Hean & Anor v Thai & Anor

LEGISLATION CITED : Local Court (Civil Claims) Act 1970 (NSW) - s 69(2A)

Jones v Ho (17 November 2004, unreported, NSWLC 2114/2003) Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [2000] NSWSC 1153 CASES CITED : Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405

Lim Chour Hean (First Plaintiff)

Ngo Trong Le Tran (Second Plaintiff) PARTIES : Tong Xuong Thai (First Defendant)

Winnie Sui (Second Defendant)

Mr R Goodridge (Plaintiffs) COUNSEL : Mr K T Manion (Defendants)

Ms E Perla, Perla & Jordan Lawyers (Plaintiffs) SOLICITORS : Mr M Board, CKB Partners (Defendants)

LOWER COURT FILE NUMBER(S) : 11133/2003; 1590/2004

LOWER COURT JUDICIAL OFFICER : Assessor G H Roberts

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

10444/2005 - LIM CHOUR HEAN & ANOR v TONG XUONG THAI & ANOR

JUDGMENT (Appeal decision of Local Court Assessor - Small Claims Division) 1 MASTER: By summons filed 10 February 2005 the plaintiffs seek an order that the judgments of Assessor G H Roberts handed down on 12 January 2005 and 18 January 2005 in Local Court proceedings 11133/2003 and 1590/2004 be set aside and an order that the matters be remitted to the Local Court Downing Centre for determination. The plaintiffs relied on the affidavit of Elena Perla sworn 21 February 2005. The defendants relied on the affidavit of Martin Pearce Board sworn 9 March 2005. 2 The first plaintiff is Lim Chour Hean. The second plaintiff is Ngo Trong Le Tran. The first defendant is Tong Xuong Thai. The second defendant is Winnie Sui. In the Local Court proceedings 11133/2003 Lim Chour Hean was the plaintiff and Tong Xuong Thai the defendant. In Local Court proceedings 1590/2004 Ngo Trong Le Tran was the plaintiff and Winnie Sui the defendant. For convenience, in this judgment I will refer to the parties by name. 3 This appeal is brought in an unusual manner. Technically, there should be two appeals but there is only one. Both matters involve motor vehicle accidents where a part confession was made and not accepted. Each matter went before the Assessor in the Small Claims Division and by applying the same reasoning, he entered verdicts and judgment in favour of the defendants in each case. 4 Section 69(2A) of the Local Courts (Civil Claims) Act 1970 (NSW) (the Act) allows an appeal to this court from the Small Claims Division of a court only on the grounds of lack of jurisdiction or a denial of natural justice. Section 69(4) of the Act provides that the court may determine an appeal by either (a) setting the judgment or order aside or (b) by varying the terms of the judgment or order or (c) by setting the judgment or order aside and remitting the matter for determination in accordance with the court's directions or (d) by dismissing the appeal.

Grounds of appeal 5 The grounds of appeal involve claims where the defendants admitted liability and admitted that the plaintiffs as a result of the defendants' negligence sustained damage. The defendants filed a statement of part confession. The plaintiffs pleaded that by Assessor Roberts disregarding the admission of liability and the part confession they have been denied natural justice. 6 The plaintiffs submitted that if Assessor Roberts did not accept their evidence he still should have entered judgment for them in the amounts confessed in the statement of part confession filed by the defendants. The plaintiffs further submitted that the defendants based their evidence in the Local Court solely on the evidence offered by the plaintiffs and that their evidence was primary evidence and the Assessor ought to have found in the plaintiffs' favour on the balance of probability given that the defendants' evidence was secondary. 7 In his decision Assessor Roberts applied the finding of Her Honour Magistrate Horler in Jones v Ho (17 November 2004, unreported, NSWLC 2114/2003).

The Hean v Thai proceedings 8 In proceedings 11133/2003 Hean claimed from Thai the cost of repairs to a motor vehicle arising from the negligence of Thai on 14 June 2003. On 2 December 2003 Thai filed a Notice of Part Confession in the sum of $4,327.69. In response Hean filed a notice refusing to accept the part confession. At a pretrial review it was agreed that only the quantum of Hean's claim was in dispute. It had been further agreed that a semi formal hearing, with oral evidence from the respective loss assessors, was appropriate.

The Hean assessment 9 At the assessment, Hean relied on a report and quotation by Mr Hong Ly, the owner of Linda Smash Repairs (Linda), stating that a fair and reasonable charge for the repairs to be carried out by the repairer was $6,513.13 but this quotation was not calculated on the basis of an hourly rate for work (Ex TA). Additionally, Hean relied on a report of Mr Gill, a motor vehicle assessor in which he reduced the Linda quote to $5,390.00 but he also did not calculate the amount on the basis of hourly rates for the repair work to be undertaken. 10 Thai relied upon a statement of Mr Houliaras an AAMI assessor. Mr Houliaras inspected the repairs carried out by Linda to determine whether the quote provided by Linda was fair and reasonable when compared to industry guidelines. Mr Houliaras outlined the hourly labour paint rates from the Motor Traders Association Repair Times Manual. Mr Houliaras considered that the overall repair of the vehicle was considered satisfactory and on his hourly rate basis he recommended that the repair account be adjusted to $3,775.05 plus GST. 11 Assessor Roberts considered that he was bound by the decision in Ho. Ho decided what was the fair and reasonable costs of repairs to a motor. 12 In Ho Magistrate Horler stated [at para 60]: "From the evidence of these witnesses, as tempered by the evidence in the Plaintiffs' case, I was satisfied that the 'overwhelming majority' of repairers quote at or near the hourly rates specified in the MTA, NRMA or other insurer's specified rates, when an insurance company is involved on one side or the other. That does not, of itself, make those rates necessarily 'the industry rate', much less prove that there is any such thing as an industry rate i.e., a rate universally adopted in the repair industry by agreement. There was nowhere near sufficient evidence before me to make such a finding, as was urged by the Defendants. But I must and do find, since they are widely used, that they are 'reasonable rates.'" 13 Critically, Assessor Roberts in his reasons stated: "Her Honour highlighted 'The hourly rate for private smash repair work, i.e. when not constrained by requiring insurance company authorisation of the repairs, was calculated by the repairers as follows …' and proceeded to give five examples of such hourly rate calculation by repairers. In the subject matter the plaintiff has provided no such calculation. …Accepting Her Honour's decision as both relevant and persuasive this court has concluded, on the balance of probabilities, that it cannot be satisfied that the plaintiff's all up figure has established the amount claimed to be fair and reasonable. Accordingly, there is a verdict and judgment in favour of the defendant." 14 This is a surprising result. The issue before the Assessor was quantum, i.e. determining reasonable costs of repair of the damage to Hean's motor vehicle caused by the rear end collision. The Assessor had to determine what was a fair and reasonable cost of repair. The parameters set by the parties were between $3,775.05 plus GST and $6,513.13. It was open to the Assessor to prefer one means of assessment of damage over another, namely, the defendant's report which took an hourly rate into account over the plaintiff's which did not. Magistrate Horler in a different case decided that the hourly rate should form the basis of the calculation of a fair and reasonable rate. In my view the Assessor erred in law by deciding that there was in effect no evidence to prove the plaintiff's costs of repair. However, in this matter an appeal can only occur where there has been a denial of natural justice. Is it the case here? 15 Generally, natural justice requires that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed, so that they may be in a position (a) to make representations on their own behalf; or (b) to appear at a hearing or inquiry (if one is to be held); and (c) effectively to prepare their own case and to answer the case (if any) they have to meet (see Professor S A de Smith, Judicial Review of Administrative Acts, 2nd ed 180-181). 16 In Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [2000] NSWSC 1153 O'Keefe J helpfully referred to the objectives of the Small Claims Division. I have reproduced paragraphs 17 to 20 of his Honour's judgment below. "17 The Local Courts (Civil Claims) Act 1970 (the Act) provides that for the purposes of exercising the jurisdiction conferred on courts by or under the Act, the court is divided into a General Division and a Small Claims Division (s 61). The jurisdiction of the court in its Small Claims Division may be exercised by an Assessor or a Magistrate sitting alone (s 63). The jurisdiction of the court sitting in its Small Claims Division was, at the material time, limited to $3,000 (s 12(3)). In September 2000 this jurisdictional limit was increased to $10,000.

18 The statutory basis for the procedure in the Small Claims Division is specified in s 23B of the Act as follows: "(1) Proceedings in the Small Claims Division of a court are to be conducted with as little formality and technicality as the proper consideration of the matter permits. (2) The rules of evidence do not apply to an action being heard or other proceedings in the Small Claims Division of a court. (3) An Assessor or Magistrate exercising the jurisdiction conferred on a court sitting in its Small Claims Division may inform himself or herself on any matter relating to an action being heard or other proceedings in the Small Claims Division in such manner as he or she thinks fit. (4) Proceedings in the Small Claims Division of a court (other than any judgment given or order made in respect of the proceedings) are not required to be recorded." 19 A clear legislative policy emerges from the Act in relation to small claims, namely, that there should be a quick, cheap and informal resolution of such claims. To achieve this, the proceedings should be conducted with the minimum of formality. That has many advantages. It tends to shorten proceedings. It assists in reducing costs. It makes it easier for litigants in person to understand the procedures, perhaps to appear for themselves and not be disadvantaged by excessive formality and procedural rules. Furthermore, the legislation has been so framed as to ensure to the greatest extent possible that claims before the Small Claims Division of the Local Court should begin and end in that court. The limitation on the right of appeal permitted by the statute betokens this. Such a policy is readily understandable in the light of the fact that the ceiling for claims in the Small Claims Division is so low, $3,000 at the material time. Taking up the time of superior courts with such small matters is thus avoided in the vast majority of cases.

20 It is against such a legislative framework and intent that the Small Claims Division of the Local Court has evolved procedures for dealing with small claims. These are largely the work of the late Mr K Henderson, Magistrate, and has been followed for some years. There are different forms of hearing open to the parties to accept in order to progress their claims with a minimum of expense and formality and maximum of speed, having regard to the amount involved and issues posed in each case. They are: (a) informal hearing, that is a procedure in which written statements and relevant documentation is presented without the necessity or expense of witnesses attending. No oral evidence is given and there is no cross-examination;

(b) semi-formal hearing, that is a procedure adopted in a case in which it is considered necessary that a witness or witnesses should be questioned by the parties after their written statements have been tendered;

(c) formal hearing, that is a procedure in which evidence is taken on oath and there is cross-examination and addresses in the same way as in an ordinary adversarial proceeding in a superior court." (see also Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405) 17 Hean referred to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 (16 November 2000) where Gleeson CJ stated [at para 100]: "One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding." 18 The difficulty with Hean's claim that there has been a denial of natural justice is that when the Ho decision was handed down (after Hean had been heard) the Assessor gave the parties the opportunity to relist this matter and make further submissions in relation to the Ho decision. Hean did not take up that opportunity. Nor did Thai. Hean did not seek to address the Assessor on the applicability of Ho, which assessed a fair and reasonable costs of repair on an hourly rate, when the reports Hean had relied upon were on a different basis. In these circumstances, there has been no denial of natural justice.

The Tran v Sui proceedings 19 In Tran v Sui, an agreement was reached between the parties. It was recorded by the Assessor as being that Tran repeated the submissions made in Hean but the facts from the statements in Tran would be ascertained otherwise the law would follow the decision made in Hean. Sui agreed with this methodology. 20 It follows that Tran also had the opportunity to make submissions in the light of the decision in Ho but chose not to do so. For this reason there is no denial of natural justice. The appeals are dismissed. The decisions of Assessor Roberts dated 12 January 2005 and 18 January 2005 are affirmed. The summons filed 10 February 2005 is dismissed. 21 Costs are discretionary. Costs normally follow the event. The plaintiffs are to pay the defendants' costs as agreed or assessed.

(2) The decisions of Assessor Roberts dated 12 January 2005 and 18 January 2005 are affirmed.

(3) The summons filed 10 February 2005 is dismissed.

(4) The plaintiffs are to pay the defendants' costs as agreed or assessed. **********

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