Insurance Australia Limited t/as NRMA Insurance v Iuli
[2014] ACTCA 50
•8 December 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Insurance Australia Limited t/as NRMA Insurance v Iuli & Anor |
Citation: | [2014] ACTCA 50 |
Hearing Date: | 4 November 2014 |
DecisionDate: | 8 December 2014 |
Before: | Penfold, Burns and Ross JJ |
Decision: | 1. The appeal to the Court of Appeal is incompetent. 2. The appeal is referred to a single judge for determination. 3. The parties will be heard about the costs of the proceeding in the Court of Appeal. |
Category: | Procedural and other rulings |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – whether appeal competent – appeal lies from final decision of Master to Court of Appeal – appeal lies from interlocutory decision of Master to single Judge – whether Master’s decision was final or interlocutory – declaration is final order, but decision refusing to make declaration is interlocutory – appeal incompetent. |
Legislation Cited: | Road Transport (Third Party Insurance) Act 2008 (ACT), s 7 Supreme Court Act1933 (ACT), ss 9(2)(a), 37E(2)(a)(i) |
Cases Cited: | Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 Coles v Wood and Anor [1981] 1 NSWLR 723 Victoria Legal Aid v The County Court of Victoria [2004] VSCA 113 |
Texts Cited: | PW Young, Declaratory Orders (Butterworths 2nd ed.1984) |
Parties: | Insurance Australia Limited t/as NRMA Insurance (Appellant) Tu’Ulenana Iuli (First Respondent) Bensah Afiabo (Second Respondent) |
Representation: | Counsel Mr J Pappas (Appellant) Mr B Meagher QC with Mr Sharwood (First Respondent) Mr M Treffers (Second Respondent) |
| Solicitors Moray & Agnew Lawyers (Appellant) Maurice Blackburn Lawyers (First Respondent) Minter Ellison Lawyers (Second Respondent) | |
File Number: | ACTCA 75 of 2013 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Master Mossop Date of Decision: 11 October 2013 Case Title: Insurance Australia Ltd. t/as NRMA Insurance v Iuli & Afiabo Citation: [2013] ACTSC 209 Court File Number(s): SC235 of 2013 |
THE COURT:
Background
At about 3am on 29 May 2011, Mr Afiabo (the second respondent) was driving his motor vehicle when he left the roadway and crashed down an embankment near a bicycle and pedestrian underpass, passing under Eggleston Crescent. Some 40 minutes later, at about 3:40am, Mr Iuli (the first respondent) was riding his bicycle to work on the path that ran beneath Eggleston Crescent at the underpass. At that time Mr Afiabo’s motor vehicle was still in the position where it had come to rest after his accident and police were in attendance, but Mr Afiabo was not at the scene. For present purposes it is accepted that as Mr Iuli rode through the area he struck some debris which was on the path as a result of Mr Afiabo’s earlier accident and he fell from his bicycle, sustaining various injuries.
Mr Afiabo held a CTP policy with the appellant Insurance Australia Limited T/a NRMA Insurance (the Insurer) issued under the Road Transport (Third Party Insurance) Act 2008 (ACT) (the 2008 Act). The Insurer sought a declaration that the accident involving Mr Iuli was not a motor accident within the meaning of s.7 of the 2008 Act. If this incident was not a “motor accident” within the meaning of the 2008 Act, then the Insurer will not be required to indemnify Mr Afiabo in relation to any claim brought against him by Mr Iuli. At first instance Master Mossop dismissed the Insurer’s application. The Insurer has appealed his Honour’s decision and that is the matter before the Court.
Competence of appeal
A threshold matter was raised by the Court at the beginning of the listed hearing. The subject of this appeal is an order dismissing an application for declaratory relief. Section 37E(2)(a)(i) of the Supreme Court Act 1933 (ACT) provides that this Court may hear appeals in relation to ”orders of the Master, except interlocutory orders”. A question arises as to whether the order of the Master in the present matter was an interlocutory order. If the order was an interlocutory order then any appeal is to be determined by a single judge of the court, not the Court of Appeal (see s 9(2)(a), Supreme Court Act). This question had not been raised by the respondents in submissions, and when it was raised by the Court all counsel made brief general submissions in support of the proposition that the Master’s decision was a final order and therefore properly before the Court of Appeal.
Declaratory orders
A declaratory order is not an interlocutory order. As PW Young observed in his text Declaratory Orders, Butterworths 2nd ed.1984 at [213]:
[a declaratory order] operates in law either as a res judicata or an issue estoppel and such an order is a final order for the purposes of appeal.
There can be little doubt that a declaratory order is final in character. In Graham Barclay Oysters Pty Ltd v Ryan ((2002) 211 CLR 402) Gummow and Hayne JJ said (at [128])):
’Interlocutory declaration’ is a form of order not known to the law...
Further, in Magman International Pty Ltd v Westpac Banking Corporation ((1991) 32 FCR 1) a five-member bench of the Full Court of the Federal Court allowed an appeal against declarations made by a judge at first instance. Beaumont J, with whom the other members of the Court agreed, cited (at 15) as the applicable principle the statement of Upjohn LJ in International General Electric Co of New York Ltd v Customs and Excise Commissioners ([1962] Ch 784 at 789):
[A]n order declaring the rights of the parties must in its nature be in final order after a hearing when the court is in a position to declare what the rights of the parties are, and such an order must necessarily then be res judicata and bind the parties forever, subject only, of course, to a right of appeal.
Refusal to make a declaratory order
However, this is not an appeal against the making of a declaration; it is an appeal against a refusal to make a declaration.
In the absence of any found or agreed set of facts in relation to the incident, the Master summarised the facts as follows at [3]:
In summary, there was a single vehicle accident involving a car running out of control, colliding with and dislodging various items next to the road. The first defendant collided with debris that had been created by the accident 40 minutes after the accident had occurred. At that stage, the second defendant’s vehicle was still in position but, obviously, all movement of that vehicle had ceased. Police were in attendance but the driver of the vehicle was not at the scene.
His Honour disposed of the matter by saying:
45. In my view, s 7 requires that there be a causal link between the personal injury and the actions of the motor vehicle referred to in paragraph (c) but does not require that the injury is caused during the continuation of one or other of those actions. Therefore, in the present case, subject to the possibility that the debris that the first defendant collided with had been moved by police or someone else after the incident involving the second defendant’s vehicle, because there was a causal link between the personal injury suffered by the first defendant and the incident involving the second defendant’s vehicle which involved one or more of the activities in paragraph (c), the second defendant’s CTP insurance policy would respond to the first defendant’s claim even though the injury occurred some 40 minutes after the accident.
46. As a consequence, in my view it is not appropriate to make the declaration sought by the plaintiff and the appropriate order of the Court is that the application is dismissed with costs.
In Coles v Wood and Anor [1981] 1 NSWLR 723, Moffit P said at 724:
The jurisdiction to make a declaration is discretionary. The dismissal of an application for declaratory relief, as distinct from the making of a negative declaration, does not determine the right sought to be declared, so as to prevent it being litigated in other proceedings. The jurisdiction to grant prerogative relief, for example in the nature of a certiorari, is also discretionary. The refusal of an application for such relief does not determine, finally or otherwise, the rights of any party. Whether the particular reasons given for a refusal of such an order for declaratory or prerogative relief will in a practical sense, be persuasive as to decisions to be given in other proceedings where the existence of the right claimed or its enforcement is at issue, does not stand against the conclusion that the order of dismissal is not final but interlocutory. This conclusion is supported by the approach of the High Court in its recent decision in Carr v Finance Corporation of Australia Ltd (1981) 55 ALJR 397.
Hutley JA made similar comments at 727, and Samuels JA agreed with both the other judgments. See also Victoria Legal Aid v The County Court of Victoria [2004] VSCA 113 at [9].
While a declaration may finalise an issue between the parties, a refusal to make a declaration finalises nothing. In this case, for instance, the Master’s refusal to declare that the circumstances in which the first respondent was injured did not involve a motor accident within the meaning of s 7 of the Road Transport (Third Party Insurance) Act 2008 (ACT) did not finalise any aspect of the matters or possible matters arising between the appellant and the two respondents or between any two of them.
The refusal to make a declaration followed an expression of the Master’s view about the proper interpretation of s 7 that was framed by reference to a set of facts and circumstances that were hypothetical in the sense that they had been neither found by his Honour or any other court nor agreed between the parties for the purposes of the application.
In particular, the Master’s refusal to make the declaration sought does not preclude a subsequent finding, in an action commenced by the first respondent in which the appellant is joined, that there was no relevant motor accident. The Master’s decision may effectively preclude another application for a declaration about the operation of s 7 of the Act, in that any such application might be “doomed to failure” as described in Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 by Gibbs CJ at 248 :
The respondent submits that the appeal is incompetent because the judgment appealed from is not a final judgment within s. 35 of the Judiciary Act. The question whether a judgment is final or interlocutory for the purpose of the rules relating to appeals is one productive of much difficulty. The test now applied in this Court for determining whether a judgment is final or not is whether the judgment or order appealed from, as made, finally determines the rights of the parties: Licul v. Corney [(1976) 50 ALJR 439, at 444]. An order refusing to set aside a default judgment does not as a matter of law finally dispose of the rights of the parties, for it is open to the disappointed defendant to apply again to have the judgment set aside: Hall v. Nominal Defendant [(1966) 117 CLR 423, at 440]. In practice, in some cases a second application of that kind might be successful, for example, when the first application had been dismissed on a technicality. In other cases, however, the second application would be doomed to failure because the issues of substance which it raised would have been decided adversely to the defendant in the first application. The appellants here submit that their right to make a further application is purely theroretical, since any such application must necessarily fail, and urge that in these circumstances the judgment should be regarded as a final one.
3. In my opinion the test in Licul v. Corney requires the Court to have regard to the legal rather than the practical effect of the judgment. If this were not so, the question whether a judgment is final or interlocutory would be even more uncertain than it is at present. In some cases it would be necessary for the Court, for the purpose of determining the practical effect of an order refusing to set aside a default judgment, to embark on a detailed inquiry as to the facts of the matter and the course of the proceedings already taken - an inquiry quite inappropriate when the only issue is whether a right of appeal exists. As will be seen, it would be necessary to make an inquiry of that kind in the present case if the practical test were to be adopted. The rigour of the rule that the legal effect of the judgment is decisive may of course be mitigated by the exercise of the Court's power to grant special leave to appeal.
4. I therefore hold that the judgment appealed from is not a final judgment and that the appeal is incompetent.
However, the impact of the Master’s consideration of the first application is a practical rather than a legal consequence of his Honour’s decision to refuse to make the declaration sought.
Conclusions – appeal to Court of Appeal not competent
For reasons set out above, we are satisfied that the Master’s refusal of the declaration sought by the appellant was an interlocutory order, and therefore that any appeal from his Honour’s decision lay not to the Court of Appeal but to a single judge of the Supreme Court.
As noted above, the parties made general submissions that the appeal was properly before the Court of Appeal. In the circumstances that the court had set aside time to hear the substantive appeal and the parties were ready to proceed with that hearing, the Court decided to hear the appeal without resolving the preliminary point.
In the result, we have decided that the matter is not within the jurisdiction of the Court of Appeal, and should be referred to a single judge for further consideration. Fortunately, the matter has been able to be referred to one of the judges constituting this Court of Appeal who, subject to the agreement of the parties, is willing to determine the appeal on the basis of submissions made to the Court of Appeal.
The parties will be heard about the costs of the proceeding in the Court of Appeal.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: |
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