
3. The second reason is that the second defendant's application is misconceived. This is because in the context of s 50 of the Civil Procedure Act, no order for security may be made in the absence of special circumstances, and the plaintiff argued that the second defendant has not identified how special circumstances have been properly made out.

Conclusion

1. The difficulty with the plaintiff's first submission has to do with the proposed third defendant, Mark Gabriel. He was not a party in the Local Court proceedings, but the plaintiff seeks to join him as third defendant in the appeal proceedings. Mr Mark Gabriel was merely a witness in the Local Court.
2. Sections 39-41 of the Local Court Act 2007 (NSW) relevantly read: 39 Appeals as of right (1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law. … 40 Appeals requiring leave (1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court. 41 Determination of appeals (1) The Supreme Court may determine an appeal made under section 39 (1) or 40: (a) by varying the terms of the judgment or order, or (b) by setting aside the judgment or order, or (c) by setting aside the judgment or order and remitting the matter to the Local Court for determination in accordance with the Supreme Court's directions, or (d) by dismissing the appeal."
3. There is no express power under these sections of the Local Court Act to join a party to an appeal who was not a party in the Local Court proceedings.
4. In Labourpower Recruitment Services Pty Limited v Nolland [2019] NSWSC 512, Adamson J at [17] stated "This Court's jurisdiction under s 39 of the Local Court Act would not appear to extend to allowing amendments to pleadings." Section 39 does not appear to permit the addition of parties. To my mind, the plaintiff's first submission is misconceived. In the event that ss 39 and 41 do allow the addition of a party, the third defendant requires the leave of the Court to be joined as one. This has not occurred. Hence, at present Mr Mark Gabriel is not a party to the appeal.
5. I accept that the plaintiff works part time in a bakery owned by one of his sons (not Mark Gabriel), and in recent years has travelled overseas to Lebanon for some months at a time. Surprisingly, the plaintiff elected not give affidavit evidence, and therefore could not be cross examined as to his assets and liabilities. Nevertheless, I do not conclude he is impecunious. Even if he was, the fact of his impecuniosity alone would be insufficient to establish special circumstances. Mark Gabriel, the plaintiff's son, has given evidence that he has been paying the plaintiff's former solicitors' legal costs. There remains $26,412.10 held in trust with Elmassian Lawyers in relation to a dispute concerning the quantum of fees that remain due and payable to those solicitors.
6. It appears both parties' costs to date have exceeded the amount in dispute, should the plaintiff be successful on appeal.
7. The difference between the two is that the plaintiff has incurred its costs by initiating both the proceedings in the Local Court and in this Court, whereas the cross defendant has incurred its costs defending those proceedings. However, the cross defendant has also sought leave to file a notice of contention and has initiated both this motion and the prior motion in these proceedings. These motions have incurred costs for both parties.
8. Furthermore, it is my view that the plaintiff's chances of success in being granted leave to appeal and on appeal are weak, but not hopeless.
9. Taking these above factors into account, I am not satisfied that the cross defendant has established that this application involves special circumstances. Hence, I refuse to make an order that the plaintiff provide security for costs for the application for leave to appeal and/or the appeal.

Quantum

1. If I am wrong on whether the security for costs of the appeal should be provided, I will determine an appropriate amount. I am conscious when setting the quantum of security for costs that I should not stifle the plaintiff's appeal. The plaintiff is a man of modest means. The second defendant relies upon the affidavit of its solicitor Christopher Clancy filed on 22 May 2019 to estimate the quantum of costs the second defendant will incur on the hearing of the appeal and leave to appeal. It is accepted that part of the costs included in the estimate go to the issue of the notice of contention, but they are not likely to be a material part of the expense.
2. In the event that leave is not granted to file a notice of contention, the second defendant submitted that the costs of the appeal will not be materially different. Mr Clancy deposes in relation to the costs that have been incurred and will be incurred in prosecuting the appeal. They include the costs of pursuing the first notice of motion. As costs were reserved by Walton J, I disregard these costs, as the second defendant may ultimately not be awarded them. I also disregard the costs involved in the second defendant prosecuting the notice of contention. As to the past legal costs incurred in the appeal, I deduct $5,000 plus filing fees of $941. I also exclude the costs of preparing the appeal books of $20,000, as the onus is on the plaintiff to carry out that task. The second defendant estimates $65,000 for the solicitor's costs and $22,500 for counsel's fees, including preparation, as well as photocopy fees of $9,000. This equates to $96,500. It is my view that the quantum of costs at this stage would be a much lesser sum, such that I would apportion $20,000.

The second defendant's submissions

1. The notice of contention claims that the Magistrate failed to consider a great deal of evidence, including expert evidence and submissions, in determining that a collision in fact occurred. It also claims that her Honour did not consider whether or not the second defendant was required to indemnify in respect of it. The second defendant wishes to argue that regardless of who owned the BMW, the alleged collision was fraudulent and that even if the plaintiff (and not the third defendant) is found to be the owner of the vehicle, the damage did not occur in the manner claimed such that the second defendant was entitled to deny indemnity.
2. The proposed notice of contention is that the Magistrate's decision should be affirmed on the following grounds: 1. The plaintiff did not claim to have paid the claimed repair costs of $15,900. There was no finding that he did. The third defendant (In these proceedings) claimed that he paid the claimed repair costs. There was no finding that he did. 2. There was no evidence of any agreement for the plaintiff to reimburse the third defendant for any repair costs. To the extent that the third defendant did not pay the claimed repair costs, the plaintiff suffered no loss. To the extent that the third defendant did pay those costs, the plaintiff suffered no loss. 3. No application was made to add the third defendant, and the plaintiff is bound by the case run at trial. 4. The second defendant was not contractually bound to indemnify the first defendant in the Lower Court by reason of his untruthful statements in connection with the claim, his failure to assist in the processing of the claim and his failure to deliver every summons, complaint or paper in respect of the alleged loss. 5. Irrespective of what amount, if anything, was paid to the repairer, it was not proved that such amount was referable to the collision rather than any or all of the three prior collisions in the which the vehicle had been involved.

The second defendant's explanation for delay

1. The second defendant's explanation for delay is as follows.
2. The second defendant said that the delay was caused because its legal representatives were uncertain of its position. While the second defendant was disappointed in the Magistrate's decision because of the likely effect that it would have on costs, it did not seek to appeal it because the Magistrate's orders were effectively in favour of the second defendant. Moreover, the amount in issue in an appeal or judicial review, when compared to the (potentially non-recoverable) costs of re-hearing, meant that it would be uneconomical for the second defendant to seek judicial review.
3. So far as the Magistrate's costs decision is concerned, the second defendant argued that its legal representatives were of the opinion that it would need leave to appeal it.
4. It was for those reasons that the second defendant did not file any cross-appeal or application for judicial review. The second defendant accepts that it has been tardy in working out its position. However, no hearing date has been set and it is plain that the plaintiff, and would-be plaintiff, have also delayed in preparing the matter for appeal. In circumstances where there are not any appeal books yet set, and where there are unlikely to be any appeal books set for some time, there is no prejudice whatsoever to the plaintiff or to the third defendant by the lateness of the notice of contention. The second defendant argued that ultimately, the court's function is to dispense justice, not punish parties for their mistakes. In circumstances where there will be ample time for preparation of an appeal, and in the absence of any injustice, leave should be granted to file the notice of contention so that the real issues in dispute are able to be determined.

The plaintiff's submissions

1. The plaintiff argued that despite expressly abandoning its application for an extension of time to file a cross appeal in March 2018, the second defendant has applied for an extension of time to file a notice of contention.
2. The plaintiff argued that there is no genuine or adequate explanation for the delay. The plaintiff argued that on the second defendant's own evidence, over a period of 19 months it knowingly and intentionally violated successive orders to file any notice or summons seeking an appeal or review.
3. Furthermore, the plaintiff argued that the proposed notice of contention is hopelessly drafted, embarrassing and misconceived, to the point that it does not even enliven the jurisdiction of the Court. It fails to identify any error of law and relies upon purported errors of fact alone.
4. The plaintiff noted that the errors of fact are not even identified. Instead, the notice of contention contains general assertions such as, "The lay evidence on behalf of the plaintiff...was not credible"; "the Court would not have been satisfied that a collision occurred as alleged or that the other parties to the proceedings below had proved their respective cases"; and "[t]he plaintiff failed to prove that the damage claimed was caused by the alleged collision or to prove the quantum of such damage."
5. If the second defendant was to proceed on its proposed notice of contention, there would be a further delay to these proceedings and an escalation in costs, as the notice of contention seeks to re-determine every fact in issue in the Lower Court proceedings, including in relation to matters such as credibility.
6. In fact, as the second defendant makes clear in its written submissions, not only does it intend to have the Court reassess the "credibility" of the plaintiff's evidence, and re-determine every aspect of liability, causation and quantum in relation to the plaintiff's claim and the first defendant's cross claim for indemnity, it also intends to cavil with the Magistrate's finding that the quantum of damage caused by the plaintiff's negligence was $15,900.
7. The plaintiff argued that the second defendant appears to assert either that damages should be assessed at less than $15,900, such that the parties will each spend thousands of dollars arguing over every $100 at issue, or the second defendant intends to ask the Court to find that the plaintiff's evidence as to the expenses incurred was false. The second defendant intends therefore to require the parties to engage in another factual battle concerning allegations of fraud, this time over the repair costs paid to the repairer, with the intent of reducing the damages assessment.
8. These issues are only a small part of what the second defendant intends to address in the notice of contention. The plaintiff argued that through its proposed notice of contention, the second defendant seeks to re-agitate and re-argue the case which it has already spent hundreds of thousands of dollars, and several years, to argue in the Local Court.

Conclusion

1. The solicitor for the second defendant has provided an explanation for delay, which is that he was not aware of the correct procedure for filing of a notice of contention. Part of the delay in seeking to file the notice of contention occurred when judgment in the earlier motion was reserved.
2. I accept there has been a delay in the second defendant seeking to file the notice of contention. However, I do not agree that the cross defendant in its proposed notice of contention intends this Court to reassess and re-determine every aspect of liability, causation and quantum. The purpose of a notice of contention is to seek to put the case that the judgment below should be affirmed in accordance with the findings made by the Magistrate. The plaintiff's applications for an extension of time, leave to appeal and the appeal have not been listed for hearing.
3. The plaintiff has not demonstrated that he will suffer any real prejudice. To date, he has not prepared the appeal books. It is my view that the issues raised in the notice of contention will enable the resolution of the real issues in dispute between the parties.
4. Taking these factors into account and in the exercise of my discretion, I extend time for the cross defendant to file and serve a notice of contention as outlined in paragraph [23] of its submissions.

Costs

1. Costs are discretionary. The appropriate order for costs is that costs are reserved.

The Court orders that: (1) The cross defendant's application for security for costs is refused. (2) The cross defendant is granted leave to file and serve a notice of contention as set out in paragraph [23] of its submissions. (3) The notice of contention is to be filed and served within 14 days. (4) Access is granted to both parties to the Local Court file, including the exhibits. (5) Costs of the cross defendant's amended notice of motion filed 21 May 2019 are reserved. (6) The matter is listed for directions at 9.00 am on 2 October 2019 before the Registrar.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 September 2019