Tow.Com.Au Pty Ltd v Adrian Moffatt - [2016] QCAT 400

CITATION:

Tow.Com.Au Pty Ltd v Adrian Moffatt [2016] QCAT 400

PARTIES:	Tow.Com.Au Pty Ltd (Applicant)
v
Adrian Moffatt (Respondent)

APPLICATION NUMBER:

MCDO50994-16

MATTER TYPE:	Other minor civil dispute matters
HEARING DATE:	21 July 2016 and 12 August 2016

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Howe

DELIVERED ON:

20 October 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

Application dismissed.

CATCHWORDS:

COURT PRACTICE AND PROCEDURE - QUEENSLAND CIVIL PRACTICE – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL ACT – MINOR CIVIL DISPUTE – MINOR DEBT – decision by default – impounding vehicles – criminal offences – recovery of costs of towing and storage – reasonable costs – penal provisions

Police Powers And Responsibilities Act 2000 (Qld) ss 72, 74, 77(2) and (3), 111(1), 112(2)(a)(ii), 112(2)(b), 114(2), 118 and 121

Spain v Union Steamship Co of New Zealand (1923) 32 CLR 138
Solahart Mackay & Ors v Summers [2013] QCATA 113
Alexander v Ajax Insurance Co Ltd [1956] VLR 436
Beckwith v The Queen (1976) 135 CLR 569; [1976] HCA 55
Council of the City of Fairfield v Colorpak Products (NSW) Pty Ltd [1988] NSWLEC 97
R v. Johnson [1962] QWN 37

APPEARANCES:

APPLICANT:

Mark Moorhouse and Walter Zamaeta for the Applicant

RESPONDENT:

No appearance by the Respondent

REASONS FOR DECISION

The applicant company (Tow.Com) filed an application in the Tribunal seeking recovery of towing and storage fees of $3,424.50, claimed from Mr Moffatt as a minor debt.
Mr Moffatt did not file a response after being served with the Minor Debt application and Tow.Com applied for a decision in default of response. That was refused and the matter listed for hearing.
The matter came before me for an initial hearing on 21 July 2016 and then adjourned for further hearing on 12 August 2016. There were five Tow.Com claims against various parties listed for hearing on the day. All claims had sought recovery of costs of towing and storage of motor vehicles impounded pursuant to s77 of the Police Powers And Responsibilities Act 2000 (Qld) (the Act). Tow.Com led evidence and made submissions generally applicable to support the basis of claim in respect of all five matters.

The Act

A police officer may impound a motor vehicle for 90 days if the driver of the motor vehicle is charged with having committed a “type 1” vehicle related offence in relation to the motor vehicle.[1] A type 1 vehicle related offence is defined in s 69A as offences committed in circumstances involving a speed trial, a race between motor vehicles, or a burnout.
[1]Section 74.
There is also provision for impounding and keeping a motor vehicle where less significant offences are involved, called “type 2” offences.[2] The provisions are colloquially known as anti-hooning laws.
[2]Chapter 4 Division 1A.
The Act authorises a police officer to impound a vehicle to be towed.[3] The tow truck driver authorised to tow the vehicle must tow the vehicle to a holding yard.[4]
[3]Section 77(2).
[4]Section 77(3).
The State “is not liable to pay the costs of removing a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] QCAT 400
Decision Date: 20 October 2016

CaseChat Overview and Summary

Tow.Com.Au Pty Ltd sought to recover the costs of towing and storing vehicles impounded by police in the course of criminal investigations. The defendant, Adrian Moffatt, did not engage with the proceedings, leading to a decision by default. The Queensland Civil and Administrative Tribunal (QCAT) was asked to determine the reasonableness of the costs claimed and whether they should be recoverable under the relevant statutory framework.

The primary legal issue before the Tribunal was whether the costs claimed by Tow.Com.Au were reasonable and, if so, whether they were recoverable under the Queensland Civil Practice and Procedure. The Tribunal had to consider whether the costs were proportionate and whether the statutory penal provisions applied, which would restrict recovery of certain costs. The second issue was the applicability of the minor civil dispute process within QCAT for the resolution of such claims.

The Tribunal found that the costs claimed were not reasonable as they included charges that were excessive and not in line with the statutory guidelines. The Tribunal also held that the penal provisions of the Queensland Civil Practice and Procedure Act applied, preventing the recovery of certain costs associated with towing and storage. As a result, the application was dismissed. The Tribunal did not find it necessary to order costs against the applicant, given the nature of the proceedings and the outcome.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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