Droga v Cannon

[2015] NSWSC 1910

Supreme Court

New South Wales

Medium Neutral Citation:	Droga v Cannon [2015] NSWSC 1910
Hearing dates:	8 December 2015
Date of orders:	16 December 2015
Decision date:	16 December 2015
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	The amended summons filed on 16 October 2015 is dismissed with costs.
Catchwords:	APPEAL - appeal from Magistrate - claim for damages for loss of use of damaged motor vehicle - whether plaintiff required to prove need for a replacement vehicle in order to recover damages for loss of use - where plaintiff failed to prove her case - application to re-open - application refused - whether plaintiff ambushed by defendants’ legal representatives by addressing Magistrate on an issue that had been conceded - whether Magistrate denied plaintiff procedural fairness by declining to permit plaintiff to re-open
Legislation Cited:	Civil Procedure Act 2005 Local Court Practice Note Civ 1
Cases Cited:	Anthanasopoulos v Moseley [2001] NSWCA 266; (2001) 52 NSWLR 262 Droga v Cannon [2015] NSWSC 1502 Giles v Thompson; Devlin v Baslington [1994] 1 AC 142 Re Fratelli Fresh Pasta Pty Ltd [2011] NSWSC 576 Takemoto v Moody’s Investors Service Pty Ltd [2014] FCA 1081 The Mediana [1900] AC 113 White v Overland [2001] FCA 1333
Category:	Principal judgment
Parties:	Lisa Droga (Plaintiff) Duncan Cannon (First Defendant) State Transit Authority of New South Wales (Second Defendant)
Representation:	Counsel: M R Pesman SC with S A Walsh (Plaintiff) K G Oliver (Defendants)   Solicitors: CME Legal (Plaintiff) JHK Legal (Defendants)
File Number(s):	2015/207735
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Lisa Droga applies by amended summons commencing an appeal filed on 16 October 2015 for a series of orders, including an order that the proceedings be remitted to the Local Court of New South Wales for determination according to law. The proceedings in the court below concerned a claim by Ms Droga for damages to her car arising out of a collision with a bus owned and driven by the defendants. The defendants admitted liability, and the matter proceeded before Magistrate Bradd as an assessment. For presently relevant purposes, the issue of concern is a particular aspect of Ms Droga’s demurrage claim for the loss of use of her vehicle during the period when it was being repaired.

2. The learned Magistrate awarded damages to Ms Droga but declined to order the defendants to pay her a sum calculated by reference to the claimed cost of hiring a replacement vehicle, essentially because his Honour was not satisfied that she had demonstrated that she had a need for one. That decision has generated these proceedings and competing contentions about whether or not his Honour denied Ms Droga procedural fairness by proceeding as he did. That simple statement of the issue belies a not uncomplicated factual and legal background, to which detailed reference is necessary.

3. The grounds upon which Ms Droga seeks to challenge his Honour’s approach are many and varied, but in essence distil to one or more in combination of the following:

(1)   The learned Magistrate erred in law by allowing the defendants to rely in their closing address upon a matter that was not in issue between the parties, that being the “need” of a rental vehicle.

(2)   The learned Magistrate erred in law by allowing the defendants to dispute a matter that had been admitted in their Summary of Defendants’ Case dated 17 June 2015.

(3)   The learned Magistrate erred in law by denying the plaintiff natural justice or procedural fairness by allowing the defendants in their closing address to rely upon a matter that was not in dispute.

(7)   The learned Magistrate erred at law by denying the plaintiff natural justice or procedural fairness by not granting leave to the plaintiff to re-open her case.

(9)   In the alternative, the learned Magistrate erred at law by finding that the plaintiff had to prove that she “needed” the use of a hire car as this was a compensable loss she was entitled to once the defendants had admitted liability.

4. The proper context in which to address these claims is not in contest between the parties. That factual background is referred to first.

Factual background

5. The relevant pleading upon which the matter was litigated is the further amended statement of claim filed on 23 January 2015. In that document Ms Droga alleges that the defendants were negligent in specified respects and that she suffered loss and damage as a consequence. Paragraph 7 is important:

“7. As a result of the defendants’ negligence, the plaintiff has suffered loss and damage as follows:

PARTICULARS OF LOSS

(a) REPAIRS $10,571.99

(b) ASSESSMENT FEE $385.00

(c) HIRE CAR $19,685.05

TOTAL $30,642.04”

6. The further amended defence dated 9 June 2015 responded to that paragraph in the following way:

“3.    The defendants do not admit paragraph 7 of the statement of claim. Save that the defendants admit that the plaintiff suffered damage to his [sic] vehicle, the defendants deny that the value of the damage sustained was in the value of $10,369.07, as it is untrue. The defendants deny that the plaintiff is able to recover hire costs in the value of $19,685.05 as the rate of hire and the duration of hire was unreasonable and excessive.

4.   As to paragraph 7 of the statement of claim, the defendants deny that the plaintiff is entitled to the loss, interest and costs claimed on the basis that the damage sustained to the plaintiff’s vehicle was not in the amount claimed and the amount of hire costs claimed is unreasonable and excessive.”

[Emphasis in the original]

7. Paragraph 10 of Ms Droga’s Case Summary was as follows:

“10.   The plaintiff hired a replacement vehicle whilst her vehicle was being repaired. The plaintiff incurred hire car fees in the sum of $10,685.05.”

8. The corresponding document prepared by the defendants dated 17 June 2015 contained the following relevant paragraphs:

“2.    The duration of the plaintiff’s loss of use of her vehicle that is attributable to the defendant’s negligence, and consequently compensable by the defendant, was less than the 33 days claimed by the plaintiff.

3.    The daily sum of $594.55 … that is claimed by the plaintiff in respect of the compensable loss of use of her vehicle:

(a)   includes the cost of non-compensable benefits for which the defendant is not liable to compensate the plaintiff; and

(b)   substantially exceeds the ‘market rate’ or ‘basic hire rate’ for a reasonable substitute vehicle that is the proper measure of the daily quantum of damages to which the plaintiff is entitled.

4.   The evidence will satisfy the Court that the relevant ‘market rate’ or ‘basic hire rate’ was $255.29 per day or thereabouts.”

9. Ms Droga’s evidence before the learned Magistrate was contained in a statement dated 29 April 2015. That statement is in conventional terms and describes how, among other things, she took her damaged vehicle to a repairer to ask for a quotation for the cost of restoring it to its pre-accident condition. Paragraphs 6 and 14 of the statement should be noted. They were originally in these terms:

“6.    I advised [the smash repairer] that I needed a replacement vehicle whilst my vehicle was being repaired. I was referred to CMT Luxury Replacement Vehicles … I hired a BMW 520D with registration number BVQ23X … Annexed hereto and marked ‘B’ is a copy of the Rental Agreement and Authority that I signed when collecting the rental vehicle.

14.    As a result of the defendant’s negligence, I have suffered total loss and damages in the sum of $30,642.04 including GST. I have incurred legal costs. I believe I am entitled to be reimbursed interest that has accrued on the amounts that remain unpaid.”

10. At the hearing, the defendants successfully objected to the first sentence of paragraph 6 and to the whole of paragraph 14. The balance of Ms Droga’s statement became an exhibit in the proceedings and she was not required for cross-examination.

11. The case was heard over the course of a single day on 18 June 2015. In the events that have occurred, the parties have made considerable reference to what happened on that day. As a result it has become necessary to record significant portions of the transcript of the proceedings before his Honour. Those portions are as follows:

“WALSH: Your Honour, this is a motor vehicle claim. Liability has been admitted. It’s strictly quantum in relation to the amount of the repairs and the amount of the hire car that replaced the car whilst it was being repaired. The vehicle is actually a brand new BMW X5 M. Your Honour, an offer has been put to me, about five minutes ago, by the defendants that I do wish to get instructions for. My instructing solicitors are in Melbourne but I do have a direct line.

OLIVER: Your Honour, there will be an application for leave to file a further amended defence which I understand is opposed. Would it assist your Honour to have a copy of the proposed further amended defence and perhaps the summary of the parties’ cases?

…

WALSH: Unfortunately, the matter hasn’t settled, your Honour. We’re ready to proceed. We object to the amended offence [sic, defence] being filed at this late stage.

HIS HONOUR: Why is that?

WALSH: Simply this an amended statement of claim was put on regarding the costs of renting the car over that period of time. The only objection ever taken was in relation to the amount per day and the length of time and suddenly at the final moment there is a complaint as to the length of time, the 33 days, and we were taken by surprise with regard to that.

…

OLIVER: Your Honour, the amendment was notified on 11 June. Clearly your Honour would appreciate, it only adds the four words and the duration of hire, it’s a very minor amendment.

HIS HONOUR: It already seems to be in the other previous amended defence anyway, doesn’t it? I see, ‘rate of hire’.

OLIVER: The words used were ‘rate of hire’, it’s a bit debatable. For clarity, we’d propose the amendment, your Honour.

HIS HONOUR: You’ve just put in ‘duration’.

OLIVER: The ‘duration of hire’, it’s only the double underlining.

HIS HONOUR: ‘Rate of hire’ and the ‘duration of hire’, I see, that’s the difference.

OLIVER: Very small, your Honour. We notified them on the 11th, they objected to it on the 12th. But they also, on the 12th, served an additional statement from Mr Healey, the repairer, which addresses the issue so they appear to be able to deal with it.

HIS HONOUR: There’s no prejudice.

OLIVER: We have served no additional evidence that goes to this point. The only evidence we will be relying upon will be the repairer’s own documents which have been produced on subpoena.

HIS HONOUR: That would have to be proved anyway, the onus is on the plaintiff. You’ve got to prove your amount, you’ve got to prove that and the way it’s calculated. You’ve got to prove the day rate is reasonable and the time is right.

WALSH: I appreciate that. We have prepared an additional statement and we were served with the defence late. The only difference is, there will be no expert evidence before your Honour as to what is reasonable; that will only come from the repairer, it’ll actually be will actually be in regards to the hire car.

…

HIS HONOUR: I’ll allow it in so that all the matters that are controversial can be properly heard.

WALSH: Your Honour, the plaintiff has been excused from cross-examination so I tender the statement of Lisa Droga sworn 29 April 2015.

OLIVER: Your Honour, there are a couple of objections to that. What, in fact, I’ve told my friend is if this material is not relied upon then we won’t require the plaintiff for cross-examination. The first is at paragraph 6.

HIS HONOUR: Not pressed?

OLIVER: It’s only the first sentence, your Honour.

HIS HONOUR: Is it pressed, Ms Walsh?

WALSH: No, it’s not.

HIS HONOUR: The whole paragraph?

OLIVER: No, only the first sentence is objected to. That’s not pressed. In paragraph 14 it appears, in my submission, your Honour, the whole of that paragraph is conclusory, argumentative and doesn’t assist your Honour.

HIS HONOUR: Absolutely.

WALSH: Not pressed.

…

OLIVER: Your Honour, this is a claim for both repair costs and hire care charges or, more accurately, it’s a claim for repair costs and damages for loss of use which can either be in the form of special damages by way of proven hire car charges that are proved to be recoverable on the correct measure of the plaintiff’s loss; or, failing that, there can be an award of general damages. There are various ways of awarding general damages. The time-honoured way was to give interest on the capital value of the vehicle and any standing charge costs thrown away but in this jurisdiction general damages can also be assessed by reference to what’s called the basic hire rate of a reasonable substitute vehicle for the plaintiff’s vehicle, if the plaintiff is able to demonstrate that there was a need for the vehicle.

In Anthanasopoulos v Moseley Ipp AJA observed that there’s no substantive distinction. There may well be a procedural distinction but there’s no substantive distinction between special and general damages in a case where the plaintiff hires a replacement vehicle by reason of need. In the recent decision of Wong v Maroubra Automotive Refinishers (No2) McCallum J, at para 68 and 69, very explicitly held that damages were recoverable as damages in circumstances where the plaintiff has proved that there was a need for a replacement vehicle; that in those circumstances it was open to the Court to assess general damages by reference to the market rate of hire of a reasonable substitute vehicle.

The first submission we make, your Honour, is that in this case the plaintiff cannot have any damages assessed either as special or general damages by reference to the cost of hiring any vehicle and that is because there is before the Court no admissible proof that the plaintiff ever needed to hire a replacement vehicle. Very recently the authorities, on this question, were considered by Assessor Olischlager in the small claims edition.

…

OLIVER: The leading cases are the decision of the CCA in Anthanasopoulos v Moseley and that of McCallum J in Wong v Maroubra Automotive. The key passages in this judgment, your Honour, are at paras 68 and 69 where McCallum J was considering damages for wrongful detention of a motor vehicle. Your Honour, relevantly, having held that they're indistinguishable for damages for the wrongful deprivation of a motor vehicle by reason of negligent property damage, then turns to the judgment of the CCA in Anthanasopoulos v Moseley. The relevant material is there at 68, as explained by Ipp AJA, with whose judgment Handley JA agreed, ‘The general

Principles ... to the chattel’. Then at 69 ‘Ipp AJA expressed the ... be any different’. Then her Honour refers to the evidence before her. ‘Need’, your Honour, is not self-proving. If authority for that is needed I can provide written submissions –

HIS HONOUR: I don't imagine that's in issue.

OLIVER: No. The difficulty for the plaintiff, your Honour, is that one looks in vain for any evidence from the plaintiff where she actually says, ‘I needed my vehicle’.

…

WALSH: Your Honour, after hearing what my friend has said, I am somewhat embarrassed, I know I have closed our case and it is a very limited amount of evidence that would be required to correct the difficulty in our failure to prove need.

HIS HONOUR: You know there’s case law about that, don’t you? It’s a very high hurdle to overcome. I’m not going to say don’t do that but if you want to make that application you’re obviously aware there’s a very high hurdle, at this stage, to overcome to do that.

WALSH: I understand, your Honour. I’m just considering the interests of justice here. The plaintiff was always on standby--

HIS HONOUR: You have to think of the interest of justice of both parties and the costs, et cetera. They’ve come here today to answer the case based on the evidence you’ve presented. They have no onus, they’ve come here to defend the case that you presented to them. There is case law on this and you would have to refer to that case law and demonstrate to me why, taking that case law into account, I should still grant you an adjournment. It’s up to you whether you want to, but you can’t do it doing what you’re doing at the moment. Just appealing to my emotions is not going to work.

WALSH: No your Honour. What I’m saying is the plaintiff is on standby. I could get her to the courtroom to give evidence today.

HIS HONOUR: No, not at this stage. Only got 25 minutes to go. She’s at Bellevue Hill, she won’t be here by four.

WALSH: Your Honour, if you hear my submissions in relation to why your Honour could infer she has a need for this car.

HIS HONOUR: It’s up to you.

...

HIS HONOUR: There’s no evidence about why she uses the car, what she uses the car for, why she needs it et cetera. There’s no evidence whatsoever as to her use of the car. Without that, so how can one then get to the point of even inferring need?

WALSH: Your Honour, I’d ask that you infer need; that people operate cars on a daily basis and that car is then deprived of them for a period of 30--

HIS HONOUR: That’s what you need, not convenience.

WALSH: I don’t think there’s an authority to the effect that can be--

HIS HONOUR: Show it to me then.

WALSH: I’ve read all the authorities the defendant relies on in these proceedings.

HIS HONOUR: No. You’re giving your closing address. You’re supposed to present your case, hand me authorities. Don’t say to me there are no authorities. You’re the one who’s got to present the authorities.

WALSH: I appreciate that, your Honour. There’s a list of authorities of which the defendant relies upon. I have looked at those authorities. There’s no suggestion that there is actually a distinction between the word ‘need’ and ‘convenience’.

HIS HONOUR: It’s just the plain meaning of the word, isn’t it? ‘Need’ has its plain meaning. One doesn’t have to go beyond the meaning of ‘need’ to establish that it doesn’t mean ‘convenience’. You can look that up in the dictionary, there’s no need to do anything else.

WALSH: Your Honour, I’d ask your Honour to infer that ‘need’ doesn’t mean an absolute essential in life.

HIS HONOUR: I’m not saying ‘an absolute essential’.

WALSH: Or even if she requires the car any time during those 33 days, she’s deprived of that car.

HIS HONOUR: The thing is, what you’re saying now you haven’t given evidence of.

WALSH: Your Honour, if I could have the matter stood in the list I’d like to contact the plaintiff herself so I can take some instructions. I know it’s not evidence before the Court.

HIS HONOUR: You cannot give evidence before the Bar table, there’s no point.

WALSH: No, your Honour, I’m not suggesting that for a moment.

HIS HONOUR: I’m not going to allow you to. This is a small matter. I said earlier I was concerned about the length of time this is taking. It’s not going to take more than a day. You’re supposed to come here prepared. You’re not prepared, so you just have to accept the consequences. It’s your case, you have to prove it.

WALSH: If I could have it stood in the list for about ten--

HIS HONOUR: No. I’m not standing anything in the list. It’s 20 to 4. There’s to be nothing stood in the list. You go through a whole procedure that’s designed to ensure that you are ready for this hearing. You confirm you’re ready for this hearing, this hearing takes place and it takes place in an efficient manner; a just, quick and cheap matter. There’s no standing in the list at this stage.

WALSH: Your Honour, this is the situation, the defendants’ evidence--

HIS HONOUR: There’s no point in arguing with me. Unless you’re going to present cases which can demonstrate that what I’m saying is wrong, there’s no point in arguing with me.

…

WALSH: The fact is she was deprived of the car for 33 days. It was a reasonable amount of time for the repairs to have taken place. She drove the car from the time of the accident up until the time she could find somewhere to have it repaired. She only used the hire car to the very day the repairs were finished and immediately picked up the car that day it was ready to be picked up from the repairer, which is clear from the chronology in exhibit 6, that there is not even a moment’s delay. The day she is rung up and told the car is available she immediately goes to collect it, which I say would infer that she has a need for that day. In the day-to-day operation of people’s lives, cars are an essential – if they’ve bothered to purchase a car and that’s the way their day-to-day life--

HIS HONOUR: No. These anecdotal statements are just falling on deaf ears. They’re not statements which a person should be making from the Bar table in a closing address. You’re supposed to be summing-up the evidence and telling me about the law, not making anecdotal statements, not making conjectural statements.

…

WALSH: Your Honour, I will reiterate that I do believe that you can infer a need for a car in a general sense.

HIS HONOUR: I’m against you on that and I’ve said why a number of times and I’m not inviting you to reagitate the issue.

WALSH: No. I understand, your Honour. I also have it noted that I had made an indication to your Honour that I would wish to reopen my case.

HIS HONOUR: There’s no need to repeat anything, everything is on the transcript. If you want to get the transcript and do whatever you want to do with it, it’s already there; you don’t have to repeat anything.

WALSH: It would only be very brief evidence.

HIS HONOUR: You’ve already said all that. Just wasting time, we’ve only got another ten minutes to go.

WALSH: I guess the only thing, your Honour – I know what your Honour says about the onus being on me – there is nothing in the defence or in the correspondence that pointed out that there was no need for this car.

HIS HONOUR: They don’t have to. You’ve got the onus. You have a certain professional standard, which should be met in these Courts.

WALSH: The defence in regards to the hire care was twofold; (1) the rate was too large and (2) that the period of time was too long. There was never a suggestion there was no need for the car to be hired.

HIS HONOUR: You have to prove your case.”

12. On 10 July 2015 his Honour published his reasons for judgment on the contested application for costs of the earlier proceedings before him. Although he did not do so in a judgment dealing with the damages issues, his Honour chose on this later occasion, in the explicable context of determining the issue of costs, to deal at some considerable length with the requirement to prove a need for a replacement vehicle in cases such as this. For reasons that will become apparent, part of his Honour’s reasons for judgment dealing with this topic are instructive in the current dispute. Paragraphs [27] to [31] inclusive are as follows:

“[27] The context of the cited judgments made in the plaintiff’s submissions reveals the reasons why the judge made statements about parties propounding the issues, being co-operative. In the case before me, the further amended statement of claim pleads negligence by the first defendant, by which, the plaintiff has suffered loss and damage, including the cost of the hire car. The further amended defence pleads that the defendants deny that the plaintiff is able to recover hire costs in the value of … as the rate of hire and the duration of hire was unreasonable and excessive. The plaintiff’s case summary states in paragraph 10: “the plaintiff hired a replacement vehicle whilst her vehicle was being repaired. The defendants case summary states that the daily sum claimed includes non-compensable benefits for which the defendant is not liable to compensate the plaintiff and substantially exceeds the ‘market rate’ or ‘basic hire rate’ for a reasonable substitute vehicle that is the proper measure of the daily quantum of damages to which the plaintiff is entitled. The plaintiff states in its summary that it relies on the evidence of Lisa Droga. The statement of Lisa Droga was admitted into evidence (exhibit 1). In the statement Ms Droga states: ‘I hired a BMW520D … from CMT.’ Annexure B to the exhibit is a form relating to the hiring of a replacement vehicle, which is signed by Ms Droga. In the form it states ‘What is the reason for hiring vehicle:’ The part of the form next to the question contains no text. The question is not answered.

[28] The plaintiff bore the onus to prove that the loss and damages claimed were caused by the first defendant’s negligence. The question, as to whether the cost of the hire vehicle was caused by the negligence of the first defendant is a fundamental proposition that the plaintiff had to prove to be successful in the claim for hire vehicle costs.

[29] In Anthanasopoulos v Moseley, the court held that ‘injury to property which deprives a party of the use of the thing is compensable’, and per Ipp A-JA;

‘[78] In the course of argument on appeal there was much discussion as to whether there was a relevant similarity between the respondents’ claims for damages for loss of use of their vehicles and Griffiths v Kerkemeyer (1977) 139 CLR 161 claims by injured plaintiffs in personal injury actions.

[79] It is now well-established that the true basis of claims that fall into the latter category is the need of the plaintiff for such services, not the actual financial loss suffered by the plaintiff: Van Gervan v Fenton (1992) 175 CLR 327; Grincelis v House (2001) 201 CLR 321 at 327 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. The fact that the services are provided gratuitously does not affect the characterisation of the damages in question. The gratuitous nature of the services merely points up the fact that damages in respect thereof are passed on need and not on actual financial loss, and also raises the question whether such services are to be regards as res inter alios acta.

[80] In my opinion, the true basis of claims for damages for injury to a non-income producing chattel is also based on need. In the Greta Holme line of cases, the plaintiffs were held, generally, to be entitled to damages based on the cost (including the capital cost) of keeping and maintaining the damaged vessels while they were being repaired. Underlying the measure of damages so adopted is the owner’s need to keep (or replace) the damaged chattel during the period while it is being repaired and cannot be used.’

[30] The question of whether the plaintiff had a need to hire the vehicle would only become an issue between the parties in circumstances where the plaintiff gave evidence alleging need, and the defendants contested whether the circumstances alleged to prove need did so.

[31] The cited judgments do not assist the plaintiff with respect to the failure of the plaintiff to prove causation with respect to loss and damages for hire vehicle costs because the judgments, which deal with: applications to tender fresh evidence; amend an application; and contest whether an issue was raised in a lower court; rightly draw attention to the need to raise issues, and be co-operative, so as to prevent avoidable litigation, they do not relate to the failure of a party bearing the onus to prove causation in a trial.”

Submissions

13. The parties have very helpfully reduced their arguments to writing. It is convenient to refer to these submissions before proceeding further.

Ms Droga’s submissions

14. Ms Droga’s case is essentially captured in the following paragraphs:

“4.    Although expressed in a variety of ways in the grounds of appeal, the error the plaintiff submits vitiated his Honour’s judgment may be shortly stated. The defendants did not at any stage prior to the closing address raise any issue of ‘need’. Further, the various iterations of their defence and the statement of issues provided to his Honour were inconsistent with that point being raised. That being so, the late raising of a matter that could easily have been dealt with in the plaintiff’s case (and the plaintiff was not cross-examined) was an approach to litigation properly characterised as being one of ambush.

5.    Faced with that position, his Honour, it is submitted, had two options consistent with the interests of justice: either to reject the submission or to give the plaintiff leave to reopen (that being the application made on behalf of the plaintiff at the hearing). In the event he did neither, and dismissed that element of the plaintiff’s claim (with adverse costs consequences for the plaintiff despite her success on the repair issue).”

15. Ms Droga contends that the first reference in the course of the hearing by anyone to the issue or question of her need for a replacement vehicle was when counsel for the defendants mentioned it in his closing address commencing with the words “The first submission we make … is that in this case the plaintiff cannot have any damages assessed either as special or general damages by reference to the cost of hiring any vehicle … because there is … no admissible proof that the plaintiff ever needed to hire a replacement vehicle.” The defendants had objected to the first sentence of paragraph 6 of Ms Droga’s statement which referred to her need. That objection was uncontested.

16. Counsel for Ms Droga responded to that submission by seeking leave to re-open her case. His Honour refused that application. Counsel for Ms Droga then sought to argue that her “need” for a replacement vehicle was something that his Honour could readily infer in any event. That submission was not accepted by his Honour.

17. His Honour’s reasons for judgment on the costs issue make it clear that he held the view that “the question [of] whether the cost of the hire vehicle was caused by the negligence of the … defendant is a fundamental proposition that the plaintiff had to prove to be successful in the claim for hire costs.” Ms Droga complains that his Honour fell into error in taking that approach to the case at hand in the circumstances otherwise revealed in the transcript of the proceedings before him. She contended that the parties to litigation define the issues between them. In this case Ms Droga was claiming costs incurred by her for the hire of a replacement vehicle. Implicit in that claim and consonant with authority such as Anthanasopoulos v Moseley [2001] NSWCA 266 is a claim that a car was needed. The defendants’ statement of issues is said by Ms Droga specifically to concede as much. That contention flows directly from the words in the defendants’ case summary that “[t]he duration of [Ms Droga’s] loss of use of her vehicle that is attributable to the defendant’s [sic] negligence, and consequently compensable by the defendant, was less than the 33 days claimed.” [Emphasis added]

18. Ms Droga submitted in these circumstances that it amounted to an ambush for the defendants’ counsel to raise the issue of need in his final remarks for the first time. Such an approach is thoroughly discredited by both significant authority and s 56 of the Civil Procedure Act 2005.

19. In any event, Ms Droga submitted that need could clearly be inferred from her conduct in relation to the repairs. His Honour’s view appears to be that in the absence of direct evidence of use, need could not be inferred.

20. Ms Droga contended that her application to re-open ought to have succeeded. His Honour was in error not to have acceded to it. The evidence would have been brief and uncontroversial. Ms Droga contended that his Honour’s approach bespeaks a fundamental denial of procedural fairness.

21. Ms Droga submitted finally that if her appeal to this Court succeeds, his Honour’s costs orders should be set aside. However, in the event that Ms Droga is unsuccessful in this Court, she does not seek leave to impugn his Honour’s orders in relation to costs.

The defendants’ submissions

22. By way of introductory summary, the defendants responded as follows. They pleaded their defence in accordance with the rules of pleading. They did not deliberately deceive anybody. They did not conceal by their conduct that they regarded the issue of Ms Droga’s need for a replacement vehicle as a live issue in the case. On the contrary, they openly signalled the fact that they regarded that issue as important and current by objecting to the first sentence of paragraph 6 of Ms Droga’s statement. They did not ambush Ms Droga, whose counsel should by that time at the latest, if not well before, have realised and accepted that the issue of need remained very much in play. The defendants were never under any obligation in adversary litigation, in which the issues were defined by the pleadings, either to advise Ms Droga on what evidence she should lead to prove her case, or warn her at any time throughout the case that some important piece of that evidence might have been missing. The defendants’ legal representatives were perfectly entitled to protect the defendants’ interests, subject only to compliance with their duty to their opponent not to engage in sharp practice or their duty not to mislead the court. Even so, whatever view one might take of the defendants’ conduct, the issue is ultimately not one that derives from a consideration of their conduct in any event but from a consideration of the learned Magistrate’s approach, and Ms Droga has not shown that he failed in any way to accord her a proper hearing or that he exercised any discretion in a way that was not reasonably open to him. Nothing that the defendants did or failed to do led his Honour into any error of which Ms Droga is entitled now to complain.

Consideration

23. These proceedings were the subject of an interlocutory application that came before Davies J on 12 October 2015. His Honour’s judgment was published on 16 October 2015: Droga v Cannon [2015] NSWSC 1502. In the course of delivering his reasons his Honour said this:

“[17] First, it does not seem to me that there is any basis in what transpired at the hearing for the assertion that the Magistrate allowed the Defendants’ legal representatives to conduct the matter contrary to s 56(4) of the Act by allowing a party to be in breach of s 56(3). The transcript does not disclose any objection to what the Defendants’ counsel did. Rather, the Plaintiff’s counsel said that she was somewhat embarrassed that she had closed her client’s case without leading evidence to prove the need referred to. No submission was made that the Magistrate should either not permit the Defendants’ counsel to make the submission in the circumstances of the agreed issues or even that he should disregard the submissions for that reason.

[18] I endeavoured to ascertain from Ms Walsh for the Plaintiff when it was that the Magistrate should not have allowed Mr Oliver to have conducted the case in the way he did by raising the issue of need in his closing address. I did not get any assistance to determine that matter.

[19] The learned magistrate clearly had s 56 in mind during the argument, not only because of the references to the ‘interests of justice’, but also because he referred to the need for the hearing to be conducted in a ‘just, quick and cheap’ manner. At no stage, however, was a submission made to him that s 56 would be transgressed if the Defendants were permitted to take the course they had. Rather, the submissions were all directed to what the Plaintiff wished to do to rectify the position she found herself in. Implicit in the way the matter was put to the magistrate (‘our failure to prove need’) was the notion that s 56 had not been breached by the Defendants.

[20] The Plaintiff submitted at the hearing of the motions that her references to the ‘interests of justice’ was another way of asserting reliance on s 56, but what was being put was not that the Defendants had breached s 56 but that the Plaintiff wished to invoke s 56 to be allowed to re-open or obtain an adjournment.

[21] The ground is unarguable because it has no underlying factual basis. In that way it is vexatious and embarrassing.

[22] Secondly, the Plaintiff’s submissions ignore the principle that, unless the contrary is shown, the conduct of the case and submissions made come about on the instructions of the client. That does not mean, as the Plaintiff’s submissions seem to suggest, that the clients have or need to have a complete understanding or, indeed, any understanding, of the reasons that a certain course is followed or a certain procedure is adopted by the legal representative conducting the case. There was no evidence to suggest at all that Mr Oliver was acting beyond instructions in the course he took.

[23] The Plaintiff may be correct in directing criticism at the Defendants and their legal representatives generally for the way in which the case was conducted – that is not a matter on which I make any comment nor is it a matter which I have to decide on the present Motions. The point is, however, that if raising the issue of need in the closing address was contrary to what was agreed as the issues in the matter, any breach on counsel’s part is a breach attributed to the client. Such breach on the part of a client is contained within ground 3B. Any fault on the Magistrate’s part in that regard is contained within grounds 3A and 3B.

…

[26] These passages show that, ordinarily speaking, the responsibility of complying with s 56 lies with the legal representatives of the parties, although that does not overlook the obligations on the parties themselves under s 56(3). In the ordinary course, failures by the legal representatives (in breach of s 56(4)) will be the failure of the parties because the parties are bound by the acts and omissions of their legal representatives.

[27] Thirdly, an error on the part of a judicial officer in permitting something to occur that, on appeal, is held not to have been in compliance with s 56, will not necessarily be an error of law simply because s 56 was involved, and in most cases will not be an error of law. Decisions that rely or ought to rely on s 56 will chiefly be discretionary decisions, such as whether amendments or adjournments should be permitted, or whether a party can rely on evidence or pleadings which were filed contrary to directions of the Court. Many or most breaches will be breaches of a procedural requirement imposed by a court or by the Rules or both.

[28] Procedural error which amounts to procedural unfairness will amount to an error of law. Grounds 3, 5, 6 and 7 are grounds that in substance rely on a breach of procedural fairness to the Plaintiff. The position with other procedural errors it otherwise.

[29] Although the present proceedings are an appeal and not proceedings for administrative review, some light is cast on the result of a breach of a procedural requirement in administrative law by what appears in Aronson & Groves, Judicial Review of Administrative Action (5th Edition 2013, Thomson Reuters) at [6.240]:

‘It is in the nature of procedural rules that they are frequently broken. Procedure being the servant of substance, invalidity is the least common of the possible consequences of such breaches. Breach of procedure can usually be overlooked by all concerned, "waived" by those adversely affected, or rectified by the parties or the decision-maker, all without risk to the validity of the final outcome. Indeed, the very concept of procedural requirements implies that they are usually of lesser order of importance than substantive requirements, and one frequently sees the term qualified by the adjectival "mere".’

[30] As I mentioned earlier, no objection was taken to Mr Oliver’s having made the submission about need or that the Magistrate allowed it nor was it submitted that the Magistrate should have disregarded it because it went beyond the agreed issues. In the first place, it is difficult to suggest error on the part of a judicial officer when it was never put to that person that he or she should take or not take a particular course or make a particular ruling: see in a different context but dealing with the same principle Avery v R [2015] NSWCCA 50 at [72] and Zreika v R [2012] NSWCCA 44 at [80] and [82].

[31] If it was, nevertheless, an error, it was a procedural error which I consider was waived by the failure to object or make such a submission.

…

[35] It needs also to be said that the Summons and the proposed amended summons are typical of documents containing grounds of appeal where the same ground in substance is expressed in a number of different ways using slightly different expression. Putting aside grounds concerned with costs there are really two matters of substance that arise from the Magistrate’s decision. The first is an arguable denial of procedural fairness in entertaining submissions about need, if that was not an issue in dispute, and by not permitting the Plaintiff to reopen her case in that regard. Grounds 1, 2, 3, 3A, 3B, 4, 5, 6 and 7 all concern the first issue of substance. The second issue of substance concerned the failure to give adequate reasons, dealt with by ground 8.”

24. It is helpful to bear these remarks in mind.

25. Before proceeding further I consider that I should make at least three important observations. First, from my close reading of the transcript of the proceedings before the learned Magistrate I gained the very distinct impression that the current dispute could well have been entirely avoided if his Honour had approached the matter in a slightly different fashion. It was, or must have been, obvious by the time Ms Walsh commenced her submissions that she was faced with a significant difficulty at both a professional and forensic level. Putting all other matters aside, it was clear by then that Ms Walsh was confronted with the reality that the issue of Ms Droga’s need for a replacement vehicle was something that she had to establish in order to recover damages under that head and that there was a significant and looming prospect that she had failed to do so. It would of course have been a relatively simple matter to deal with by calling Ms Droga to give evidence about it. I put to one side as presently irrelevant the question of whether or not his Honour would have accepted such evidence, in whole or in part, or would otherwise have been satisfied that the rather impressive amount that she claimed was a reasonable sum in the circumstances. Whether Ms Walsh had overlooked the forensic obligation to establish Ms Droga’s need for a replacement vehicle from the start or whether she conducted the case upon a false assumption based upon the way the matter had been conducted by her opponent up to the point where he commenced his submissions, is beside the point for present purposes. Once that fact became patent, as it had, and for whatever reason, it seems to me that at least one course that was available to his Honour was to permit Ms Droga to give evidence about it. I appreciate immediately that Ms Walsh made no application for an adjournment for that purpose, although she did apply to re-open her case. That may well in the circumstances at that time have amounted to much the same thing. My simple proposition is that it could not and would not have been the end of the world if a somewhat more lateral, not to say forthcoming, approach had been taken by his Honour in order to solve the problem that had arisen.

26. Secondly, I am completely aware that the case before his Honour was an unexceptional example of adversary litigation conducted on behalf of the parties by professional lawyers with their respective clients’ interests in mind. Those lawyers had duties both to the court and to the clients, but that was hardly a unique situation. To that extent Ms Walsh and her opponent were each entitled to conduct the litigation with a view to obtaining a litigated outcome that best favoured the party for whom they appeared. Ms Walsh’s opponent was therefore not bound or obliged to draw her attention to the fact that she had arguably failed by the close of her case to prove one of its critical elements before in fact drawing it to her attention when finally addressing his Honour. Faint evidence of need was excluded by the objection taken to the first sentence of paragraph 6 of Ms Droga’s statement. Without expressing a view about whether or not it was appropriate for Mr Oliver at that stage to have remained silent about what he must have understood and appreciated was an evidentiary gap in her case, that was at least an obvious opportunity for Mr Oliver to tell Ms Walsh about it if he had been minded to do so. Once again, the likelihood is that the issue would in such circumstances have been completely avoided.

27. Thirdly, each of these difficult and potentially ambivalent positions in which his Honour and Mr Oliver were placed were directly caused by Ms Walsh. The evidentiary lacuna was not the fault of his Honour or Mr Oliver. The learned Magistrate was faced with the task of being fair to both sides when the problem became apparent to Ms Walsh. His Honour could not have been expected, for example, to warn her that her case was, or that it might be, deficient in some particular respect. Correspondingly, when the evidence in Ms Droga’s case closed, Mr Oliver was in sight of a victory in the proceedings. Ms Walsh did not offer his Honour the opportunity of granting her an adjournment by asking for one, although his rejection of her application to re-open her case may to some extent have telegraphed to her an indication of the likely result of such an application if it had been made. Nor did Ms Walsh seek to impugn or criticise Mr Oliver’s conduct in a way that might have generated a more favourable or different response from him or some helpful intervention from his Honour. Neither his Honour nor Mr Oliver would have been confronted with the criticisms that are now directed at them if Ms Walsh had called Ms Droga and asked her questions directed at eliciting why it was she found it necessary to rent a substitute vehicle. That would also clearly have avoided the current problem.

Ground 1

28. The burden of this ground is that the issue of Ms Droga’s need was a matter that was not in issue between the parties. The complaint is presumably that his Honour should have interrupted counsel for the defendants in the course of his final remarks and pressed him upon why he was addressing on that issue at all. This raises the rhetorical question, why should his Honour have done so?

29. The most obvious answer to that question is that he could not have been expected to do so if counsel for Ms Droga did not do so herself. In a sense, Ms Walsh’s silence at the time was as much a signal to his Honour that the issue was still relevant as the fact that Mr Oliver was raising the issue at all.

30. Another answer is that the matter is put in issue by the further amended defence. It is perhaps regrettable that paragraph three of that defence singles out the rate of hire and the duration of hire for special mention following the defendants’ non-admission of the paragraph in the first place. Ms Droga contends that that approach indicated to her that her need for a replacement vehicle per se, to which no special reference is made, was not in issue, in contrast to those matters going to the value of that part of the claim that were specified in detail. The words that led to that apprehension are the last sentence of paragraph 3 in bold type indicating that “[t]he defendants deny that the plaintiff is able to recover hire costs in the value of $19,685.05 as the rate of hire and the duration of hire was unreasonable and excessive.” [Emphasis added]

31. Counsel for Ms Droga at no time disputed that, if Ms Droga’s need for a replacement vehicle was in issue, she bore the onus of proving it. Instead, Ms Walsh ultimately submitted that the issue was not joined on the pleadings, saying to his Honour, “there is nothing in the defence or in the correspondence that pointed out there was no need for this car.” As the transcript reveals, his Honour’s response was to say, “[t]hey don’t have to. You’ve got the onus.”

32. The transcript also shows that Ms Walsh protested that the defence only really ever put in issue the rate of hire and the duration of hire, and that there was never any suggestion that any other issue was in contest. His Honour once again replied somewhat curtly, “[y]ou have to prove your case.”

33. I accept that the pleaded defence was less than clear. However, a number of things can be said about that. First, any pleading in response to a pleading that alleges the suffering of damage or an amount of damages is taken to traverse the allegation unless it specifically admits it: UCPR 14.26(3). Despite the arguable infelicity of language of paragraph 3 of the further amended defence, the issue of need was in fact technically joined on the pleadings. The defendants maintained that their pleading, that the hire charges claimed and the duration of the hire period were in each case unreasonable and excessive, were alternative affirmative defences of which they bore the onus of proof. Properly understood, these further pleadings, having traversed the allegations in paragraph 7 of the further amended statement of claim, neither specifically admitted the allegations in that paragraph nor contradicted the express traverse in the non-admission that preceded them.

34. Secondly, if the defendants’ litigious position on this issue had been a source of confusion to Ms Droga’s legal representatives at any time in the period leading up to the hearing, it was clearly open to them to seek particulars of the defence or otherwise have the matter clarified. That was never done. That fact alone rather suggests that the matter was never actually adverted to until the “misleading” nature of the defence achieved the apparent significance in these proceedings that Ms Droga now contends it should be given.

35. Thirdly, as Davies J has so pertinently encapsulated at [17] of his judgment, Ms Walsh did not ever suggest “that the Magistrate should either not permit the defendants’ counsel to make the submission in the circumstances of the agreed issues or even that he should disregard the submissions for that reason.” It is difficult now to conclude that his Honour fell into some actionable or avoidable error when his attention was never drawn to it in a way or at a time when it might have been corrected.

Grounds 2 and 3

36. Ground 2 depends for its success at least upon the threshold issue of whether or not the defendants’ case summary in fact admitted Ms Droga’s need for a replacement vehicle. Ground 3 once again invokes the proposition that the issue of Ms Droga’s need for a replacement vehicle was in any event not in dispute.

37. The relevant parts of the summary are extracted above. The point of difference between the parties is stark. Ms Droga says that the summary makes no reference to the issue of her need for a replacement vehicle and so it was never part of the case. The defendants say in contrast that the document makes no concession about that issue and does not incorporate any assumptions about it.

38. It seems to me that Ms Droga’s case relying upon the terms of the defendants’ case summary is more fundamental than she asserts. The words “and consequently compensable by the defendant” are on any view slightly confusing and potentially apt to mislead. In the context in which they appear, they add nothing that was necessary to explain an otherwise very clear sentence unless on one view they were intended to add something to it to either expand or alternatively qualify its meaning. There is arguably some attraction in the proposition that the defendants were conceding or admitting that Ms Droga’s claim for damages for the loss of use of her vehicle was in this case in fact compensable by the defendants.

39. Order (1) of the standard directions pursuant to Practice Note LC Civ 1 requires parties to file written case summaries at the pre-trial review. Case summaries precede the filing of any statement of agreed facts and issues. Order (5) of the standard directions requires the parties to discuss prior to the hearing whether they agree about any facts or issues and to file a statement about them or, failing agreement, to file the parties’ individual statements of facts and issues seven days prior to the hearing. Case summaries were not filed in accordance with the timetable in this case. Neither party filed a statement of facts and issues.

40. The defendants contend that their case summary indicated that they intended to prove that the period of the loss that was attributable to their negligence was less than 33 days and that the rates covered items for which they were not liable. Ms Droga contends that paragraphs 2 and 3 of the defendants’ case summary “specifically conceded entitlement”, in which case it followed that the defendants’ final submission that need had not been established amounted to an ambush. I take that reference to incorporate the well known as useful remarks of Allsop J in White v Overland [2001] FCA 1333 at [4] and elsewhere in other authorities to like effect. See for example Re Fratelli Fresh Pasta Pty Ltd [2011] NSWSC 576; Takemoto v Moody’s Investors Service Pty Ltd [2014] FCA 1081; Giles v Thompson; Devlin v Baslington [1994] 1 AC 142.

41. The defendants say that Ms Droga’s contention fails to understand or appreciate the distinction between:

1. a concession that she suffered a loss of use of her vehicle for which the defendants were liable in some way to compensate her; and

2. a quite different concession that the damages payable to compensate her for the loss of use of the vehicle properly or necessarily included damages calculated by reference to some daily rate of hire for a replacement.

42. The defendants admit that if their case summary had included the second concession then that would have also carried with it a concession that Ms Droga needed a replacement vehicle. The defendants maintain that their case summary did not include the second concession, and that the words “consequently compensable” in paragraph 2 of their case summary do not carry that meaning or have that effect.

43. The issue is however more complicated than this. That is because paragraph 3 of the defendants’ case summary speaks of a “daily sum of $594.55 … claimed by [Ms Droga] in respect of the compensable loss of use of her vehicle.” [Emphasis added] That paragraph then goes on to speak of various hire rates “for a reasonable substitute vehicle that is the proper measure of the daily quantum of damages to which [Ms Droga] is entitled.” [Emphasis added]

44. This terminology is unfortunate at best and, on Ms Droga’s case, misleading at worst. However, despite some misgivings about it, I am ultimately satisfied that the defendants’ interpretation is to be preferred. Damages for which the defendants might become liable and for which Ms Droga is “consequently compensable” are indeed referable to the duration of her deprivation of the use of the damaged vehicle. However, properly understood, the words used by the defendants in paragraph 2 referring to the duration of Ms Droga’s loss are a description or encapsulation of the damages claimed by Ms Droga for that period, not an admission that she is entitled to them. In the same way, the reference to “compensable loss” and “damages to which [Ms Droga] is entitled” in paragraph 3 of the case summary is a reference to damages to which Ms Droga will become entitled in accordance with applicable legal principles concerned with the calculation of such damages if she proves her case, not an admission or concession that she is entitled to them or that quantification of such damages is the only live issue.

45. So far as ground 3 is concerned, the defendants contend that the issue of Ms Droga’s need for a replacement vehicle was always in dispute. The issue was never admitted on the pleadings and no concession about it was made anywhere else. Ms Droga’s need for a replacement vehicle remained a fact in issue at all times.

46. The defendants’ position in relation to both grounds 2 and 3 is based squarely upon a strict view of the law which, by implication, they maintain Ms Droga failed properly to understand or appreciate. The defendants’ pleading and their case summary are said to be both consistent with principles now clearly established by the Court of Appeal, namely that:

1. the temporary loss of use of Ms Droga’s vehicle during repairs was a loss for which the defendants were liable to compensate Ms Droga by an award of general damages; and

2. the question whether, during the period of wrongful deprivation of her vehicle, Ms Droga intended or needed to use it for any particular purpose, or for any purpose at all, was irrelevant to the defendants’ liability to pay general damages: Anthanasopoulos v Moseley at [1], [29] – [37], [72] and [88]; The Mediana [1900] AC 113;

3. the question whether, during the period of wrongful deprivation of her vehicle, Ms Droga intended or needed to use it for any particular purpose, or for any purpose at all, always remains relevant to the quantum of the damages that the defendants were liable to pay in respect of the temporary loss of the use of the vehicle: Anthanasopoulos v Moseley at [1], [59] and [72]; The Mediana at 118.

47. From the defendants’ perspective, ground 2 rests upon Ms Droga’s misunderstanding or misinterpretation of the defendants’ case summary and ground 3 rests upon a similar misunderstanding of the issues that remained in issue which Ms Droga was still required to prove. Those misunderstandings were in turn caused by a failure to recognise or appreciate the distinction between consequential loss (loss of use) and its monetary quantification. In plain terms, the defendants’ concession that the loss of use of Ms Droga’s vehicle caused by their negligence was compensable did not also amount to a concession or an admission that compensation was recoverable in any particular amount or, specifically for present purposes, that she was entitled to have her damages calculated or quantified by reference to the cost of hiring a replacement vehicle.

48. As with ground 1, what happened at the trial is also relevant to grounds 2 and 3. Even if the defendants’ case summary had included the so-called concession, it is difficult to see how it could have induced Ms Droga’s legal team to overlook the need to prepare or assemble admissible evidence of her alleged need for the replacement vehicle. It is apparent that the issue had not escaped their notice, as the first sentence of paragraph 6 of Ms Droga’s statement appears to reveal. That evidence was on its face always vulnerable to attack, which is what in fact occurred. The decision not to call Ms Droga left her case without any evidence at all on the issue concerned.

49. The transcript of what occurred at the point when the evidence objection was taken also reveals that Ms Droga was not required for cross-examination if the first sentence of paragraph 6 of her statement was not pressed. If the need for Ms Droga to prove her need for a replacement vehicle had not been an issue in the proceedings or, in the terms of ground 3, “was not in dispute”, the defendants’ objection to the evidence would have been both unnecessary and pointless. The defendants’ sensitivity about that evidence should on one view have alerted Ms Droga’s counsel to its significance.

50. Perhaps more relevantly for present purposes, this debate took place in court in full view of his Honour. The fact that only the first sentence of paragraph 6 was objected to by the defendants was clarified and noted. The sentence went in an inadmissible form to the very issue in question. From his Honour’s point of view he could have been expected to appreciate that the defendant was opposing any attempt by Ms Droga to establish need in an unacceptable way. The objection could only have been directed to a matter that was still in dispute.

51. I accept that a slightly more benign approach by his Honour or a much less combative approach by Mr Oliver would, or at least might, at this point in the proceedings have led the case down a different path. But neither is to be criticised for taking the approach they each took. More fundamentally, neither Mr Oliver’s forensic stance nor his Honour’s response to it inevitably suggests that he fell into error.

Ground 7

52. His Honour refused to permit Ms Droga to re-open her case. Ms Droga does not identify or specify any wrong direction of law or error of principle to support the proposition that his Honour’s discretion miscarried. Instead the implicit underpinning assumption is that Ms Droga was being, or had been, ambushed and that his Honour should or must have been aware of it. For the reasons already considered with respect to grounds 1 to 3 inclusive, that premise is not valid. His Honour’s refusal to permit Ms Droga to re-open her case did not deny her procedural fairness.

53. In the same context his Honour cannot be criticised for allegedly failing to follow the dictates of justice in accordance with s 58 of the Civil Procedure Act 2005. If leave to re-open had been granted it would have necessitated an adjournment of the proceedings to another day. That was clearly not in issue. His Honour correctly characterised the matter as “small” where the ratio of time and cost to the sum involved could quite reasonably have informed his decision. His Honour’s decision cannot be said to be one that was not reasonably open to him in the circumstances.

Ground 9

54. In my opinion, this ground is misconceived. For the reasons already considered, the defendants did not ever admit or represent that Ms Droga was required to establish her need for a replacement vehicle. She bore the onus of proving that issue. Ms Droga took no point below that she did not bear that onus and appears tacitly, if not expressly, to have accepted it.

Note

55. A significant part of Ms Droga’s contentions proceeded upon the basis that her legal representatives had been ambushed. I have elsewhere indicated that even proof of that contention would not, having regard to the way that this appeal has proceeded, have been of any relevance unless it could be shown to have been relevant to a contention that his Honour fell into error. For the avoidance of doubt I should indicate that, whatever characterisation one may ascribe to the manner in which the defendants conducted their side of the litigation, about which I have made some passing comments, I do not consider that Ms Droga’s lawyers were ambushed in the sense that the expression is understood in or explained by the authorities. As the transcript of the proceedings before his Honour makes plain, Ms Droga and her lawyers were in my view the authors of their own misfortune.

An aside

56. His Honour described the case before him as “small”. That description was offered having regard to the fact that Ms Droga claimed $15,840 in her case summary, compared to the sum of $19,685.05 referred to in the amended statement of claim. The duration of the hire was 33 days and the latest daily rate claimed was $480.

57. By her notice of motion filed on 7 December 2015, Ms Droga sought leave to tender a statement in these proceedings for the purpose of establishing that evidence of need was available if her application to re-open her case had been granted. I rejected that application in the circumstances referred to later in these reasons. However, with the anecdotal benefit of that statement it emerges that Ms Droga used to drive her damaged vehicle to and from work three days per week a distance of 7.7km between Bellevue Hill and Ultimo. Ms Droga also used the vehicle to drive her children to and from school every day and to after-school activities and on weekends. Ms Droga also used her vehicle for shopping purposes for her family.

58. The vehicle that was damaged in the subject accident was a BMW X5 Sports Utility Vehicle. Ms Droga chose to replace that vehicle for the period when it was being repaired with a BMW 520D sedan. The base daily rate for the hire of that vehicle was $480, plus incidental costs. She was charged the total amount of $19,685.05 for that car by City Motor Transport Pty Ltd trading as CMT Insurance Services, CMT Luxury Replacement Vehicles and City Car BMW Rentals. That company’s representative was cross-examined at some length before his Honour about the specifications and characteristics of the replacement vehicle and whether or not it was or was not comparable to certain other vehicles.

59. The disputed issue in these proceedings has centred on Ms Droga’s need for a replacement vehicle. It seems to me that little attention was given in the court below, or in the context of assessing the commercial wisdom of the proceedings in this court, to the distinction between Ms Droga’s need for a replacement vehicle on the one hand and her desire for a particular vehicle on the other hand. The activities specified by Ms Droga as those to which she originally directed her BMW X5 do not appear obviously or even possibly to have mandated the need for a BMW 520D or its equivalent. Although I have no evidence about it, and accepting that the issue is not relevant to my conclusions in these proceedings, it does seem likely that a far less expensive vehicle could have adequately operated to fulfil her identified needs. Once again without evidence about it, it would surprise me if four door sedans of considerably less impressive specifications could not have been hired for less than $100 per day and even less on a contract written for a longer period.

60. It should not go unremarked that the sum required to compensate Ms Droga for the cost of hiring a replacement vehicle with which to conduct the activities she has specified, is not necessarily or automatically co-extensive with the cost of providing a comparable vehicle to the one that was damaged. The defendants would only ever be liable to compensate Ms Droga to the extent necessary to put her in the position she would have been but for the defendants’ tortious act. A far less sophisticated vehicle could have adequately coped with the activities identified by Ms Droga at what may well have been a considerably reduced tariff. The issue would have been a question of what was reasonable to meet Ms Droga’s needs, not what was necessary to compensate her for her choice.

61. If that matter had been litigated, either before his Honour in the first place, or with the benefit of leave to re-open her case in the second place, it may well have transpired that the amount in issue would have been closer to $2,000 than $15,840 or $19,685.05. At that rate the issue would have been hardly worth fighting over. It would truly have been a small case as the learned Magistrate remarked. It seems to me that an objective assessment of the utility of both the original proceedings and these proceedings may well have benefited from a consideration of matters such as these as well as the overriding purpose of facilitating the resolution of the real issues in dispute.

Ms Droga’s notice of motion

62. Ms Droga sought to read a statement in aid of establishing in this Court that her application to re-open in the court below had some utility. I rejected that application without reasons. In my opinion the availability or otherwise of evidence to establish any further matters that Ms Droga needed to establish to satisfy his Honour of some matter or to prove her case is presently irrelevant. That is because the substance of that evidence would not have been determinative of the issue of the reasonableness or correctness of his Honour’s decision to allow or refuse the application. For example, the availability at that time of cogent evidence in support of Ms Droga’s claims would not have necessitated the granting of the application any more than the absence of such evidence would have necessitated its rejection.

63. My rejection of Ms Droga’s notice of motion did not affect my ultimate decision.

Conclusions and orders

64. It was always open to his Honour to have taken a different approach to the problem that arose at the close of the evidence. That is the nature of judicial discretion, where competing alternatives present themselves. The choice of one alternative over another or others may turn out to be unpleasant or unfortunate for one of the litigants. However, unless the choice was not reasonably open to be made, or is based on a wrong principle or a misconception of the facts or the relevant law, the fact that the decision disappoints one side does not make it wrong or expose it to the prospect of a successful appeal. Something more must be shown.

65. It is inevitable in the circumstances that the summons should be dismissed with costs.

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Decision last updated: 16 December 2015