Goryl v Greyhound Australia Pty Limited & Anor; Lloyd v Greyhound Australia Pty Limited

[1993] HCATrans 45

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B61 of 1992

B e t w e e n -

MARGARET ROSE GORYL

Applicant

and

GREYHOUND AUSTRALIA PTY LIMITED

First Respondent

SUNCORP INSURANCE AND FINANCE

Second Respondent

Office of the Registry

Brisbane No B6 of 1993

B e t w e e n -

KAREN ANN LLOYD

Applicant

Goryl	1	5/3/93
BRENNAN ACJ GAUDRON J McHUGH J

and

GREYHOUND AUSTRALIA PTY LIMITED

First Respondent

SUNCORP INSURANCE AND FINANCE

Second Respondent

Applications for removal

pursuant to section 40 of the

Judiciary Act 1903

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 5 MARCH 1993, AT 10.19 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC: In these matters, if the Court

pleases, I appear for the applicant, with my

learned friend, MR P.J. HAYES. (instructed by

David Prior)

MR W. SOFRONOFF, QC: If the Court pleases, I appear with my

learned friend, MR P.L. O'SHEA, for both

respondents in both matters. (instructed by

Quinlan Millar & Treston)

BRENNAN ACJ:  We can hear the second matter at the same

time, I take it, Mr Bennett.

MR BENNETT: Yes, Your Honour. They are identical, for

present purposes.

BRENNAN ACJ:  We will take Lloyd v Greyhound Australia at

the same time then.

MR BENNETT: If Your Honours please. This is a short

constitutional point which arises in a motion in

the district court in Queensland. Your Honours

recall that after Breavington v Godleman the lex

loci delicti commissi was the made relevant law in

relation to measure of damages.

BRENNAN ACJ: That is a question which is presently pending

in the matter of Stevens v Head, Mr Bennett.

MR BENNETT:  Yes, but, Your Honour, that does not affect

this question. That really is the background in

which the legislation was enacted. What the

legislation does is to say that if a Queensland

resident is injured in another State and in that

State there would be a lower measure of damages

then, in effect, notwithstanding the Breavington

Goryl 5/3/93

rule, the person is entitled to recover the full

Queensland damages against the negligent defendant.

That section does not apply and does not confer a

benefit on a person who is not a resident of

Queensland.

MR BENNETT:	In the present case the applicants were both passengers on a Greyhound bus from Brisbane to
Sydney, they bought tickets in Brisbane, they are
injured in New South Wales, it is alleged due to the negligence of the bus driver, and they sue in
Queensland where they bought their tickets, where
the bus company operates and they are met with a
defence that because of this section they can only recover New South Wales damages, not Queensland
damages.  The motor vehicle, I should say, the bus
was registered in Queensland.  And, we submit, that
falls squarely within what was decided in Street's
case. There were some particular passages in that
case which refer to the - - -
BRENNAN ACJ:	Mr Bennett, what is the proposition, that your

clients are entitled to damages assessed as under

sections 16, 17, 18 and 19?

MR BENNETT: Yes, Your Honour, because a privilege has been

conferred upon Queensland residents, which is

denied to residents of other States who would

otherwise have the same right of action in

Queensland.

BRENNAN ACJ:  So what is the consequence in constitutional

terms?

MR BENNETT: In constitutional terms, Your Honour, there has

been a discrimination, within the meaning of

section 117, against a subject of the Queen

resident of another State, on the basis of that

resident and being different to the situation which

she would be in if she were a resident of

Queensland.

BRENNAN ACJ:  You are not seeking to strike down the

validity of the relevant sections?

MR BENNETT:  So much of them as impose a condition that the

person relying on them be a resident of Queensland.

If one takes out the condition which offends the

constitutional provision, the section remains as

conferring the privilege universally.

GAUDRON J:  So what provision is it that you say section 117

would take out?

MR BENNETT:	Your Honour, in section 20 - do Your Honours have section 20 of the Motor Vehicles Insurance
Act?

Goryl 3 5/3/93

BRENNAN ACJ: Yes.

MR BENNETT:  Your Honours see:

No person is entitled to recover by action under the law of Queensland, by way of damages for accidental bodily injury (fatal or non-

fatal) to any person caused by ..... motor

vehicle an amount greater than that which he

might have recovered by action or other

process under the law of the State or

Territory of the Commonwealth in which the

injured person has or had ..... his principal

place of residence -

It is really that whole section.

GAUDRON J: Yes, and that applies whether or not the

accident was in Queensland?

MR BENNETT: Well, it would be meaningless in relation to an

accident in Queensland, because in relation to an

accident in Queensland, the person would be

entitled to recover in any event the amount you

could recover under the law of Queensland. So it

would not have any effect if the accident occurs in

Queensland.

McHUGH J:  Does it mean that if you have an accident in

Victoria that a Victorian who happened to go to

Queensland and commence an action there, if you

could get the defendant into the Queensland

jurisdiction, would be entitled to rely on

section 117?

MR BENNETT:	Yes, Your Honour.
GAUDRON J:	I do not understand why it does not apply to a

Queensland accident?

MR BENNETT:  Because - oh, I see, with an interstate person

having a Queensland

GAUDRON J: Yes. It seems to apply to all non-

Queenslanders, regardless of the place of the

accident.

MR BENNETT:  Your Honour is correct, with respect; it goes

further than I was putting with the discrimination,

because it has the effect that if a New South Wales

resident is injured in an accident in Queensland,

the New South Wales resident recovers less damages

than a Queensland resident would recover. That

particular consequence does not arise in this case,
but it illustrates the width of the discrimination

which the section imposes.

Goryl 5/3/93

McHUGH J: Section 117 does not invalidate anything, does

it? It just simply removes a disability.

MR BENNETT:  Yes, Your Honour, yes, and that is the

disability that is removed. And it is also

BRENNAN ACJ:  So what you say, Mr Bennett, I take it, is

that paragraph 16(b) is the paragraph which section

117 sterilizes?

MR BENNETT: It sterilizes that and section 20, Your Honour, and it may also, although it does not arise in this

case, sterilize paragraph 17(2)(b) in cases

involving the nominal defendant; that does not

arise in this case.

BRENNAN ACJ: Yes. Well now, you have seen the outline of

argument of your opponents, I take it, Mr Bennett?

MR BENNETT:  Yes. I would like to just say one or two

things quickly about that, Your Honours. In

relation to the first matter, we are not concerned

with the statutory cause of action.	Our claim is
against the insured, against Greyhound.	The

insurer has elected under a local procedure to be

added, and under the statute the insurer is also

liable for the amount for which Greyhound would be

liable. But, in my respectful submission, that

does not affect the argument at all. The primary

argument relates to our claim against Greyhound

which is a simple common law claim for damages, not

a statutory claim at all, and all the section does

is deal with the measure of damages.

Your Honours, in relation to paragraph 4,

"subjects of the Queen", I am instructed that both

plaintiffs are Australian citizens and if that is a

problem with the Court we would respectfully submit

that the appropriate order is to make the removal

conditional on us filing within seven days

affidavits confirming that fact. It is highly

likely to be controversial.

In relation to paragraph 5, we submit that that is an inconvenient course suggested there,

that the trial procedure and the matter come up

after the trial. It is inconvenient for a number

of reasons: the first is these are district court

claims for $40,000, that being the limit or the

amount sued for in the claim. It may well be that

the claims are not worth bringing if the New South

Wales Act applies and limits damages for

non-economic loss. So it is important to know

that. It is important, of course, from the point

of view of settlement and compromise, and it is

important for general reasons.

Goryl 5/3/93

Your Honours, I am instructed that an inquiry

of the Crown Solicitor has revealed that there have
been eight notices under section 78B in similar

cases and that all have been settled. And one

wonders, Your Honours, why the insurer is so

anxious to prevent this point being taken in this

Court, and it may well be that the effect of a

refusal of a removal in this case is that, in many

more cases, insurers would be able to settle cases
of a like type on the basis of the existing
provisions in Queensland before the matter gets to
the Court, and the Court has an opportunity to

declare them ineffective under section 117.

BRENNAN ACJ:  Mr Bennett, why is it necessary to remove two

matters instead of one?

MR BENNETT: It is not, Your Honour. It is convenient, but

I suppose one advantage is that if anything happens

to one of the actions along the way the other is

still there, it provides a back-up, if one likes.

BRENNAN ACJ: It also provides an incentive for excessive

photocopying.

MR BENNETT:	Your Honour, I suppose that can be met by removing one and standing the other application
over generally to achieve the same result.

Your Honours, the paragraph 6, we would

submit, there is no evidence which would be

required on the constitutional point, subject to

proving subjects of the Queen. The question of

expenditure of compensation and insurance moneys,

and those policy questions, can be determined

without any additional evidence. They are obvious

matters which flow under the statute.

It is not a hypothetical basis.

Theoretically, of course, negligence is in issue,

which both plaintiffs were passengers, and it is	but this is after all a one vehicle bus crash in	unlikely to be hypothetical in any real sense.	I
do not know if Your Honours wish me to take

Your Honours to the passages in Street's case which

deal with privilage as opposed to disability, but

the passage -

BRENNAN ACJ:  I do not think we need trouble you on that,

Mr Bennett.

MR BENNETT: No. For those reasons, Your Honours, it is my

respectful submission that the orders for removal

should be made.

BRENNAN ACJ: Yes, thank you. Yes, Mr Sofronoff?

Goryl 6 5/3/93

MR SOFRONOFF:	Your Honours, whether section 20 applies or not, damages in the current state of the law would
have to be assessed according to the
New South Wales measure. That is because, if
section 20 applies, then that is what the section
requires to be done.

If section 20 is inapplicable to these

plaintiffs, then the common law, Breavington

v Godleman says that is what has to be done. To

alter that, one of two things would have to happen.

Either Breavington v Godleman would have to be re-

would have to await the result of Stevens v Head.	argued in this matter, or alternatively this matter not section 20 applies, the plaintiffs' damages
would still be measured according to the
New South Wales standard.

Could I take Your Honours then to section 16

and to our submission that section 16 involves a

statutory cause of action that has not been

pleaded. Your Honours would see that although a

contract of insurance is usually understood to be a

contract of indemnity only, and that is the

position under the Motor Vehicles Insurance Act

generally, section 16 creates a fresh obligation

upon the licensed insurer not to indemnify against

the potential claim for damages, but to pay

compensation for accidental bodily injury to a

person, in certain circumstances.

That distinction between an obligation to pay

compensation and a liability to indemnify against a

liability to damages in an action, is reflected in

the other section, section 19, which provides for

the quantum of damages or compensation.

Your Honours will see in the beginning words of

that section:

The amount to which a claimant is entitled upon a claim for damages or compensation -

But, I pause there, Your Honours. Section 17

speaks of a claim for damages, section 16 speaks

about liability in the insurer to pay compensation.

Section 19(a) says:

where the claimant is not entitled to recover

damages or compensation -

again reflecting the possibility that in other

States there may be no common law right to claim

damages, but instead a statutory right to claim

compensation. And in the final words of

subparagraph (a):

Goryl 7 5/3/93

the amount that the claimant could recover by

way of damages by action under the law of

Queensland, had the accident occurred in
Queensland.

The distinction appears in each material part of 19(a). It appears in 19(b) as well in a similar way, and it appears also in 20 in the words at the

end of the section:

by way of damages or compensation.

When one then goes back to section 16 the liability of the licensed insurer emerges, in our submission,

clearly to be one not to indemnify against a

liability for damages measured at a higher rate,

but a direct liability to pay compensation to the

person affected. In other words, the insurer would

have to be a party to the action, and the statutory

cause of action would have to be pleaded against

the insurer.

GAUDRON J: But does not section 20 bear on the action for

damages?

MR SOFRONOFF:  Yes, it does, Your Honour.

GAUDRON J: Yes, and that means on your argument that there

may be no issue involved as to sections 16, 17, 18

and 19, but there is still one with respect to

section 20.

MR SOFRONOFF: Yes, but not one that would have any effect

in this case unless Breavington v Godleman were

overturned.

BRENNAN ACJ:  Or the matters were stood over until after the

judgment in Stevens v Head and it was then found

that the problem was a live one under section 20.

MR SOFRONOFF:  Then there would be an issue.

BRENNAN ACJ: Yes.

MR SOFRONOFF: Section 20 is raised by us in our defence.

Sections 16 and 19, if our submission is accepted

that it creates a fresh liability in the insurer

itself, does not arise in this action. That can be

changed. They can amend their pleading to change

that, but they have not done so. So if one asks

today, "What is the cause or part of a cause

involving the Constitution?", then one can look at

section 20 and say, "Well, that is part of the

cause but it does not lead anywhere at the moment."

And if one asks, "Well, does any part of this cause

involve the Constitution any further?", it does not

Goryl 8 5/3/93

because sections 16 and 19 are not at issue in this

action yet.

McHUGH J: That depends on how you read section 16. I must

say I find difficulty with your submission that it

creates a statutory cause of action.	Where does
the negligence come in?	Does the plaintiff not
have to prove negligence?

MR SOFRONOFF: Yes, Your Honour, by virtue of

subparagraph (c). So what the plaintiff has to

show is, firstly, he sues the licensed insurer, he

proves that he was the occupant of the car, he

proves that he lives in Queensland and he proves

that had the accident occurred in Queensland, there

would have been liability for damages - negligence.

But Your Honours will see that it is not simply a

case of liability for negligence, because the

liability of the insurer to pay compensation is

limited to persons who are occupants of the

vehicle; not pedestrians, for example.

McHUGH J: It talks about the obligation of an insurer under

a contract of insurance. It does not seem to

provide much of a foundation for saying that a
plaintiff has got a direct right of action against

the insurer.

MR SOFRONOFF:  Your Honour, the obligation under the

contract of insurance that arises is one not to

indemnify the insured person against any liability

to pay compensation, but to pay compensation to any

person caused by negligence. So it is a direct

liability to pay to the person affected.

Section 19, Your Honours, reflects that, because:

The amount to which a claimant is entitled

upon a claim for damages or compensation under

section 16 -

So the claim that the claimant makes is one under

section 16, not the original claim for damages

against the -

GAUDRON J: It depends how you treat the disjunctive "or" in

section 19. You do not necessarily have to read "under section 16 or 17" as bearing upon a claim for damages.

MR SOFRONOFF:  Your Honour, if one compares section 17 which

deals with claims against the nominal defendant in

similar circumstances, it refers to "a claim for

damages for such injury", because in the usual way

one sues the nominal defendant directly in

negligence as though the nominal defendant were

itself liable.

Goryl 9 5/3/93

McHUGH J: But 17 tells heavily against your argument, does

it not, because 17 expressly gives a right of

action against the nominal defendant.	16 is silent
on that.	You read it in by implication.

MR SOFRONOFF:  No, Your Honour, section 17, in our

submission, reflects the current state of the law,

that one now sues the nominal defendant in damages

in the usual sort of case. Section 17 then imposes
an additional liability in the same action.
Section 16, however, could have said:

The obligation of the Office or a licensed insurer under a contract of insurance made -

and so on, "includes an obligation to indemnify for

compensation to the Queensland level of damages",

or it could have said, "A defendant in such an

action as defined shall be liable to pay the

Queensland measure of damages and, moreover, the

insurer shall be liable to indemnify the insured

person", but it does not.

BRENNAN ACJ: Section 16 refers to the obligation as being

included in an obligation. "The obligation of the

office or the licensed insurer" is the obligation

under section 4A, is it not?

MR SOFRONOFF:  Yes.

BRENNAN ACJ: That is where it is not possible to serve, and

so forth. Then there is a right, if I recollect

correctly, under the regulations, is it, to proceed

to execute a judgment directly against a licensed

insurer in the event of non-payment.

MR SOFRONOFF: Sorry, I cannot recollect that, Your Honour.

There is a limited right of direct action against the insurer, or recovery against the insurer.

BRENNAN ACJ: Yes, but that is, as I recollect the

provisions of the Act, that right directly against
the insurer was a right which could be exercised in

the first instance in the course of the action, if

you were not able to serve the defendant. And

then, if the defendant did not pay, was exercisable

directly against the insurer by way of execution.

MR SOFRONOFF: That is regulation 11, Your Honour.

BRENNAN ACJ: Regulation 11, that is right. Now, is not

section 16, as it were, somewhat elliptically

endeavouring to point out that the obligation which

is otherwise enforceable under the Act against an

insurer, whether under section 4A or under

regulation 11, is an obligation which extends in

the manner which section 16 provides. And then if

Goryl 10 5/3/93

you happen to elect to be a defendant as an insurer

there is another provision in the Act, if my

recollection serves me correctly, which allows the

judgment to pass directly against the defendant by

election.

MR SOFRONOFF:  Yes, and if that is so, Your Honour, then in

our submission it reinforces the point that we make

because if one looks at section 4A one has, in the
first instance an action for damages, the usual

common law action for damages against a defendant.

But if one has difficulties, then section 4A says

well then you can have an action directly against

the insurer. So you sue the insurer directly by

virtue of a statutory cause of action that reflects

the existence of a common law action for damages

but is not the same thing.

Equally, in our submission, section 16

reflects the existence of a cause of action in

negligence because one would have to prove that as

a necessary step, but it is not the same thing.

BRENNAN ACJ:  I should think that this Act would benefit

considerably by a total revision. People have been

saying that for a long time past. It may simply be

that the problem that you a advert to is one which

needs to be considered in the course of, and in the

context of, the challenge which is being made to

it. It may not be possible for us on this

application to determine the true and proper

construction of the Act.

MR SOFRONOFF: Perhaps not, Your Honours, and we do not

press Your Honours to make that determination. But

we submit that in respect of this issue, at worst

for us, the argument for invalidity or

inapplicability cannot be said to be clear, strong

and short. The argument is an involved one that

will turn upon perhaps a pleading point, and if at

the end of the day the respondent's submissions are	accepted, then it will all have been for nought and
there will have been a delay in the action for
nought.

Could I refer Your Honours in that respect to

our submission in respect of Street's case. It

cannot be said, we submit, that it is quite clear

cut that these sections and each of them are

invalid. Could I leave aside section 20 for the

moment because that might be slightly different.

But sections 16 and 19 relate to moneys that

have been collected by way of insurance upon

vehicles registered in Queensland. So one might think that akin to welfare payments collected or allocated out of tax moneys, here the legislature

Goryl 11 5/3/93

has said: Queenslanders on the whole register

their vehicles in Queensland and insure their

vehicles in Queensland with Queensland licensed

insurers. That creates a pool of money, mostly

contributed by Queenslanders; out of State

residents ought not be entitled in general to take

their share of that money to which they have made

no contribution. Now, we would submit that that

sort of an argument is one that is open, it is

certainly an argument that we would press upon the

hearing of this matter before the Court, if and

when that ultimately happens.

BRENNAN ACJ: That in itself is a critical question because

it raises not only matters of compensation under

the Motor Vehicles Insurance Acts, it raises
questions of whether residents of Tweed Heads are

entitled to get in to the Southport Hospital.

MR SOFRONOFF:  Why is that so, Your Honour?

BRENNAN ACJ: Well, if Queensland taxpayers' money is being

used to fund the Southport hospital, can the Tweed

Heads residents seek admission there?

MR SOFRONOFF:  I do not know of any law that would prevent

them.

BRENNAN ACJ: Well, put it another way. Is it within the

constitutional competence of the Queensland

parliament to prevent them?

MR SOFRONOFF:  We would submit it is, consistently with some

of the remarks that were made in Street's case.

Could I give Your Honour an example of what I mean

by that? In Street's case the Court was concerned

to look, as an aside, really, upon the limits of

section 117 and at page 528, Justice Deane, at the

foot of the page, six lines from the foot, in

dealing with this question of limitation of

section 117's operation: 

Again, State financial assistance to a

particular class of its residents (eg a rental

subsidy to disadvantaged tenants) could place

an ineligible visitor who was resident (and a

tenant) in another State at a comparable

disadvantage if that other State provided no

such subsidy.  The disadvantage would,

however, not flow from the subjection of the

non-resident to a disability or

discrimination. It would flow naturally from

the nature of the subsidy and the scope of

State powers and responsibility under the
constitutional division of governmental
authority.

Goryl 12 5/3/93

The same point emerges, Your Honours, at page 546,

in Justice Dawson's reasons, again towards the foot

of the page, about 10 lines up:

Another example is the right to participate in

a State welfare scheme, particularly one

financed by State taxes, where a residential

qualification is reasonable and its imposition

does nothing to impede the essential purpose

of the section.

And then His Honour goes on to deal with the point.

I will not read it to Your Honours, but could I

tell Your Honours that the same point emerges at

page 560 in Justice Toohey's reasons, at the top of

the page, and in Justice Gaudron's reasons, at

page 572, particularly towards the foot of the page

just above the paragraph ending on that page:

And the same may be true of a law conferring a

special benefit by virtue of membership of the

body politic constituting the State,

especially if that benefit is funded by taxes

levied against its members.

This is not a tax or welfare case, of course, but

it is a case where a pool of money has been

collected by the contribution of persons who, the
evidence might show, are mostly residents of the

State of Queensland, and the legislature has thought fit to reserve those funds largely to the

extent of the excess above a non-resident's

entitlement in his home State to the residents who

have contributed.

Section 20 is slightly different, and

Your Honours have heard our submissions on

section 20 and its relationship to Breavington v

Godleman and Stevens v Head.

Your Honours, we would submit that the

appropriate course is for the action to be heard to

trial. The trial judge can assess damages on both

bases, assuming that they are materially different.

They may well be different if the applicants do not

amend their plaints to claim damages in excess of

$40,000, because the New South Wales system kicks

in a large deduction below $40,000.	I think it
might be $50,000 now.	The limit of the district

court's jurisdiction is $200,000, not $40,000.

So if His Honour were to assess damages on the

Queensland basis in a sum at the high end of that

range, or towards the middle of that range - there

may be no material difference between the award in

Queensland and what would have been the award in

New South Wales, but if there is then His Honour

Goryl 13 5/3/93

can do that. Trial judges often assess damages on

different bases in order that appeals can be

effective if appeals are made. And if at the end

of the trial this issue remains a live one then the

matter can come to this Court. Your Honours, those

are our submissions.

BRENNAN ACJ:  Thank you, Mr Sofronoff. We will hear what

Mr Bennett has to say in reply.

MR BENNETT: First, in relation to section 19, we would

submit that that section is clearly one which

confers a benefit. It provides that:

The amount to which the claimant is entitled

upon a claim for damages ..... under

section 16 -

which is the section which extends the liability of

the insurer, in effect tops up the measure of

damages to the Queensland measure. If:

the claimant is not entitled to recover

damages ..... under -

another State, then one gets Queensland damages.

If:

the claimant is entitled ..... under the law of
a State ..... by reason of the occurrence in

that State ..... of the accident -

then any access has to be added. And, again, the

effects of section 20 or section 16(b), because

they both have it, is to deny that benefit to a New

South Wales resident.

My learned friend referred to this question of

the pool of insurance money but, of course, this is

an insurance fund, not merely for the benefit of

injured plaintiffs, it is also for the benefit of

insured defendants, and here one has an insured

defendant incorporated in Queensland, entering into

a contract in Queensland, receiving money in

Queensland from my clients, part of which no doubt is used to pay insurance, and then injured by a

breach of that contract which occurs in New South

Wales.

BRENNAN ACJ: But how do you make section 16 applicable

having regard to the present state of the

pleadings, Mr Bennett?

MR BENNETT: Well, Your Honour, the pleadings simply raise

section 20 against us.	The pleadings say, one, we
are a New South Wales resident in the defence.	The
defence of the insurer says, the plaintiff is a

Goryl 14 5/3/93

New South Wales resident and section 20 limits the

amount. It is that pleading which we seek to have

struck out.

GAUDRON J: So, is it the application to strike out the

pleading that you want removed or do you want the

whole clause removed?

MR BENNETT:  It is that part of the application to strike

out the pleading which relates to those two

sections. If Your Honours go to our notice of

motion, Your Honours will see it is so much of the
clause as involves that question, and that is, so much of the application to strike out the defence

as relates to the allegation of residents and

reliance on the Act.

BRENNAN ACJ:  The document I am looking at at the moment

seeks removal of so much as involves certain stated

questions, which are:

the consitutional validity of sections 16, 19

and 20 of the -

Act and:

The power of the Parliament of Queensland to legislate in the manner ..... of sections 16, 19

and 20 -

MR BENNETT:  Yes. It could be worded either way, one would

achieve exactly the same result.	The same portion
would be removed.

BRENNAN ACJ: But how is it that sections 16 and 19 are

involved in the action at present?

MR BENNETT:  Because the pleading which relies on section 20

assumes section 16 and 19, because it is section 16

and 19 which confer the right which section 20

takes away.

BRENNAN ACJ:  But section 20 is perfectly general, is it

not?

MR BENNETT: It is, Your Honour, and in the facts of this

case its relevance - but, Your Honour, in any

event, even if one does not rely on sections 16 and

19, one still has the Stevens v Head argument - but

the plaintiff can succeed in getting Queensland

damages either under the Stevens v Head argument or

under sections 16 and 19 from the insurer. In

either event, that right is taken away from her by,
in the one case, section 20; in the other case,

section 16(b), the relevant words of section 19 and

section 20, which separately - - -

Goryl 15 5/3/93

BRENNAN ACJ: Well you can understand that the right may be

affected by section 16, but has the right been

asserted? Mr Sofronoff's point is, you might have

been able to sue under section 16; you have not.

MR BENNETT: Well, Your Honour, the section 16 simply has an

effect. We do not need to plead it as such to be

able to rely on it; it is a section which simply

has a statutory effect once certain events occur in

an action. Your Honour, if that were the sole

problem, that is a pleading point which could be
cured by an amendment to the pleadings very easily,

because the facts are in a very narrow compass.

They are completely clear to both parties and if

the stumbling block in the way of this application

is that we have not said in our claims, "The

plaintiffs reply on sections 16 and 19 of the Motor

Vehicles Insurance Act against the defendant by

election.", if that is the sole point, that can be

added by amendment in 24 hours and it would not, in

any way, affect the action otherwise; it would

simply dispose of that pleading point. And that

ought not, in my respectful submission, to stand in

the way of a removal. And again, it can be made

conditional on our doing that.

BRENNAN ACJ: There seems to be every consideration in

favour of that amendment, Mr Bennett, if the matter

is to be removed, that is, if matters involving

sections 16 and 19 are to be removed.

MR BENNETT:  Your Honour, it will be done within two working

days. The other matter, Your Honours -

BRENNAN ACJ: That, of course, would entitle the respondent

to amend its defence.

MR BENNETT:  Yes, Your Honour, but presumably its amendment

would simply be, as a matter of course, raise the

matters they have already raised.	They would say,
"We are a New South Wales resident", and each of

the relevant references in 16, 19 and 20 take away

the rights thereby conferred.

BRENNAN ACJ: Yes.

MR BENNETT:  It is not very hard to predict what the

pleading would say, Your Honour.

GAUDRON J:  Where are you going to amend the pleadings?

MR BENNETT: In the district court, Your Honour.

GAUDRON J: That raises questions as to what could then be

removed and when it could be removed. Once it is

removed here there is nothing to amend in the

district court.

Goryl 16 5/3/93

MR BENNETT: Well, Your Honours, the convenient course might

be this, if Your Honours were so minded, and I

apologize that this has become necessary: to stand

the matter over, perhaps to be dealt with either on
the Adelaide video link next Friday, or in Hobart

the following week. The amendments can then be

made between now and then, and it will then just be

a matter of drafting the formal order and

Your Honours making it. It would not take more

than a minute or two of Your Honours' time to make

the formal order on that occasion.

BRENNAN ACJ:  Mr Bennett, the other course is perhaps to

remove the action into this Court so that on a

directions hearing which may be necessary in this

matter, whatever pleading amendments are necessary
are effected in this Court and the matter is placed

in an order which would make it ready for hearing.

MR BENNETT:  Your Honour, with respect, we would seek that

course.

BRENNAN ACJ: Well, that would involve you in amending your

present notice of motion for the removal of the

action. Do you seek to do that?

MR BENNETT: Yes, Your Honour.

BRENNAN ACJ:  Yes. We shall hear what Mr Sofronoff has to

say about that application.

MR BENNETT:  I take it Your Honours do not wish to hear me

on the matters in Street's case to which my learned

friend referred, because there are countervailing

passages in the other judgments.

BRENNAN ACJ:  I do not think it is necessary, Mr Bennett.

MR BENNETT: If Your Honours please.

MR SOFRONOFF:  Your Honours, we cannot oppose an application to amend the notice of motion as such, but the way

that we would envisage the pleadings proceeding

would be that a claim under sections 16 and 19

would be made in the plaint. We would then defend

on the footing that the claim is unavailable, the

plaintiffs not being residents of Queensland.

There would then, we would anticipate, be a reply

that section 117 precludes reliance upon that fact.

If the action were notionally to go to trial,

we would rely upon two things to support the

applicability of sections 16 and 19. The first

would be the terms of the statutes relating to the
registration of vehicles in Queensland, and the

matters that arise from the construction of those

statutes has been peculiarly Queensland-related

Goryl 17 5/3/93

matters, in accordance with the passages I read

from Street's case.

Secondly, we would, to the extent that the

registration statute did not demonstrate the source

of the moneys, wish to lead evidence that the

source of the moneys is so much sourced in

Queensland, to such a great extent, that the matter

provided for in section 16, the expenditure of
those moneys, is a matter that is properly within

the province of the Queensland parliament,

consistently with the dicta in Street's case.

Now, we oppose the change to the notice of

motion because that would preclude us from taking

that course. We would not be in a position to

argue, so far as the facts would help us, the case

on its merits in this Court.

BRENNAN ACJ:  Why not?

MR SOFRONOFF: Unless we were permitted to lead evidence

before Your Honours. If we were permitted to lead

evidence before Your Honours, then we would be.

BRENNAN ACJ: Well, then it depends upon the directions

hearing as to what course the proceeding would

take.

MR SOFRONOFF:  Yes, that is so, Your Honour.

BRENNAN ACJ: Yes, thank you, Mr Sofronoff. There will be

leave to the applicants in these matters to amend

the notice of motion, so as to seek a removal of
the actions into this Court. There will be an

order in the first matter that the actions be

removed into this Court, and in the second matter,

that the application should stand adjourned with

leave to renew the application if anything should

befall the fate of the first action.

In the case of the action removed into this

Court, that is Goryl v Greyhound Australia and

others, there will be a directions hearing at a

time and place to be appointed, for the purpose of

identifying the issues which are for determination

by a Full Bench of this Court, and for the

directions, generally, in the conduct of the action

including the amendment of the pleadings as they

presently stand.

AT 11.04 AM THE MATTER WAS ADJOURNED SINE DIE

Goryl 18 5/3/93