Di Carlo v Sefton [2006] QDC 40

DISTRICT COURT OF QUEENSLAND CITATION: Di Carlo v Sefton [2006] QDC 040 PARTIES: Salvatore Di Carlo (Appellant) v M T Sefton (Respondent) FILE NO/S: 1237/05 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates’ Court DELIVERED ON: 3 February 2006 DELIVERED AT: Brisbane HEARING DATE: 3 February 2006 JUDGE: Forde DCJ ORDER: 1. The appeal is dismissed with costs. 2. That an indemnity certificate be granted to the applicant pursuant to the Appeal Costs Fund CATCHWORDS: IMPORTANT PRINCIPLE OF LAW OR JUSTICE – appeal from Magistrates’ Court – Leave required Magistrates Court Act (1921), s 45(2) UCPR, rr 786(5), 371 Knight v. FP Special Assets Ltd [1992] 174 CLR 178 Lachlan v. Hartley (1978) 1 QdR 1 NSW v. Lepore [2003] 212 CLR 511 Scott v. Davis (2001) 204 CLR 333 Wanstall v. Burke (1925) St R Qd 295 COUNSEL: Mr S Di Carlo for himself Ms S Pointing for the respondent SOLICITORS: Universal Legal Recoveries Lawyers for the respondent -- 1 of 8 -- 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: The original claim in this matter was for the sum of $561.98 by one MT Sefton against one Salvatore Di Carlo. The claim alleged that the defendant was the driver of the vehicle and the registered owner of the vehicle. The plaintiff suffered damage to his car when it was involved in a collision with the vehicle, which is described as a BMW motor vehicle. It occurred on the 27th of February 2004 at Carina Heights. A judgment in default of appearance and defence was entered on 6 January 2005. An application to set aside that judgment was filed on the 18th of March 2005. The reasons of the learned Magistrate who heard the application had been reduced to writing. That was heard on the 6th of April 2005, and I quote: "I note in the affidavit of the applicant that it does not own the motor vehicle involved. He tells me today that he was not the driver but he knows the identity of the driver. He denies receiving various correspondence. It would appear that enforcement proceedings have been brought. It is noted that there was good service of the original claim. I am of the view that a satisfactory explanation has not been given as to why no defence was lodged. I am further of the view that the defendant has not a defence as I am of the view that the registration documents would indicate that he is the owner or primary customer. The application is dismissed. I order that the respondent to the original claim, being the applicant today, pay costs in the sum of $52.50." Leave was granted to appeal the order of costs. -- 2 of 8 -- 3 JUDGMENT 1 10 20 30 40 50 60 Factual Background The certificate issued by Queensland Transport, which is exhibit SDC3, names Zapco SMPJ Projects, Level 1/370 George Street, Brisbane in the notice, and the registered operator is nominated as Salvatore Di Carlo, Level 1, 370 George Street, Brisbane. Mr Di Carlo, Senior, appears before me as the applicant. The respondent asserts he has no right to do so as the judgment is against his son of the same name. Because of the quantum of this claim, leave is necessary to proceed on the appeal pursuant to the provisions of section 45(a) of the Magistrates Court Act 1921. 45(2) reads as follows: "Provided that - (a) where in any of the above cases referred to in subsection 1 the amount is not more than $5,000, an appeal shall lie by leave of the District Court, by the District Court or District Court Judge who shall not grant such leave to appeal unless the Court or Judge is satisfied that some important principle of law or justice is involved." Important question of law or justice There had been various authorities referred to me which touch -- 3 of 8 -- 4 JUDGMENT 1 10 20 30 40 50 60 upon this issue. In the first instance, Wanstall v. Burke (1925) State Reports Queensland 295 at 297: "The cause of action in this case is of a very ordinary kind and the only point upon which counsel for the defendant sought to rely was that the letter was not capable of a defamatory meaning. This, in our opinion, did not and could not involve any important principle either of law or justice or, indeed, anything that does not apply in every action for defamation in which the Judge has to decide whether the matter alleged to be defamatory is capable of having a defamatory meaning (Criminal Code section 367)" As was mentioned by Webb J in that case at 298, whether there is such an important principle of law or justice will depend upon the facts and circumstances of the case. That comment is particularly relevant in the present case. There is then the further decision of Lachlan v. Hartley (1978) 1 QdR 1 at 5. That was a case in relation to payment in of moneys to Court and raised an issue "not merely of interest to the particular plaintiff, there may be many actions on foot in the Supreme Court in which the plaintiff might reasonably expect that if the matter goes to trial he will obtain more than the amount originally claimed in the statement of claim and that he will be granted leave to amend in order to achieve this. There must be many actions in the District Court in the same situation ..." It was obvious in that case that the issue concerning Kneipp J who granted leave was an important question of practice for the profession. Finally, in dealing with a question of service under section 11 of the Service and Execution of Process Act, or section 59 of the District Court Rules, as they then were, Davies JA, -- 4 of 8 -- 5 JUDGMENT 1 10 20 30 40 50 60 sitting on a leave application, held that it was not every contest relating to those provisions that involve an important question of justice. His Honour obviously was referring to service provisions. Further, he held that: "When section 92(2) of the District Court Act 1967, which was relevant in that case, spoke of an important question of justice, it spoke of a question which went beyond the correctness or otherwise of the decision from which a party sought leave to appeal. Merely demonstrating that such decision was arguably or even probably wrong did not establish that an important question of justice was involved." The present case touches upon the question of service upon the appropriate defendant as being questionable and certainly controversial in this case. Notwithstanding that leave was not sought in the material, as is required under rule 786(5) of the UCPR, there is power under rule 371 to dispense with non-compliance, which I do in this case. The matter of leave has been argued and will be ruled upon notwithstanding that non-compliance. Factual background It is an irresistible inference in relation to the reasons given by the learned Magistrate that he applied the question of agency of a principal in the present case to mean that notwithstanding that the Mr Salvatore Di Carlo Senior was the operator as named, that he therefore would be liable whoever was driving. There is no finding that Mr Di Carlo was the driver. In fact, Mr Di Carlo Senior, I am speaking about, -- 5 of 8 -- 6 JUDGMENT 1 10 20 30 40 50 60 told the Court he was not the driver but knew the identity of the driver. Unless there was a finding of credit on that aspect, the only other basis for liability is that, as principal, Mr Di Carlo would be liable for the acts of the person that he knew was the driver. There was no such finding of credit in this case. If there was a finding of credit, of course, that would not raise an important principle of justice or law. The other point raises a question of law. That issue of the liability of a principal of a vehicle for the driver of the vehicle, absent the statutory agency under Motor Accident Insurance, has been decided by the High Court in Scott v. Davis (2001) Volume 204 CLR 333, and particularly I refer to the reasons of Gleeson CJ at 342. In other words, the learned Magistrate would have acted on an erroneous basis if he had held that Mr Di Carlo Senior was liable as principal for the negligent act of the person driving, given that there was no evidence that he was in the car or directing the actions of the person driving. Thus, he could not be held liable under the ordinary common law. That error by the Magistrate is a legal one which has been clearly decided elsewhere. To deal with that issue at this Court, to grant leave would add nothing to what is a settled principle of law well-known throughout Australia by virtue of the decision of Scott v. Davis and other decisions which touch upon issues of vicarious liability, including NSW v. Lepore [2003] 212 CLR 511, another High Court decision. Those -- 6 of 8 -- 7 JUDGMENT 1 10 20 30 40 50 60 matters had been well settled at appellate level. Therefore, orders are: the application for leave to appeal is refused. ... HIS HONOUR: The respondent seeks costs of this appeal. The original proceedings were served upon Mr Di Carlo Senior at Doone Street, MacGregor - 19 Doone Street, MacGregor. It seems that his son, also called Salvatore Di Carlo, although he has a middle name, made admissions at the scene that he was the Sam Di Carlo or Salvatore Di Carlo residing at the MacGregor address and that he was responsible for the accident. I don't need to deal with whether that admission about responsibility has any weight except to say that once Mr Di Carlo Senior was served, he may have spoken or ought to have spoken to his son about the matter and then proceeded to defend it in the usual way. However, what was believed, according to Mr Di Carlo Senior, was that they believed that he was liable as principal and he wanted to fight the matter based upon his - the fact that he was not driving. Without going into the actual detail of that view, the failure to speak to his son about the matter to facilitate a proper defence meant that default judgment was entered against the -- 7 of 8 -- 8 JUDGMENT 1 10 20 30 40 50 60 son Salvatore Di Carlo and subsequently Mr Di Carlo Senior was mistakenly given a summons for non-payment of the judgment. The position of the respondent throughout has been that it was the son who was liable, they could not have thought otherwise in view of the admissions made at the scene. There was some confusion in the domestic situation of the Di Carlos at the time which led, perhaps, to a misunderstanding. It is not suggested that Mr Di Carlo Senior led the learned Magistrate into error in relation to the erroneous finding of vicarious liability. The respondents have always maintained the position that the son is the appropriate defendant in the claim. In the circumstances, the following orders seem appropriate: that leave to appeal be refused. It is further ordered that the applicant do pay the respondent's costs of the appeal to be assessed: r 77; Knight v. FP Special Assets Ltd [1992] 174 CLR 178 at 192-193. It is further ordered that an indemnity certificate be granted to the applicant pursuant to the appeal costs fund. ----- -- 8 of 8 --