Nominal Defendant v Chilly and Bayles

[2011] QDC 65

DISTRICT COURT OF QUEENSLAND

CITATION:

Nominal Defendant v Chilly & Bayles [2011] QDC 65

PARTIES:

NOMINAL DEFENDANT
(Plaintiff)
v
JON EDWARD CHILLY
(First defendant)

 and

MICHAEL LLEWELLYN BAYLES
(Second defendant)

FILE NO:

D 4546/2005

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

April 29, 2011

DELIVERED AT:

Ipswich

HEARING DATE:

April 29, 2011

JUDGE:

Koppenol DCJ

ORDER:

1. Application dismissed;
2. Judgment sum amended to $85,877.04;
3. Second Defendant to pay Plaintiff’s costs of and incidental to this application to be fixed at  $20,506.

CATCHWORDS:

INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – QUEENSLAND –UNINSURED VEHICLES – NOMINAL DEFENDANT – application of Motor Accident Insurance Act 1994 – where uninsured motor vehicle involved in a motor vehicle accident – where Nominal Defendant deemed to be the insurer of uninsured vehicle – statutory right of Nominal Defendant to recover costs reasonably incurred by it on a claim for personal injury in respect of the accident from driver of uninsured vehicle as a debt pursuant to s 60 Motor Accident Insurance Act 1994 – whether driver of uninsured vehicle believed on reasonable grounds that motor vehicle was insured

JUDGMENT – DEFAULT JUDGMENT – SETTING ASIDE – where driver of uninsured vehicle made application to set aside default judgment – whether judgment was regularly entered - where application was dismissed and default judgment sum amended

Motor AccidentInsurance Act 1994, s60(2)(b)

George v Rockett (1990) 170 CLR 104, considered

Nominal Defendant v Chaffey & Ors [2011] QSC 88, followed

COUNSEL:

J Fitzgerald for the plaintiff
Second Defendant appeared on his own behalf

SOLICITORS:

Broadley Rees Hogan Lawyers for the plaintiff
Second Defendant appeared on his own behalf

1. The second defendant has applied to set aside a default judgment which was entered against him in 2008. 

1. Despite the second defendant's submissions to the contrary, I am satisfied on the material before me that the judgment was regularly entered. 

1. Today I granted leave to amend the default judgment from $91,804.49 to $85,877.04.  The nominal defendant as well as the second defendant had previously been sued by Ms Brooke Caden-Borey for damages for personal injuries.  The nominal defendant settled that action and then sued the second defendant as the driver of the motor vehicle in which Ms Caden-Borey was a passenger for the payment amount plus interest and costs. 

1. To set aside such a judgment, the second defendant would need to establish, amongst other things, that he had a prima facie defence on the merits. The second defendant's purported defence was under section 60(2)(b) of the Motor Accident Insurance Act 1994 (MAIA), namely that at the time of the motor vehicle accident in 2000, he believed on reasonable grounds that (1) he had the owner's consent to drive the motor vehicle and (2) that the motor vehicle was insured.  For present purposes, I need only deal with the second criterion.

1. In George v Rockett (1990) 170 CLR 104 at 112 and 116, the High Court held that when a statute prescribes that there must be "reasonable grounds" for a state of mind, it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. In Nominal Defendant v Chaffey & Ors [2011] QSC 88, the Supreme Court of Queensland (Philippides J) held, at [51], that in a case where the person concerned did not direct his mind to whether the vehicle was registered, an assumption that the relevant vehicle was registered and insured unless told otherwise was not a belief on reasonable grounds.

1. Before me, the second defendant gave evidence that whether the motor vehicle was insured or not was not in his mind; he did not turn his mind to it. In those circumstances, the second defendant has not established the second criterion in section 60(2)(b) of the MAIA. Accordingly, the second defendant does not have a prima facie defence on the merits and this application must be refused.

1. I am satisfied, having regard to the affidavits of Mr Hefferan filed February 8, 2011 and Mr Seto filed by leave today, that the costs of and incidental to this application be fixed at the sum of $20,506.

1. There will be an order in terms of the draft as initialled by me and placed with the papers.  The draft provides that the application be dismissed, the amount of the judgment sum be amended to $85,877.04 and the second defendant is to pay the plaintiff's costs of and incidental to this application fixed at $20,506.