Kenn v Pickard

[2005] NSWLC 18

Local Court of New South Wales

CITATION:	Kenn v Pickard [2005] NSWLC 18
JURISDICTION:	Civil
PARTIES:	Robert Kenn Huw Pickard
FILE NUMBER:	5895/05
PLACE OF HEARING:	Downing Centre Local Court
DATE OF DECISION:	09/16/2005
MAGISTRATE:	Magsitrate B A Lulham
CATCHWORDS:	Notice of Motion - Motor vehicle - Insurance - Inspection and assessment - Evidence
LEGISLATION CITED:	Evidence Act 1995 s.166-169 Local Courts (Civil Claims) Rules 1988 Pt 20 r7 Uniform Civil Procedure Rules 2005 r23.8
CASES CITED:	Evatt v Australian Consolidated Press Ltd (1970) 1NSWR 97
REPRESENTATION:	James Tuite & Assoc. - Solicitors Mr P J Gow - Counsel CKB Partners - Solicitors Mr M P Board - Solicitor
ORDERS:	The Motion should be granted subject to conditions.

Reasons for Decision

1    This matter proceeded before me at the Downing Centre on 18 August 2005. Mr Gow of Counsel appeared for the plaintiff, the respondent to the Motion, and Mr Board Solicitor appeared for the defendant/applicant on the motion.

2    The defendant sought the following orders in the Notice of Motion;

1. The plaintiff comply with the request of the defendant for the plaintiff to make its motor vehicle registration ANL21X (Volvo V70 Wagon) available to the defendant for inspection and assessment pursuant to Pt 20 r7 of the Local Courts (Civil Claims) Rules 1988.


2. In the alternative, the plaintiff comply with the request of the defendant to make his motor vehicle registration ANL21X (Volvo V70 Wagon) available to the defendant for inspection and assessment pursuant to s169 of the Evidence Act.


3. The proceedings are stayed until the plaintiff has complied with these orders.


4. The plaintiff pay the defendant’s costs of and incidental to this Notice of Motion.


5. Further or other orders.

3    The defendant read the following affidavits;

1. Affidavit of Martin P. Boad sworn 1 July 2005.


2. Affidavit of Martin P. Board sworn 18 August 2005.

4    The plaintiff read the following affidavits;

1. Affidavit of Melanie Jane Tonazzi sworn 17 August 2005.


2. Affidavit of Anthony Martin sworn 17 August 2005.

5    I have not in the short time available to me been able to obtain a copy of the transcript from the hearing. I believe there were some objections to the second affidavit of Martin Board, and my notes do not make it clear whether a final ruling was made on such objections. However, as it is an interlocutory application and factual matters do not appear to be really in dispute, I propose to determine the matter on the basis of the affidavits as filed. I set out the following factual background to the dispute based on the material in the affidavits;

1. On 19 August 2004 the plaintiff’s motor vehicle was hit in the rear end by the defendant’s motor vehicle.


2. The defendant’s motor vehicle was insured with AAMI and its front end was repaired at a cost of $2,385.20 (nett of GST).


3. The plaintiff’s motor vehicle was insured with Jardine Lloyd Thompson Claims Management Services (JLT).


4. On 31 August 2004 JLT sent a demand to AAMI for their client’s loss estimated at $14,000. Significantly the demand was directed to a particular person at AAMI and referred to their claim number as 03327921000. Clearly AAMI’s client had lodged a claim with them.


5. The plaintiff’s motor vehicle was repaired by North Shore Classic Auto Body Centre at Artarmon. Apparently AAMI have an office nearby. Work commenced on the repairs on or about 16 September and were completed on or about 30 September. The car was at the repairers from about 19 August 2004 to 30 September 2004.


6. On 18 November JLT sent proof of loss documents to AAMI together with a Demand for the sum of $16,185.75 plus GST.


7. On 3 December 2004 AAMI requested JLT to provide clear colour photographs of the plaintiff’s damaged vehicle.


8. On 13 December 2004 AAMI received the colour photographs from JLT.


9. By letter dated 15 December 2004 AAMI advised JLT that after reviewing proof of loss documents, that they determined ‘fair and reasonable’ costs of reinstating the vehicle to its pre-accident condition at $13,322.05.


10. There was further correspondence. On 24 May 2005 a Statement of Liquidated Claim issued from the Downing Centre claiming $18,156.32 calculated as follows;


North Shore Classic Auto Body Centre

Repairs: $16,185.75

GST: $1,618.57

Towing fee: $170.50

Commercial Assessments (Australia) Pty Ltd: $132.00

Commercial Assessments Pty Ltd $49.50
$18,156.32

6    On 17 June 2005 the defendant filed a statement of part confession offering the sum of $14,156.41 which included interest of $834.36. The balance amount of $13,322.05 was made up of;

Repairs: $13,167.05

Towing fee: $155.00

$13,322.05

7    The difference which the defendant was prepared to pay in relation to the actual repairs was therefore the sum of $3,018.72 calculated as follows;

Amount claimed by plaintiff for repairs: $16,185.77

Less amount prepared to be allowed by defendant: $13,167.05

$3,018.72

8    It is important when I consider the discretionary matters which I am required to take into account, that in this matter in the General Division of the court is in fact a dispute over $3,018.72.

9    On 17 June 2005 the solicitors for the defendant wrote to the solicitors for the plaintiff. The second sentence of such letter stated;

‘The quantum of the claim remains an issue and my client requires an opportunity to inspect and assess your client’s vehicle notwithstanding that it may have been repaired.’

The letter then goes on to make demands in relation to the provision of invoices and photographs which had already been complied with. The letter also sets out the basis on which the solicitors propose that the inspection take place. The letter bears all the hallmarks of being a standard letter not specifically directed to this case.

10    The plaintiff’s solicitors replied to the defendant’s solicitors on 23 June 2005 advising that the defendant’s insurer was not entitled to inspect the repaired vehicle, and that if an inspection was to have been undertaken, then the time for such inspection was when the vehicle was damaged.

11    It was that refusal to consent to the inspection of the vehicle that brought about the present application before the court.

STATUTORY PROVISIONS AND LEGAL PRINCIPLES

12 The application is brought under r23.8 of the Uniform Civil Procedure Rules 2005 which relevantly provides as follows;

R23.8 Inspection of property
1. For the purposes of enabling the proper determination of any matter in question in any proceedings the court may make orders for any of the following;
(a) The inspection of any property.
(b) …
(c) The making of any observation of any property.
(d) …
(e) …
2. An order under subrule (1) may authorise any person to enter any land or to do any other thing for the purpose of getting access to the property.


3. A party applying for an order under this rule must, as far as practicable, serve a Notice of Motion on each person who would be affected by the order if made.
4. The court is not to make an order this rule unless it is satisfied that sufficient relief is not available under section 169 of the Evidence Act 1995.
5. This rule extends to the proceedings for an application for an order under Part 5 (Preliminary discovery and inspection).
6. In this rule property includes any land and any document or other chattel whether in the ownership or possession of a party or not.

13 Clearly the exercise of the powers conferred by r23.8 is contingent upon the unavailability of sufficient relief under the Evidence Act. S166-169 of the Evidence Act permit parties to proceedings to make requests of various kinds, including requests to another party to produce to the requesting party ‘a specified document or thing’ so as ‘to permit the requesting party adequately and in an appropriate way to examine, test or copy the whole or a party of a specified document or thing.’

14 S167 of the Evidence Act provides that a party may make a reasonable request to another party for the purposes of determining a question that relates to ‘the authenticity, identity or admissibility of a document or thing.’ In this matter the request was made by the defendant’s solicitors; ‘for inspection and assessment’ (see clause 2 of Motion).

15 Although I do not feel much turns on it, I have some doubt as to whether the request in this matter comes within s167 of the Evidence Act, as it appears to me that it is a request pursuant to which the applicant wishes to inspect and to consider the authenticity of repairs to a thing, namely a car, rather than the authenticity of the thing itself. I am therefore of the view that sufficient relief is not available under the Evidence Act and I propose to deal with the matters pursuant to the powers given in r23.8. Having said that, the power under r23.8 is clearly discretionary and it would appear to me that the helpful list of matters which may be taken into account under s169.5 are the type of matters which should be taken into account when exercising my discretion under r23.8.

16 The learned authors of Ritchies Civil Claims Practice point out at p7173 that r23.8 permits orders to be made in the light of the relevant issues to facilitate proper determination of the proceedings. They further point out;

‘The power should be exercised with caution when third party rights may be involved. The inconvenience that will be occasioned to any third party is important when considering whether an order should be made and if so, upon what terms (see Evatt v Australian Consolidated Press Ltd [1970] 1NSWR 97).

17    The difficulty in applying that principle to the present case is that the real parties to the dispute are the two insurance company, and they of course are acting under their right of subrogation from the plaintiff Robert Kenn and the defendant Hew Pickard. In practice and reality the plaintiff Robert Kenn and the defendant Hew Pickard are in the position of third parties, but despite that reality it would in my view be wrong to treat them as third parties. The principle requires particular consideration in this matter as the factual situation is that the plaintiff has now gone overseas and has left his vehicle with his parents-in-law in Queensland, and any inspection will have to take place in Brisbane.

SUBMISSIONS FOR THE APPLICANT/DEFENDANT

18    Mr Board relying on the affidavits he had tendered submitted that the defendant did not intend to dismantle the plaintiff’s vehicle (as alleged by the plaintiff) but sought to carry out an inspection which would involve the following;

. Removal of trim at rear of vehicle including coverings within the rear boot compartment, carpets and floor boards which cover the spare wheel well.


. Removal of tailgate trim to view the tailgate frame and the underside of the tailgate services.


. Possible removal of tail lamp assemblies and the rear bar.

19    Mr Board made the following submissions;

(i) That such work was necessary as the qualified motor vehicle loss assessor employed by AAMI had determined on the basis of the repair quotations and photographs provided, that a number of the items claimed were not reasonably necessary to reinstate the vehicle to its pre-accident condition. Significantly the defendant did not allege that payment had been sought for work not done.


(ii) That AAMI, in the unlikely event that the vehicle was damaged as a consequence of the inspection, would undertake to indemnify and make good any cost of and incidental to the repair of that damage.


(iii) That such an inspection as sought would enable the assessor from AAMI to either validate the time sought by the repairer or to justify the reduced times contended by the AAMI assessor.


(iv) That an inspection could be carried out in Brisbane within a short period and certainly well within a month. He submitted the inspection would not involve undue expense or delay and would be reasonably practicable.


(v) That there was a very real chance that such an inspection may well enable the parties to resolve some, if not all, of the matters currently in dispute and may result in a resolution of the proceedings. Mr Board’s letter to the plaintiff’s solicitors indicated that access to the car would be required for a period of between one and a half and three and a half hours.



SUBMISSIONS FOR THE RESPONDENT/PLAINTIFF

20    Mr Gow submitted that in this matter liability for the damage had been admitted by the defendant. On the face of it the plaintiff had taken his vehicle to a reputable repairer who had submitted two quotations. The vehicle was assessed on two occasions by a licenced, experienced and independent loss assessor. As a result of that inspection the fair and reasonable cost of repairing the Volvo was reduced by $1,806.41 to the sum of $16,185.77. The plaintiff’s insurance company had advised the defendant’s insurance company of the claim on 31 August 2004 at a time when the defendant’s insurance company AAMI had notice of the claim and had its own claim number.

21    Mr Gow submitted that the time for an assessor on behalf of AAMI to inspect the vehicle was at any time between 31 August 2004 and 30 September 2004, being the date on which the car was released to the plaintiff. AAMI did not request an inspection, even though it had an office nearby to the premises of the repairer. The plaintiff’s insurance company forwarded copies of the approved and final quotation and the colour photographs requested by the defendant.

22    In those circumstances Mr Gow submitted that the plaintiff and his insurance company had acted completely properly at all times and that fault can be attributed to the plaintiff or he submitted, to its insurance company. He relied on the evidence of the assessor Mr Anthony Martin who assessed the plaintiff’s vehicle and who gave evidence of having inspected the vehicle following the preparation of the first quote and then inspecting it on a second occasion as a result of the repairer indicating that further damage had been detected when the vehicle was lifted on the hydraulic hoist. Relying on his expertise and experience Mr Martin assessed the fair and reasonable price for the actual repair of the damage to be $16,185.77.

23    Mr Gow also relied on the evidence contained in the affidavit of Melanie Jane Tonazzi to the effect that the plaintiff, now living in London, objected to any inspection of his vehicle which involved the removal of parts.

24    Mr Gow submitted further;

i. That the defendant had lost its opportunity to inspect the vehicle, having regard to its negligent and unreasonable delay. He submitted it would be unjust to allow the inspection now required, particularly involving the removal of parts to take place one year after the accident and especially having regard to the defendant’s idle conduct.


ii. That it was AAMI’s decision not to inspect the vehicle during its repair and its decision to assess the repairs relying on the assessed quotations of the repairer and the colour photographs to conduct a desktop assessment rather than to inspect the vehicle at the appropriate time during repairs.

iii. That the plaintiff had taken the necessary steps to ensure that it would have available proper evidence that the cost of the repairs were reasonable, both in that the work was necessary and the charges not extravagant.

iv. That the defendant would have the right to cross examine both the repairer and the assessor in relation to the reasonableness of the cost of repair.

DECISION AND CONCLUSION

25    I have found this a very difficult matter to decide. In my view it requires a very fine balancing act to come to a decision which is just and equitable as between the actual parties, including particularly the plaintiff, and the relative insurance companies.

26    Moreover, I am of the view that there is a further consideration which I am able to take into account. There are presently a large number of similar cases before the court. They are cases where a plaintiff seeks to recover the costs of the repairs to a motor vehicle where liability as to the cause of the accident is not in issue. The only issue is quantum and in such cases the defendant insurance company pays into court an amount which varies, but is frequently about $3,000 to $4,000 less than the amount claimed. The amount claimed is usually somewhere between $15,000 to $20,000. The court is presently being asked to set those matters down for hearing in the General Division on the basis that they will take three to four days. Several of the cases have taken two days and will shortly occupy another two days of the courts’ time. It is hard to escape the conclusion that in many ways the court has become a pawn in the commercial war presently being waged between various insurance companies and between various insurance companies and repairers. Certainly the amount of time such matters are consuming of the courts’ valuable time is a matter of great concern. Further, it is difficult to see how the very considerable costs being incurred can be in the financial interest of the parties.

27    I have come to the view that the plaintiff in this matter has not been able to show any actual or real prejudice if the order sought is made provided such order contains certain safeguards to protect the plaintiff. The making of the order will not involve any great delay or on the terms I propose, will not involve undue expense for the plaintiff.

28 I would propose to grant the Motion requiring the plaintiff to make his motor vehicle available for inspection and assessment pursuant to r23.8 of the Uniform Civil Procedure Rules 2005. I would propose to do so however on certain conditions. I intend to outline those conditions and to require the parties to agree upon and settle final orders for my approval to give effect to such orders.

29    I consider the Motion should be granted subject to the following general conditions;

1. The plaintiff is also to be entitled to have a loss assessor present at the inspection. The inspection shall therefore be in the form of a joint inspection. The loss assessors shall be required in the first instance, if possible, to present a joint report covering;


(i) the results of their joint inspection;


(ii) their joint views as to any opinions sought from them jointly by the solicitors for the plaintiff and the defendant.


2. If the assessors are unable to prepare a joint consensual opinion on any point, then on such matter each should prepare his own report.

30    I would propose that the defendant initially should pay the costs of and incidental of the inspection by both assessors. My experience has been that the costs of the assessors are not excessive and bearing in mind the costs which would be incurred if this matter was to proceed and take even two days, such procedure would go a very long way towards drastically reducing the amount of court time required to determine this matter and reduce the legal costs payable by each party. The costs paid by the defendant will then become costs in the cause.

31    The orders to be prepared should include the undertaking by AAMI that if the vehicle is damaged as a consequence of the inspection, then AAMI undertakes to indemnify and make good any cost of and incidental to the repair of that damage.

32    AAMI should also agree to pay any incidental costs incurred by the plaintiff’s parents-in-law as a result of the inspection. I would be surprised if there are any.

33    I will hear from the parties as to the practical arrangements to be made for the preparation of the orders.

34    In my view the above orders will require the legal advisor of both parties to confer and agree on the issues. That hasn’t been done in this matter up to now. Instead in a matter where the amount in issue is just over $3,000, there has been a request for 38 separate particulars for the defendant’s solicitors, most of which have no relevance at all to the issues in this case. The request was made on 17 June, 6 months after the Insurance Company had made the offer of $13,322.05. The letter requesting particulars also has the appearance of a standard letter not directed to the particular issues in this case.

35    I will also hear from the parties in relation to the costs of the Motion. My preliminary view is that although the defendant has been successful in obtaining the order, he has done so on terms not offered in the original request or offered in the Notice of Motion, and the appropriate order would seem to me to be either that each party pay its own costs of the Motion, or that the costs of the Motion be costs in the cause.

36    I shall hear from the parties.

B.A. LULHAM