England v Sontrop [1999] QDC 225

DISTRICT COURT OF QUEENSLAND REGISTRY: BRISBANE NUMBER: D2609 OF 1999 Plaintiff: MALCOLM JOHN ENGLAND AND Defendant: PETER MATTHEW SONTROP JUDGMENT - McGILL D.C.J. Judgment Delivered: 20 August 1999 Catchwords: CONFLICT OF LAWS - choice of law - torts - motor vehicle accident in Victoria - vehicle registered in Queensland - claim extinguished in Victoria - cannot sue in Queensland NEGLIGENCE - motor vehicles - accident in Victoria - vehicle registered in Queensland - claim extinguished in Victoria - cannot sue in Queensland Breavington v. Godleman (1988) 169 CLR 41 - applied Wilson v. Nattrass (1995) 21 MVR 41 - followed Thompson v. Hill (1995) 38 NSWLR 714 - followed Gaddes v. Fennessy (1993) 15 Qld Lawyer Reps 87 - followed Counsel for the Plaintiff: C. Heyworth-Smith Counsel for the Defendant: K. Holyoak Solicitors for the Plaintiff: Paul Clough Solicitors for the Defendant: McInnes Wilson Hearing Dates: 18 August 1999 -- 1 of 6 -- DISTRICT COURT OF QUEENSLAND REGISTRY: BRISBANE NUMBER: D2609 OF 1999 Plaintiff: MALCOLM JOHN ENGLAND AND Defendant: PETER MATTHEW SONTROP REASONS FOR JUDGMENT - McGILL D.C.J. Delivered the 20th day of August 1999 By a plaint filed 29 June 1999, the plaintiff claimed damages for personal injuries and other loss alleged to have been caused by the negligence of the defendant on the basis that, on 4 July 1996, a motor truck owned and driven by the defendant in which the plaintiff was riding as a passenger collided on the Midland Highway between Bonalla and Shepparton in Victoria with another vehicle, because of the negligence of the defendant. The plaint gives addresses in Queensland for both the plaintiff and the defendant. It is alleged that the defendant’s truck was insured under a policy of insurance issued in accordance with the Motor Vehicles Insurance Act 1936 at the relevant time, and that the defendant was an insured person under that Act at the relevant time. On 3 August 1999 the defendant filed a conditional Notice of Intention to Defend alleging that this court has no jurisdiction to entertain the plaintiff’s claim against the defendant, and that the proceedings were irregular, pursuant to r.144. The defendant then applied under r.16 for an order that the proceedings be struck out for want of jurisdiction, or other orders. When the application came before me, there was a cross-application on the part of the plaintiff for leave to commence proceedings against the defendant and FAI General Insurance Co Ltd pursuant to s.39(5)(c) of the Motor Accident Insurance Act 1994, for FAI General Insurance Co Ltd to be joined as a defendant pursuant to r.69, and for leave to amend the Statement of Claim in accordance with a draft. On the hearing of the application it was argued on behalf of the defendant that a claim in tort as pleaded was not justiciable in Queensland, and therefore was not within the jurisdiction of this court, so that it ought to be struck out. In the alternative, it was submitted that the action should be struck out because no notice had been given as required by s.37 of the Motor Accident -- 2 of 6 -- 3 Insurance Act 1994: Young v. Keong (1998) 27 MVR 465. This argument is cumulative; it is only necessary to consider it if I do not accede to the primary submission on behalf of the defendant. Counsel for the plaintiff did not have instructions to agree to the action being struck out, but could not offer any argument to the contrary. In those circumstances it was necessary for me to consider the material and the authorities dealing with the question of justiciability. The claim is one in tort, being damages for negligence. The defendant being in Queensland, and the amount sought by way of damages being $100,000, on the face of it this court has jurisdiction to entertain the claim under s.68(1)(a) of the District Court Act 1967. A claim in tort is a “personal action” for the purposes of that paragraph: Wylie “District Court Practice” para. 68.30. However, the existence of jurisdiction in this court will also depend on whether the claim, the subject of the action, is able to be sued for in Queensland. In the case of a claim in tort, that depends on whether it satisfies the test stated by Brennan J in Breavington v. Godleman (1988) 169 CLR 41 at 110: “A plaintiff may sue in the forum to enforce a liability in respect of a wrong occurring outside the territory of the forum if - 1. the claim arises out of circumstances of such a character that, if they had occurred within the territory of the forum, a cause of action would have arisen entitling the plaintiff to enforce against the defendant a civil liability of the kind which the plaintiff claims to enforce; and 2. by the law of the place in which the wrong occurred, the circumstances of the occurrence gave rise to a civil liability of the kind which the plaintiff claims to enforce.” This formulation was adopted by majority of the court in McKain v. R.W. Miller & Co (SA) Pty Ltd (1991) 174 CLR1, with the qualification that the liability under the second limb must be one which has not been extinguished. This may be just an elaboration of the second condition: Mason v. Murray’s Charter Coaches and Travel Services Pty Ltd (1998) 159 ALR 45 at 59 per Sackville J. The first of those conditions is clearly met in the present case; if the motor vehicle accident had happened in Queensland and the defendant was negligent, the plaintiff would have had a cause of action for damages for negligence against him. At common law the same would have been the situation in Victoria, and that would have satisfied the second condition. But the position is affected by the Transport Accident Act 1986 of Victoria which provides in s.93: -- 3 of 6 -- 4 “(1) A person shall not recover any damages in any proceedings in respect of the injury or death of a person as a result of a transport accident occurring on or after the commencement of s.34 [i.e., after 1 January 1987] except in accordance with this section.” The section goes on to permit damages to be recovered if the commission has determined a particular degree of impairment of the person under certain other provisions of the Act and the injury is a serious injury. The term “transport accident” means an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram: s.3(1) which is extended to include a motor vehicle which is out of control: ss.(1A). The term “motor vehicle” has the same meaning as in s.3(1) of the Road Safety Act 1986 which is wide enough to describe the vehicle referred to in the plaint, although registered in Queensland: “A vehicle that is used or intended to be used on a highway and that is built to be propelled by a motor that forms part of the vehicle ...”. There are some irrelevant exclusions. Vehicle is also defined in general terms, “a conveyance that is designed to be propelled or drawn by any means ...” There is no dispute that the requirements of s.93 have not been satisfied so that the plaintiff “shall not recover any damages in any proceedings in respect of the injury” suffered in that accident. The effect of the second limb of the test in Breavington referred to earlier requires a consideration of the substantive law of Victoria, but not the procedural law: Gardner v. Wallace (1995) 184 CLR 95 at 99. I was not referred to any decision of the Queensland Court of Appeal on the question of whether s.93 provides a procedural or substantive obstacle to an action for negligence at common law in Victoria, but this has been determined by the Court of Appeal in Victoria in Wilson v. Nattrass (1995) 21 MVR 41 to be a matter of substantive law; Ashley J, with whom Hedigan J substantially agreed, said at p.54: “Once this structure of s.93 is understood, the proper construction of subsections (1), (2) and (4) appears to me to be that, subject to a condition or contingency being established, the common law right of action previously enjoyed by persons injured in transport accidents in this State is extinguished.” In Thompson v. Hill (1995) 38 NSWLR 714, Kirby P at 729 said that the result of that decision was that s.93 had introduced substantive changes to the law in Victoria; -- 4 of 6 -- 5 “It had relevantly abolished the entitlement to sue in that State for common law damages except as the Act later and contingently provided. If that holding is followed by this court, its application of the McKain test will put the present plaintiff out of court.” His Honour went on to conclude that the decision should be followed with that result in that case. Clarke JA at p.740 and Cole JA at p.744 also concluded that s.93 was a matter of substantive law. Consistently with that decision, an action in the Supreme Court of New South Wales seeking damages in respect of a motor vehicle accident in Victoria, in circumstances where s.93 had not been complied with, was struck out in Zaal v. Winter (1997) 26 MVR 560. That occurred notwithstanding that there was in that case the prospect of the certificate required by s.93 issuing from the relevant Victorian authority. The only Queensland decision on the subject of which I am aware is one which precedes Thompson v. Hill, but in respect of this issue arrived at the same conclusion: Gaddes v. Fennessy (1993) 15 Qld Lawyer Reps 87, where McGuire DCJ at p.91 held that s.93 was relevantly a substantive interference with the right of action for damages for negligence with the result that the plaintiff could not sue in Queensland. The question therefore is what is the consequence of this conclusion. In Thompson v. Hill (supra), Clarke JA at p.734 said: “Where a plaintiff sues in a New South Wales court to recover damages for a tort committed outside the State three questions may arise: 1. Does the New South Wales court have jurisdiction to try the case? 2. If the court has jurisdiction are the proceedings justiciable in a New South Wales court? This question involves the application of the common law 3. principles of the conflict of laws (as modified by statute) applying in New South Wales. 4. If the court has jurisdiction and the proceedings are justiciable in the court, what law should it apply in resolving the issues between the parties?” In the present case, if the plaintiff has a personal action against the defendant, since the defendant is a Queensland resident there is sufficient locality jurisdiction: Tuckerman v. Neville [1992] 2 Qd.R. 657. But the court will only have jurisdiction if what is alleged is a personal action against the defendant, and if there can be no claim by the plaintiff against the defendant in tort in respect of this motor vehicle accident, the plaintiff has no personal action against the defendant so the -- 5 of 6 -- 6 matter does not fall within s.68 of the District Court Act. In that sense, what Clarke JA describes as justiciability is, I think, really an aspect of jurisdiction. The application of the rule in Breavington, which modifies what was formerly described as the rule in Phillips v. Eyre (1870) LR 6 QB 1, has been described as a matter of jurisdiction: see for example, Nygh, “Conflict Of Laws in Australia” (2 nd ed., 1971), p.407; cf 6th ed., 1995, p.343. In any case, his Honour regarded it as a matter which operated as a threshold question (p.734) and in a situation where a plaintiff cannot cross a threshold, the appropriate course is to strike out the proceeding under r.16. If a proceeding is commenced in the District Court which the court does not have jurisdiction to try, it should be struck out or transferred to the Supreme Court: District Court Act 1867 s.85. In circumstances where the claim pleaded is one which is not justiciable in Queensland, nothing would be gained by transferring the action to the Supreme Court, and the appropriate course , in my opinion, is to strike out the proceeding. It was not suggested that the plaintiff’s position could be improved by repleading. There is perhaps some analogy with the position in Young v. Keong (1998) 27 MVR 465, where it was held appropriate to strike out an action which had not satisfied the notice of requirements of the Motor Accident Insurance Act 1994. In my opinion, the appropriate course is to strike the proceeding out. It was not suggested that the plaintiff’s cross-application would overcome a conclusion adverse to the plaintiff on the question of justiciability; this was really directed to some other difficulties the plaintiff faces which, in the circumstances, I need not resolve. That application therefore must be dismissed. On the defendant’s application, the plaint is struck out. I order the plaintiff to pay the defendant’s costs of the application and the proceeding to be assessed. Counsel for the Plaintiff: C. Heyworth-Smith Counsel for the Defendant: K. Holyoak Solicitors for the Plaintiff: Paul Clough Solicitors for the Defendant: McInnes Wilson Hearing Dates: 18 August 1999 -- 6 of 6 --