PRACTICE UNDER RULES OF COURT – PLEADING – GENERALLY
– where
plaintiff/applicant sought to strike out parts of the second defendant’s/
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND –PRACTICE UNDER RULES OF COURT – PLEADING – GENERALLY– whereplaintiff/applicant sought to strike out parts of the second defendant’s/respondent’s defence summarily,under r 171 of the Uniform CivilProcedure Rules 1999 (Qld), on the ground they did not disclose anyreasonable defence – where the defence raised the novel question ofwhethercoverage under a compulsory third party insurance policy is availablewhere the injury is sustained because of an accident duringoff-road use of avehicle – whether the invalidity of the pleading must without more beimmediately self-evident to warrantsummary striking out – whether partsof the defence should be struck out summarily as disclosing no reasonabledefenceINSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES– COMPULSORY INSURANCE LEGISLATION – GENERALLY– QUEENSLAND
– where the motorcycle in question was registered and the respondent was
the compulsory third party insurer
– where the insurance was for injury
caused "anywhere in Australia", but only against a liability for personal injury
to which
the Motor Accident Insurance Act 1994 (Qld) ("the Act") applied
– where s 4 of the Act defined "motor vehicle" to mean a vehicle for which
registration is required – where the collision occurred on land other than
a "road" as defined in s 4 of the Act – where respondent contended
that at the time and place of the collision the motorcycle was not a motor
vehicle for which registration
was required as the collision had not occurred on
a "road" – where s 5(1) of the Act dealt with the ambit of liability under
the insurance policy – whether the definition of "motor vehicle" in s 4 of
the Act applies to s 5(1) of the Act – whether the Act applied to the
personal injury sustained – whether the insurance covered liability for
the personal injury sustained
Acts Interpretation Act 1954 (Qld), s 32AMotor Accident
Insurance Act 1994 (Qld), s 4, s 5, s 23Uniform Civil Procedure Rules
1999 (Qld), r 171
Crystal Creek Pty Ltd v Cairns City Council [2003] QCA 318Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997)
188 CLR 241, 271General Steel Industries Inc v Commissioner for Railways
(NSW) [1964] HCA 69
(1964) 112 CLR 125Gideona v Nominal Defendant [2005] QCA 261
Judgment (49 paragraphs)
[1]
PROCEDURE - SUPREME COURT PROCEDURE - QUEENSLAND - PRACTICE UNDER RULES OF COURT - PLEADING - GENERALLY - where plaintiff/applicant sought to strike out parts of the second defendant's/ respondent's defence summarily, under r 171 of the Uniform Civil Procedure Rules1999 (Qld), on the ground they did not disclose any reasonable defence - where the defence raised the novel question of whether coverage under a compulsory third party insurance policy is available where the injury is sustained because of an accident during off-road use of a vehicle - whether the invalidity of the pleading must without more be immediately self-evident to warrant summary striking out - whether parts of the defence should be struck out summarily as disclosing no reasonable defence
[2]
INSURANCE - THIRD-PARTY LIABILITY INSURANCE - MOTOR VEHICLES - COMPULSORY INSURANCE LEGISLATION - GENERALLY - QUEENSLAND - where the motorcycle in question was registered and the respondent was the compulsory third party insurer - where the insurance was for injury caused "anywhere in Australia", but only against a liability for personal injury to which the Motor Accident Insurance Act1994 (Qld) ("the Act") applied - where s 4 of the Act defined "motor vehicle" to mean a vehicle for which registration is required - where the collision occurred on land other than a "road" as defined in s 4 of the Act - where respondent contended that at the time and place of the collision the motorcycle was not a motor vehicle for which registration was required as the collision had not occurred on a "road" - where s 5(1) of the Act dealt with the ambit of liability under the insurance policy - whether the definition of "motor vehicle" in s 4 of the Act applies to s 5(1) of the Act - whether the Act applied to the personal injury sustained - whether the insurance covered liability for the personal injury sustained
M Daubney SC, with M Pope, for the plaintiff/applicant
[11]
Jensen McConaghy Solicitors for the second defendant/respondent
[12]
[1] The plaintiff applies under r 171 of the Uniform Civil Procedure Rules1999 (Qld) to strike out parts of the defence on the ground they do not disclose any reasonable defence. The case raises the question, to this point novel, whether coverage under a compulsory third party insurance policy is available where the injury is sustained because of an accident during off-road use of a vehicle: or more strictly, whether parts of a defence which contend it is not should be struck out, summarily.
[13]
[2] The plaintiff claims damages in respect of injuries she allegedly suffered, on 11 September 1999, because of the negligent driving by the first defendant of a registered motor cycle on which she was a passenger. It is common ground that the plaintiff sustained her injury because of a collision which occurred at a place, a track near a railway line, which was neither a "road" nor a "public place" within the meaning of the Motor Accident Insurance Act1994 (Qld) ("the Act"). The motor cycle was, as I have said, registered, and the second defendant was the compulsory third party insurer of that cycle.
[14]
[3] The plaintiff's injuries allegedly resulted from a collision between the registered and insured motor cycle driven by the first defendant, which was a Suzuki, and another, unregistered, motor cycle. In Gideona v Nominal Defendant[2005] QCA 261, the Court of Appeal held that the Nominal Defendant was not deemed to be the compulsory third party insurer of that unregistered motor cycle.
[15]
[4] The paragraphs of the defence which the plaintiff contends should be struck out are these:
[16]
"2. As to paragraph 2 of the Statement of Claim, the second-named Defendant denies that the Motor Accident Insurance Act1994 ("MAIA") applies to the plaintiff's claim for damages and for the reasons appearing in paragraph 4 hereof such that the second named Defendant cannot be legally liable to the Plaintiff for damages for personal injury."
[17]
"4. As to paragraph 4(d) of the Statement of Claim, the second-named Defendant denies that the first-named Defendant was an "insured person" within the meaning of that term as defined in the MAIA on the grounds that:
[18]
(a) the admitted policy of insurance was a "CTP insurance policy" as that expression is defined in section 4 MAIA;
[19]
(b) Clause 1.3(a) of the said Policy and which is contained in the Schedule to the MAIA provides to the effect that the insurance is only against a liability for personal injury to which the MAIA applies;
[20]
(c) At the time of the admitted collision in section 4 of the MAIA the term "motor vehicle" was defined to mean "a vehicle for which registration is required under the Transport Infrastructure (Roads) Regulation1991 or the Motor Vehicles Control Act 1975";
(e) The admitted collision occurred on land other than a road (as that word is defined by section 4 MAIA);
[23]
(f) At the time and place of the admitted collision the Suzuki motorcycle was not a motor vehicle for which registration was required under the Transport Infrastructure (Roads) Regulation1991 nor under the Transport Operations (Road Use Management) Act1995;
[24]
(i) the Suzuki motorcycle was not a "motor vehicle" as defined by the MAIA;
(ii) the MAIA has no application to the circumstances of the admitted collision and to the Plaintiff's claim for damages;
(iii) the first-named Defendant is not entitled to insurance under the said policy against the Plaintiff's claim."
[25]
[5] Mr Dickson, who appeared for the second defendant, pointed out that the power to strike out a pleading should be exercised with considerable care (cf Crystal Creek Pty Ltd v Cairns City Council[2003] QCA 318, 4 and Esanda Finance Corporation Ltd v Peat Marwick Hungerfords(1997) 188 CLR 241, 271, 293). That does not mean that especially where the question is one of law, the invalidity of the pleading must without more be immediately self-evident, to warrant summary striking out. As said by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW)[1964] HCA 69; (1964) 112 CLR 125, 130, "argument ... may be necessary to demonstrate that the case ... is so clearly untenable that it cannot possibly succeed". (General Steel was affirmed in Esanda Finance.) Where, as here, the issue is purely of statutory construction, it may be easier on the hearing of an interlocutory application to reach a level of satisfaction apt to warrant striking out. Nevertheless there is, as I have said, need for considerable care. Conscious of that constraint, I have in this case reached the clear view that the paragraphs of the defence should be struck out. There is obvious utility in making that determination now, for it may well facilitate an earlier, or less complicated, overall resolution of the claim. I now proceed to express the reasons which justify my determination that the respondent insurer's contention is untenable.
[26]
[6] During the period of registration of the Suzuki, a policy of insurance remained in force, with the second defendant as insurer (s 23 of the Act). The terms of the policy were those specified in cl 1 of the Schedule to the Act, relevantly:
[27]
"(1) This policy insures against liability for personal injury caused by, through or in connection with the insured motor vehicle anywhere in Australia.
One notes immediately the reference in sub-clause (1) to injury caused "anywhere in Australia", which would on the face of it not except privately owned land.
[30]
[7] Sub-clause (3) takes the reader back to s 5 of the Act, which relevantly provides:
[31]
"(1) This Act applied to personal injury caused by, through or in connection with a motor vehicle if, and only if, the injury -
[32]
[8] To this point, there would be no particular reason to doubt or query the applicability of the policy to this situation: the policy would, as put by Mr Daubney SC who appeared for the plaintiff, respond to the off-road situation. But Mr Dickson submitted that the definition of "motor vehicle" in s 4 should be imported into s 5, with the consequence that any liability arising here was not one to which the Act applied. He thereby adopts an approach parallel to that which informed the decision in Gideona.
[33]
[9] Section 4 defines "motor vehicle" in this way:
[34]
"'motor vehicle' means a vehicle for which registration is required under the Transport Infrastructure (Roads) Regulation 1991 or the Motor Vehicles Control Act 1975 ..."
[35]
Gideona determined that it was not necessary that the unregistered motor cycle involved in this collision be registered, because it was not being driven on a "road". It was consequently not a "motor vehicle" within the above definition. It followed that the Nominal Defendant could not be liable as if it were the compulsory third party insurer of that unregistered cycle.
[36]
[10] The present issue is different, simply because the Suzuki was in fact registered and ipso facto insured. That is the consideration which clearly and decisively distinguishes this case from Gideona. The scope of the policy extant in respect of the Suzuki motor cycle was the geographically complete cover prescribed by cl 1(1) of the Schedule to the Act, embracing the liability defined in s 5, that being a provision which focuses not on the issue of registration, but on the cause of the injury. Sub-section (1) implicitly assumes the currency of a policy of insurance, and its purpose is to define the liability covered by that policy. Significantly, sub-s (2) then deals with the situation where there is no insurance in place. That sub-s provides:
[37]
"(2) For an uninsured motor vehicle, subsection (1) applies only if the motor vehicle accident out of which the personal injury arises happens on a road or in a public place."
[38]
But no such limitation is expressed in the case of an insured vehicle.
[39]
[11] Mr Dickson essentially seeks to import the limitation under (2), in respect of uninsured vehicles, into (1) so far as it applies to registered and therefore insured vehicles. There is no evident reason why that should be done, especially having regard to the obviously beneficial objectives of the legislation - especially, in ensuring compensation for those injured through the operation of motor vehicles.
[40]
[12] When s 5(1) refers to a "motor vehicle", it is not adopting the definition expressed in s 4. The context - defining the extent of liability, not the circumstances in which a policy of insurance arises - suggests (or "indicates" or "requires") otherwise (s 32A Acts Interpretation Act1954 (Qld)).
[41]
[13] Notably, Mr Dickson's construction would enable the insurer of a motor vehicle to avoid liability by pointing to the off-road location of the relevant accident. Although the insurance policy would persist continuously, it would operate intermittently, depending on whether the vehicle was or was not on a road. Importantly, the legislation expressly excludes liability in the off-road situation in respect of uninsured vehicles, while there is no express exclusion in relation to insured vehicles. Also, that construction would allow an insurer to circumvent the expressly unlimited geographical ambit of the policy of insurance.
[42]
[14] It is of at least passing interest to recall the numerous cases over many years in which the liability of compulsory third party insurers has been affirmed in respect of accidents on private property, where the issue has been whether the injury was caused by, through, or in connection with a motor vehicle. I note, additionally, Professor Sutton's observations in Insurance Law in Australia, 3rd ed, p 1371:
[43]
"Even if the requirement under s 5(1)(b) that the wrongful act or omission causing the injury must be in respect of the motor vehicle concerned is satisfied, there is the further limitation that the injury must be the result of the one or other of the four occurrences listed in s 5(1)(a). There is no stipulation, however, that the accident out of which the injury arose must happen on a road or in a public place except in the case of an uninsured motor vehicle or the other categories of vehicle listed in s 5(3)." (underlining added).
[44]
[15] In his written outline, Mr Dickson submitted that s 5(2) mirrors s 5(1). I do not accept that submission, for the reasons already expressed. He also submitted that the applicant's approach assumed the interposition, into the definition of "motor vehicle" in s 4, of words such as: "or for which there is current registration and insurance". The other view, which I decidedly prefer, is that the s 4 definition simply does not apply to s 5(1), in that, as I have said, that sub-s is concerned with the ambit of liability under the insurance policy, proceeding on the assumption there is a policy in force.
[45]
[16] In summary, the result of this application is clearly and decisively determined by the circumstance of the subsistence of registration of the Suzuki and the concomitant insurance. It then only remains to construe that insurance policy. Its terms cover liability for injury caused "anywhere in Australia". It is not permissible to curtail that cover by adding a gloss to s 5(1) by reference to the s 4 definition of "motor vehicle": s 5 is not concerned to define the applicability of insurance cover, but the circumstances in which liability under a subsisting policy will arise.
[46]
[17] I consider these conclusions clear to the point where the jurisdiction to strike out the offending parts of the defences summarily may and should be exercised.
[47]
1. that paras 2 and 4 of the second defendant's defence be struck out as disclosing no reasonable defence; and
[48]
2. that the second defendant pay the applicant plaintiff's costs, to be assessed on the standard basis.
[49]
[19] Indemnity costs were sought. Notwithstanding my view as to the clarity of the position in law, I am not presently satisfied the case warranted such a costs order, in light of the novelty of the respondent's contention. That costs issue, which was not the subject of oral or written submissions, may however be ventilated before me orally, if desired. In that respect I reserve liberty to apply.