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Transport Accident Commission v Sweedman

Transport Accident Commission v Sweedman

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Case Copied 10 September 2004 73 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3754 of 2003

TRANSPORT ACCIDENT COMMISSION
	Plaintiff
v.
HELEN MARGARET SWEEDMAN	Defendant

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JUDGES:	WINNEKE, P., CALLAWAY and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 June 2004
DATE OF JUDGMENT:	10 September 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 162

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ACCIDENT COMPENSATION – Transport accident – Benefits - Statutory indemnity in favour of Transport Accident Commission paying benefits – Payable by third party otherwise liable for damages – Whether statutory indemnity limited to transport accidents occurring in Victoria – Statutes – Interpretation – Whether statutory indemnity has potential to impose double liability or double jeopardy in respect of out-of-state transport accidents - Constitutional law (Cth) – Extra- territorial operation of State statutes - Whether statutory indemnity invalid as purporting to apply to acts and omissions occurring outside Victoria – Inconsistency - Whether statutory indemnity invalid as being inconsistent with laws of another State – Discrimination - Whether statutory indemnity invalid as purporting to subject interstate resident to disability or discrimination in Victoria on ground of out-of-state residence – Transport Accident Act 1986, s. 104 – The Constitution (63 & 64 Vict. c.12) s.117.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J.H. Karkar, Q.C. Mr P.H. Solomon	TAC Law Pty. Ltd.
For the Defendant	Mr N.C. Hutley, S.C. Mr J.K. Kirk	Frenkel Partners

WINNEKE, P.:

In this matter, I have had the considerable benefit of reading, in draft form, the reasons which Nettle, J.A. proposes to publish. For the reasons which his Honour gives, I agree that the questions stated in the special case should be answered in the manner proposed by his Honour.

CALLAWAY, J.A.:

On 18^th July 2003 the County Court reserved three questions in the form of a special case for the opinion of the Court of Appeal. The questions, as set out in the order, read:

“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 defendant so as to give the plaintiff a right of indemnity against the defendant.
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 defendant in light of ss.79 and 80 of the Judiciary Act 1903 (Cth).
C.Whether, given the agreed facts set out in paragraphs 1-9 of the special case, in its potential application to the defendant 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
(b)contrary to s.117 of the Constitution; or
(c)inconsistent with the operation of the provisions of the Motor Accidents Act 1988 (N.S.W.), as it applied at the time of the accident.”

Paragraphs 1 to 9 of the special case, which were headed “Agreed…

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: [2004] VSCA 162
Decision Date: 10 September 2004

CaseChat Overview and Summary

The Transport Accident Commission (TAC) sought to recover payments made to a person injured in a transport accident in New South Wales (NSW) from a third party otherwise liable for damages. The TAC argued that a statutory indemnity in its favour should apply to all transport accidents, regardless of where they occur. The defendant, Sweedman, contested that the statutory indemnity should be limited to transport accidents occurring in Victoria, where the TAC is based.

The central issue before the court was whether the statutory indemnity provision in the Transport Accident Act 1986 was limited to transport accidents occurring within Victoria, or if it could be applied to accidents occurring outside the state. The court also considered whether such a provision could impose double liability or double jeopardy in respect of out-of-state transport accidents, and if it was consistent with the provisions of the Commonwealth Constitution, specifically the extra-territorial operation of state statutes, inconsistency with laws of another state, and discrimination on the basis of out-of-state residence.

The court found that the statutory indemnity provision in the Transport Accident Act 1986 was limited to transport accidents occurring within Victoria. The court held that the provision could not be applied to accidents occurring outside the state as it would impose double liability or double jeopardy in respect of out-of-state transport accidents. Furthermore, the court found that the provision was inconsistent with laws of other states as it purported to subject an interstate resident to a disability or discrimination in Victoria on the ground of out-of-state residence. The court held that the provision was invalid as it purported to apply to acts and omissions occurring outside Victoria.

The court ordered that the TAC's claim for statutory indemnity in respect of the out-of-state transport accident be dismissed. The court held that the TAC was limited to recovering payments made to the injured party from the third party otherwise liable for damages.

Orders