Goryl v Greyhound Australia Pty Ltd

[1994] HCA 18

HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ

GORYL v GREYHOUND AUSTRALIA PTY. LIMITED AND ANOTHER

(1994) 179 CLR 463

20 April 1994

Constitutional Law (Cth)

Constitutional Law (Cth) Resident Of one State subject to disability or discrimination in another State on ground of residence—Law limiting damages recoverable by non-resident to those recoverable in that person's place of residence—The Constitution (62 and 63 Vict. c. 12), ss. 117, 118—Motor Vehicles Insurance Act 1936 (Q.), ss. 16, 19, 20.

Orders

Answer the questions in the case stated as follows.
1. (a) Is s.20 of the Motor Vehicles Insurance Act 1936 (Q.) applicable to the (plaintiff's) claim against the first (defendant)?
Answer: In terms, yes. (b) Is s.16(b), operating in conjunction with s.19 of the Motor
Vehicles Insurance Act, applicable to the (plaintiff's) claim against the second (defendant)?
Answer: No.

2. If the answer to either 1(a) or 1(b) is yes, then does s.16(b), operating in conjunction with s.19, and/or s.20 of the Motor Vehicles Insurance Act, subject the (plaintiff), in Queensland, to a disability or discrimination, which would not be equally applicable to her, if she were a subject of the Queen, resident in Queensland, within the meaning of s.117 of the Constitution? Answer: Section 20 of the Motor Vehicles Insurance Act subjects the plaintiff, in Queensland, to a disability or discrimination which would not be equally applicable to her if she were a subject of the Queen, resident in Queensland, within the meaning of s.117 of the Constitution.

3. If the answer to 2 is yes, then does s.117 of the Constitution render s.16(b) and/or s.20 of the Motor Vehicles Insurance Act inapplicable to the (plaintiff's) claim?
Answer: Section 117 of the Constitution renders s.20 of the Motor Vehicles Insurance Act inapplicable to the plaintiff's claim.

The defendants to pay the costs of the case stated.

Decisions

MASON CJ In view of the majority decision in Stevens v. Head ((1) (1993) 176 CLR 433.), following upon the majority decision in McKain v. R.W. Miller and Co. (S.A.) Pty. Ltd. ((2) (1991) 174 CLR 1.), I see no point in maintaining the dissenting view which I expressed in those two cases. Accepting the principles established in those cases, I agree with the reasons for judgment prepared by Dawson
and Toohey JJ

2. In the result, I would answer the questions asked as follows:
1. (a) In terms, yes.
(b) No. 2. Section 20 of the Motor Vehicles Insurance Act 1936 (Q.) subjects

the plaintiff, in Queensland, to a disability or discrimination which would not be equally applicable to her if she were a subject of the Queen, resident in Queensland, within the meaning of s.117 of the Constitution.

3. Section 117 of the Constitution renders s.20 of the Motor

Vehicles Insurance Act inapplicable to the plaintiff's claim.

BRENNAN J The plaintiff was a passenger in a tourist bus registered in Queensland under the Motor Vehicles Insurance Act 1936-1988 (Q.) ("the Act"). She commenced proceedings in the District Court in Brisbane claiming damages in respect of personal injuries which she sustained in an accident when, on or about 17 June 1989, the bus left the road and collided with a paddock fence on the Pacific Highway near Grafton in the State of New South Wales. The plaintiff was at all material times a subject of Her Majesty the Queen resident in New South Wales. The first defendant was the registered owner of the bus and an "insured person" within the meaning of that term in the Act. The second defendant was the licensed insurer of the bus; it became a defendant by election. The course of the litigation is stated by
Dawson and Toohey JJ

2. In this Court, a case was stated and three questions were reserved
for the opinion of the Full Court:

1. By applying the provisions of the Motor Vehicles Insurance Act 1936-1988 (Q.) as it presently stands: (a) Is s.20 of the Motor Vehicles Insurance Act
1936-1988 (Q.) applicable to the plaintiff's claim against the first defendant; and (b) Is s.16(b), operating in conjunction with s.19 of the Motor Vehicles Insurance Act 1936-1988 (Q.) applicable to the plaintiff's claim against the second defendant? 2. If the answer to either question 1(a) or 1(b) is "yes", then does s.16(b), operating in conjunction with s.19, and/or s.20 of the Motor Vehicles Insurance Act
1936-1988 (Q.), subject the plaintiff, in Queensland,
to a disability or discrimination, which would not be
equally applicable to her, if she were a subject of the
Queen, resident in Queensland, within the meaning of
s.117 of the Constitution?
3. If the answer to par.2 above is "yes", then does s.117
of the Constitution render s.16(b) and/or s.20 of the Motor Vehicles Insurance Act 1936-1988 (Q.) inapplicable
to the plaintiff's claim? Presumably question 1(a) is to be answered on the assumption that s.117 of the Constitution has no application. The application and effect of s.117 are the subjects of questions 2 and 3.

3. Section 20 of the Act provides as follows:
" 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, through or in connection with a 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 (at the time of the accident) his principal place of residence, by way of damages or compensation for like bodily injury caused in like circumstances by, through or in connection with a motor vehicle in that State or Territory."

4. The amount which the plaintiff "might have recovered by action or other process under the law of the State ... in which the (plaintiff) has or had (at the time of the accident) (her) principal place of residence" would have been affected by the provisions of two New South Wales statutes affecting the recovery of compensation for injury arising out of the use of a motor vehicle. The Transport Accidents Compensation Act 1987 (N.S.W.) was in force at the time of the plaintiff's accident. It remained in force until repealed ((3) s.5 of the Motor Accidents Act.) by the Motor Accidents Act 1988 (N.S.W.) which commenced on 1 July 1989 ((4) See s.2 and the Proclamation of 7 June 1989 (Gazette of 16 June 1989, No. 73).). Section 40 of the Transport Accidents Compensation Act abolished the common law right to claim damages or compensation in respect of bodily injury occurring in a transport accident. Section 31 then created a statutory right to certain benefits which were payable, inter alia, to a resident of New South Wales who sustained injury in a transport accident in New South Wales ((5) ss.4(1)(b) and 33(1)(a).). Those benefits were not available to non-residents of New South Wales who were injured in accidents arising out of the use of an out-of-State vehicle ((6) ss.4(1)(b) and 33(1)(b).). Sections 16 and 17 of the Motor Vehicles Insurance Act were evidently introduced in Queensland to protect Queensland residents from being deprived of any right to compensation for injury suffered in a transport accident in New South
Wales ((7) As the plaintiff is not and was not a resident of Queensland, it is unnecessary to consider the validity of ss.16 and 17.). If, despite s.40 of the Transport Accidents Compensation Act, the plaintiff could have sued for and recovered damages in a Queensland court before the repeal of the Transport Accidents Compensation Act, presumably the damages recoverable under Queensland law would have been greater than the benefits payable under that Act. Upon repeal of the Transport Accidents Compensation Act by the Motor Accidents Act, common law rights were restored retrospectively to 1 July 1987 ((8) s.6 of the Motor Accidents Act.) but the damages assessable in respect of bodily injury were restricted by several limitations: see ss.77, 78, 79, 80 and 81 of the Motor Accidents Act.

5. As the amount which the plaintiff might now recover under the law of New South Wales is governed by the last-mentioned sections, that amount is or is likely to be less than the amount to which the plaintiff is entitled under the Queensland law governing damages. The case was argued on the footing that that is the position. Queensland law does not prescribe limitations of the kind prescribed by the Motor Accidents Act. Queensland law is applicable to the plaintiff's present action in the Queensland District Court: Stevens v. Head ((9) (1993) 176 CLR 433.). Section 20 of the Motor Vehicles Insurance Act therefore purports to limit the amount which the plaintiff would otherwise be entitled to recover in her action. Therefore an affirmative answer must be given to question 1(a). Unless s.117 of the Constitution precludes s.20 of the Act from applying effectively to the assessment of the plaintiff's damages in the District Court, the damages to be assessed in the plaintiff's case will be less than they would be if she were a resident of Queensland.

6. The plaintiff's principal place of residence was and is in the State of New South Wales. As a resident of New South Wales and a subject of Her Majesty the Queen, the plaintiff is entitled to the protection of s.117 of the Constitution. By limiting the amount of damages which might be recovered in a Queensland action by a plaintiff who is or was, at the time of the accident, an out-of-State resident, s.20 discriminates between such a litigant and a litigant who is or was, at that time, a resident of Queensland. The sole criterion for the application of the limitation prescribed by s.20 is the principal place of residence of the plaintiff in a State or Territory of the Commonwealth other than Queensland.

7. When s.117 was considered by this Court in Street v. Queensland
Bar Association, I said ((10) (1989) 168 CLR 461 at 506.):

"When a protected person alleges that he is subject to a disability or discrimination in a State other than his State of residence, a comparison must be made between the disability or discrimination to which the person is purportedly subjected in the other State and the disability or discrimination, if any, to which he would be subjected 'if he were a subject of the Queen resident in such other State.' The actual position of the protected person must be compared with the hypothetical position."

The same view, expressed in varying terms, was shared by all other members of the Court ((11) ibid. per Mason CJ at 486-487; per Deane J at 525; per Dawson J at 544-545; per Toohey J at 555; per Gaudron J at 566-567; per McHugh J at 582.). Comparing the actual position of the plaintiff with the position she would be in if she were now or had been at the time of the accident resident in Queensland, it is clear that her right to recover damages is restricted to an amount, corresponding with the New South Wales limitation, which is less than the amount which she would be entitled to recover if she were now or had been a Queensland resident. That is discrimination which s.117 of the Constitution annihilates; it is a disability to which she would otherwise be subjected by s.20 of the Act but which s.117 eliminates. It follows that s.117 precludes s.20 of the Act from applying effectively to the plaintiff's claim.

8. For the reasons stated by Dawson and Toohey JJ, it is unnecessary to consider the operation of ss.16 and 19. It is unnecessary to consider whether there can be some schemes for the benefit exclusively of the residents of a particular State which do not attract the levelling operation of s.117.

9. I would answer the questions in the way in which Dawson and
Toohey JJ propose.

DEANE AND GAUDRON JJ The provisions of the Motor Vehicles Insurance Act 1936 (Q.) ("the Act") which give rise to the questions in the case stated by the Chief Justice pursuant to s.18 of the Judiciary Act 1903 (Cth) are fully set out in the joint judgment of Dawson and Toohey JJ In summary, ss.16 and 19 of the Act operate to confer a statutory right of action on a resident of Queensland ((12) Strictly, a person whose "principal place of residence was in Queensland at the time of the accident": s.16(b).) with respect to injuries suffered outside Queensland ((13) By s.16 the injuries must be "caused by, through or in connection with (a) motor vehicle ... in a State, other than Queensland, or Territory of the Commonwealth".) while an occupant of a motor vehicle registered in Queensland and insured in accordance with s.3(1) of the Act ((14) The Act requires that vehicles registered in Queensland be insured with Suncorp Insurance and Finance or a licensed insurer against liability to pay compensation "for accidental bodily
injury (fatal or non-fatal) to any person ... caused by, through, or in connection with such motor vehicle": s.3(1).) ("a Queensland vehicle"). If there is no entitlement to damages in the State or Territory where the accident occurred, he or she can recover damages from the insurer of the vehicle calculated in accordance with Queensland law ("Queensland damages") ((15) Strictly, "the amount that the claimant could recover by way of damages by action under the law of Queensland, had the accident occurred in Queensland": s.19(a).); if there is such an entitlement, there is a right to recover any excess which would be recoverable as Queensland damages ("make-up damages") ((16) s.19(b).). Conversely, s.20 places a limit on the damages recoverable by a person injured in a car accident whose principal place of residence at the time of the accident was in another State or Territory: he or she cannot recover an amount greater than that recoverable in that other State or Territory. The limit applies no matter where the accident occurred.

2. The plaintiff, Mrs Goryl, was injured in New South Wales while travelling in a Queensland vehicle. She is a subject of the Queen, resident in New South Wales and was so resident at the time of the accident which caused her injuries. She commenced an action in Queensland against the owner of the vehicle, Greyhound Australia Pty. Ltd. Suncorp Insurance and Finance, the insurer of the vehicle, elected to be joined as an additional defendant. The question that arises in the action is whether Mrs Goryl can recover Queensland damages (that is, damages that, apart from s.20, would be recoverable if the accident had occurred in Queensland), as distinct from damages calculated in accordance with the law of New South Wales ("New South Wales damages"). Queensland damages are calculated in accordance with the common law ((17) See s.6(2) of the Act.); New South Wales damages are calculated in accordance with the Motor Accidents Act 1988 (N.S.W.) which places limits on common law damages ((18) See Pt 6, Motor Accidents Act.). It is in that context that Mrs Goryl claims that, by reason of s.117 of the Constitution, s.20 of the Act is not applicable to her. She also claims that, if she is not otherwise entitled to Queensland damages, she is entitled under ss.16 and 19 of the Act. In that regard she claims that, in the circumstances, s.117 operates to free her from the requirement in s.16(b) of residence in Queensland at the time of the accident.

3. Before turning to s.117, it is necessary to say something of s.118 of the Constitution. Section 118 requires that full faith and credit be given throughout the Commonwealth to, amongst other things, the laws of every State. As we explained in Breavington v. Godleman ((19) (1988) 169 CLR 41 at 98 per Wilson and Gaudron JJ, 135 per Deane J), McKain v. R.W. Miller and Co. (S.A.) Pty. Ltd. ((20) (1991) 174 CLR 1 at 58 per Gaudron J) and Stevens v. Head ((21) (1993) 176 CLR 433 at 461-462 per Deane J, 464-467 per Gaudron J), s.118 is, in our view, one of several constitutional provisions which ensure that the legal consequences attaching to an act or omission that occurs in Australia are the same, no matter in which State or Territory proceedings are brought. It is not necessary to elaborate on that view beyond noting two matters. The first is that the States cannot legislate contrary to the command of s.118 ((22) See Breavington v. Godleman (1988) 169 CLR at 97 per Wilson and Gaudron JJ, 136 per Deane J As to the position of the Commonwealth, see ibid. at 99-100 per Wilson and Gaudron JJ, 130 per Deane J). The second is that where an accident occurs in one State but is the subject of proceedings in another, s.118 requires, if there is no applicable Commonwealth law, that liability be determined and damages be calculated in accordance with the law of the State in which the accident occurred ((23) McKain v. R.W. Miller and Co. (S.A.) Pty. Ltd. (1991) 174 CLR at 45 per Deane J, 58 per Gaudron J; Stevens v. Head (1993) 176 CLR at 462 per Deane J, 464 per Gaudron J).

4. That view as to the effect of s.118 of the Constitution was rejected by a majority of the Court in McKain and, again, in Stevens v. Head. However, for the reasons which we gave in our respective judgments in Stevens v. Head ((24) (1993) 176 CLR at 461-462 per Deane J, 464-465 per Gaudron J), it is a view which is fundamental to our understanding of the structure and operation of the Constitution. Subject to what is said in the final paragraph of this judgment, we regard ourselves as constrained to maintain it. That being so, it is
necessary to consider s.20 of the Act in the light of that understanding of the effect of s.118.

5. As earlier noted, s.20 purports, as part of the law of Queensland, to limit damages in accordance with the law of the State or Territory in which the injured person resided at the time of the accident, no matter where the accident occurred. That is at odds with the command in s.118 of the Constitution which, as earlier noted, requires damages to be calculated in accordance with the law of the State in which the accident occurred. Nevertheless, s.20 can operate consistently with s.118 in two instances: one is where an accident occurs in Queensland, the other is where, by coincidence, an accident occurs in the State in which the injured person resides. While there may be some scope for reading s.20 down so as to give it a valid operation with respect to s.118 in the first instance ((25) Note, however, that a question would then arise as to the effect of s.117 of the Constitution.), it cannot be read down so as to give it a valid operation where, co-incidentally, the accident occurred in the State in which the injured person resided. That would involve writing an entirely new condition into s.20 ((26) See generally, Bank of N.S.W. v. The Commonwealth ("the Bank Nationalization Case") (1948) 76 CLR 1 at 370-372 per Dixon J; Strickland v. Rocla Concrete Pipes Ltd. (1971) 124 CLR 468 at 492-493 per Barwick CJ, 503 per Menzies J; Re F.; Ex Parte F. (1986) 161 CLR 376 at 384-385 per Gibbs CJ). It follows that s.20 is invalid in its application to accidents outside Queensland and, hence, in its application to the accident involved in this case.

6. Because s.118 requires that damages be calculated in accordance with the law of the State where the accident occurred, Mrs Goryl's claim to recover Queensland damages is not advanced by our conclusion that s.20 of the Act is invalid in its application to the accident involved in this case. Rather, it is necessary to consider her alternative claim under ss.16 and 19 of the Act. In this regard, the case was conducted in this Court on the footing that, if necessary, the statement of claim is to be read as a claim for New South Wales damages against the owner of the vehicle and for make-up damages against the insurer under s.19(b). And as earlier indicated, that claim involves an argument that s.117 of the Constitution operates to free Mrs Goryl from the requirement in s.16(b) of residence in Queensland at the time of the accident.

7. Section 117 of the Constitution provides:

" A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State."

8. Because the distinction set up by ss.16 and 19 of the Act is not strictly between residents and non-residents, but between those whose principal place of residence at the time of the accident was in Queensland and those whose principal place of residence was elsewhere,

it is possible that, as a result of subsequent change, some non-Queensland residents can claim the benefit of ss.16 and 19 while some Queensland residents cannot. However, that is of no significance. The obligation under s.16 comes into existence when the accident occurs: it comes into existence with respect to residents of Queensland, but not anyone else. Clearly, the immediate and direct effect of s.16 is that non-residents are treated less favourably than persons resident in Queensland or, more accurately for the purposes of s.117, that an individual who is not resident in Queensland is treated
less favourably than he or she would be if resident in that State ((27) See with respect to the focus of s.117 on the individual, Street v. Queensland Bar Association (1989) 168 CLR 461 at 485-486 per
Mason CJ, 503-505 per Brennan J, 522 per Deane J, 541 per Dawson J, 555 per Toohey J, 566-568 per Gaudron J).

9. The essence of the argument that s.117 of the Constitution does not assist Mrs Goryl is that, notwithstanding the fact that ss.16 and 19 of the Act treat claimants who were resident in Queensland at the relevant time more favourably than non-residents, the differentiation involved does not constitute "discrimination" for the purposes of s.117.

10. It was acknowledged by all members of the Court in Street v. Queensland Bar Association ((28) (1989) 168 CLR 461.) that not every instance of different treatment in a State of a resident of another State involves a disability or discrimination for the purposes of s.117 of the Constitution. The acknowledgements to that effect were based on different constitutional considerations. Mason CJ based his
acknowledgement on the need to preserve "the autonomy of the States" ((29) ibid. at 491.), while Dawson and Toohey JJ referred respectively to a disability or discrimination arising out of or in consequence of "the ordinary and proper administration of the affairs of that State" ((30) ibid. at 548 per Dawson J) and "the capacity of the States to regulate their own affairs within a federal system" ((31) ibid. at 560 per Toohey J). A different approach was taken by Brennan J ((32) ibid. at 513.) and McHugh J ((33) ibid. at 584.), their Honours allowing only that s.117 was subject to implications necessarily drawn from the Constitution. Deane J acknowledged that a disability flowing "naturally from the structure of the particular State, the limited scope of its legislative powers or the nature of the particular right, privilege, immunity or other advantage or power to which it relates" ((34) ibid. at 528.) is outside s.117, a view which
does not differ greatly in substance from the view Gaudron J expressed, namely, that there is no disability or discrimination involved if different treatment proceeds from and is appropriate to a genuine difference ((35) ibid. at 570.).

11. Nothing that was said in Street lends any support to the argument that the different treatment involved in ss.16 and 19 does not
constitute discrimination for the purposes of s.117 of the Constitution. The autonomy of the States, their proper administration and their capacity to regulate their own affairs point to their power to impose additional rights and obligations arising out of the use of motor vehicles registered in a State. But neither their autonomy, their proper administration nor the capacity to regulate their own affairs points to the need or, even, the desirability for different treatment of injured persons according to whether they reside in or outside the State.

12. It was not suggested and, in our view, there is no basis for
a suggestion that, as a matter of necessary implication, the Constitution allows for different treatment of the kind postulated by ss.16 and 19. Indeed, the argument was that different treatment is justified because the insurance premiums which provide the funds from which insurers meet their obligations come, in the main, from residents of Queensland and not from persons resident in the other States and Territories of Australia. Strictly, the premiums come from the owners of the motor vehicles who, in the main, are resident in or carry on business in Queensland. However, nothing turns on the precise description of those who pay the premiums. They are not the persons who are obliged by ss.16 and 19 to pay damages; and they are not the persons who, as a class, benefit from the obligation. The obligation is owed by insurers; and leaving aside the residence qualification in s.16(b) of the Act, it is owed to occupants of Queensland vehicles who are injured outside Queensland. The different treatment of persons who answer that description, depending on whether they are or are not resident in Queensland at the time of the
accident, does not, in the words of Deane J in Street, flow "naturally from the structure of (Queensland), the limited scope of its legislative powers or the nature of the ... right ... or other advantage ... to which it relates" ((36) ibid. at 528.). Nor can it be said that, so far as the occupants of Queensland vehicles who are injured outside Queensland are concerned, there is some genuine difference between residents and non-residents which justifies different treatment by insurers. In that regard, the position is even clearer in a case such as the present where the vehicle in question was a tourist bus registered in Queensland. In such a case, the ultimate burden of the premium is likely to be passed on by the operator of the bus to the passengers who pay their fares. Yet a passenger in otherwise identical circumstances to other passengers will be subject to discrimination in the Queensland courts by reason only of his or her residence in another State.

13. The questions in the case stated should be answered as follows:

1(a). No. Section 20 of the Act is, by virtue of s.118 of the Constitution, invalid in its application to the plaintiff's claim. 1(b). Subject to the answers to questions 2 and 3, yes. 2. Yes. Section 16(b), operating in conjunction with s.19 of the Act, subjects the plaintiff to a disability or discrimination which would not be equally applicable to her if she were a subject of the Queen, resident in Queensland, within the meaning of s.117 of the Constitution. 3. Yes. Section 117 of the Constitution renders s.16(b) of the Act inapplicable to the plaintiff's claim.

14. One other matter should be noted. So long as the decisions in McKain and Stevens v. Head stand, they must be faithfully applied by other courts in this country. The position may arise where, to ensure certainty, it will be necessary for us to approach cases like the present case on the basis that the majority decisions in McKain and Stevens v. Head are correct. This is not such a case. But even if it were, the reasons which lead to the conclusion that s.16(b) is inapplicable to Mrs Goryl's claim would also lead to the conclusion
that s.20 is inapplicable.

DAWSON AND TOOHEY JJ The plaintiff, who was travelling in a tourist bus from Brisbane to Wyong, was injured when the bus left the road near Grafton in New South Wales and collided with a paddock fence. The plaintiff is, and was at the time, a subject of the Queen, resident in New South Wales. She had bought her ticket for the journey in Brisbane. The bus was owned and operated by the first defendant, Greyhound Australia Pty. Ltd., a company incorporated in Queensland. The first defendant was an insured person, as defined by s.2 of the Motor Vehicles Insurance Act 1936 (Q.) ("the Act"). In accordance with s.3 of the Act it had a contract of insurance with the second defendant, Suncorp Insurance and Finance, which is a
licensed insurer as defined by s.2 of the Act. The plaintiff commenced this action for damages in the District Court of Queensland alleging negligence and breach of contract. The second defendant in its defence relied upon ss.16, 19 and 20 of the Act to limit its liability. The plaintiff replied that those sections offended s.117 of the Constitution. That part of the cause was removed into this Court pursuant to s.40 of the Judiciary Act 1903 (Cth).

2. The sections in question were added to the Act by an amendment made in 1988 as follows ((37) Motor Vehicles Insurance Act Amendment Act 1988 (Q.), s.9.):

"16. Additional obligation of insurers. The obligation of the (State Government Insurance) Office or a licensed insurer under a contract of insurance made in accordance with section 3(1) includes an obligation to pay compensation for accidental bodily injury (fatal or non-fatal) to any person caused by, through or in connection with the motor vehicle to which the contract relates in a State, other than Queensland, or Territory of the Commonwealth where - (a) the person was an occupant of that motor vehicle; (b) the person's principal place of residence was in Queensland at the time of the accident; and

(c) had the accident occurred in Queensland, a contract of insurance would have provided for indemnity against liability by way of damages for the accidental bodily injury caused to the person. 17. Additional liability of Nominal Defendant. ((1) (1993) 176 CLR 433.) Where accidental bodily injury (fatal or non-fatal) to any person has been caused in a State, other than Queensland,

or

Territory of the Commonwealth by, through or in connection with a motor vehicle, being injury such that, had it been caused in Queensland, a claim for damages for such injury could have been made, a claim for damages for such injury may be made to The Nominal Defendant (Queensland) and action to enforce any such claim may be brought against The Nominal Defendant (Queensland), if the prescribed conditions are satisfied. (2) The prescribed conditions referred to in subsection (1) are -

(a) the person's principal place of residence at the time of the accident was in Queensland; (b) the case is not one to which section 16 applies; and

(c) had the accident occurred in Queensland, a contract of insurance made in accordance with section 3(1) (assuming such a contract to exist where one does not exist in fact) relating to the motor vehicle would provide for indemnity against liability by way of damages for the accidental bodily injury caused to the person. ...
19. Quantum of damages or compensation. The amount to which a claimant is entitled upon a claim for damages or compensation under section 16 or 17 is -

(a) where the claimant is not entitled to recover damages or compensation under the law of a State, other than Queensland, or Territory of the Commonwealth by reason of the occurrence in that State or Territory of the accident from which the claim arises - the amount that the claimant could recover by way of damages by action under the law of Queensland, had the accident occurred in Queensland; or (b) where the claimant is entitled to recover damages or compensation under the law of a State, other than Queensland, or Territory of the Commonwealth by reason of the occurrence in that State or Territory of the accident from which the claim arises - the amount by which the amount that the claimant could recover by way of damages by action under the law of Queensland, had the accident occurred in Queensland, exceeds the amount that the claimant is entitled to recover by way of damages or compensation under the law of that State, other than Queensland, or Territory of the Commonwealth. 20. Limitation of damages. 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, through or in connection with a 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 (at the time of the accident) his principal place of residence, by way of damages or compensation for like bodily injury caused in like circumstances by, through or in connection with a motor vehicle in that State or Territory."

3. In a case stated pursuant to s.18 of the Judiciary Act the following questions were reserved for the consideration of the Full Court: 1. (a) Is s.20 of the Motor Vehicles Insurance Act applicable to the
(plaintiff's) claim against the first (defendant)? (b) Is s.16(b), operating in conjunction with s.19 of the Motor
Vehicles Insurance Act applicable to the (plaintiff's) claim
against the second (defendant)? 2. If the answer to either 1(a) or 1(b) is yes, then does s.16(b),
operating in conjunction with s.19, and/or s.20 of the Motor Vehicles Insurance Act, subject the (plaintiff), in Queensland, to a disability or discrimination, which would not be equally applicable to her, if she were a subject of the Queen, resident in
Queensland, within the meaning of s.117 of the Constitution? 3. If the answer to 2 is yes, then does s.117 of the Constitution render s.16(b) and/or s.20 of the Motor Vehicles Insurance Act
inapplicable to the (plaintiff's) claim?

4. The 1988 amendment to the Motor Vehicles Insurance Act was made when the Transport Accidents Compensation Act 1987 (N.S.W.) was in force. That Act abolished all rights to or claims for damages in respect of the death of or bodily injury to a person "caused by or arising out of a transport accident occurring on or after 1 July 1987" ((38) Transport Accidents Compensation Act, s.40(1).). Certain statutory benefits were conferred in the event of the death of or personal injury to a person as the result of a transport accident. The scheme was generally known as "Transcover". Under the legislation a resident of Queensland could not recover Transcover benefits arising out of a transport accident unless a vehicle registered in New South Wales, an unidentified vehicle or a public transport vehicle was involved ((39) ibid., s.33(1)(b).). Even if a Queensland resident could recover Transcover benefits, they were significantly less than the damages which might have been recovered at common law. The Motor Accidents Act 1988 (N.S.W.) subsequently repealed the Transport Accidents Compensation Act and, with some modification, restored the common law.

5. The 1988 amendment to the Queensland Act also seems to have been influenced by a perception that the effect of the decision of this Court in Breavington v. Godleman ((40) (1988) 169 CLR 41.) was that the lex loci delicti governed the calculation of damages in personal injury cases and that a resident of Queensland suing in Queensland for damages for injuries sustained in an accident in New South Wales could not recover common law damages. The subsequent decision of this Court in Stevens v. Head ((41) (1993) 176 CLR 433.) has made it clear that the quantification of damages is a matter which is governed by the lex fori.

6. This history serves to explain the underlying purpose of the 1988 amendment in Queensland. It was to deal with a situation in which a Queensland resident injured in a motor accident in New South Wales which did not involve a New South Wales vehicle was deprived of any
benefits under Transcover and, even where he was entitled to Transcover benefits, received less than he would have received had the accident occurred in Queensland (42).

7. Both ss.16 and 17 impose liability for damages for bodily injury
to a Queensland resident injured in a motor accident outside Queensland. Section 16 applies where the Queensland resident was an occupant of a vehicle insured in Queensland and the liability is imposed upon the licensed insurer as an additional obligation of the contract of insurance. The liability is imposed independently of any liability resting upon the insured driver and whether or not any liability would have been imposed under the law of the place where the accident occurred. Section 17 extends to all other cases in which a Queensland resident is injured in a motor accident outside Queensland and the liability for damages is imposed upon the Nominal Defendant.

8. The quantum of damages for which liability is imposed by either s.16 or s.17 is the same. The total amount recoverable under s.19 is the amount recoverable at common law if the accident had happened in Queensland, less any damages recoverable under the law of the State or Territory in which the accident occurred. Thus neither s.16 nor s.17 imposes any burden upon the resident of another State; rather they confer benefits upon persons whose principal place of residence is Queensland. They ensure that a resident of Queensland injured in a motor accident outside Queensland may recover the full amount of damages recoverable under Queensland law, notwithstanding any restrictions imposed by the law of the place where the accident occurred.

9. It is only s.20 which imposes a disability upon a person whose principal place of residence is not Queensland. It does so by preventing him from recovering in Queensland an amount of damages for bodily injury sustained in a motor accident which is greater than he might have recovered under the law of the State or Territory in which he had his principal place of residence. Section 20 applies irrespective of whether the accident occurred within or outside Queensland and regardless of whether the vehicle or vehicles involved were insured in Queensland.

10. Section 117 of the Constitution provides:

"A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State."

In Street v. Queensland Bar Association ((43) (1989) 168 CLR 461.) all members of the Court were of the view that not every kind of differential treatment by a State of a resident of another State amounts to the imposition of a disability or to discrimination within the meaning of s.117. Whether this is because the very nature of the federation, predicated as it is upon government State by State with the inevitable consequence that laws will differ from State to State, requires limits to be placed upon s.117 or whether it is because some kinds of differential treatment, properly viewed, cannot be described as imposing a disability or a discrimination, is probably a difference in approach rather than principle. For instance, Mason CJ said ((44) ibid. at 491-492; see also at 512-513 per Brennan J, 583-584 per McHugh J):

"To allow the section an unlimited scope would give it a reach extending beyond the object which it was designed to serve by trenching upon the autonomy of the States to a far-reaching degree. Accordingly, there may be cases where the need to preserve that autonomy leads to a recognition that a particular disability or discrimination is not prohibited."

On the other hand, Deane J expressed his view as follows ((45) ibid. at 528; see also at 560 per Toohey J, 570 per Gaudron J):

"Section 117 only applies when a non-resident is 'subject to ... disability or discrimination'. Those words, construed in their constitutional context, convey the notion of some superimposed incapacity or disadvantage in the sense that the incapacity or disadvantage, regardless of whether it be direct or indirect, does not flow naturally from the structure of the particular State, the limited scope of its legislative powers or the nature of the particular right, privilege, immunity or other advantage or power to which it relates."

The most obvious example of differential treatment which lies outside s.117 is the exclusion of non-residents from voting in a State election ((46) See Henry v. Boehm (1973) 128 CLR 482 at 507.). Clearly, that is something which would not be prohibited by s.117 even if it did amount to the imposition of a disability upon non-residents or discrimination against them. But it might also be said that there is no disability or discrimination because the very nature of a State election, which is to elect representatives for the residents of the
State, dictates that residence be a qualification of voters. Non-residents have no part to play in the election of representatives for residents.

11. No doubt difficulties may be encountered when one proceeds beyond the more obvious examples of differential treatment which are not prohibited by s.117. Guidance is then to be found in the object of s.117 which is to foster the concept of Australian nationhood, recognizing at the same time the capacity of the States to govern their own communities which is an essential feature of the federation. A similar approach to the privileges and immunities clause in the United States Constitution ((47) Art.IV, s.2.) has been found necessary. In Baldwin v. Montana Fish and Game Commission the United States Supreme Court identified it as follows ((48) (1978) 436 US 371 at 383; cf. Shapiro v. Thompson (1968) 394 US 618.):

"Some distinctions between residents and nonresidents merely reflect the fact that this is a Nation composed of individual States, and are permitted; other distinctions are prohibited because they hinder the formation, the purpose, or the development of a single Union of those States."

And in Street v. Queensland Bar Association Mason CJ observed that ((49) (1989) 168 CLR at 492; see also at 512-513 per Brennan J,
583-584 per McHugh J):

"The preservation of the autonomy of the States demands that the exclusion of out-of-State residents from the enjoyment of rights naturally and exclusively associated with residence in a State must be recognized as standing outside the operation of s.117. Take, for example, the exclusion of out-of-State residents from the right to enjoy welfare benefits provided by a State under a scheme to assist the indigent, the aged or the ill. Generally speaking, I doubt that such an exclusion would amount to a disability or discrimination within the section. The exclusion would not seem to detract from the concept of Australian nationhood or national unity which it is the object of the section to ensure, because it would offend accepted notions of State autonomy and financial independence and a due sense of a State's responsibility to the people of the State to say that the Constitution required the State to extend the range of persons entitled under the scheme to out-of-State residents."

In the same case, Deane J expressed the view ((50) ibid. at 528; see also at 572 per Gaudron J) that in certain circumstances State financial assistance limited to residents of the State would not subject a non-resident to a disability or discrimination. And Dawson J observed that a right confined to residents of the State to
participate in a State welfare scheme may not offend s.117, particularly if the scheme is financed by State taxes, a residential qualification is reasonable and its imposition does nothing to impede the essential purpose of s.117 ((51) ibid. at 546.).

12. The scheme established by the Act requires the owner of a motor vehicle registered in Queensland to enter into an insurance policy providing indemnity against liability for damages for personal injury in any State or Territory caused by, through or in connection with the vehicle ((52) Motor Vehicles Insurance Act, s.3(1).). A claim for damages for personal injury caused in Queensland by, through or in connection with an uninsured vehicle may be made against the Nominal Defendant ((53) ibid., s.4F.). A fund is established for the payment of claims against the Nominal Defendant, and the fund derives its moneys primarily from amounts levied upon the registration
or renewal of registration of motor vehicles in Queensland ((54) ibid., s.4E). It was conceded in argument that an insignificant proportion of persons registering motor vehicles in Queensland are resident elsewhere than in Queensland.

13. The scheme established by the Act is one of compulsory insurance and is financed by the owners of motor vehicles registered in Queensland who are almost exclusively residents of that State. No doubt the application of s.117 of the Constitution to the sections in question is to be considered against that background. Nevertheless, it is difficult to see how a scheme of compulsory insurance confined to Queensland has any bearing upon s.20, which imposes a limit upon the amount of damages recoverable by a claimant upon the basis of residence whether or not the accident occurred in Queensland and whether or not the scheme of insurance is involved in any way.

14. Section 20 operates to impose a limit upon the damages which a person whose principal place of residence is, or was at the time of the accident, outside Queensland. It is not a provision which prescribes a choice of law to govern the calculation of damages for accidents occurring outside Queensland. Under s.20, if the damages recoverable under the law of the claimant's principal place of residence are more than the damages recoverable under Queensland law, the claimant is entitled only to the Queensland measure of damages. Section 20 imposes a cap upon the damages which residents of other States may recover in Queensland courts for damages for personal
injuries arising out of motor vehicle accidents. It applies regardless of where the driver of the other vehicle was resident, where his vehicle was registered or where the accident occurred. No doubt the decision of this Court in Stevens v. Head, which made it clear that it is the lex fori, rather than the lex loci delicti, which governs the calculation of damages, has given s.20 a wider application than may have been intended. In particular, it is now clear that s.20 applies in actions arising out of accidents which occurred outside Queensland. But whatever view may previously have been taken, the section has always operated to differentiate between residents and non-residents of Queensland in the calculation of damages under Queensland law for injuries received in an accident which occurred in Queensland.

15. Where the damages recoverable in the claimant's principal place of residence are less than those recoverable in Queensland, s.20 must operate to the disadvantage of the claimant. It is common ground that the damages recoverable in New South Wales are, because of restrictions imposed by the Motor Accidents Act 1988 (N.S.W.), less than those recoverable in Queensland.

16. In applying s.117, the comparison to be made is between a non-resident in the position of the plaintiff and the position she would be in if she were resident in Queensland. Quite clearly the plaintiff is, upon such a comparison, subject both to a disability and to discrimination. She can only recover damages at a lesser rate than if she were resident in Queensland. And there is no difference in the plaintiff's position which would justify the distinction which is drawn. It is not because she claims the benefit of any welfare or insurance scheme established for and financed by Queensland residents. The disability imposed upon the plaintiff is imposed regardless of any indemnity available to the respondent under the statutory insurance scheme. It is simply a case of a non-resident being afforded under Queensland law different and less advantageous treatment than she would be afforded if she were a resident of Queensland. In our view, s.117 applies to relieve the plaintiff from that disability or discrimination so that she is entitled to recover the full amount of damages recoverable in Queensland at common law.

17. The plaintiff conceded that such a conclusion is sufficient to dispose of the matter "unless it is to be argued by the defendants that, in the absence of s.20, some sort of implication from ss.16 and 19 would reduce the plaintiff's damages to 'New South Wales damages'". No such submission was put. In any event, s.117 operates to immunize a person from an impermissible disability or discrimination imposed by a law rather than as a restriction upon the power to make the law ((55) See Street v. Queensland Bar Association (1989) 168 CLR at 486.). For that reason it would not, in our view, be possible to construe ss.16 and 19 as giving rise to an implication "in the absence of s.20". No doubt, had the law been as it was apparently perceived to be before the decision in Stevens v. Head, the application of s.117 to ss.16, 17 and 19 may have raised a question involving a somewhat different issue, namely, whether the provision of benefits to residents of Queensland injured in motor accidents outside Queensland amounted to the imposition of a disability upon or discrimination against residents of other States, notwithstanding that it imposed no burden upon them and was financed, to all intents and purposes, by motorists resident in Queensland. It is unnecessary to resolve that issue in this case.

18. We would answer the questions as follows:
1. (a) In terms, yes.
(b) No. 2. Section 20 of the Motor Vehicles Insurance Act subjects the plaintiff, in Queensland, to a disability or discrimination which would not be equally applicable to her if she were a subject of the Queen, resident in Queensland, within the meaning of s.117 of the Constitution. 3. Section 117 of the Constitution renders s.20 of the Motor Vehicles Insurance Act inapplicable to the plaintiff's claim.

McHUGH J The issue in this case is whether ss.16, 19 and 20 of the Motor Vehicles Insurance Act 1936 (Q.) ("the Queensland Act") are inapplicable to the plaintiff because they subject her to a disability or discrimination on the basis of her residency in another State, contrary to s.117 of the Constitution.

The nature of the proceedings 2. The plaintiff, Mrs Goryl, was a passenger in a commercial bus registered in and operating out of Queensland which was involved in an accident in New South Wales. The first defendant, Greyhound Australia Pty. Ltd. ("Greyhound"), was the registered owner of the bus. When the accident occurred, the bus was travelling from Brisbane to Wyong. About 15 kilometres north of Grafton in New South Wales, the bus left the Pacific Highway and collided with a paddock fence. Mrs Goryl, who is a resident of New South Wales, had purchased her ticket for the journey in Queensland. Later, she sued Greyhound in the District Court of Queensland for damages for personal injuries and other loss. The second defendant, Suncorp Insurance and Finance ("Suncorp"), is a licensed insurer within the meaning of the Queensland Act. Greyhound was insured with Suncorp which elected to be joined as a defendant in the action. In its defence, Suncorp contends that as Mrs Goryl was not a resident of Queensland her damages are to be assessed on the basis that she is not entitled to the benefits which ss.16, 19 and 20 of the Queensland Act provide for Queensland residents.

3. Sections 16 to 20 of the Queensland Act were inserted into Pt VI of that Act in response to the Transport Accidents Compensation Act 1987 (N.S.W.) ("Transcover") and the perceived effect of the decision of this Court in Breavington v. Godleman ((56) (1988) 169 CLR 41.). Transcover abolished the right to claim for damages in respect of death or bodily injury caused by or arising out of a "transport accident" occurring on or after 1 July 1987. Transcover replaced that right with a statutory scheme which provided benefits in circumstances specified by the legislation. At the time that Pt VI of the Queensland Act was enacted, many lawyers held the view that Breavington had decided that the lex loci delicti commissi was the relevant law in relation to the measure of damages in an action for personal injuries. If that was the effect of Breavington, the enactment of Transcover had serious consequences for Queensland residents in respect of injuries suffered in accidents in New South Wales. First, they could not recover Transcover benefits unless the accident involved a New South Wales registered vehicle, an unidentified vehicle or a public transport vehicle. Second, where, as the result of an accident in New South Wales, Queensland residents were entitled to Transcover benefits, lower damages were recoverable than would have been the case if the accident had occurred in Queensland.

4. Part VI of the Queensland Act was enacted to ensure that Queenslanders who were injured in motor vehicle accidents in other States were entitled to the same cover as if the accident had occurred
in Queensland ((57) Queensland, Parliament, Parliamentary Debates (Hansard), 8 September 1988 at 725-726.). However, the reasons for enacting Pt VI have now disappeared: the Transcover legislation has been repealed, and the decision in Stevens v. Head ((58) (1992) 176 CLR 433.) makes it clear that damages for personal injuries are governed by the lex fori. Nevertheless, Pt VI remains on foot and has the effect, if it applies to the plaintiff, of denying her damages in the same amount to which she would be entitled if she were a resident of Queensland.

5. Section 20 of the Queensland Act provides:

"Limitation of damages. 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, through or in connection with a 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 (at the time of the accident) his principal place of residence, by way of damages or compensation for like bodily injury caused in like circumstances by, through or in connection with a motor vehicle in that State or Territory."

6. Sections 16 and 19 of the Queensland Act confer benefits on Queensland residents who have been injured in an out-of-State accident involving a motor vehicle registered in Queensland. Sections 16 and 19 provide:

"16. Additional obligation of insurers. The obligation of the (State Government Insurance) Office or a licensed insurer under a contract of insurance made in accordance with section 3(1) includes an obligation to pay compensation for accidental bodily injury (fatal or non-fatal) to any person caused by, through or in connection with the motor vehicle to which the contract relates in a State, other than Queensland, or Territory of the Commonwealth where - (a) the person was an occupant of that motor vehicle; (b) the person's principal place of residence was in Queensland at the time of the accident; and

(c) had the accident occurred in Queensland, a contract of insurance would have provided for indemnity against liability by way of damages for the accidental bodily injury caused to the person. ...
19. Quantum of damages or compensation. The amount to which a claimant is entitled upon a claim for damages or compensation under section 16 or 17 is -

(a) where the claimant is not entitled to recover damages or compensation under the law of a State, other than Queensland, or Territory of the Commonwealth by reason of the occurrence in that State or Territory of the accident from which the claim arises - the amount that the claimant could recover by way of damages by action under the law of Queensland, had the accident occurred in Queensland; or (b) where the claimant is entitled to recover damages or compensation under the law of a State, other than Queensland, or Territory of the Commonwealth by reason of the occurrence in that State or Territory of the accident from which the claim arises - the amount by which the amount that the claimant could recover by way of damages by action under the law of Queensland, had the accident occurred in Queensland, exceeds the amount that the claimant is entitled to recover by way of damages or compensation under the law of that State, other than Queensland, or Territory of the Commonwealth."

7. The plaintiff contends that ss.16, 19 and 20 of the Queensland Act subject her to a disability or discrimination which would not be applicable to her if she were a resident of Queensland. She submits that those sections infringe s.117 of the Constitution.

8. The matter comes before the Court by way of a case stated pursuant to s.18 of the Judiciary Act 1903 (Cth) consequent upon a removal into this Court pursuant to s.40 of that Act. The following questions have been reserved for the consideration of the Full Court: 1. By applying the provisions of the Motor Vehicles Insurance Act

1936 (Q.) as it presently stands: (a) Is s.20 of the Motor Vehicles Insurance Act applicable to the
(plaintiff's) claim against the first (defendant)? (b) Is s.16(b), operating in conjunction with s.19 of the Motor Vehicles Insurance Act, applicable to the (plaintiff's) claim
against the second (defendant)? 2. If the answer to either question 1(a) or 1(b) above is 'yes', then does s.16(b), operating in conjunction with s.19, and/or s.20 of
the Motor Vehicles Insurance Act, subject the (plaintiff), in Queensland, to a disability or discrimination which would not be equally applicable to her if she were a subject of the Queen, resident in Queensland, within the meaning of s.117 of the Constitution?

3. If the answer to question 2 above is 'yes', then does s.117 of the

Constitution render s.16(b) and/or s.20 of the Motor Vehicles Insurance Act inapplicable to the (plaintiff's) claim?

Section 117
9. Section 117 of the Constitution provides:

"A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State."

10. Section 117 is a fundamental constitutional guarantee which seeks to preserve equality of treatment within the boundaries of any State for subjects of the Queen who are resident in the federation and to promote national economic and social cohesion ((59) See Street v. Queensland Bar Association (1989) 168 CLR 461 at 492 per Mason CJ, 512 per Brennan J, 522 per Deane J). As a fundamental feature of the Constitution, it must be widely and liberally interpreted ((60) ibid. at 527.). However, s.117 has to be construed in the context of the constitutional premise that the States are autonomous entities in the federation. That premise requires an interpretation of s.117 that recognises the special relationship between a State and its people and the special responsibilities of a State to its people. Consequently, some subject-matters are the sole concern of a State and fall outside the scope of s.117. State elections provide a ready example. In Street v. Queensland Bar Association ((61) ibid. at 583-584. See also at 492 per Mason CJ, 560 per Toohey J), I said:

"The object of s.117 was to make federation fully effective by ensuring that subjects of the Queen who were residents of Australia and in comparable circumstances received equality of treatment within the boundaries of any State. But the existence of a federal system of government, composed of a union of independent States each continuing to govern its own people, necessarily requires the conclusion that some subject-matters are the concern only of the people of each State. And since the residents of a State and its people are basically interchangeable concepts, it follows that laws dealing with these particular subject-matters may exclude interstate residents from participation either generally or subject to conditions. The exclusion of these subject-matters from the scope of s.117 is the necessary consequence of a federal system in which each State exercises independent powers and functions within its territory for the peace, order and good government of that territory."

11. Apart from these necessary exceptions to s.117, which are derived from the assumptions and structure of the Constitution itself, no reason exists for narrowing the scope of that section. In particular, there is no ground for reading into the provision a requirement that the disability or discrimination must be "unjustifiable",
"unreasonable" or "disproportionate to a legitimate State objective" ((62) ibid. at 582-583.). Nevertheless, counsel for the Attorney-General of the Commonwealth, who intervened in the argument, submitted that s.117 required a two stage analysis involving the following questions: (1) whether the law of the State in question subjects a plaintiff to a

burden or disadvantage that would not be equally applicable if he or she were a resident of the State; and

(2) if so, whether a rational and proportionate connection exists

between the law and the achievement of some legitimate State objective.

12. With respect, the "rational and proportionate connection" test is not justified by the language of s.117 or the structure or assumptions
of the Constitution. No doubt the judgments of Brennan J and Gaudron J in Street provide support for that test. In one form or another, however, other members of the Court adopted a necessary implication exception. Indeed, I expressly rejected the "two-step inquiry" approach that is applied in the United States, preferring instead an approach which focused on the subject-matter of the law and the State's responsibility for or concern with it. I said ((63) ibid. at 585.):

"The 'two-step inquiry' (United Building and Construction Trades Council v. Mayor of Camden ((64) (1984) 465 US

7. 208 at 219.) ) which the Privileges and Immunities Clause

mandates

has no counterpart in s.117. Section 117 is not concerned to inquire whether the subject-matter of the disability or discrimination bears 'upon the vitality of the Nation as a single entity', or whether there is a substantial reason for the disability or discrimination, or whether the disability or discrimination bears a substantial relationship to the State's objective. Unless by necessary implication, drawn from the assumptions and structure of the Constitution, the subject-matter of the disability or discrimination is outside the scope of s.117, that section focuses on the position of the individual interstate resident in relation to the disability or discrimination. Would it be equally applicable to him if he were resident in the State concerned?"

13. The relevant question in determining whether a subject-matter is outside s.117, therefore, is "whether, by necessary implication, the matter is so exclusively the concern of the State and its people that an interstate resident is not entitled to equality of treatment in respect of it" ((65) Street (1989) 168 CLR at 584.).

14. If the subject-matter of the law is not outside the scope of s.117, the next question is whether the law subjects the interstate resident to a disability or discrimination. To determine whether the law does impose a disability or discrimination, either in form or effect, a hypothetical comparison test is applied. The position of the interstate resident under the law is compared with the position of that person under the law if he or she were resident in the State imposing the law ((66) ibid. at 506-507 per Brennan J, 525 per Deane J, 545 per Dawson J, 555 per Toohey J, 566-567 per Gaudron J, 582,
589 per McHugh J). So, what s.117 requires is a comparison between the actual position of the interstate resident and his or her hypothetical position as a resident in the legislating State. If a law of a State operates so that an interstate resident would be worse off by reason of his or her residence than that person would be if he or she were a resident in the State in question, s.117 will prevent the law operating to that person's detriment. Section 117 is, therefore, an unusual constitutional guarantee because it focuses on the individual and renders an offending provision inapplicable to that individual rather than invalidating the law itself. It "speaks in terms of individual freedoms rather than of legislative power" ((67) ibid. at 541 per Dawson J).

Section 20 15. In my opinion, s.20 subjects the plaintiff to a disability or discrimination. Since the decision in Stevens v. Head ((68) (1992) 176 CLR 433.), it has been established that damages in tort for personal injuries are determined under the lex fori. In the present case, the lex fori is Queensland law, and under s.20 of the Queensland Act the plaintiff's damages are limited to the maximum amount recoverable under the law of New South Wales, the State in which she is resident. Under the New South Wales law, the Motor Accidents Act 1988 (N.S.W.), which replaced Transcover, limits the quantum of damages recoverable by a plaintiff in respect of non-economic loss ((69) s.79.). There is no similar provision under the Queensland law. Thus, the quantum of damages which would be recoverable by the plaintiff under the New South Wales legislation is less than is recoverable by a Queensland resident under the Queensland law. In other words, s.20, if it applies to the plaintiff, has the effect of reducing her damages to below that which she could recover if she were a resident of Queensland. Furthermore, the sole reason that the plaintiff cannot recover damages to the same amount as she could recover if she resided in Queensland is that she resides in New South Wales. Consequently, s.20 discriminates against the plaintiff on the ground of her New South Wales residency.

16. Compensation for injury caused by or arising out of the use of motor vehicles registered or insured in Queensland is not a subject which is exclusively the concern of the State of Queensland and its people and, consequently, outside the scope of s.117 of the Constitution. Interstate travel is a major and common aspect of Australian life. Each year, tens of thousands of residents in Australia travel to other States for short periods of time. The nation's highways are crowded with private and commercial vehicles travelling from one State to another. Interstate residents are frequently injured as the result of motor vehicle accidents occurring in the Australian States. Thus, compensation for injury caused by or arising out of the use of a motor vehicle is not a matter which is the exclusive concern of the State where the vehicle is insured or registered. Nor is regulation of the award of compensation for such an injury something which flows "naturally from the structure of the particular State, the limited scope of its legislative powers or the nature of the particular right, privilege, immunity or other advantage or power to which it relates" ((70) Street (1989) 168 CLR at 528 per Deane J). Accordingly, compensation for injury arising out of the use of vehicles registered in Queensland does not fall outside the scope of the constitutional protection of equality contained in s.117. In so far as s.20 confers benefits on residents of Queensland which are not available to subjects of the Queen who are residents of other States, it is inconsistent with the equality of treatment guaranteed by s.117 of the Constitution.

17. The defendants conceded that s.20 could not validly apply to an accident arising out of the use of a vehicle insured in a State other than Queensland. However, so far as Queensland registered vehicles are concerned, the defendants argued that the Queensland Act is not inconsistent with s.117 of the Constitution. The defendants submit that the Queensland Act creates a co-operative insurance welfare scheme, the principal contributors to which are Queensland residents, and that the scheme is intended to provide extra benefits for them. The defendants contend that there is a rational and proportionate connection between the condition of residency and the object of the Queensland Act. The connection is said to be rational because the insurance fund is a co-operative welfare scheme that is collected from local residents for the benefit of plaintiffs who, on the whole, will be local residents. The connection is said to be proportionate because non-residents are not excluded entirely - they are merely limited to the rights to which they are entitled in their own States.

18. The implied premise of this argument is that s.117 does not prevent a State from passing legislation if there is a reasonably proportionate connection between the legislation and the achievement
of a legitimate State objective. I have already rejected the application of this approach to s.117. It follows that I reject the contention of the defendants that s.20 is not inconsistent with s.117 in so far as s.20 applies to motor vehicles registered in Queensland.

Sections 16 and 19
19. The plaintiff contends that, as a result of s.117 of the Constitution, ss.16 and 19 of the Queensland Act are also inapplicable to her. Sections 16 and 19 ensure that a Queensland resident injured in an interstate motor vehicle accident will be able to recover damages against an insurer to the same extent as if the accident had occurred in Queensland. Sections 16 and 19 were enacted prior to the decision in Stevens. Obviously, they were enacted upon the assumption that the quantum of damages in personal injury cases is governed by the lex loci delicti commissi. However, because Stevens decided that the law governing the quantum of damages is the lex fori, s.16 is redundant.

20. The plaintiff accepted that it was only necessary to consider whether the residence requirement in s.16(b) is contrary to s.117 of the Constitution if s.20 is held to be inapplicable to her and one of the following circumstances applies to the present case: (1) that s.118 of the Constitution requires the application of the New

South Wales law because the accident occurred there;

(2) that the procedural/substantive classification, adopted by

Mason CJ in Stevens, applies;

(3) that, in its application to the present case, the legislation is

given the effect that it would have had if the perceived effect of Breavington had been correct.

21. None of those circumstances apply. The first two arise from reasoning in minority judgments in Stevens. The third arises from the approach taken to the legislation considered in Corporate Affairs Commission (N.S.W.) v. Yuill ((71) (1991) 172 CLR 319.). There the Court held that the Companies (New South Wales) Code had to be construed in light of the law as it was understood when the Code came into force. At that time, it was generally accepted that legal professional privilege did not apply to proceedings under the Code unless the proceedings were judicial or quasi-judicial in nature. This understanding was contradicted by the subsequent decision of the Court in Baker v. Campbell ((72) (1983) 153 CLR 52.). However, Yuill is not relevant here. In Yuill, the majority of the Court thought that, in determining whether the Code intended to exclude legal professional privilege, Parliament's presumed understanding of the pre-existing law was relevant. In the present case, the intention of ss.16 and 19 is clear. It is to ensure that Queensland residents injured in other States have the same rights to damages as they would have had if the accident had occurred in Queensland. For the reasons that I have already given, s.16 has no practical effect because the quantum of damages in an action in Queensland will be the same whether the accident occurred inside or outside Queensland and whether or not an injured person was a resident of Queensland.

Conclusion

22. Accordingly, I would answer the questions in the case stated as
follows:

Q.1(a) Yes Q.1(b) No Q.2 Yes Q.3 Yes with respect to s.20. Section 16(b) has no application to the plaintiff's claim.