Motor Accidents Insurance Board v Churchman
[2020] TASSC 6
•11 March 2020
[2020] TASSC 6
COURT: SUPREME COURT OF TASMANIA
CITATION: Motor Accidents Insurance Board v Churchman [2020] TASSC 6
PARTIES: MOTOR ACCIDENTS INSURANCE BOARD
v
CHURCHMAN, James
CHURCHMAN, Lynda
FILE NO:3041/2018
DELIVERED ON: 11 March 2020
DELIVERED AT: Hobart
HEARING DATES: 25 March 2019
JUDGMENT OF: Wood J
CATCHWORDS:
Traffic Law – Statutory restrictions or compensation in respect of motor vehicle accidents – Tasmania – Generally – Board exercised discretion to pursue recovery of scheduled benefits arising from motor accident – Whether premium paid "at the time of accident" – Premium and registration renewed after the accident but on the same day – Whether payment retrospectively effective – Effect of subordinate regulations and related legislation – General rule that the law takes no account of fractions of a day – Meaning of "at the time of the motor accident".
Aust Dig Traffic Law [1316]
Motor Accidents (Liabilities And Compensation) Act 1973 (Tas), ss 28B(2)(b), 29, 30, 32(1), 33A.
Motor Accidents (Liabilities and Compensation) Regulations 2010 (Tas), regs 4, 5.
Vehicle and Traffic Act 1999 (Tas), s 5.
Vehicle and Traffic (Driver Licensing and Vehicle Registration) Regulations 2010 (Tas), reg 68(3).
Acts Interpretation Act 1931 (Tas), ss 8A, 8B, 29.
Prowse v McIntyre (1961) 111 CLR 264; Associated Beauty Aids Pty Ltd v Federal Commissioner of Taxation (1965) 113 CLR 662; Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; Greig v Fire & All Risks Insurance Company Ltd [1989] 2 Qd R 563; Certain Lloyd's Underwriters v Cross [2012] HCA 56, 248 CLR 378; Motor Accidents Insurance Board v Bricknell [2017] TASFC 7, 27 Tas R 99; considered.
REPRESENTATION:
Counsel:
Plaintiff: K Read SC
Defendants: P Jackson SC
Solicitors:
Plaintiff: Dobson Mitchell & Allport
Defendants: Tremayne Fay Rheinberger
Judgment Number: [2020] TASSC 6
Number of paragraphs: 113
Serial No 6/2020
File No 3041/2018
MOTOR ACCIDENTS INSURANCE BOARD
v JAMES CHURCHMAN and LYNDA CHURCHMAN
REASONS FOR JUDGMENT WOOD J
11 March 2020
1On the morning of 25 January 2015, Lynda Churchman, the second defendant, was driving a motor vehicle, a Kia Grand Carnival Rio, on the Midlands Highway in Tasmania. Sometime around noon, when she was travelling between Symmons Plains and Perth, the vehicle was involved in a single vehicle collision. Her four passengers, Catherine Churchman, Deana Churchman, Ashton Churchman and Scott Churchman, were injured. The Motor Accidents Insurance Board, the plaintiff in these proceedings, was liable to indemnify the owners or user in respect of liability incurred in respect of those injuries under s 14 of the Motor Accidents (Liabilities and Compensation) Act 1973 (the Act). The plaintiff paid a total of $39,004.30 by way of scheduled benefits in respect of personal injuries sustained by the passengers in accordance with s 23 of the Act, as prescribed by the Motor Accidents Liabilities and Compensation Regulations 2010.
2The first and second defendants were the registered owners of the Kia motor vehicle. The registration of the vehicle and the premium for the use of the vehicle on public streets had expired on Saturday 24 January 2015 at midnight. The defendants renewed the registration of the vehicle and the premium by an electronic transfer of funds made at 10:22pm on Sunday 25 January 2015 for six months. Registration was thereby renewed from 25 January 2015 to 24 July 2015 at midnight.
3The Board has a statutory discretion and may recover an amount it has paid for scheduled benefits if at the time of the motor accident a premium for the use of that vehicle had not been paid. The Board determined to exercise that entitlement and to pursue recovery from the first and second defendants. It brings a claim seeking damages for the full amount it has paid by way of scheduled benefits. The defendants admit that the payments made by the plaintiff under the Act amount to $39,004.30.
4The proceedings were commenced on 5 June 2017 by way of summons in the Magistrates Court of Tasmania. On 15 March 2018, Holt AsJ made an order that the matter be transferred to the Supreme Court of Tasmania pursuant to s 30 of the Magistrates Court (Civil Division) Act 1992. The facts regarding the accident, the payment of scheduled benefits, expiry and payment of the premium and renewal of the registration were admitted in the pleadings or agreed at trial. The only witness called was Kim Steele of the Registration and Licencing Services who gave uncontentious evidence regarding the registration renewal process and the records maintained by the Department of State Growth, in particular, the register of motor vehicles and trailers.
5The Board's entitlement to recover is covered by s 28B of the Act. The plaintiff relies upon the avenue provided by s 28B(2)(b):
"(2)The Board may recover from the person who owned a motor vehicle at the time that motor vehicle was involved in a motor accident resulting in personal injury scheduled benefits paid to that person or any other person in respect of that personal injury if —
(a)that motor vehicle was not a trailer of a kind prescribed for the purposes of section 29(1AA); and
(ab)that motor vehicle was not a permitted out-of-State vehicle in respect of which a third party insurance policy was then in force; and
(b)at the time of the motor accident a premium or interstate premium for the use of that motor vehicle had not been paid or a premium or interstate premium for the use of that motor vehicle in the circumstances or under the conditions in which the motor accident occurred had not been paid."
Subsections (a) and (ab) do not apply here to preclude recovery. There are no other provisions in the Act that would apply to preclude recovery. It is agreed that the plaintiff has taken the step of exercising the discretion it has under s 33A of the Act, determining to recover from the defendants the amounts paid by way of scheduled benefits.
6The plaintiff claims that by virtue of s 28B(2)(b) of the Act, it is entitled to recover from the defendants the amount it has paid. It is pointed out that it is agreed that the premium was not paid until after the accident. It is pleaded for the defendants that, having regard to various provisions under the Act and the Motor Accidents (Liabilities and Compensation) Regulations 2010 (MA Regulations), a premium for the use of the vehicle is taken to have been paid at the time of the accident. The period for which the premium was paid was, or is taken to have been a period commencing from the first moment after midnight on Sunday 25 January 2015.
7This claim turns on the correct interpretation of s 28B(2)(b) of the Act. The question that arises relates to the operation of the section in a case where the premium was paid on the same day as the accident but not until after the accident. It is argued for the plaintiff that the literal meaning of the words of s 28B(2)(b) should prevail, and they give the plaintiff an entitlement to recover. It is argued for the defendants that the phrase "at the time of the motor accident" in the section should be construed to mean at "the date of the accident". The defendants' primary contention is that because of the broader legislative scheme relating to the registration of vehicles, the payment of the premium should be regarded as effective, that is, treated as having been made at the time of the accident. It was contended that consideration of this broader statutory scheme informs the interpretation of s 28B(2)(b) of the Act.
Guiding principles of statutory interpretation
8The question of the meaning of s 28B(2)(b) is to be determined by reference to basic principles of statutory interpretation. These principles are well-established: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]–[70]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 at [46]-[47]; Certain Lloyd's Underwriters v Cross [2012] HCA 56, 248 CLR 378 at [23]-[32], [68]-[70], [88]-[89]. The task of ascertaining the meaning of the section should begin with a consideration of the words of the statute and their grammatical meaning. It is necessary to decide the legal meaning of the relevant provision by reference to the language of the statute viewed as a whole. The task may require consideration of the context, including the general purpose and policy of a provision and the mischief it is seeking to remedy. Section 8A of the Acts Interpretation Act 1931 requires an interpretation that promotes the purpose or object of the legislation to be preferred to one that does not.
9Resort to materials outside the statute is legitimate for the purpose of identifying the policy of the statute in order to better understand the language and intended operation of the statute. Section 8B of the Acts Interpretation Act permits resort to extrinsic materials to illuminate meaning in cases where the ordinary meaning is not clear or causes absurd or unreasonable results.
10The Act and the regulations made under it constitute beneficial legislation: Motor Accidents Insurance Board v Bricknell [2017] TASFC 7, 27 Tas R 99 at [9]. In that case, the Full Court considered a clause in Sch 1, Pt 2 of the regulations under the Act. It was held that "expenses … incurred for the provision of the treatment required by him or her" included rent incurred for the purpose of obtaining medical treatment. Having concluded that the relevant sub-clause was ambiguous, Blow CJ stated that the Act and the regulations constitute beneficial legislation and that:
"Ordinarily beneficial legislation should be given an interpretation favourable to the class of persons intended to be benefited – in this case, persons injured in motor vehicle accidents: R v Kearney; ex parte Jurlama (1984) 158 CLR 426 at 433; IW v City of Perth (1997) 191 CLR 1 at 12; Solicitors' Trust v Oxenbould [2013] TASFC 2, 22 Tas R 235 at [36]."
11His Honour noted at [10] that in 1973, the Act introduced a scheme of no-fault benefits for persons injured in motor vehicle accidents. The benefits payable included the cost of medical and hospital treatment as well as disability allowances for employed persons and housewives. The Act also provided for funeral expenses and death benefits to be paid in relation to fatal accidents. The long title to the Act begins as follows:
"An Act to make provision for the discharge of liabilities in respect of deaths and bodily injuries arising from motor vehicle accidents and for the payment of compensation in respect of those deaths and bodily injuries, and to make provision in relation to the prevention of such deaths and bodily injuries and the management and treatment of such injuries, and for related purposes …."
12The beneficial approach is only invoked in the event of uncertainty as to the meaning of the words: Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48, 237 CLR 285. Furthermore, although the Act is beneficial legislation, this does not mean that all of its provisions are to be so interpreted. There are competing objectives evident from the Act. In fact, the particular section under consideration is one which seeks to confine the beneficial effect of the Act. Section 28B allows for the Board to pursue recovery of scheduled benefits in certain cases. Section 33A ameliorates the impact of s 28B, by providing that the Board has a discretion to pursue recovery, and that considerations of mitigating circumstances and hardship may be taken into account by the Board in the exercise of its discretion. The present task remains one of statutory construction: IW v City of Perth (above) at 12.
13The defendants draw on a general principle of law that the law is not concerned with divisions of a day, and fractions of a day are disregarded: Prowse v McIntyre (1961) 111 CLR 264; Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 446, per Gibbs J. In Forster, Gibbs J referred to Sir William Grant MR in Lester v Garland (1808) 15 VES Jun, at 257 (33 ER, at 752):
"The effect is to render the day a sort of indivisible point; so that any act, done in the compass of it, is no more referrible [sic] to any one, than to any other, portion of it: but the act and the day are co-extensive".
14If an act is done, it is treated as effective from the first moment of the day on which it was done. As stated by Windeyer J in Associated Beauty Aids Pty Ltd v Federal Commissioner of Taxation (1965) 113 CLR 662 at 669:
"I incline to the view that, if nothing to the contrary appears, what is meant is that the result of the act is operative from the first moment of the day on which the act is done – not because the act has a retroactive effect, but because it takes effect instanter, and when a day is spoken of the law does not take cognizance of parts of a day."
The context of the section may reveal to the contrary, and in that case his Honour concluded that the consequences of the act should commence from the last moment of the day of the act.
15In Prowse v McIntyre (above), consideration was given to an expression in a Limitation Act "after their coming to or being of full age" and the principle that the law takes no account of fractions of a day. At 274, Kitto J spoke of the indivisibility of a day: "The beginning of a day is nothing but the end of the day before, and the end of the day is nothing but the beginning of the next; just as the eastern boundary of a piece of land is identical with the western boundary of contiguous land."
16There are exceptions to this principle where it is necessary to distinguish the fraction of a day: per Windeyer J in Prowse at 278. The principle may be displaced if the validity of an act is dependent upon the precise time of an event: Marshall v DG Sundin & Co Pty Ltd (1989) 16 NSWLR 463 at 467. The legal principle does not apply in circumstances where the actual sequence of events is important: South Australia v Slipper [2003] FCA 1414, 203 ALR 473 at [53]; [2004] FCAFC 164, 136 FCR 259 at 489-90.
17The defendants rely upon a decision of Greig v Fire & All Risks Insurance Company Ltd [1989] 2 Qd R 563 as support for their submission that "time" should be construed as meaning "date". The Supreme Court of Queensland construed the meaning of the words "at the time of the accident" in similar legislation, and determined that it meant "at the date of the accident". The case is illustrative of the application and interplay of the various principles of statutory interpretation that arise in this case.
18The provision which required interpretation precluded someone from bringing an action under Northern Territory legislation in respect of injuries received in a motor vehicle accident if they were a resident of the Northern Territory "at the time of the accident". The plaintiff in that matter had resided in the Territory for some time but was moving to Queensland. On the day of his accident, he was travelling to his future residence in Queensland when he was involved in an accident on the Northern Territory side of the border. His claim would not be actionable in the Territory if he was a resident of the Territory at the time of his accident.
19Sheperdson J, with whom Kelly SPJ agreed, noted that at first sight the phrase "at the time of the accident" seems to mean at the moment or instant of the accident. However, the phrase appeared elsewhere in the Act in a context that would suggest the legislature intended the reference would be the date, not the moment of the accident. In particular, the phrase was used in sections concerned with eligibility to bring a claim and time limitations. In concluding that the legislature intended the phrase in question to mean "at the date of the accident", one of his Honour's reasons was that the law, in reckoning time by days, ordinarily takes no account of fractions of a day: Prowse v McIntyre (above) at 280; Forster v Jododex Aust Pty Ltd (above) at 452. Further, there would be considerable difficulties if the same phrase in other provisions of the same statute was construed as referring to the instant of the accident. It was said that provisions imposing time limitations must be construed as referring to the day of the accident, as limitation periods do not run from the instant or moment of an accident: 573.
20It was determined in Greig that in order to give the phrase "at the time of the accident" a sensible meaning and one which is compatible with the rest of the Act, that phrase should be construed to mean "at the date of the accident". The desirability for compatibility arises from the statutory presumption that Parliament intends that a phrase have a consistent meaning wherever it appears in a particular piece of legislation. It can be seen that it was the context and the desirability for a compatible interpretation that led to an interpretation that the phrase referred to the date of the accident: 574.
21On behalf of the defendants, it was submitted that in order to give the phrase "at the time of the motor accident" in the Act a sensible meaning and in view of the statutory scheme, it should be interpreted to be referring to the date, not the instant of the accident. The limited application of the case of Greig to the facts of this case is acknowledged as the determination of each case must depend upon its own statutory context. The case is relied upon by the defendants as an exemplar instance of the influence of context in providing meaning to a statutory provision. That influence is not in question.
22It is convenient to begin the task of statutory construction in this case by considering the defendants' argument regarding the meaning of the phrase "at the time of the motor accident" and whether the phrase appears in the Act other than s 28B(2)(b), either elsewhere in s 28B or in the Act generally and if it does whether the context assists. First, the phrase appears elsewhere in s 28B, other than subs (2)(b).
"At the time of" the accident: elsewhere in s 28B
23Section 28B(2)(a) and (ab) and (4) refers to the time of the accident (appearing in bold):
"(2) The Board may recover from the person who owned a motor vehicle at the time that motor vehicle was involved in a motor accident resulting in personal injury scheduled benefits paid to that person or any other person in respect of that personal injury if —
(a)that motor vehicle was not a trailer of a kind prescribed for the purposes of section 29(1AA); and
(ab)that motor vehicle was not a permitted out-of-State vehicle in respect of which a third party insurance policy was then in force; and
(b)at the time of the motor accident a premium or interstate premium for the use of that motor vehicle had not been paid or a premium or interstate premium for the use of that motor vehicle in the circumstances or under the conditions in which the motor accident occurred had not been paid.
…
(4) The Board may recover from a person who, at the time a motor vehicle was involved in a motor accident resulting in personal injury, was using but was not the owner of that motor vehicle scheduled benefits paid to that person or any other person in respect of that personal injury if –
(a)that person did not have the consent or acquiescence of the owner to so use that motor vehicle; and
(b)the person did not have reasonable grounds for believing that the person had the consent or acquiescence of the owner to so use that motor vehicle."
24The context of subs (4) and the reference to ownership would suggest the reference to time is to the moment or instant of the accident, rather than just a date. Ownership is not a static state of affairs. It is feasible that someone may be an owner for part of a day and thus, ownership as a reference suggests that the meaning of "time" is not date. By contrast, pars (a) and (ab) are concerned with a static status of a vehicle and these sub-paragraphs do not give any meaningful indication as to the meaning of the phrase.
"At the time" used in an offence provision
25Section 29(1) uses the phrase "at the time" in relation to use of a motor vehicle:
"29(1) No person shall use, or cause or allow any other person to use, a motor vehicle in a public street unless a premium has been paid for its use at the time, and in the circumstances and under the conditions, in which it was so used.
Penalty: Fine not exceeding 20 penalty units or imprisonment for a term not exceeding 12 months, or both." (emphasis added)
26When ascertaining the meaning of offence provisions the ordinary rule in Prowse may not apply. There are sound reasons why Parliament may intend a phrase in a penalty provision to adhere to a moment in time. In Beare v Ward [1928] SASR 1, Angas Parsons J considered an appeal arising from a charge of maintaining an unauthorised wireless set. The respondent was the owner, and after a visit from an inspector, and on the same day, he took out a licence. Angas Parsons J overturned the decision of the magistrate which had applied the general principle that the law does not regard fractions of a day. His Honour noted that the general principle is not a rule of universal application and that there are exceptions to it which were explained by Lord Mansfield in Coombe v Pitt (1973) 3 Burr 1423, at 1434, where he stated: "Though the law does not in general, allow of the fraction of a day, yet it admits it in cases where it is necessary to distinguish. And I do not see why the very hour may not be so too, where it is necessary and can be done: for it is not like a mathematical point, which cannot be divided."
27Angas Parsons J referred also to Chick v Smith (1840) 8 Dowl 337 and quoted from Patterson J at 34: "the good sense of the matter is that where it is necessary to show which was the first of two acts, the court is at liberty to consider fractions of a day. The rule of law would otherwise be absurd."
28In Burridge v Manison (1987) 48 NTR 66, Muirhead AJ was concerned with an appeal involving a charge of driving an unregistered motorcycle on a public street. The appellant had promptly registered the motorcycle on the same day as his act of driving. The certificate of registration bore the same date as the date of the offence charged. He was convicted and appealed. On appeal, he relied on the principle that the law does not pay regard to fractions of the day, and that the registration was valid for the whole of the day. Muirhead AJ referred to the judgment of Angas Parsons J in Beare v Ward. Additionally, he referred to Campbell v Strangeways (1877) 3 CPD 105, per Grove J at 107; Wharton v Taylor [1965] Crim L Rev 431 and Haslock v Blyth [1968] Tas SR 1. He went on to state at 69, "These authorities refer to licensing legislation in differing forms (fishing and dog licences) but the principle is, I think, clear. A person who is not in possession of a required licence or registration, contrary to statute, gains no immunity by promptly obtaining the necessary licence or registration on the same day. The offence has been committed – there is no principle of retrospective immunity back to the preceding midnight." For a comprehensive survey of the authorities see Durrant v Gardener [2000] QDC 198.
29The authorities I have referred to weigh compellingly in support of a conclusion that the reference to "time" of use in s 29 refers to a moment or instant of use and not to the date of use. In addition, the plaintiff pointed out sections in the Act allowing for a defence if the vehicle was being used for the purpose of registration or repair: s 29(1C). The argument was that this exclusionary provision would not be needed if the offence provision related to the date of the offence, rather than a moment of use. That is a valid point and further supports the interpretation of s 29 advocated by the plaintiff.
30The statutory presumption that the same meaning should be given to the same word wherever it occurs in a statute (McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633 at 643 per Gibbs J) is subject to exceptions. The presumption of consistent use will not be followed if a different meaning is clear from the context: Murphy v Farmer (1988) 165 CLR 19 at 26-8. The nature of s 29 as an offence provision involves a particular need for precision and a different purpose by contrast with the kind of provision under consideration allowing an entitlement to recovery by the Board. Therefore, s 29 is of limited assistance in divining the meaning of the words in s 28B(2)(b). I turn my consideration to the phrase "at the time of" appearing elsewhere in the Act.
"At the time" of the accident: appearing elsewhere in the Act
31There are other references to the phrase "at the time of the accident" in the Act generally.
32Section 14(4)(c) is an exception to the Board's liability to indemnify an owner or user of a motor vehicle in respect of liability incurred in relation to personal injury to a person resulting from an accident. The subsection provides:
"(4)Subsection (1) does not apply to — …
(c) any liability in respect of the personal injury to a person resulting directly from a motor accident involving a motor vehicle that at the time of the accident was being used for the actual doing of an act, or making of a threat, that is an act of terrorism." [emphasis added.]
33Section 18 provides for the Board to be able to recover payments under Pt 3 from the owner or driver in certain cases. It can be seen that s 18 raises the same question as s 28B(2)(b). Subsection (1) refers to the situation where no premium had been paid "at the time of" the accident, subs (1A) provides an exception if the owner can show the person using the motor vehicle "at the time of" the motor accident did so without the consent or acquiescence of the owner. Subsection (2) applies to that same situation. Subsection (3) refers to recovery when an offence has been committed "at the time of" the accident.
34Section 24 excludes an entitlement to scheduled benefits in certain circumstances. Section 24(1)(g)(i) and (ii), (ga)(i) and (ii) and (h), (1A), and (2)(iv) employ the term "time of the accident". Section 24(1)(g)(i) and (ga) are similar to s 28B(2)(b) in that they are concerned with the time of an accident and whether a premium for use of the motor vehicle had been paid. They raise the same question as arises in relation to s 28B(2)(b). Subsection 24(g)(ii) refers to "at the time of the motor accident the injured person … was the driver of the motor vehicle". It would make sense for the driving and the time of the motor accident to coincide, and suggests the subsection is concerned with the moment of the accident. Section 24(ga)(ii) is in similar terms and relates to interstate residents and interstate premiums.
35Section 24(1A) is concerned with permitted out-of-State vehicles and whether a third party insurance policy was in force at the time of the accident giving rise to a similar question as s 28B(2)(b) without shedding new light on the question. Subsection (2)(a) deals with various exclusions to liability to pay a medical benefit, disability benefit or disability allowance in respect of personal injury resulting from a motor vehicle accident in cases where a person is convicted of various offences arising out of his driving a motor vehicle at the "time of the motor accident". If "time of the accident" means date of the accident rather than a fraction of time coinciding with the accident, there would an illogical outcome whereby an offence committed at some other time on that date would preclude an entitlement to benefits under the Act.
36Section 24(3) and (3A) concern a person who was unlicensed at the time of the accident and begs the question whether we are concerned with date or time. It can be observed that if the subsections are tied to a date then the legislative concern in subs (3) about unlicensed drivers would be undermined because unlicensed people could renew their licences subsequent to but on the same date of the accident.
37Section 27A(2) provides that if a court is satisfied, at the time of giving judgment in respect of a liability incurred for the payment of damages to a person for personal injury resulting directly from a motor accident , that the person requires daily care, the court is to certify that the person requires daily care. This subsection works best if "time" relates to moment, not date, as it would be unwieldy to certify after judgment. However, it provides little assistance.
38A similar expression, "the time" is used in s 21(1)(b) suggesting a time of day. The terms of s 22(3), "was not wearing a seatbelt at the time", suggest a moment co-existing with a motor accident, rather than a date.
39Schedule 2(2) of the Act enables the Board in certain circumstances to recover from the insurer under the policy that was in force "at the time of the accident". That provision works best if "time" here means the moment of the accident, rather than the date.
40The plaintiff points to the phrase "at the time of" appearing in the MA Regulations, as suggesting moment or instant, rather than date. However, the general rule is that regulations made under an empowering statute should not be used to glean the meaning of the same word in the statute: see Pearce and Geddes, Statutory Interpretation in Australia, 8th ed (2014) at [3.41].As will be seen, there are exceptions to the general rule, invoked by the defendants in the context of their principal argument. Without deciding at this stage whether it is permissible to have regard to the regulations, I note that if it is permissible, they do not suggest a different meaning than that suggested by the Act.
41Counsel for the plaintiff pointed to the phrase "at the time of a motor accident" appearing in the definition of spouse in the MA Regulations, but it does not assist because the reference is to a situation of some permanence. The phrase also appears in Sch 1, Pt 5, cl (3)(2) of the same regulations in the context of the employed person's allowance. Part 5, cl 3(2)(a) refers to a reasonably static state of affairs that may be extant at a moment in time or a date or a longer period: "at the time of the motor accident ... the injured person was engaged in an employment or occupation for remuneration or profit". The use of the phrase in cl (3)(2) (b) and (c), suggests that the phrase is used to mean moment not date. Part 5, cl 3(2)(b) provides, "at the time of the motor accident … the injured person was travelling directly from his or her place of residence …". Subclause (c) refers to the "day of the accident", which contrasts with "time of the accident", supporting the plaintiff's argument that time does not mean day.
42The phrase "at the time of the accident" also appears in Pt 5, cls 4 and 5. These provisions refer to a state of affairs that would likely subsist for a day or longer, for example "at the time of the motor accident the person normally carried on household duties". Another example is the provision for unborn children in Pt 1, cl 4, and the contingency that a woman was pregnant at the time of the accident. Such provisions do not suggest that "at the time of the motor accident" must mean a date rather than a divisible part of a day.
Contrasting expressions
43The defendants point out that the word "occurrence" is used elsewhere in the Act instead of "at the time of" and that this suggests a contrasting meaning, and supports the argument that the phrase in s 28B(2)(b) is a reference to date rather than a fraction of a day or moment of time. There is a reference to "occurrence" as opposed to "time" in s 16(2) of the Act:
"(2) No action lies against the Board under this section unless notice of intention to make a claim, together with a short statement of the grounds thereof, is given to the Board within the period of 3 months following the occurrence of the motor accident as a consequence of which the liability in respect of which the action is brought is alleged to have arisen or within such further time as the court may, on application made not later than 9 months after the occurrence of the motor accident, allow."
44Section 16 and the word "occurrence" is used to reference an event and is concerned with reckoning a period from that event. Section 29 of the Acts Interpretation Act has application. This section provides that any period of time reckoned from a given day, act, or event, shall be reckoned exclusively of that day, or the day of that act or event. The use of the word "occurrence" is used for a specific purpose and does not assist one way or the other in ascertaining the meaning of "time".
45The Act uses the phrase "date of the accident" in s 2(5). The use of this phrase may be thought to suggest a distinction between "date" and "time". However, it is not helpful in this regard because it is concerned with a "period" of time and it can be assumed that the drafters may have in mind the usual approach to statutory interpretation, found in s 29 of the Acts Interpretation Act that the day would be excluded from the reckoning of the period and therefore no significance would attach to the use of the words, either date or time, in this context.
Conclusion as the meaning of "at the time" of the accident
46It can be seen from the other provisions in the Act and regulations that employ the phrase "at the time of the accident" that it does not appear that the phrase was intended to mean date of the accident. Section 29, as an offence provision, does not assist for the reasons I have given. In some instances it would be of no moment if the phrase was given that meaning because the section is dealing with a state of affairs that has some permanence. In other provisions, it makes sense if time means the moment of the accident not the date, for instance, s 14(4)(c). Unlike the case of Greig, the phrase "at the time of the accident" has not been used elsewhere in the Act to mean date of the accident.
47The reliance on the general rule that the law does not take account of fractions of a day is misplaced when construing the words in s 28B(2)(b) "at the time of the accident". The words themselves denote a divisible part of the day. The section is concerned with a question of which happened first in time, distinguishing between an accident and whether the premium had not been paid. It would seem to thwart the purpose of the legislation that someone should be able to renew their registration after the accident and avoid any ramifications under the provision. It also seems an arbitrary result vis-a-vis the person who does not do that. The legal principle should not be invoked so that the expression "at the time of the accident" means at the date of the accident rather than a time commensurate with the accident.
48I can detect no support for the argument advanced for the defendants that "at the time of the accident" should be construed to mean at the date of the accident. The ordinary meaning of "at the time of" should prevail. The defendants' principal contention remains to be considered. The question is whether for the purpose of s 27B(2)(b), the premium for the use of the vehicle should be regarded as having been paid at the time of the accident.
Contentions on the legislative scheme
49The main argument advanced by the defendants is that the broader statutory scheme illuminates the way s 28B(2)(b) operates. A Certificate of Premium Paid having come into force from midnight on 25 January, a premium must be taken to have been paid "at the time of the motor accident."
50It is submitted that the requirement for payment of premium imposed by s 30 of the Act is inextricably part of the vehicle registration scheme established by Pt V of the Vehicle and Traffic (Driver Licensing and Vehicle Registration) Regulations 2010 (V&T Regulations) pursuant to s 39 of the Vehicle and Traffic Act 1999 (V&T Act). This legislation, together with the Act and the subordinate legislation, are separate pieces of interrelated legislation which operate together; the operation of relevant provisions in each being dependent on provisions in the others.
51Regulation 5 of the MA Regulations and related provisions in the vehicle registration scheme, are said to operate as deeming provisions that should be used to inform the interpretation of s 28B(2)(b) as to when a premium for the use of a vehicle involved in an accident had been paid, or is to be regarded as having been paid.
52The effect of reg 5 is that in the particular circumstances of this case, the defendants having made application to renew the registration of the vehicle and paid the premium, a Certificate of Premium Paid was in force from midnight on 25 January 2015 so that for the purposes of s 28B(2), a premium is to be taken to have been paid for the use of the vehicle at any time thereafter, and therefore, at the time of the accident.
53It is argued for the plaintiff that the various pieces of legislation do not amount to an interrelated scheme, and reg 5 does not govern the interpretation of s 28B(2) of the Act. It is pointed out on behalf of the plaintiff that the interpretation advocated by the defendants would result in a grace period of 28 days in which a registered owner may pay their premium and not be liable to recovery proceedings under s 28B(2). This would lead to capricious results depending on arbitrary factors such as awareness by the owner of the accident. Regulation 5 does not provide a grace period but rather deals with the situation where the owner knows the vehicle will not be used for a period after expiry of their registration. Regulation 5 does not inform s 28B at all. Alternatively, it is contended by the plaintiff that if reg 5 does operate as a grace period it is ultra vires the Act.
The nature of the legislative scheme
54Before considering aspects of the legislation relied upon by the defendants, the following is noted as general background. The Board's liability to make payment of scheduled benefits is not dependent on the registration of the vehicle involved in an accident: s 23 of the Act. Payment of the premium provides the owner of the motor vehicle with indemnity. If a premium has not been paid by the owner then that grounds the Board's entitlement to recover scheduled benefits that have been paid out.
55Section 28B(2)(b) of the Act refers to payment of a "premium" and "motor vehicle". These terms are defined in s 2(1) of the Act. The term "motor vehicle" is defined by reference to the definition of motor vehicle in the V&T Act. The word "premium" is defined as a premium payable under s 30 of the Act. Section 30(1) provides:
"30(1) In accordance with this Part premiums are payable for the use of vehicles, and, subject to this Act, those premiums shall be paid over to the Board."
56Section 32(1) provides:
"32(1) Where a premium is paid in respect of a motor vehicle that premium is paid for the use of that vehicle during a specified period, and may be so paid for its use only so long as specified conditions are complied with."
57Section 33(1) of the Act provides that premiums shall be paid as prescribed. Subsection (2) provides for the making of regulations and in subs (2)(a), that regulations may prescribe the persons to whom, and the manner in which, premiums are to be paid.
58Section 33(4) of the Act provides that the Registrar is to record the payment of any premiums and the refund of the premiums (s 33(4)(a)) and significantly for the defendants' argument, s 33(4)(c) of the Act requires that the Registrar record "the period for which any such premium is paid."
59The question that arises from these provisions is if payment is after the accident but the period of use extends to a time before the accident, has a premium been paid at the time of the accident for the purpose of s 28B(2)(b).
60The vehicle registration scheme contained in Pt 5 of the V&T Regulations creates a link between registration and premiums. Regulation 103 provides that a motor vehicle is not to be registered, nor is registration to be renewed, unless any applicable third party insurance premium for the period of registration has been paid in respect of the vehicle. The regulations define "third-party insurance premium" to mean an insurance premium payable under the Act.
61Another linkage is that the Registrar is appointed under s 5 of the V&T Act, with functions in respect of registration, but also functions are imposed upon him or her by the Act and by the MA Regulations in respect of premiums: the Act, s 33; MA Regulations regs, 4, 6, 7, 12, 13, and 15(c).
62There are provisions that mean that the payment of registration and premiums have an effect or consequence at a time before payment of any registration fee or premium is actually made.
63As noted, the defendants' argument relies heavily on the regulations forming part of the so-called scheme, namely, the MA Regulations and the V&T Regulations to illuminate the meaning of s 28B(2)(b) of the Act.
64Regulation 4 of the MA Regulations provides that a person may apply to the Registrar for a Certificate of Premium Paid. "Certificate of premium" is defined in the same regulations, reg 3, as "a certificate issued by the Registrar on receipt of a premium paid in respect of a motor vehicle specified in that certificate".
65The Registrar is to issue a Certificate on receipt of an application and is to record the particulars required to be recorded under s 33(4) of the Act.
66The defendants rely on reg 5 of the MA Regulations as informing the interpretation of s 28(B)(2)(b). Regulation 5 provides:
"A Certificate of Premium Paid remains in force —
in the case of a registered motor vehicle, for the same period for which the registration in respect of that vehicle remains in force; or
(b) in the case of an unregistered motor vehicle, for 12 months commencing —
(i)on the date of payment of the first premium; or
(ii)where a premium is paid within 28 days of the expiration of the immediately preceding period for which that certificate was in force, on the expiration of that preceding period; or
(iii)where a premium is paid more than 28 days after the expiration of that preceding period, on the date of payment of the premium."
67In this case, both renewal of the registration of the vehicle, upon payment of the required fee, and payment of a premium, occurred within 24 hours of the expiration of both the previous registration period and the previous period in respect of which a premium had last been paid. It is argued for the defendants that the effect of reg 5 is that a premium is taken to have been paid for the use of the vehicle at the time of the accident, and the vehicle is taken to have been registered at that time.
68Regulation 14 of the MA Regulations provides that an extract of records kept under s 33(4) of the Act and certified is evidence of the facts contained in that extract.
69Regulation 68(3) of the V&T Regulations is also relied upon by the defendants. It provides:
"68(3) If the registration of a vehicle (not being seasonal registration) is renewed on an application for the renewal made after the expiry of the previous registration period, the period for which the registration is renewed is taken, for the purpose of calculating the appropriate registration payment and the date when the registration will next expire, to run from the day after the expiry of the registration but the vehicle is to be regarded, for all other purposes, as unregistered from the day after the date of expiry until the date of renewal."
70When registration is renewed after expiry, reg 68(3) deems registration to run from the day after the expiry of the registration. But this deeming provision only operates for the limited purpose of "calculating the appropriate registration payment and the date when the registration will next expire". The regulation provides that "for all other purposes" the vehicle is to be regarded as unregistered from the day after the date of expiry until the date of renewal.
The submissions on whether legislation deems payment to have been made before the accident
71It was submitted for the defendants that the emphasis in the Act (ss 32(1) and 33(4)), is on payment of premium for the use of a vehicle during a "specified period" and not from a specified point in time. This is consistent with the general principle that the law disregards fractions of a day. The particulars recorded by the Registrar in compliance with s 33(4)(c) are entirely consistent with the relevant statutory provisions. They record the period for which the premium was paid as commencing on 25 January and ending at the expiration of six months on 24 July 2015. It was argued that if the Registrar's records show that a premium is paid for the use of a vehicle in respect of a particular period, it cannot be open to conclude, that for the purposes of s 28B of the Act that at any time within that period, a premium had not been paid for the use of that vehicle. The following extract taken from the defendants' written submissions highlight the approach taken:
"For the purposes of s 28B(2)(b) therefore, in order to determine whether at the time of the relevant motor accident a premium for the use of a motor vehicle involved in the accident had been paid it is necessary:
(a)to first determine for what specified period, by virtue of s 32(1), a premium was paid; and
(b)Then determine whether the point in time when the accident occurred fell within that specified period."
72In this case, renewal of the registration of the vehicle and payment of a premium occurred within 24 hours of the expiration of the previous registration period and the previous period in respect of which a premium had been paid. Because of the statutory scheme, a premium is taken to have been paid for the use of the vehicle at the time of the accident, and the vehicle is taken to have been registered at that time.
73It was further argued for the defendants that because of the terms of reg 68(3) of the V&T Regulations, upon payment of the registration, there was no period when the vehicle was unregistered. In this case, the date of expiry and the date of renewal are one and the same – 25 January 2015 and that date commenced at midnight. In this context, the defendants relied on the principle that the law does not take cognisance of parts of a day. The result of the act of renewal at 10:22pm on 25 January became operative from the beginning of that day and the end of the day before. The defendants argue that the result is that on the facts of this case, the defendants' vehicle is to be taken to have never been unregistered for the purposes of the vehicle registration scheme.
74It is submitted that as a result of the application of reg 68(3) of the V&T Regulations, the vehicle was registered, and reg 5(a) of the MA Regulations applies. If this is correct, at the time of the accident occurring, registration was in force, and by virtue of that and the effect of reg 5(a), a Certificate of Premium Paid was also in force. It is submitted that a Certificate of Premium Paid being in force, it must follow that a premium must be taken to have been paid in respect of the vehicle at all times from midnight on 25 January.
75In the alternative, it is argued for the defendants that if it is supposed that until the precise time when payment of the premium was made, the defendants' vehicle was unregistered, then reg 5(b)(ii) of the MA Regulations becomes relevant. It is submitted that reg 5(b)(ii) gives full force and effect to a Certificate of Premium Paid from a point in time before payment of premium is actually made and ensures that in the circumstances specified in the provision, there will be no period during which there is not a Certificate of Premium Paid in force in respect of the vehicle. Therefore in this case, even if the defendants' vehicle is taken to have been unregistered at the point in time when payment of the premium was made on 25 January, reg 5(b)(ii) means that upon payment of the premium, a new Certificate of Premium Paid came into force commencing on 25 January from midnight and was therefore in force at the time when the accident occurred. It was argued that for the purpose of s 28B(2)(b) of the Act, payment has retrospective operation so that the premium was paid at the time when the accident occurred.
76Counsel for the plaintiff argued against the construction that would preclude recovery under s 28B if registration occurred within a 28 day grace period. It was pointed out if that reg 5(b)(i) and (ii) of the MA Regulations are to influence the construction of s 28B then so must reg 5(b)(iii). Regulation 5(b)(iii) provides that a Certificate of Premium Paid remains in force "where a premium is paid more than 28 days after the expiration of that preceding period, on the date of payment of the premium." The registration of a motor vehicle, if renewed many months after expiry, would result in a hiatus until the date of renewal. But if the premium was paid on the day of the accident, that would mean that there was a Certificate of Premium in force on the day of the accident. Such a construction is said to be contrary to the purpose of the Act. A person could avoid recovery under s 28B by simply renewing their lapsed registration on the day of an accident. All sorts of capricious results eventuate depending on whether the owner is aware of the involvement of their motor vehicle in an accident, and their capacity to renew registration on the day, dependent on the level of their injury.
77As a source of income, the payment of premiums enable the Board to satisfy its objectives under the Act. These objectives have an obvious benefit to society, arising from provision of a no-fault insurance scheme. These objectives are funded by premiums. The construction urged by the defendants would encourage motorists not to renew their premiums, undermining the Board's source of revenue.
78In reply, the defendants argued that reg 5(b)(iii) need not be read to give literal effect to the expression "on the date of" payment of the premium. Regulation 5(b)(iii) may be flawed. In subpar (ii), the period of cover commences immediately on the expiration of the previously preceding period. In subpar (iii), by contrast, the period of cover only commences on the date when payment of the premium is made. It may be noted that s 29 of the Acts Interpretation Act does not apply to exclude that date, as it applies to any period of time "from a given day" and here, the regulation provides for a period of time commencing "on" a given day. Counsel for the defendants made the point in argument that it may be that an error was made by the makers of the regulations in not excluding the day of payment.
79It was argued on behalf of the defendants that the words of the sub-regulation should be interpreted to give it a meaning that would exclude the day of payment, and it would be reasonable to infer that is what Parliament would have intended. It would make good sense for the scheme to provide for a period of grace that is limited to 28 days, and it is consistent with the sort of provision that is seen in the context of private liability insurance.
Guiding principles on reference to a scheme of legislation
80When a number of Acts form a single scheme of legislation, it is proper to have regard to all of those Acts for the purpose of construing expressions used in any one of them: Sweeney v Fitzhardinge (1906) 4 CLR 716 at 726 per Griffith CJ; Howell v Macquarie University [2008] NSWCA 26 at [55] per Campbell JA (Spigelman CJ and Bell JA agreeing).
81In Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719, Kirby P commented upon the approach to be taken to inter-related statutes:
"… it is proper for courts to endeavour to so construe inter related statutes as to produce a sensible, efficient and just operation of them in preference to an inefficient, conflicting or unjust operation. …
[I]m construing the legislation under consideration here, I prefer that construction which is available in the language use and which facilitates the sensible operation together of the four statutes mentioned, avoiding inefficiency and the capricious operation of revenue law which would seriously impede or discourage the availability of beneficial statutory provisions for the sale or partition of property held by co-owners. In the case of ambiguity of the legislation I consider this to be the modern approach which the Court should adopt in implementing the will of Parliament. We should presume that Parliament intended its legislation to operate rationally, efficiently and justly, together."
82In deciding whether two statutes form part of a single legislative scheme, it is not enough that they have some wider common purpose and some connection, rather, they must operate together: Certain Lloyd's Underwriters v Cross (above) at [97] per Kiefel J. There are various factors to be considered including whether provisions have identical areas of operation ([9] per French CJ and Hayne J at [9], Kiefel J at [99]), whether they have interdependent characteristics ([97]-[99] per Kiefel J), and whether the Acts share common exclusionary provisions ([9]-[12] per French CJ and Hayne J and [101] per Kiefel J). While the submissions point to connections between the statutes and the regulations, the submissions do not seek to establish, and do not demonstrate a legislative scheme in the sense identified by the High Court.
Resort to delegated legislation for the purpose of interpreting s 28B(2)(b)
83As has been seen the defendants' argument relies heavily on the regulations particularly the MA Regulations, but also the V&T Regulations, to ascertain the meaning of s 28B(2)(b) of the Act. The general rule is that delegated legislation made under an Act should not be taken into account for the purpose of interpretation of the Act itself: Pearce and Geddes (above), at 133-4. It may be noted that it is the governing Act that determines the meaning of expressions that are used in the Act and the regulations: Acts Interpretation Act, s 19.
84There are exceptions to this general rule. If there are regulations that, together with the principal Act, form part of a legislative scheme, it may be useful to refer to them to ascertain the nature of the scheme: Pearce and Geddes (above) at 135 and the cases referred to. There is an important distinction to be noted here. As stated by Mason J in Bryson Motors Pty Ltd (in liq) v Federal Commissioner of Taxation (1985) 156 CLR 651 at 652: "One looks at regulations, not to construe an overall scheme or to throw light on ambiguity in a statutory provision, but to ascertain what the scheme is". There are other exceptional situations where it may be permissible to refer to regulations as an aid to the interpretation of an ambiguous statutory provision, usefully referred to by Pearce and Geddes at 135:
·"Where a contemporaneously prepared Act and set of regulations establish an interdependent regime.
·If a statutory provision permits exceptions to be made to it by regulations.
·Where a section of an Act expresses itself as subject to regulations."
85Of course, reference to delegated legislation as an aid would only be permissible if the regulations are within the scope of the Act and not ultra vires.
86It does not appear that the Acts of Parliament in question were "contemporaneously prepared" or that the other two exceptions have application. However, reference will be made to the regulations for the limited purpose of ascertaining the nature of the legislative scheme in the sense of the operation of the various provisions in the statutes and regulations referred to. This approach could pose difficulty for the defendants' arguments which rely heavily on the regulations to divine the meaning of s 28B(2)(b).
Does the legislation deem payment to have been made before the accident?
87The question is whether s 28B(2)(b) properly construed, precludes recovery if the time of the accident fell within the period of use of the vehicle as a consequence of payment of the premium or whether the section requires that the transaction of payment must have occurred before the motor accident.
88Section 28B(2)(b) must be read in light of the rest of the Act. The Act makes it clear that the premium is paid for use for a "period". This is seen in s 32(1) which provides that when a premium is paid, it is paid for the use of a vehicle during a "specified period". The Act allows for a record to be made of the "period for which any premium is paid": s 33(4)(c). There is nothing in the Act, related legislation or, for that matter, the delegated legislation referred to, that suggests that a premium is payable from, or to, a divisible part of a day on a date. As has been seen, registration runs date to date and the Certificate of Premium Paid remains in force and runs date to date if there is renewal within 28 days of expiry. Regulation 68(3) of the V&T Regulations also suggests that registration is effective date to date not by reference to time on a date and so, only if registration is not renewed until after the day after expiry would a vehicle be unregistered.
89The ordinary principle that the law does not recognise parts of a day applies, and is inherent in the usual notion of a period of time. This reinforces the proposition that under the Act, the period is paid for use for a period and that could only mean date to date.
90Therefore, the effect of payment of the premium is that the premium is paid for the use of the vehicle during a specified period that runs from date to date. The period is not bookended by times on the beginning and end dates. Further, the statutory obligation to record the period, is to record commencement and end dates.
91It is also clear that the commencement of the period of use is not tied to the time of payment. The specified period of use may conceivably cover a period that commences at a time prior to the time of the accident. If a person renews their registration and premium within 24 hours of expiry, the result will be consecutive and seamless periods with no hiatus. These observations are based on a consideration of the Act, and do not rely on the application of reg 5 of the MA Regulations.
92The evidence and agreed facts are informative about how the legislative provisions are applied in practice and the record that was made by the Registrar in this case. When the defendants paid the premium and registration at 10:22pm on 25 January 2015 for a period of 6 months, that period commenced on 25 January 2015 and expired on 24 July 2015 at midnight. The evidence demonstrates that generally, a certificate of registration and a Certificate of Premium Paid are issued together, and that expiry is at midnight on the day ending the period. Records of the Registrar held for the preceding six months show the registration period as having expired on 24 January 2015 and a new period as commencing on 25 January 2015, but that payment must be by midnight on 24 January 2015. While the evidence of what was in fact recorded cannot assist in an interpretation of s 28B(2)(b) of the Act, it is valid to observe that the evidence in this case as to the record made and kept by the Registrar is consistent with the terms of the Act.
93Because we are concerned with a date to date period and a case where renewal occurred within 24 hours of expiry, the premium that was paid covered the use of that vehicle during a specified period that commenced on the first moment of 25 January. The fact of payment of the premium on the date of the accident meant that the premium was for the use of the vehicle at the time of the accident. As a consequence of this point, there is some force in the defendants' submission that it is incompatible with the Act that the Board may recover scheduled benefits under s 28B(2)(b) when the Act allows for the payment of the premium to have effect for use of the motor vehicle from midnight before the motor accident. In one sense, to ascertain whether there was a hiatus on the day of the accident so that the premium had not been paid would become clear at the last moment of 25 January. Then it would be known whether payment had been made for that date. If it was paid by midnight, the period for which the premium is paid would continue without any pause. Put another way, the premium having expired at midnight on one date, the defendants had until midnight of the following day to pay for their premium so that there would be seamless coverage.
94It is a surprising result if, within that 24 hour period, the Board may recover from the owner of the motor vehicle scheduled benefits when the opportunity to seamlessly extend the period does not expire until the last moment of that 24 hour period. If payment is made within the 24 hour period it is effective so that at the time of the accident the use of the vehicle fell within the specified period and in that sense, payment was effective. However, the words in s 28B(2)(b) are not to be given a meaning for the purpose of best accommodating the facts of this case involving payment within 24 hours post-expiry. The question is of course, what the words mean for all cases.
95If the question arising from s 28B(2)(b) of whether payment is made at the time of the accident may be determined with reference to what occurred after the accident, then so it would be for all cases, including cases where the accident occurred days or even weeks after a premium had expired and payment was made on the day of the accident.
96Before I turn to the effect of the regulations, I should consider in this context the general rule that the law regards the day as not divisible and whether the principle applies to the act of payment. It was submitted that the act of renewal at 10:22pm is operative from the beginning of that day, namely, before the accident. The argument is that that the legal fiction applies so that under s 28B(2)(b), the act of payment is treated as "co-extensive" with the day and is operative from the first moment of the date on which it was made. This submission is similar to the argument regarding the words "at the time of the accident". It may be noted that if this argument regarding the act of payment was to be accepted, there would be no need for the defendants to rely on reg 5 of the MA Regulations.
97This general rule does not apply to the act of payment, for much the same reasons as it did not apply to the phrase at the "time of the accident". Again, this principle does not sit well with the terms of s 28B(2)(b) which are concerned with a divisible part of a day, namely the moment of an accident. The section is concerned with the sequencing of events, and whether with reference to that divisible part of the day, something else had occurred, namely, a premium had been paid.
98The implications of the legal fiction also weigh against its application. If payment of a premium on the day is treated as operative from the first moment of the date on which it was made, then in any case where the premium was paid on the same day as the accident, it would be treated as paid for the purpose of s 28B. This would substantially undermine s 28B and undermine the scheme in relation to payment of premiums identified in the plaintiff's submissions, set out above at [77]. It would mean that regardless of when the premium expired, a person could protect themselves from recovery by the Board.
99I have had regard to the regulations referred to by counsel for the defendants. As previously noted, it is legitimate to take the regulations into account as illuminating the operation of various provisions, in one sense the nature of the legislative scheme (the term "legislative scheme" is used in a general sense as connected legislation, not as a single inter-related scheme). The regulations assist in understanding the effect of payment of premiums. This approach of taking reg 5 of the MA Regulations into account does not offend the principle concerning the limited influence of regulations, because it is not done for the purpose of ascertaining the meaning of words in a section of the Act.
100If the registration lapses but is renewed and the premium is paid within 24 hours or 28 days of expiry, a Certificate of Premium Paid is in force at a time when it had not been paid. Clearly, it was contemplated by the drafters of the Act and specifically provided for in the regulations that payment of a premium may have a retrospective effect. As has been seen, payment of the premium after the accident but on the day of the accident means that the premium is paid for the use of that vehicle, the period of use encompassing the time of the accident.
101Also, it can be seen that the Act and regulations under the Act, make provision for a record to be made by the Registrar which shows the period for which any such premium is paid, commencing on a particular date, here, 25 January. It is acknowledged that there is a tension between the record and the assertion of the plaintiff that at a time on the same date, a premium had not been paid.
102However, this consequence of payment does not speak to the timing of payment. The question arising in s 28B(2)(b) is left unanswered. The commencement of a period of use does not address the question of whether payment is to be treated as having been made at the commencement of that period of use.
103It is the timing of payment that is the focus of s 28B(2)(b). More precisely, the focus is the moment of the accident and whether the premium had then been paid or, for the purpose of s 28B(2)(b), is to be treated as then paid. Parliament could easily have expressly stated in the Act that the time of payment should be treated as coinciding with the period of use. It did not do so. A provision in relation to a Certificate of Premium Paid and when that is in force does not inform the question raised by s 28B(2)(b) of when a premium was paid relative to a motor accident. Simply put, reg 5 of the MA Regulations does not have the "deeming" effect attributed to it. The section of the Act concerns the timing of payment, not the effect of payment in terms of the period of use. I can see no justification for equating timing of payment with the commencement of the period of use. I add that it would be surprising to find a deeming provision bearing on recovery in the regulations rather that the Act, given that the key provision relating to recovery is to be found in the Act.
104The contention of counsel for the plaintiff that the purpose of reg 5 was to cover the situation of an owner who was not going to use a vehicle for a period of time is entirely feasible. It seems to me that this purpose sits well with the overall framework and content of the Act, including the offence provision in s 29. Use is not permitted if the registration and premium have expired, and use will expose an owner to prosecution and also, in the case of a motor vehicle accident, to recovery by the Board. In the event that an owner is not intending to use their vehicle for a time and lets their premium lapse, then reg 5 brings certainty to commencement and expiry dates of periods of use resulting from payment of premiums.
105Having reached this conclusion, I observe though that the consequence of the defendants' contentions that there is a period of grace before recovery may occur under s 28B(2)(b), is not an unreasonable consequence. Recovery of scheduled benefits is a substantive consequence for owners of motor vehicles. The Board would not lose in terms of premiums if there was such a period of grace. In the event the premium is paid in the grace period, an owner must pay the whole of the premium and is in the same position as if the payment had been made before expiry. The owner does not gain any advantage by late payment because the period of use is backdated and the expiry date will fall no later than it otherwise would. I note the arguments about capricious outcomes. However, any period of grace providing leniency and a finite opportunity to rectify a situation will have some arbitrary consequences, but there would be obvious benefits in such a statutory period in terms of fairness, certainty and not burdening the Board with every minor infraction and requests to exercise discretion. By contrast, if reg 5(b)(iii) is given its literal effect and were to operate as a grace period of an indefinite period, that sub-regulation would have an obvious unreasonable consequence.
106These observations about the consequences of construing reg 5 so that it provides a period of grace and protection for a period of 28 days are academic. A construction that the regulation operates as a deeming provision in relation to payment under s 28(2)(b) flies in the face of the natural meaning of the section and the focus on payment relative to the time of the accident.
107There were other arguments advanced on behalf of the parties relating to the consequences of the competing constructions. I will briefly mention some of those arguments. It was argued for the plaintiff that the defences in s 29(1)(c) would be unnecessary if there was a grace period that applied to the operation of s 28B(2)(b). I am unpersuaded by this argument. In my view, regardless of whether reg 5 operates as a deeming provision, it would not have been intended that it should apply to s 29, and there are particular considerations that set s 29 apart. For the reasons previously canvassed, the prohibition against use in a penalty provision is likely to be concerned with a divisible day involving the time of the accident. The time of an offence is likely to be tied to a time not the date. It is unlikely that Parliament would intend to exculpate that conduct with reference to the effective time of payment, potentially retrospectively, without expressly providing for that. The section refers to an exculpatory situation with the words "unless a premium has been paid for its use at the time, … in which it was so used". I do not see how a Certificate of Premium Paid in force for the date of the accident could assist a defendant. The offence provision is not tied to whether or not a Certificate of Premium Paid was in force. It can be seen that the evidentiary provision in s 29 does not include an averment as to time of payment.
108It was argued for the plaintiff that the discretion in s 33A potentially provides its own period of grace and the defendants' construction in treating reg 5 as a deeming provision would have the consequence of limiting the ambit of the Board's discretion. I do not see this as a consequence of significance that would bear on the interpretation of s 28B(2)(b). It would be a relatively minor fettering of the discretion. By contrast, as noted above, if reg 5(b)(iii) is given its literal meaning, and has application to enable owners to avoid recovery under s 28B(2)(b), the consequences of that interpretation would, as the plaintiff submitted, weigh heavily against the construction urged by the defendants.
109Ultimately, I do not need to decide the import of reg 5(b)(iii) or go on to consider whether the potential effect of the regulations urged by the defendants would mean they are ultra vires the Act. This is because, for the reasons I have given, the regulations do not impact on the meaning of the critical words in s 28B(2)(b). They do not have a deeming effect in terms of the timing of payment, and they do not inform the question of when payment was made.
110Finally, I observe that the construction urged by the plaintiff does not have the result of being likely to lead to unreasonable or unjust outcomes, requiring consideration of alternative interpretations. Of course, that is not to be tested by an isolated case but rather by looking to the legislation and in particular, the safeguards provided by the legislation. The Board has an unfettered discretion in s 33A of the Act and may decide not to pursue recovery. The Board may take into account any matter it considers relevant: s 33A(c). The fact that the accident occurred within 24 hours of expiry, when there was still time to renew registration to provide for a seamless date-to-date period of use, or the fact that it occurred within a 28 day period within which the Certificate of Premium Paid is in force by virtue of the regulations, are factors that the Board may take into account as relevant considerations.
Conclusion
111For the reasons given, s 28B(2)(b) is concerned with the timing of payment of premiums and whether payment was made at the time of a motor accident and is not resolved by the consequences of payment in terms of the period of use. The MA Regulations and other legislative provisions relied upon by the defendants do not have the effect of creating an artificial time of payment so that payment was made, or to be treated as having been made, by the time of the accident. Furthermore, the words "at the time of the accident" should not be interpreted to mean at the date of the accident.
112The inevitable conclusion from this interpretation of s 28B(2)(b) of the Act, is that at the time of the accident, a premium for the use of the vehicle had not been paid. The plaintiff’s claim succeeds. The claim is for damages in the sum of $39,004.30 and quantum is agreed. Pursuant to s 28B(2)(b), the plaintiff is entitled to recover that sum from the defendants.
113In determining whether to exercise its right to recover, the Board has a discretion and it determined to exercise that right. However, the Board may revisit that determination. It would seem appropriate to give the parties an opportunity to consider these reasons. The defendants may wish to advance matters for the Board's consideration in light of these reasons as bearing on the Board's discretion, and the Board may wish to consider whether there are any matters that warrant their consideration as to whether it pursues its right to recovery. I shall give the parties that opportunity.
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