Tow.Com.Au Pty Ltd v Fuller[2016] QCAT 398

REASONS FOR DECISION

1. [1]
   The applicant company (Tow.Com) filed an application in the Tribunal seeking recovery of towing and storage fees from Mr Fuller of $3,427.61.  In the application, Tow.Com claims the respondent, Mr Fuller, was the owner of a 1999 red Hyundai Excel hatchback motor vehicle registration number 672 EXX which was towed and stored by the applicant after police impounded the vehicle pursuant to s 77 of the Police Powers And Responsibilities Act 2000 (Qld) (the Act).
2. [2]
   Mr Fuller 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. 
3. [3]
   The matter came before me for an initial hearing on 21 July 2016, at which time Mr Fuller appeared, and it was then adjourned for further hearing on 12 August 2016, which Mr Fuller failed to attend.  Five Tow.Com claims against five different respondents were 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).  Tow.Com led evidence and made submissions generally applicable to support the basis of claim in respect of all five matters. Mr Fuller admitted at hearing that this claim involved a third offence and that the car involved was impounded by police, but he denied the vehicle belonged to him.

The Act

4. [4]
   By s 74 of 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.  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. 
5. [5]
   There is also provision for impounding and keeping a motor vehicle where less significant offences are involved, called “type 2” offences.^[1]  The provisions are colloquially known as anti-hooning laws.
6. [6]
   The Act authorises a police officer to impound a vehicle to be towed.^[2]  The tow truck driver authorised to tow the vehicle must tow the vehicle to a holding yard.^[3]
7. [7]
   The State “is not liable to pay the costs of removing a motor vehicle impounded … and keeping it for the period for which it is impounded”^[4] unless the driver of the motor vehicle is found not guilty of the offence for which the motor vehicle was impounded, or the proceeding against the driver is withdrawn.^[5]
8. [8]
   In circumstances where the driver of an impounded vehicle is found guilty of the offence for which the vehicle was impounded, and is an adult, the driver is liable to pay “the costs of removing or keeping the motor vehicle”.^[6]
9. [9]
   If the owner of the vehicle is given an impoundment notice during the period of impoundment, the owner (who may not be the driver who commits the offence) is liable to pay the costs of keeping the motor vehicle for each day after the period of impoundment ends, whether or not the driver is found guilty of the offence for which the vehicle is impounded.^[7] Similarly, if the notice is given after the period of impoundment ends, the owner is responsible to pay the costs of keeping the vehicle after expiry of two business days following the giving of the notice.
10. [10]
    If the owner of the vehicle fails to recover the vehicle within 30 days after the period of impoundment ends, the Commissioner of Police may sell it.^[8]  The proceeds of sale go to the expenses of sale and payment of the costs of removing and keeping the motor vehicle.^[9]
11. [11]
    In respect of what the costs of removing or keeping an impounded vehicle are, or how they are to be calculated, the Act is unfortunately silent.

Liquidated Demand

12. [12]
    The Tribunal has jurisdiction to hear claims to recover a debt or liquidated demand of money.  In this matter the basis of claim is statutory, rather than agreement between parties.  As stated however, the Act is silent as to scale.
13. [13]
    In Spain v Union Steamship, a claim for “reasonable expenses” rather than a sum certain was accepted as being recoverable as a liquidated demand.  “The objection is untenable …. Whenever the amount to which the plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or other positive data, it is … liquidated.”^[10]  Isaacs and Rich JJ concluded there that the “… appeal should be allowed, simply on the ground that the expenses of the formal enquiry were recoverable, and that upon the evidence the learned Judge should have proceeded to award to the plaintiff what he found was a reasonable sum for those expenses.”
14. [14]
    In Alexander v Ajax Insurance Co Ltd,^[11] Scholl J examined the history of liquidated demands and noted such extended to claims in debt upon simple contracts, under statute, and whenever a demand is for a sum certain or is capable of being readily reduced to a certainty.^[12]
15. [15]
    Indeed, claims in quantum meruit seeking fair recompense for work done are capable of constituting liquidated demands as long as the claim can be ascertained by calculation referencing decided fact or data.^[13]  A liquidated demand also extends to “… those cases formerly covered by the quantum meruit or quantum valebat counts, notwithstanding that the only agreement implied between the parties in such cases was for payment at a "reasonable" rate.”^[14]
16. [16]
    Here, the claim by Tow.Com is capable of assessment by multiplication of a daily scale of charge for keeping impounded vehicles and an initial single journey towing charge.  The appropriate scale must be a matter for the Tribunal’s determination; however, the claim is nevertheless for a liquidated demand of money and therefore falls within the jurisdiction of the Tribunal.

Costs of Removing and Keeping

17. [17]
    On the first day of hearing, the representatives for Tow.Com advised that the following applied with respect to all claims.  They apply different scales of charges, depending on the identity of the party responsible for payment. 
18. [18]
    If the driver of the motor vehicle is responsible for their charges, they claim against the driver (or owner as relevant) the following rates in respect of impounding in 2016:

• Towing fee    $314.57
• Keeping fee (daily charge)  $  25.78
• Administration fee   $  50.54

19. [19]
    If the State (the police) are responsible for their charges, they claim against the State:

• Towing fee    $103.14
• Keeping fee (daily charge)  $    5.16
• Administration fee   $  21.66

20. [20]
    There is no suggestion that the services rendered are different where the debtor is the driver rather than the State.  The only explanation offered at hearing was that a more favourable rate is given to police.  Indeed, the Tribunal was advised the towing rate for police is less that that paid by Tow.Com to the independent towing contractors engaged throughout the State to perform the actual towing services.  The tow truck operators used are paid $150 for a “police tow.”  It appears Tow.Com is not a hands on towing operator, but instead administers towing operations performed by independent towing contractors.
21. [21]
    There was no explanation as to how either scale of charges was derived other than Tow.Com and the police agreed to the rates.  There is no statutory basis for such consensus constituting the costs concerned.  There is certainly no element of consensus as to rate of charge between drivers or owners of an impounded vehicle and Tow.Com.
22. [22]
    With respect to Mr Fuller’s matter, the car was towed in 2015, and the rates they applied against drivers and owners then were:

• Towing fee    $309.35
• Keeping fee (daily charge)  $  25.36
• Administration fee   $  49.70

23. [23]
    It was not made clear whether different fees were claimed against the State for 2015 impoundments, as opposed to 2016 impoundments.
24. [24]
    There are a number of issues to be considered.  Is it appropriate that there are different scales of charges which depend entirely on the identity of the party against whom the charges are claimed?  Are the charges claimed reasonable?  If not, what is an appropriate charge?

Different Scales of Charges

25. [25]
    The Tribunal was informed about the different scales of charges set out above at hearing.   Tow.Com was given the opportunity to file additional evidence to substantiate the claimed rates of charge, amongst other things, and did file additional material.  That additional material however failed to explain the basis of rates of charge or adequately compare similar cost regimes. 
26. [26]
    A statutory declaration (presumably sworn 19 August 2016, though the month of attestation is omitted) attaching a document entitled “Fees Schedule” was then subsequently filed on behalf of Tow.Com.  The document purports to set out one set of charges that Tow.Com apply to all impoundment tows based on the owner/driver rate without mention of a police rate.  A footnote states the rates apply to “Driver, Owner and Queensland Police Service (on all unpaid liability).”  That is very much contrary to the clear evidence given under oath at hearing by the representatives for Tow.Com that there are different rates charged to police than to drivers and owners.  I prefer the evidence given under oath on the day of hearing that there are two separate charges applied by Tow.Com dependent on payee identity.  I reject any claim to the contrary suggested by the attachment to the undated statutory declaration.
27. [27]
    It seems contrary to the clear plain meaning of the legislation that it was intended that different scales of charges should apply for towing and storing an impounded vehicle depending on the identity of the party ultimately held responsible for payment.
28. [28]
    “I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament, and with especial force to words contained in the same section of an Act.  There ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section.”^[15]
29. [29]
    Section 111(1) and (2) of the Act make reference to the liability to pay costs of removing a motor vehicle impounded (or immobilised) and keeping it.  Save for the addition of the words “under this chapter” in s 111(1), the same phrasing is utilised.  Section 111(1) deals with circumstances where the State is not liable to pay, and s 111(2) where it is. 
30. [30]
    Section 116(2A) states “if the owner of the motor vehicle is liable to pay the costs of removing the motor vehicle to, and keeping it at, a place… on payment of the costs…” the owner is entitled to recover the vehicle.   Section 116(3) then proceeds to deal with the alternative liability situation: “If, under s 111(2), the State is liable to pay the costs of removing the motor vehicle to, and keeping it at, the holding yard or place…” the owner is entitled to recover the motor vehicle “… whether or not the State has paid the costs.”
31. [31]
    The general intention of the impoundment provisions seem clear to me. A driver may be charged with a prescribed offence, pursuant to which his or her vehicle is impounded pending the outcome of the charges.  If the driver is found guilty of the offence, his or her car is impounded and the driver is responsible for the costs of towing and keeping the vehicle.  However, if the driver is found not guilty of the offence, or the offence is withdrawn, the State becomes responsible for those charges.  In my opinion, the legislation envisaged only one scale of costs and fees applying, and certainly not different charges depending on who was responsible for them.
32. [32]
    The scheme of the provisions, to my mind, was intended to create a balance controlling potential excesses in the use of the very powerful impoundment powers granted police.  The balancing exercise offsets what would otherwise be a marked infringement on rights of enjoyment of private property with some degree of consequence to police if impoundment powers were inappropriately utilised.  That balance is lost where the police responsibility for costs of impoundment is reduced to something in the order of one fifth that applying to a driver or owner through different scales of charges.
33. [33]
    I conclude what was intended was payment by either the driver, owner or State of one scale of reasonable costs of towing and storage depending not on the identity of the party responsible for payment, but on the physical circumstances of tow and storage at various holding yards.

Reasonable Costs

34. [34]
    What are the reasonable costs of towing and storage?  There is no agreed rate between driver or owner and Tow.Com.  The rates agreed between Tow.Com and police have no statutory basis.
35. [35]
    A number of documents were tendered by Tow.com on the second day of hearing.  I accepted them as evidence tendered in all Tow.Com claims before me that day.  One document was on Queensland Police letterhead dated 24 June 2014, stating that City Towing and Impoundment Pty Ltd was authorised to charge certain rates for towing and storage.  It is not clear who City Towing and Impoundment Pty Ltd is, though presumably Tow.Com in a former guise.  The letter is of no assistance in any case. 
36. [36]
    The cost of towing charged to police ($103.14) is evidently less than the actual costs of towing charged by the working tow truck driver invoicing Tow.Com for the work ($150).  That was stated at hearing.  Just what work was done to earn that charge was not explained however.
37. [37]
    An invoice from a company, Nationwide Towing and Transport, dated 2 December 2015, was also handed up.  The invoice is unrelated to any of Mr Fuller’s vehicles.  The invoice bills Tow.Com $99 (including GST) for one night’s storage at Molendinar for a vehicle.  The invoice is apparently intended to indicate the reasonableness of Tow.Com charges claimed against drivers and owners.  The charge was for one night’s storage.  Given under s 32 of the Tow Truck Regulation 2009 (Qld) combined with Schedule 3 to the Regulation, a standard tow currently allows a maximum charge for a standard tow of $325.75 but that fee must also include three days free storage, without knowing the circumstances of the Nationwide charge, the information is of little assistance.
38. [38]
    Tow.Com was unable to provide any additional evidence to support the reasonableness of its charges.  Evidence of long term parking charges at airports and long term parking charges in the CBD and suburban areas come readily to mind as being of possible assistance, but that has not been forthcoming.  Mr Fuller suggested various motor trade organisations have suggested rates of storage but he provided no details.  Motoring trade organisations might well extend to such motoring organisations as RACQ who also provide storage facilities for a cost.  Evidence of the rates charged by that latter body might well have been easily supplied one would think, but was not. 
39. [39]
    Despite the dearth of evidence as to reasonableness of charge however, the Tribunal must do the best it can on the material available and reach a decision. 
40. [40]
    Given the evidence at hearing was that the individual tow truck operators involved in the actual pick up of impounded vehicles are paid $150 for the job, and the police rate charged is $103.14, I conclude the police rate for towing is less than reasonable.
41. [41]
    By s 32(1) of the Tow Truck Regulation 2009 (Qld), the charge for a standard tow must not exceed $325.75, but includes in that charge up to 72 hours storage in a holding yard and up to one hour working at the pickup point.  In circumstances where the towing work involves towing an impounded vehicle, I conclude the work involved is a standard tow, which, however, in my opinion, involves less work at pickup than at the scene of an accident.  There is police supervision on site, the vehicles would generally be mobile and it is not necessarily an accident scene, which would complicate matters, sometimes no doubt distressingly so.  A towing charge of 80% of the maximum permitted standard tow seems reasonable in the circumstances, which is $260.60.  Three days storage should be included in that charge however, based on a standard tow.
42. [42]
    There is no evidence before me to indicate the police rates of charge, at least in so far as they concern storage, are unreasonably low. 
43. [43]
    But, given the unreasonableness of the police towing charge, one might also suspect an unreasonably low storage charge has been agreed upon.  Conversely, the driver and owner storage rate of charge seems disproportionate to the storage work and facilities involved, probably involving as it does open area storage at the vacant backlots of various tow truck holding yards in different locales throughout the State.  Over a 90-day impoundment, the costs charged by Tow.Com amount to $2,320.20.  That seems to me to be more akin to CBD daily parking charges available.  One doubts “keeping” at a tow holding yard would involve under cover storage.  Indeed, one might suspect that the agreed driver and owner rate contains a loading permitting Tow.Com to recover losses that might be incurred where the much lower police rate of charge applies.  Generally, I am of the view the storage rate claimed against drivers and owners is excessive and unreasonable.  In the circumstances, I conclude neither police nor driver/owner rates claimed by Tow.Com are reasonable and a reasonable charge for storing impounded vehicles might be fixed at approximately double the police rate, namely $10 per day.
44. [44]
    A general administrative charge seems appropriate given the potential ongoing involvement of police or driver or owner or all or some of them following impoundment.  Furthermore, sale of an impounded vehicle may be necessary.   That sale would generally occur only where a driver or owner was responsible for costs of storage and keeping the vehicle.  Accordingly, I conclude if there is no sale involved, the lower administration charge of $21.66 agreed to be paid by police is a reasonable cost to be paid by drivers and owners.  However, where sale of the vehicle is involved, the higher administration fee of $50.54 seems reasonable.
45. [45]
    In summary therefore, the reasonable costs of towing able to be claimed against a driver is 80% of the maximum permitted, $260.60.  The towing charge should include three days storage costs.  The reasonable costs of daily storage thereafter should be $10 per day.  An administration fee is reasonably to be claimed: $21.66 where no sale of vehicle is involved; $50.54 where sale occurs.

The Claim Against Mr Fuller

46. [46]
    Mr Avery admitted this matter involved a third offence.  He said the issue concerned loss of licence points.  He believed he had points.  The police said he had lost all points.  He said he was convicted.  This is a type 2 offence.  The period of impounding on a third type 2 offence (which it appears to have been from Mr Fuller’s evidence) is 90 days.  I conclude the claim to towing fees and storage for the period of impoundment of 90 days is made out.
47. [47]
    Tow.Com is therefore entitled to the towing fee of $260.60 and storage costs of $10 per day for 90 days (less 3 included in the tow charge) which amounts to $870. 
48. [48]
    There was a sale of the motor vehicle concerned after 30 further storage days.  The vehicle was sold for $175.  The net proceeds after sale costs was $73.57.  Tow.Com must account for that in its claim but given the sale an administration charge of $50.54 is payable by Mr Fuller.
49. [49]
    Mr Fuller denied he was the owner of the vehicle.  The representatives for Tow.Com were present when he made that denial at the first day of hearing.  I adjourned the matter on the basis, amongst other things, that Tow.Com would provide evidence that Mr Fuller owned the vehicle.  Instead of obtaining an extract of ownership based on the registration details, Tow.Com tendered a copy email to them from the Police Vehicle Impoundment Coordinator dated 12 August 2016.  In that email it is stated “Officers report stated that Mr Fuller advised police on the 17^th July 2015 that he purchased the vehicle unregistered in May 2015.”  Given Mr Fuller did not appear on the second day of hearing the email was not able to be put to him for comment. 
50. [50]
    Unless Tow.Com prove Mr Fuller owned the vehicle they cannot claim against him for storage charges arising after the period of impounding ended.  Further, they must prove he was given an impounding notice which states the period of impounding and how the owner of the vehicle might recover the vehicle^[16] as required by s 114 of the Act. 

Penal Provision

51. [51]
    Impoundment of a motor vehicle, followed by liability for the costs of towing and keeping the impounded vehicle, consequent on the driver being found guilty of committing the prescribed offence are clearly penal in nature.  In this matter, the claim against Mr Fuller is to recover over $3,400.  There is no evidence about the penalties imposed by the Magistrates Courts in respect of the offence concerned.  The costs of impounding might potentially vastly exceed that of any monetary penalty imposed in the Magistrates Court.
52. [52]
    By s 72 of the Act, impounding is in addition to any other penalty that may be imposed on a person for a prescribed type 1 or 2 offence.  Eventual forfeiture of a motor vehicle is one aspect of the penalty regime created.  Costs associated with impounding payable by a driver and an owner are surely another part of the same penalty regime.  I conclude the provisions concerned here are clearly penal provisions.
53. [53]
    The traditional general rule is that penal provisions should receive a strict construction.  In modern times, in determining the meaning of a penal provision the ordinary rules of construction apply, but if the language of the statute remains ambiguous or doubtful, the ambiguity or doubt may be resolved in favour of the subject.^[17] 
54. [54]
    Further however, courts have remained careful not to assume jurisdiction under a penal statute unless it is clearly permitted by its provisions.^[18]
55. [55]
    I conclude the civil liability provisions with respect to towing and storage charges under the Act, being penal, are to be strictly construed and further the Tribunal should not recognise civil liability arising for towing and storage charges unless all threshold liability issues, such as conviction, period of impounding and personal service of an impounding notice, are clearly proven. 
56. [56]
    This means the applicant, Tow.Com must prove an impounding notice was given personally to Mr Fuller as required by s 114 of the Act before Tow.Com is entitled to claim storage fees from him as owner of the vehicle following expiry of a period of impoundment.  Without that, any claim against him must be limited to the period of impoundment only.  There is no evidence that an impounding notice was served on Mr Fuller, only the email from police about admissions made at the time of offence concerning ownership.  I find that is insufficient in the circumstances.  Therefore, Tow.Com cannot recover any costs of storage after expiry of the period of impoundment from him.

Conclusion

57. [57]
    Accordingly, Tow.Com may recover a reasonable towing charge which is $260.60; the towing charge includes three days storage and therefore the balance costs of storage for 87 days of impoundment at the rate of $10 per day amounts to $870; given the vehicle was sold, Tow.Com is entitled to an administration fee of $50.54.  Those costs add up to $1,181.14.  Tow.Com must account to Mr Fuller for the sale proceeds of $73.57.  That leaves a balance owing by him of $1,107.57.
58. [58]
    Given the amount recovered, Tow.Com is entitled to recover a filing fee of $112.50, bailiff service fee of $45.45, and the Citec internet filing fee of $15.09.
59. [59]
    The appropriate order is that Mr Fuller pay Tow.Com the sum of $1,107.57 for claim plus costs of $173.04.