Nominal Defendant v Uele

Case [2012] NSWCA 271

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Nominal Defendant v Uele [2012] NSWCA 271
Hearing dates:17 August 2012
Decision date: 31 August 2012
Before: Macfarlan JA at [1];
Meagher JA at [2];
Sackville AJA at [49].
Decision:

(1) Leave to appeal be granted.

(2) Appeal be dismissed.

(3) Applicant/appellant to pay the respondent's costs of the application for leave and the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: MOTOR VEHICLE ACCIDENT - unregistered vehicle (motorbike) - claim against Nominal Defendant - whether, for vehicle to be "capable of registration" within s 33(5)(b)(i) of Motor Accidents Compensation Act 1999 (by issue of an unregistered vehicle permit) it is necessary that was at time of manufacture or subsequently an actual use proposed which would have justified issue of permit.
Legislation Cited: District Court Act 1973
Interpretation Act 1987
Motor Accidents Act 1988
Motor Accidents Amendment Act 1995
Motor Accidents Compensation Act 1999
Motor Accidents Compensation Amendment Act 2006
Road Transport (General) Act 2005
Road Transport (Vehicle Registration) Act 1997
Road Transport (Vehicle Registration) Regulation 1998
Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568
Applin v The Nominal Defendant [2004] NSWCA 217; 41 MVR 56.
Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767
Equuscorp Pty Ltd v Haxton [2012] HCA 7; 86 ALJR 296
Harrington v Lowe [1996] HCA 8; 190 CLR 311
Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380
Mills v Meeking [1990] HCA 6; 169 CLR 214
Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; 228 CLR 529
Nominal Defendant v Lane [2004] NSWCA 405
Northern Territory of Australia v Collins [2008] HCA 49; 235 CLR 619
Saeed v Minister for Immigration & Citizenship [2010] HCA 23; 241 CLR 252
Category:Principal judgment
Parties: Nominal Defendant (Applicant/Appellant)
Kiaya Uele by her next friend Roxanne Hallcroft (Respondent)
Representation: Counsel:
Mr K P Rewell SC (Applicant/Appellant)
Mr A J Stone; Ms M L Holz (Respondent)
Solicitors:
TL Lawyers, Newcastle (Applicant/ Appellant)
White Barnes (Respondent)
File Number(s):2010/336945 2012/58665
 Decision under appeal 
Date of Decision:
2011-08-09 00:00:00
Before:
Sorby DCJ
File Number(s):
2010/336945

Judgment

  1. MACFARLAN JA: I agree with Meagher JA.

  1. MEAGHER JA: On 19 January 2008 an unregistered Yamaha YZ 250 motocross motorbike driven by Mr Sam Sellick on the Cobar Reserve, northeast of Cobar, collided with the respondent, causing her serious leg injuries.

  1. The respondent brought…

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AGLC
Nominal Defendant v Uele [2012] NSWCA 271
Case
[2012] NSWCA 271
Decision Date

CaseChat Overview and Summary

The appeal concerned a claim brought against the Nominal Defendant by the respondent, Mr Uele, following a motor vehicle accident involving an unregistered motorbike. The case was heard in the Court of Appeal of New South Wales by Macfarlan and Meagher JJA and Sackville AJA.

The central legal issue before the Court of Appeal was the interpretation of section 33(5)(b)(i) of the *Motor Accidents Compensation Act 1999* (NSW). Specifically, the Court had to determine whether, for an unregistered vehicle to be considered "capable of registration" by the issue of an unregistered vehicle permit, there must have been an actual proposed use at the time of manufacture or subsequently that would have justified the issue of such a permit.

The Court of Appeal reasoned that the phrase "capable of registration" in section 33(5)(b)(i) did not impose a requirement for a specific proposed use to have existed at the time of manufacture or subsequently. Instead, the Court held that the capacity for registration was to be assessed objectively, based on whether the vehicle met the general requirements for registration under the relevant legislation, irrespective of any particular intended use. The Court concluded that the motorbike in question was capable of registration.

Leave to appeal was granted, but the appeal itself was dismissed. The applicant, the Nominal Defendant, was ordered to pay the respondent's costs of the application for leave and the appeal.

Orders

Orders of the court

(1) Leave to appeal be granted.

(2) Appeal be dismissed.

(3) Applicant/appellant to pay the respondent's costs of the application for leave and the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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