judgment not to be obtained unless notice given to Minister- " As soon as possible" after claimant " knew" that the identity of the motor car could not be " established"-Meaning of words-Burden of proof of compliance with March 10, 11.

proviso-Question of fact for jury-Motor Car Act 1951 (No. 5616) (Vict.) SYDNEY, April 1.

Section 47 (1) of the Motor Car Act 1951 provides that Where the death of or bodily injury to any person is caused by or arises out of the use of a motor car but the identity of the motor car cannot be established any person who could have obtained a judgment against the driver of the motor car in respect of such death or bodily injury may obtain against a nominal defendant Allattp. 519/20. to could have against Provided that no

be named by the Minister the judgment which in the circumstances he

obtained the driver of the motor car: 19. ALL 569.

such judgment may be obtained unless such person as soon as possible after he knew that the identity of the motor car could not be established gave to Applie (1984] INSWLR

the Minister notice of intention to make the claim and a short statement of 727.

the grounds thereof" but if there be evidence it is a question of fact for Appl. 91ALR2. Appl. 92ALR 53

Held, that a condition precedent to the cause of action is imposed by the Cons. 19NSWLR 450

proviso, the burden of proving compliance with which lies on the plaintiff. Appl. 95 ALR 481.

Observations on the meaning of the words in the proviso " as soon as possible cons 169CLR 279

after he knew that the identity of the motor car could not be established Appl. 97ALR 20 Foll 18 IPR 444

Decision of the Supreme Court of Victoria (Full Court) affirmed. cons 170CLR 249.

91 CLR 513

APPEAL from the Supreme Court of Victoria.

On 17th March 1954, Olga Djordjevitch commenced an action in the County Court at Ballarat against Ernest Edward Vines, the nominal defendant named by the Minister pursuant to the provisions of the Motor Car Act 1951. The plaintiff claimed that while crossing Armstrong Street, Ballarat, on 12th June 1953, she had been struck by a motor cycle the identity of which was unknown to her and had thereby suffered damage.

The action was heard before Judge Moore and a jury in the County Court at Ballarat when the following facts, inter alia, appeared in evidence. The plaintiff was a married woman of foreign extraction, aged thirty-eight years. Her language was Polish and it was necessary for an interpreter to translate her evidence. On 12th June 1953 at about 7 p.m. she was about…

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.

Continue reading Vines v Djordjevitch

Details

AGLC: Vines v Djordjevitch [1955] HCA 19
Case: [1955] HCA 19
Decision Date: 1 April 1955

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of Victoria concerning a claim brought against a nominal defendant under section 47(1) of the *Motor Car Act 1951* (Vic.). The plaintiff, Olga Djordjevitch, had been injured by an unidentified motor vehicle and sought damages from Ernest Edward Vines, the nominal defendant appointed by the Minister. The central dispute revolved around whether the plaintiff had complied with a proviso to section 47(1), which required her to give notice to the Minister "as soon as possible" after she "knew" that the identity of the motor vehicle could not be established.

The legal issues before the High Court were twofold: firstly, whether the proviso imposed a condition precedent to the cause of action, and consequently, whether the burden of proving compliance lay with the plaintiff; and secondly, the proper interpretation of the terms "knew" and "as soon as possible" within the context of the proviso, particularly in relation to a plaintiff with limited English and significant physical incapacitation. The Court also considered whether the question of compliance was a matter of fact for the jury.

The Court reasoned that the proviso, by its substance and tenor, imposed a condition precedent to the cause of action, meaning the burden of proving compliance rested on the plaintiff. It held that the word "knew" referred to the plaintiff's actual state of mind, not a constructive or objective standard, although her means of knowledge were relevant. The Court also interpreted "as soon as possible" to mean with all reasonable expedition under the circumstances. While acknowledging the plaintiff's case on this issue was "very thin," the Court ultimately affirmed the Supreme Court's decision that it was open to the jury to find that the plaintiff had discharged her burden of proof, considering her linguistic and physical disabilities, her interactions with the police, and her subsequent engagement of legal representation.

The High Court dismissed the appeal, upholding the judgment of the Supreme Court of Victoria and the verdict of the jury in favour of the plaintiff.

Orders