England v Sontrop - [1999] QDC 225

DISTRICT COURT OF QUEENSLAND

REGISTRY: BRISBANE
NUMBER: D2609 OF 1999

[England v Sontrop]

Plaintiff: MALCOLM JOHN ENGLAND

AND

Defendant: PETER MATTHEW SONTROP

JUDGMENT - McGILL D.C.J.

Judgment Delivered: 20 August 1999

Catchwords: CONFLICT OF LAWS - choice of law - torts - motor vehicle accident in Victoria - vehicle registered in Queensland - claim extinguished in Victoria - cannot sue in Queensland

NEGLIGENCE - motor vehicles - accident in Victoria - vehicle registered in Queensland - claim extinguished in Victoria - cannot sue in Queensland
Breavington v. Godleman (1988) 169 CLR 41 - applied
Wilson v. Nattrass (1995) 21 MVR 41 - followed
Thompson v. Hill (1995) 38 NSWLR 714 - followed
Gaddes v. Fennessy (1993) 15 Qld Lawyer Reps 87 - followed

Counsel for the Plaintiff: C. Heyworth-Smith

Counsel for the Defendant: K. Holyoak

Solicitors for the Plaintiff: Paul Clough

Solicitors for the Defendant: McInnes Wilson

Hearing Dates: 18 August 1999
DISTRICT COURT OF QUEENSLAND

REGISTRY: BRISBANE
NUMBER: D2609 OF 1999

Plaintiff: MALCOLM JOHN ENGLAND

AND

Defendant: PETER MATTHEW SONTROP

REASONS FOR JUDGMENT - McGILL D.C.J.

Delivered the 20^th day of August 1999

By a plaint filed 29 June 1999, the plaintiff claimed damages for personal injuries and other loss alleged to have been caused by the negligence of the defendant on the basis that, on 4 July 1996, a motor truck owned and driven by the defendant in which the plaintiff was riding as a passenger collided on the Midland Highway between Bonalla and Shepparton in Victoria with another vehicle, because of the negligence of the defendant. The plaint gives addresses in Queensland for both the plaintiff and the defendant. It is alleged that the defendant’s truck was insured under a policy of insurance issued in accordance with the Motor Vehicles Insurance Act 1936 at the relevant time, and that the defendant was an insured person under that Act at the relevant time.
On 3 August 1999 the defendant filed a conditional Notice of Intention to Defend alleging that this court has no jurisdiction to entertain the plaintiff’s claim against the defendant, and that the proceedings were irregular, pursuant to r.144. The defendant then applied under r.16 for an order that the proceedings be struck out for want of jurisdiction, or other orders. When the application came before me, there was a cross-application on the part of the plaintiff for leave to commence proceedings against the defendant and FAI General Insurance Co Ltd pursuant to s.39(5)(c) of the Motor Accident Insurance Act 1994, for FAI General Insurance Co Ltd to be joined as a defendant pursuant to r.69, and for leave to amend the Statement of Claim in accordance with a draft.

On the hearing of the application it was argued on behalf of the defendant that a claim in tort as pleaded was not justiciable in Queensland, and therefore was not within the jurisdiction of this court, so that it ought to be struck out. In the alternative, it was submitted that the action should be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading England v Sontrop

Details

AGLC: England v Sontrop [1999] QDC 225
Case: [1999] QDC 225
Decision Date: 20 August 1999

CaseChat Overview and Summary

Malcolm John England brought a claim against Peter Matthew Sontrop for damages resulting from a motor vehicle accident that occurred in Victoria. The defendant filed a conditional notice of intention to defend, arguing that the court lacked jurisdiction to entertain the plaintiff's claim and that the proceedings were irregular. The defendant subsequently applied for the proceedings to be struck out for lack of jurisdiction or, in the alternative, that the plaintiff's failure to give notice as required by s.37 of the Motor Accident Insurance Act 1994 should result in the proceedings being struck out. The plaintiff, on the other hand, cross-applied for leave to amend the statement of claim to include FAI General Insurance Co Ltd as a defendant. The court found that the plaintiff's claim was not justiciable in Queensland because it was extinguished under the substantive law of Victoria, which prohibits claims for damages resulting from transport accidents unless certain conditions are met. The court struck out the plaintiff's claim against the defendant and dismissed the plaintiff's cross-application. The plaintiff was ordered to pay the defendant's costs of the application and the proceeding.

The court found that the plaintiff's claim in tort was not justiciable in Queensland because it was extinguished by the substantive law of Victoria, which prohibits claims for damages resulting from transport accidents unless certain conditions are met. The court considered the test set out in Breavington v. Godleman (1988) 169 CLR 41, which requires that the claim arise out of circumstances that would have given rise to a cause of action if they had occurred within the forum, and that the circumstances of the occurrence give rise to a civil liability under the law of the place where the wrong occurred. The court found that the first condition was met, but the second condition was not because the plaintiff's claim was extinguished by s.93 of the Transport Accident Act 1986 of Victoria. The court held that this provision was a matter of substantive law and that it had extinguished the plaintiff's common law right of action for damages in Victoria. The court followed the decision of the Court of Appeal in Victoria in Wilson v. Nattrass (1995) 21 MVR 41, which held that s.93 had introduced substantive changes to the law in Victoria by abolishing the entitlement to sue for common law damages except as the Act later and contingently provided. The court also referred to the decision of the Supreme Court of New South Wales in Thompson v. Hill (1995) 38 NSWLR 714, which concluded that s.93 was a matter of substantive law and that the plaintiff could not sue in New South Wales. The court found that the plaintiff's claim was not justiciable in Queensland because it was extinguished by the substantive law of Victoria. The court struck out the plaintiff's claim against the defendant and dismissed the plaintiff's cross-application. The plaintiff was ordered to pay the defendant's costs of the application and the proceeding.

Orders