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.