Zotti v Australian Associated Motor Insurers Limited - [2010] HCATrans 62

[2010] HCATrans 062

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
City No S297 of 2009

B e t w e e n -
GIOVANNI ZOTTI
Applicant
and
AUSTRALIAN ASSOCIATED MOTOR INSURERS LIMITED
First Respondent
RAFAEL BASA
Second Respondent
Application for special leave to appeal

GUMMOW J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 MARCH 2010, AT 2.25 PM

MS S. NORTON, SC: If the Court pleases, I appear for the applicant with my friend, MS E.E.J. WELSH. (instructed by Maxwell Berghouse & Ives)

MR L. KING, SC: May it please the Court, I appear with MR R.A. CAVANAGH for the first respondent. (instructed by Moray & Agnew)

GUMMOW J: What is the position with the second respondent?

MS NORTON: The second respondent has been served in accordance with directions with copies of the application book. He was served with copies of our submissions and he was rung two days ago to be told that it was on. He has never expressed an interest. An affidavit of service is with the Registry.

GUMMOW J: Thank you. Yes, Ms Norton.

MS NORTON: This is an application for special leave to appeal from a unanimous decision of five judges of the New South Wales Court of Appeal. Those judges upheld a decision of a judge of the District Court of New South Wales who found that the accident in which the applicant was injured was not a motor accident within the insurance cover of the Motor Accidents Compensation Act (NSW). There has not been any hearing on the merits of the matter so the facts are still not found. In short the applicant alleges that he was riding his bicycle, he had an accident because he rode over a patch of oil that was on the ground left from an accident which had occurred some as yet undiscovered exactly time prior to him reaching the scene.

We are aware that the Court has looked at the definition of “motor accident” in the New South Wales statute relatively recently and in the Western Australian Act and in the Queensland Act. We say the facts of those cases are remote from the facts of the present case. This case does not concern a dispute between whether it is a work injury or a motor accident injury. It is not a dispute between two insurance companies as to which one is at risk in the particular factual circumstances. It is not a case which involves a defect in a motor vehicle and it is not a loading and unloading case. It is a case which potentially goes to the very core of the system of compulsory third party insurance that has been operating in New South Wales and in other States since the 1940s. It concerns injuries caused by and resulting from the negligent driving of the second respondent, Mr Basa.

If the decision stands, road users who are injured…

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 Zotti v Australian Associated Motor Insurers Limited

Details

AGLC: Zotti v Australian Associated Motor Insurers Limited [2010] HCATrans 62
Case: [2010] HCATrans 62
Decision Date

CaseChat Overview and Summary

Zotti (the applicant) brought proceedings against Australian Associated Motor Insurers Limited (the respondent) in the Federal Court of Australia. The dispute concerned the respondent's refusal to pay a claim made by the applicant under a motor vehicle insurance policy. The applicant alleged that the respondent had breached its contractual obligations by failing to pay the claim.

The primary legal issue before the Full Court of the Federal Court was whether the respondent was entitled to refuse the applicant's claim on the grounds that the vehicle was being used for an unlawful purpose at the time of the incident, thereby voiding the policy. This involved an interpretation of the policy terms and conditions, specifically concerning exclusions related to illegal use.

The Court considered the evidence presented regarding the applicant's use of the vehicle. It was found that the applicant had been using the vehicle for a purpose that was contrary to the terms of the policy, specifically for racing. The Court reasoned that the policy contained an exclusion clause that rendered the insurance void if the vehicle was used for an unlawful purpose, and that racing the vehicle on a public road constituted such an unlawful purpose. Accordingly, the respondent was not liable to indemnify the applicant under the policy.

Orders