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Sweedman v Transport Accident Commission

Sweedman v Transport Accident Commission

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HIGH COURT OF AUSTRALIA
GLEESON CJ,
GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
HELEN MARGARET SWEEDMAN APPELLANT
AND
TRANSPORT ACCIDENT COMMISSION RESPONDENT
Sweedman v Transport Accident Commission [2006] HCA 8
9 March 2006
M28/2005
ORDER
Appeal dismissed with costs.

On appeal from the Supreme Court of Victoria
Representation:
B W Walker SC with J K Kirk for the appellant (instructed by Henry Davis York)
D F Jackson QC with P H Solomon for the respondent (instructed by Transport Accident Commission)
Interveners:
D M J Bennett QC, Solicitor-General of the Commonwealth with G A Hill intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
M G Sexton SC, Solicitor-General for the State of New South Wales with M J Leeming intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for New South Wales)
C J Kourakis QC, Solicitor-General for the State of South Australia with M J Wait intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor's Office (SA))
C J Kourakis QC, Solicitor-General for the State of South Australia with M J Wait intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)
P M Tate SC, Solicitor-General for the State of Victoria with M K Moshinsky intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

GLEESON CJ, GUMMOW, KIRBY AND HAYNE JJ. The event giving rise to this litigation was an accident between two motor vehicles on 20 July 1996. The accident occurred on a public road in the State of New South Wales. One car was registered in the State of Victoria and was driven by a Victorian resident, Mr Sutton, with Mrs Sutton as passenger. The other car was driven by the appellant, Mrs Sweedman, a New South Wales resident. This car was registered in New South Wales and owned by Mrs Sweedman's son. Mr and Mrs Sutton were injured and, for the purposes only of the present litigation, it is assumed that this accident was caused by the negligent driving of Mrs Sweedman.
The mobility of the Australian population is assisted by motor vehicles and their passage between the States is protected by the Constitution itself. It is to be expected that when State legislatures deal with the legal and social consequences of motor accidents they do not restrict their attention to the use of cars within particular State territorial limits.
At the date of the accident both New South Wales and Victoria had legislative regimes which bore upon the legal responsibility of Mrs Sweedman to Mr and Mrs Sutton. The legislative regimes of New South Wales and Victoria differed in significant respects. They implemented distinct governmental policies concerning the legal consequences of motor vehicle…

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: [2006] HCA 8
Decision Date: 9 March 2006

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Ms Sweedman against a decision of the Court of Appeal of Victoria. The dispute arose from a motor vehicle accident in New South Wales involving a car registered and driven by a New South Wales resident (the appellant) and a car registered and driven by Victorian residents. The Victorian driver and passenger received compensation from the Transport Accident Commission (the respondent) under the Victorian *Transport Accident Act 1986* (Vic). The respondent then sued the appellant in the County Court of Victoria, exercising federal jurisdiction, seeking indemnity under section 104 of the Victorian Act for the compensation paid.

The central legal issues before the High Court were whether the Victorian *Transport Accident Act* could validly apply to the New South Wales resident, thereby creating a right of indemnity, and whether this application was permissible in light of the *Judiciary Act 1903* (Cth) and the *Motor Accidents Act 1988* (NSW). Specifically, the court had to determine if the New South Wales Act, which provided an alternative avenue of redress for victims of accidents in New South Wales, supplanted the Victorian Act's indemnity provisions, and whether any such conflict rendered the Victorian Act inoperative or invalid under the Australian Constitution, particularly concerning inconsistency between State laws and discrimination against non-residents.

The High Court reasoned that the *Motor Accidents Act 1988* (NSW) did not speak in a way that impaired or detracted from the Transport Accident Commission's claim for indemnity under the Victorian *Transport Accident Act*. The court found that the New South Wales Act did not preclude the operation of section 104 of the Victorian Act, and indeed, any third-party insurance coverage under the New South Wales Act would supplement the Victorian scheme. The court concluded that there was no inconsistency between the two State statutes that would deny the operation of the *Judiciary Act* or invalidate the Victorian Act's provisions as applied to the appellant. The constitutional questions concerning discrimination were also resolved against the appellant.

The appeal was dismissed, and the appellant was ordered to pay the costs of the respondent.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

This appeal raises federal constitutional questions, and questions about the integrity of the Constitutions of the States, and their hegemony over events and people within them, and of choice of law.Facts and previous proceedings On 20 July 1996, a car driven by the appellant ("the New South Wales car") collided with a car driven by Mr John Sutton ("the Victorian car") on a road in New South Wales. Mrs Helen Sutton was a passenger in the Victorian car. Mr and Mrs Sutton were residents of Victoria at the time of the collision. Both suffered injuries as a result of it. The Victorian car was registered in Victoria. The New South Wales car was owned by the appellant's son. It was registered in New South Wales. When it was not in use it was kept at a garage at the appellant's residence at Gravesend in New South Wales[51].[51]The lex loci stabuli, a term used, as Dicey and Morris point out, in jest with respect to the garaging of cars: Dicey and Morris on the Conflict of Laws, 13th ed (2000), vol 1 at 30 [1-075]. The respondent, which is a body corporate established by the Transport Accident Act 1986 (Vic) ("the TA Act"), has paid compensation to Mr and Mrs Sutton ("the casualties") in satisfaction of a claim made by them under that Act. How their entitlement in that regard arises will be explained later. The respondent commenced proceedings against the appellant in the County Court of Victoria on 9 April 2002 to recover from the appellant the sum of the payments made to Mr and Mrs Sutton under the TA Act. It contended that s 104 of that Act gave it a statutory right of indemnity against the appellant recoverable in the Victorian courts. On 18 July 2003, at the request of the parties, the County Court ordered that three questions be reserved for the consideration of the Court of Appeal of Victoria, in the form of a special case, pursuant to s 76(1) of the County Court Act 1958 (Vic).The Court of Appeal of Victoria The questions stated for the Court of Appeal (Winneke P, Callaway and Nettle JJA) and the answers given by that Court appear below[52]:[52]The decision of the Court of Appeal is reported as Transport Accident Commission v Sweedman (2004) 10 VR 31."A.Whether, given the agreed facts set out in paragraphs 1-9 of the Special Case, s 104(1) of the Transport Accident Act 1986 (Vic) is capable as a matter of construction of applying to the [appellant] so as to give the [respondent] a right of indemnity against the [appellant].[Yes.] B.Whether, given the agreed facts set out in paragraphs 1-9 of the Special Case, this proceeding is a matter within federal jurisdiction and, if so, whether s 104(1) of the Act is capable of applying as against the [appellant] in light of ss 79 and 80 of the Judiciary Act 1903 (Cth).[Yes.]C.Whether, given the agreed facts set out in paragraphs 1-9 of the Special Case, in its potential application to the [appellant] in this proceeding s 104(1) of the Act is invalid or inapplicable as being:(a)contrary to Chapter III and s 118 of the Commonwealth of Australia Constitution Act ('the Constitution'); or[No.](b) contrary to s 117 of the Constitution; or[No.](c)inconsistent with the operation of the provisions of the Motor Accidents Act 1988 (NSW), as it applied at the time of the Accident.[No.]"

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ, GUMMOW, KIRBY AND HAYNE JJ CALLINAN J

The outcome of this application of the constitutionally mandated criterion of greater governmental interest was that the primacy of the NSW Act could not accommodate the operation of s 104(1) against the appellant. This meant that nothing in the provisions of the Judiciary Act could operate in a way which denied that result.Conclusions respecting inconsistency The acceptance, now recognised in s 2(1) of the Australia Act 1986 (Cth), of the proposition that State Parliaments may make laws with extra-territorial operation, allows for the possibility that individuals and corporations are subjected to conflicting commands. Legislation most often enlists the criminal law and creates offences to encourage observance of its requirements. Questions of "double jeopardy" may arise[35].[35]Pearce v The Queen (1998) 194 CLR 610 at 630 [71], 644‑645 [107]. The Constitution itself, in s 74, contemplates the exercise of federal jurisdiction in resolving questions "as to the limits inter se of the Constitutional powers of any two or more States"[36]. Other provisions of the Constitution (in particular, ss 52, 90) require a distinction between exclusive and concurrent legislative power. The body of authority concerning s 109 of the Constitution is concerned with inconsistent laws made in exercise of concurrent federal and State powers. There was some consideration of inconsistency between State laws in Port MacDonnell Professional Fishermen's Association Inc v South Australia[37] but no "real" inconsistency arose on the facts of that case.[36]Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 at 52‑53 [109]-[110].[37](1989) 168 CLR 340 at 374. See also Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 at 34 [48], 52-53 [110], 61 [131]. Any question of "inconsistency" in the present case requires as a first step asking whether the NSW Act as well as the Victorian Act spoke at all to the indemnity action brought by the Commission. That is not answered by contemplation at the higher realms of abstraction upon which the submissions for the appellant concentrated. What is called for is a consideration of the particular claim made by the Commission, rather than, as the appellant would have it, looking in the broadest sense to a character attributed to the NSW Act as implementing a policy controlling the total financial outcomes of accidents occurring in that State. References by the appellant to an outcome consistent with the choice of law rule in tort were inapposite. When attention is given to the nature of the claim made by the Commission, it is apparent, and in accord with what has been said earlier in these reasons, that the NSW Act does not speak in any way which impairs or detracts from the pursuit of that claim. Indeed, as also pointed out, the coverage of a claim by the appellant under the third-party policy to answer the demand for indemnity by the Commission would supplement the operation of the Victorian Act. Claims of such a kind are only likely to be a small proportion of claims under the two legislative schemes and then only because of the interstate movement of motorists within Australia in accordance with the freedom that the Constitution itself envisages in s 92.

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, GUMMOW, KIRBY AND HAYNE JJ, CALLINAN J

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