Ryan v Nominal Defendant

Case [2005] NSWCA 59

Reported Decision:

 62 NSWLR 192

Court of Appeal


CITATION:

Ryan v Nominal Defendant [2005] NSWCA 59
HEARING DATE(S):

15 October 2004
 
JUDGMENT DATE: 


14 March 2005

JUDGMENT OF:

Giles JA at 1; Santow JA at 22; McColl JA at 140
DECISION:

(1) Leave is granted to the appellant to amend Ground 2 of the Notice of Appeal, and file within 14 days an Amended Notice of Appeal, amended in the manner identified in the judgment. ; (2) The appeal is allowed; ; (3) The judgment and orders of English DCJ, made on 2 October 2003, are set aside; ; (4) In lieu thereof, order that judgment be entered for the appellant in the sum of $1,900,000, such judgment to take effect as from 3 October 2003 and to bear interest at the statutory rates from that date. ; (5) The respondent is to pay the costs of the appellant on appeal and in the proceedings below.

CATCHWORDS:

STATUTORY INTERPRETATION - Liability of Nominal Defendant dependent upon whether accident occurred on a "public street" under Motor Accidents Act 1988 or equivalent definition of "road" in the Motor Accidents Compensation Act 1999 - possible relevance of statutory purpose and legislative history - was area "used by the public" - meaning of term "used by the public" in relevant legislation - comparative meaning of "open to the public" in the relevant legislation - relationship between openness and usage - relevance of fact that private property and that though usage not permitted measures to prevent it quite ineffective - Jones v Dunkel inference - differential treatment of relevant witnesses by trial judge.

LEGISLATION CITED:

Metropolitan Traffic Act 1900 (Act No 8, 1900)
Motor Accidents Act 1988
Motor Accidents Compensation Act 1999
Motor Traffic Act 1909
Motor Traffic (Amendment) Act 1951 (No 59, 1951)
Motor Vehicles (Third Party Insurance) Act 1942 (Act No 15, 1942)
Municipalities Act 1897 Pt XIV, Div 1
Public Vehicles Act 1899
Road Transport (Vehicle Registration) Act 1997
Road Transport (Vehicle Registration) Regulation 1998 cl 7
Sydney Corporation Act 1879, Pt V)

CASES CITED:

Abalos v Australian Postal Commission (1993) 177 CLR 167
Australian Performing Right Association v Telstra Corp Ltd (1993) 46 FCR 131; (1997) 191 CLR 140 (HCA)
Corporate Affairs Commission (South Australia) v Australian Central Credit Union (1985) 157 CLR 201
Fox v Percy (2003) 214 CLR 118
Hardman v Minehan (2003) 57 NSWLR 390
Harrison v Hill (1931) SLT 598
Helme v Fox (1948) 49 SR (NSW) 60
Jones v Dunkel (1959) 101 CLR 298
Lee v Evans (1964) 112 CLR 276
Mercantile Mutual Insurance Co Ltd v W Turner Pty Ltd [1982] 1 NSWLR 728
Nominal Defendant (SA) v Merritt (1998) 48 SASR 278
Nominal Defendant v Wardle (2001) 33 MVR 502
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Abrahams [1984] 1 NSWLR 491
Regina v Brown [1996] AC 543
Schubert v Lee; Morris v Lee (1946) 71 CLR 589 (HCA); (1946) 48 WALR 43 (WASC)
Solomon v…

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Details
AGLC
Ryan v Nominal Defendant [2005] NSWCA 59
Case
[2005] NSWCA 59
Decision Date

CaseChat Overview and Summary

This appeal concerned the liability of the Nominal Defendant under the *Motor Accidents Act 1988* (NSW) or its equivalent definition of "road" in the *Motor Accidents Compensation Act 1999* (NSW). The central dispute revolved around whether the accident in question occurred on a "public street" or a "road" as defined by the relevant legislation, which would trigger the Nominal Defendant's liability.

The primary legal issue before the Court of Appeal was the interpretation of the term "public street" and "road" within the context of the *Motor Accidents Act 1988* and the *Motor Accidents Compensation Act 1999*. Specifically, the court had to determine whether the area where the accident occurred qualified as being "used by the public" and how this related to the concept of being "open to the public" as contemplated by the legislation. The court also considered the relevance of statutory purpose, legislative history, and the fact that the area was private property, even though measures to prevent public use were ineffective.

The Court of Appeal allowed the appeal, setting aside the judgment of the primary judge. The court reasoned that the area in question, despite being private property, was sufficiently "used by the public" to fall within the statutory definition of a "road" or "public street" for the purposes of the relevant Acts. The court found that the ineffectiveness of measures to prevent public access, coupled with actual public usage, satisfied the legislative criteria. The court also addressed the trial judge's differential treatment of witnesses, finding it to be a relevant factor in the appeal.

Consequently, the Court of Appeal ordered that judgment be entered for the appellant in the sum of $1,900,000, with interest, and that the respondent pay the costs of the appeal and the proceedings below.

Orders

Orders of the court

(1) Leave is granted to the appellant to amend Ground 2 of the Notice of Appeal, and file within 14 days an Amended Notice of Appeal, amended in the manner identified in the judgment. ; (2) The appeal is allowed; ; (3) The judgment and orders of English DCJ, made on 2 October 2003, are set aside; ; (4) In lieu thereof, order that judgment be entered for the appellant in the sum of $1,900,000, such judgment to take effect as from 3 October 2003 and to bear interest at the statutory rates from that date. ; (5) The respondent is to pay the costs of the appellant on appeal and in the proceedings below.

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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