Hasniyah Murad v Pacific Services Pty Ltd - [2004] NSWCA 251

CITATION: Hasniyah MURAD v PACIFIC SERVICES PTY LTD & Anor [2004] NSWCA 251

HEARING DATE(S): 21/7/04

JUDGMENT DATE:
21 July 2004

JUDGMENT OF: Spigelman CJ at 1; Handley JA at 31; Beazley JA at 32

DECISION: Leave to appeal granted; appeal allowed.

CATCHWORDS: Meaning of "motor vehicle" in Motor Accidents Compensation Act - whether a trolley shunter is a motor vehicle - natural and ordinary meaning of vehicle

LEGISLATION CITED: Driving Instructors Act 1992
Industrial Relations Act 1986
Motor Accidents Act 1988
Motor Accidents Compensation Act 1999
Motor Vehicle Sports (Public Safety) Act 1985
Road Transport (General) Act 1999
Road Transport (Vehicle Registration) Act 1997
Road Transport (Driver Licensing) Act 1998
Road Transport (Heavy Vehicles Registration Charges) Act 1995
Road Transport (Safety and Traffic Management) Act 1999
Road Obstructions (Special Provisions) Act 1979
Stamp Duties Act 1920
Supreme Court Act 1970
Tow Truck Act 1989
Traffic Legislation Amendment Act 1997
Traffic Act 1909

CASES CITED: Fawcett v BHP By-Products Pty Limited (1960) 104 CLR 80

PARTIES :
Hasniyah Murad (Claimant)
Pacific Services Pty Ltd (First Opponent)
David Lim (Second Opponent)

FILE NUMBER(S): CA 41093/03

COUNSEL: Mr A Lakeman (Claimant)
Mr R Cavanagh (Opponent)

SOLICITORS: G H Healey & Co (Claimant)
Minter Ellison (Opponent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 8552/02

LOWER COURT
JUDICIAL OFFICER : Gamble ADCJ

- 7 -

CA: 41093/03
DC: 8552/02

SPIGLEMAN CJ
HANDLEY JA
BEAZLEY JA
Wednesday 21 July 2004

Hasniyah MURAD v PACIFIC SERVICES PTY LTD & Anor

Judgment

1 SPIGELMAN CJ: This is an application for leave to appeal from a decision of her Honour Acting Judge Gamble of the District Court. The Claimant was the plaintiff in proceedings before that Court. Her Honour struck out the plaintiff's Statement of Claim. The Claimant seeks leave to appeal from that decision.

2 The Claimant suffered injuries after being struck by shopping trolleys at the Eastgardens Shopping Mall Pagewood in Sydney. Trolleys were being moved by a vehicle known as a trolley shunter. The issue before Gamble ADCJ was whether or not the trolley shunter was a motor vehicle within the meaning of the Motor Accidents Compensation Act 1999. If so, the Claimant’s Statement of Claim was barred by s108 of that Act.

3 The sole issue in this Court is whether her Honour was right in her conclusion that the trolley shunter was a motor vehicle.

4 In evidence is a photograph of the trolley shunter. It is a three-wheel piece of equipment with a built-in motor. There is a handle and a red string which connects to the row of trolleys in front of it. It has the appearance of a lawn mower.

5 The shunter is a pushing device designed to project a row of trolleys. The shunter is attached to the trolleys by a black string and is located under the last trolley. It is not a device on which the operator can stand or sit. It is not designed to carry or contain any object or person. The…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2004] NSWCA 251
Decision Date: 21 July 2004

CaseChat Overview and Summary

In *Hasniyah Murad v Pacific Services Pty Ltd*, the New South Wales Court of Appeal considered whether a "trolley shunter" constituted a "motor vehicle" for the purposes of the *Motor Accidents Compensation Act 1999* (NSW). The dispute arose from an incident involving the trolley shunter, and the central question was whether the Act applied to this specific type of vehicle.

The Court was required to determine the meaning of "motor vehicle" as defined by the Act, and specifically whether a trolley shunter, in its natural and ordinary meaning, fell within that definition. This involved an interpretation of the statutory language and its application to the facts of the case.

The Court analysed the definition of "motor vehicle" and considered its ordinary meaning. It concluded that a trolley shunter, while capable of self-propulsion, did not fit the common understanding of a motor vehicle designed for use on roads or for general transport. The Court found that the Act's purpose and the ordinary meaning of the term excluded such specialised equipment. Leave to appeal was granted, and the appeal was allowed.

Orders

Orders of the court

Leave to appeal granted; appeal allowed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Hasniyah MURAD v PACIFIC SERVICES PTY LTD & Anor [2004] NSWCA 251
HEARING DATE(S):	21/7/04
JUDGMENT DATE:	21 July 2004
JUDGMENT OF:	Spigelman CJ at 1; Handley JA at 31; Beazley JA at 32
DECISION:	Leave to appeal granted; appeal allowed.
CATCHWORDS:	Meaning of "motor vehicle" in Motor Accidents Compensation Act - whether a trolley shunter is a motor vehicle - natural and ordinary meaning of vehicle
LEGISLATION CITED:	Driving Instructors Act 1992 Industrial Relations Act 1986 Motor Accidents Act 1988 Motor Accidents Compensation Act 1999 Motor Vehicle Sports (Public Safety) Act 1985 Road Transport (General) Act 1999 Road Transport (Vehicle Registration) Act 1997 Road Transport (Driver Licensing) Act 1998 Road Transport (Heavy Vehicles Registration Charges) Act 1995 Road Transport (Safety and Traffic Management) Act 1999 Road Obstructions (Special Provisions) Act 1979 Stamp Duties Act 1920 Supreme Court Act 1970 Tow Truck Act 1989 Traffic Legislation Amendment Act 1997 Traffic Act 1909
CASES CITED:	Fawcett v BHP By-Products Pty Limited (1960) 104 CLR 80
PARTIES :	Hasniyah Murad (Claimant) Pacific Services Pty Ltd (First Opponent) David Lim (Second Opponent)
FILE NUMBER(S):	CA 41093/03
COUNSEL:	Mr A Lakeman (Claimant) Mr R Cavanagh (Opponent)
SOLICITORS:	G H Healey & Co (Claimant) Minter Ellison (Opponent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	8552/02
LOWER COURT JUDICIAL OFFICER :	Gamble ADCJ