Nominal Defendant v Ravenscroft

SUPREME COURT OF QUEENSLAND

CITATION: Nominal Defendant v Ravenscroft [2007] QCA 435

PARTIES: TERRANCE ANTHONY RAVENSCROFT (plaintiff/respondent) / v NOMINAL DEFENDANT (second defendant/appellant) TROY JASON WARLTIER (first defendant/not party to appeal)

FILE NO/S: Appeal No 5113 of 2007 / DC No 73 of 2004

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 7 December 2007

DELIVERED AT: Brisbane

HEARING DATE: 19 November 2007

JUDGES: Jerrard and Muir JJA and McMurdo J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: 1.Appeal dismissed / 2.Appellant to pay the respondent’s costs

CATCHWORDS: STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – RULES OF CONSTRUCTION – WORDS TO BE GIVEN LITERAL AND GRAMMATICAL MEANING – where the respondent was injured by an off-road trail bike with no Compulsory Third Party Insurance under the Motor Accident Insurance Act 1994 (Qld) – whether s 5 of the Motor Accident Insurance Act 1994 (Qld) is the source of an obligation on the Nominal Defendant to indemnify the first defendant / Motor Accident Insurance Act 1994 (Qld), s 5, s 31, s 33 / Transport Operations (Road Use Management Act) 1995 (Qld) / Transport Operations (Road Use Management – Vehicle Registration) Regulation 1999 (Qld) / Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292*,* cited / Gideona v Nominal Defendant [2006] 1 Qd R 31, considered / Gideona v Suncorp Metway Insurance Limited [2006] 1 Qd R 327, considered / Gladstone v Bower [1960] 2 QB 384, cited / Inco Europe Ltd v First Choice Distribution (A firm) [2000] 1 WLR 586, cited / James Hardie & Coy Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53, cited / Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, cited / Magor and St Mellon’s RDC v Newport Corp [1952] AC 189, cited / Marshall v Watson (1972) 124 CLR 640, cited / Mills v Meeking (1990) 169 CLR 214, cited / Parramore v Duggan (1995) 183 CLR 633, cited / Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1, cited / R v Hudson [2007] NZCA 363, cited / R v PLV (2001) 51 NSWLR 736, cited / R v Young (1999) 46 NSWLR 681, applied / Saraswati v The Queen (1991) 172 CLR 1, cited / Toyko Mart Pty Ltd v Campbell (1988) 15 NSWLR 275, cited / Wentworth Securities Ltd v Jones [1980] AC 74, applied

COUNSEL: K F Holyoak for the appellant / RJ Lynch for the respondent

SOLICITORS: DLA Phillips Fox for the appellant / Shine Gouldson Lawyers for the respondent

JERRARD JA: This matter was an appeal against a judgment in the District Court given on 25 May 2007, in which the learned trial judge ordered that the appellant Nominal Defendant pay the respondent plaintiff Terrance Ravenscroft $75,000 by way of damages for personal injury. Mr Ravenscroft had been injured on 19 June 2001, when a motorcycle collided with him as he was walking along a pathway in Grosvenor Park in Browns Plains. The motorcycle was an off-road trail bike with no CTP Insurance under the Motor Accident Insurance Act 1994 (Qld) (“the MAIA”). It was agreed between the parties at the trial and on appeal that the pathway was not a “road” as defined by the Transport Operations (Road Use Management Act) 1995 (Qld) (“the TORUM”), but that it was a “public place” within the meaning of that term in that Act. If the Nominal Defendant was the insurer of the motorcycle rider, the first defendant in the action, the Nominal Defendant agreed the collision was caused by the negligence of the first defendant, and the damages were agreed.

The issue between the parties at trial and on appeal was whether the motorcycle was required to be registered, and whether accordingly the Nominal Defendant was obliged to indemnify the first defendant in respect of the latter’s liability to the plaintiff. The Nominal Defendant argued that the motorcycle did not need to be registered under any legislation, and for that reason no indemnity could arise. That submission depended on the following provisions of the MAIA, and other legislation.

Section 5 of the MAIA provides as follows:

“**5.(1)**This Act applies to personal injury caused by, through or in

connection with a motor vehicle if, and only if, the injury—

(a) is a result of—

(i) the driving of the motor vehicle; or

(ii) a collision, or action taken to avoid a collision, with the motor vehicle; or

(iii) the motor vehicle running out of control; or

(iv) a defect in the motor vehicle causing loss of

control of the vehicle while it is being driven; and

(b) is caused, wholly or partly, by a wrongful act or omission in respect of the motor vehicle by a person other than the injured person.

(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.

**(3)**However, this Act does not apply to personal injury caused

by, through or in connection with—

(a)a tractor, backhoe, bulldozer, end-loader, forklift, industrial crane or hoist, or other mobile machinery; or

(b) an agricultural implement; or

(c) a motor vehicle adapted to run on rail or tram tracks; or

(d) an amphibious vehicle; or

(e) a motor vehicle of a class prescribed by regulation;unless the motor vehicle accident out of which the injury arises happens on a road.”

The learned trial judge had written that the structure of s 5 of the MAIA was:

“a. To provide protection for personal injury caused by, through or in connection with a motor vehicle without locality limitation (subsection 1);

b. To provide such protection in respect of uninsured motor vehicles, but limiting the locality to ‘a road or in a public place’. (subsection 2);

**c.**To provide such protection in respect of specific ‘machinery’, but limiting the locality to ‘a road’ (subsection 3).”

That description appears accurate, and was not challenged on the appeal.

Section 20 of the MAIA provides that a person must not drive an uninsured motor vehicle on a road or in a public place. Section 4A of that Act defines an “uninsured motor vehicle” to mean a motor vehicle for which there is no CTP Insurance policy in force, other than a motor vehicle owned by a self insurer or a trailer. CTP is an abbreviation of “Compulsory Third Party”, and a CTP insurance policy means a policy of insurance under the MAIA for a motor vehicle, insuring against liability for personal injury caused by, through or in connection with the motor vehicle. Section 23 provides that when “transport administration” registers or renews the registration of a motor vehicle, a policy of insurance in terms of the schedule in the MAIA comes into force for the motor vehicle when the registration or renewal of registration takes effect, and the licensed insurer, selected under that part of the Act or in relation to the relevant application, is the insurer under the policy. The policy in turn is in the Schedule to the Act. The policy has no relevant locality limitation in it.

Section 31 of the MAIA provides:

“(1) If personal injury is caused by, through or in connection with a motor vehicle, the insurer for the statutory insurance scheme is to be decided in accordance with the following principles—

(a) if the motor vehicle is an insured motor vehicle—the insurer under the CTP insurance policy is, subject to this division, the insurer;

(b) if the motor vehicle is not insured but a self-insurer is the registered owner—the self-insurer is the insurer;

(c) if the motor vehicle is not insured and a self-insurer is not the registered owner—the Nominal Defendant is the insurer;

(d) if the motor vehicle, or insurer under its CTP insurance policy, can not be identified—the Nominal Defendant is the insurer.”

Section 33 provides:

“(1) The Nominal Defendant’s liability for personal injury caused by, through or in connection with a motor vehicle is the same as if the Nominal Defendant had been, when the motor vehicle accident happened, the insurer under a CTP insurance policy under this Act for the motor vehicle.”

The provisions on which the appellant relies include the definition of “motor vehicle”, in s 4 of the MAIA. It is defined to mean a vehicle for which registration is required under the Transport Operations (Road Use Management – Vehicle Registration) Regulation 1999 (Qld) (“the Registration Regulation”). The appellant then relies on the provision, in s 10 of the Registration Regulation, that a person must not use, or permit to be used, a vehicle that is not a registered vehicle on a road; (subject to excepting circumstances not relevant here). The appellant’s point is that there is no like provision in the registration regulation forbidding the use of an unregistered vehicle in a public place. In the MAIA, the terms “public place” and “road” are both defined to have the meaning given to them respectively by the TORUM. In that legislation “public place” is defined not to include a “road”; the latter term being defined to include an area that is open to or used by the public and is developed for, or has as one of its uses, the driving or riding of motor vehicles, whether for payment of a fee or otherwise.

The appellant’s argument was that because there was no requirement to register a vehicle driven in a public place under the Registration Regulation, s 5 of the MAIA is not the source of any obligation by the Nominal Defendant to indemnify the first defendant. Instead, it delineated the scope of an obligation to indemnify when there was an obligation to do so. The appellant argued that this Court’s decision in Gideona v Nominal Defendant [2006] 1 Qd R 31 held that the indemnity obligations of the Nominal Defendant were found in subsection 31(1)(c) and s 33 of the MAIA, and that that was a result of the application of the definition of “motor vehicle” in s 4 of the MAIA to those sections in that Act. The appellant’s argument was that a motor vehicle, not required to be registered when driven in a public place, was not a motor vehicle in respect to which the obligation to indemnify applies.

That argument depended on the submission that the only requirement imposed on the first defendant was not to drive an uninsured motor vehicle in a public place. The appellant referred to Gideona v Nominal Defendant [2006] 1 Qd R 31, in which there had been a collision between an uninsured trail bike (a Kawasaki) and a registered and insured Suzuki motorcycle. That collision did not occur on a road, and the appeal in that matter was by the pillion passenger on the Suzuki motorcycle, who had brought an action for damages against the riders of each of the motorcycles, and who contended that the Nominal Defendant was liable to indemnify the rider of the uninsured Kawasaki. The Nominal Defendant succeeded at trial on an argument that the uninsured motorcycle was not “a motor vehicle” within the definition of the term in the Act, and secondly that the accident did not happen in a public place. This Court held that the uninsured motorcycle was not “a motor vehicle” within the meaning of the MAIA, because it was not a vehicle for which registration was required under the legislation referred to then in the definition of “motor vehicle” in the MAIA. That relevant legislation forbade a person using a vehicle on a road that was unregistered; use of an unregistered vehicle in a public place other than a road was not prescribed. This Court found the requirement of registration is essentially an implication from the prohibition of use of an unregistered vehicle, and that the Kawasaki was not required to be registered at the time the accident occurred. As a result it did not fall within the definition of “motor vehicle” in s 4 of that Act, and the Nominal Defendant, pursuant to s 31(1)(c) of that Act, was only deemed to be the insurer of an uninsured “motor vehicle.”¹

Williams JA wrote in that case that the obligation to register a motor vehicle in Queensland has always been derived from a provision making it an offence to use a motor vehicle that is not registered on a road; there has never been any statutory provision positively defining when or in what circumstances a motor vehicle must be registered.² The respondent plaintiff submits in this matter that in like fashion the obligation to insure a motor vehicle driven in a public place leads to an obligation to register it, because it is by that process of registration that a CTP Insurance policy comes into existence in respect of any vehicle. That is true, but s 20 of the MAIA only forbids driving an uninsured motor vehicle in a public place, not driving an unregistered one.

In Gideona v Suncorp Metway Insurance Limited [2006] 1 Qd R 327, de Jersey CJ heard a separate application, this time by the plaintiff pillion passenger in her action against the insurer of the registered motorcycle, the Suzuki. That learned judge held that it was common ground that where the plaintiff was injured was neither a “road” nor a “public place”, but that was irrelevant, because the scope of the policy in respect of the Suzuki motorcycle was the geographically complete cover prescribed by Clause 1(1) of the schedule to the Act, embracing the liability defined in s 5. The limitation in s 5(2), applicable when there was no insurance in place, did not appear in s 5(1). de Jersey CJ held that when s 5(1) referred to a “motor vehicle” it was not adopting the definition expressed in s 4. Section 5(1) defined the extent of the liability, not the circumstances in which a policy of insurance arose. He rejected the submission that s 5(2) mirrored s 5(1), and held that the s 4 definition simply did not apply to s 5(1).

Even that result does not help the respondent plaintiff here. This Court’s decision in Gideona v Nominal Defendant requires that we treat the reference to a “motor vehicle” in 5(2) as a motor vehicle defined in s 4 of the MAIA. That is a vehicle for which registration is required under the Registration Regulation.

The Registration Regulation says nothing about registration of motor vehicles used in public places, but the requirement that they be insured when driven in a public place necessarily leads to the requirement they be registered. The Motor Vehicles Control Act 1975 (Qld) had provided in s 10 that a person should not use a motor vehicle in a public place unless that vehicle was currently registered. That Act was repealed by the TORUM in 1995, and when the MAIA was amended in 1996 by the Motor Accident Insurance Legislation Amendment Act No 53 of 1996 (Qld), to add the reference to a “public place” in s 5(2), the second reading speech of the Deputy Premier, Treasurer, and Minister for the Arts stated that the amending Bill would ensure much wider protection for those injured in places in other than on “roads”. It appears that the legislature intended that the Nominal Defendant would indemnify those injured by unregistered vehicles driven in public places. That appellant contends that object was not achieved.

The learned trial judge rejected the appellant’s submission that the words “or in a public place” were redundant, and that view is supported by reference to the second reading speech. Resort to that source is permitted where the position is ambiguous, as it undoubtedly is.³ The learned trial judge deliberately reached a construction of s 5(2) that the judge considered would best achieve the purpose of that Act, and was not in error in doing so. There is an ambiguity resulting from the repeal of the Motor Vehicles Control Act 1975 (Qld), and the absence of any statutory prohibition in driving an unregistered motor vehicle in a public place. The second reading speech makes the intent of the legislation apparent, and the construction of the learned trial judge achieved that object. Accordingly, I would dismiss the appeal. The appellant is to pay the respondent’s costs.

MUIR JA: I gratefully adopt the statements of fact and the analysis of the history of the Motor Accident Insurance Act 1994 (Qld) and related legislation in each of the reasons for judgment of Jerrard JA and McMurdo J. I agree with the ultimate conclusion expressed in both reasons but would reach it by a slightly different route.

After the amendments to the Act effected by the Motor Accident Insurance Legislation Amendment Act 1996 (Qld), the Act’s insurance cover extended to a person injured by a motor vehicle in a public place. Prior to the amendments, the Act applied only in respect of accidents on a “road” as defined. The amending Act amended sections, including 5(2), 20(1) and 20(2) to include reference to a “public place”. The Act, as so amended, provided:

“5**(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.”

“20(1) A person must not drive an uninsured motor vehicle on a road or in a public place.

Maximum penalty—80 penalty units.”

(2) A person who is the owner of an uninsured motor vehicle must not permit someone else to drive it on a road or in a public place.

Maximum penalty—80 penalty units.”

Prior to the 1996 amendment, “motor vehicle” was defined in section 4 of the Act as follows:

“‘motor vehicle’ means a vehicle for which registration is required under the Transport Infrastructure (Roads) Regulation 1991 or the Motor Vehicles Control Act 1975, and includes a trailer.”

Those regulations required registration of vehicles used on roads and that Act required registration of vehicles driven in public places. The Act itself, before and after the 1996 amendments, contained and contains no obligation to register a motor vehicle for use on a road or in a public place. In Gideona v The Nominal Defendant⁴ Williams JA explained:

“[8] The obligation to register a motor vehicle in Queensland has always been derived from a provision making it an offence to use a motor vehicle that is not registered on a road; there has never been any statutory provision positively defining when or in what circumstances a motor vehicle must be registered. That position has not changed though the relevant statutory provision has been amended or replaced over the years. The current relevant provision is s 10 of the Transport Operations (Road Use Management - Vehicle Registration) Regulation 1999 … Clearly therefore the legislature has accepted the fact that the relevant provision providing for registration of a motor vehicle is that provision which makes it an offence to use an unregistered vehicle on a road.”

To adapt the language of Keane JA in Gideona v Nominal Defendant,⁵ the general scheme of the Act is that a vehicle is only within the statutory scheme if it is a “motor vehicle” and it is only a “motor vehicle” if it is a vehicle for which registration is required under the legislation referred to in the definition of “motor vehicle”.

Registration of motor vehicles plays an important role in the scheme of the Act. On lodging an application for registration of a motor vehicle the applicant is required to select a licensed insurer to be the insurer under the policy provided for in the Act.⁶ On renewal of such a registration the applicant for renewal must lodge a certificate certifying that the appropriate insurance premium has been paid to the licensed insurer.⁷ When registration of a motor vehicle is effected or renewed, a policy of insurance in terms of the schedule to the Act comes into place.⁸

Section 33(1) of the Act provides:

“The Nominal Defendant’s liability for personal injury caused by, through or in connection with a motor vehicle is the same as if the Nominal Defendant had been, when the motor vehicle accident happened, the insurer under a CTP insurance policy under this Act for the motor vehicle.”

When the Act was amended in 1996 it was unnecessary to alter the definition of “motor vehicle” to accommodate the extension of cover from an accident on a “road” to an accident in a “public place” as section 10 of the Motor Vehicles Control Act 1975 prohibited the use of unregistered motor vehicles in public places. At that time, the source of the obligation to register a vehicle before use on a “road” was the Transport Infrastructure (Roads) Regulation 1991 and the source of the obligation to register a vehicle before use in a public place was the Motor Vehicles Control Act 1975. There was no reason to suppose that “motor vehicle” in sections 5(2), 20, 31, 32 and 33 of the Act had other than its defined meaning. Nor was there any reason to suppose that the process of determining whether a vehicle involved in an accident in a “public place” was a “motor vehicle” within the meaning of the Act differed from that to be used where the accident happened on a “road”. In both cases the plain intention was that recourse be had to the relevant statutory provision in the definition of “motor vehicle”.

The Motor Vehicles Control Act 1975 was repealed by the Transport Operations (Road Use Management) Act 1995 with effect from a date to be fixed by proclamation.⁹ No date was fixed by proclamation and, by operation of s 93(3) of the Transport Operations (Road Use Management) Act 1995, the Motor Vehicles Control Act 1975 was repealed with effect from 1 July 1998. The statutory requirement to register a motor vehicle before use in a “public place” then ceased. As a result the definition of “motor vehicle”, literally construed, no longer applied to a vehicle to be used in a “public place”.

A provision in the Transport Operations (Road Use Management) Act 1995 conferred power to make regulations concerning the operation and use of vehicles in a public place. That provision did not expressly refer to registration but counsel for the appellant accepted that the power was broad enough to permit the making of a regulation in respect of registration of vehicles to be used in a public place. No such regulation was made but, in 2000, the definition of “motor vehicle” in section 4 of the Act was amended to provide:

“‘motor vehicle’ means a vehicle for which registration is required under the *Transport Operations (Road Use Management – Vehicle (*Registration) Regulation 1999 and includes a trailer.”

Those regulations do not require the registration of a motor vehicle to be used in a public place.

The Explanatory Note in respect of the Motor Accident Insurance Amendment Bill 2000 does not hint at a legislative intention to deny cover in respect of an accident in a “public place”. The sole reference in the Explanatory Note to the amendment to s 4 of the Act is “the clause [clause 5] amends definitions and also adds new definitions”. The second reading speech is equally silent on the point.

It will be seen from the foregoing narrative that the Act set up a compulsory third party insurance scheme in respect of accidents on “road(s)” as defined in the “Transport Operations (Road Use Management) Act 1995”. The cover provided by the Act extended only to vehicles for which registration was required under other legislation: the Transport Infrastructure (Roads) Regulation 1991 or the Motor Vehicles Control Act 1975. This approach was not altered when the scope of the Act was extended to cover an accident in a “public place”. It continued to be the case that the vehicles to which the Act applied were to be ascertained by reference to the definition of “motor vehicle” and the Act, in relevant respects, operated satisfactorily until 1 July 1998.

Considerable weight was placed on the second reading speech to the Motor Accident Insurance Bill 1996 by the learned primary judge and by counsel for the respondent in address on the hearing of this appeal. It does not seem to me, however, that there is anything to be gained by reference to it. An intention to expand the scope of the compulsory third party cover beyond roads to public places is plain on the face of the Act as amended in 1996. But it is also plain that the intention was to continue the existing registration related scheme and role of the definition of “motor vehicle”. The Explanatory Note to the Bill states that:

“The section will be changed to Definitions and the clause will introduce a new definition of “public place”. The definition will be aligned to the ‘public place’ definition in the Motor Vehicles Control Act 1975 in order that the obligation to insure under the CTP correlates with an obligation to register a motor vehicle.”

The question for determination on this appeal arises from a gap in the Act caused by the repeal of the Motor Vehicles Control Act 1975 without the reference to it in the definition of “motor vehicle” being replaced by a reference to another statutory provision imposing an obligation to register a vehicle for use in a “public place”.

Although the Court in Gideona did not need to consider the application of the Act to a vehicle used in a public place, it was plain from the reasons in that case that all members of the Court were of the view that the cover under the Act extended only to “motor vehicles” within the definition of that term. That decision was handed down in July 2005. It revealed the gap left by the repeal of the Motor Vehicles Control Act 1975, yet no regulations have been made to remedy the gap despite the existence of a relevant regulation-making power under the Transport Operations (Road Use Management) Act 1995. The Court in Gideona, however, did not consider the precise question of construction with which this case is concerned.

It is inconceivable that the Legislature intended in 1996, when extending cover to accidents in a “public place”, that the amendments to the Act which brought about the extension of cover would soon cease to operate. Despite the legislative inactivity after Gideona, it is also highly improbable that the 2000 amendment to the definition of “motor vehicle” was intended to remove or continue to deny cover in respect of an accident in a public place.

In the circumstances I have outlined, is it possible for the Court, through an exercise in statutory construction, to remedy the problem caused by legislative inadvertence and/or inaction?

In discussing the approach to be taken where the court discerns a gap in legislation Devlin LJ, with whose reasons the other members of the Court agreed, said in Gladstone v Bower:¹⁰

“I think, therefore, that this is simply a casus omissus and that the Act is defective. If it were ever permissible for the court to repair a defective Act of Parliament I should be very glad to do so in this case. The court would always like to allow the intention of a statute to override the defects in its wording, but its ability to do so is limited by the recognised canons of interpretation. The court may, for example, prefer an alternative construction which is less well fitted to the words but better fitted to the intention of the Act. But here, for the reasons given by the judge, there is no alternative construction. It is simply a case of something being overlooked. We cannot legislate for a casus omissus. I may be sure in this case that I know exactly what Parliament would do if it perceived the gap. But if the rule were to be relaxed, sooner or later the court would be saying what Parliament meant and would get it wrong and thus usurp the law-making function. It is a matter of keeping within the recognised canons, and they do not permit the court to supply words if the only (and I emphasise only) ground for their admission is to give legislative efficacy to a statute. For these reasons I agree that the appeal should be dismissed.”

The approach of the Court of Appeal in that case echoes the approach of Lord Simonds in Magor and St Mellon’s RDC v Newport Corporation¹¹ to which Stephen J, with whose reasons Menzies J agreed, referred with approval in Marshall v Watson:¹²

“Granted that there may seem to be lacking in the legislation powers which it might be thought the Legislature would have done well to include, it is no power of the judicial function to fill gaps disclosed in legislation; as Lord Simonds said in Magor and St. Mellons R.D.C. v. Newport Corporation [1952] AC 189, at p 191 , ‘If a gap is disclosed, the remedy lies in an amending Act’ and not in a ‘usurpation of the legislative function under the thin disguise of interpretation’. The learned trial judge concluded that he ought not to hold that the Act conferred by implication a power to remove a person to hospital merely because the documents specified in s. 42 (1) has been duly completed; with respect I agree with this conclusion.”

Gibbs CJ referred to Lord Simond’s reasons with apparent approval in Parramatta City Council v Brickworks Ltd.¹³ Barwick CJ, Owen J and Menzies J, with one reservation not relevant for present purposes, agreed with Gibbs CJ’s reasons. Gibbs CJ said:¹⁴

“…if the words of the sub-section are unambiguous we must give effect to the intention which they reveal and it is for the legislature and not for the courts to fill any gap that may unintentionally have been left in the statute (cf. Magor and St. Mellons Rural District Council v. Newport Corporation [1952] AC 189, at pp 191-192).”

The following passage from the reasons of McHugh J in Mills v Meeking, however, is indicative of a discernible shift towards a more active approach to fulfilling a perceived legislative intention:¹⁵

“A court cannot depart from the literal meaning of a statutory provision because that meaning produces anomalies or injustices if no real doubt as to the intention of Parliament arises: Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at pp 305, 320; Stock v. Frank Jones (Tipton) Ltd. [1978] 1 WLR 231 at pp 234-235, 237-238; [1978] 1 All ER 948 at pp 951- 952, 954. But, when the literal meaning of a provision gives rise to an absurdity, injustice or anomaly, a real doubt will frequently arise as to whether Parliament intended the literal meaning to prevail. In such a case, a court may be entitled to disregard the literal meaning. In Cooper Brookes (Wollongong) Pty. Ltd. Gibbs C.J. pointed out (at p 304):

‘There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case ...’

But this does not mean that a court is bound by the literal or grammatical meaning of a statutory provision unless that meaning produces an irrational result. This was made plain by Mason and Wilson JJ. in Cooper Brookes (Wollongong) Pty. Ltd. where their Honours said (at p 321):

‘On the other hand, when the judge labels the operation of the statute as 'absurd', 'extraordinary', 'capricious', 'irrational' or 'obscure' he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.’

Moreover, once it is apparent that the literal or grammatical meaning of a provision does not conform to the legislative purpose as ascertained from the statute as a whole, the court is entitled to give effect to that purpose by addition to, omission from, or clarification of the particular provision: Kammins Co. v. Zenith Investments [1971] AC 850 at pp 880-882; Jones v. Wrotham Park Estates [1980] AC 74 at p 105; Cooper Brookes (Wollongong) Pty. Ltd., at pp 321-323.”

McHugh J made similar observations, with which Toohey J agreed, in Saraswati v R.¹⁶

The following exposition of Lord Diplock in Wentworth Securities Ltd v Jones¹⁷ of the circumstances in which a court may supplement perceived deficiencies in the language of a statute is within the passage from Lord Diplock’s reasons referred to by McHugh J in Mills v Meeking and in Saraswati v R:¹⁸

“My Lords, I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts.” (emphasis added)

This approach to statutory construction was referred to with approval by Kirby J, with whose reasons McHugh J agreed, in James Hardie & Coy Pty Ltd v Seltsam Pty Ltd.¹⁹ His Honour observed that it now prevails, not only in England but also in Australia²⁰ and throughout the common law world.

Spigelman CJ referred to Lord Diplock’s statement of principle as “the contemporary approach” in R v Young.²¹ He noted²² that the passage had been adopted and applied by the New South Wales Court of Appeal in Kingston v Keprose Pty Ltd²³ and that it had been referred to with approval by that Court in other cases. The principle was applied by the New South Wales Court of Appeal in Tokyo Mart Pty Ltd v Campbell²⁴ and Bermingham v Corrective Services Commission of New South Wales.²⁵

That gaps in legislation may be filled by a process of construction in an appropriate case was recognised also by Toohey J, with those reasons Dawson and McHugh JJ agreed, in Parramore v Duggan.²⁶ His Honour there said:

“The courts have from time to time sounded warnings that ‘it is no power of the judicial function to fill gaps disclosed in legislation’. But such a power has been exercised and it was done by this Court in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation, that is, the Court departed from the literal meaning of the words in question where that literal meaning would ‘lead to an incongruous result’ or would defeat the objects of the Act or would be ‘capricious’ or ‘irrational’ The question is whether this is such a case and whether in the circumstances it is permissible to read s 40(3)(e)(i) as creating three categories of exception.”

The current position in Great Britain is that expounded by Lord Nicholls delivering the unanimous Judgment of the House in Inco Europe Ltd v First Choice Distribution (A Firm): ²⁷

“This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation: see Lord Diplock in Jones v. Wrotham Park Settled Estates [1980] A.C. 74, 105. In the present case these three conditions are fulfilled.”

This formulation does not appear to differ in substance from Lord Diplock’s except, perhaps, in relaxing slightly the requirement to be able to “state with certainty” the additional words “that would have been inserted and approved had Parliament been aware of the omission”.

The role of courts in remedying perceived deficiencies in legislation was the subject of extensive analysis in R v Young²⁸ by Spigelman CJ, with whose reasons in that regard Abadee and Barr JJ agreed. James J, with whose reasons in that regard Beazley JA agreed, undertook a separate review of the authorities.

Referring to the passage from Lord Diplock’s reasons in Wentworth Securities Spigelman CJ said:²⁹

“The process by which words omitted by inadvertence on the part of the draftsperson may be supplied by the court, must remain capable of characterisation as a process of construction of the words actually used.

…

As I understand the recent cases, they are not authority for the proposition that a court is entitled, upon satisfaction of the three conditions postulated by Lord Diplock, to perfect the parliamentary intention by inserting words in a statute. The court may construe words in the statute to apply to a particular situation or to operate in a particular way, even if the words used would not, on a literal construction, so apply or operate. However, the words which actually appear in the statute must be reasonably open to such a construction. Construction must be text based.

…

Putting to one side obvious typographical errors (see Bennion Statutory Interpretation (3rd ed, 1997) pp675-677), the court supplies words "omitted" by the draftsperson only in the sense that the words so included reflect in express, and therefore more readily observable, form, the true construction of the words actually used. In my opinion, the authorities do not warrant the court supplying words "omitted" by inadvertence per se.

Where the words actually used are not reasonably capable of being construed in the manner contended for, they will not be so construed. (McAlister v The Queen (1990) 169 CLR 324 at 330; R v Di Maria (1996) 67 SASR 466 at 472-474).”

Later in his reasons,³⁰ the Chief Justice said:

“The two techniques of construction to which I have referred - reading down general words and giving words an ambulatory construction - are based on the text. In my opinion, there is no warrant for supplying omitted words, unless the result of some such recognised technique of construction can be so described.

It is not, in my opinion, appropriate to take an expression of intention from extrinsic materials to supply the omission by the draftsperson, when the result cannot reasonably be deduced from the words actually used by a recognised technique of construction.”

Spigelman CJ, with whose reasons the other members of the Court agreed, in R v PLV³¹ again stated the view that the role of a court in construing legislation deficient as a result of the perceived omission was not to supply missing words but to construe the legislation. His Honour said:³²

“The process remains one of construction if the words actually used by the Parliament are given an effect as if they contained additional words. That is not, however, to “introduce” words into the Act. It is to construe the words actually used. Interpretation must always be text based. The reformulation of a statutory provision by the addition or deletion of words should be understood as a means of expressing the court’s conclusion with clarity, rather than as a precise description of the actual process which the court has conducted.

The authorities which have expressed the process of construction in terms of ‘introducing’ words to an Act or ‘adding’ words have all, so far as I have been able to determine, been concerned to confine the sphere of operation of a statute more narrowly than the full scope of the dictionary definition of the words would suggest. I am unaware of any authority in which a court has ‘introduced’ words to or ‘deleted’ words from an Act, with the effect of expanding the sphere of operation that could be given to the words actually used.”

James J in his reasons in Young appeared to adopt a more robust approach to “adding to the language the legislature has chosen” in an appropriate case. So too did the New Zealand Court of Appeal in R v Hudson.³³ Referring to Inco Europe Ltd v First Choice Distribution (A Firm), Jones v Wrotham Park Settled Estates Ltd and R v Wall, ³⁴ the Court accepted that “far reaching qualifications [of the words of an Act] are permitted where the purpose of the Act requires it”.

Because of the conclusion I have reached it is unnecessary to further explore the boundaries of the constraints on the court’s power to supply omitted words.

The above principles of construction must be applied with regard to section 14A(1) of the Acts Interpretation Act 1954 (Qld) which requires the court to adopt “the interpretation that will best achieve the purpose of the Act”.

Whilst regarding the definition of “motor vehicle” as “merely descriptive” of the categories of vehicle to which the Act applies offers a solution to the present problem, I am reluctant to adopt it. The present legislative approach, which does not depart from that traditionally employed, is to link the obligation to register motor vehicles with prospective use, either on roads or in public places. Section 10 of the Transport Operations (Road Use Management - Vehicle Registration) Regulation 1999 prohibits use on a road of an unregistered vehicle. It does not divide vehicles into two categories. It merely provides some exceptions to the requirement to register a vehicle before using it on a road. Tying the definition of “motor vehicle” to vehicles which are required to be registered for use on roads also appears to me to change the existing legislative scheme. That scheme, after the 1996 amendments, contemplated that the definition of “motor vehicle” would continue to refer to legislation which imposed an obligation to register a motor vehicle before use in a public place. This Court is not in a position to know whether the Parliament, had it turned its mind to the matter, would have arrived at identical criteria for registration. Nor is it able to predict the language of any future regulation in respect of the registration of motor vehicles before use in a public place.

The deficiencies in the Act can be overcome judicially only by a process of construction. And for that to be possible, to put it broadly, the court must conclude that its solution is the one Parliament would have adopted had it become aware of the deficiencies. Consequently, it would be appropriate, rarely if ever, to fill a perceived gap by interfering with the framework or scheme of an Act. Also there are cases in which it is desirable for the court to leave any remedy to Parliament. James Hardie & Coy Pty Ltd v Seltsam Pty Ltd³⁵ is an example of such a case. In their joint reasons Gaudron and Gummow JJ, having identified problems with the legislation under consideration, said³⁶ that such considerations:

“… serve to emphasise the need for renovation of the New South Wales legislation, not by judicial grafting to it of tissue which it lacks, but upon detailed reconsideration by the legislature. Judicial interpretative techniques may come close to leaching the existing statutory text and structure of their content and, whilst answering that apparently hard case then before the court, unwittingly lay the ground for other hard cases.”

The learned primary judge concluded that “a literal construction of the amended section 5(2) would produce an absurd or mistaken result …inconsistent with the purpose …of the …Act” and deprive the amendment of meaning. In that regard and in his conclusion, his Honour, with respect, was correct. However, identifying difficulties with a literal construction and ascertaining the purpose of an enactment is but part of the exercise of construction. It is necessary also to construe the words of the statute and identify the route by which the preferred construction is arrived at. And in so doing the Court must be conscious of not straying into areas which are the preserve of the Parliament and of not exceeding the constraints imposed by the authorities.

Not without hesitation and having regard to the constraints on filling gaps in legislation by a process of implication, I have concluded that it is possible to construe the Act so as to give effect to the obvious legislative purpose. It was never part of that purpose to deny cover in respect of a vehicle accident in a public place should there not be a regulation requiring registration of motor vehicles before use in a public place. The legislative inadvertence lies not in failing to address the question of the cover to be provided in respect of such accidents but in failing to include in the Act express words which would ensure that mandated cover continued.³⁷ In my view it is implicit in the Act that the reference to “motor vehicle” in sections 5(1), 31(1) and 33(1), in relation to a motor vehicle accident in a public place, includes reference to a vehicle for which registration is not required under the Transport Operations (Road Use Management - Vehicle Registration) Regulation 1999, until such time as that regulation requires registration of a vehicle before use in a public place.

That construction recognises the remedial nature of the 1996 amendments. It gives effect to the manifest purpose of the Legislation whilst not interfering with its operation and scheme. In the absence of such an implication the 1996 amendments, at worst, would be deprived of meaning or, at best, would be in a state of suspended animation until appropriate regulations were made under the Transport Operations (Road Use Management - Vehicle Registration) Regulation 1999. The implication has the added advantage of not affording the definition of “motor vehicle” an unduly influential role in the construction process at the expense of the words of the “substantive enactment”.³⁸

For these reasons I would dismiss the appeal with costs.

McMURDO J: The respondent, Mr Ravenscroft, was walking along a public pathway when he was struck by a motorcycle and injured. The motorcycle was unregistered and thereby uninsured. He sued the appellant, the Nominal Defendant, claiming that it was liable to indemnify the motorcyclist.

The facts were not in dispute. It was agreed that the motorcyclist was negligent and that Mr Ravenscroft’s damages should be $75,000. It was also agreed that the pathway was not a “road” but was a “public place”, as those terms are defined by the Transport Operations (Road Use Management) Act 1995 (Qld). The only question for the trial judge, and on this appeal, is whether it was an accident for which the Nominal Defendant is liable. The learned trial judge answered in favour of Mr Ravenscroft and gave him judgment in the agreed amount.

Any liability of the Nominal Defendant must derive from the Motor Accident Insurance Act 1994 (Qld) (“the Act”). Section 5 of the Act relevantly provides as follows:

“(1) This Act applies to personal injury caused by, through or in connection with a motor vehicle if, and only if, the injury –

(a)is a result of -

the driving of the motor vehicle; or

a collision, or action taken to avoid a collision, with the motor vehicle; or

the motor vehicle running out of control; or

a defect in the motor vehicle causing loss of control of the vehicle while it is being driven; and

is caused, wholly or partly, by a wrongful act or omission in respect of the motor vehicle by a person other than the injured person.

(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.”

The Act further provides, by s 20, that a person must not drive, or if the owner, permit someone else to drive, an uninsured motor vehicle on a road or in a public place. Section 20, in part, is as follows:

“(1) A person must not drive an uninsured motor vehicle on a road or in a public place.

Maximum penalty – 80 penalty units.

(2) A person who is the owner of an uninsured motor vehicle must not permit someone else to drive it on a road or in a public place.

Maximum penalty – 80 penalty units.”

Section 4 defines “road” and “public place” as having their respective meanings given by the Transport Operations (Road Use Management) Act 1995 (Qld). The term “uninsured motor vehicle” is defined by s 4 to mean “a motor vehicle for which there is no CTP insurance policy in force, other than a motor vehicle owned by a self‑insurer or a trailer”.

Section 31(1) provides that if the relevant motor vehicle is not insured, then in each case “the Nominal Defendant is the insurer.”³⁹ By s 33(1), the Nominal Defendant’s liability is “the same as if the Nominal Defendant had been, when the motor vehicle accident happened, the insurer under a CTP policy under this Act for the motor vehicle.”

These provisions, taken alone, would appear to make the Nominal Defendant clearly liable in the present case. The evident intention would be that the compulsory insurance scheme under the Act should benefit those who were injured by a vehicle being driven in a public place (or a road) but without the requisite insurance. The motorcycle was a motor vehicle in the ordinary sense of that term, it was uninsured because there was no CTP policy in force and the accident occurred in a public place.

However, the term “motor vehicle” is defined for the purposes of the Act. By s 4 it means “a vehicle for which registration is required under the Transport Operations (Road Use Management – Vehicle Registration) Regulation 1999” (“the Regulation”). It is the Regulation which provides for the registration of motor vehicles in Queensland. Section 10 of the Regulation provides that a person must not use, or permit to be used, on a road a vehicle that is not a registered vehicle save in certain circumstances. It is appropriate to set it out in full:

“10. A person must not use, or permit to be used, on a road a vehicle that is not a registered vehicle unless –

under section 13, the vehicle is being driven or towed to where it is to be inspected; or

the vehicle is being used under an unregistered vehicle permit under section 50; or

the vehicle is being used under the authority of a dealer plate under section 52; or

the use of the vehicle on the road is authorised under section 60; or

the vehicle is being used under an authorisation issued under section 62; or

the vehicle is being used under a permit issued under section 63; or

the vehicle is an exempt vehicle.

Maximum penalty – 80 penalty units.”

The effect of this provision is to give rise to an obligation to have a vehicle registered whenever it is used on a road. In Gideona v Nominal Defendant⁴⁰, Williams JA said:⁴¹

“The obligation to register a motor vehicle in Queensland has always been derived from a provision making it an offence to use a motor vehicle that is not registered on a road; there has never been any statutory provision positively defining when or in what circumstances a motor vehicle must be registered. That position has not changed though the relevant statutory provision has been amended or replaced over the years. The current relevant provision is s 10 of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 1999 …”

Similarly, Keane JA there said:⁴²

“The extent of registration required is established by what is necessary to avoid contravening the statutory prohibition on the use of a vehicle which has not been registered. Whether there has been a contravention of the statutory proscription of the use of an unregistered motor vehicle will necessarily depend on the circumstances of its use at the particular time at which a contravention is alleged to have occurred. If a contravention at that time cannot be made out, then neither can it be said that the vehicle was required to be registered because the requirement of registration is essentially an implication from the prohibition of use of an unregistered vehicle. If use at a particular time in particular circumstances would not involve a contravention of the prohibition on use of an unregistered vehicle, there is no relevant requirement for registration. To infer that other factors, such as prior use or present intention, have any bearing on the question, as this Court did in Kelly v Alford, amounts to a clear departure from the plain words of the applicable legislation.”

The Nominal Defendant argues then that a vehicle is required to be registered under the Regulation only whilst it is being used on a road, so that whenever it is not on a road, it would cease to be a vehicle “for which registration is required” under the Regulation and would not then be a “motor vehicle” as defined. Hence, when this accident occurred not on a road, but in a public place, the motorcycle was not a “motor vehicle” and the Act has no operation.

In Gideona, the plaintiff was a pillion passenger on a registered motorcycle when it collided with an unregistered motorcycle. He brought an action against each driver and the Nominal Defendant was joined as the alleged insurer of the unregistered vehicle. The accident did not occur on a road and although the question was not determined at trial, Keane JA said that he would have held that it did not occur either in a public place. The principal argument for the plaintiff was that because the unregistered vehicle was driven upon a road before going to where the accident occurred, it was required to be registered at the time when the accident occurred. That argument was supported by Kelly v Alford,⁴³ where Connolly J, with whom the other members of the Full Court agreed, said:⁴⁴

“If a vehicle is in constant use on public roads, it is a vehicle which is required to be registered for, permits apart, it cannot be so used lawfully without registration.”

The effect of Kelly v Alford was that a vehicle in regular use on roads was required to be registered between as well as during episodes of road use. The unanimous opinion in Gideona disagreed with that, and was that registration was required only when a vehicle was on a road. At the date of that accident, the relevant law requiring registration was the Transport Infrastructure (Roads) Regulation 1991 which was in effectively the same terms as the present provision,⁴⁵ as Williams JA noted⁴⁶. Section 4 of the Act then defined “motor vehicle” as a vehicle for which registration was required under the Transport Infrastructure (Roads) Regulation 1991. Keane JA, with the agreement of the Chief Justice and Williams JA, said:⁴⁷

“[28] In my opinion, the [unregistered motorcycle] was not required to be registered at the time the accident occurred. As a result it did not fall within the definition of ‘motor vehicle’ contained in s 4 of the Act. The Nominal Defendant, pursuant to s 31(1)(c) of the Act, is only deemed to be the insurer of an uninsured ‘motor vehicle’. It follows that the Nominal Defendant could not be liable under the Act in respect of the personal injuries suffered by the appellant.

[29] Having regard to this conclusion, it is unnecessary to consider whether the accident occurred in ‘a public place’. That is because the proscription upon use of unregistered vehicles in s 12 of the Transport Infrastructure (Roads) Regulation 1991 (and hence the implied requirement to register them) applied only to vehicles to be used upon ‘a road’. The language of the definition in s 4 of the Act is unambiguous in referring to the Transport Infrastructure (Roads) Regulation 1991 for the definition of the term ‘motor vehicle’ and these regulations do not proscribe use of an unregistered vehicle in ‘a public place’ distinct from a road. There can be no warrant for construing the terms of a penal provision more broadly than its language requires.”

According to that reasoning, it would follow that the Nominal Defendant should succeed in this appeal. Because this accident did not occur on a road, the motorcycle was not at that moment required to be registered under the Regulation and so at that moment it was not a motor vehicle as defined. The learned trial judge thought that Gideona was distinguishable because, he held, it concerned an accident on “private land” rather than upon a public place. Because in Gideona the place of the accident was not proved to be a public place, his Honour held that he was not bound by it to find in favour of the Nominal Defendant.

The difficulty in the Nominal Defendant’s argument is that it would give no effect to the references in the Act to a public place. Because a vehicle need not be registered when it is used or (if it be different) driven in a public place, it could never be, in that place, a “motor vehicle” as defined. It could be a motor vehicle only when on a road because only in that place is it required to be registered. So there could be no offence against s 20(1) by the driving in a public place of an “uninsured motor vehicle”, because there could be no “motor vehicle” anywhere but on a road, and a public place is defined to exclude a road. Nor could s 5(2) have any operation in relation to a public place, because there could be no such thing as an “uninsured motor vehicle” anywhere but on a road.

In the subsequent case of Gideona v Suncorp Metway Insurance Limited,⁴⁸ the Chief Justice had to consider the availability of insurance for the other motorcycle involved in Ms Gideona’s collision, the registered motorcycle. By then it was established that her accident had happened on somewhere other than a public place. Suncorp argued that because the accident happened at a place where its insured’s vehicle could be driven whilst unregistered, that registered motorcycle was not then and there required to be registered, with the result that it was not a “motor vehicle” under the Act and Suncorp was not liable.

Ms Gideona relied upon s 5(1). The Chief Justice concluded that “motor vehicle” in s 5(1) is not as it is defined by s 4, the context indicating otherwise.⁴⁹ The decision illustrates the difficulty in applying the definition of “motor vehicle” as it was interpreted in Gideona v Nominal Defendant.

The Nominal Defendant argues that the provisions about public places do have some potential operation, although they have no present effect. For that submission it is necessary to say something of the series of amendments by which the present terms of the Act have been reached.

Until 1996, the Act applied only to uninsured motor vehicles on roads. In 1996, the references to a public place were inserted in what is now s 5(2) and s 20(1) and at the same time a new offence provision, s 20(2), was inserted which referred to both roads and public places. As the learned trial judge described, the Explanatory Note and the Minister’s second reading speech confirmed the already plain legislative intention to extend the scope of the Nominal Defendant’s responsibility for uninsured vehicles to accidents occurring in public places. According to the original definition of “motor vehicle” in the Act, it was a “vehicle for which registration was required either under the Transport Infrastructure (Roads) Regulation 1991 or the Motor Vehicles Control Act 1975 ...”. The former required registration of vehicles used on roads and the latter required registration of vehicles driven in public places. The Motor Vehicles Control Act 1975 was repealed by the Transport Operations (Road Use Management) Act 1995, with effect from July 1998. Since then, there has been no law proscribing the driving of an unregistered vehicle in a public place. I accept, as the Nominal Defendant contends, that there is a power to provide such a law by a regulation made under the Transport Operations (Road Use Management) Act 1995. But no such regulation has been made. The Nominal Defendant’s argument is that these references to public places, within s 5 and s 20, exist in case there is enacted a law which expressly or impliedly requires the registration of vehicles driven in public places and in case that law is by an amendment to the Regulation. Consistently with that, the Nominal Defendant would say that this was the intention of the 1996 amendments which inserted these “public place” provisions, because by then the Transport Operations (Road Use Management) Act 1995 had been enacted, including its provision for the repeal of the Motor Control Act 1975. In other words, the 1996 amendments were intended to have only a potential operation, depending upon what happened, if anything, to the scope of the Transport Infrastructure (Roads) Regulation 1991. In my view, it is difficult to accept that this was the intention, in 1996, just as it is difficult to accept that there was a like intention in 2000 when the present definition was inserted.

At least without the judgment in Gideona v Nominal Defendant, I would interpret the definition of “motor vehicle” in s 4 differently. It is necessary to do so, if the language permits, in order to provide some purpose for the provisions relating to public places. And it is also preferable to interpret the definition so that it can be applied consistently and throughout the Act, rather than, for example, “motor vehicle” meaning one thing for s 5(1) and another for s 5(2).

On an alternative interpretation, the expression “for which registration is required” would distinguish between those vehicles for which there is a registration requirement when they are used on a road, and those for which there is not. For some motor vehicles, there is no registration requirement, and they are described in s 10 of the Regulation. For other vehicles, there is a requirement for registration, although that requirement is limited to the circumstance of use on a road. So the intended distinction within this definition is between different types of vehicles, rather than for the same vehicle, between different locations. Instead, the Act would make a vehicle’s location relevant through the terms of s 5 and s 20. To adopt such an interpretation of the definition would not amount to any revival of the reasoning in Kelly v Alford. Nor would it involve some broadening of the terms of the penal provision which is s 10 of the Regulation. The effect of s 10 would remain as it was described in Gideona v Nominal Defendant. And, if this interpretation of the definition were adopted then the difficulty which arose in Gideona v Suncorp Metway could be avoided: the defined meaning could be applied within s 5(1), as well as within s 5(2).

In my view, such an interpretation is preferable to that argued for the Nominal Defendant. It is not an interpretation by which the Nominal Defendant’s responsibility would be unduly extended, because the responsibility would be confined to accidents involving unregistered vehicles on roads or in public places. This was the intended result of s 5(2). Upon this interpretation, the result in Gideona v Nominal Defendant would have been no different. There the accident happened in a place which was not a public place, or at least which was not then proved to be a public place, so that whilst the unregistered motorcycle would have been a “motor vehicle”, the Act would not have applied to it and the Nominal Defendant would not have been liable. Unfortunately, the argument in Gideona v Nominal Defendant seems to have been limited to the correctness of Kelly v Alford and the problems revealed by the present appeal were not canvassed.

The difficulty with the Nominal Defendant’s argument extends beyond the provisions of the Act already mentioned. It would extend, for example, to s 31(1)(d), which provides that if personal injury is caused by, through or in connection with a motor vehicle, the Nominal Defendant is to be the insurer if the motor vehicle, or the insurer under its CTP insurance policy, cannot be identified. Counsel for the Nominal Defendant agreed that, consistently with his argument, an unidentified vehicle in a public place could not be a motor vehicle within s 31(1)(d). Yet consistently with Gideona v Suncorp Metway, a registered vehicle would have its CTP insurance if the accident occurred on a road, a private place or a public place. Consequently, upon the Nominal Defendant’s argument, there would not be the benefit of s 31(1)(d) if the accident was not on a road, and if, as would usually be the case, the unidentified vehicle could not be proved to have been registered.

Applying what is in my view the correct meaning of “motor vehicle”, which is a vehicle of a kind for which registration is required under the Regulation, this motorcycle was plainly a motor vehicle. It follows that it was an uninsured motor vehicle, and that the learned trial judge was correct to hold that the Nominal Defendant was liable.

I agree then that the appeal should be dismissed with costs.

Footnotes

¹ Per Keane JA at [28] of those reasons.

² At [8] of the reasons for judgment in Gideona v Nominal Defendant No 1.

³ Section 14B of the Acts Interpretation Act 1954, particularly 15B(3)(f).

⁴ [2006] 1 Qd R 31 at 33.

⁵ Ibid at 35.

⁶ s 21.

⁷ s 21(4).

⁸ s 23.

⁹ Transport Operations (Road Use Management) Act 1995, s 93(1).

¹⁰ [1960] 2 QB 384, at 395-396.

¹¹ [1952] AC 189 at p 191.

¹² (1972) 124 CLR 640 at 649.

¹³ (1972) 128 CLR 1 at 12.

¹⁴ At 12.

¹⁵ (1990) 169 CLR 214 at 242,3

¹⁶ (1991) 172 CLR 1 at 21- 22.

¹⁷ [1980] AC 74 at 105-107.

¹⁸ Lord Diplock’s statement of principle was also referred to with approval by McHugh J in Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 113, 116.

¹⁹ (1998) 196 CLR 53 at 81, 82.

²⁰ Bropho v Western Australia [1990] HCA 24*;* (1990) 171 CLR 1 at 20 approving Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421-424 per McHugh JA. See also Newcastle City Council v GIO General Ltd [1997] HCA 53*;* (1997) 191 CLR 85 at 109-110.

²¹ [1999] 46 NSWLR 681 at 686.

²² At 687.

²³ (1987) 11 NSWLR 402 at 422.

²⁴ (1988) 15 NSWLR 275.

²⁵ (1988) 15 NSWLR 292.

²⁶ (1995) 183 CLR 633 at 644.

²⁷ [2000] 1 WLR 586 at 592.

²⁸ (1999) 46 NSWLR 681.

²⁹ At 686, 687.

³⁰ At 690.

³¹ (2001) 51 NSWLR 736.

³² At 743.

³³ [2007] NZCA 363.

³⁴ [1983] NZLR 238.

³⁵ (1998) 196 CLR 53.

³⁶ At pp 60, 61.

³⁷ Cf Tokyo Mart Pty Ltd v Campbell [1988] 15 NSWLR 275 at 283.

³⁸ Cf Kelly v The Queen [2004] 78 ALJR 538 at 559, 560 and Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 79 ALJR 1079 at 1082.

³⁹ s 31(c), s 31(d)

⁴⁰ [2006] 1 Qd R 31

⁴¹ [2006] 1 Qd R 31 at 33

⁴² [2006] 1 Qd R 31 at 40-41

⁴³ [1988] 1 Qd R 404

⁴⁴ [1988] 1 Qd R 404 at 408

⁴⁵ s 10 of the Regulation

⁴⁶ [2006] 1 Qd R 31 at 33

⁴⁷ [2006] 1 Qd R 31 at 41

⁴⁸ [2006] 1 Qd R 327

⁴⁹ [2006] 1 Qd R 327 at 330

Footnotes

1. Per Keane JA at [28] of those reasons. ↩ ↩²

2. At [8] of the reasons for judgment in Gideona v Nominal Defendant No 1. ↩ ↩²

3. Section 14B of the Acts Interpretation Act 1954, particularly 15B(3)(f). ↩ ↩²

4. [2006] 1 Qd R 31 at 33. ↩ ↩²

5. Ibid at 35. ↩ ↩²

6. s 21. ↩ ↩²

7. s 21(4). ↩ ↩²

8. s 23. ↩ ↩²

9. Transport Operations (Road Use Management) Act 1995, s 93(1).