Bancroft v Registrar & Referees of the Small Claims Tribunal [2000] QSC 427

St t R . B a Queensland Government a e e po rt Ing urea u ~ OepartmentoflustlceandAttomey-Ge~ral Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION WHITE J No S7112 of 2000 PAUL ERIC BANCROFT and THE REGISTRAR AND REFEREES OF THE SMALL CLAIMS TRIBUNAL and MARIA CAVALLARO and TONY CAVALLARO BRISBANE .. DATE 16/11/2000 JUDGMENT . .th Floor, The Law Courts, George Street, Brisbane, a. 4000 1 REVISED COPIES ISSUED State Reporting Bureau Date;Z;zJ I I I tr0 Applicant First Respondent Second Respondents Telephone: (07) 3247 4360 Fax: (07) 3.M7 5532 -- 1 of 9 -- 16112000- Tl/PMD18 M/T 8354/2000 (White J) HER HONOUR: The applicant, Mr Bancroft, brought an application for a prerogative order in the nature of certiorari under part 5 of the Judicial Review Act 1991 to quash a decision of a referee of the Small Claims Tribunal made at Brisbane on 19 July 2000, whereby he ordered Mr Bancroft to pay $1,140.50 to the second respondents, Mr and Mrs Cavallaro. He also sought an order that the referee and Registrar, who are the first respondent, and Mr and Mrs Cavallaro pay the costs of the application. The application came on before me on 22 August. When it was called counsel for the three parties indicated that save for the question of costs the matter had resolved. After counsel for the applicant had outlined the circumstances of the order being made it seemed that there was an arguable case that an order for costs might be made against the referee and Registrar of the Small Claims Tribunal. Mr McLeod, who appeared for them, sought an adjournment so that the circumstances raised might be further investigated. In the circumstances, that application was not opposed. The matter was listed for hearing on the question of costs on 25 October, but only the applicant appeared, from which it might be inferred that the other parties had not been notified of .that adjourned date. The matter has come on today for further argument. . 1 10 20 30 40 50 60 2 JUDGMENT -- 2 of 9 -- 16112000- Tl/PMD18 M/T 8354/2000 (White J) In order to consider the application it is necessary .to mention the substantive issue in some detail. The applicant's daughter, a school student, was driving a Datsun sedan motor vehicle in William Street in the city in a 1 10 westerly direction towards the freeway at about quarter to 4 on 31 January this year when she came into collision with a vehicle owned by Mr and Mrs Cavallaro and driven by Mrs Cavallaro. The Datsun was registered in the name of Ms Bancroft's brother. Mr and Mrs Cavallaro made demand upon the "concerned parties of the Bancroft family" by sending them copies of two quotes to repair their motor vehicle. Mr Bancroft responded by writing that he had forwarded copies of that letter and enclosures "to our insurance company RACQ". Mr Cavallaro replied suggesting that Mr Bancroft take responsibility for the damage to their car and mentioned Court proceedings. There was no response and Mr and Mrs Cavallaro issued a claim out of the Small Claims Tribunal naming both Ms Danielle Bancroft and Mr Bancroft as respondents. The matter came on for hearing before an acting Stipendiary Magistrate who was designated as small claims referee on 19 July 2000. There was disagreement between the parties, particularly Mr Bancroft, and the referee as to what transpired at the hearing. The referee has filed an affidavit which is contradictory to that filed by Mr Bancroft. 3 JUDGMENT 20 30 40 50 60 -- 3 of 9 -- 16112000- Tl/PMD18 M/T 8354/2000 (White J) I have indicated to the parties that in my view it is probably unnecessary to resolve the conflict between these two people on this costs application. I would, however, comment that Mr Bancroft appeared on the papers in the Small 1 10 Claims Tribunal as a respondent so it is difficult to understand how he could maintain that he told the referee that he was at the hearing only to represent his daughter as she was ill. From the statements filed it was clear that Ms Bancroft was driving the Datsun and that she was alone in the vehicle. She said in her statutory declaration that she was driving from school to collect her mother from work. There was no suggestion that she was driving as the agent of the owner of the Datsun. Mr Bancroft deposes that he showed the referee an insurance policy with Suncorp Metway which indicated that his son was the owner of the vehicle. The referee denies that he saw this document or, indeed, that any reference was made to the ownership of the car by Mr Bancroft. As I have indicated it seems that it doesn't really matter who is correct, but there would appear to have been no submission from Mr Bancroft that he was not a proper party to the claim and neither did Mr or Mrs Cavallaro advance an explanation as to why he had been joined as a respondent. More importantly, the referee did not query his joinder and require Mr and Mrs Cavallaro to show in what way he could be made liable. 4 JUDGMENT 20 30 40 50 60 -- 4 of 9 -- 16112000- Tl/PMD18 M/T 8354/2000 (White J) Subsequently, Mr and Mrs Cavallaro have explained that they thought that Mr Bancroft was the owner of the motor vehicle and ought to have been responsible for his daughter's driving, but recognise now, after advice from their solicitor Mr Rinaudo, that this is not, in law, the case. The order of the referee was that Ms Bancroft and Mr Bancroft pay the amount of the claim plus filing costs. That claim was not satisfied and Mr and Mrs Cavallaro's solicitor wrote that an application would be made for their oral examination. Mr Bancroft believed that the order was made only against his daughter and sought to have it amended in the registry without success having showed the registry staff documentary proof that he was not the registered owner of the motor vehicle. However, it is difficult to see how, once the order was made, it could have been amended by any reference to the slip rule as was apparently the basis upon which Mr Bancroft sought to have the order changed. The order was no slip. The referee intended that it apply to both Ms Bancroft and to Mr Bancroft, as his handwritten minute of order shows. Such an order is final and can only be appealed by an order to review if the Tribunal acted without jurisdiction - see section 18 Small Claims Tribunal Act 1973. That has occurred and Mr and Mrs Cavallaro accept that there was no jurisdiction in the referee to make an order against 5 JUDGMENT 1 10 20 30 40 50 60 -- 5 of 9 -- 16112606 Tl/PMD18 M/T 835~/2000 (White J) Mr Bancroft. It is to be quashed so far as it relates to him. 1 The relevant provisions of the Small Claims Tribunal Act are sections 4 and 16 where definition of 11 claimant 11 , "small claim" and the jurisdiction of the Court make the want of jurisdiction in the Tribunal clear. The Small Claims Tribunal was established to give people an opportunity to resolve their differences inexpensively and without undue technicality. But resort to that jurisdiction does not dispense with the ordinary principles of liability found either at common law or in relevant legislation. 10 There is no law which makes a person in the position of a registered owner of a motor vehicle liable for the property damage caused by the negligent driving of another person unless that person is driving as the agent of the owner, for example, a delivery van driver, and even then the driving must be within the scope of the agency. Perhaps there was a fundamental misunderstanding that the provisions of the Motor Vehicle Accidents Act, as it relates to third party personal injury claims, also applied to property damage. If there is any general misunderstanding in the Tribunal or amongst the Registry staff of the Tribunal that is a matter which ought to be addressed promptly. . 6 JUDGMENT 20 30 40 50 60 -- 6 of 9 -- 16112000- T2/PAF23 M/T 8354/2000 (White J) A referee is in a special position towards lay litigants and carries a significant responsibility which does not burden Judges and Magistrates who sit in a Court where there is legal representation. Having said that, what ought then to be the costs order? The parties have, after I gave an indication at the commencement of these proceedings what I thought was a suitable outcome, agreed as to the orders which ought to be made but I think it appropriate that I should make some observations about the approach which a Court can take to orders against persons in the position of the referee and Registrar of the Small Claims Tribunal. Clearly Mr Bancroft should have his costs of the application for review. Mr and Mrs Cavallaro wrongly sought to make him 1 10 20 30 jointly responsible; nonetheless, neither party was assisted by the lack of inquiry by the referee as to Mr Bancroft's status as a respondent. Indeed, there ~eems to be some suggestion that it was up to Mr Bancroft to demonstrate why an order should not be made against him. The responsibility of the Tribunal is particularly onerous when there is no legal representation permitted before it. Costs will be ordered against Magistrates and officers of a Tribunal such as a Small Claims Tribunal only in very exceptional circumstances. As Helman J observed in City and County Insurance Brokers Pty Ltd v Webster & Anor [2000] QSC 8, an unreported decision of 24 January this year: 7 JUDGMENT 40 50 60 -- 7 of 9 -- 16112doo· T2/PAF23 M/T 8354/2000 (White J) "It is well accepted that an order for costs will be made against a magistrate only in very exceptional circumstances. Such an order is reserved for flagrant cases of serious misconduct, corruption, gross ignorance, or perversity: ex parte Blume; re Osborne (1958) 58 S.R. (N.S.W) 334, at p.339; Sankey v. Whitlam [1997] 1 N.S.W.L.R. 333 at p.363 per Hutley JA; Re 1 Heilbronn and Small Claims Tribunal of Queensland, at 10 p.18; El Deeb v. Magistrates Court of South Australia (1999) 72 S.A.S.R. 596, at p.598 pre Doyle CJ with whom Bleby and Martin JJ agreed; Re Boothman; ex parte Trigg [1999] W.A.S.C. 102; and Robinson v. Paterson & Anor [1999] v.s:c. 60 at para 115. There is, of course, a wide discretion on the matter of costs, but the practice I have referred to provides guidance for deciding how the discretion should be exercised in an individual case: El Deeb v. 20 Magistrates Court of South Australia at p.599 per Doyle CJ." In ex parte Blume (1958) S.R. (N.S.W.) 334, a case referred to by his Honour, the facts against the Magistrate were quite grave and yet no order was made for costs against him. 30 The Court of Appeal in New South Wales said of the proper approach to such an order at page 339: "· .. even if he falls into what the Court characterised as an astonishing blunder, he does not necessarily act perversely." 40 That is, I think, the position here. How then ought the costs to be disposed of? Section 49 of the Judicial Review Act is not apposite; rather, the application is pursuant to the rules of Court. Costs will usually follow the event but 50 this seems ~n appropriate case for a certificate under the Appeal Costs Fund Act 1973, which applies to the decision of the Small Claims Tribunal (see sections 4 and 15.) 60 8 JUDGMENT -- 8 of 9 -- 16112000- T2/PAF23 M/T 8354/2000 (White J) The orders then that I make on this application are as follows: 1. The order made in the Small Claims Tribunal on 19 July 2000 in respect of small claim number 2695 of 2000 be quashed insofar as it relates to Mr Paul Eric Bancroft. 2. The second respondents, Mr and Mrs Cavallaro, pay the applicant's costs of this application excluding any costs incurred by the applicant in respect of the appearance on 25 October 2000. 3. The second respondents are to have an indemnity certificate in respect of the costs which have been ordered against them in respect of the application. The certificate, pursuant to section 16 (1) (a) (i) should encompass the costs which the second respondents have been ordered to pay to the applicant and, pursuant to section 16(1) (b) (i), their own costs in responding to the application. Such costs are to be assessed on the standard basis. 9 JUDGMENT 1 10 20 30 40 50 60 -- 9 of 9 --