Moseley v Atherton

[2005] QDC 8

DISTRICT COURT OF QUEENSLAND

CITATION:

Moseley v Atherton & Ors [2005] QDC 008

PARTIES:

RENEE LOUISE MOSELEY (BY HER NEXT FRIEND ALAN DAVID O’BRIEN)
Plaintiff
v
JARROD PAUL ATHERTON
First defendant/First third party
and
DARREN GENGE
Second defendant/Second third party
and
NOMINAL DEFENDANT
Third defendant

DANYELLE HANNA GIDEONA
Plaintiff
v
JARROD PAUL ATHERTON
First defendant
and
DARREN GENGE
Second defendant
v
NOMINAL DEFENDANT
Third defendant

DARREN GENGE
Plaintiff
v
JARROD PAUL ATHERTON
First defendant
and
NOMINAL DEFENDANT
Second defendant

JARROD PAUL ATHERTON
Plaintiff
v
DARREN GENGE
First defendant
and
NOMINAL DEFENDANT
Second defendant

FILE NO/S:

D137 of 2002 (Moseley)
802 of 2002    (Gideona)
356 of 2003 (Genge)
15 of 2004 (Atherton)

DIVISION:

Civil

PROCEEDING:

Determination of separate issues prior to trial of claims

ORIGINATING COURT:

Southport

DELIVERED ON:

28 January 2005

DELIVERED AT:

Brisbane

HEARING DATES:

1, 17 December 2004

JUDGE:

Robin QC DCJ

ORDER:

All proceedings against Nominal Defendant dismissed.  Applications for joinder of Suncorp Metway Insurance Limited as defendant in 137/2004, 802/2002 and 15/2004 refused but with liberty to applicants to renew them

CATCHWORDS:

Plaintiffs injured in collision on track on private land between registered Suzuki motorcycle and unregistered Kawasaki motorcycle – pre litigation steps under Motor Accident Insurance Act 1994 conducted on erroneous assumption both were unregistered and the Nominal Defendant stood as insurer of both – Nominal Defendant denies liability on grounds (a) the motorcycles (the Kawaski in particular) did not require to be registered (or insured) and did not constitute a “motor vehicle” as defined in the Act and (b) the accident location was not a “road” or a “public place” – whether insurer of Suzuki should be joined as defendant when pre-litigation steps directed to it had not been taken

Motor Accident Insurance Act s 4, s 5, s 20, s 33, s 37, s 39 Motor Vehicles Control Act 1975 (repealed)
Uniform Civil Procedure Rules r 69, r 70, r 483(1).

COUNSEL:

Mr P Howard for Moseley
Mr Pope for Gideona
Mr E Howard for Genge
Mrs E. Di Nicola (Articled Clerk) (1^st December only) and Mr Smith (Solicitor) (17^th December only) from Parker Simmonds for Atherton
Mr Wilson SC with Ms Heyworth Smith for Nominal Defendant
Mr Dickson for Suncorp Metway Insurance Ltd (17^th December only)

SOLICITORS:

Davoren Associates for Genge
McInnes Wilson for Gideona
Adamson Bernays Kyle & Jones for Moseley
Parker Simmonds for Atherton
Tress Cox Lawyers for Nominal Defendant
Jensen McConaghy for Suncorp Metway Insurance Ltd

[1]      On 11 September 1999 at least four young people were injured in a head-on collision between two trail bikes being ridden along a “track” running roughly parallel to the course of the railway line at Merrimac.  The riders controlling the bikes were Jarrod Atherton (whose passengers were Danyelle Gideona and Renee Moseley) and Darren Genge.  All are plaintiffs seeking damages against the other of or both of the “drivers” as appropriate, and also against the Nominal Defendant.  If Darren Genge’s passenger was injured, there is no claim by him…