Transport Accident Commission v Vanbenthem [2002] VSC 398

5. On 23 August 1999 Peter Vanbenthem suffered serious injuries when he lost control of a motorcycle he was riding and struck a tree in an area known as "The Pines" located off Trade Park Drive, Tullamarine. The motorcycle was unregistered and, in its then form, unregistrable.

8. On 5 October 1999 Mr Vanbenthem sought compensation from the Transport Accident Commission ("the Commission") pursuant to the Transport Accident Act 1986. His application was rejected on 20 January 2000 on the ground that he had failed to furnish the Commission with information which it sought to enable it to determine whether his injuries were sustained in a transport accident as defined by s. 3(1) of that Act and that in any event, even if he was injured in a transport accident, the Commission was not liable to pay him compensation because he was driving an unregistered motor vehicle on private land at the time of the accident and was thus excluded from compensation by s. 41A of the Act.

11. Mr Vanbenthem sought a review of the Commission's decision in the Victorian Civil and Administrative Appeals Tribunal ("the Tribunal"). On 21 December 2001, the Tribunal set aside the Commission's determination not to pay compensation to Mr Vanbenthem and substituted a determination that it do so.

14. Section 148 of the Victorian Civil and Administrative Tribunal Act 1998, which confers a right upon disappointed litigants before the Tribunal to seek leave to appeal to this Court, provides that an application for leave to appeal must be made no later than twenty-eight days after the day upon which the order of the Tribunal is made. In this instance the Commission issued its originating motion seeking leave to appeal on 30 January 2002, some nine days out of time. By an amended originating motion filed on 26 February 2002 it sought an extension of time in which to seek leave to appeal the Tribunal's decision together with any necessary dispensation orders permitting this matter to be brought before a Judge rather than a Master of the Court. Affidavit material filed by the Commission explains its failure to issue its originating motion within time as being due to a misunderstanding by its legal advisers of the effect of certain Supreme Court Rules upon time limits imposed by statute.

17. Although counsel for Mr Vanbenthem, Mr G Nash, QC, did not concede that this Court should extend the time within which the Commission might have instituted its application for leave to appeal against the Tribunal's decision, it was agreed by both parties that the merits of the appeal should be determined. Having regard to the conclusion which I have reached in respect of the Commission's appeal (on the assumption that it is competent) it is unnecessary for me to consider further whether appropriate grounds exist for extending the time for the Commission to institute an application for leave to appeal in the circumstances where its failure to do so within time was the admitted default of its legal advisers. Accordingly, I shall formally extend the time within which the Commission might have brought it's application for leave to appeal the Tribunal's decision to 31 January 2002 without deciding the merits of that application. I shall also grant the Commission special leave pursuant to Rule 77.03(2)(b) of the Supreme Court Rules to bring this application before a Judge rather than before a Master as required by Rule 4.08 of Chapter II of the Rules. Thus the substantive merits of this appeal will be able to be determined on what is now, effectively, an application for leave to appeal treated as the hearing of the appeal itself.

20. Mr Vanbenthem's right to compensation under the Transport Accident Act 1986 depends upon his having been injured as a result of an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram.[2] The relevant legislative provisions which must be applied to determine whether an applicant for compensation was injured in circumstances which entitle him, prima facie at least, to compensation are set out in Lees. They are contained in the definition sections of the Transport Accident Act 1986 and the Road Safety Act 1986.[3] I shall not repeat them here.

23. The Tribunal (constituted differently from that which decided Lees) found that there was no serious dispute in this case as to the evidence. It found that the defendant's injuries arose directly from his riding of a motorcycle so that his entitlement to compensation depended largely upon whether the motorcycle was a motor vehicle within the definition of motor vehicle contained in s. 3(1) of the Road Safety Act 1986. It accepted that the technical mechanical portions of the definition of motor vehicle were satisfied in that the motorcycle was built to be propelled by a motor that formed part of it. It remained then to decide whether it was a vehicle that is "used or intended to be used" on a highway.

26. In answering this question in the affirmative the Tribunal made a number of findings of fact. Among them were the following:

* Prior to the accident Mr Vanbenthem had ridden the motorcycle on more than isolated occasions in the ordinary street system of Tullamarine. This had occurred on 7 or 8 occasions.

* Various people used The Pines area for motorcycle riding, albeit as trespassers, riding both registered and unregistered motorcycles.

* The motorcycle in question had been ridden by its owner, one Long, in The Pines area prior to the defendant's accident.

* The Pines area was part of Melbourne Airport owned by the Commonwealth and subject to a long term lease in favour of the then airport operator. It was fenced but the perimeter fencing was holed, inter alia, by people who wished to use and did use the area for motorcycle riding despite protestations from the lawful occupier who placed "No Trespassing" signs on the fence, patched the fence regularly and complained of trespassers to the local police.

33. The Tribunal applied the required definitions to the facts as found by it and concluded that The Pines area was a "road-related area" within the meaning of s. 3(1) of the Road Safety Act 1986 in that it was in fact "used by the public for driving, riding or parking motor vehicles". It follows that The Pines area was a highway within the relevant definition. Applying these conclusions the Tribunal found that the motorcycle was "used on a highway" namely, the ordinary street system of Tullamarine and The Pines area so as to cause it to qualify as a motor vehicle for the purpose of the definition of "transport accident" contained in s. 3(1) of the Transport Accident Act 1986.

36. In TAC v Lees I reached the conclusion that the application of the definition provisions of the Transport Accident Act 1986 and the Road Safety Act 1986 (in as much as they were incorporated by reference into the Transport Accident Act) involved the application of ordinary words used in their ordinary sense to established facts and that, accordingly, no question of law arose when the Tribunal reached the conclusion which it did in that case. I referred to and adopted the reasoning of the Full Federal Court in its qualification of the fifth proposition which it expounded in Collector of Customs v Pozzolanic Enterprises Pty Ltd[4]. The same reasoning, leading to the same conclusion, can be applied to this case. No question of law was involved when the Tribunal applied the facts it found to the applicable definitions and reached the conclusion that the defendant was injured in a transport accident, thus entitling him, at least prima facie, to compensation. A question of law would only have arisen if the Tribunal had had to engage in a construction exercise to expound the meaning of the applicable definitions. No such exercise was required to be undertaken on the applicable definitions, because, as I have already said, they employed ordinary words used in their ordinary sense.

39. I say "prima facie" because in this case, unlike Lees, the Commission rejected the defendant's claim for compensation not only on the ground that he did not suffer a transport accident but that if he did it was entitled to refuse his application on the basis that he was "... a person who was injured or dies as a result of a transport accident involving the driving of an unregistered motor vehicle or unregistered motor vehicles on private land". This curtailment of an applicant's right to compensation is found in s. 41A of the Transport Accident Act 1946.

42. For the purposes of s. 41A(1) private land is defined as follows:

"(2) In sub-section (1) - 'private land' means any land (whether publicly or privately owned) that - (a) is not a highway; and (b) members of the public may not enter or may not remain on without permission; 'unregistered motor vehicle' means a motor vehicle which has never been registered under Part 2 of the Road Safety Act 1986 or a corresponding law of another State or a Territory and in respect of which a transport accident charge was not paid at the time that the transport accident occurred."

46. In order to qualify as private land the area where the accident occurred must satisfy two criteria. It must not be a highway and members of the public must not be able to enter or remain on the land without permission. Both criteria must be fulfilled.

49. The definition of "highway" in s. 41A of the Transport Accident Act 1986 is the same definition as that applicable to s. 3(1). By the application of the relevant definition contained in the Road Safety Act 1986 as incorporated by reference into the Transport Accident Act 1986 the Tribunal had already found that The Pines area was a highway in that it was a "road-related area" within the meaning of the applicable definition. The Tribunal, accordingly, held that the plaintiff could not rely upon s. 41A of the Transport Accident Act 1986 to exclude the defendant from his entitlement to compensation.

52. Whilst it is possible that a question of law might be able to be raised out of the construction of paragraph (b) of the definition of private land contained in s. 41A(2) of the Transport Accident Act 1986 it certainly does not do so in this case. As I have already concluded that provided the Tribunal applies each of the applicable statutory definitions contained in s. 3(1) of the Road Safety Act 1986 in order to reach a conclusion as to whether a particular place is or is not a highway, no question of law arises, it follows that in consistently applying the definitions to reach the conclusion that The Pines area was a highway within the meaning of s. 41A of the Act the Tribunal committed no error of law.

55. Accordingly, I conclude that no question of law arises out of the plaintiff's attack on the Tribunal's decision in this case. It follows that the plaintiff should be refused leave to appeal the decision of the Tribunal establishing the defendant's right to compensation for the injuries he sustained in his accident on 23 August 1999.

(i) that pursuant to s. 148(5) Victorian Civil and Administrative Tribunal Act 1998 the time within which the plaintiff might have sought leave to appeal from a decision of the Victorian Civil and Administrative Tribunal given on 21 December 2001 be extended nunc pro tunc, to 31 January 2002;

(ii) that the plaintiff have special leave to bring its application for leave to appeal from a decision of the Victorian Civil and Administrative Tribunal given in proceeding No 2000/103616 on 21 December 2001 before a Judge pursuant to Rule 77.03(2)(b) of the Rules of the Supreme Court;

(iii) that the plaintiff's application for leave to appeal the decision of the Victorian Civil and Administrative Tribunal in proceeding No 2000/103616 given on 21 December 2001 be refused; and

(iv) that the plaintiff pay the defendant's costs to be taxed; such taxation taking into account that the hearing of the application for leave to appeal was treated as the hearing of the appeal itself.

[1] [2002] VSC 397.

[2] Sections 35 and 3(1) Transport Accident Act 1986.

[3] S. 3(1) Road Safety Act 1986.