Taleb v Rijal [2022] VSC 259

12 Sep 2022

The Appeal

Taleb v Rijal [2022] VSC 259 (Taleb) concerned an appeal against the orders made by Magistrate Goldberg, pursuant to section 109 of the Magistrates’ Court Act 1989 (Vic).

William Roberts Lawyers acted for the (successful) Respondent in Taleb, pursuant to instructions from his subrogated insurer. Mr Taleb appealed the decision on the basis (among other grounds) that the Magistrate erred in finding that Mr Taleb was required to, and failed to establish, a daily car hire rate.

William Roberts challenged the Appellant’s Notice of Appeal on the basis that the Magistrate made no error of law in the judgement , alternatively, even if there were an error of law, Mr Taleb should not have been awarded damages for a replacement vehicle on the basis that he did not have a Victorian driver’s licence during the relevant hire period, and therefore it was illegal for him to drive any replacement vehicle.

By way of background:

1. On 8 September 2019, a collision occurred between a Mercedes Benz GL320 driven by Mr Taleb and a vehicle driven by Mr Rijal. Mr Rijal subsequently admitted liability for the collision. The matter then proceeded to trial in February 2021, on the basis that the quantum claimed by Mr Taleb was excessive and that Mr Taleb should not be entitled to recover hire car charges for a vehicle that he was not legally permitted to drive;
2. On 22 November 2019, Mr Rijal served an Offer of Compromise (Offer) on Mr Taleb in the sum of $18,000.00 plus costs;
3. On 5 February 2021, the Magistrates’ Court of Victoria ordered Mr Rijal to pay the sum of $14,634.90 on the claim, interest in the sum of $72.67 and costs of $1,558.75;
4. The Court ordered that Mr Taleb pay Mr Rijal’s costs from the date of the Offer in the sum of $30,443.29.

Questions considered on Appeal

Her Honour, Tsalamandris J, considered the following “questions of law”:

1. Did the Magistrate err in law by finding that Mr Taleb failed to establish the daily hire rate to sustain his claim on the basis it was not open on the evidence?
2. Did the Magistrate err in law by finding that there was no evidence as to the rate of daily hire when there was such evidence before the Court?
3. In circumstances where:
   1. The Magistrate accepted that Mr Taleb had a reasonable need for, and hired, a replacement vehicle for 43 days;
   2. Had before him the car hire documents indicating that the hire car was rented for 43 days at a daily rate of $150 per day;
   3. The only challenge to Mr Taleb in cross-examination as to the daily car hire rate was that in Yehia – a Jeep was leased for $120.00 per day, rather than $150.00 per day,
   4. did the Magistrate err in law by failing to apply the correct legal test in determining the measure of damages for the loss of use of Mr Taleb’s vehicle?
4. Did the Magistrate err in law by applying an erroneous, unfair, or unwarranted standard of proof of the daily rate of the replacement vehicle?
5. Did the Magistrate err by exercising his discretion on the question of interest?
6. Did the Magistrate err by exercising his discretion on the question of costs?

Grounds i to iv – Rejection of Mr Taleb’s claim for hire car costs

In relation to these questions of law, her Honour was required to determine whether Mr Taleb had successfully discharged his onus of proof concerning the evidence that a Plaintiff is required to provide the court in order to substantiate their claimed daily rate. Her Honour ultimately determined that a Plaintiff cannot simply rely solely on their invoice for a hire car as proof of their claimed replacement vehicle rate.

Relevantly, her Honour made the following remarks:

1. At paragraph 50 of the judgement

   “In his judgement, the Magistrate stated that he considered Mr Taleb’s evidence was unreliable and was not supported, such that there was no evidence of rate. This was a finding of fact open to the Magistrate.”

2. At paragraph 53 of the judgement

   “Although the Magistrate accepted Mr Taleb’s evidence in respect of his need for the car, he was entitled to reject other aspects of Mr Taleb’s evidence, including the documentary evidence prepared in respect of the hire car, on the basis that he considered Mr Taleb an unreliable witness. That is, it was open to the Magistrate to accept only a limited aspect of Mr Taleb’s evidence.”

3. At paragraph 56 of the judgement

“As Mr Taleb failed to satisfy the Magistrate that he had incurred damages for his consequential loss, the Magistrate was never required to consider whether Mr Rijal could establish that such a claim was unreasonable. Therefore, it never progressed to the shifting of the onus of proof, and as such, there was no error by the Magistrate regarding this.”

Accordingly, at paragraph 57 of the judgement, her Honour dismissed Mr Taleb’s grounds of appeal numbered 1-4.

Did the Magistrate err in law for not awarding interest on the judgement sum?

Interest is awarded in exercise of a statutory power in order to compensate the plaintiff for being kept out of their money.[1] Ultimately, though, interest is discretionary. At first instance, his Honour, Goldberg LCM,  found that interest in the sum of $72.67 was to be awarded to Mr Taleb. Magistrate Goldberg had regard to the fact that Mr Rijal served an Offer of Compromise, which was not accepted and ultimately not beaten. In affirming Magistrate Goldberg’s decision, her Honour found that any discretionary power which a lower court applies must be ‘clearly wrong’ if it is to be overturned. In particular, her Honour found:

1. At paragraph 97 of the judgement

   “When reviewing the exercise of such discretion, there is a strong presumption in favour of the correctness of the decision appealed from, and that decision should be affirmed unless I am satisfied that it is ‘clearly wrong’.”

2. At paragraph 98 of the judgement

“The Magistrate found that there was ‘good cause’ for not awarding Mr Taleb interest on the basis that Mr Rijal had made an offer of compromise for a sum greater than that which he was ultimately awarded. The exercise of the Magistrates’ discretion was open and reasonably exercised.”

Did the Magistrate err in law when he awarded costs against Mr Taleb?

Similarly, her Honour was not persuaded that the Magistrate erred in respect of the costs order made against Mr Taleb. Her Honour adopted similar reasoning to the reasoning applied to her finding to the question of interest above in that:

1. the awarding of costs is a discretionary power;
2. Mr Rajil had made an offer of compromise over a year earlier which was not accepted and ultimately not beaten; and, therefore,
3. the Magistrate exercised his discretionary power appropriately.

Her Honour wrote at paragraph 106:

“The Magistrate’s decision in respect of costs was discretionary. The Magistrate took into consideration Mr Taleb’s award for damages, being less than the sum Mr Rijal had offered him over one year prior. It was open and appropriate for the Magistrate to do so.”

Alternative Contention – Illegality

The Respondent filed a Notice of Contention which asked the Court to consider that, if the Magistrate is found to have erred in his finding that the Plaintiff had not successfully dispelled the onus, the Magistrate erred in his finding that Mr Taleb driving unlicensed did not disentitle him from recovering hire vehicle charges. Her Honour agreed with the Respondent’s contention and found that Mr Taleb being unlicensed meant that he was legally unable to drive any vehicle. The provision of damages for a hire vehicle, therefore, would allow Mr Taleb to engage in an illegal activity. Accordingly, her Honour found that the illegality precluded Mr Taleb’s entitlement to the hire of a replacement vehicle.

In deciding the question, her Honour stated:

1. At paragraph 81 of the judgement

2. “Mr Taleb should not be awarded damages for a replacement car that he was not lawfully permitted to drive… I consider Mr Taleb should not be awarded car hire costs as the Court will not be a vessel for such illegality.”

3. At paragraph 86 of the judgement

“Denying Mr Taleb’s car hire claim is not about the imposition of a penalty relevant to what he was doing at the time of the collision. It arises because the Court will not award damages to a plaintiff to enable them to engage in ongoing illegal activity. In this case, providing a hire car to an unlicensed driver for a period of 43 days would allow Mr Taleb to drive without a licence. The Court should not, and will not, enable this.”

The judgement can be accessed via the Supreme Court of Victoria website:

https://aucc.sirsidynix.net.au//Judgments/VSC/2022/T0259.pdf

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