Budget Rent a Car Australia Pty Ltd v Wedgwood

[2015] NSWSC 549

Supreme Court

New South Wales

Medium Neutral Citation:	Budget Rent a Car Australia Pty Ltd v Wedgwood [2015] NSWSC 549
Hearing dates:	11 May 2015
Date of orders:	11 May 2015
Decision date:	11 May 2015
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	Summons is dismissed. Costs are to be borne by the parties.
Catchwords:	APPEAL – appeal from Local Court to Supreme Court – motor vehicle accident – hire vehicle - rental company claiming the defendant drove vehicle whilst in excess of prescribed alcohol limit – defendant’s plea of guilty to offence of Drive Under Influence – whether admitted into evidence as admission – unchallenged explanation for the plea – particulars and pleadings – matter confined to its own facts and circumstances – not appropriate case for a principle of wider application   APPEAL – costs – defendant’s application for indemnity costs
Legislation Cited:	Corporations Act 2001(Cth) Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995 Road Transport (Safety and Traffic Management) Act 1999 Uniform Civil Procedure Rules 2005
Category:	Principal judgment
Parties:	Budget Rent a Car Australia Pty Ltd (Plaintiff) David Kenneth Wedgwood (Defendant)
Representation:	Counsel: B Adam (Plaintiff) D Wedgwood (Self–represented Defendant) Solicitors: Foster Nicholson Jones Lawyers (Plaintiff) D Wedgwood (Self–represented Defendant)
File Number(s):	2014/316028

EX TEMPORE Judgment

1. HER HONOUR: By summons filed 27 October 2014, the plaintiff, Budget Rent A Car Australia Proprietary Limited, appeals against the orders of the Local Court made on 30 September 2014. The defendant in the proceedings is David Kenneth Wedgwood. Mr Wedgwood appears for himself.

2. The summons is against the whole of the decision of the Local Court and seeks three orders, they being that the appeal is allowed; that the order of Magistrate Pierce made on 30 September 2014 at the Downing Centre Local Court be set aside; and that the matter be remitted to the Local Court to be determined according to law.

3. The grounds of appeal as originally advanced were three-fold, but grounds two and three have been abandoned, leaving the plaintiff reliant upon the first of the appeal grounds which is as follows:

The learned magistrate erred in law in that he failed to take into account a relevant consideration, namely, the defendant's guilty plea in criminal proceedings 2012/00014697.

4. The background to the appeal is a motor vehicle collision which occurred on 25 November 2011. The vehicle involved in what was a single vehicle crash was owned by the plaintiff company. It was at the time in the possession of the defendant, Mr Wedgwood, who had leased the vehicle from the plaintiff.

5. The leasehold was governed by a contract between the plaintiff and defendant executed on 25 November 2011. By its terms, the defendant agreed not to use the vehicle when under the influence of alcohol or with a blood alcohol content exceeding that prescribed by New South Wales law, being 0.05.

6. Subsequent to the lease being executed, the defendant was involved in a motor vehicle collision in circumstances where the plaintiff contends he was rendered liable for the damages sustained by the plaintiff, being the total loss of the vehicle and the capacity of the company to lease the vehicle for a fee.

7. The facts of the motor vehicle collision were in evidence before the magistrate in the form of police records which related to it. A police COPS (that is Computerised Operational Policing System computer entry) set out the circumstances of the crash as they were understood to be by the author of the entry, that being Senior Constable Brian Lightfoot.

8. The officer indicated in that entry, which was before the Local Court, that on attending at a location in Surry Hills, the officer saw the defendant trapped in a vehicle which had collided with the structure of a carpark of a residential building in Poplar Street at Surry Hills.

9. The police record refers to the defendant in these proceedings having driven the vehicle along York Street, Goulburn Street, Riley Street, Oxford Street, and then into Brisbane Street at Surry Hills, after which he entered the carpark of a residential apartment building in Poplar Street at Surry Hills.

10. The record refers to the defendant having lost control of the vehicle, causing the front portion of the vehicle to collide with a concrete wall of the carpark at a speed of approximately 50 kilometres per hour.

11. The record notes that police were called and attended. Also in attendance was an ambulance crew who were involved in extracting Mr Wedgwood from the vehicle, he being trapped in it by the crush of the vehicle.

12. Significantly, the plaintiff says, the officer records that he was able to smell intoxicating liquor on the defendant's breath, and the defendant's speech was slurred and incoherent.

13. Mr Wedgwood was taken by ambulance to the St Vincent's Hospital and admitted to the emergency section of the hospital for treatment of injuries that he received in the crash. The record goes on to make reference to a blood sample which was taken and I shall return to that shortly.

14. The facts of the motor vehicle were in evidence in that way, in support of the statement of claim that the plaintiff had filed.

15. The statement of claim was filed on 7 March 2013 in the Small Claims Division of the Local Court. The drafting of the statement of claim was narrow, and that also is a matter to which I will return.

16. The statement of claim set out the plaintiff's circumstances, that is, being a company duly registered pursuant to the Corporations Act 2001(Cth), with the capacity to sue, and noting that it was the owner of the single vehicle involved in the collision, a 2010 Mitsubishi, with the registration BE92JW.

17. The pleadings and particulars refer to the lease agreement which was entered into by the defendant to hire the plaintiff's vehicle for his use. The lease agreement contained a number of terms and conditions, and the pleadings and particulars refer to the material condition, that being summarised as the fifth particular in the statement of claim in the following terms.

The defendant was at all material times driving whilst in excess of the prescribed alcohol limit.

18. The narrow way in which the claim was pleaded, at least in some respects, led in my view to the unfavourable disposition of the matter before the Local Court.

19. The matter came before the Local Court and his Honour Magistrate Pierce on 30 September 2014. The plaintiff tendered some documentary evidence, to which I have referred, and also called oral evidence from Senior Constable Brian Lightfoot, and from the officer from the plaintiff company who had been responsible for issuing the lease to the defendant.

20. The evidence of the latter simply went to the formalities of the lease and the claim for an excess on the insurance over the vehicle of some $2,500 which was charged to the credit card of the defendant's employer after the motor vehicle collision.

21. The evidence of the police officer was more significant. Senior Constable Lightfoot gave evidence of attending the motor vehicle collision in the early hours of 26 November 2011 and his observations of the defendant.

22. When the officer saw the defendant, he was already being attended to by fire and ambulance officers as it was necessary to extract him from his car. After he was extracted from the vehicle, the defendant was taken to hospital. Senior Constable Lightfoot saw the defendant in the emergency section of the St Vincent's Hospital.

23. He referred to the defendant as limping badly at the time, noting that the plaintiff was later found to have a broken leg, at appeal book 51. The officer said, at 51 point 36:

“You could tell he had injuries at the time and his face was bleeding.”

24. He was asked, “face was covered in blood?” and answered, “yes, I would say so. Covered in blood which I believe was from the windscreen smashing."

25. It appears that there were injuries to the defendant. In his affidavit, Mr Wedgwood refers to the fracture to a leg which led to some ongoing treatment for a number of weeks, and there is some evidence relevant to the cuts and injuries to his face apparently from the collision with the windscreen.

26. The officer was asked in the proceedings before the learned magistrate of his observations in terms of any consumption of alcohol by the defendant, and he said (at appeal book 52 point 34):

“Just in relation to his driving, I could smell a very strong smell of alcohol and his speech was slurred. It was immediately present [as transcribed] to me that he was under the effects of alcohol, and then I asked him about his night, where he had been, had he consumed alcohol, just in relation to driving the vehicle.

27. He was asked, that is the officer was asked, “What did he say to that?” And his evidence was:

“He had been drinking. He had consumed drinks within the city, and then he had driven home to his home residence in Poplar Street."

28. There appears to be no dispute between the parties that the defendant had indeed been drinking. In his affidavit evidence, in the Local Court and in the material that is before this Court, the defendant concedes having had six standard glasses of wine at a function which he attended for the purposes of his employment.

29. His evidence was that he had kept a careful track of the amount of alcohol he had been drinking. He was conscious of the fact that the hotel served alcohol in standard wine glasses to the level of a standard drink, and he monitored his consumption so that it did not exceed six glasses of wine over a particular period of time.

30. Thus the concession in the evidence from the defendant, as supported by the evidence of Senior Constable Lightfoot, that the defendant had been drinking, is not of itself sufficient to establish that there was present in his blood a concentration of alcohol proscribed by law.

31. Senior Constable Lightfoot in his evidence before the Local Court also gave some evidence in relation to discussions that he may have had with medical or nursing staff at the hospital at which Mr Wedgwood was treated. His evidence was that he did not speak to any of the staff at the hospital, and certainly did not make any request of medical or nursing staff that a blood sample be obtained from the defendant. He did not believe any other police officer had made such a request.

32. Nothing in the evidence that was given by Senior Constable Lightfoot before the learned magistrate could establish that the defendant had been driving the plaintiff's vehicle at a time when there was present in his blood the prescribed concentration of alcohol, that being a reading of or in excess of 0.05.

33. The plaintiff relies upon the observations of the officer to the effect that the defendant was slurring his words and his speech was incoherent, together with some disability in his walking, but that of course is also capable of immediate explanation by the injuries that the defendant apparently sustained.

34. A broken leg plainly would lead to some disability in walking. Injuries to the head and face, and indeed the mere shock of being in a car crash, would easily account for incoherence of speech and slurring of words. A smell of alcohol about the person, whilst suggestive, does not prove anything like there being present in the blood a prescribed concentration of alcohol.

35. The evidence of the Senior Constable and of his observations of the defendant were certainly such as to give rise to suspicion and, perhaps, taking it at its highest, it might even establish that the defendant had been driving whilst under the influence of intoxicating liquor, but it could not establish a prescribed concentration of alcohol, which was the particular set out in the statement of claim, that is, a very specific reference to the defendant at all material times driving whilst in excess of the prescribed alcohol limit.

36. The plaintiff sought in the Local Court proceedings to adduce evidence of two further pieces of evidence. The first was a blood alcohol certificate; the second was a purported admission from the defendant of having driven under the influence of alcohol.

37. Turning firstly to the blood alcohol certificate. I have noted that the evidence of Senior Constable Lightfoot was that he did not request and was not aware of any other officer requesting any medical or nursing staff member at the St Vincent's Hospital to take a blood sample from the defendant so that it might be submitted for later analysis as to any alcohol content.

38. It would appear from the evidence that someone at the hospital, be it a nurse or a doctor, took such a sample of his or her own motion. That is perhaps not surprising. A person admitted for injuries subsequent to a motor vehicle crash in which that person was the driver might ordinarily require such a sample to be obtained.

39. But, in fact, the relevant legislation governs the circumstances in which such a blood sample can be taken, and they do not include those that apply here. The Road Transport (Safety and Traffic Management) Act1999, as it was at the material time on 25 and 26 November 2011, authorised the taking of a blood sample from an “accident patient” who was admitted to the hospital for examination or treatment in consequence of an accident on a road or a road related area. That is at s.20 of the Act.

40. Here the evidence is that the motor vehicle crash occurred in a private carpark which was not open at all to members of the public generally. The evidence is that the carpark could only be accessed by those who had what was referred to as a swipe card, presumably some sort of electronic device which would operate the gates which ordinarily secured the carpark from members of the public. That being the evidence, the collision plainly occurred at a place other than a road or a road related area which was publicly accessible.

41. The provisions of the Road Transport (Safety and Traffic Management) Act 1999 had no application and did not authorise medical or nursing staff to take a blood sample from the defendant. Whilst the act of taking the sample was clearly a well-intentioned act of a nurse or doctor who was not aware that the crash had occurred on private property, for the purposes of the law the blood sample was still obtained in circumstances which were unsupported by any authority.

42. As such, the learned magistrate concluded, correctly in my view, that the evidence of the blood alcohol sample had been obtained illegally. His Honour was referred to and had regard to the provisions of s.138 of the Evidence Act1995 which deals with the exclusion of improperly or illegally obtained evidence.

43. That provision makes evidence that was obtained improperly or in contravention of an Australian law inadmissible unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the particular evidence was obtained.

44. The magistrate had regard to the provisions of s.138 of the Evidence Act 1995, and what he referred to as the balancing act that flowed from it, in considering the nature of the illegality, whether or not the illegality was deliberate, whether it invaded the defendant's rights in a particularly critical way, and so on, as against the public interest in seeing relevant evidence placed before a court.

45. The blood alcohol analysis was plainly relevant. The illegality was such that it was innocent of any deliberate intent. And whilst there was an invasion to the patient's body of a sort the learned magistrate regarded as most serious, it was not such, in the learned magistrate's view, as to outweigh the desirability of admitting the evidence.

46. All things being otherwise equal, his Honour would have admitted the evidence of the blood alcohol certificate. That certificate indicated that a person named David Wedgewood, but with the surname spelt in a different way and giving a date of birth which was different to that of the defendant's date of birth, had a blood alcohol reading of 0.143.

47. That is only very marginally below a high range reading for a prescribed concentration of alcohol. If the certificate in fact related to the defendant, and the collision had occurred on a public road, then the defendant would have been likely to have been, one would think, prosecuted for a mid-range prescribed concentration of alcohol offence.

48. However, all things were not, as it happened, otherwise equal. Whilst his Honour concluded that the certificate would be admissible, it was on the basis that the plaintiff could prove its contents. The relevant Roads Traffic legislation makes a blood alcohol certificate prima facie admissible in proceedings for an offence created by the Act. But the legislation does not make a certificate admissible in civil proceedings unrelated to the prosecution of a crime.

49. That meant that, for the plaintiff to make good on the evidence of the blood alcohol certificate, it was necessary for it to prove the certificate in the usual way, particularly having regard to the apparent difference in the name of the patient from whom the sample was taken and the date of birth of the person from whom the sample was taken.

50. It was critical to the admissibility of the blood alcohol certificate for the plaintiff to prove that the taking of the sample was in fact from the defendant, and thereafter to prove the chain of continuity of the sample, from the taking of the blood to the blood, being conveyed to a relevant laboratory for analysis, and the subsequent analysis of the blood, with the reading produced by that analysis.

51. There was no such evidence. The plaintiff had intended to rely upon the provisions of the relevant legislation to admit the certificate which, as I have noted, relate only to prosecutions for a criminal offence arising under the Act.

52. That left the plaintiff with no evidence of a prescribed concentration of alcohol in the defendant's blood at the time of the motor vehicle collision. Indeed, the plaintiff conceded as much through its counsel as much before the learned magistrate, conceding that the certificate was not admissible without evidence to establish the chain of continuity of the blood sample.

53. The second piece of significant evidence upon which the plaintiff sought to rely was what it contended was an admission by the defendant to driving whilst under the influence of alcohol.

54. The plaintiff sought to tender before the Local Court evidence of a plea of guilty that the defendant had entered to a criminal charge of driving under the influence of intoxicating liquor. The plea of guilty had been entered by the defendant on 2 May 2012 in the Local Court.

55. The plaintiff contended that the magistrate ought allow it to tender and rely upon evidence of the entry of the plea itself as an admission to driving under the influence.

56. The plaintiff contends in these proceedings that his Honour simply refused to consider the admissibility of the plea of guilty. Indeed, that is the foundation of ground one of the summons before the Court, the terms of which I have already set out.

57. Having read the transcript of the proceedings before his Honour, it is not clear to me that his Honour did in fact take the course as argued for by the plaintiff. It is clear that his Honour had read the papers that were filed to the Court, as he was entitled to do, prior to commencing to hear the matter. He had some understanding of the nature of the issues for determination, and entered into discussion with the parties about the evidence that might be called in support of the statement of claim, and its admissibility.

58. Considerations of admissibility were dealt with in that way. There was a discussion between the bench and the parties about the basis upon which proof of the prescribed concentration of alcohol might be met, and specifically about the relevance and admissibility of the fact of the plea of guilty to the charge of driving under the influence.

28. There is in the transcript no clear ruling which sets out his Honour's conclusions in relation to the admissibility of that piece of evidence, and in a clear way his determination as to whether or not it was to be admitted.

29. In the absence of a clearly stated ruling, this Court is obliged to endeavour to interpret the learned magistrate's comments when in discussion with the parties. For my part, I don't find it easy to determine whether his Honour admitted the evidence of the fact of the plea of guilty to the offence of driving under the influence, but gave it no weight or, whether he rejected the evidence as the plaintiff contends he did. Indeed, the plaintiff argues that his Honour rejected the evidence out of hand, therein lying the asserted error.

30. His Honour made a comment about the plea being subsumed in the judgment. The plaintiff's argument is that the comment correctly interpreted demonstrates that the learned magistrate took a view that the evidence of the plea of guilty was not admissible, as somehow being disposed of in the judgment subsequently handed down by the Local Court, that judgment notably being to proceed pursuant to s.10 of the Crimes (Sentencing Procedure) Act 1999 and to record no conviction against the defendant.

31. I incline to the view that his Honour admitted the evidence of the plea of guilty to the offence of driving under the influence, but having admitted it, he regarded it as of no weight. That conclusion is supported by some evidence that was given by the defendant in his case, evidence which was given without demur from his Honour.

32. In his own case, the defendant gave evidence of entering a plea of guilty to the charge of driving under the influence, the circumstances in which he entered it, and the result of entering his plea.

33. I would expect that, had the learned magistrate ruled that the evidence of the entry of the plea was inadmissible, that he would have stopped the defendant from giving that evidence, and referred to his earlier ruling excluding evidence of the plea. His Honour did not do that. He allowed the evidence to be given, he asked some questions himself, and he engaged in some discussion with counsel for the plaintiff as to the meaning of the evidence.

34. In those circumstances, it seems to me that this Court is entitled to conclude, even in the absence of a clear judgment or ruling on the question, that the learned magistrate admitted the evidence of the plea of guilty, but ultimately gave it no weight.

35. Again there is considerable opacity in what the learned magistrate said as to why he gave the evidence of the plea of guilty no weight. But there are two possible explanations for that.

36. The first is the evidence that the defendant gave about the circumstances in which he entered the plea of guilty. At appeal book 109 at about line 33, in his evidence, the defendant was asked: "And did you enter a plea in relation to DUI?" His answer was, "Only after the police advised my lawyer that they would withdraw the PCA charge." He was asked, "So it was a deal?" And said, "Yes, and it was agreed that they would not object to a s 10 finding.”

37. He went on to give this explanation for his entry of the plea of guilty, continuing on at appeal book 109 at about line 39, to the top of appeal book page 110:

“The alternative was to continue to operate without my licence. My wife has been retired on medical grounds. I had been without a licence for over five months. It was severely impacting on her health. The alternative was to require that the matter of the PCA be listed contested. I was advised that the police would lose that case, but it could take up to a year, during which time I would not have my licence. On the basis that they were prepared to withdraw the charge, to agree to a bargain where there would be no consequence, and that the magistrate would - which she did - hand me back my licence immediately, I agreed to the arrangement."

69. That evidence, which was not challenged by the plaintiff either through cross-examination of the defendant in his evidence or by seeking to lead evidence going to the circumstances in which the plea was entered, poses a difficulty for the plaintiff's case.

70. Whilst his Honour, if I am correct in interpreting him, was prepared to accept evidence of the plea of guilty as an admission to driving under the influence, the evidence given by the defendant effectively diminished its worth to that of being negligible. The defendant's evidence asserted a basis upon which the plea was entered which was other than a consciousness of guilt.

71. His clear evidence, uncontested by the plaintiff, was that he had entered the plea of guilty as a consequence of a “deal” with the prosecution such that he would enter the plea to the DUI offence, the police would withdraw the prescribed concentration of alcohol offence, a more serious offence than a DUI, and the prosecution would not oppose the magistrate dealing with the matter pursuant to s.10, that being without conviction.

72. The defendant's evidence in essence was that he entered a plea of guilty for convenience because he needed his driver's licence, and the most effective and the speediest way to ensure the return of his driver's licence was to enter a plea of guilty to a charge of driving under the influence.

73. In circumstances where that was the defendant's unchallenged evidence, it was not open to the magistrate, in my view, to have regard to the evidence of the plea as evidence of a consciousness of guilt of driving under the influence. Although his Honour made no reference at all to that evidence in his very brief reasons, it may be that that is what he was considering.

74. The alternative proposition, and perhaps the one that might more readily have sprung to his Honour's mind, although again there is no explicit reference in his very brief reasons, is the fact that evidence of a plea of guilty to driving under the influence is of itself and without more incapable of establishing that the defendant drove whilst there was present in his blood the prescribed concentration of alcohol.

75. One must remember that those were the terms in which the statement of claim was pleaded and particularised. It was that which the plaintiff had to establish, not that the defendant was driving whilst under the influence of alcohol.

76. The vehicle lease contract certainly referred to driving under the influence of alcohol, and the contract which the defendant signed was an acknowledgement that he would not do such a thing. But that was not the way that the statement of claim was pleaded and particularised.

77. The plea of guilty to driving under the influence could do no more than establish that the plea was entered. Prima facie it was an admission to driving under the influence of alcohol, but in circumstances where there was uncontested evidence of an alternative basis of the entry of the plea which did not involve a consciousness of guilt, it could not in fact provide evidence of it, as the plaintiff asserts.

78. Even if one sets all of that aside, the evidence of the plea of guilty to the DUI charge was incapable of establishing a prescribed concentration of alcohol of or over 0.05.

79. The net effect of all of that is that there was no admissible evidence before the learned magistrate which was capable of proving those things the plaintiff needed to prove if the statement of claim was to be made good. Necessarily, the plaintiff failed in its case.

80. His Honour's reasons are found at appeal book page 117, and as I have said, they are brief. But his Honour correctly concluded, in my view, that there was no evidence that the defendant was driving with a blood alcohol level in excess of the prescribed alcohol limit.

81. Accordingly, his Honour made orders dismissing the statement of claim and the plaintiff's action. An order for costs as agreed or assessed was made in favour of the defendant.

82. Having regard to all of that evidence, and my conclusions as to the way in which the learned magistrate approached the evidence of the plea of guilty to the criminal charge, in my view, ground one of the plaintiff's appeal has not been made out in my view, and accordingly, the summons is dismissed.

83. Mr Adam for the plaintiff has asked for some more general statement in these reasons as to the admissibility of evidence of a plea of guilty to a criminal offence in subsequent civil proceedings relating to the same incident that gave rise to the criminal prosecution. I have given reasons why in my view the evidence of the plea entered by the defendant was admissible but was of no weight, that being the conclusion that I believe the magistrate similarly reached.

84. I do not think that this is a suitable vehicle for a more general and perhaps more sweeping statement of the admissibility of evidence of a plea of guilty in criminal proceedings in later civil proceedings. This case turns very much on its own facts, facts which are quite unusual, and which are restricted because of the fact that the motor vehicle collision occurred on a place other than a road or a road related area, and in circumstances where the blood alcohol sample was not admissible because of a lack of proof of continuity, and the plea of guilty was apparently entered for reasons other than a consciousness of guilt.

85. Accordingly, I don't propose make any more general statement than I have done in the course of these reasons. This case very much turns on its own facts.

86. The defendant in submissions to the Court has asked that he be awarded indemnity costs payable within 28 days. In the Local Court, the order for costs in his favour was costs as agreed or assessed and, as I understand it, the usual procedure of assessment of costs was sought but perhaps suspended because of these appeal proceedings. The defendant says from the bar table that he has not received payment of his costs from the Local Court proceedings.

87. The costs order stands because of the way in which I have approached the appeal and the orders which this Court makes dismissing the summons bringing the appeal. I have considered the defendant's request for costs in these proceedings, indemnity costs payable within 28 days, but I do not propose to make such an order.

88. Rule 42.5 of the Uniform Civil Procedure Rules2005 governs the award of indemnity costs. Indemnity costs can be awarded in favour of a party, but ordinarily such costs are reserved only for cases which are at the outset demonstrably hopeless, in circumstances where a plaintiff or a defendant ought to have known that, or where there is some malfeasance or some other conduct which is contrary to the appropriate standards, such that indemnity costs ought to be awarded.

89. Although there is no fixed rule or rationale as to when the discretion to award indemnity costs might be exercised in favour of the party requesting them, it is generally considered that there must be a sufficient or unusual feature, or some relevant delinquency, such that indemnity costs ought to be awarded.

90. I do not here consider that there has been any sufficient or unusual feature, or some relevant delinquency, such that indemnity costs should be awarded.

91. There is an issue, in any event, as to whether the costs that Mr Wedgwood seeks are in fact able to addressed by an award of costs and, for my part, I do not think that they can be.

92. A litigant who appears in person may recover costs for reasonably incurred disbursements and witness expenses. No evidence was given in these proceedings by the defendant, and so he is not able to claim for his own costs as a witness.

93. An order for costs will ordinarily compensate a party for court fees, filing fees, cost of a transcription, the service of documents and fees incurred in that regard, costs for witnesses, costs and disbursements for legal work.

94. Costs which have held in the past in these courts not to be recoverable include those of the nature which the defendant seeks, and that is: travelling expenses; meals; and moneys which were paid by the defendant as a consequence of being obliged to travel to and from, as I understand it, Wagga Wagga to Sydney to deal with this particular matter.

95. Having considered some of the relevant authorities, it seems to me that those costs are not amenable to an award for costs, and accordingly, I don't propose to make any order for costs. The defendant is now in a position to seek to recover through assessment those costs which an assessor accepts he incurred in the Local Court, but any costs incurred in these proceedings will simply be borne by the parties.

Orders

96. The orders of the court are:

1. Summons is dismissed.

2. Costs are to be borne by the parties.

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Decision last updated: 12 May 2015