Charles v Noureddine
[2024] VSC 752
•5 December 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2023 03623
BETWEEN:
| ANGELA CHARLES | Appellant |
| v | |
| MOHAMED NOUREDDINE | Respondent |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 July 2024 |
DATE OF JUDGMENT: | 5 December 2024 |
CASE MAY BE CITED AS: | Charles v Noureddine |
MEDIUM NEUTRAL CITATION: | [2024] VSC 752 |
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CIVIL LAW — Negligence — Claim for damages for unregistered vehicle — Defendant admitted liability for motor vehicle collision — Whether plaintiff had standing to bring claim.
EVIDENCE — Proof of ownership of unregistered vehicle — Sole possession of keys, application for an unregistered vehicle permit, and absence of competing claims as circumstantial evidence of ownership — Alleged conflict in oral testimony between plaintiff and his brother regarding mode of acquisition of the vehicle — Lack of contemporaneous documentation — Magistrate entitled to accept oral evidence over absence of formal documentation — Role of possession and lack of competing claims in establishing ownership — Hocking v National Archives (2020) 271 CLR 1 and Simonson Properties Pty Ltd v Hardy [2014] NSWSC 229, referred to — Whether there was no evidence to support claim for ownership — Whether the magistrate misapprehended the evidence — Open to the magistrate to reach a conclusion that the plaintiff owned the vehicle — No error of law established.
JUDICIAL REVIEW AND APPEALS — Appeal under s 109 of the Magistrates’ Court Act 1989 (Vic) — Adequacy of reasons — Whether the magistrate provided sufficient explanation for findings on ownership of unregistered vehicle — Alleged failure to reconcile conflicting oral testimony and absence of corroborative witnesses — Hunter v Transport Accident Commission (2005) 43 MVR 130 and Dimatos v Coombe [2011] VSC 619 referred to — Reasons adequate.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr S J Ryan of counsel | William Roberts Lawyers |
| For the Respondent | Mr W Newland of counsel | John Curtain & Associates Pty Ltd Lawyers |
HER HONOUR:
Introduction
On 9 January 2021, a vehicle driven by the appellant, Ms Angela Charles, collided with another motor vehicle in Geelong. The respondent, Mr Mohamed Noureddine, claimed to be the owner of the other motor vehicle, a 1988 Porsche 911 sports car (‘vehicle’).[1] Mr Noureddine was not the driver of the vehicle at the time of the collision. The vehicle was unregistered, and had not been registered since it was acquired by Mr Noureddine’s late father at least two decades ago.
[1]While estimates of the vehicle’s pre-collision value differed, those estimates ranged between $140,000 and $170,000.
On 19 April 2022, Mr Noureddine commenced a proceeding in the Magistrates’ Court claiming that he was the owner of the vehicle (‘Magistrates’ Court proceeding’). In Mr Noureddine’s statement of claim (‘complaint’), he sought that Ms Charles pay the replacement value of the vehicle, being $98,000[2] plus an assessment fee of $440, plus legal costs and interest pursuant to statute.
[2]Net of the proceeds of the sale of the vehicle.
On 13 May 2022, Ms Charles filed and served her defence to the complaint, in which she admitted liability for the collision. However, Ms Charles did not admit that Mr Noureddine was the owner of the vehicle, and stated that she required strict proof of Mr Noureddine’s ownership of the vehicle and standing to bring the claim. Ms Charles also disputed the amount of the claim, and claimed that she had been prejudiced by reason of Mr Noureddine’s disposal of the vehicle prior to an inspection being conducted by her insurer. However, the question of quantum is not an issue in this appeal. The question of whether Mr Noureddine was the owner of the vehicle at the time of the collision is.
The Magistrates’ Court proceeding
The trial of the Magistrates’ Court proceeding was heard in Geelong on 9 May 2023. The two main issues before the learned magistrate at the trial were the question of Mr Noureddine’s ownership of the vehicle (‘ownership issue’) and the quantum of damages.
The complaint provided as follows:
1.At all material times the Plaintiff was the owner of a 1988 Porsche 911 permit no. UVP4723380 (‘the Plaintiff’s vehicle’).
2.At all material times the Defendant was driving the motor vehicle registration UGW318 (‘the Defendant’s vehicle’).
3.On or about 9 January 2021 the Plaintiff’s vehicle was involved in a collision with the Defendant’s vehicle at or near Albert Street, Geelong (‘the collision’).
4.The collision was caused by the negligence of the Defendant in the driving, management and control of the Defendant’s vehicle when the Defendant failed to give way to the Plaintiff’s vehicle.
…
5.By reason of the matters aforesaid, the Plaintiff has suffered loss and damage.
Annexed to the complaint, as required by the Magistrates’ Court General Civil Procedure Rules 2020 (Vic) (‘Rules’), was an assessment report addressed to Mr Noureddine verifying the loss claimed in the complaint.
In her defence, Ms Charles said the following in response to Mr Noureddine’s claim to be the owner of the vehicle:
…the Defendant does not admit [paragraph 1 of the complaint] and requires strict proof of the Plaintiff’s ownership of the vehicle… and/or standing to bring this action.
Ms Charles admitted the collision, admitted that she was driving her vehicle at the time of the collision, and admitted that the collision was caused by her negligent driving.
The defence then went on to deny that Mr Noureddine had suffered loss in the sum of $98,000, stating that he had failed to mitigate his loss, and that the amount claimed was ‘excessive, extravagant, unfair and/or unreasonable’.
The balance of the defence alleged that Mr Noureddine was not entitled to the relief claimed by him in the complaint, because the vehicle ‘was disposed of in order to deliberately preclude [Ms Charles] and [Ms Charles’ insurer] from having an opportunity to inspect the damage caused to the vehicle’.
Accordingly, the issues in the Magistrates’ Court proceeding were the ownership issue, the quantum of the claim, and in particular, whether the likely cost of repairing the vehicle meant that the vehicle should be considered to be a ‘write off’ for the purpose of calculating loss and damage, and whether the disposal of the vehicle disqualified Mr Noureddine from claiming relief. While Mr Noureddine was ultimately successful at trial with respect to each of the above issues, this appeal is concerned only with the learned magistrate’s findings regarding the ownership issue.
Given the issues raised by the notice of appeal, being that there was no evidence to support the learned magistrate’s conclusion with respect to the ownership issue, or alternatively, that it was not open to the learned magistrate to find in favour of Mr Noureddine on the ownership issue, it is necessary to traverse the evidence and submissions regarding the ownership issue at trial in some detail.
In his evidence in chief, Mr Noureddine adopted a summary read by his counsel (‘summary of evidence’), which was said by counsel for Ms Charles at the hearing of the appeal to be contrary to the Rules.[3] Counsel for Mr Noureddine stated as follows:
This case involves a 1988 Porsche 911, unregistered. Mr Noureddine says that his father purchased this classic car when he was young. It was his father’s asset, and it was never registered through the VicRoads because it was a club car. Club cars get their permits separately through clubs. Or the vehicle would be put on a trailer and taken to shows or off road driving where legal.
That’s his memory of this car, growing up. His father passed away in 2011. In the family it was decided - and he as the son inherited this motor vehicle. He has been in the sole and exclusive custody of this car since 2011. He has the only set of keys to utilise the vehicle, and he's had them since 2011 too. The car was a carport under cover on his premises, from 2011, but for sporadic use off a trailer and where legal.
He says that on the weekend of the 8th and 9th of January 2021, some friends and family organised an airbnb down here on the coast, and he made the decision that he would arrange for a seven day permit with VicRoads, to be able to drive the vehicle to the holiday.
So on the 8th of January 2021 he obtained a VicRoads limited vehicle permit, which Your Honour will find at p.2 of the court book. The permit number, the date, seven days - and it was himself personally, he says as the owner of the vehicle, that arranged it. Mr Mohamed Nouredine is named on that permit.
He drove down the coast to a house, there were friends there. On the 9th of January, his friend, Mr Stephen Murphy, had to go to the Forsters to get some supplies just around the corner, I’m told. And Mr Nouredine handed the keys to Mr Murphy, Mr Murphy drove up to Albert Street in Geelong at which point the defendant, who admits liability, caused an accident, was negligent and caused damages to the Porsche.
Mr Nouredine arranged for his trailer or a trailer that’s utilised to move this vehicle around, given it's not registered usually - they picked up the car, took it back to Mr Nouredine’s premises. He says about a week after the accident or thereabouts, he made a phone call to the defendant and obtained insurance details in relation to her liability.[4]
[3]Rule 40.02(2)(b) of the Rules provides that, if represented by a lawyer, a driver of a motor vehicle in the claim of the current kind must give evidence by way of an oral summary adopted on oath or affirmation. Counsel for Ms Charles submitted that this procedure was inappropriate in the circumstances of the current case, given the issues in the Magistrates’ Court proceeding, given that Ms Charles had admitted liability, and given that Mr Noureddine was not the driver of the vehicle. However, this point was not taken before the learned magistrate.
[4]Transcript of proceedings, Magistrates’ Court proceeding no N10767699, 9 May 2023 (‘trial transcript’). T2, 2-31, T3, 1-12.
Counsel then asked Mr Noureddine to confirm that the evidence in the summary was true and correct, and tendered a permit issued to Mr Noureddine by VicRoads on 8 January 2021 permitting him to drive the vehicle for seven days (‘unregistered vehicle permit’), and a report prepared by another assessor, Mr Craig Foster.[5]
[5]Mr Foster was not called to give evidence, but his report was tendered into evidence and referred to in Mr Noureddine’s closing submissions before the learned magistrate.
Mr Noureddine was cross-examined by counsel for Ms Charles. He was asked about his employment as a spray painter and panel beater. He operates his business from a home rented by him, mainly working upon vehicles owned by him, which are unregistered, but sometimes for other customers.
Mr Noureddine gave evidence that his father, who owned a take away food shop, acquired the vehicle when he was in his pre-teen years.[6] He did not know how and from whom his father acquired the vehicle. The vehicle was not used, it was kept under a carport at the family home in Glenroy (‘Glenroy property’).
[6]Mr Noureddine was born in 1987, so it seems that the vehicle was acquired in the late 1990s.
Mr Noureddine gave the following evidence about the vehicle having been a ‘club car’:
You did say in your evidence that it was used as a club car.
Is that right?---Yeah.
What does that mean exactly?---Well, non charity events, car shows, that’s all it was. Because it was a classic, and only became a classic maybe what, five to six years ago. That was it.
And how would it get to these car shows?---It was on – it was on a trailer.
A trailer?---Yeah.
And how often would it go one of these car shows?---Whenever there was – there was an event on.
So often?---I wouldn’t say often. There was times where I wouldn’t take it, there was times I wouldn’t go. There was times it would just sit there. So in terms of a specific date, I couldn’t tell you. But you took it yourself to car shows?---Now – well, nowadays, yeah. But back then I wouldn’t. The car would always sit there, my dad never touched it.[7]
[7]Transcript 10, 1-18.
Mr Noureddine was then asked about what documentary evidence he could provide about the ownership of the vehicle apart from the unregistered vehicle permit. He said he did not have any photographs of the vehicle, because he did not have a phone at the time. There was no need to take a photo of the vehicle, because it sat in the carport every day, 24 hours a day.
Mr Noureddine gave evidence that he had not looked for any photographs or unregistered vehicle permits from the time his father took the vehicle to car shows, which would have been over ten years ago. There were no tax returns, insurance records or business accounts recording who owned the vehicle. The vehicle was never insured, because it was always at home under the carport, covered with pillows and blankets. The logbook and maintenance records were passed on to the new owner of the vehicle when it was sold after the collision.
Mr Noureddine gave the following evidence as to how he came to acquire the vehicle:
You’re just asking the court to take your word for it really, aren’t you, that you own the car?--- Well, actually, this is – I believe it is my car. And I know that’s my car.
You believe it is?---You choose – well, that’s the correct wording.
Believing something is not the same as actually owning it, is it?--- Well, I know that it’s my car because it was given by my father. Whether you choose to believe it or not, that’s – that’s entirely up to you.
So it was left to you? Or it was given upon his passing, or how was it given to you?--- On his last breaths it was given to the – the older brother, and he was to choose to dispute the car’s - upon which he believed was right. And he (indistinct) at that time, he actually goes, “All right, you take the Porsche because I know you – you and dad had an attachment to it, so that's your – he’s left that for you”.
But this happened behind – when I didn't know, so it come to me as a surprise when I was younger. Someone at my age at that time – you know, to turn around and say that this was your father’s car.
So there’s no will that says the Porsche will be left to you? ---No, no.
We can’t see anything like that?--- No, no. Because – because - - -
There’s nothing from a testator of the estate - - -
HIS HONOUR: No will because?---No, because in our – in our culture, we don’t – we don't write anything down. It’s basically if the father’s left it to the – the older son, and the older son is to choose on what – on what's what. So because we – we were a tight family, there was no – no arguments, no hiccoughs, no nothing. So there was nothing written down. That's how it was.
So now your evidence is that your father didn’t leave it to you, but actually your father left it to your brother? --- My older brother, yeah. And obviously – obviously my older brother knew that I – you know, that I would like – that I’d like to keep it, it was his. And – and - - -
And that’s different to what you said before, isn’t it?--- In terms of what difference?
You just said that your father left it to you in his last breaths?--- Well, that’s what he said to me, yeah, he goes to me. But obviously, you know, he’s told my brother, because he didn’t want me doing anything stupid.
It’s a bit mixed up now, isn’t it?--- Well, it is a touchy subject for me, yes. Sorry.[8]
[8]T15, 3-31; T16, 1-17.
Mr Noureddine gave evidence that he did not own a trailer, but hired one from time to time when he needed it. He was asked questions about how often he took the vehicle to car shows, to which Mr Noureddine gave an unintelligible response.
Mr Noureddine gave the following evidence about the unregistered vehicle permit:
Just on the issue of the permit, we'll go to some information about these permits. Apparently one of these unregistered vehicle permits covers situations such as preparing an unregistered vehicle for registration. This is from the VicRoads website, but this is the kind of situation that it’s for. “Preparing an unregistered vehicle for registration, moving a vehicle from place to place on a one off basis, using a rally vehicle on the road, using a carnival float or moving equipment. You cannot use an unregistered vehicle permit for social or domestic purposes.” But in this case you were using that permit to cover the vehicle when it had been taken down the coast for a weekend away at an airbnb, is that what you say?
---Well, I - - -
MR STRAUCH: Objection. What’s the relevance? There’s no defence here that even if he went outside of the permit somehow, the defendant's not liable.
MR DENTON: Well, he’s given evidence about the permit, and the permit seems to be in issue. And I’m asking some questions about the permit and what the circumstances were of the car being driven under the permit.
MR STRAUCH: Well, the circumstances of what he’s doing with this vehicle leading up to the accident, is fine. But it sounded like there was an allegation that he drove outside of the permit. Even if the vehicle was unregistered, it wouldn’t change the defendant’s liability nor this case. And there’s clear case law on that. I just don’t want it to be suggested to Your Honour that if this vehicle was driven outside of the permit, that somehow the defendant’s not liable. They’ve admitted liability, they know full well it’s not - - -
HIS HONOUR: It’s only to do with ownership, so please continue.
MR DENTON: So the vehicle was being driven at this location of the accident, because it was there for your recreational weekend at the airbnb; is that right?---Well, yeah, because I drove it there.[9]
[9]T17, 14-31; T18, 1-21.
Mr Noureddine was then asked about his relationship with Mr Murphy, the driver of the vehicle at the time of the collision, who was a lifelong family friend. Mr Murphy would have visited the Glenroy property from when he was a child. He was not attending court to give evidence because Mr Noureddine had not been able to contact him. At this point, counsel for Mr Noureddine objected, given that the circumstances of the collision were not in dispute. His Honour responded as follows:
The ownership is in dispute, all right? So I would be interested. But anyway, that’s another thing.[10]
[10]T19, 30-31.
Mr Noureddine was then asked about the circumstances in which he sold the vehicle, which is not relevant for present purposes, save perhaps to illustrate the rather casual and unorthodox approach of Mr Noureddine to the buying and selling of motor vehicles. Counsel for Ms Charles noted that the only proof of the transfer of ownership to the purchaser of the vehicle was a handwritten receipt from the purchaser.
Counsel for Ms Charles concluded his cross-examination as follows:
So Mr Murphy’s not giving evidence today, and Mr Georgopoulos [sic] is not giving any evidence. What about Chris? Is he giving any evidence?---I don’t know, I – I don’t know. I don’t know what the magistrate – sorry, what the barristers organised. So I don’t know who’s coming today. All I was told, I have to come.
Now, when you were growing up with this car in the house – just to go back to that – who else was living in the house?
---My brother, older brother at the time.
How many brothers did you have?---Me being the youngest, in the middle. The others are seven. I’ve got - so three older brothers and three older sisters.
And they were all living in the house?---My sisters were all married what not. However, it was only just myself and my older brother, which is older than me.
What about at the time that your dad got the car? Were they all living in the house at that time?---Yeah, yeah, we were all living together before they all got married and moved out.
And your mother was still there as well?---Yeah.
Your mother’s still with us?---Yes, but very frail – very frail, so she won’t be able to make it.
Where does she live?---In Glenroy.
So obviously she would be aware of it, of the history of the car?---Maybe. Being young – sorry, being young. Being old now, depends on her memory, so I don’t know. But I would say so, yeah.
She lives in Glenroy in her home there in Glenroy?---Yeah. She’s not in aged care or anything like that?---No.
I’m going to ask you one more time. There’s nothing else that you can provide that indicates – even indicates or suggests that you own this car, other than you coming in here and saying that you owned it?---Well, yeah. My brother’s with me today, so he’ll be able to confirm that as well.[11]
[11]T25, 22-31; T26, 1-25.
In re-examination, Mr Noureddine confirmed his earlier evidence that he held the keys to the vehicle, and gave evidence that he was not aware of anyone else who had come forward to make a claim in respect of a missing Porsche, or of any report of the vehicle being stolen or missing.
The learned magistrate then asked Mr Noureddine some questions, as follows:
I’m just curious. Did the club permits for the vehicle - - -?---Sorry?
You were a member of the club?---No, I wasn’t a member, no.
So these club permits?---They were charity events.
They’re all charity events?---Yeah.
I don’t know what a club permit is, can you tell me what it is?--- Your Honour, I don’t even know what a club permit is. I was – my understanding was that he was referring to the unregistered permit, that’s all.
No, you went to club permit events, didn’t you? Isn’t that what I understood?--- Well, not permit events, no. They were charity events, so you’ll just – you’ll lob up, look at a part or something - - -
Your father? Didn’t you say he did that?--- From my knowledge, I don’t know if he went – maybe once or twice.
From your knowledge?---Yeah.
You went once?--- It’s only been once. My apologies.
Tell me what a club permit is?--- A person who just – well, okay.
What’s your understanding?--- Yeah, no, I’m just trying to put it together, sorry. No, it’s a matter of everyone comes with their – they’re old classic cars. You know, either they drive them, or they’ll have them again on trailers.
…
How do register the vehicle to take to that? How do you let them know that you’re coming to this charity event? You just turn up, do you?--- Unless it’s – yeah, or – one, you just turn up, or two, you register on the day, I guess.
I’m asking you?--- Well, Your Honour, then (indistinct).
Didn’t you say you went to - - -?--- Again, once or twice.
You took it yourself?--- No. Since it’s been in my possession, I haven’t taken it, no.
Since it’s been in your possession you’ve never taken it to an event?--- No.
So these charity events, there were no fees to pay? You wouldn’t know if there’s fees to pay?--- Again, Your Honour, I – I hear about them, the early days. I go as a spectator, you know, go see what other people have got and the appreciation that they put into it. But to take my car at the time, no. It will stay at home covered.[12]
[12]T27, 11-31; T28, 1-21.
His Honour then asked Mr Noureddine questions about hiring trailers, and his business of buying, restoring and selling cars. Mr Noureddine gave evidence that he sold about two cars per year, which were advertised for sale on social media. If the vehicle was unregistered, he would obtain a copy of the purchaser’s licence, and provide a receipt. No roadworthy certificates are required for unregistered vehicles. The learned magistrate then asked Mr Noureddine questions about the circumstances in which the vehicle was sold.
Mr Noureddine’s brother, Romy Noureddine (‘Romy’) gave evidence regarding the circumstances in which his brother obtained ownership of the vehicle and where the vehicle was located before and after his father’s death.
In examination in chief, Romy gave evidence that he was Mr Noureddine’s older brother, having been born in 1975. He was the oldest son in the family. He identified the vehicle from a photograph, and said that he first saw the vehicle more than fifteen years ago. It belonged to his late father, who died on 26 December 2010.
Romy gave the following evidence:
Before he passed away, do you recall how long he had that car? ---That would’ve sat dormant for at least two years.
When you say sat dormant, where was it?---Parked under a pergola at home.
From that answer, may I suggest that you lived in that house as well?---Correct.
Do you know where your dad got the car from?---No.
Do you know if he bought it new or second hand?---No, second hand.
How do you know that?---Well, my dad was like mechanic overseas, so you know, he knew a lot of people – the community in Australia, Melbourne. And he would've sourced that second hand.
So you believe, you’re not sure though?---Give or take. It had to be second hand, it’s impossible brand new.
When your dad died, what happened? Do you know if your dad had a will?---No. My dad got sick, in three weeks time he just died.
I’m sorry to hear that?---Yeah.
So what happened with his estate or his possessions and the like?---Dad – dad didn’t have much.
But what happened with what he did have?---The vehicles – we just – we sat down as a family. We decided that me and Mohamed would take the two cars, and that was it.
So there were two cars, were there? What was the other one?---Mercedes.
Who got the Mercedes?---I did.
What happened with this Porsche?---As in? What do you mean what happened to the Porsche? Mohamed took it.
When you say he took it, did you agree to that? Or did he just take it?---I said, “Take that, I’ll take the Mercedes”. I was the last to drive it with my dad in it, so I kept it because of that.
The Mercedes you’re talking about?---Correct.
And the Porsche went to Mohamed, as I understand your evidence?---Correct.
That was about what, 2011, now, we're talking now if your father passed in the last - - -?---2010.
He passed on Boxing Day 2010?---Correct.
So the last week of 2010. Since 2011 have you seen this car on occasions?---Just stays at home. Takes it out occasionally, you know. Remember we go through COVID, we didn’t really do much. The car wasn’t used that much.
Sorry, whose house are you referring to?---The car stays at the house in Glenroy.
Sorry, I missed that. Where?---In the driveway, under the verandah, pergola.
In someone’s house in Glenroy?---That's my parents'.
Does anyone else take possession of this car other than your brother?---No, nobody.[13]
[13]T34, 12-31; T35, 1-30.
Under cross-examination, Romy gave evidence that he was probably around 30 years old when his father acquired the vehicle, but later said he may have been 25. He has had some memory problems since his father’s death. He said that the vehicle had been ‘sitting there’ for a long time.
Romy gave evidence that he lives at the Glenroy property, although he often travels interstate for work, and sometimes stays with friends. He has kept his own vehicle (the Mercedes referred to in the extract of the transcript at paragraph 31 above) at the Glenroy property since the collision.
Romy gave evidence that prior to his father’s death the vehicle was kept under the carport at the Glenroy property covered by doonas and pillows and car covers, which were all removed after his father’s death. His father did not drive the vehicle for the six to seven years prior to his death. Prior to that time, he would drive it around the block or to the shops. To the best of his knowledge, it never went anywhere else.
At first Romy said that his father must have ‘cashed in the rego’ on the vehicle, but then agreed that there had never been any registration plates attached to the vehicle. No one ever took any photographs of the vehicle. Romy gave evidence that as far as he was aware, the vehicle had not left the Glenroy property since his father’s death.
Romy gave the following further evidence as to what occurred after his father’s death:
As far as you’re aware, there's no paperwork?---No.
Now, this situation whereby the car was left by your father. Your evidence is that you and your brother just decided, “We’ll have the car”?---Pretty much, yeah.
Or “We’ll have the cars”?---Pretty much.
There’s no paperwork about that?---Our family’s not about money, it’s just about – very simple. “You want this? You want that?”, it’s clear cut.
Prior to then – the car sat there from that moment until the day before – or around the time of the accident; right?---I can’t be clear, I’m not sure. I wasn’t at that property, I was – you know, away then. Or out celebrating, enjoying - - -
The only people that knew about it were you and your brother, you’re the only people that knew about your brother owning it, right?---As in taking ownership? Yes?---Yeah.
No one else knew about this deal?---Well, it was just two simple cars, it’s not – it’s not a big deal.
So no one else was informed about it?---It was just us. Dad left it, mum said “Do what you want to do”.
It never moved, and there was an arrangement just between the two of you that your brother was now the owner of it?---I said, “That’s fine, you can take it”.[14]
[14]T42, 2-25.
Romy was then asked a number of questions about Mr Murphy, his connection with the family, and his current whereabouts. Romy gave evidence that he had not spoken with his brother about the sale of the vehicle after the collision.
Romy’s cross-examination concluded as follows:
Presumably everyone else that lived in the house with you – all your siblings and your mother – they’ll also know about the car, living there?---Well, it’s not like a – a big deal, you know. What I believe anyway. It’s just a car, it sat there, it was my dad’s car. It just sat, took up room. That’s about it, so, you know. Obviously my mum seen it moved, it’s not there any more, my car’s there. But as I said, it’s not a big thing, you know. Cars in life – you know, there’s more things to life than cars.
The car that you’ve got there, that’s the Mercedes you got. So I’ll ask you the same question that I asked your brother just to wrap this up?---Yep.
There’s nothing else that you can provide to help us?---No, I’m sorry, no.
No paperwork?---No.
No photographs?---No, no. I’m sorry.[15]
[15]T44, 20-31; T45, 1-4.
After the conclusion of cross-examination, the learned magistrate asked Romy some further questions about when he first saw the vehicle, and the Mercedes vehicle which belonged to his father. Romy said that the Mercedes is not registered because it costs too much to do so.
Romy’s evidence concluded as follows:
Did your father ever take his car to shows?---No.
Didn’t go to charity events?---No, he was sick - - -
Didn’t go to car club things?---No, no. He was sick towards the end, so - - -
It never went anywhere?---No.
Other than driving it unregistered?---Correct.[16]
[16]T46, 7-12.
The balance of the trial was occupied by evidence regarding the quantum of damage and Ms Charles’ complaints about the manner and timing of the disposal of the vehicle. Mr Noureddine called a motor vehicle assessor to give evidence, as did Ms Charles.
At the conclusion of the evidence, counsel for both parties made oral submissions.[17] Counsel for Ms Charles submitted, in relation to the ownership issue, in summary, as follows:
[17]Neither counsel briefed at the trial of the proceeding appeared at the hearing of the appeal.
(a) there is not one scrap of evidence that Mr Noureddine owned the vehicle;
(b) Mr Noureddine’s evidence as to how he acquired the vehicle differed from the evidence given by Romy;
(c) it is remarkable that there is no documentary evidence about where the vehicle came from, given its value;
(d) no other witnesses who could shed light upon the ownership issue have been called, such as Mr Murphy, Mr Georgeakopolos, or Mr Noureddine’s mother or other siblings;
(e) it seems the vehicle had never left the Glenroy property prior to the collision; and
(f) counsel for Ms Charles concluded his submissions regarding the ownership issue as follows:
We’re just led to believe on the basis of this story that the plaintiff became the owner of the car, and now he's entitled to $100,000. But that's even if we believe half of his story. We don’t - you know, the discrepancies between the two stories about the use of the car over the many years that it was apparently kept there, indicate that the story has, you know, more than a few holes in it to start with, and it may not have even been there for the entire time. Otherwise, why would we have two different accounts of how it was being used and what it was doing there?
And no record of it ever being registered even in the father’s name. Not one insurance record, not one of these permits for, you know, taking it to a club event. The plaintiff who says he took it to club events under questioning from Your Honour didn't seem to know anything about that process, or what club it was, or any of these club events. Not a photograph of this portion in any way, shape or form has been kept. So it's my submission that ownership - the court needs to see strict proof of ownership, and that has not been established at all.
…
But at the same time, Romy had been living at the address the whole entire time and had not noticed any of this. As far as he's - his evidence was the car had just sat there the whole entire time.
…
Where are some of the other people that might have been able to shed a bit more light on it? Where is Mr Murphy? Where’s the buyer of the car - I just can’t recall his name off the top of my head – Georgopoulos [sic]. None of these people were called. No other family members were called. The plaintiff’s mother might have been able to assist, or other siblings that have resided at the home as well.[18]
[18]T98, 7-27.
In response, counsel for Mr Noureddine submitted, in summary, as follows:
(a) the learned magistrate had to be satisfied on the balance of probabilities that Mr Noureddine owned the vehicle;
(b) Mr Noureddine’s evidence that he has had possession of the keys to the vehicle for some time was not challenged during cross-examination;
(c) the vehicle has not been reported stolen, and the assessor engaged by Ms Charles’ insurer, Mr Foster, had done searches, which showed that the vehicle did not appear on the stolen vehicles’ database.[19] One would expect the owner of an expensive missing Porsche report the loss;
[19]There was no direct evidence about this at the trial, but counsel for Mr Noureddine tendered Mr Foster’s report, so the report was before the learned magistrate.
(d) Mr Noureddine provided a logical explanation of how he came to acquire the vehicle. As for Romy’s evidence, it was clear that he did not care much about cars, and didn’t ‘take much note of things’. He was often away from the Glenroy property and may not have noticed the vehicle being taken out once a year or so;
(e) counsel submitted as follows:
What was, in my submission, refreshingly truthful about both of those witnesses is they didn't rehearse stories and get them down to a “T”', Your Honour. You could never find that. They simply spoke of their own recollections of knowing their father had a Porsche, and that Mr Mohamed Nouredine, being the rightful inheritance [sic] of that vehicle.[20]
[20]T102, 21-27.
(f) no one else is claiming ownership of the vehicle;
(g) in order to find against Mr Noureddine on the ownership issue, the learned magistrate would need to find that Romy ‘completely perjured himself’; and
(h) in relation to Ms Charles’ submission that Mr Noureddine had no documentary proof of ownership, counsel for Mr Noureddine referred to the unregistered vehicle permit, and submitted as follows:
Now, there simply is documentary proof, despite the submission that there's nothing, there’s nothing, there's nothing again and again. Before the accident occurred the plaintiff Mohamed Nouredine logged onto VicRoads knowing he was driving it on Victorian roads, and bought a vehicle permit. Your Honour will see from the permit you must enter a VIN number. If it wasn’t his car, if it was registered to anyone else - mind you, the accusation is that he’s perjured himself and he doesn’t own this car and he's carrying out insurance fraud. But none of that’s alleged in the pleadings, of course. But that's what it amounts to, Your Honour.
HIS HONOUR: That’s for a different place, so let's just -
MR STRAUCH: Your Honour, this man put in the VIN number on 8 January before the accident and paid a fee to drive legally on the Victorian roads in some manner that weekend. What a remarkable illogical risk for someone that didn't own this vehicle. To put the exact VIN number in of it pre-accident and buy a permit because many alarm bells, one would have thought, would have gone off over in VicRoads office when he named himself and his address and gave his credit card number to buy the permit.
On the balance of probabilities he has established by possession, and the registration and corroborated. Your Honour does not need to hear from the whole town in addition to his brother who was in and around the house that corroborated the position.[21]
[21]T103, 28-31; T104, 1-25.
At the conclusion of the hearing, the learned magistrate reserved his decision. Nearly three weeks later, on 29 May 2023, the learned magistrate delivered an oral judgment (‘reasons’),[22] finding in favour of Mr Noureddine in respect of all of the issues in the Magistrates’ Court proceeding. As for the ownership issue, his Honour found that on the balance of probabilities, Mr Noureddine was the owner of the vehicle and as such had standing to bring the claim. His Honour stated as follows in relation to the ownership issue:
[22]There are clearly some inaccuracies in and omissions from the transcript of the reasons, which are reproduced in the extract of the transcript of these reasons, but the reasons are tolerably clear.
The plaintiff commenced proceedings claiming he was the owner of a 1988 Porsche 911, permit number or at least VIN number VNP4723380. On or about 9 January 2021 the plaintiff’s vehicle was involved in a collision with the defendant's vehicle at or near Albert Street, Geelong.
The defendant’s vehicle was registered VGW318. The collision was caused by the negligence of the defendant in the driving, management, and control of the defendant’s vehicle when the defendant failed to give way to the plaintiff’s vehicle.
By reason of the accident, the plaintiff suffered loss and damage claiming loss of $98,000 net and assessment fee of $400 together with legal costs and interest pursuant to the statute.
The defendant’s do not admit ownership and required strict proof of the plaintiff’s ownership of the vehicle, as I said, permit number UVP4723380 and or standing to previous action. And initial disposal of the vehicle prior to the defendant on (indistinct) being able to inspect the vehicle for the damages.
The defendant did admit liability to the plaintiff’s vehicle and was involved because she knew the defendant’s vehicle and was caused by negligence of the defendant in the driving, management, and control of the defendant’s vehicle. And the defendant failed to give way to the defendant's vehicle.
Some of the evidence by the plaintiff’s counsel in this case involves a Porsche 1988 911 unregistered. Mr Nouredine says that his father purchased this classic car when he was young. It was his father’s asset and never registered through the VicRoads scheme because it was a club car. Club cars get their permits separately through the clubs or the vehicle is put on a trailer and taken to shows or off road where driving it is legal. That is his memory of the car and his father passed away in 2011.
The family decided that he, as the son, inherited this motor vehicle. He has been in the sole and exclusive custody of the vehicle since 2011. He has the only set of keys to utilise the vehicle. He has had them since 2011. The car was in a carport located in his carport under cover at Mr Nouredine’s premises since 2011. Apart from sporadic use off a trailer (indistinct).
He says on the weekend, the 8th, 9th and 10th of January 2021 some friends and family organised an Air B&B on the coast and he made the decision that he would arrange for a seven-day permit from VicRoads to drive the vehicle to the venue for the holiday.
On the 8 January 2021 he obtained a VicRoads permit. Start date 8 January 2021 for seven days and he himself personally organised it.
He declared to be the owner of the vehicle and purchase the permit as Mr Nouredine and his name on that permit.
He drove down to the Air B&B. There were friends there and on 9 January 2021 his friends, Mr Steven Murphy, had to run into the shops to get some supplies just around the corner.
Mr Nouredine handed the keys to Mr Murphy. Mr Murphy drove up to Albert Street, Geelong on 9 January 2021. At this point the defendant, who admits liability, caused the accident. Confirming they were negligent and caused damage to the Porsche Carrera.
Mr Nouredine thereafter arranged for his trailer or a trailer to be utilised to move this vehicle around, given that this vehicle is not registered usually. They then picked up the vehicle, picked up the trailer and returned it back to Mr Nouredine’s premises.
Mr Nouredine states that about one week later after the accident he made a telephone call to the defendant where he obtained the defendant’s insurance details in relation to the liability. That’s one week after the accident.
He organised for the damaged motor vehicle to be inspected by a claims auto assessor on 6 April 2021. Shortly thereafter he was advised the motor vehicle was uneconomical for repair.
…
Mr Mohammed Nouredine, the plaintiff, adopted the summary on oath with finding the Koran as true and correct. Under cross-examination the plaintiff talked about the memories of the car with his father as a child.
There was a close relationship and there were no available documents proving ownership with insurance, club permits, photographs, logbooks went with the ultimate car purchase of the vehicle to the third party including any service history.
In particular he quoted,
“I know it was because it was given to me by my father, whether you believe me or not is entirely up to you. On his last breath it was given to my older brother and he was to distribute the car on who he felt was right because he knew I was doing my apprenticeship at the time he said you take the Porsche; I know you and dad had an attachment and it didn’t come as a surprise to me”
He agreed on further cross-examination in this case using a permit to cover the vehicle when it be taken down the coast for a weekend away at an Air B&B, although this was objected to as it’s relevance, nevertheless, I'll get back to that.
The brother, Rommie Nouredine, gave evidence on affirmation and was also extensively cross-examined. The witness confirmed the history of the Porsche, at least dealing with the father and gifting it to the plaintiff. Although there were some inconsistencies, it was nevertheless confirmation that the father - that it was the father’s wishes to gift the Porsche.
…
In terms of the ownership of the vehicle. And a court of course needs to be satisfied to the strict proof of ownership. I have once again considered both parties submissions. I might say comprehensive submissions, and no doubt the evidence is truly lacking in documentation of this classic Porsche Carrera 911, some would think that that’s extraordinary because (indistinct) undoubtedly an expensive asset.
I asses [sic] this on the balance of probabilities, no one single factor determines ownership in this situation but a combination of factors. They include the one set of car keys to this vehicle have been in the possession of the plaintiff, the vehicle was at the plaintiff’s premises, the vehicle such a classic has never been reported stolen or missing. The brother's evidence, Rommie Nouredine, on transfer of the Porsche following the death of their father, no evidence of any legal dispute by any other family members. Registration documents alone don’t necessarily prove ownership and registering this vehicle for a permit with VicRoads to obtain an unregistered vehicle permit, the VIN number provided and accepted, this vehicle (indistinct) raise any red flags. The plaintiff paid the fee and agreed to the conditions of such a permit.
The plaintiff’s counsel submitted, fairly, it would be a significant risk to put yourself in, it would be illogical not for being the owner of the vehicle.
Further, the plaintiff provided identification and bank details. I might say that the plaintiff on oath confirmed the permit for his unregistered vehicle was for social purpose. It seems to me as you are aware of the consequences the permit tendered had a declaration:
That being I’m aware providing false information or misleading information or documents is a serious offence under Road Safety Act 1986 that could result in penalties and big fines and imprisonment. I understand that any permit issued to me based on false information could be invalid which could result in further liabilities and penalties. I declare that the information that I provide is true and correct and I acknowledge that this declaration is legally effective even without my signature.
For purpose of the permit, that's a matter not for this court, I’ll leave that for other parties including VicRoads and law enforcement as to what that means and as to the conditions for the which the permit was sought.
On the issue of ownership, I find for the plaintiff on the balance of probabilities. Therefore, I find the plaintiff is successful in these proceedings.
Final orders were made on 18 July 2023, which required that Ms Charles pay Mr Noureddine the sum of $132,873.47 inclusive of the claim, interest and costs.
The notice of appeal
On 11 August 2023, Ms Charles filed a notice of appeal pursuant to s 109 of the Magistrates’ Court Act 1989 (Vic) (‘Magistrates’ Court Act’) seeking the following relief:
1.The orders made by the Magistrates’ Court at Geelong on 18 July 2023 be set aside;
2.The proceeding be remitted to the Magistrates’ Court at Melbourne for a re-hearing by a different Magistrate;
3. The Respondent pay the Appellants costs of the appeal; and
4. Any other orders that the Court considers appropriate.
Section 109 of the Magistrates’ Court Act provides that an appeal may only be brought to this Court on a question of law. The notice of appeal identified the following questions of law:
Ownership/Standing
1.Did the Magistrate err in law by finding that the Respondent was the legal owner of the Porsche vehicle in circumstances where:
(a) the finding was not open on the evidence?
(b)the finding was based upon a misapprehension or misunderstanding of the evidence?
Adequacy of reasons
2.Did the Magistrate err in law in failing to provide adequate reasons as to the basis upon which he found the Respondent was the legal owner of the Porsche vehicle and had standing to bring the claim?
The grounds of appeal are as follows:
Ownership/Standing
1.To the extent the Magistrate found the Respondent obtained legal title to the Porsche vehicle due to the vehicle being gifted to him by his late father, the Magistrate erred in law in that:
(a) The finding was not open on the evidence;
(b)The finding was contrary to the Respondent’s evidence in chief and the evidence of the Respondents brother, Romy;
(c)The Magistrate failed to have regard to the legal principles required to establish the making of an effective and valid gift; and
(d)The matter was not pleaded in a Reply to the defence, nor argued by the Respondent, and therefore was not a finding within the subject matter of the proceeding which was available to the Magistrate.
2.In finding (at Judgment 114, lines 21-27) that the plaintiff’s brother, Romy, gave evidence which confirmed that his late father wished to gift the Porsche vehicle to the Respondent, the Magistrate erred in law because he misapprehended the evidence of Romy who did not give evidence to this extent.
3.In finding (at J 120, L 4-5) that the Porsche vehicle was kept at the plaintiff’s premises, the Magistrate erred in law because he misapprehended the evidence, as the plaintiff’s brother Romy gave evidence that the vehicle was at all times kept at his parent’s home in Glenroy.
4.To the extent the Magistrate found the Respondent obtained legal title to the Porsche by reason of the Respondent inheriting the vehicle from his late father, the Magistrate erred in law, in that:
(a) The finding was not open on the evidence; and
(b)By reason of the Respondent’s evidence that his father died without a will, the finding was not open in the absence of any evidence of a Grant of Administration or division of the estate in compliance with the provisions of the Administration and Probate Act 1958.
Inadequate reasons
5.The Magistrate erred in law by failing to provide adequate reasons as to how he came to his conclusion that the Respondent was the legal owner of the Porsche vehicle. Specifically, the Magistrate did not articulate whether he found legal title had passed to the Respondent by way of a valid and effective gift, or by way of inheritance.
The evidence
In this appeal, Ms Charles relied on the affidavit of Ms Bilge Ozdemir, her solicitor, filed on 14 August 2024. Ms Ozdemir deposed to, among other things, the details of the collision and the conduct of the Magistrates’ Court proceeding. Exhibited to Ms Ozdemir’s affidavit were the following documents:
(a) the pleadings in the Magistrates’ Court proceeding;
(b) a report from an independent loss assessor relied upon by Ms Charles at trial;
(c) the trial transcript;
(d) a copy of the unregistered vehicle permit relied upon by Mr Noureddine;
(e) a transcript of the reasons delivered on 29 May 2023; and
(f) the final order made in the Magistrates’ Court proceeding.
Submissions
Ms Charles made the overarching submission that the evidence as to Mr Noureddine’s ownership of the vehicle, including the evidence given by his brother Romy, was lacking, inconsistent and largely opposed. Ms Charles submitted that the learned magistrate made no attempt to reconcile the inconsistencies in the evidence and made various factual findings which were either not supported by the evidence, were contrary to the evidence, or involved a misunderstanding of the evidence. She submitted that the learned magistrate’s reasons did not address the significant evidentiary issues in the proceeding, and did not disclose a logical path of reasoning as to what evidence was relied upon in reaching the conclusion that Mr Noureddine was the owner of the vehicle.
In relation to the first question of law, Ms Charles observed that there were no documents in evidence which showed how Mr Noureddine’s father acquired the vehicle, no documents supporting the subsequent transfer of the vehicle to Mr Noureddine, and there were no service or insurance records in relation to the vehicle.
Ms Charles submitted that a finding of fact which involves an inference not open on the evidence or involves a misapprehension of the evidence constitutes an error of law.[23] Further, Ms Charles submitted that the learned magistrate would have erred in law if he ‘… acted on a wrong principle of law, misapprehended the facts or made a wholly erroneous assessment of the relevant issues’.[24]
[23]Referring to S v Crimes Compensation Tribunal [1998] 1 VR 83; Lu v Ballantyne (2022) 101 MVR 131; and State of Victoria v Subramanian (2008) 19 VR 335.
[24]Guissine v Silver Top Taxi Service (No 2) [2016] VSC 515 (‘Guissine’) [14]; and Mourched v Michaelis Bayley (Aust) Pty Limited [2006] NSWSC 72 (‘Mourched’).
Ms Charles submitted that the summary of evidence was unreliable, referring, by way of example, to the evidence given by Mr Noureddine under cross-examination regarding ‘club cars’ and ‘club permits’. This evidence directly contradicted the evidence adopted by Mr Noureddine as his evidence in chief, and as such, cast doubt upon whether the summary of evidence was truly his evidence.
Ms Charles submitted that Mr Noureddine was on notice of the ownership issue prior to the trial of the Magistrates’ Court proceeding, but it was impossible to discern the basis upon which Mr Noureddine claimed that he obtained legal title to the vehicle. His evidence as to why he produced no documentary evidence to establish ownership was unsatisfactory, and he was questioned as to why he had not called any independent witnesses with respect to the ownership issue.
Ms Charles submitted that Mr Noureddine’s evidence regarding his acquisition of the vehicle changed during the course of cross-examination, first claiming that the vehicle was given to him by his father, then that it was given to his older brother in his father’s last breaths, and Romy then said Mr Noureddine could have the vehicle.
Ms Charles referred to the evidence given by Mr Noureddine regarding the hire of trailer, the sale of the vehicle, and the use of the vehicle as a ‘club car’ in support of her submission that Mr Noureddine’s evidence lacked credibility.
In relation to Romy’s evidence as to the ownership of the vehicle, Ms Charles submitted as follows:
(a) in his evidence in chief, Romy did not give evidence that Mr Noureddine inherited the vehicle or that it was gifted to him or Mr Noureddine by his father. Romy stated that ‘we just sat down as a family. We decided that me and [Mr Noureddine] would take the two cars and that was it’. No one else knew about the arrangement;
(b) Romy confirmed that the vehicle was stored at a carport at the Glenroy property, not at Mr Noureddine’s home; and
(c) Romy’s evidence was that his father never took the car to shows, clubs or charity events.
Ms Charles referred to the submission advanced by counsel for Mr Noureddine before the learned magistrate to the effect that the vehicle had not been reported stolen, the submission advanced regarding the significance of the unregistered vehicle permit, and the submission to the effect that if the learned magistrate did not find in favour of Mr Noureddine on the ownership issue he must necessarily find that both Mr Noureddine and Romy ‘perjured themselves’. Ms Charles submitted that these submissions were misconceived, for the following reasons:
Firstly, there was no evidence led by either party from Victoria Police as to whether a Porsche with the subject VIN had ever been reported stolen. It was not open to submit, on the evidence, that nobody has reported the Porsche stolen. Moreover, it is unclear how the unsubstantiated claim would advance the Respondent’s evidential burden of establishing that he had legal title to the Porsche. Further, there was no requirement for the Magistrate to conclude that Romy had perjured himself. Indeed, Romy’s evidence was quite contrary to the evidence of the Respondent and did not support a contention that the Respondent inherited the Porsche. Finally, there is nothing within the temporary permit which says the Applicant is the owner of the vehicle nor was it pleaded nor put that he was committing an insurance fraud.
Ms Charles submitted that the learned magistrate’s reasons largely involved a recitation of the evidence, but his Honour was required to undertake some evaluation of the evidence. Further, the learned magistrate’s recitation of the evidence was not entirely accurate. Ms Charles referred to the five factors that informed the learned magistrate’s decision and submitted that each of those factors were not supported by the evidence or involved a misapprehension of the evidence. In particular:
(a) as for the location of the keys to the vehicle and the location of the vehicle, Romy confirmed that the vehicle was in fact stored at the Glenroy property;
(b) as for the vehicle never having been reported stolen, the learned magistrate stated this as a matter of fact and did not identify the evidence relied upon to support that finding. There was no evidence or records of any searches to support this finding, nor was it explained how the fact would provide probative evidence that Mr Noureddine had obtained legal title to the vehicle;
(c) in relation to Romy’s evidence regarding what took place following the death of his father, the learned magistrate stated that ‘[Romy] confirmed the history of the vehicle at least dealing with the father gifting it to the plaintiff. Although there were some inconsistencies, it was nevertheless confirmation that it was the father’s wishes to gift the vehicle.’ However, this was not the evidence that Romy gave;
(d) as to there being no evidence of any legal dispute between the family members, there being no evidence of a legal dispute is different from there being evidence of no legal dispute. In the present case, there was no evidence and thus no finding of fact that could be made to support Mr Noureddine’s claim of ownership; and
(e) in relation to the unregistered vehicle permit, the learned magistrate stated in his reasons that ‘[Mr Noureddine] declared to be the owner of the vehicle and purchase the permit as Mr Noureddine and his name on that permit’ and that ‘…it would be a significant risk to put yourself in, it would be illogical not for being the owner of the vehicle’. However, Ms Charles submitted the temporary permit does not require the owner of the vehicle to be the permit holder. The learned magistrate’s reasoning process was illogical and he did not explain the supposed ‘risk’.
Ms Charles noted that Mr Noureddine gave evidence that his father died without a will. Ms Charles submitted that the distribution of Mr Noureddine’s father’s estate would consequently be dealt with in accordance with the intestacy provisions of the Administration and Probate Act 1958 (Vic) (‘Administration and Probate Act’). However, there was no evidence given as to any grant of letters of administration. Ms Charles submitted that until letters of administration are granted, Mr Noureddine’s father’s estate remains vested in State Trustees Ltd pursuant to s 19 of the Administration and Probate Act, not Mr Noureddine. While the reasons say that ownership was established by inheritance, such a finding was not open on the evidence.
In his oral submissions at the hearing of the appeal, counsel for Ms Charles submitted in relation to the first question of law, in summary, as follows:
(a) this was not a case where the learned magistrate delivered ex-tempore reasons at the conclusion of the trial: he reserved his decision for nearly three weeks;
(b) given that Mr Noureddine gave evidence that the vehicle belonged to his late father, the method of transfer and acquisition of the vehicle was a critical matter;
(c) at trial, counsel for Mr Noureddine submitted that Mr Noureddine acquired the vehicle as a lawful inheritance from his father, but that proposition was inconsistent with the evidence given by Mr Noureddine under cross-examination, and was not dealt with at all by the learned magistrate in his reasons;
(d) it is impossible to discern from the evidence how it is said that Mr Noureddine obtained legal title to the vehicle. There is no evidence of an inheritance, or a deathbed gift. The effect of the evidence is that Mr Noureddine and Romy decided between themselves to take the two vehicles;
(e) the learned magistrate misunderstood the context and import of the unregistered vehicle permit, because it seems from the reasons that the learned magistrate mistakenly believed that only the owner of an unregistered vehicle can apply for an unregistered vehicle permit. No declaration to that effect was made upon Mr Noureddine’s application for the unregistered vehicle permit;
(f) he referred to the five factors relied upon by the learned magistrate to support his conclusion that Mr Noureddine owned the vehicle, and submitted as follows:
The relatively brief reference to the inconsistent evidence issue, and the failure to refer to the Jones v Dunkel issue also needs to be viewed in light of the simplicity of the pleading regarding the ownership issue and the failure of Ms Charles to adduce any evidence to contradict Mr Noureddine’s claim that he was the owner of the vehicle. While there were arguably deficiencies in Mr Noureddine’s proofs, there were not actual ‘conflicts’ of evidence which required resolution and/or explanation. As I have previously observed, any deficiencies in the reasons in relation to those issues did not preclude Ms Charles from making comprehensive and targeted submissions for the purposes of this appeal.
In any event, even if I had formed a different view about the adequacy of the reasons, I do not consider that the identified deficiencies would justify the remitter sought by Ms Charles. Rather, the appropriate course of action would have been to exercise the broad discretion conferred by s 109(6) of the Magistrates’ Court Act to remit the matter to the learned magistrate to provide further and better reasons. Both the inconsistent evidence issue and the Jones v Dunkel issue concern evidentiary issues where the learned magistrate had a distinct forensic advantage, having had the opportunity to view and question the relevant witnesses, and to evaluate the impact of any potential inconsistencies in the evidence on his fact-finding task.
Accordingly, the appeal should be dismissed. I shall hear further submissions from counsel on the question of costs.
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