Hooper v Territory Insurance Office - [2005] NTSC 3

[Back to Main List] [Back to NTSC 2005 List] Hooper v Territory Insurance Office & Anor [2005] NTSC 3

PARTIES: HOOPER, MICHAEL JOHN

TERRITORY INSURANCE OFFICE

AND:

STANFORD, PHILLIP JOHN

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO: No. 220 OF 1997 (9721238)

DELIVERED: 10 FEBRUARY 2005

HEARING DATES: 4 FEBRUARY 2005

JUDGMENT OF: ANGEL J

CATCHWORDS:

HIGHWAYS – MISCELLANEOUS MATTERS

Stock route – whether a “public street” – whether “place open to, or used by, the public” – relevance of Ministerial declaration – whether open to use by the public for a limited purpose rather than use by limited members of the public – whether particular use must be lawful

Crown Lands Act (NT), s 113
Motor Accidents (Compensation) Act (NT), s 4, 6(1)(b)
Motor Vehicles Act (NT), s 5(1)
Stock Routes and Travelling Stock Act (NT)

Chellingworth -v- Territory Insurance Office (1984) 70 FLR 22; Darwin City Council -v- McDonnell & Ors (1998) 8 NTLR 106, applied

Re Maurice's Application; Ex parte A-G (NT) (1987) 18 FCR 163; Ward -v- Marsh [1959] VR 26, considered

Harrison v Hill [1932] SC (J) 13; Ireland v Haesler [1959] VR 4; Schubert v Lee (1946) 71 CLR 589, distinguished

STATUTES – ACTS OF PARLIAMENT

Motor Accidents (Compensation) Act (NT) – meaning of “accident’ - Motor Vehicles Act (NT) - meaning of “public street” – meaning of “place open to, or used by, the public”

Motor Accidents (Compensation) Act (NT), s 4, 6(1)(b)
Motor Vehicles Act (NT), s 5(1)

Chellingworth -v- Territory Insurance Office (1984) 70 FLR 22; Darwin City Council -v- McDonnell & Ors (1998) 8 NTLR 106, applied

Re Maurice's Application; Ex parte A-G (NT) (1987) 18 FCR 163; Ward -v- Marsh [1959] VR 26, considered

Harrison v Hill [1932] SC (J) 13; Ireland v Haesler [1959] VR 4; Schubert v Lee (1946) 71 CLR 589, distinguished

INSURANCE – OTHER INDEMNITY INSURANCES - MOTOR ACCIDENTS COMPENSATION

Vehicle rollover on a stock route – insurer not party to proceedings giving rise to default judgment against insured – default judgment not create rights in the third party against insurer

Motor Accidents (Compensation) Act (NT), s 4, 6(1)(b)

REPRESENTATION:

Counsel:
Plaintiff: R Bruxner
First Defendant: I Nosworthy
Second Defendant: No appearance

Solicitors:
Plaintiff: Cridlands
First Defendant: Ward Keller

Judgment category classification: A
Judgment ID Number: Ang2005003
Number of pages: 13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Hooper v Territory Insurance Office & Anor [2005] NTSC 3
No. 220 of 1997

BETWEEN:

MICHAEL JOHN HOOPER
Plaintiff

AND:

TERRITORY INSURANCE OFFICE
First Defendant

AND:

PHILLIP JOHN STANFORD
Second Defendant

CORAM: ANGEL J

REASONS FOR JUDGMENT

(Delivered 10 February 2005)

[1] By Originating Motion dated 23 September 1997 the plaintiff seeks a declaration that the second defendant (‘Stanford’) is entitled under s 6(1)(b) of the Motor Accidents (Compensation) Act (NT) (‘MACA’) to be indemnified by the first defendant to…

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: [2005] NTSC 3
Decision Date: 10 February 2005

CaseChat Overview and Summary

In the Supreme Court of the Northern Territory, Hooper sought a declaration that Stanford was entitled to be indemnified by Territory Insurance Office (the first defendant) under s 6(1)(b) of the Motor Accidents (Compensation) Act (NT). The plaintiff's wife died in a motor vehicle rollover that occurred on or about 20 February 1990. The rollover occurred on unfenced land in the Northern Territory, within the boundaries of a stock route within the meaning of the Stock Routes and Travelling Stock Act (NT). The primary issue before the court was whether the rollover was an "accident" within s 6(1)(b) of the Motor Accidents (Compensation) Act (NT). The court considered whether the stock route was a "place open to, or used by, the public" for the purposes of the definition of "public street" in the Motor Vehicles Act (NT). The court held that the Arltunga Stock Route is a place open to or used by the public for the purposes of the definition of "public street" and that the accident in which the plaintiff's wife died was therefore an accident within the meaning of s 4 of the Motor Accidents (Compensation) Act (NT). The court also rejected the first defendant's argument that it was not bound by the default judgment obtained by the plaintiff against Stanford in earlier proceedings. The court made the declaration sought by the plaintiff, that is, that the second defendant is entitled under s 6(1)(b) of the Motor Accidents (Compensation) Act (NT) to be indemnified by the first defendant to the extent of the second defendant's liability to the plaintiff arising from the rollover.

Orders