Tow.Com.Au Pty Ltd v Mudford
[2016] QCAT 401
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- Unreported Judgment
- Tow.Com.Au Pty Ltd v Mudford[2016] QCAT 401
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Tow.Com.Au Pty Ltd v Mudford[2016] QCAT 401
Tow.Com.Au Pty Ltd v 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
- [1]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.
- [2]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.
- [3]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
- [4]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.
- [5]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.
- [6]
- [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”[5] 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.[6]
- [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”.[7]
- [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.[8] 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]
- [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]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]In Spain v Union Steamship, a claim for “reasonable expenses” rather than a sum certain was accepted as being recoverable as a liquidated demand. “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.”[11] 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]
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.[14] 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.”[15]
- [15]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.
Basis of Claim
- [16]Tow.Com claims $3,487.56 from Mr Mudford for towing and storage fees consequent on his vehicle, a 2012 unregistered trailbike,[16] being impounded by police on 15 May 2015. The claim turns however on Mr Mudford being found guilty of the offence for which he was charged and his motorbike impounded.
- [17]In the application there is no mention or detail about his conviction for the alleged offence nor the period of impoundment associated with the offence in result of which his vehicle was impounded. Indeed the only reference in the application is to a demand made by Tow.Com for payment on an invoice issued three days after the alleged commission of the offence and the towing occurring. Tow.Com’s claim is in effect based on failure to pay that invoice.
- [18]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.
- [19]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]
- [20]Further however, courts have remained careful not to assume jurisdiction under a penal statute unless it is clearly permitted by its provisions.[18]
- [21]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.
- [22]This means where certain notices are to be given or criminal conviction is a stipulated prerequisite to civil liability, no liability should be found to exist without those necessary threshold requirements having occurred and their occurrence proven. What amounts to sufficient proof of such threshold factors may perhaps vary[19] but will, in my view, given the penal nature of the provisions concerned, be something of a higher order than might otherwise be accepted by the Tribunal where the dispute is based on contractual relations voluntarily assumed between contracting parties.
- [23]Here proof that Mr Mudford was found guilty of the offence for which his vehicle was impounded is necessary before Tow.Com is entitled to recover any monies from him as an offending driver pursuant to the impounding provisions of the Act. To that end at minimum a record of conviction under the Justices Act 1886 should be produced. No evidence at all was produced by Tow.Com in this regard at or even following hearing, despite every facility being accorded them to do so.
- [24]Further, the period of impounding varies depending on the number of times a type 2 offence has been committed. There is no impounding for the first type 2 offence. On the second, the impounding period is 7 days. On the third offence, the vehicle is impounded for 90 days. On the fourth and any subsequent type 2 offence, the vehicle is impounded until conviction then forfeited to the State and sold. The period of impounding associated with an offence for which the vehicle was impounded varies and therefore must be proven. No such evidence about the applicable period of impounding for the offence concerned was adduced here. There is mention made in a statutory declaration by Mr Zumaeta dated 19 August 2016 that the period of impoundment was 90 days. I am not prepared to accept such evidence without independent evidence of the period of impoundment being adduced.
- [25]After the period of impounding ends, the owner of the vehicle is responsible for storage fees. By s 114(2) of the Act, if the owner was the driver of the vehicle when it was impounded and before the period of impounding ends the owner was personally given an impounding notice, the owner is liable to pay the costs of keeping the motor vehicle for each day after the period of impounding ends. Similar personal service of an impounding notice on an owner who was not the driver is also required if a claim for storage charges is to be made against the owner.
- [26]Proof of personal service of such impounding notice is a necessary prerequisite to this particular aspect of the claim, as too ownership of the vehicle, if the claim is in part based on storage charges subsequent to the expiry of the period of impounding. The claim is unclear on this point though the amount of the claim suggests this provision is relied upon. No such evidence was led in any case by Tow.Com.
- [27]The claim by Tow.Com is deficient with respect to all the abovementioned necessary items of proof. Given that its claim must fail.
Footnotes
[1]Section 74.
[2]Chapter 4 Division 1A.
[3]Section 77(2).
[4]Section 77(3).
[5]Section 111(1).
[6]Section 111(2)(a)(ii) and (b).
[7]Section 112(1) and (2).
[8]Section 114(2).
[9]Section 118.
[10]Section 121.
[11] Spain v Union Steamship Co of New Zealand (1923) 32 CLR 138 per Knox CJ and Starke J citing Odgers, Pleading and Practice (5th ed).
[12][1956] VLR 436 at 445.
[13]Ibid at 445.
[14]Solahart Mackay & Ors v Summers [2013] QCATA 113 at [16] citing Alexander v Ajax Insurance Co Ltd at 445.
[15] Alexander v Ajax Insurance Co Ltd at 445.
[16]Section 70(a), vehicle includes motorbike.
[17] Beckwith v The Queen [1976] HCA 55 at 9 per Gibbs J; (1976) 135 CLR 569.
[18] Council of the City of Fairfield v Colorpak Products (NSW) Pty Ltd [1988] NSWLEC 97 applying R v Johnson [1962] QWN 37.
[19] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28.