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

12/11/92

TRANSCRIPT OF PROCEEDINGS

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

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

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

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.

Continue reading Morrison v The Nominal Defendant

Details

AGLC: Morrison v The Nominal Defendant [1992] HCATrans 331
Case: [1992] HCATrans 331
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant was the Nominal Defendant, and the respondent was the party seeking special leave. The dispute concerned the interplay between a Commonwealth Act and a Territory Act, specifically section 85 of the Motor Traffic Act, which forms part of a compulsory insurance scheme.

The central legal issue before the court was whether section 44 of the Commonwealth Act operated to extinguish a cause of action under section 85 of the Motor Traffic Act, or merely barred the remedy. This question was particularly pertinent in relation to subsections 85(1) and 85(3) of the Motor Traffic Act, which deal with different scenarios: subsection (1) concerning uninsured offending vehicles, and subsection (3) addressing hit-and-run drivers. The applicant argued that the differing wording of these subsections was capable of producing different results when considered in conjunction with section 44 of the Commonwealth Act.

The applicant's primary submission was that, contrary to the findings of the majority below, section 44 of the Commonwealth Act did not extinguish the right of action under section 85(1) of the Motor Traffic Act, but only barred the remedy against certain employers and employees. The applicant contended that the legislation and its second reading speech did not indicate an intention to extinguish such rights, and that the respondent was not mentioned in either document.

Orders