Gideona v Nominal Defendant - [2005] QCA 261

SUPREME COURT OF QUEENSLAND

CITATION:

Gideona v Nominal Defendant [2005] QCA 261

PARTIES:

DANYELLE HANNA GIDEONA
(plaintiff/applicant/appellant)
v
NOMINAL DEFENDANT
(defendant/respondent)

FILE NO/S:

Appeal No 1235 of 2005
DC No 802 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)
General Civil Appeal

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

29 July 2005

DELIVERED AT:

Brisbane

HEARING DATE:

18 July 2005

JUDGES:

de Jersey CJ, Williams and Keane JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.   Application for leave to appeal granted

2.   Appeal dismissed

3.   The appellant is to pay the respondent's costs of the application for leave and of the appeal to be assessed on the standard basis

CATCHWORDS:

INSURANCE - THIRD-PARTY LIABILITY INSURANCE - MOTOR VEHICLES - COMPULSORY INSURANCE LEGISLATION - UNINSURED VEHICLES - QUEENSLAND - INTERPRETATION - where appellant suffered personal injuries as a result of an accident involving two motor cycles - where motor cycle that appellant was carrying the appellant as a passenger was covered by compulsory third-party insurance while other motor cycle was not - where the accident occurred on an off-road track on land owned by Queensland Rail - where appellant sued the drivers of both motor cycles for damages - where the Nominal Defendant was joined as a defendant on the basis that one of the motor cycles was uninsured - where learned primary judge held that the Nominal Defendant could not be liable to the appellant because the uninsured motor cycle was not a 'motor vehicle' for the purposes of the Motor Accident Insurance Act 1994 (Qld) - whether the approach to this question adopted in Kelly v Alford [1988] 1 Qd R 404 should be followed - whether the uninsured motor cycle was a 'motor vehicle' for the purposes of the Motor Accident Insurance Act 1994 (Qld)

INSURANCE - THIRD-PARTY LIABILITY INSURANCE - MOTOR VEHICLES - COMPULSORY INSURANCE LEGISLATION - UNINSURED VEHICLES - QUEENSLAND - USE OF VEHICLE ON PUBLIC OR PRIVATE LAND - where an accident involving two motor cycles occurred on an off-road track on land owned by Queensland Rail - where the site where the accident occurred could only be reached by crossing private land - whether the site where the accident occurred could be considered to be a 'public place'

Motor Accident Insurance Act 1994 (Qld), s 4, s 5, s 20, s 23, s 31(1)(c), s 33(1)

Motor Vehicles Control Act 1975 (Qld), s 4

Transport Infrastructure (Roads) Regulation 1991 (Qld), s 12, s 34, s 49(1)

Transport Operations (Road Use Management) Act 1995 (Qld)

Transport Operations (Road Use Management - Vehicle Registration) Regulation 1999 (Qld), s 10

Brunner v Eldar Trading Pty Ltd [1988] 1 Qd R 19, cited

Kelly v Alford [1988] 1 Qd R 404, disapproved

Lynch v Middleton [1979] Qd R 31, cited

Mason v The Nominal Defendant (Queensland) [1987] 2 Qd R 190, applied

Symonds v The Nominal Defendant (Queensland)

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 Gideona v Nominal Defendant

Details

AGLC: Gideona v Nominal Defendant [2005] QCA 261
Case: [2005] QCA 261
Decision Date: 29 July 2005

CaseChat Overview and Summary

Gideona, the appellant, sought damages from the drivers of two motor cycles following an accident on an off-road track on land owned by Queensland Rail. The motor cycle carrying the appellant was covered by compulsory third-party insurance, but the other was not. The Nominal Defendant was joined as a defendant on the basis that one of the motor cycles was uninsured. The primary judge held that the Nominal Defendant could not be liable because the uninsured motor cycle was not a 'motor vehicle' for the purposes of the Motor Accident Insurance Act 1994 (Qld). The court was required to decide whether the approach to this question adopted in Kelly v Alford [1988] 1 Qd R 404 should be followed, and whether the uninsured motor cycle was a 'motor vehicle' for the purposes of the Act.

The court considered the interpretation of 'motor vehicle' in the context of compulsory insurance legislation. The court disapproved the approach in Kelly v Alford, which held that the relevant provisions of the Act applied only to motor vehicles on public roads. The court held that the provisions of the Act applied to motor vehicles on both public and private land. The court found that the site where the accident occurred could be considered a 'public place' for the purposes of the Act because it was accessible to the public and could be reached by crossing private land. The court held that the uninsured motor cycle was a'motor vehicle' for the purposes of the Act, and the Nominal Defendant could be liable to the appellant.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the application for leave and of the appeal to be assessed on the standard basis. The court's decision clarified the interpretation of 'motor vehicle' in the context of compulsory insurance legislation and provided guidance for future cases involving uninsured vehicles on private land.

Orders

Orders of the court

1. Application for leave to appeal granted

2. Appeal dismissed

3. The appellant is to pay the respondent's costs of the application for leave and of the appeal to be assessed on the standard basis

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Gideona v Nominal Defendant [2005] QCA 261
PARTIES:	DANYELLE HANNA GIDEONA (plaintiff/applicant/appellant) v NOMINAL DEFENDANT (defendant/respondent)
FILE NO/S:	Appeal No 1235 of 2005 DC No 802 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil) General Civil Appeal
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	29 July 2005
DELIVERED AT:	Brisbane
HEARING DATE:	18 July 2005
JUDGES:	de Jersey CJ, Williams and Keane JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal granted 2. Appeal dismissed 3. The appellant is to pay the respondent's costs of the application for leave and of the appeal to be assessed on the standard basis
CATCHWORDS:	INSURANCE - THIRD-PARTY LIABILITY INSURANCE - MOTOR VEHICLES - COMPULSORY INSURANCE LEGISLATION - UNINSURED VEHICLES - QUEENSLAND - INTERPRETATION - where appellant suffered personal injuries as a result of an accident involving two motor cycles - where motor cycle that appellant was carrying the appellant as a passenger was covered by compulsory third-party insurance while other motor cycle was not - where the accident occurred on an off-road track on land owned by Queensland Rail - where appellant sued the drivers of both motor cycles for damages - where the Nominal Defendant was joined as a defendant on the basis that one of the motor cycles was uninsured - where learned primary judge held that the Nominal Defendant could not be liable to the appellant because the uninsured motor cycle was not a 'motor vehicle' for the purposes of the Motor Accident Insurance Act 1994 (Qld) - whether the approach to this question adopted in Kelly v Alford [1988] 1 Qd R 404 should be followed - whether the uninsured motor cycle was a 'motor vehicle' for the purposes of the Motor Accident Insurance Act 1994 (Qld) INSURANCE - THIRD-PARTY LIABILITY INSURANCE - MOTOR VEHICLES - COMPULSORY INSURANCE LEGISLATION - UNINSURED VEHICLES - QUEENSLAND - USE OF VEHICLE ON PUBLIC OR PRIVATE LAND - where an accident involving two motor cycles occurred on an off-road track on land owned by Queensland Rail - where the site where the accident occurred could only be reached by crossing private land - whether the site where the accident occurred could be considered to be a 'public place' Motor Accident Insurance Act 1994 (Qld), s 4, s 5, s 20, s 23, s 31(1)(c), s 33(1) Motor Vehicles Control Act 1975 (Qld), s 4 Transport Infrastructure (Roads) Regulation 1991 (Qld), s 12, s 34, s 49(1) Transport Operations (Road Use Management) Act 1995 (Qld) Transport Operations (Road Use Management - Vehicle Registration) Regulation 1999 (Qld), s 10 Brunner v Eldar Trading Pty Ltd [1988] 1 Qd R 19, cited Kelly v Alford [1988] 1 Qd R 404, disapproved Lynch v Middleton [1979] Qd R 31, cited Mason v The Nominal Defendant (Queensland) [1987] 2 Qd R 190, applied Symonds v The Nominal Defendant (Queensland)