Wong v Maroubra Automotive Refinishers Pty Ltd; Ayres v Maroubra Automotive Refinishers Pty Ltd

Judgment 1These two proceedings arise from separate motor vehicle accidents that involved cars belonging to each of the Plaintiffs. In each case the car was towed to the Defendant's premises where they remained. Each of the Plaintiffs sues in detinue and for damages. Each Plaintiff also seeks a declaration that the Defendant was not entitled to exercise a lien over the Plaintiff's vehicle for unpaid towing fees and unpaid storage fees. 2In both matters the Defendant claims unpaid towing fees and unpaid storage fees from the Plaintiff, alternatively the Plaintiffs' insurer, Insurance Australia Ltd, which has been named as the Second Cross-Defendant in each cross-claim. 3In both matters the Plaintiff hired a rental car for the period that their own motor vehicle remained at the Defendant's premises. 4In the Ayres matter the accident occurred on 27 December 2013. The car was towed to the Defendant's premises on that day and remained there until 9 April 2014. The charges for a rental car during that period were $4,593.60. The amount claimed in the cross-claim in the Ayres proceedings is $2,175.50. 5In the Wong matter the accident occurred on 11 January 2014 when the car was towed to the Defendant's premises. It remained there until 4 April 2014. The cost of a rental car during that period was $2,924.91. The amount claimed in the cross-claim was $1,443.00. 6The matters are to be heard together on 9 March 2015 with an estimate of 2 days. 7The proceedings came before me for the resolution of two Motions in the Wong proceedings. The Defendant filed a Motion on 3 October 2014 seeking orders that under s 58(1)(a)(iii) of the Civil Procedure Act 2005 (NSW) the Plaintiff be precluded from relying on the affidavit of Sharon Wong sworn 26 September 2014 and the affidavit of Brian Hans Christenson sworn 29 September 2014. 8The Plaintiff filed a Motion on 20 October 2014 seeking an order pursuant to r 31.20 of the Uniform Civil Procedure Rules (2005) NSW that each of the Plaintiff and the Defendant have leave to rely on evidence from one expert witness on the question of the value of the Plaintiff's motor vehicle at any material time or times and an order extending the time for service of the Plaintiff's lay and expert evidence to 29 September 2014. 9The Statement of Claim in the Wong proceedings was filed on 20 March 2014. When the proceedings came before the Registrar for a second time on 2 April 2014 Consent Orders were made whereby the Plaintiff paid the sum of $1,424.50 into Court as security and as a result the Defendant released the Plaintiff's motor vehicle. Similarly, in the Ayres proceedings a Consent Order of 2 April 2014 provided for the payment by that Plaintiff of $2,116.40 into Court as security and thereafter Ms Ayres's motor vehicle was released. 10On 2 May 2014 directions were made by consent that provided for the filing of pleadings and the matters were listed for Directions on 10 June 2014. On 10 June 2014 directions were made by consent for the filing of evidence by all parties. In each case the Plaintiff was to file and serve any affidavits upon which she relied by 18 July 2014, the Defendant/Cross-Claimant was to file its evidence by 22 August 2014 and the Plaintiff was to file affidavits in reply and in defence of the cross-claim by 12 September 2014. 11Ms Wong filed her affidavit on 25 July 2014 along with an affidavit of an officer of Insurance Australia. On 28 July 2014 Ms Wong's solicitor filed an affidavit in respect of particular enquiries she had made relevant to the claim. 12On 26 August 2014 the Defendant filed an affidavit of Michael Schumak, a director of the Defendant. 13The proceedings were due to be before the Court for directions on 19 September. However, on 12 September 2014 the parties agreed on Consent Orders because the Plaintiff had failed to comply with the direction to file and serve her affidavits in response to the cross-claim and in reply by that day. The Consent Orders that were agreed by the Registrar in Chambers vacated the 19 September directions hearing, re-listed the matter for directions on 3 October 2014 and, relevantly, directed the Plaintiff to serve any affidavits on which she relied in her defence to the cross-claim and in reply on the Statement of Claim by 26 September 2014. 14On 26 September 2014 Ms Wong swore and filed an affidavit which on any reading of it could not be said to be other than evidence in chief on the claim in the Statement of Claim. Putting aside what is contained in paragraphs 2-4 concerning a business card (an issue no longer in dispute) paragraphs 5-10 gave evidence about the condition of her vehicle when she picked it up on 5 May 2014 from the repairers where it was taken after it was released by the Defendant. Paragraphs 11-13 annexed documents evidencing the registration and comprehensive insurance costs of the vehicle for the period 31 May 2013 to 31 May 2014. Finally, paragraphs 14 and 15 said that prior to the accident on 11 January 2014 her vehicle had been maintained in good condition and had had no problems. 15On 29 September 2014 the Plaintiff filed an affidavit by Brian Hans Christenson who described his occupation as independent motor vehicle loss assessor and valuer. The affidavit is purportedly by an expert witness giving a pre-accident market value of the Plaintiff's vehicle at the date of the collision on 11 January 2014 and what would have been the market value of the Plaintiff's vehicle on 8 April 2014 if it had been in its pre-accident condition. 16It is not necessary to detail all of the material in the affidavit. It is sufficient to note that Mr Christenson's opinion is largely based on the reading of publication called "Glass's Guide", a well-known publication in relation to the value of motor vehicles. There appears to be some adjustment to the figures that appear in that Guide for the actual mileage the Plaintiff's car had driven at the relevant time. 17The affidavit demonstrates that the difference in value between the vehicle on the two dates was $339.00. The point of the exercise was to put forward an alternative basis for the damages claim based on passages in The Owners of Number 7 Steam Sand Pump Dredger v The Owners of SS "Greta Holme" [1897] AC 596 at 605 and West Midlands Travel Ltd v Aviva Insurance UK Ltd [2013] EWCA Civ 887 at [23]. In other words, Mr Christenson's evidence was clearly evidence in chief. 18The Defendant submitted that the two affidavits should not be permitted to be relied upon because they are not affidavits in reply and they were filed and served well outside the time stipulated for the filing of evidence in chief. In addition, the Defendant submitted that Mr Christenson's affidavit should not be able to be relied upon, and the Plaintiff's Motion in relation to his expert evidence should be refused, because there was a failure to seek promptly directions from the Court where it was intended to adduce expert evidence, contrary to r 31.19 UCPR. The Defendant pointed to the fact that at no time when directions were made for the service of affidavits no application was made for directions concerning an expert's report. 19The Defendant submitted that it would now be put to the expense of having to meet this evidence and that the costs would be increased either by having to obtain an expert to respond to the evidence or at least by cross-examination of Mr Christenson. In that regard the Defendant pointed to s 60 of the Civil Procedure Act and the fact that Mr Christenson's estimate of the difference in value was only $339.00. The Defendant also pointed to the lack of any explanation for the service of affidavits of Ms Wong and Mr Christenson well beyond the time stipulated in the directions. 20The Plaintiff conceded that the evidence now sought to be relied upon was capable of being obtained at an earlier time. It was simply identified and obtained late. The Plaintiff further submitted that no additional cost or expense has been brought about because if the evidence had been filed within the time stipulated the Defendant would still have needed to consider how it would meet that evidence and, if necessary, incurred expense in doing so. 21The Plaintiff pointed to the fact that the hearing date is a sufficient distance away from the present time that it could not be said that there was any real prejudice in the Defendant being able to meet the new evidence within the time. The fact that two days had been set aside for the hearing means that there will be ample time for any additional evidence to be given and dealt with. Finally, the Plaintiff submitted that if the evidence had been served in time no issue under s 60 about proportionality would have arisen. 22In my opinion, the Plaintiff should be permitted to rely on the affidavit of Sharon Wong sworn 26 September 2014. It may be accepted that the evidence in it is fresh evidence but it is not evidence that will prolong the hearing in any way. The Defendant can point to no prejudice arising from it. 23The position of Mr Christenson's affidavit is different. If that affidavit is permitted to be relied upon it will prove only that, if an alternative measure of damages is proved, those damages will amount to $339.00. In the case of the detention of a vehicle or a vessel the usual measure of damages where the goods are returned is the cost of hiring a substitute for the period of the detention provided the charges are reasonable: Fleming The Law of Torts (9th ed, 1998 LBC Information Services) at 77 and 284. 24The Defendant has conceded that a hiring cost of $36.11 per day is a reasonable hiring charge although it is not conceded that the Defendant is liable for that sum or any sum. It would be surprising, if the Plaintiff can show the need to hire a substitute car, that the cost of doing so would not constitute the main portion of any damages awarded: Provate Parking Services (Vic) Pty Ltd v Huggard (Supreme Court (Vic), Batt J, 15 February 1996, unrep). If the damages are general damages at large, the cost of hiring would provide a very good indication of the loss to the Plaintiff during the period of the detention. 25If the Plaintiff is unsuccessful in showing that the Defendant should pay $36.11 per day it is unlikely to be because that method of quantifying the damages is incorrect but because the Defendant has some other defence to the claim as a whole. The need to move to an alternative method for calculating the damages is likely to be remote in the extreme. Where those damages amount only to $339 the cost involved in proving that is not justified in the light of s 60 of the Civil Procedure Act. Section 60 provides: 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. 26It does not appear to me that it is any answer for the Plaintiff to say that if this evidence had been filed in the time stipulated for filing evidence in chief no issue of proportionality would have arisen. Since the evidence put forward by Mr Christenson is said to be expert evidence it would have been necessary for the Plaintiff to have raised the matter pursuant to r 31.19 which provides that any party intending to adduce expert evidence at trial must promptly seek directions from the court in that regard.. 27In Chapman v Chapman [2007] NSWSC 1109 Brereton J discussed some significant matters related to r 31.19. He said: [6] ...It is opportune to point out that the obligation to move the court for directions under r 31.19 is one to do so "promptly", as soon as it becomes apparent to a party that he or she may adduce expert evidence. That obligation arises before an expert is retained, let alone before the expert provides a report. One important reason for that is to facilitate in an appropriate case the use of parties' single experts, a course which is compromised where one party has already obtained its own expert: ordinarily, fairness will dictate where one party has retained its own expert that the other must be permitted to adduce its own expert evidence, so that if a requirement for a single expert is imposed after a party has already obtained an expert then the parties will incur not only the costs of the single expert, but also those of their respective "shadow" experts... [7] However, foremost amongst the purposes of the new rules is ensuring that the court has control over the giving of expert evidence, and restricting expert evidence to that which is reasonably required to resolve the proceedings. 28The nature of the expert evidence given by Mr Christenson in this case made it entirely appropriate for there to be a single expert. 29The issue of proportionality would have arisen at the earlier time when application ought to have been made for the leading of expert evidence. There is no reason to think it would have been determined differently from its consideration in the present circumstances. 30The Defendant has also raised the issue concerning Mr Christenson's expertise and whether the report is, in any event, based on expertise when there is heavy reliance on Glass's manual. 31The amount of any damages likely to be recoverable, the conclusion reached by Mr Christenson and what is likely to result from his being called (challenges to him, his expertise and conclusions, and the adducing of evidence in response) all lead me to the view that in terms of s 60 Mr Christenson's evidence should not be allowed. Further, it is not appropriate that expert evidence be led in the proceedings. 32During the course of the hearing I raised the question of why the two sets of proceedings were in the Supreme Court and why they should not be transferred to the Local Court. Neither party sought that the proceedings be transferred but I consider that in the light of ss 56, 57, 60 and 61 of the Civil Procedure Act the Court may of its own motion, after hearing the parties, determine that the proceedings should be transferred to a lower court pursuant to s 146. 33I adjourned the proceedings to today so that the parties could make submissions with regard to the issue of a transfer of the proceedings. 34Section 146 of the Civil Procedure Act 2005 (NSW) relevantly provides (1) If the Supreme Court is satisfied, in relation to proceedings before it: (a) that the proceedings could properly have been commenced in the District Court or the Local Court, and (b) that any cross-claim in the proceedings could properly have been brought as a cross-claim in the District Court or the Local Court, the Supreme Court may order that the proceedings, including any such cross-claim, be transferred to the District Court or to the Local Court, as the case requires. ... (3) In determining: (a) whether any proceedings could properly have been commenced in the lower court, or (b) whether any cross-claim could properly have been brought in the lower court, the higher court must have regard to the current limits of the lower court's jurisdiction as if they had been the limits of that jurisdiction when the proceedings were commenced, or the cross-claim brought, in the higher court. 35Both sections 30 of the Local Court Act 2007 (NSW) and 93 of the Civil Procedure Act now give to the Local Court the power to order the delivery of goods to the Plaintiff in a way that was not available before the enactment of those provisions. 36Section 30 of the Local Court Act 2007 (NSW) provides: (1) Subject to this Part, the Court sitting in its General Division has jurisdiction to hear and determine: (a) proceedings on any money claim, so long as the amount claimed, whether on a balance of account or after an admitted set-off or otherwise, does not exceed the jurisdictional limit of the Court when sitting in that Division, and (b) proceedings to recover detained goods, or to recover the assessed value of detained goods, so long as the value of the goods, together with the amount of any consequential damages claimed for their detention, does not exceed the jurisdictional limit of the Court when sitting in that Division, ... (2) Subject to this Part, the Court sitting in its Small Claims Division has jurisdiction to hear and determine: (a) proceedings on any money claim, so long as the amount claimed, whether on a balance of account or after an admitted set-off or otherwise, does not exceed the jurisdictional limit of the Court when sitting in that Division, and (b) proceedings to recover detained goods, or to recover the assessed value of detained goods, so long as the value of the goods, together with the amount of any consequential damages claimed for their detention, does not exceed the jurisdictional limit of the Court when sitting in that Division,... (3) Nothing in subsection (2) prevents proceedings under that subsection from being heard and determined by the Court sitting in its General Division. 37Section 93 of the Civil Procedure Act provides: (1) In proceedings for the detention of goods, the court may (whether or not their value has yet been assessed) give judgment: (a) for their delivery to the Plaintiff, or (b) for payment to the Plaintiff of an amount equivalent to their assessed value, or (c) for their delivery to the Plaintiff or for payment to the Plaintiff of their assessed value, at the Defendant's option, and, in addition to any judgment referred to in paragraph (a), (b) or (c), may also give judgment for payment to the Plaintiff of damages for their detention. (2) The court may, in an order for delivery of goods or in a subsequent order, specify the date by which delivery of the goods must be effected. (3) If judgment has been given as referred to in subsection (1) (a), but the goods are subsequently damaged, destroyed or otherwise rendered unavailable for delivery, the court may, on application by the Plaintiff, make an order for the payment to the Plaintiff of an amount equivalent to their assessed value, as referred to in subsection (1) (b). (4) If judgment has been given as referred to in subsection (1) (c) and the Plaintiff subsequently applies for an order under this subsection, the court may make an order for the delivery of the goods to the Plaintiff without the option for any payment of the kind referred to in subsection (1) (b). (5) In this section, the assessed value of goods is their value as assessed by, or in accordance with the directions of, the court. 38There has been read this morning an affidavit of Mark Azzi. Mr Azzi is a litigation specialist for insurance companies which are subsidiaries of Insurance Australia which, as I have said, is named as the Second Cross-Defendant in these two sets of proceedings, and who may reasonably be regarded as taking the proceedings on behalf of the Plaintiffs in each case. In that affidavit Mr Azzi has set out certain facts in support of a submission that the issues that are raised in the present case have importance beyond the two cases that are now before me. 39In particular, Mr Azzi has identified both in the affidavit and in correspondence a number of other comparable cases where vehicles have been towed and detained at the Defendant's premises, in particular, pending an arrangement about the payment of towing and storage charges. 40The Plaintiff further submits that there is considerable doubt about whether the Local Court and even the District Court has any jurisdiction to make, by way of an interlocutory order, the consent orders that were made in April this year and to which I earlier referred. It may be accepted, the Plaintiff submits, that there is jurisdiction under the provisions of the Local Court Act and Civil Procedure Act to make final orders but the doubt about the power of the Local Court to make interlocutory orders justified the proceedings being commenced in this Court in the first instance. I have also been provided with evidence which I sought in relation to when it was likely a hearing date would be fixed if the matters were returned to the Local Court. The evidence discloses that there may be available dates for hearing in April and thereafter 2015. 41The Defendant, which had not hitherto asked for the removal of these matters to the Local Court now submits it is appropriate to do so. The Defendant points particularly to an earlier judgment of a magistrate in the Local Court at Griffith on 31 May 2013 where similar issues were determined. The Defendant said that there was no appeal brought to this Court from that decision. 42The Defendant submits that the appropriate course is for these matters to be transferred to the Local Court and if an issue of law arises, as identified in the Plaintiff's submissions, the matter could come to this Court by way of an appeal for the determination of those issues. 43I am persuaded by Mr Habib's submissions in the circumstances of these cases that it would not be appropriate to transfer the proceedings to the Local Court. The issues raised include the matter of the industry code to which some insurers, including the second cross-Defendant and the vehicle repair industry are parties, and the application of that code. Under the Fair Trading Act 1987 (NSW) that code has now been made mandatory with the result that breaches of it amount to breaches under the Fair Trading Act. 44A previous judgment of this court of Palmer J in Stapley v Towing Masters Pty Ltd [2009] NSWSC 139 considered some but not all of the issues in these present cases. Palmer J considered that it was appropriate for those proceedings to remain in this Court notwithstanding the issue in dispute involved $870. I am informed the matter went on appeal. The Court of Appeal overturned Palmer J's decision, at least to some extent, but the effect was to leave open for determination certain issues that are now squarely raised in the present proceedings. 45Although I do not consider that the obtaining of a hearing date perhaps a month after the date fixed in this court is significant, I do consider there would be considerable waste involved in transferring the proceedings to the Local Court only for those proceedings to be brought up on appeal by one or other of the parties so that the legal issues could be determined in a way that bound the Local Court for the further cases identified by Mr Azzi and others. 46The orders that I make, therefore, are these: