Nominal Defendant v Dunstan [1963] HCA 5; (1963) 109 CLR 143 (7 March 1963)

HIGH COURT OF AUSTRALIA

NOMINAL DEFENDANT v. DUNSTAN [1963] HCA 5; (1963) 109 CLR 143

Evidence - Constitutional Law (Cth)

High Court of Australia
Dixon C.J.(1), Taylor(1) and Owen(1) JJ.

CATCHWORDS

Evidence - Burden of proof - Statutory exemption - "Motor vehicle (not being a motor vehicle in respect of &which persons are exempted . . . ) &which is not an insured motor vehicle" - Motor Vehicles (Third Party Insurance) Act, 1942-1951 (N.S.W.), ss. 5, 7, 30, 45 - Motor Vehicles (Third Party Insurance) Regulations, reg. 17.

Constitutional Law (Cth) - Freedom of inter-State trade, commerce and intercourse - State statute applying to all motor vehicles on public streets - Reading down to exclude vehicles engaged in inter-State trade - The Constitution (63 & 64 Vict., c. 12), s. 92 - Motor Vehicles (Third Party Insurance) Act, 1942-1951 (N.S.W.), ss. 3, 7 (1).

HEARING

Sydney, 1962, December 11, 12;
Melbourne, 1963, March 7. 7:3:1963
APPEAL from the Supreme Court of New South Wales.

DECISION

1963, March 7.
THE COURT delivered the following written judgment:-
In this matter the nominal defendant appeals from a judgment entered in an without a jury pursuant to s. 3 of the Supreme Court Procedure Act, 1900-1957 (N.S.W.). The action was of an unusual character inasmuch as the plaintiff, the first of the three respondents to this appeal, sought to recover damages from the nominal defendant or, alternatively, from the respondents Betteridge and Bristol Heater Company Pty. Limited (hereinafter referred to as the company). Betteridge was the driver and the company the owner of a motor vehicle and, in the language of the Motor Vehicles (Third Party Insurance) Act, 1942-1951 (N.S.W.), the plaintiff's injuries were caused by or arose out of the use of the motor vehicle in New South Wales. But, alleging that the motor vehicle was an uninsured vehicle within the meaning of s. 30 of the Act, the plaintiff claimed damages against the nominal defendant and succeeded in recovering judgment for a substantial amount. In this appeal the nominal defendant seeks an order setting the judgment aside on the ground that the vehicle was not an uninsured vehicle. If it was not, the plaintiff is entitled to judgment against Betteridge and also against the company if, in the peculiar circumstances of the case, the provisions of s. 16 of the Act operated to create notionally the relationship of principal and agent between the company and Betteridge. (at p147)

2. Briefly, the relevant facts are that the company was a company which was incorporated in Victoria and it neither had a place of business nor carried on business in New South Wales. Its motor vehicle was registered in the former State and it was stolen in that State on 30th September 1958. The accident in which the plaintiff sustained his injuries occurred on 12th October 1958 when Betteridge was driving the vehicle in New South Wales between Woonona and Sydney. Where the vehicle had been, or what had happened to it between these two dates does not appear and since Betteridge was not called to give evidence we do not know how long the car had been in New South Wales or what his intentions with respect to it were. We should add that there was no evidence to show where Betteridge was ordinarily resident and, therefore, no purpose can be served by inquiring whether he was an "owner" within the meaning of that term as defined by the Act. Clearly enough, the car was not a registered vehicle (see definition of "registered") and that being so, any person entitled to the immediate possession of it was, under the Act, an owner. The relevant definitions are capable of producing some curious results, but in the circumstances, it is unnecessary to pursue the topic. (at p147)

3. In the ultimate result the question whether the judgment should stand involves consideration of the onus of proof of certain subsidiary issues in the case and in order to discuss the problem it is necessary, first of all, to make some reference to the relevant statutory provisions. By the Act "insured motor vehicle" means a motor vehicle in relation to which there is in force at all material times a third-party policy, and "third-party policy" means a policy of insurance which complies with the requirements of the Act. There was not in force in relation to the company's vehicle any such policy. It is true that the company was the holder of a so-called third-party policy which purported to have been issued, pursuant to the provisions of the Motor Car (Third Party Insurance) Act 1939 of the State of Victoria but this was not a third-party policy within the meaning of the New South Wales Act. In order to see that this conclusion is inevitable it is sufficient to notice that it was not issued by an "authorized insurer" within the meaning of the latter Act and, since the cover which it provided was limited in certain events to the sum of 2,000 pounds, it did not insure the owner "against all liability incurred by the owner . . . in respect of the death of or bodily injury of any person caused by or arising out of the use of the motor vehicle". The vehicle was not, therefore, an "insured" vehicle within the meaning of the New South Wales Act. In these circumstances, one might well think that it ought, therefore, to be regarded as an uninsured vehicle. But this conclusion does not necessarily follow for the term "uninsured motor vehicle" is, itself, the subject of an exhaustive definition. That term in the Act means "a motor vehicle (not being a motor vehicle in respect of which persons are exempted by or under this Act from the provisions of sub-section one of section seven of this Act) which is not an insured motor vehicle". Section 7(1) is in the following terms: "Any person who uses or causes, permits or suffers any other person to use an uninsured motor vehicle upon a public street shall be guilty of an offence against this Act and shall be liable to a penalty not exceeding one hundred pounds or to imprisonment for a period not exceeding twelve months or to both such penalty and imprisonment". So far as we can see no persons are exempted by the Act from the provisions of s. 7(1). It is true that the expression "motor vehicle" does not include any motor vehicle which is owned by the Commonwealth of Australia or by any person or body of persons representing the Commonwealth of Australia but it is scarcely appropriate to describe the resultant general exception as an exemption from the provisions of s. 7(1). However this may be, we are not concerned with an exemption prescribed by the statute itself; what we have to consider is the effect of a regulation made under the Act which prescribed certain exemptions. Section 45 of the Act authorizes the making of regulations having the effect of exempting from the operation of all or any provisions of the Act (inter alia) "persons in respect of a specified class or specified classes of motor vehicles (including motor vehicles or specified classes of motor vehicles which are owned by persons ordinarily resident outside New South Wales and which are temporarily in New South Wales)". By sub-s. (4) of s. 45 any such regulation may be of general or specially limited application and may apply to all cases generally, to any specified classes of cases or to any particular case. (at p149)

4. Looking at the Act alone and without regard to any regulations made under s. 45 the company's vehicle was an uninsured motor vehicle within the meaning of the Act. But pursuant to s. 45 a regulation was made which, so far as it is material to set it out, was in the following terms: "Persons are exempted from the provisions of sub-section one of section seven and sub-section one of section eight of the Act in respect of any motor vehicle which is owned by a person ordinarily resident outside the State of New South Wales and is temporarily in that State and in relation to which there is and remains in force - (a) a contract of insurance complying with Part 1 of the Motor Car (Third Party Insurance) Act, 1939, of the State of Victoria as amended from time to time". The regulation when examined in full gives rise to some further particular difficulties but these do not affect the problems which this case raises. (at p149)

5. For the purposes of the case the concession was made, rightly or wrongly, that the company was, within the meaning of this regulation, ordinarily resident outside the State of New South Wales and it further appeared that there was in force at the relevant time a contract of insurance complying with Pt I of the Motor Car (Third Party Insurance) Act 1939. But there was no evidence from which the inference might have been drawn whether, at the relevant time, the vehicle was, in the language of the regulation, "temporarily" in New South Wales. However, the learned trial judge was of the opinion that once it was established that the vehicle was not an insured motor vehicle within the meaning of the New South Wales Act the onus lay upon the nominal defendant to establish that some appropriate exemption had been prescribed by regulation and that all of the prescribed conditions of exemption were satisfied. A second difficulty arose because the company's third-party policy was taken out in Victoria in January 1958 and the Motor Car (Third Party Insurance) Act 1939 (Vict.) had then ceased to be in force for some seven years. In fact, it was wholly repealed by the Motor Car Act 1951 which contained a special part (Pt V) which related to compulsory third party insurance. The 1951 Act was, however, a consolidating statute and no suggestion has been made that the company's policy did not comply with that Act. Apparently what happened was that the policy was made out on an old form which was headed "Motor Car (Third Party Insurance) Act 1939" but, so far as we can see, there is nothing in this circumstance to assist the plaintiff. Whether the relevant condition prescribed by the regulation is to be understood as compliance with the terms of the 1939 Act or with the requirements of the 1951 Act the condition was, it seems, satisfied. (at p150)

6. The initial problem, however, has more substance but we think it was correctly resolved by the learned trial judge by the application of the principles enunciated in Dowling v. Bowie [1952] HCA 63; (1952) 86 CLR 136, to which his Honour referred, and repeated in the later case of Vines v. Djordjevitch [1955] HCA 19; (1955) 91 CLR 512 His Honour cited the appropriate passage from the earlier case and in the later case it was said by the whole Court: "When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter" (1955) 91 CLR, at pp 519, 520 These observations were based on a number of cases which are referred to in the judgment and we add a reference to Munro Brice & Co. v. War Risks Association Ltd. (1918) 2 KB 78 and Gordon v. Australian & New Zealand Theatres Ltd. (1940) 40 SR (NSW) 512; 57 WN 126 (at p151)

7. In the present case it is beyond doubt that it was the declared policy of the Act to render the nominal defendant exclusively liable to actions for damages in respect of the death of or bodily injury to any person caused by or arising out of the use of an uninsured motor vehicle. And, if one has regard only to the provisions of the Act, it is clear that the company's vehicle was an uninsured motor vehicle. But the exemption by regulation of persons in respect of specified classes of motor vehicles from the provisions of s. 7(1) has the effect, not of notionally making such vehicles insured vehicles for the purposes of the Act, but of removing them entirely from a definition which would otherwise comprehend them. Consideration of the Act leaves us with the clear view that s. 30 of the Act, with the aid of the definition of "uninsured motor vehicle", lays down "a principle of liability which it means to apply generally" but, nevertheless, the Act provides for some "special grounds of exculpation" which are capable of being established only by proof of "additional facts of a special nature". Particularly does this appear when it is seen that any exempting regulation may be of "general or specially limited application" or may apply "to any specified classes of cases or to any particular case". Accordingly on principle we think that the onus of establishing these matters lay upon the nominal defendant. That being so, the appeal must fail on this ground. (at p151)

8. Before parting with the case, however, we should refer to two other matters. The first is that s. 7(1) of the Act, couched as it is in general language, applies to all vehicles used upon the public streets of New South Wales. It seems to us that the observations made in Hughes and Vale Pty. Ltd. v. The State of New South Wales (No. 2) [1955] HCA 28; (1955) 93 C.L.R. 127, at p. 154 and repeated in Collier Garland Ltd. v. Hotchkiss [1957] HCA 40; (1957) 97 CLR 475, at p 482 make it quite clear that a State statute which forbids the use of the roads of the State to any motor vehicle whilst it is exclusively engaged in inter-State trade or commerce unless the owner thereof is the holder of a third-party policy issued by an authorized insurer within the meaning of the Act cannot wholly be supported. Of course, if s. 7(1) were wholly invalid the bracketed words in the definition of "uninsured motor vehicle" could have no effect but it does not appear to us to be wholly invalid; by virtue of s. 3 of the Act, it seems to us it must be read so as to apply to all motor vehicles other than those exclusively engaged in inter-State trade, commerce or intercourse. We merely add that a vehicle which is "temporarily" in New South Wales may or may not be so engaged. (at p152)

9. The second matter to which we wish to make a brief reference is that upon the hearing of the appeal there was some discussion as to whether an appeal lay as of right from the learned trial judge direct to this Court. We refrain from expressing any opinion on this point since we are of the opinion that, in any event, the appeal must fail and that being so it is undesirable that the Court as constituted for this appeal should purport to decide the question. (at p152)

ORDER

Appeal dismissed with costs.