Morrison v The Nominal Defendant

[1992] HCATrans 331

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IN THE HIGH COURT OF AUSTRALIA

Registry No Cl8 of 1992

B e t w e e n -

RODNEY MORRISON

Applicant

and

THE NOMINAL DEFENDANT

Respondent

Application for special leave

to appeal

DEANE J
DAWSON J

McHUGH J

Morrison 1 12/11/92

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 12 NOVEMBER 1992, AT 12.45 PM

Copyright in the High Court of Australia

MR S.F.C. WILCOX:  May it please the Court, I appear for the

applicant. (instructed by Snedden Hall & Gallop)

MR R.V. GYLES, QC: If Your Honours please, I appear with my

learned friend, MR G.J. LUNNEY, for the respondent.

(instructed by Abbott Tout Russell Kennedy)

DEANE J: Yes, Mr Wilcox?

MR WILCOX: 

Your Honours, I have had, I believe, circulated

to Your Honours already a copy of a two page
document, a summary of argument.

DEANE J: Yes, we have that.

MR WILCOX:  And Your Honour sees that principally, the

argument here concerns the juxtaposition, the co-

operation of two pieces of legislation. One is the

Commonwealth Act and the other is the Territory ordinance, but now called the Territory Act.

Your Honour sees that, in particular, the

section of the Motor Traffic Act which is

principally at issue is section 85, being as it is,

Your Honour, part of the compulsory insurance

scheme which applies in almost all States.

Your Honours see that there are two principal

subsections, section 85(1) and section 85(3). The

first of those subsections, of course, dealing with

a situation where the offending vehicle, so to

speak, is not covered by a compulsory insurance

policy, and the second of those sections, being

subsection (3), being in relatively familiar terms

Australia-wide, dealing with the situation of

hit-and-run drivers in effect. And, Your Honour,

may I just make the observation at this point that

the subsections are worded differently.

Your Honour, it is my submission that the

difference in wording between the two subsections

is capable here of producing a different result.

That is to say that when one considers the

operation of section 44 of the Commonwealth Act to
see what effect, if any, it may have upon the
causes of action in section 85 of the Motor Traffic

Act, one may come to one conclusion in the case of

section 85(1) and another conclusion, perhaps

surprisingly enough, in the case of section 85(3).

Your Honours see that what has happened below

is that Their Honours in the majority have treated

both subsections as being identical for present

purposes, that is, that Their Honours found that

notwithstanding the difference in wording between the two subsections, that one necessarily ends up

Morrison 2 12/11/92

with the same result; that is to say that

section 44 not only bars the remedy but

extinguishes the right, both in subsection (1) and

in subsection (3).

Your Honours, it is the respectful submission

of the applicant here that the right - and we are

dealing principally with subsection (1) - has not

been extinguished, though the remedy has been
barred against certain employers and employees,

notably employees of the Commonwealth statutory

authorities and of the Commonwealth itself.

Your Honour, I have also had circulated - and

dealing with the Commonwealth Act together with the

it was tendered below, and indeed in the Supreme

second reading speech of the minister. I hope that

forms part of the material that was circulated to

the Court.

DEANE J: Well, we have it now, anyway, but I have not

looked at it, so you may wish to take us to

anything you want to point to.

MR WILCOX:  Your Honour, there is very little to take the

Court to. The principal submission concerning both

those documents is that in neither of them is there

any mention of the respondent. Your Honour, both

documents set out of course in the usual way the
purposes for which the legislation is being

presented and principally, apart from some increase

in benefits which the Act brought in, the Act deals

with rehabilitation in a very new way, in a way in

which its predecessors had not dealt with that

subject, obviously with a view, as the documents

say, to getting people back to work.

But, Your Honour, there is no stated

intention, in my submission, in either of the

documents to in any way deal with or eradicate or

extinguish rights of actions such as the right of

action that the plaintiff has here. Now,

certainly, Your Honour, this point was also noticed

and commented upon by His Honour the trial judge,

Mr Justice Higgins. As I say, the documents were

tendered to His Honour in the Supreme Court of the

Australian Capital Territory and His Honour, apart

from dealing with the State legislation and

Territory legislation throughout the Commonwealth,

at page 10 of the appeal book, dealt with the

explanatory memorandum which His Honour, at about point 5 of page 10, supports the view, His Honour says:

that the only rights which are barred bys 44

are the rights (subject to s 45) to commence

Morrison 12/11/92

and/or maintain proceedings for the tortious

injury complained of against the Commonwealth,

Commonwealth authority or Commonwealth

employee (as defined). It is a personal

immunity from suit for the defined employers
and employees.

That was His Honour's summary for relevant purposes, of the explanatory memorandum. While I

am dealing with Mr Justice Higgins' judgment,

His Honour, at page 9, deals squarely with the

wording of section 44 of the Commonwealth Act and,

Your Honour, at page 9, at about point 8 on the

page, His Honour says:

The phrase "an action shall not lie" is apt to bar proceedings for a remedy rather than to extinguish the right to that remedy.

His Honour there cites authority, including

previous authority of this Court, Pederson v Young,

110 CLR 162. And, Your Honour, basically in the

Federal Court issue was joined, so to speak, whereby the majority in the Federal Court took the

opposite view, that is to say that the right of

action - the cause of action against the nominal

defendant - was totally extinguished. It was not

just a matter of the remedy being barred. Needless

to say, Your Honour, two judges have seen it one

way and two another, with, of course, the

distribution being in the wrong place so far as my

client is concerned.

Your Honours, there have been a number of

cases in this Court before, and Their Honours have

dealt with them in the judgments, where the

liability of the nominal defendant has come under

the microscope without there ever having been, so

far as I can find, an absolute definition of the

nature of the liability.	The primary issue,
Your Honours, is of course whether the liability of

the nominal defendant can be said to be a direct

liability or a vicarious liability and,

Your Honours, that is left up in the air so far as

the present authorities are concerned and I can

take Your Honours to those authorities.

There is, Your Honours, a decision of

Holloway v McFeeters, and Your Honours will see

that that is also dealt with in Their Honours'

judgments below, 94 CLR 470, May I take

Your Honours to that, but for relevant purposes may

I take Your Honours to, firstly, page 476. It was

Motor Car Act

a section of the of the State of for present purposes, the point remains that it bears upon the issues here. At page 476 the

Morrison 4 12/11/92

Chief Justice Sir Owen Dixon had this to say, at

about point 4, dealing with the conduct of the

driver - the question was one of agency,

Your Honours, as to whether the conduct of the

driver had any bearing upon the liability of the

nominal defendant and, in particular, whether his

conduct or his missions could be said to be in any

way admissible against the nominal defendant.

His Honour says there that:

As to the view that it is tantamount to an

admission by conduct, the difficulty is that

the driver is not a party to the proceedings

nor is the nominal defendant sued on his

behalf. The admissions of the driver would

not, as such, be receivable in evidence -

and His Honour goes on, demonstrating, in my

respectful submission, the absence of agency

between the driver and the nominal defendant.

DEANE J:  I appreciate this was dealt with in the courts

below but it is not so much a question of agency,

is it, it is really a question of identifying what

the action is.

MR WILCOX:  Yes, Your Honour. On that subject in

particular, Your Honour, may I take Your Honour to

a decision of Blandford v Fox, a decision of the

Supreme Court of New South Wales, 45 SR(NSW), in

which Sir Frederick Jordan, in quite a brief

judgment, had this to say at page 244, obviously
dealing with the New South Wales section, Your
Honour. His Honour, at point 5, says that - His

Honour quotes the section and, Your Honour, that

wording of that New South Wales Act, that

subsection 2(a), is in fact identical with the

relevant subsection of the Motor Traffic Act of the

Territory and His Honour, having quoted the

subsection, goes on to say, at about point 8:

It is to be observed thats 30(2)(a)

creates a new cause of action, it does not

attach a procedural condition precedent to the

commencement of an action the cause of which

is independently complete.

Now, Your Honour, for present purposes I do not

need to take Your Honours further to any other part

of that decision. The submission, Your Honour, is

that if a new cause of action has been created,

then the question is: what is that cause of action.

One answer would be, of course, Your Honours, that

the cause of action is negligence, full stop.

Another possible answer, I would submit, could be

that the answer is negligence against the Nominal

Defendant. That is to say, the Nominal Defendant

Morrison 12/11/92

was specifically created by statute for the purpose
of being the recipient of claims made either under

subsection (1) or subsection (3).

DAWSON J:  You really do have to have a cause of action

against someone; you cannot have a cause of action

in the abstract, can you?

MR WILCOX: If Your Honour pleases. Suffice to say, there

was very little legislation in the Australian

Capital Territory, of course, before 1947. Now,

the compulsory insurance scheme came in in 1947 and

is basically today in the same form as it was then.

Before 1947 there was no such scheme at all and it

was then obviously a matter of suing the driver

and/or the owner in the usual way, there being no

statutory presumption of agency, for example, and

no fund of money from which a successful plaintiff

would necessarily be paid. But there was none the
less a cause of action and, as Your Honour says, it

was a cause of action, following on Your Honour's

remarks, then subsisting against the owner and/or

the driver.

Your Honour, with the introduction of the

legislation into the Territory, with the

introduction of Part V of the Motor Traffic Act,
the question then was: well, what has happened to
the cause of action that previously subsisted

against the owner and/or the driver and,

Your Honour, Sir Frederick Jordan seems to be

saying, in Blandford v Fox, that with the

establishment of the nominal defendant then a

totally new cause of action was created and, once

again following Your Honour's remarks to me just a

minute ago, it was a cause of action specifically

created against the Nominal Defendant.

Now, Your Honour, the question of course is,

can that action be extinguished by legislation,

namely section 44 of the Commonwealth Act, can that

cause of action be extinguished when all, in my

respectful submission, section 44 does is to

protect and render immune from suit those people

nominated in that section, and my simple

submission, Your Honour, is that the Territory Act

and the Commonwealth Act can co-exist, they can

live side by side, the one does not offend the

other, because there is no intention exhibited

anywhere in the Commonwealth Act that the cause of

action against the Nominal Defendant previously

existing, and in my argument, still existing,

should be eradicated, nor does it offend the

language of section 44 to say that the causes of

action in section 85 of the Territory Act still

exist, are still available to bring against the

Morrison 6 12/11/92

Nominal Defendant and to enforce against the N

ominal Defendant.

So that, Your Honour, it is a matter of the

co-existence of the two pieces of legislation, and

Your Honour, that is the central issue in the

matter.

DEANE J:  What do you say about Chief Justice Miles

observation that the circumstances which give rise

to this question are unusual and probably unique?

MR WILCOX:  I do not know what His Honour means by unique,

Your Honour, but unusual yes, unusual. And it is

unusual, Your Honour, perhaps for the - I think

His Honour was there referring to the factual

situation that is presented here.	namely that one
has a motor vehicle which is - - -

DEANE J: Being used by the Commonwealth on a public road

and uninsured.

MR WILCOX: Exactly. I am sure that is what His Honour had

in mind.

Just finally, on the same theme that I have

been putting, may I take Your Honours to the

decision of this Court in Cavanagh v Nominal

Defendant just briefly, Cavanagh v Nominal

Defendant, a decision of this Court, 100 CLR 375.

The case there, Your Honours, dealing with the

equivalent New South Wales legislation, the same

section that Sir Frederick Jordan had been dealing

with in Blandford v Fox. At page 381, right at

point 5, His Honour refers to Blandford v Fox as

the Court sees:

contains an examination of the provisions.

What is said above is supported by the views

expressed by the learned Chief Justice, at all

Honour meant that to make out a cause of	events unless, which seems unlikely, his
action against the nominal defendant the
plaintiff must show that even persons outside
the scope of his direct or vicarious
responsibility had not obtained knowledge or
information of the identity of the motor vehicle.

Now, the only thing I want to draw from that,

Your Honours, is to remark that His Honour the

Chief Justice was there referring to the liability

of the nominal defendant in comparable situations

to the one we have here, as being direct or

vicarious.

Morrison 7 12/11/92

Now, Your Honour, the short point I submit,

with respect, is simply this, that if the nominal defendant's liability is a direct liability, then

it cannot be affected by section 44 of the

Commonwealth Act. If it is a vicarious liability,

depending upon the right of the injured person to

bring suit against the agent, the uninsured driver,

then arguably the right is extinguished.

My argument is that the right is not

extinguished but that the remedy is barred against

certain persons. The right remains. But it is

useful - when I say useful, Your Honours, perhaps

also a little confusing - the use of the words

"direct or vicarious" because it probably cannot be

both.	It must be one or the other, one would
think.

Your Honour, they are the submissions I have,

unless there is anything I can usefully add.

DEANE J: Thank you, Mr Wilcox. The Court will take a short

adjournment to consider the future course of this

matter.

AT 1.10 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.14 PM:

DEANE J:	The Court need not trouble you, Mr Gyles.	The
judgments in the courts below canvassed the

arguments relevant to the question which an appeal

in this matter would raise for the consideration of

this Court. That question is essentially one of
statutory construction.	As Chief Justice Miles

pointed out in the court below, the facts of the
case are unusual. In all the circumstances, we do

not think that an appeal from the actual decision

of the Full Court of the Federal Court would enjoy
sufficient prospect of success to warrant a grant

of special leave to appeal. Accordingly, the

application for special leave to appeal is refused.

AT 1.16 PM THE COURT WAS ADJOURNED SINE DIE

Morrison 12/11/92