New South Wales Supreme Court CITATION : Carew v Dunbars [2006] NSWSC 1105 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 28 September 2006 JUDGMENT DATE : 23 October 2006 JURISDICTION : Common Law Division JUDGMENT OF : Associate Justice Harrison DECISION : (1) The decision of Magistrate George dated 3 April 2006 is affirmed; (2) The summons filed 28 April 2006 is dismissed; (3) The plaintiff is to pay the defendant's costs as agreed or assessed. CATCHWORDS : Appeal decision of Local Court Magistrate - Small Claims Division - denial of natural justice LEGISLATION CITED : Local Courts Act 1982 (NSW) - ss 73 & 75 Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [200] NSWSC 1153 Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340 CASES CITED : Stead v State Government Insurance Commission (1986) 161 CLR 141 Wakim Pty Ltd t/as Dove Migration Services [2002] NSWSC 405 Wende v Finney [2005] NSWSC 927 PARTIES : Alan Norris Carew - Plaintiff Wayne Ebsworth Dunbar t/as Dunbars North Shore & City Towing - Defendant FILE NUMBER(S) : SC 11916/2006 COUNSEL : Mr A Scotting - Defendant SOLICITORS : Mr Carew - Plaintiff in person Robert H Storey - Defendant LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : 58/2006 LOWER COURT JUDICIAL OFFICER : George LCM LOWER COURT DATE OF DECISION : 3 April 2006 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ASSOCIATE JUSTICE HARRISON MONDAY, 23 OCTOBER 2006 11916/2006 - ALAN NORRIS CAREW v WAYNE EBSWORTH DUNBAR t/as DUNBARS NORTH SHORE & CITY TOWING JUDGMENT (Appeal decision of Local Court Magistrate - Small Claims Division; denial of natural justice) 1 HER HONOUR: By summons filed 28 April 2006 the plaintiff seeks an order to rescind the judgment entered in the Local Court, Manly, on 3 April 2006 in proceedings 58/2006. The plaintiff is Alan Norris Carew (Mr Carew). The defendant is Wayne Ebsworth Dunbar t/as Dunbars North Shore & City Towing (Dunbars). Mr Carew relied on his affidavit dated 19 June 2006. Dunbars relied on the affidavit of Robert Harry Storey dated 6 July 2006. At the hearing before this Court, Mr Michael Carew spoke on behalf of his father, Mr Alan Carew. Mr Alan Carew was present in Court and spoke briefly. Mr Michael Carew presented his father's case very well. He was articulate. Grounds of appeal 2 Mr Carew appeals from the whole of the decision of His Honour L Stapleton LCM on the following grounds. Firstly, as a matter of law in that the Magistrate found that person or persons unknown had removed his parked and unattended vehicle between 10 April 2005, from where he had parked it in Manly, and the 24 April 2005, when the vehicle was found involved in an accident at Balgowlah some 14 days later; and secondly, that the Magistrate was biased "by some reason of some pre-determination and failed to conduct the hearing with procedural fairness". 3 It may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 73(2) of the Local Courts Act 1982 (NSW) allows an appeal to this court on the grounds of lack of jurisdiction or denial of natural justice. 4 Section 75 of the Act provides that the Court may determine an appeal by either (a) varying the terms of the judgment or order or (b) setting the judgment or order aside or (c) setting the judgment or order aside and remitting the matter for determination in accordance with the Court's directions or (d) dismissing the appeal. 5 In Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405, O'Keefe J made the following observations: "20 The requirements of natural justice (or procedural fairness as it is now commonly referred to) apply to the Small Claims Division of the Local Court. This is clear from the nature of the function to be performed by that tribunal and the statutory recognition that is afforded to natural justice by s 69(2A) of the Act. 21 The content of the requirements of natural justice is not fixed. The content fluctuates. The overarching requirement is that of fairness (National Companies and Securities Commission v News Corp Ltd (1984) 156 CLR 296 at 312 per Gibbs CJ with whom Brennan J agreed). For a court that normally involves a duty to: (i) act judicially; (ii) deal with the matter for decision without bias; (iii) give each party the opportunity of adequately presenting its case; (iv) observe the procedural and other rules provided for in the relevant statute; (v) come to its decision with that sense of responsibility that is the necessary accompaniment of the duty to do justice." 6 O'Keefe J made the same comments in Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [2000] NSWSC 1153 at para 23 – 24. Overview of the Small Claims Division of the Local Court 7 The legislative policy in relation to small claims is that there should be a quick, cheap and informal resolution of these claims. To achieve this, proceedings are conducted with a minimum of formality. According to O'Keefe J in Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405 at [16] the quick, cheap and informal resolution of claims: "…has many advantages. It tends to shorten proceedings. It assists in reducing costs. It does this in a number of ways, one of which is to make it easier for litigants in person to understand the procedures, perhaps to appear for themselves and not be disadvantaged by excessive legality, formality or procedural rules. Another is to give finality to decisions made in respect of small claims. This has been done by so framing the legislation as to ensure to the greatest extent possible that claims before the Small Claims Division of the Local Court should begin and end in that court. The limitation on the right of appeal permitted by the statute betokens this. Such a policy is readily understandable in the light of the fact that the ceiling for claims in the Small Claims Division is $10,000. Taking up the time of superior courts with such small matters is thus properly avoided in the vast majority of cases." 8 In determining whether the plaintiff was denied procedural fairness it is necessary to consider the nature of the jurisdiction exercised in the Small Claims Division. This is because the content of procedural fairness, varies depending upon the nature of the tribunal and the jurisdiction it exercises. Section 70 of the Act provides: "Procedure generally in Small Claims Division (1) The jurisdiction conferred by or under this Act on a Court sitting in its Small Claims Division is to be exercised by a Magistrate or an Assessor. (2) Proceedings in a Court's Small Claims Division are to be conducted with as little formality and technicality as the proper consideration of the matter permits. (3) The rules of evidence do not apply to proceedings being heard or other proceedings in a Court's Small Claims Division. (4) Witnesses may not be cross-examined except in circumstances in which, and to the extent to which, the cross-examination of witnesses is authorised by a practice note. (5) An Assessor or Magistrate exercising the jurisdiction of a Court sitting in its Small Claims Division may inform himself or herself on any matter relating to proceedings being heard or other proceedings in the Small Claims Division in such manner as he or she thinks fit. (6) Proceedings in a Court's Small Claims Division (other than any judgment given or order made in respect of the proceedings) are not required to be recorded." 9 Practice Note 2 of 2005 at [10.1] to [10.4] reads: "10.1 There is no right to call witnesses to give evidence, to give evidence on oath/affirmation or to cross-examine a party or witnesses on oath/affirmation or otherwise in the Small Claims Division 10.2 Where a direction has not been given at the Pre-trial review by the Magistrate, Assessor or Registrar for the attendance of any witness at the trial of the proceedings, the proceedings will be heard and determined by each party tendering the written statements of witnesses together with any other relevant documentation or material in support of the party's case. There will be no right to examine or cross-examine any witness. Parties will, however, be entitled to make comments, present arguments and make final submissions on the evidence. 10.3 Where a direction has been given at the Pre-trial review by the Magistrate, Assessor or Registrar, that a witness attend for cross-examination, the proceedings will be heard and determined on the oral evidence and the written statements and other documents and materials which have been tendered. Submissions on the evidence will also be allowed. 10.4 The procedure at the trial of the proceedings in the Small Claims Division will be determined by the Magistrate or Assessor as he or she thinks fit." 10 In Wende v Finney [2005] NSWSC 927 Howie J at [27] and [28] made some pertinent observations about the proceedings in the Small Claims Division, which I respectfully reproduce here. They are: "[27] Of course informality and the abandonment of the normal rules of evidence and procedure should not be allowed to give rise to unfairness even where the justice being administered is in relation to relatively trivial claims. Rather in such matters the court might need to be particularly astute to ensure that the lack of formality and the speedy resolution of claims does not become an end in itself at the expense of the appearance of fairness to the parties within the court's jurisdiction. After all the formal rules of procedure that normally attend a hearing are generally aimed at producing fairness to the parties, sometimes at the expense of efficiency in the exercise of the court's jurisdiction. So where those rules are displaced by the need to provide cheap, efficient and expedient justice to the parties, the advantages can sometimes be obtained at too high a price so far as a particular litigant is concerned. [28] No doubt one of the reasons why the proceedings in the Small Claims Division are conducted with the informality required is that the parties before the court are, in advance of the hearing, aware of the material upon which the determination is to be made. There are procedures laid down and referred to in the Practice Note that require the parties to identify to each other the material they intend to rely upon. The material upon which each side relies, including statements of witnesses and the actual documents at the heart of the dispute, are in a form where they can be reviewed by the court assisted by such submissions that the parties wish to make upon those documents without the need to formally tender and prove the relevant material. …the intention of the scheme of the relevant legislation is that the dispute can generally be resolved on the documents." 11 In Wende, a party tendered documents that were produced on subpoena during the hearing. Those documents alleged dishonesty and misconduct. Wende requested the opportunity to call witnesses to rebut that evidence. This request was refused. As it turned out, much of what the Magistrate read into his judgment from these documents was highly prejudicial to Wende. It was held that the failure to give Wende an opportunity to rebut that evidence constituted a denial of procedural fairness. The Local Court proceedings 12 In the Local Court, Mr Carew sued in detinue and sought the return of his vehicle or a sum of money which represented its value. Prior to the hearing taking place, both parties had filed and exchanged affidavits. The plaintiff had served and relied upon his affidavit. The defendant had served and relied upon the affidavits of Mathew Rixon dated 16 March 2006 and Scott Dunbar dated 16 March 2006. At the hearing both the plaintiff and defendant handed up written submissions. On 3 April 2006, it appears that this matter was mentioned before Magistrate Stapleton and heard by Magistrate George. At the outset, Magistrate George indicated that he had read the material. 13 Mr Alan Carew's evidence is as follows. On 10 April 2005, he parked his vehicle AD 69 QL in Sydney Road, Manly near the corner of Crescent Street in an unrestricted parking area. The vehicle was legally and correctly parked close and parallel to the kerb in Sydney Road. On the same day he took possession of vehicle registered SKI 491 at Sydney Road, Manly and travelled to Melbourne to deliver this vehicle to the St Kilda office of News 1 Pty Ltd in Victoria. 14 On about 12 June 2005 Mr Carew returned to Sydney Road, Manly to collect his car. It was not there. After numerous enquiries, and when he was attempting to report his vehicle as stolen, he was given the name of Northshore Towing by Manly Police Station. He was told that Northshore Towing may have removed his vehicle for either obstructing traffic or because he was parked in a Tow Away Zone. 15 According to Mr Carew, Northshore and City Towing informed him that they had authority given to them by the Police to remove his vehicle, but they refused to give him a copy of any paperwork related to this authority. 16 Until Mr Carew received the defendant's affidavits on or about 20 March 2006 (a few weeks prior to the Local Court hearing) he had not seen the Tow Truck Authority form (TTA). Hence, he was not aware that his car was towed away from another location, namely on Sydney Road near the intersection of Woodland Street, Balgowlah. A copy of the TTA form was annexed to the affidavit of Mathew Rixon. 17 The gravamen of Mr Carew's complaint is that the Magistrate did not give him a fair opportunity to put forward his case and point of view, particularly in the light of the new information, namely that the car was taken from a location different to where he had parked the car. He had no knowledge as to how his car was moved from near Crescent Street and Sydney Road, Manly to another position along Sydney Road, near the intersection of Woodland Street at Balgowlah. 18 The gravamen of the plaintiff's complaint is that after he carefully read through the transcript of the Local Court hearing and he highlighted each statement of the Magistrate, when taken as a whole, it illustrates that he was denied procedural fairness. The passages are: "there might be bloody mindedness on both sides" (t 2.30); "Now you are being bloody minded aren't you?" (t 3.5); "It was taken because you left it there for two months on your own account?" (t 3.10); Why did it take two months for you to come back to pick it up? In the meantime anything could have happened to this motor vehicle, you would have to agree?" (t 3.15); "Do you think that the police would issue an authority to tow the vehicle if there wasn't good reason to do so? Do you think this is some sort of manifestation of a dislike for you?" (t 3.26); "It is my time that you are wasting with this at the moment…You don't know what the circumstances were when the vehicle was moved do you? (t 3.41-55); "You can't give any evidence about that at all, can you?…And you can't give any evidence about the circumstances which caused the police to ask for it to be moved, can you?…Come on, you can't can you?" (t 4.1-15); "You are just being bloody minded, Mr Carew…You were not there at the time… Absolutely you can't give any evidence can you, about the circumstances which caused the police to order that the vehicle be removed…That's the point I have just made. You can't give any evidence, can you?…I don't enjoy being treated as a fool, Mr Carew." (t 4.21-54; "Take a seat there." (t 5.1); "…as I say it reeks of bloody mindedness. Sit down Gentleman." (t 10.46-47). 19 The Magistrate took what could be best described as a robust approach during the hearing of the matter. He referred to both parties as being "exceptionally foolish". The Magistrate had read the affidavits and submissions of both parties and, rather than allow the parties to give a full oral presentation of their respective cases, he addressed questions to each party. While this approach no doubt saves time (which is an objective of the Small Claims Division) one can understand why a party would have the perception that he or she was not given a fair hearing. The Magistrate's decision 20 The Magistrate, in his reasons stated (t 11.45-12.46): "This is simply not a matter that should have ever found its way into Court. The approach of both sides to this has been exceptionally foolish and can only have led to the escalation of costs in the matter. There is no explanation for why it was that the vehicle had to be removed, but it is plain that the police chose to arrange for its removal because it was an obstruction. How it came to be an obstruction we do not know. Once that event occurred, the defendant in these proceedings was entitled to a towing fee and to a storage fee for the amount of time that the vehicle was detained, and that the fee would be payable by the registered owner apparently the plaintiff in these proceedings. The plaintiff sued in these proceedings in detinue and is entitled in detinue to return of the detained item or to its value. There is no evidence of its value. Nor is there any suggestion that the defendant would not return it were its assessed costs to be paid. … In the circumstances the plaintiff cannot succeed because the detention of the vehicle is lawful and there is nothing wrong with the defendant holding onto the vehicle, pending payment of the amounts owing. However, I do think that it would be unreasonable for the full amount to today's date to be paid, given that it seems to me for a period of at least four months there was inadequate communication between the defendant and the plaintiff, to provide evidence of the justification of the removal of the motor vehicle. In the circumstances I will make an assessment of the appropriate amount of damages that the cross-claimant should receive in respect of the continuing detention of the vehicle, lawful. In the circumstances it seems to me that the cross claimant is entitled to its towing charges inclusive of GST in an amount of $204.60 together with an amount to justify recompense for its storage, that amount I assess at $1,500. THERE IS ACCORDINGLY A JUDGMENT FOR THE CROSS-CLAIMANT IN THE AMOUNT OF $1,704.60. UPON PAYMENT OF THAT AMOUNT THE VEHICLE AD 59 QL WILL BE RETURNED TO THE PLAINTIFF FORTHWITH. THE CROSS CLAIMANT IS ENTITLED TO ITS COSTS IN THE AMOUNT OF $68 FOR THE FILING OF THE CROSS-CLAIM AND $469.92 INCLUSIVE OF GST IN PROFESSIONAL COSTS." 21 The result was that the Magistrate did not allow the defendant/cross claimant the full amount it claimed for storing Mr Carew's car. 22 In Stead v State Government Insurance Commission (1986) 161 CLR 141 the High Court held at 145 that, where the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially where the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference - see also Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340 at [6] and [64]. 23 It is my view that, despite the robustness of the Magistrate's approach, the plaintiff was given an opportunity to the present his case and make submissions. It is also my view that the Magistrate did not predetermine the case. Rather, the approach that the Magistrate adopted was to read the evidence of both parties, he then asked each party specific questions and they then made submissions. There has not been a denial of procedural fairness or natural justice. The decision of Magistrate George dated 3 April 2006 is affirmed. The summons filed 28 April 2006 is dismissed. 24 Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed. The Court orders: (1) The decision of Magistrate George dated 3 April 2006 is affirmed. (2) The summons filed 28 April 2006 is dismissed. (3) The plaintiff is to pay the defendant's costs as agreed or assessed. ********** 27/10/2006 - Omitted Judge's name - Paragraph(s) Cover sheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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