State of New South Wales v Nominal Defendant

Motor Accidents Compensation Act 1999 (NSW) s34; Supreme Court Act 1970 (NSW) s75A LEGISLATION CITED: Supreme Court Rules 1970 (NSW) Pt 40 r 9, r 13; Pt 51 Workers Compensation Act 1987 (NSW) s151Z(1)(d)

STATE OF NEW SOUTH WALES (Appellant) PARTIES: NOMINAL DEFENDANT (Respondent) STATE TRANSIT AUTHORITY OF NEW SOUTH WALES and ZURICH AUSTRALIAN INSURANCE LIMITED (Intervenors)

L KING, SC/ M J JENKINS (Appellant) COUNSEL: K P REWELL, SC/ M G GILBERT (Respondent) J GRACIE (Intervenors)

Rankin & Nathan (Appellant) SOLICITORS: TL Lawyers (Respondent) Keddies (Intervenors)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40980/03

BEAZLEY JA SANTOW JA STEIN AJA

23 JUNE 2005 STATE OF NEW SOUTH WALES v. NOMINAL DEFENDANT (State Transit Authority of New South Wales and Zurich Australian Insurance Limited intervening) Judgment 1 THE COURT: The Court delivered judgment in this matter on 17 September 2004 (Beazley and Santow JJA, Stein AJA). The facts giving rise to the claim subject of the appeal can be briefly stated. Ms Peterson was employed as a teacher by the appellant. She suffered injuries in a motor vehicle accident whilst driving to work and was paid compensation under the Workers' Compensation Act 1987 (NSW) (the WCA) by the appellant. She claimed that the accident was caused by a State Transit bus veering into her lane on a highway which, in turn, forced her to collide with a third vehicle in the adjacent inside lane. 2 The appellant brought proceedings under s151Z(1)(d) of the WCA seeking indemnity from the Nominal Defendant in respect of the payments of workers compensation, on the basis that the Nominal Defendant was statutorily liable for the negligence of the bus driver, the bus being an unidentified motor vehicle within the meaning of s34 of the Motor Accidents Compensation Act 1999 (NSW) ("MACA"). We shall refer to that contention compendiously as "the liability ground". It is important to record that neither the State Transit Authority of New South Wales ("STA") nor its insurer Zurich Australian Insurance Limited ("Zurich") were joined as parties by the plaintiffs. They seek now leave to intervene for the limited purpose set out in [8] below. 3 The trial judge found that the appellant had not established that the accident was due to the negligence of the driver of the bus. In that circumstance the appellant was not entitled to indemnity under s151Z(1)(d) of the WCA. Accordingly, her Honour entered a verdict for the respondent (the defendant in the action). Her honour did not consider the further contention of the Nominal Defendant, to the effect that the vehicle's identity could be established for the purposes of s34 MACA and that the identity of the owner was the STA ("the identity ground"). The plaintiff appealed. 4 On the appeal, the Court found that the trial judge erred in that she had inadequately understood the evidence and had acted upon her own perception of matters that did not accord with the evidence, in determining the liability ground. The Court found for the appellant on that ground of appeal, which it was necessary to determine having regard to the basis of her Honour's decision. The consequence that the Court considered followed from the appellant's success is considered below. 5 The respondent had filed a Notice of Contention concerning the identity ground in which it claimed that it had no liability in any event, as the STA bus, on which the Court's finding had caused the accident, was not an "unidentified motor vehicle" within the meaning of s34 of the Motor Accidents Compensation Act. The Court upheld that Contention. The Court then reasoned that as negligence in the bus driver had been established, the matter should be remitted to the District Court for retrial on the basis that the STA should be substituted as the defendant and that its liability for the negligence of the bus driver had been established. The Court did not, however, make a formal Order for the substitution of the STA. The Court observed that as there were other questions which remained outstanding, it was necessary to order a new trial between the appellant and the STA, as the proper defendant. 6 An appeal to this Court is against the Orders or judgment of the court below: see s75A Supreme Court Act 1970 (NSW) and Pt 51 Supreme Court Rules 1970 (NSW). An appeal is not brought against the reasons of the trial judge as such. Rather, the reasons are the basis for determining whether there is any error such that the orders made by the trial judge should be set aside or varied. However, if a respondent wishes to uphold the Orders made by the trial judge but on a basis not found in the reasons, it does so by filing a Notice of Contention. If a Notice of Contention is upheld, the appeal fails for the very reason that the orders appealed against are not disturbed. 7 In this case, a verdict was entered for the respondent by the trial judge. Having found that the Notice of Contention succeeded and the respondent was not a proper defendant in the matter, the result that should have followed was that the verdict for the defendant remained the appropriate Order in the proceedings. That being so, the Court should have dismissed the appeal on the ground stated in the respondent's Notice of Contention, with the consequence that her Honour's order on liability remains undisturbed. This Court did not do so and made various Orders including that the matter be remitted for rehearing. However, for the reasons already explained, there was nothing to remit. 8 The error in the Court's Orders was brought to the Court's attention. By Notice of Motion, the STA and its insurer Zurich sought leave to intervene for the limited purpose of having Orders made as follows: 1. The appeal be allowed. 2. The judgment of her Honour Judge English be set aside.

The first order proposed by the STA and Zurich is not correct for the reasons we have given. 9 This Court has power to review its orders. See Pt 40 r 9 SCR. Strictly, no formal Notice of Motion has been filed by a party seeking an Order that the Court do so as required by Pt 40 r 9. However, the respondent has formally sought that Order in written submissions to the Court dated 26 October 2004. Given the Court's powers under Pt 1 r 13 SCR, the application made in the written submissions is sufficient to enliven the Court's power to set aside its Orders. As the Court's Orders were erroneous, they need to be and should be corrected, in the way we have foreshadowed in [7] above. 10 That leaves the question of costs discussed below and variations to the judgment under the slip rule and in consequence of the changed orders.

COSTS: Orders 4 and 5 11 The respondent contended that because it was never capable of dispute that all buses owned and operated by the STA in February 1997 were insured by the same Compulsory Third Party insurer, namely Zurich, such that a simple enquiry would immediately have clarified that position, but given that the respondent informed the appellant the proceedings should be brought against the STA on 1 February 2001, therefore the whole of the costs should be paid both in the court below and on appeal, by the appellant. The respondent emphasised that it was wholly successful in regard to the Notice of Contention. 12 To this the appellant responded by describing what it referred to as "the invariable practice" until this Court ordained its departure. This it said was to sue the Nominal Defendant whenever a vehicle could not be identified exactly so as to pick it out from every other vehicle. 13 In all the circumstances, we consider that the proper disposition of the costs orders, taking into account now the submissions made by the appellant and respondent, to which the intervenors make no further submission, is that the costs should be apportioned so that the respondent obtains any costs attributable to the Notice of Contention whilst the appellant receives the costs otherwise of the appeal and otherwise in the District Court below. 14 As the STA and its insurers have not sought costs on their Motion, and as the error relates to the Court's proposed orders on the appeal, the appropriate Orders on that motion are: Notice of Motion dismissed with no order as to costs.

VARIATIONS TO THE JUDGMENT 15 There are three corrections required to be made to the judgment, the first two agreed under the slip rule, the third to give effect to the foregoing: (1) In paragraph [9] "appellant" be replaced by "respondent"; (2) In paragraph [55] "State" be replaced by "the State Transit Authority of New South Wales"; (3) Delete paragraph [72].

REVISED ORDERS: 16 The Court makes the following Orders: (1) Vacate the Orders made 17 September 2004. (2) The appeal is dismissed. (3) The respondent to pay the costs of the appeal and in the District Court below, save that (a) any costs attributable to the ground stated in the Notice of Contention shall be paid by the appellant, and (b) Notice of Motion of the State Transit Authority of New South Wales and Zurich Australian Insurance Limited be dismissed with no order as to costs. (4) The judgment shall be varied as follows: (a) In paragraph [9] "appellant" be replaced by "respondent"; (b) In paragraph [55] "State" be replaced by the State Transit Authority of New South Wales"; (c) Delete paragraph [72].

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