Tow.Com.Au Pty Ltd v Daniel Mudford - [2016] QCAT 401

CITATION:

Tow.Com.Au Pty Ltd v Daniel Mudford [2016] QCAT 401

PARTIES:	Tow.Com.Au Pty Ltd (Applicant)
v
Daniel Mudford (Respondent)

APPLICATION NUMBER:

MCDO51287-16

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 $3,487.56, claimed from Mr Mudford as a minor debt.
Mr Mudford 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 s 77 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 s69A 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 401
Decision Date: 20 October 2016

CaseChat Overview and Summary

Tow.Com.Au Pty Ltd, an entity involved in the towing and storage of vehicles, filed an application against Daniel Mudford in the Queensland Civil and Administrative Tribunal, seeking the recovery of costs associated with the impounding and storage of Mr. Mudford's vehicle. The dispute arose from a minor civil debt, where Mr. Mudford's vehicle was impounded due to unpaid fines and towing fees. The Tribunal was tasked with determining whether Tow.Com.Au Pty Ltd was entitled to recover the costs claimed, including towing and storage fees, from Mr. Mudford.

The central legal issues before the Tribunal included whether the costs claimed by Tow.Com.Au Pty Ltd were reasonable and whether they constituted a penalty under the relevant legislation. The Tribunal had to consider the statutory framework governing minor civil disputes and the provisions of the Queensland Civil and Administrative Tribunal Act. Specifically, the Tribunal needed to assess if the costs claimed were proportionate to the services provided and whether they fell within the scope of what could be considered reasonable under the law.

In its decision, the Tribunal held that the costs claimed by Tow.Com.Au Pty Ltd were excessive and did not align with what could be considered reasonable under the applicable legal standards. The Tribunal emphasised that the costs for towing and storage should not include elements that amounted to a penalty. The Tribunal concluded that the decision to impound Mr. Mudford's vehicle and the subsequent costs were not justified under the circumstances, leading to the dismissal of Tow.Com.Au Pty Ltd's application. As a result, Mr. Mudford was not required to pay the costs claimed by Tow.Com.Au Pty Ltd.

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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