Di Carlo v Sefton

[2006] QDC 40

[2006] QDC 040

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE FORDE

No 1237 of 2005

SALVATORE DI CARLO	Appellant
and
M T SEFTON	Respondent

BRISBANE

..DATE 03/2/2006

JUDGMENT

HIS HONOUR:  The original claim in this matter was for the sum

of $561.98 by one MT Sefton against one Salvatore Di Carlo.

The claim alleged that the defendant was the driver of the

vehicle and the registered owner of the vehicle.  The

plaintiff suffered damage to his car when it was involved in a

collision with the vehicle, which is described as a BMW motor

vehicle.  It occurred on the 27th of February 2004 at Carina

Heights.

A judgment in default of appearance and defence was entered on

6 January 2005.  An application to set aside that judgment was

filed on the 18th of March 2005.

The reasons of the learned Magistrate who heard the

application had been reduced to writing.  That was heard on

the 6th of April 2005, and I quote:

"I note in the affidavit of the applicant that it does
     not own the motor vehicle involved.  He tells me today
     that he was not the driver but he knows the identity of
     the driver.

He denies receiving various correspondence.

It would appear that enforcement proceedings have been
     brought.  It is noted that there was good service of the
     original claim.  I am of the view that a satisfactory
     explanation has not been given as to why no defence was
     lodged.  I am further of the view that the defendant has
     not a defence as I am of the view that the registration
     documents would indicate that he is the owner or primary
     customer.

The application is dismissed.

I order that the respondent to the original claim, being
     the applicant today, pay costs in the sum of $52.50."

Leave was granted to appeal the order of costs.

Factual Background

The certificate issued by Queensland Transport, which is

exhibit SDC3, names Zapco SMPJ Projects, Level 1/370 George

Street, Brisbane in the notice, and the registered operator is

nominated as Salvatore Di Carlo, Level 1, 370 George Street,

Brisbane.  Mr Di Carlo, Senior, appears before me as the applicant.  The respondent asserts he has no right to do so as the judgment is against his son of the same name.

Because of the quantum of this claim, leave is necessary to

proceed on the appeal pursuant to the provisions of section

45(a) of the Magistrates Court Act 1921.  45(2) reads as

follows:

"Provided that -

(a) where in any of the above cases referred to in
     subsection 1 the amount is not more than $5,000, an
     appeal shall lie by leave of the District Court, by the
     District Court or District Court Judge who shall not
     grant such leave to appeal unless the Court or Judge is
     satisfied that some important principle of law or justice
     is involved."

Important question of law or justice

There had been various authorities referred to me which touch

upon this issue.  In the first instance, Wanstall v. Burke

(1925) State Reports Queensland 295 at 297:

"The cause of action in this case is of a very ordinary
     kind and the only point upon which counsel for the
     defendant sought to rely was that the letter was not
     capable of a defamatory meaning.  This, in our opinion,
     did not and could not involve any important principle
     either of law or justice or, indeed, anything that does
     not apply in every action for defamation in which the
     Judge has to decide whether the matter alleged to be
     defamatory is capable of having a defamatory meaning
     (Criminal Code section 367)"

As was mentioned by Webb J in that case at 298, whether there

is such an important principle of law or justice will depend

upon the facts and circumstances of the case.  That comment is

particularly relevant in the present case.

There is then the further decision of Lachlan v. Hartley

(1978) 1 QdR 1 at 5. That was a case in relation to payment

in of moneys to Court and raised an issue

"not merely of interest to the particular plaintiff,
     there may be many actions on foot in the Supreme Court in
     which the plaintiff might reasonably expect that if the
     matter goes to trial he will obtain more than the amount
     originally claimed in the statement of claim and that he
     will be granted leave to amend in order to achieve this.
     There must be many actions in the District Court in the
     same situation ..."

It was obvious in that case that the issue concerning Kneipp J

who granted leave was an important question of practice for

the profession.

Finally, in dealing with a question of service under section

11 of the Service and Execution of Process Act, or section 59

of the District Court Rules, as they then were, Davies JA,

sitting on a leave application, held that it was not every

contest relating to those provisions that involve an important

question of justice.  His Honour obviously was referring to

service provisions.  Further, he held that:

"When section 92(2) of the District Court Act 1967, which
     was relevant in that case, spoke of an important question
     of justice, it spoke of a question which went beyond the
     correctness or otherwise of the decision from which a
     party sought leave to appeal.  Merely demonstrating that
     such decision was arguably or even probably wrong did not
     establish that an important question of justice was
     involved."

The present case touches upon the question of service upon the

appropriate defendant as being questionable and certainly

controversial in this case.  Notwithstanding that leave was

not sought in the material, as is required under rule 786(5)

of the UCPR, there is power under rule 371 to dispense with

non-compliance, which I do in this case.  The matter of leave

has been argued and will be ruled upon notwithstanding that

non-compliance.

Factual background

It is an irresistible inference in relation to the reasons

given by the learned Magistrate that he applied the question

of agency of a principal in the present case to mean that

notwithstanding that the Mr Salvatore Di Carlo Senior was the

operator as named, that he therefore would be liable whoever

was driving.  There is no finding that Mr Di Carlo was the

driver.  In fact, Mr Di Carlo Senior, I am speaking about,

told the Court he was not the driver but knew the identity of

the driver.  Unless there was a finding of credit on that

aspect, the only other basis for liability is that, as

principal, Mr Di Carlo would be liable for the acts of the

person that he knew was the driver.  There was no such finding

of credit in this case.

If there was a finding of credit, of course, that would not

raise an important principle of justice or law.  The other

point raises a question of law.  That issue of the liability

of a principal of a vehicle for the driver of the vehicle,

absent the statutory agency under Motor Accident Insurance,

has been decided by the High Court in Scott v. Davis (2001)

Volume 204 CLR 333, and particularly I refer to the reasons of

Gleeson CJ at 342.

In other words, the learned Magistrate would have acted on an

erroneous basis if he had held that Mr Di Carlo Senior was

liable as principal for the negligent act of the person

driving, given that there was no evidence that he was in the

car or directing the actions of the person driving.  Thus, he

could not be held liable under the ordinary common law.  That

error by the Magistrate is a legal one which has been clearly

decided elsewhere.  To deal with that issue at this Court, to

grant leave would add nothing to what is a settled principle

of law well-known throughout Australia by virtue of the

decision of Scott v. Davis and other decisions which touch

upon issues of vicarious liability, including NSW v. Lepore

[2003] 212 CLR 511, another High Court decision. Those

matters had been well settled at appellate level.

Therefore, orders are:  the application for leave to appeal is

refused.

...

HIS HONOUR:  The respondent seeks costs of this appeal.  The

original proceedings were served upon Mr Di Carlo Senior at

Doone Street, MacGregor - 19 Doone Street, MacGregor.  It

seems that his son, also called Salvatore Di Carlo, although

he has a middle name, made admissions at the scene that he was

the Sam Di Carlo or Salvatore Di Carlo residing at the

MacGregor address and that he was responsible for the

accident.  I don't need to deal with whether that admission

about responsibility has any weight except to say that once

Mr Di Carlo Senior was served, he may have spoken or ought to

have spoken to his son about the matter and then proceeded to

defend it in the usual way.

However, what was believed, according to Mr Di Carlo Senior,

was that they believed that he was liable as principal and he

wanted to fight the matter based upon his - the fact that he

was not driving.

Without going into the actual detail of that view, the failure

to speak to his son about the matter to facilitate a proper

defence meant that default judgment was entered against the

son Salvatore Di Carlo and subsequently Mr Di Carlo Senior was

mistakenly given a summons for non-payment of the judgment.  The position of the respondent throughout has been that it was the son who was liable, they could not have thought otherwise in view of the admissions made at the scene.  There was some confusion in the domestic situation of the Di Carlos at the time which led, perhaps, to a misunderstanding.

It is not suggested that Mr Di Carlo Senior led the learned

Magistrate into error in relation to the erroneous finding of

vicarious liability.  The respondents have always

maintained the position that the son is the appropriate

defendant in the claim.

In the circumstances, the following orders seem appropriate:

that leave to appeal be refused.  It is further ordered that

the applicant do pay the respondent's costs of the appeal to

be assessed:  r 77; Knight v. FP Special Assets Ltd [1992] 174

CLR 178 at 192-193.

It is further ordered that an indemnity certificate be granted

to the applicant  pursuant to the appeal costs fund.

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