John Marchbank v Anwar Harb
[2011] NSWDC 110
•26 August 2011
District Court
New South Wales
Medium Neutral Citation: John Marchbank v Anwar Harb [2011] NSWDC 110 Hearing dates: 18 August 2011 Decision date: 26 August 2011 Jurisdiction: Civil Before: Judge Peter Johnstone Decision: Appeal dismissed with costs
Catchwords: Appeal from the Small Claims Division of the Local Court on the grounds of alleged procedural unfairness Legislation Cited: Local Court Act 2007 Cases Cited: Dimond v Lovell [2002] 1 AC 384
Telstra Corporation Ltd v Kendall (1995) 55 FCR 221Category: Principal judgment Parties: John Marchbank (Plaintiff) Representation: Mr D Grieve QC with Mr K Oliver of counsel (Plaintiff)
Holman Webb (Plaintiff)
File Number(s): 2011/142613 Publication restriction: None
Judgment
The plaintiff appeals from a judgment of the Local Court sitting in its Small Claims Division, made by an Assessor on 8 April 2011.
Such appeals may only be brought to the District Court on the grounds of lack of jurisdiction or denial of procedural fairness: s39(2) of the Local Court Act 2007.
The plaintiff, Mr Marchbank, contends that he was denied procedural fairness by the Assessor. He relies upon two grounds.
The first ground was set out in his Summons Commencing an Appeal filed in this court on 2 May 2011. I will refer to this as the "Noticed Fact" ground.
The second ground was only articulated in oral submissions. I will refer to this second ground as the "Non-Compensable Services" ground.
The defendant to the appeal, Mr Harb, contends that the appeal should be dismissed on the basis that the plaintiff has failed to demonstrate any procedural unfairness, either on the basis of the ground set out in the Summons, or on the basis of the ground articulated in oral submissions.
The judgment in the Local Court
Mr Harb's motor vehicle was damaged by reason of the negligence of Mr Marchbank, and had to be repaired. In addition to the cost of the repairs, Mr Harb claimed "demurrage", namely the costs incurred by him in having to hire a replacement vehicle during the period in which his vehicle was being repaired, and therefore unavailable for use by Mr Harb.
The issue before the Local Court was the reasonable cost of the hire of the replacement vehicle.
There was no dispute on appeal as to other matters, such as the length of the period of hire (18 days), or as to the type of vehicle hired. The only matter in contention was the daily rate of hire of the replacement vehicle actually hired. Mr Harb claimed hire costs at the rate of $400.00 a day, being the actual amount incurred by him for the hire of the replacement vehicle from Compass Corp Pty Ltd (the "Compass rate").
Mr Marchbank, however, contended that the amount to be awarded to Mr Harb should be limited to $200.00 a day for the hire of the replacement vehicle, that being the evidence as to the market cost of hiring a vehicle from a conventional hire company (the "conventional rate").
The Local Court made findings that there was a range of market rates at the relevant time that extended from $200.00 per day up to $460.00 per day. The amount of $400.00 per day, for which Mr Harb was liable to Compass Corp, was within that market range, and the Court was therefore satisfied that that rate ($400.00) should be accepted as the basis for the assessment of the damages to be awarded for the loss of use by Mr Harb of his own motor vehicle: see paragraph 23 of the judgment.
I will now turn to consider the two alleged grounds of denial of procedural fairness.
The "Noticed Fact" ground of appeal
The first ground of appeal, which I have labelled the "Noticed Fact" ground, is articulated in paragraphs 2 to 5 of the Summons. In summary, it is a complaint that the Assessor, in his judgment, took judicial notice of a fact but failed to give Mr Marchbank an opportunity to be heard in respect of that fact, either as to whether the Assessor was entitled to take judicial notice of that fact, or, if so, the significance of the fact and the conclusions that might properly be drawn in relation to the amount of the damages.
The paragraph of the judgment (22) to which exception is taken reads as follows:
"...the rates of hire contained on the websites of hire car companies are not merely an aspirational pricing of the rates of hire. It is not analogous, for example, to the listing of property prices on Domain or the listing of prices for the private sale of motor vehicles on various websites where pricing is no more than an invitation to treat. The rates of hire on the websites of care hire companies represent a fixed offer upon which hirers may, and no doubt do, accept by on line communication to give rise to a binding over the internet without further negotiations between the parties."
The paragraph needs to be understood in the context of the totality of the reasons and of the evidence upon which they are based.
In my view, the findings of the Assessor in the paragraph concerned were not matters in respect of which he took judicial notice. Rather, they were findings concerning the material before him, the effect of which was that the website rates offered constituted some evidence of market rates for the hiring of vehicles.
More importantly, Mr Marchbank was not denied any opportunity to address the issues that arose or might arise from the evidence before the Assessor: see Telstra Corporation Ltd v Kendall (1995) 55 FCR 221 at 230. Indeed he had every opportunity to do so.
For my part, it is difficult to understand what more could have been put to the Assessor, but for present purposes it does not matter because, firstly, there was no "noticed fact", and secondly, Mr Marchbank was not denied any opportunity to address on the matters about which he now complains.
There was, therefore, no denial of procedural fairness and this ground of the appeal fails.
The "Non-Compensable Services" ground of appeal
The additional ground, only raised at the hearing on behalf of Mr Marchbank, which I have labelled "Non Compensable Service" ground, is based upon a clause in the Compass Corp hire agreement entered into by Mr Harb. The clause in question is contained in a document headed "Mandate and Authority to Act". The clause reads:
"Compass agrees to provided the hire vehicle to the hirer at the contract rate set in the RA and for the hire period as shown on Compass's tax invoice [the 'charges'] on credit for a period of up to 180 days from the date of the tax invoice [the 'credit period']. Compass will use its best endeavours [absent the commencement of legal proceedings] during the credit period to have the charges paid by the third party or the third party's insurer/s [collectively the 'TP'] and if paid the hirer will be released from liability for the charges recovered from the TP provided that the hirer has fully complied with the obligations imposed on the hirer as set out in this Mandate."
It is contended that the clause provides evidence that the Compass rate, which the Assessor found was part of the range of market rates, was in fact not a market rate, because it included a non-compensable component; that is, it included an allowance for services other than the hire of the vehicle; namely assistance with the recovery of the hire fees from the third party or its insurer: Dimond v Lovell [2002] 1 AC 384.
It was submitted on behalf of Mr Marchbank that he was not given an opportunity to expose the error involved in allowing the Compass rate rather than the conventional rate of hire.
It is not the role of this court to decide whether there was some error in the Local Court judgment on the basis of the clause concerned. (For my part I doubt that there is.)
The issue for this court, rather, is whether Mr Marchbank was denied the opportunity of addressing the issue at the hearing before the Local Court.
Quite simply, he was not denied the opportunity. The principles for which the decision in Dimond v Lovell stands were apparent to all involved at the hearing. Indeed, they were addressed by both parties. It was open to counsel for Mr Marchbank to address the Assessor on any point concerning the application of those principles, including the issue now sought to be made in this court. The fact that it may not have been raised in the precise way it is now presented to this court is not to the point. What is relevant is that there was an adequate and appropriate opportunity to do so before the Local Court.
Nor can it be argued that there was no evidence to support the Assessor's findings. The issue as to non-compensable services being included as part of the Compass rate of hire was both the subject of evidence (see the evidence of Mr Adams) and addressed in submissions (see T 11.33 and T 14.47): see again Telstra Corporation v Kendall (supra).
There was, therefore, no denial of procedural fairness, and this ground of appeal also fails.
Disposition
For these reasons the appeal is dismissed.
Costs of the appeal should normally follow the event, unless some other order is appropriate. Counsel for the plaintiff conceded that if the appeal failed the plaintiff should pay the defendant's costs of the appeal.
I therefore order the plaintiff to pay the defendant's costs of the appeal.
Decision last updated: 29 August 2011
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