CIVIL PROCEDURE - appeal - appeal without leave on question of law - no appeal from findings of fact - availability of appeal with leave on questions of "mixed law and fact"
Source
Original judgment source is linked above.
Catchwords
CIVIL PROCEDURE - appeal - appeal without leave on question of law - no appeal from findings of fact - availability of appeal with leave on questions of "mixed law and fact"
Judgment (8 paragraphs)
[1]
Solicitors:
Spectre Law Pty Ltd (Plaintiff)
Ligeti Partners (Defendant)
File Number(s): 2018/324684
Decision under appeal Court or tribunal: Local Court
Jurisdiction: Civil
Date of Decision: 25 September 2018
Before: S Freund LCM
File Number(s): 2017/310160
[2]
Judgment
BASTEN J: The plaintiff appeals from a judgment in the Local Court awarding him damages for the loss of use of his motor vehicle after it was damaged in a collision which was the fault of the defendant. The plaintiff claimed an entitlement to recover rental charges in an amount of $11,128.41 incurred over a period of 40 days during which his vehicle was undergoing repairs. Magistrate S Freund found that reasonable compensation for the loss of use of the vehicle for that period was an amount of $2,805.60. Judgment was given for that amount, together with interest running from 25 September 2018.
There is a single short issue involved in the case: that is whether the magistrate erred in allowing the cost of a replacement vehicle, being a vehicle of lower value than the prestige vehicle (a Lexus IS 250F Sport sedan) which was damaged. The plaintiff's legal representatives managed to articulate this point in no fewer than 27 grounds of appeal. To the extent that nine of the grounds were said to involve questions of "mixed law and fact" leave was sought pursuant to s 40(1) of the Local Court Act 2007 (NSW). The other grounds, which were said to involve an appeal "only on a question of law" enjoyed an appeal as of right pursuant to s 39(1) of the Local Court Act.
Sections 39 and 40 of the Local Court Act reflect the conventional view that legal proceedings involve questions of law, questions of fact and questions of mixed law and fact. Such a tripartite classification is never easy to apply in practice. However, what appears not to be appreciated by the structure of the provisions of the Local Court Act is that there is no right of appeal, with or without leave, from findings of fact. The assumption that the application of law to the facts may be a question of "mixed law and fact" will rarely assist an appellant. If the legal principle has been incorrectly identified in the Local Court, that may be established on an appeal as of right. If it be a material error, that will usually result in an order setting aside the judgment below and may involve replacement with a different order, or remittal to the Local Court. It is only in the rare case that the legal principle has been correctly stated, but misapplied to the facts as found, that leave will be appropriate. That is not this case. Nor was there any other basis upon which the plaintiff submitted he would be assisted by a grant of leave.
[3]
Background facts
The relevant facts as to the accident and the repairs of the damaged vehicle were not in dispute. That is, the accident, which occurred on 27 March 2017 was entirely the fault of the defendant. Further, the fact that the repairs ultimately took 40 days to be completed was not challenged as unreasonable. The collision did not prevent the vehicle being driven, and indeed it was not until 14 August 2017 that the plaintiff took the vehicle to be repaired. On the same day he hired a replacement vehicle from a business known as "I'm in the Right", owned by Reliance (Aust) Pty Ltd. During the period when the vehicle was being repaired, he had the use pursuant to a rental agreement of a prestige vehicle, a Lexus IS 250F Sport sedan for 14 days and, after a problem developed with the brakes on the Lexus, a BMW 318i prestige sedan for 26 days. There was no dispute as to the amount of the charges for these period, which totalled the amount claimed, namely $11,128.41.
In his statement, which was tendered in the Local Court, the plaintiff said that he obtained the damaged vehicle in September 2015 for use by himself and his wife, who needed the vehicle to fulfil the following functions:
"a. Domestic and social purposes, such as shopping, travelling from place to place and visiting friends.
b. Family purposes, such as picking up and dropping off our children to school and visiting family."
The magistrate accepted the plaintiff's evidence that the damaged vehicle was used for these purposes. She also noted that it was not used for business purposes and that the plaintiff had a different vehicle for his business. The magistrate accepted that there was a relevant need for a replacement vehicle for the purposes identified by the plaintiff.
The magistrate also accepted the plaintiff's evidence that he did not need a luxury car for domestic, social and family purposes, that any car would have satisfied those requirements and that he told an officer of his insurer that "he would've been happy with any replacement vehicle that was available, [a Holden] or anything like that and that he was 'not fussed at all'."
Those findings could not be challenged on the appeal, nor indeed could they have been successfully challenged on appeal with respect to the facts. The cross-examination as to the conversation with the officer from the insurance company included the following questions and answers: [1]
"Q. Did you ask for a luxury car or did you just ask for whatever is available?
A. Whatever, you know, I could use for, you know, for my purpose of use sort of thing.
Q. You just asked for whatever you could use for the purposes you wanted to use the car?
A. Yes sir.
Q. That could have been a Holden Camry or a Toyota Pulsar or something, couldn't it?
A. As I have two young children, the capsule - I have two capsules in the back. I needed a sedan, a bigger vehicle, too.
…
Q. But what you said to the man on the phone from the insurance company, when you were asked about it, was that, 'I just pretty much asked whatever's available and that's what they gave me'.
A. Yes, sir.
…
Q. … He said to you, 'Yeah, okay, so would you have been okay with just a Holden sedan or a Camry or something like that?' and you said, 'Mate, any car, just as long as I have a car there for my wife, for the kids and stuff. I wasn't fussed at all. No, mate, not fussed at all'. Do you remember saying that?
A. Yes, sir."
[4]
Relevant legal principles
The applicable legal principles have been addressed in the companion case of Nguyen v Cassim [2] and need not be repeated. However, it may be added that, the test as to the reasonableness of the expense incurred being objective, the concessions made by the plaintiff in the evidence set out above were not determinative. They were merely available as evidence supportive of a finding that the hire of a prestige vehicle was not reasonably necessary to meet the established needs.
[5]
Reasoning of magistrate
Because there were aspects of the magistrate's reasons which were open to challenge, it is desirable that the course of reasoning be summarised.
The magistrate accepted that the plaintiff had established appropriate needs warranting the hire of a replacement vehicle. [3] She then turned to the question whether the plaintiff was entitled to replace his damaged vehicle with an equivalent luxury vehicle during the period of repair. She stated that "there has been no direct higher court authority in this State as to what the appropriate measure of damages is for the loss of a non-income producing vehicle in particular if that vehicle is a luxury vehicle." [4] Whatever was meant by "higher court", the Local Court is bound to apply legal principles accepted by this Court and, indeed, should generally apply legal principles articulated by judges in the Supreme Court, and particularly by the Court of Appeal, even if they were not dispositive in the particular case in which they were made.
The magistrate set out passages from the reasons of Ipp AJA in Anthanasopoulos v Moseley, [5] noting McCallum J's statement in Wong v Maroubra Automotive Refinishers Pty Ltd [6] that "[s]ome guidance may be found in the decision of the Court of Appeal in Anthanasopoulos". Further, having referred to the dicta of Harrison J in Droga she made no further reference to it except to note how it had been dealt with by an assessor in the Local Court. No principle was extracted from the dispositive reasoning of Harrison J. The magistrate then set out six submissions attributed to counsel for the plaintiff, one of which was that the dicta of Harrison J in Droga v Cannon [7] were not binding and were contrary to principles established in cases that are binding on this Court. In a separate paragraph she stated: "I do not agree." [8] It is not clear with which proposition(s) she did not agree.
The magistrate then proceeded to set out the key passage in the reasons of a judge of the WA District Court, Beamish v Kanakis, [9] which included the statement that it was appropriate to take into account "the precise nature of the need of the person who has lost the use of the damaged vehicle" and "the value of the damaged vehicle, and the value of available replacement vehicles which are capable of meeting the precise need". The magistrate read that statement as requiring a focus on precise needs which did not necessarily require a vehicle of equivalent value to the damaged vehicle.
After summarising Mr Souaid's concessions in cross-examination (the relevant parts of which are quoted above) the magistrate concluded:
"[23] Accordingly I am satisfied on the balance of probabilities that Mr Souaid did not need a luxury car for the repair period and a non-luxury sedan would have sufficed for his needs during the repair period."
[6]
Conclusions
The magistrate said that her conclusion "ensures that you do not create claims based [on] status or desire. Such claims escalate the costs for all involved including the uninsured and the entire insurance paying community." These observations were irrelevant to the proper application of legal principle, as determined by higher courts. Furthermore, the understanding of how the principle summarised in Beamish was to be applied placed a particular gloss on the statement which may not necessarily have correctly reflected the views of Derrick DCJ and, having regard to earlier statements in Beamish, probably did not.
The proper course for the Local Court in these circumstances was not to dismiss statements, whether obiter or not, in the Court of Appeal as mere straws in the wind; nor was it appropriate to dismiss the approach a judge in this Division as mere obiter; for reasons explained in Nguyen, they were in fact somewhat more dispositive than that characterisation would suggest.
In these respects the magistrate was in error. However, her conclusion as to need was consistent with that which follows from adopting the approach set out in dicta in Anthanasopoulos, and in three decisions of this Court discussed in Nguyen.
Because the errors favoured the plaintiff and did not materially affect the fact-finding, they do not form a basis for interference by this Court. In particular, the magistrate did not err in failing to adopt the approach for which the plaintiff contended, both in the Local Court and on appeal.
In a further passage, the magistrate asked whether the plaintiff had claimed "non-compensable benefits", concluding that the reasoning of Lord Hoffmann in Dimond v Lovell [10] led to the conclusion that he had, although the evidence indicated that the rates charged by "I'm in the Right" were within the range of rates for similar luxury vehicles charged by ordinary car hire companies.
Because a decision had already been taken not to allow the rental charges paid to the hire company, this statement was not dispositive. On the other hand, it was not appropriate for the Court to make factual findings by way of assumptions based on commercial practice in other jurisdictions if the evidence did not support those assumptions.
On the other hand, given the evidence she accepted in relation to the hiring of a "Toyota Camry or similar" it is not clear whether, in reaching conclusions as to the rates charged for similar luxury vehicles, due allowance was made for the period over which the vehicle was hired. Thus in her final conclusions, the magistrate stated:
"[53] It was the evidence of Ms Steel [the NSW Location Manager for Hertz Australia Pty Ltd] that a customer like the plaintiff who was seeking a replacement vehicle is classified by Hertz as a 'leisure daily walk up customer' [and] could hire a motor vehicle from Hertz for an initial term of seven days and could then repeatedly extend the duration of the hire for an indefinite period of time and would have paid in respect of the whole of the hire period rate no higher than the daily seven day rate that was originally agreed upon.
[54] Accordingly satisfied on the evidence, that the GST inclusive daily cost of obtaining a Toyota Camry sedan from Hertz, together with the cost of collision damage waiver, for a 40 day period commencing with a seven day hire term on 14 August 2017 would have been [equal to] $70.14 per day (namely $42.64 plus $27.50) or a total cost of $2,805.60 for 40 days."
The magistrate awarded damages in that amount.
[7]
Orders
No appellable error having been demonstrated according to the legal principles accepted in Nguyen v Cassim, the appeal must be dismissed with costs.
[8]
Endnotes
Tcpt (LC) 22/05/18, pp 14(32)-15(40).
[2019] NSWSC 1130.
Souaid v Nahas at [15].
Souaid v Nahas at [16].
(2001) 52 NSWLR 262; [2001] NSWCA 266.
[2015] NSWSC 222.
[2015] NSWSC 1910.
Souaid v Nahas at [20].
[2017] WADC 33; 91 SR (WA) 261 at [132].
[2002] 1 AC 384 (HL).
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Decision last updated: 03 September 2019