Outback Civil Pty Ltd v Francis - [2011] NTCA 3

Outback Civil Pty Ltd v Francis [2011] NTCA 3
PARTIES: OUTBACK CIVIL PTY LTD

AND

JAMES PERCIVAL KERR

v

DARREN DONALD FRANCIS

TITLE OF COURT:   COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:   CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:   AP 7 of 2010 (20817787)
DELIVERED:   13 MAY 2011
HEARING DATES:   6 APRIL 2011
JUDGMENT OF:   MILDREN, SOUTHWOOD & BLOKLAND JJ
APPEAL FROM:   MASTER LUPPINO
CATCHWORDS:

PRACTICE AND PROCEDURE – Procedure under Rules of Court – summary judgment – appeal against order granting summary judgment – whether plaintiff’s case so untenable it cannot possibly succeed – appeal dismissed
Motor Accidents (Compensation) Act, s 4(1)(a)(ii), s 5(1)(a)
Motor Vehicles Act, s 35, s 43, s 137
Spencer v The Commonwealth (2010) 241 CLR 118; applied
Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1; Darwin City Council v McDonnell (1998) 8 NTLR 106; followed
Webster v Lampard (1993) 177 CLR 598; referred to
REPRESENTATION:
Counsel:
Appellant:   W Roper
Respondent:   D McConnel
Solicitors:
Appellant:   Priestleys Lawyers
Respondent:   De Silva Hebron
Judgment category classification:    C
Number of pages:   8

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Outback Civil Pty Ltd v Francis [2010] NTCA 3
No AP 7 of 2010 (20817787)
BETWEEN:

OUTBACK CIVIL PTY LTD

First Appellant

AND

JAMES PERCIVAL KERR

Second Appellant

AND:

DARREN DONALD FRANCIS

Respondent

CORAM: MILDREN, SOUTHWOOD & BLOKLAND JJ
REASONS FOR JUDGMENT
(Delivered 13 May 2011)

THE COURT:
Introduction

This is an appeal from a decision of the Master who dismissed an application for summary judgment by the appellants who were the defendants in the action. After hearing submissions, we dismissed the appeal. We said that we would provide reasons at a later time. These are our reasons.
The action is brought by the respondent plaintiff against the appellants for personal injuries and consequential losses arising out of an accident which occurred at Garden Point on Melville Island on 30 June 2005. The respondent claims that the accident was caused by the negligence of the appellants.
Pleadings in the Court below
It is alleged in the Statement of Claim that the accident occurred when the respondent was directed by the second appellant Kerr to unload a front-end loader from a truck and trailer. The respondent alleges that, at the time of the accident, the method adopted of unloading the front-end loader was under the direction of Kerr, who was at the time the driver of the truck. The method adopted was that the respondent was required by Kerr to unhitch the trailer. Kerr would then lurch the truck forward so as to cause the forks of the front-end loader to tip off the back of the truck and onto the ground. It was during the course of this operation that the respondent claims to have been injured, because the truck lurched forward as a result of Kerr’s negligence before the respondent was clear of the trailer. It is alleged that Kerr…

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.

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Details

Case: [2011] NTCA 3
Decision Date: 13/05/2011

CaseChat Overview and Summary

In the case of Outback Civil Pty Ltd v Francis, the parties were involved in a dispute over whether a motor vehicle accident occurred. The court was asked to determine whether the vehicle, which was unregistered at the time of the accident, had a trader’s plate affixed to it at the time of the incident. The respondent argued that the trader’s plate was not affixed to the vehicle, casting doubt on the applicability of certain statutory provisions. The primary legal issues before the court were whether the respondent had established a sufficient basis to dispute the claim that the trader’s plate was affixed to the vehicle, and if so, whether summary judgment was appropriate. The court also had to consider whether the unregistered vehicle met the statutory definition of an accident under the Motor Vehicles Act.

The court found that there was sufficient evidence to doubt the reliability of the appellant’s witness, Kerr, who claimed to have affixed the trader’s plate to the vehicle. The respondent provided evidence that the trader’s plate had been used on other vehicles and that there were discrepancies in the record-keeping required by statute. The court considered that Kerr's recollection was questionable and that his testimony could be rejected on legitimate grounds. Additionally, the court found that the absence of a statutory record of the use of the trader’s plate further undermined the appellant’s case. The Master concluded that the respondent had established a sufficient basis to dispute the claim, and thus, summary judgment was inappropriate.

The court upheld the Master's decision, finding that Kerr's evidence lacked independent support and that the evidence suggested the plate was not being lawfully used. The court also noted the complex question of whether the unregistered vehicle qualified as a "Territory motor vehicle" under the Act, which had not been judicially determined. Consequently, the court ruled that the respondent had established grounds to dispute the claim, and summary judgment was not appropriate.

The court ordered that the application for summary judgment was dismissed, and the matter would proceed to trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Counsel for the respondent in his written submissions before the Master submitted that notwithstanding that the respondent was unable to positively assert one way or the other whether the trader’s plates had been affixed to the vehicle, there was sufficient reason to doubt that the evidence of Kerr would be accepted at trial. Amongst other things, there was evidence that the trader’s plate had been used from time to time and there was evidence that trucks being used at the construction site were driven both with and without a trader’s plate being placed on them. Kerr’s recollection of affixing the trader’s plate was questionable on the basis that he did not recall doing so until more than a year after the accident. There was subsequent correspondence between the solicitors extending over a lengthy period during which the solicitors for the appellants sought to persuade the solicitors for the respondent to drop the action at no time during which was this point raised. It was on this basis that the Master took the view that the respondent had established a sufficient basis to dispute the question of whether the plate had been attached to the vehicle at the relevant time and in those circumstances, summary judgment was inappropriate. As the Master said,There is some basis upon which the evidence (of Kerr) might be rejected, a legitimate basis, a real basis, and the onus lies on (Kerr) to prove that fact.Conclusion We think the decision of the learned Master was correct. Kerr’s evidence is not supported by any independent evidence. In particular, s 43 of the Motor Vehicles Act requires a record to be kept in accordance with the approved form of the use of trader’s plates. No such record has been produced. Because there is evidence that the plate was used on other vehicles on similar occasions, this provides a basis for suggesting that Kerr’s recollection was mistaken. It is suspicious to say the least that the trader’s plate was owned by Integrity, which on the appellants’ case had leased the vehicle from Outback Civil Pty Ltd. The circumstances suggest the distinct possibility that Kerr was using the trader’s plate in a dishonest fashion which might go to shake his credit. There is no evidence that either of those entities had lawfully used the trader’s plates in accordance with s 35 of the Motor Vehicles Act, and evidence which suggested that the plate was not being lawfully used is also a factor which might go to Kerr’s credit as a witness. There were other matters of a similar nature discussed during the hearing of the appeal between the Court and Mr Roper which might also reflect on Kerr’s credit. It is not disputed that the truck was otherwise unregistered. Further, it is our view that it is far from clear that even if the trader’s plate had been affixed to the vehicle at the relevant time, the truck was a Territory motor vehicle “in respect of which a compensation contribution under Part V or s 137 of the Motor Vehicles Act has been paid” as required by the definition of “accident” in s 4(1)(a)(ii) of the Act. This is a complex question of law which has not been the subject of any judicial ruling. It is arguable that, in the circumstances, s 5(1)(a) of the Act did not apply so as to defeat the respondent’s claim.

Ratio Decidendi

Legal Principle Established

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