Markwort v The Nominal Defendant

[1999] NSWCA 267

CITATION:	Markwort v The Nominal Defendant [1999] NSWCA 267
FILE NUMBER(S):	CA 40505/97
HEARING DATE(S):	6 May 1999
JUDGMENT DATE:	23 July 1999
PARTIES :	Janelle Markwort v The Nominal Defendant
JUDGMENT OF:	Mason P at 1; Meagher JA at 6; Beazley JA at 13

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	4397/96
LOWER COURT JUDICIAL OFFICER:	Phegan ADCJ

COUNSEL:	Appellant: J.D. Hislop QC/D. Andrews Respondent: R.R. Stitt QC.
SOLICITORS:	Appellant: Rishworth Dodd & Co Appellant: Abbott Tout.
CATCHWORDS:	Motor vehicle accident - definition of "public road".
ACTS CITED:	Motor Accidents Act, s.27, Western lands Act, 1901.
CASES CITED:	Boyton v Nominal Defendant (1982) 2 NSWLR 509; Carlaw v Nominal Defendant (1992-3) 17 MVR 380;
DECISION:	Appeal dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA: 40505/97
DC: 4397/96

CORAM: MASON P
MEAGHER JA
BEAZLEY JA

Friday, 23 July 1999

Janelle MARKWORT v THE NOMINAL DEFENDANT

JUDGMENT

1   MASON P: I agree with Meagher JA that this appeal must be dismissed. 2   The appellant’s primary submission was that the airstrip as a whole was a “public road” because a track led to the air strip and because vehicles could and did pass along the airstrip after leaving the track. Boyton v Nominal Defendant [1980] 2 NSWLR 509 was cited. Unlike Meagher JA I have no difficulties with the decision or reasoning in Boyton. But it is clearly distinguishable. Members of the public frequently used Hat Head Beach for the purpose of driving or riding motor vehicles. That made it a “place … open to or used by the public” within the definition of “public street” in s2 of the Motor Traffic Act 1909. Hutley JA held (at 513) that “where there is selectivity in those entitled [to] the use of private property [there] is not … a user by the public as a public”. 3   The airstrip was within an extensive grazing property. But the property was held by private owners on statutory lease and, in contrast to Boyton, gates abutting public roads were kept locked and only unlocked for the purpose of allowing access to authorised persons. As Phegan DCJ pointed out, there was no evidence to establish the kind of continuing use which was regarded as an important ingredient in Boyton. 4   His Honour also found that there was insufficient evidence to establish that any track in any meaningful sense ran across the airstrip at the point where the accident happened. I agree. To the extent, which I doubt, that some of the evidence led by the appellant suggested any more than that the airstrip as a whole was available for vehicular passage, His Honour was entitled to reject it. Mr Weekes’ evidence was to the contrary (AB 231-2, 237, 241, 248, 252) and his evidence was preferred by the trial judge. That preference has not been undermined in the appeal. 5   Reliance upon Carlaw v Nominal Defendant (1993) 17 MVR 380 and the…