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- Unreported Judgment
Tow.com.au v Avery QCATA 57
Tow.com.au v Avery  QCATA 57
Tow.com.au Pty Ltd
Kelvin Warren Avery
24 April 2017
Senior Member Stilgoe OAM
15 May 2017
APPEAL – LEAVE TO APPEAL – PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DEFAULT JUDGMENT – where respondent did not send a response in the proper form – where Tribunal deemed a letter in response to the claim, to be a response – where Tribunal refused default judgment on the grounds a response had been filed – whether Tribunal erred in refusing default judgment – whether grounds for leave to appeal
APPEAL – LEAVE TO APPEAL – TRAFFIC LAW – OFFENCES – PARTICULAR OFFENCES – RECKLESS DRIVING – OTHER MATTERS – statutory debt – where towing company charges fees for impoundment under Police Powers and Responsibility Act – where towing company files claim for minor debt – where tribunal finds charges for statutory debt not reasonable – whether Tribunal erred in applying test of reasonable expenses – whether grounds for leave to appeal
Acts Interpretation Act 1954 (Qld) s 48A
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3(b), 4, 142(3)(a)(i)
Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 45(2)
Police Powers and Responsibilities Act 2000 (Qld) ss 77, 78(2), 111, 112
Police Powers and Responsibilities Regulation 2012 (Qld) s 28
Tow Truck Act 1973 (Qld) s 43(2)(r)
Cribb v Freyberger  WN 22
Pickering v McArthur  QCA 294
Spain v Union Steamship Co of New Zealand (1923) 32 CLR 138
Watson Specialised Tooling Pty Ltd v Stevens  Qd R 85
APPEARANCES and REPRESENTATION:
C Heilbronn, solicitor, Minter Ellison
REASONS FOR DECISION
- In October 2014, Kelvin Avery had his car impounded under the ‘hooning legislation’. Tow.com.au Pty Ltd provides towing and impoundment services to the Queensland Police Service (QPS) in relation to ‘hooning’ offences. It sent Mr Avery an invoice for the towing and storage, after selling his motor vehicle and applying the proceeds of sale against the costs. Mr Avery did not pay the invoice.
- Tow.com.au filed a minor debt claim in the tribunal for $15,013. Mr Avery did not file a response, as he was required to do, but he did send the tribunal a letter, within the time required for a response. By his letter, Mr Avery admitted the hooning offence but told the tribunal he thought that the towing fees would be covered by the sale of his car. He did not think he was liable for any fees.
- Tow.com.au applied for a decision by default. The tribunal refused the application, because it formed the view that the letter was a response. The tribunal listed the claim for hearing. After hearing from Tow.com.au only, the tribunal ordered that Mr Avery pay Tow.com.au $1,512.88.
- Tow.com.au wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
- Tow.com.au says there were three tribunal errors. It says the tribunal erred in treating Mr Avery’s letter as a response. It says the tribunal erred in extending its task beyond its administrative function when considering the application for a decision by default. It says the tribunal erred in concluding that there was only one scale of costs for towing and storage.
Did the tribunal err in treating Mr Avery’s letter as a response?
- Rule 45(2) of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) sets out the requirements for a response:
- It must be made within 28 days of receipt of the claim. Mr Avery complied with this requirement.
- It must be in the approved form. Mr Avery did not comply with that requirement.
- It must attach a statement answering the assertions in the claim and stating any amount the respondent claims to owe the applicant, how that amount is worked out and why that amount is owing. Mr Avery did this, in part. He asserted that no money was owing because the costs would be covered by the sale of his car.
- It must comply with the requirements of any Practice Direction. There is no Practice Direction that imposes additional requirements.
- Tow.com.au submits that the tribunal received Mr Avery’s letter after it received the application for decision by default. That is not correct. The tribunal received Mr Avery’s letter on 4 April 2016. The application for a decision in default was filed on 3 May 2016.
- Tow.com.au submits that the purpose of a response is to respond to assertions in the minor debt claim and state the amount Mr Avery says he owes. I agree. Mr Avery’s letter did respond to the claim and he did state what he thought he owed. He said he owed nothing.
- I also agree that, if a party fails to file a response, that party is deemed to have admitted liability for the claim.
- Although r 45 is framed in mandatory terms, non-compliance with the rules does not automatically mean that a document cannot be a response. Section 48A of the Acts Interpretation Act 1954 (Qld) states that if a form is prescribed under an Act, strict compliance with the form is not necessary and substantial compliance is sufficient.
- The tribunal must deal with matters in a way that is accessible, fair, just, economical, informal and quick. It must facilitate access to justice. It must ensure proceedings are conducted in an informal way, that minimises costs to the parties. The objects of the Act would not be served by refusing to accept as a response a letter that denied liability and asserted that Mr Avery owed nothing.
- I accept that Tow.com.au did not have the opportunity to make submissions about whether or not Mr Avery’s letter was a response. I am not persuaded that there was any failure to provide procedural fairness in this lack of opportunity. Tow.com.au was able to answer the substantive points made in Mr Avery’s letter in due course.
Did the tribunal err in extending its task beyond its administrative function when considering the application for a decision by default?
- Because I have found that Mr Avery’s letter was a response, the tribunal’s administrative task to consider the application for a decision in default, necessarily, ended in a refusal. The tribunal was not in error.
Did the tribunal err in concluding that there was only one scale of costs for towing and storage?
- One would have thought that a decision in a minor debt claim, where an invoice was issued and there was no substantive challenge to the calculation of the amount, should have been a simple process. However, the tribunal wanted Tow.com.au to produce evidence to establish its right to charge the towing costs. That’s where things got complicated.
- The legislative regime for charging towing fees is unclear and, during the course of this claim through the tribunal, obvious gaps were exposed.
- Section 77 of the Police Powers and Responsibilities Act 2000 (Qld) (‘PPRA’) allows the QPS to arrange for towing and storage of an impounded motor vehicle, and to sign a towing authority if the driver of the motor vehicle has been charged with a hooning offence.
- Section 111 of the PPRA states that unless otherwise expressly provided, the State is not liable to pay the costs of removing or keeping an impounded motor vehicle. The State will be liable if the driver was a child, or the driver was found not guilty of the offence, or the proceeding for the offence is withdrawn.
- Section 112(2) of the PPRA states that the driver of an impounded motor vehicle is liable to pay the costs of removing or keeping the motor vehicle. The costs of removing or keeping the motor vehicle means ‘the amounts prescribed under a regulation under the Tow Truck Act 1973 (Qld), section 43(2)(r) for this Act’. Section 43(2)(r) of the Tow Truck Act is a regulation-making power.
- There is no regulation relating to the costs of towing under the PPRA. Instead of a regulation about the costs of towing under the PPRA, the QPS entered into a Managed Service Deed with Tow.com.au, then known as City Towing & Impoundment Pty Ltd, to manage the towing and storage of impounded vehicles. The tribunal received a copy of a letter from QPS dated 24 June 2014 ‘to whom it may concern’ setting out the rates that Tow.com.au was entitled to charge ‘for public services performed’.
What the tribunal decided
- The tribunal accepted that Tow.com.au’s claim was a claim for a liquidated sum. However, it relied on Spain v Union Steamship Co of New Zealand to find that the scale of charges must be reasonable and, therefore, a matter for the tribunal to determine.
- The tribunal’s reliance on Spain was misconceived. Mr Spain’s claim was to recover the ‘reasonable expenses’ to which he was entitled under his contract. The court necessarily had to decide whether his claim for reasonable expenses was, in fact, reasonable. There is no corresponding discretion in this case. An invoice was sent, it was unpaid. The tribunal had no power to look behind that invoice.
- Leave to appeal should be granted and the appeal allowed. The decision of 20 October 2016 is set aside and the following decision is substituted: Kelvin Warren Avery shall pay Tow.com.au Pty Ltd $15,378.54 plus interest calculated under the Supreme Court Act from 9 March 2016 to the date of order within 28 days of today’s date.
- The tribunal heard that Tow.com.au charges a lower rate for towing and impoundment if the State is responsible for the fees. The tribunal, rightly, pointed out that the PPRA does not distinguish between towing costs when the public has to bear the costs and when the State has to bear the costs. That may be a matter for clarification in future iterations of the hooning legislation.
- During the appeal tribunal hearing, I made the comment that there is no transparency in the charging of the towing fee. The driver of a towed motor vehicle may have no choice in the payment of the fee but the driver should be entitled to know what the fee is likely to be. A regulation would be an easy way to address that.
- The QPS must issue an impounding notice. The impounding notice must advise a driver that s/he is liable for the costs of towing and storage. If those costs are not to be the subject of regulation, it is a simple fix to have the impounding notice refer the recipient to Tow.com.au’s web site, which does set out the fees.
Police Powers and Responsibilities Act 2000 (Qld).
Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 142(3)(a)(i).
 Pickering v McArthur  QCA 294 at .
Cribb v Freyberger  WN 22; Watson Specialised Tooling Pty Ltd v Stevens  Qd R 85 at 93.
 QCAT Act s 3(b).
 Ibid s 4(a).
 Ibid s 4(c).
 Police Powers and Responsibilities Act 2000 (Qld) (‘PPRA’) Schedule 6.
 (1923) 32 CLR 138.
 Transcript page 1-3, line 39 to page 1-4, line 2.
 Which comment may have prompted the unfortunate action by Tow.com.au in sending SMS messages publishing the telephone number for the Minister for Police.
 PPRA s 78(2).
Police Powers and Responsibilities Regulation 2012 (Qld) s 28.
- Published Case Name:
Tow.com.au v Kelvin Warren Avery
- Shortened Case Name:
Tow.com.au v Avery
 QCATA 57
Senior Member Stilgoe
15 May 2017