Nominal Defendant v Alex Kay Pty Ltd

Nominal Defendant v Alex Kay Pty Ltd - [1973] HCA 3 - HCA 1973 case summary — Zoe

[13]

With respect, I cannot accept it. It is easy to envisage many cases, as a matter of fact, when a thief takes a motor car across a State border into New South Wales, it is only temporarily in New South Wales. Perhaps the simplest instance is where a stolen car is driven by the thief out of Queensland into New South Wales and back again. When, in such circumstances, the car was out of Queensland, why was it not temporarily in New South Wales? My decision in the circumstances of this case depends, however, upon the attitude of the owner, not upon that of Wing. The owner was using its car registered in Queensland for the purpose of its business there in which the car was hired upon the terms that it should be returned to the owner in Brisbane. It was, I think, quite certain that the owner wanted its car in Queensland and, as between the car remaining permanently in New South Wales after Wing had, in breach of contract, taken it across the border, and it being there but temporarily, I cannot but reject the former and accept the latter. It is, of course, possible that if the car had been stolen, the owner would never have recovered it; it is possible indeed that it would have remained permanently in New South Wales. However this may be, it seems clear to me that unless Wing had stolen the car, it would, after a temporary absence, be taken back to Queensland and it is my opinion that if Wing had stolen the vehicle, the likelihood still was that it would have been recovered and returned to Queensland. As it happened, the motor vehicle was eventually taken back to Queensland; surely during the whole time from its entry into New South Wales until its return to Queensland it was temporarily in New South Wales. If not, when did it cease to be permanently in New South Wales and become but temporarily there? I do not accept the dictum of Ferguson J. that if a car is stolen in one State and taken into another State, that car should not, simply because it is in the hands of a thief, be regarded as temporarily in the State to which the thief has taken it.

[45]

The owner contends that at the relevant time the car was being driven without its authority, because it had been brought into New South Wales contrary to the agreement under which Wing had obtained possession of it and because the time of the hiring had already expired, at 11.15 in the morning, before the accident occurred. Much of the argument on this question has been directed to the relationship between the owner and Wing as bailor and bailee of the vehicle. It was contended on the one hand and denied on the other that the bailment of the vehicle to Wing had been determined. It was submitted for the appellant that the case was not one in which the acts of the driver were so repugnant to the holding of the vehicle as bailee that they determined the bailment and vested in the owner the immediate right of possession: see Penfolds Wines Pty. Ltd. v. Elliott [1] . It was submitted that there was evidence that it was the practice of the owner, when vehicles were returned later than the stipulated time, to make an additional charge and that this had occurred in the present case and that this was a recognition that the bailment had continued notwithstanding the breaches of the agreement committed by Wing. But, in my opinion, it is not by reference to those questions that the issue arising under the proviso to s. 32 (1) of the Act is to be determined. Whether or not the bailment was for some purposes still on foot at the time of the accident and whether or not the owner, on becoming aware of breaches of the agreement, would have been entitled to elect to treat the agreement as still subsisting or at an end are questions which need to be decided only if it is to be assumed that the existence of the relevant authority to drive is necessarily coterminous with a bailment, regarded as remaining in existence for all purposes until a definite point of time. In my opinion, no such assumption should be made. Nor is it necessary to decide whether it was the owner or the driver who had at the relevant time the immediate right to possession of the vehicle: see Nominal Defendant v. Andrews [2] . The question raised by the proviso to s. 32 (1) is a different question. It is the act of driving the vehicle at the time of the occurrence to which attention must be directed. I pause to observe that on the facts of this case I regard it as of no significance that the term "driver" is stated in s. 5 to include any person for the time being "in charge of" any vehicle. The fact that has to be proved in order to establish the defence is that at the time of the occurrence the driving of the vehicle was without the authority of the owner. I am of opinion that that fact was proved. The only authority to drive that was ever given to Wing was an authority which arose from the hiring to him for a term of a vehicle, the obvious purpose of this hiring being that the vehicle would be driven. The agreement said nothing in positive terms as to the extent of that authority to drive. But it provided that the vehicle was not to be removed from Queensland without the written consent of the owner. In my opinion, the consequence was that no authority to drive the vehicle in any place outside that State was ever granted to Wing. The agreement did not confer a general authority to drive anywhere, which must be deemed to continue unless some fundamental breach of the agreement occurred. The question is not one of distinguishing between different classes of breach some of which would and some of which would not put an end to the agreement. In my opinion, the driving of the vehicle in New South Wales was outside the scope of any authority that ever existed. It cannot be implied merely from the fact that Wing obtained possession of the vehicle, as a bailee.

[48]

It was submitted in this Court that the appellant could rely upon the presumption of agency established by s. 16 (1) of the Act. It was argued that since that presumption is made applicable with respect to proceedings in which the nominal defendant was "involved" in any of the ways specified in sub-s. (2), it was applicable in this case in which the nominal defendant had been made an alternative defendant. According to the argument the consequence was that Wing must be deemed to have been at the relevant time the agent of the owner acting within the scope of his authority in relation to the vehicle and therefore it could not be maintained that he was driving it without the authority of the owner. In my opinion these submissions must be rejected. The authority to which s. 32 refers is an actual authority. The absence of such authority has to be established to the satisfaction of the Court, when an owner raises par. (a) of the proviso as a defence. When a driver invokes par. (b) of the proviso, the existence in fact of the owner's authority or the driver's belief on reasonable grounds in its existence is to be established to the satisfaction of the Court. Section 16 is concerned with removing difficulties confronting an injured person seeking to establish a right to damages. It is not concerned with a claim under s. 32. It was conceded that in a separate action brought by the nominal defendant under s. 32 against the owner or the driver, s. 16 would have no application. But it was said that when the nominal defendant has been joined as an alternative defendant and in that action has made a third-party claim based on s. 32 then s. 16 applies. Such a construction of s. 16 is inconsistent, in my opinion, with the provisions of s. 3 of the Law Reform (Miscellaneous Provisions) Act, 1946, which are so expressed that no greater right can be asserted against a person upon whom a third-party notice is served than could be asserted in a separate action brought against that person by the party by whom the third-party notice is given.

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Judgment (50 paragraphs)

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