Goryl v Greyhound Australia Pty Ltd - [1994] HCA 18 - HCA 1989 case summary — Zoe

CTHHCA

Goryl v Greyhound Australia Pty Ltd

[1994] HCA 18

High Court of Australia|1989-06-17|Before: McHugh JJ, Toohey JJ, Brennan J

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At a glance

Source facts

Court

High Court of Australia

Decision date

1989-06-17

Before

McHugh JJ, Toohey JJ, Brennan J

Source

Original judgment source is linked above.

Judgment (109 paragraphs)

[1]

For the reasons stated by Dawson and Toohey JJ., it is unnecessary to consider the operation of ss. 16 and 19. It is unnecessary to consider whether there can be some schemes for the benefit exclusively of the residents of a particular State which do not attract the levelling operation of s. 117.

[2]

I would answer the questions in the way in which Dawson and Toohey JJ. propose.

[3]

The provisions of the Motor Vehicles Insurance Act 1936 Q ("the Act") which give rise to the questions in the case stated by the Chief Justice pursuant to s. 18 of the Judiciary Act 1903 Cth are fully set out in the joint judgment of Dawson and Toohey JJ. In summary, ss. 16 and 19 of the Act operate to confer a statutory right of action on a resident of Queensland [11] with respect to injuries suffered outside Queensland [12] while an occupant of a motor vehicle registered in Queensland and insured in accordance with s. 3(1) of the Act [13] ("a Queensland vehicle"). If there is no entitlement to damages in the State or Territory where the accident occurred, he or she can recover damages from the insurer of the vehicle calculated in accordance with Queensland law ("Queensland damages") [14] ; if there is such an entitlement, there is a right to recover any excess which would be recoverable as Queensland damages ("make-up damages") (s. 19(b)). Conversely, s. 20 places a limit on the damages recoverable by a person injured in a car accident whose principal place of residence at the time of the accident was in another State or Territory: he or she cannot recover an amount greater than that recoverable in that other State or Territory. The limit applies no matter where the accident occurred.

[21]

It was not suggested and, in our view, there is no basis for a suggestion that, as a matter of necessary implication, the Constitution allows for different treatment of the kind postulated by ss. 16 and 19. Indeed, the argument was that different treatment is justified because the insurance premiums which provide the funds from which insurers meet their obligations come, in the main, from residents of Queensland and not from persons resident in the other States and Territories of Australia. Strictly, the premiums come from the owners of the motor vehicles who, in the main, are resident in or carry on business in Queensland. However, nothing turns on the precise description of those who pay the premiums. They are not the persons who are obliged by ss. 16 and 19 to pay damages; and they are not the persons who, as a class, benefit from the obligation. The obligation is owed by insurers; and leaving aside the residence qualification in s. 16(b) of the Act, it is owed to occupants of Queensland vehicles who are injured outside Queensland. The different treatment of persons who answer that description, depending on whether they are or are not resident in Queensland at the time of the accident, does not, in the words of Deane J. in Street , flow "naturally from the structure of [Queensland], the limited scope of its legislative powers or the nature of the right or other advantage to which it relates" [34] . Nor can it be said that, so far as the occupants of Queensland vehicles who are injured outside Queensland are concerned, there is some genuine difference between residents and non-residents which justifies different treatment by insurers. In that regard, the position is even clearer in a case such as the present where the vehicle in question was a tourist bus registered in Queensland. In such a case, the ultimate burden of the premium is likely to be passed on by the operator of the bus to the passengers who pay their fares. Yet a passenger in otherwise identical circumstances to other passengers will be subject to discrimination in the Queensland courts by reason only of his or her residence in another State.

[58]

A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State. In Street v Queensland Bar Association [41] all members of the Court were of the view that not every kind of differential treatment by a State of a resident of another State amounts to the imposition of a disability or to discrimination within the meaning of s. 117. Whether this is because the very nature of the federation, predicated as it is upon government State by State with the inevitable consequence that laws will differ from State to State, requires limits to be placed upon s. 117 or whether it is because some kinds of differential treatment, properly viewed, cannot be described as imposing a disability or a discrimination, is probably a difference in approach rather than principle. For instance, Mason C.J. said [42] : To allow the section an unlimited scope would give it a reach extending beyond the object which it was designed to serve by trenching upon the autonomy of the States to a far-reaching degree. Accordingly, there may be cases where the need to preserve that autonomy leads to a recognition that a particular disability or discrimination is not prohibited. On the other hand, Deane J. expressed his view as follows [43] : Section 117 only applies when a non-resident is "subject to disability or discrimination". Those words, construed in their constitutional context, convey the notion of some superimposed incapacity or disadvantage in the sense that the incapacity or disadvantage, regardless of whether it be direct or indirect, does not flow naturally from the structure of the particular State, the limited scope of its legislative powers or the nature of the particular right, privilege, immunity or other advantage or power to which it relates. The most obvious example of differential treatment which lies outside s. 117 is the exclusion of non-residents from voting in a State election [44] . Clearly, that is something which would not be prohibited by s. 117 even if it did amount to the imposition of a disability upon non-residents or discrimination against them. But it might also be said that there is no disability or discrimination because the very nature of a State election, which is to elect representatives for the residents of the State, dictates that residence be a qualification of voters. Non-residents have no part to play in the election of representatives for residents. 1. (1989) 168 C.L.R. 461. 2. ibid., at pp. 491-492; see also pp. 512-513, per Brennan J.; pp. 583-584, per McHugh J. 3. ibid., at p. 528; see also p. 560, per Toohey J.; p. 570, per Gaudron J. 4. See Henry v Boehm (1973), 128 C.L.R. 482, at p. 507.

[60]

Some distinctions between residents and nonresidents merely reflect the fact that this is a Nation composed of individual States, and are permitted; other distinctions are prohibited because they hinder the formation, the purpose, or the development of a single Union of those States. And in Street v Queensland Bar Association [46] , Mason C.J. observed that: The preservation of the autonomy of the States demands that the exclusion of out-of-State residents from the enjoyment of rights naturally and exclusively associated with residence in a State must be recognized as standing outside the operation of s. 117. Take, for example, the exclusion of out-of-State residents from the right to enjoy welfare benefits provided by a State under a scheme to assist the indigent, the aged or the ill. Generally speaking, I doubt that such an exclusion would amount to a disability or discrimination within the section. The exclusion would not seem to detract from the concept of Australian nationhood or national unity which it is the object of the section to ensure, because it would offend accepted notions of State autonomy and financial independence and a due sense of a State's responsibility to the people of the State to say that the Constitution required the State to extend the range of persons entitled under the scheme to out-of-State residents. In the same case, Deane J. expressed the view [47] that in certain circumstances State financial assistance limited to residents of the State would not subject a non-resident to a disability or discrimination. And Dawson J. observed that a right confined to residents of the State to participate in a State welfare scheme may not offend s. 117, particularly if the scheme is financed by State taxes, a residential qualification is reasonable and its imposition does nothing to impede the essential purpose of s. [48] . 1. (1978) 436 U.S. 371, at p. 383; cf. Shapiro v Thompson (1968), 394 U.S. 618. 2. (1989) 168 C.L.R., at p. 492; see also at pp. 512-513, per Brennan J.; pp. 583-584, per McHugh J. 3. (1989) 168 C.L.R., at p. 528; see also p. 572, per Gaudron J. 4. ibid., at p. 546.