FAI General Insurance Company Ltd v Commissioner of Main Roads [1990] QSCFC 10 [1991] 2 Qd R 273

V &o<, IN THE SUPREME COURT OF QUEENSLAND FULL COURT: "REVISED COPIES -ISSUED Court Reporting Bureau Date-. 2X-1 3 / ?0 10 BEFORE: Mr. Justice McPherson Mr. Justice de Jersey Mr. Justice Lee BRISBANE, 15 MARCH 1990 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau.) 10 20 BETWEEN : 20 F.A.I. GENERAL INSURANCE COMPANY LIMITED Plaintiff/First Rlspondenu -and- 30 THE COMMISSIONER OF MAIN ROADS First Defendant/Second Respondent 30 -and- R.A.C.Q. INSURANCE P.TY. LIMITED Second Defendant/Appel lan-; 40 50 60 JUDGMENT MR. JUSTICE McPHERSON: In this appeal the: Court consisted of Mr. Justice de Jersey, Mr. Justice Lee and me. I would allow the appeal, set aside the declaration and injunction made below and order that the notice of motion be dismissed . As to costs I would order that the plaintiff, who is the first respondent to this appeal, pay the appellant's costs of and incidental to the appeal and of the motion, including reserved costs if any. 40 50 60 —Govt. Printer, Qld. -l- [1990] QSCFC 10 -- 1 of 29 -- ] 10 20 30 40 50 60 1 10 20 30 40 50 60 I publish my reasons. MR. JUSTICE de JERSEY: I agree with the orders proposed by the learned presiding judge. I publish my reasons. MR. JUSTICE McPHERSON: I am authorised by my brother Lee to say that he agrees both with the resons of my brother de Jersey and with my reasons. The order of the Court will be as I have stated it. —Govt. Printer, Qid. -2- -- 2 of 29 -- YO ^ojolO ofIn the supreme court OF QUEENSLAND FULL COURT No. 3582 of 1989 BETWEEN : FAI GENERAL INSURANCE COMPANY LIMITED Plaintiff/First Respondent AND : THE COMMISSIONER OF MAIN ROADS First Defendant/Second Respondent AND : RACQ INSURANCE PTY . LIMITED Second Defendant/Appellant McPHERON J. de JERSEY J. LEE J. Reasons for judgment delivered by McPherson J. and de Jersey J on 15 March 1990. Lee J agrees with the reasons of McPherson J and de Jersey J. de Jersey J agrees with the. order of McPherson J. "APPEAL ALLOWED, AND ORDER THAT THE DECLARATION AND INJUNCTION MADE BELOW BE SET ASIDE AND THAT THE NOTICE OF MOTION BE DISMISSED. FURTHER ORDER THAT THE PLAINTIFF/FIRST RESPONDENT PAY THE APPELLANT'S COSTS OF AND INCIDENTAL TO THE APPEAL AND OF THE MOTION, INCLUDING RESERVED COSTS IF ANY. -- 3 of 29 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 3582 of 1989 Before the Full Court Mr Justice McPherson Mr Justice de Jersey Mr Justice Lee BETWEEN: AND: FAI GENERAL INSURANCE COMPANY LIMITED Plaintiff/First Respondent AND: THE COMMISSIONER OF MAIN ROADS First Defendant/Second Respondent RACO INSURANCE PTY , LIMITED Second Defendant/Appellant JUDGMENT - MCPHERSON J. Delivered the Fifteenth day of March 1990. Counsel: Mr. R.N. Chesterman Q.C. with Mr S.S.W. Couper for the Plaintiff First Respondent Mr R.I. Hanger Q.C. with Mr B.D. O'Donnell for the Appellant Second Respondent Mrs M.J. White for the First Defendant Solicitors: Messrs Mclnnes Wilson & Jensen for the Plaintiff First Respondent The Crown Solicitors for the First Defendant Second Respondent Messrs Cooper, Grace & Ward for the Second Defendant Appellant Hearing Date: 12 February, 1990. -- 4 of 29 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT BETWEEN: AND; AND: No. 3582 of 1989 FAI GENERAL INSURANCE COMPANY LIMITED Plaintiff/First Respondent THE COMMISSIONER OF MAIN ROADS First Defendant/Second Respondent RACO INSURANCE PTY, LIMITED Second Defendant/Appellant judgment - McPherson j. Delivered the Fifteenth day of March 1990. I agree that this appeal should be allowed. It raises a difficult question of interpretation and is one that no doubt involves large sums of money. Since we are differing from the decision of Carter J. below, I would ordinarily have been disposed to prepare separate reasons of my own. But the question has been examined so thoroughly in the reasons, with which I agree, of de Jersey J. that little useful purpose would be served by simply repeating in a judgment of my own what he has said in his . There is, however, one matter about which, in the course of argument on appeal, I was perhaps more troubled than were my brother Judges. It concerns the form of relief and the circumstances in which it has been sought. The plaintiff applied for and obtained not only a declaration but an injunction restraining the defendant Commissioner "from issuing to -- 5 of 29 -- 2 applicants for renewal of registration a form inviting applications for alternative compulsory insurance upon renewal of registration of such motor vehicle". The authority of the Commissioner to prescribe forms is conferred by reg. 4(2) of the Main Roads Regulations 1967. It is as follows "(2) Forms approved by the Commissioner shall - (a) provide for the form to be completed by the applicant or other prescribed person by setting out therein such particulars as the Commissioner reasonably requires for the purposes of the administration of this Act; (b) be used for the purposes for which they are respectively required to be used; (c) be completed in accordance with such directions as are specified in the approved form" . The "form" that the Commissioner has been restrained from using, which is described in the reasons for judgment of de Jersey J., is the Vehicle Registration Renewal Notice. No complaint was made about its use by the Commissioner until the recent inclusion of what was conveniently described as the "tick-a-box" insert, accompanied by the words "Should you wish to change the Compulsory Third Party Insurer for this vehicle, please tick the Insurer of your choice". It was said that there was within reg. 4(2) no established approval of the Commissioner for the use of that form, and that therefore it ought not to be issued. It was on that basis that the injunction here was granted . Even if it be assumed that there was under reg. 4(2) no approval of the Commissioner for the use of the form as varied, it does not follow that the Commissioner should be subjected to -- 6 of 29 -- 3 an order of this Court on the application of the plaintiff from issuing or sending it out. The subject-matter of the variation complained of is, as de Jersey J. points out, couched in the language of inquiry or request and not in terms of command or demand to the recipient. I doubt very much if it can, within the meaning of reg. 4(2) (a) be considered "a form to be completed by the applicant ... by setting out therein such particulars as the Commissioner reasonably requires..."; or one that is in terms of reg. 4(2) (c), required ("shall") to "be completed in accordance with such directions as are specified in the approved form" . To sanction the use of Court process to prevent the Commissioner from requesting information from owners of motor vehicles seems to me to intrude very much further into the domain of government administrative or clerical activity than is justified by any previous judicial decision of which I am aware . The true grievance of the plaintiff is, however, not that the Commissioner has been soliciting, or even eliciting, information about vehicle owners' choice of insurer; but that he proposes to act upon it. To explain what he does, or proposes to do, it is necessary to refer briefly to the procedure for renewing the registration and insurance of a motor vehicle in Queensland. The Commissioner annually sends to the owner a "vehicle registration renewal notice". That is the form in its pre-variation condition. So far as can be gathered, it too is not a formally "approved" form within reg. 4(2). No point is made of that. By reg. 28(1) of the Main Roads Regulations the owner of a registered vehicle is required to "apply to the Commissioner" for renewal of the registration and the issue of -- 7 of 29 -- 4 a certificate to that effect; and also for "the renewing of the contract of insurance" in respect of the vehicle. The application is to be accompanied by the fee for the registration renewal; and also the premium for renewal of the insurance contract, or else a certificate issued under reg. 1 9A of the Motor Vehicles Insurance Regulations of 1968. Once that is done, and disregarding the particular instance provided for in reg. 28(3), the registered owner has satisfied his statutory duty. All he is required by reg. 28(1) to do is to "apply to the Commissioner" and to send his money or the certificate. The renewal process then passes on to the Commissioner. "Subject to these regulations", he may issue a certificate of renewal of registration : reg. 28(4). He is not obliged to, but "may" do so. Likewise, under the Motor Vehicle Insurance Regulations, the Secretary of the Main Roads Department "may" issue on behalf of "the insurer concerned" a certificate that the provisions of the Motor Vehicles Insurance Act have been complied with : see reg. 19(1) (second sentence). If he does so, the renewal of registration is not considered to have been effected until the Commissioner has issued a certificate of renewal of registration and of compliance with the Motor Vehicles Insurance Act , and the certificate has been delivered or posted to the owner or his agent : reg. 28(5). In practice, what the owner receives is the vehicle registration renewal notice indorsed with a receipt, and a windscreen registration "sticker" for his car. What is not to be found in the Main Road Regulations or the Motor Vehicles Insurance Regulations is any express obligation on the part of the Commissioner to accept the application by the -- 8 of 29 -- 5 owner for "renewal" of his contract of insurance. The absence of any such obligation seems to me to be a fundamental weakness in the plaintiff's submission that the owner is bound to continue insuring with his pre-existing insurer, and that the Commissioner is not at liberty to permit him to do anything else. The real complaint of the plaintiff can in the end only be that, if "renewal" is not limited to insuring again with the same insurer, it may lose premiums to some other insurer of the owner's choice. I do not pause to inquire whether, if the regulations are to be construed in the manner contended for by the plaintiff, they would be consistent with provisions of the Trade Practices Act 1974 (Cth.). That question has never been raised in these proceedings. What, however, the plaintiff wishes to anticipate is that the Commissioner will account to some other insurer of the owner's choice for premium money that might previously have been expected to be received by the plaintiff. It is common ground that the Commissioner is not made the insurer's agent to accept from owners their applications for renewal of insurance tendered in conformity with reg. 28(1). I have said that by reg. 19(1) of the Motor Vehicles Insurance Regulations the Secretary of the Main Road Department "may" (not "must") issue on behalf of the insurer "concerned" a certificate that the provisions of the Motor Vehicles Insurance Act have been complied with. The Commissioner is obliged by reg. 19(2) of those Regulations to account weekly to the insurer concerned for the receipt of the premiums received during the preceding week pursuant to reg. 19(1) of those Regulations. Regulation -- 9 of 29 -- 6 19(1) requires that every premium payable "in respect of the issue or renewal" of a contract of insurance may at the owner's option be paid to the Secretary of the Department or other person authorised in that behalf by the Commissioner. In using the term "issue" as well as "renew" in relation to contracts of insurance, that regulation does, as my brother de Jersey observes, accommodate the possibility of a change in insurer by the issue of a new policy with a different insurer at the expiration of the current contract. The words "issue or" before "renewal", and the words may "at the option of the owner" in substitution for "shall", were, we were informed, introduced into reg. 19(1) quite recently. Possibly that was done in contemplation of cases in which registered owners might wish to change their insurers. The point of all this is, however, that when one comes to examine the interest of the plaintiff as insurer in the system of "renewing" such insurance contracts, it becomes plain that the only interest it has that is capable of protection in law is its interest in the fate of premiums it might hope to receive from the Commissioner. But the plaintiff's right to claim premiums from the Commissioner can be no more than co-extensive with the Commissioner's duty to pay them to the plaintiff. The Commissioner would not be justified in law in paying over to the plaintiff a premium received by him but intended by the owner for some other insurer; and he might well incur legal liability for doing so. That remains so even if the owner is not entitled to change his insurer. In that regard the Commissioner's statutory duty under reg. 19(2) is clear. It is, as I have said, to pay to the licensed insurer "concerned" the amount -- 10 of 29 -- 7 received "on behalf of the licensed insurer". Having regard to the reference in reg. 19(2) to premiums received pursuant to reg. 19(1), it is the provisions of reg. 19(1) that identify the insurer "concerned". In their recently amended form, they show that every premium is payable in respect either of the "issue" or the "renewal" of a contract of insurance. Even if "renewal" is given its technical meaning of renewal of the same contract with the same insurer, the regulation acknowledges the possibility that a fresh contract may "issue" on the expiration of the existing contract of insurance. There is nothing to prevent its being made with a different insurer, who thereupon becomes the insurer "concerned". In those circumstances the plaintiff has no right, and no foothold in law for claiming to be entitled, to premium money paid under reg. 19(1) to the Secretary or the Commissioner upon the issue of a contract of insurance with, and intended for payment to, some insurer other than the plaintiff itself; much less has the plaintiff the right to restrain the Commissioner from asking an owner questions about whether he would prefer some person other than the plaintiff to insure his motor vehicle in the ensuing year. -- 11 of 29 -- IN THE SUPREME COURT OF QUEENSLAND No. 3582 of 1989 Before the Full Court Mr. Justice McPherson Mr. Justice de Jersey Mr. Justice Lee BETWEEN : FAX GENERAL INSURANCE COMPANY LIMITED AND: AND: Plaintiff/First Respondent THE COMMISSIONER OF MAIN ROADS First Defendant/Second Respondent RACO INSURANCE PTY , LIMITED Second Defendant/Appellant JUDGMENT - de Jersey J. Delivered the 15th day of March, 1990. CATCHWORDS: Compulsory third party insurance scheme - whether vehicle owner must, when renewing registration, renew insurance with the same licensed insurer as previously, or whether he may change licensed insurer - construction of provisions of Motor Vehicles Insurance Act and arguably conflicting Regulation within Main Roads Regulations - Commissioner of Main Roads asking applicants for renewal of registration whether they wish to change licensed insurer - standing of licensed insurer/plaintiff to seek declaration and injunction on the basis that Commissioner thereby acts unlawfully - s. 3(1) Motor Vehicles Insurance Act, Regulation 28 Main Roads Regulations. Counsel: Mr. R.I. Hanger Q.C. and Mr. B.D. O'Donnell for appellant Mr. R.N. Chesterman Q.C. and Mr. S.S.W. Couper for first respondent Mrs. M.J. White for second respondent Solicitors: Messrs Cooper Grace and Ward for appellant Messrs Mclnnes Wilson and Jensen for first respondent The Crown Solicitor for second respondent Hearing dates: 12th and 13th February, 1990 -- 12 of 29 -- IN THE SUPREME COURT OF QUEENSLAND No. 3582 of 1989 BETWEEN: FAI GENERAL INSURANCE COMPANY LIMITED Plaintiff/First Respondent AND: THE COMMISSIONER OF MAIN ROADS First Defendant/Second Respondent AND: RACQ INSURANCE PTY■ LIMITED Second Defendant/Appellant JUDGMENT - de Jersey J . Delivered the 15th day of March, 1990. This appeal concerns an aspect of the scheme for compulsory third party insurance in respect of vehicles driven on roads in Queensland. The essence of the scheme may be drawn from the following four provisions. Regulation 6 of the Main Roads Regulations 1987 provides that a person shall not use a motor vehicle on a road unless the vehicle is registered. Section 3(1) of the Motor Vehicles Insurance Act 1936-1988 obliges the owner of a motor vehicle at all times during its registration to "indemnify and keep indemnified the owner and every authorised agent of the owner by a contract of insurance with the State Government Insurance Office (Queensland) or with some licensed insurer against all sums for which the owner or his estate or any such authorised agent or his estate shall become legally liable by way of damages in respect of such motor vehicle for accidental bodily injury (fatal or non-fatal) to any person (including, in respect of such injury caused by any such other person, the owner himself) in any state or territory of the Commonwealth -- 13 of 29 -- 2 of Australia where such injury is caused by, through, or in connection with such motor vehicle". Section 3(4) of that Act provides that no such contract of insurance shall be revoked during the period of registration of the vehicle. Finally, s. 3(5) of the Act obliges the first defendant ("the Commissioner") not to register or renew the registration of a vehicle unless satisfied that a contract of insurance in accordance with the Act is in force in respect of the vehicle. There are four companies approved as licensed insurers under the Motor Vehicles Insurance Act, Suncorp (previously State Government Insurance Office (Qld)), the plaintiff ("FAI"), the second defendant ("RACQ"), and Mercantile Mutual. RACQ was only recently, on 1st July, 1989, approved under the Act as a licensed insurer. The scheme is administered by the Commissioner. As I have said, he is, under s. 3(5) of the Motor Vehicles Insurance Act, prohibited from registering or renewing the registration of a motor vehicle unless satisfied that a contract of insurance in accordance with the Act is in force in respect of the vehicle. Before the date of expiration of registration of a vehicle, he sends a form entitled "Vehicle Registration Renewal Notice" to the owner, requesting payment of the requisite fees and specifying a due date for payment. The form names the current compulsory third party insurer in respect of the vehicle, and includes, in the amounts sought, the compulsory third party insurance premium. -- 14 of 29 -- 3 This litigation arises from a variation recently made to the form by the Commissioner. It now includes these words: "Should you wish to change the Compulsory Third Party Insurer for this Vehicle, please tick the Insurer of your choice." Then follow four squares with the names of the four current licensed insurers beside them, Suncorp, FAI, RACQ, Mercantile Mutual. FAI commenced proceedings in the court for a declaration that the Commissioner was not authorised to issue forms containing that statement, and an injunction to restrain him from doing so. The learned Chamber Judge made a declaration "that the Commissioner of Main Roads is not authorised by the Main Roads Act 1920, as amended, or the Main Roads Regulations 1987, as amended, or the Motor Vehicles Insurance Act 1936, as amended, or the Motor Vehicles Insurance Regulations of 1968, as amended, to issue a form inviting applications for alternative compulsory third party insurance upon the renewal of registration of a motor vehicle" and an injunction restraining the Commissioner "from issuing to applicants for renewal of registration of a motor vehicle a form inviting applications for alternative compulsory third party insurance upon renewal of registration of such motor vehicle" RACQ appeals against the granting of that relief. The appeal is a contest between RACQ and FAI. The Commissioner has indicated that he will abide by whatever determination the court makes. In support of the declaration made below, FAI contends that upon the proper construction of the Acts and Regulations, when a vehicle's registration falls for renewal, the owner must also renew his third party insurance with the same licensed insurer as held the policy in the preceding year; the owner may not then change insurer. RACQ -- 15 of 29 -- 4 contends for the contrary, that an owner renewing the registration of his vehicle is not obliged to renew his insurance policy with the same insurer, but may change to another licensed insurer if he wishes. The parties' respective financial interests in the matter are obvious, FAI being a licensed insurer of comparatively long standing and RACQ a new entrant to the field. Also understandable is the concern of FAI that the Commissioner should be alerting vehicle owners to a, possibility of changing their licensed insurer, and, on the other hand, that RACQ should be quite content with his doing so. There are two matters which I will mention at the outset: the question of the standing of FAI to seek this relief, and whether the relief is appropriate anyway, in view of the administrative nature of the relevant act of the Commissioner. I mention first the question of the appropriateness of granting such relief at the instance of FAI, assuming the correctness of its contention. It has challenged a purely administrative act of the Commissioner. The Commissioner has a clear interest in raising, with applicants for renewal of registration, the question of compulsory third party insurance: he may not renew the registration unless satisfied that insurance is in force. Counsel for FAI urged however that if an owner may not lawfully change his licensed insurer upon renewal of registration, then the Commissioner is, by this form, alerting owners to the possibility of their acting contrary to the law, and that the Commissioner should be restrained from doing that. I am not satisfied that FAI would, on that basis, have standing to seek such relief. If, however, insurance -- 16 of 29 -- 5 premiums were received by the Commissioner in respect of vehicles previously covered by FAI, and sent on to another licensed insurer in conformity with the owner's selection of that new insurer, then FAI would have a sufficient interest to seek to restrain the Commissioner from doing that. I doubt that, in accordance with orthodox principle, FAI has sufficient standing to challenge the mere issue of the form. As to the second matter, one should note that the inquiry on the form is no more than an inquiry: it has no particular legal significance. If it is based on a misapprehension about the possibility of changing insurer, then it may be regarded as meddlesome and misleading, and may lead to inconvenience. But it has no legal consequence. There is, I should say at once, no basis for regarding the Commissioner as an agent to arrange third party insurance, whether on behalf of the owner or the licensed insurer, and Counsel for both parties accepted that that is so. Whatever the content of the form, the obligation to insure remains with the owner, to be fulfilled as the statute requires. That obligation cannot be affected by the inquiry on the form or any answer made to that inquiry. The inquiry, therefore, if illfounded, may be productive of inconvenience, but no legal consequence, and it is difficult to see why the court should interfere with declaratory relief in respect of such purely administrative activity. Apparently neither of these matters was argued before the learned Chamber Judge. It is not necessary for me to express final views upon them. That is because in my opinion, RACQ's contention is correct and a vehicle owner renewing his -- 17 of 29 -- 6 registration is entitled to change his licensed insurer. In the result, therefore, I would set aside the declaration and injunction, because of my views on the question of construction of the Acts and Regulations. As one would expect, the obligation cast upon vehicle owners to carry third party insurance is to be found in the Motor Vehicles Insurance Act. I have already set out the relevant provision, s. 3(1), which obliges owners throughout the period of vehicle registration to "indemnify and keep indemnified (themselves) and every authorised agent ... by a contract of insurance with the State Government Insurance Office (Queensland) or with some licensed insurer ...". On the face of it, the sub-section obliges the owner to maintain insurance cover with Suncorp or "some licensed insurer", which would permit him to change insurer at the end of the term of a current contract. We were referred to other provisions of Acts and Regulations which, it was urged, when read with that sub-section, indicate that there may be no change of insurer. I will come to those provisions shortly. Counsel for RACQ submitted that the right to change insurer which s. 3(1) leaves open could be denied a vehicle owner only by very clear language in other provisions. One must acknowledge, of course, that there is not much freedom of choice left to vehicle owners in this area. They must maintain third party insurance, the terms of the policy are prescribed by statute, they may not revoke the policy during registration, and they may select their insurer from a group of designated licensed insurers of whom there are presently only four. But if -- 18 of 29 -- 7 s . 3(1) does not deny them that right of selection from year to year, then, because it is akin to a common law right to choose the party with whom one wishes to contract, it is I think correct to say that the right should not be withdrawn except by clear provision. See Potter v. Minahan (1908) 7 C.L.R. 277, 304 and Sarqood Bros v. Commonwealth (1910) 11 C.L.R. 258, 279. I will deal now with the other provisions which, it was said, when read with s. 3(1), lead to an obligation to renew with the same insurer as before. These other provisions all speak of "renewal" of the third party insurance contract in respect of a vehicle, and Counsel for FAI urge that we look to the ordinary concept of renewal of insurance contract under insurance law. That means, really, extension of the term of the existing policy on the same terms and retaining the same insurer. See Halsburv (4th) vol . 25, para. 491. Section 3(5) of Motor Vehicles Insurance Act obliges the Commissioner not to register a vehicle or renew the registration of a vehicle unless satisfied that "a contract of insurance in accordance with this Act is in force". That means the contract required by s. 3(1), which is to be with Suncorp or "some licensed insurer". As I have said, that prima facie allows to the owner a choice. The mention of "renewal" comes in the closing words of s. 3(5), referring to the situation "where such contract is not renewed or further renewed within 30 days subsequent to and including the due date of renewal or further renewal of such contract", in which event the Commissioner is to be satisfied that there is insurance cover for the balance of -- 19 of 29 -- 8 the period. Acknowledging what is, in insurance law, involved in renewing an insurance policy, I am nevertheless not satisfied that the word "renewal" is used in s. 3(5) in that sense. I think rather that the sub-section is referring to renewal of the contract of the contract of insurance required by s. 3(1) - that is, a contract with one or other of the licensed insurers - but not necessarily with the same insurer from year to year; so that there will be continuity of insurance cover, in light of the obligation under s. 3(1) that the owner "keep (himself) indemnified". In taking that view, I am influenced by the circumstance s. 3(1) is the source of the obligation to insure, and that s. 3(5) is in the nature of a machinery provision. To engraft onto s. 3(1) a limitation on the identity of insurer in subsequent years would in my opinion have required a much clearer indication than may arguably be gathered from the mere use of the term "renewal" in that subsequent machinery provision . The only other mention of renewal in the Motor Vehicles Insurance Act is in s. 4. The terms of that section are as follows: "Every contract of insurance entered into for the purposes of this Act in respect of any motor vehicle shall inure in favour of the owner for the time being and his estate and every other insured person thereunder and his estate, notwithstanding any change in the ownership of such motor vehicle. Where any such contract is renewed or further renewed within 30 days subsequent to, and including, the due date of such renewal or further renewal, it shall be deemed that such renewal or further renewal came into force on and from the due date therefor and that such contract was continued in force accordingly. An insurer (whether the Office or a licensed insurer) shall not refuse to renew or further renew any such -- 20 of 29 -- 9 contract within 30 days subsequent to, and including, the due date of such renewal unless, not later than 30 days or, if a longer period is prescribed, such longer period before such due date such insurer shall have given to the Commissioner of Main Roads notice in writing that the insurer will not renew such contract ." The last two paragraphs of the section deal with specific situations: payment of the premium within the so called "days of grace" period and the means by which a licensed insurer may refuse to renew a contract. Now it is strongly arguable that these references to renewal do contemplate renewal with the same insurer. I do not consider, however, that one should properly use those provisions, dealing as they do with those special situations, to explain the extent of the obligation to "keep indemnified" set up by s. 3 {1 ) . Any indication arguably to be gained from s. 4, that the right of selection of insurer reserved by s. 3(1) is cut down, is in my view simply not clear and direct enough to achieve that result. Regulation 19 of the Motor Vehicles Insurance Regulations refers to renewal in these terms: "(1) Every premium payable in respect of the issue or renewal of a contract of insurance may at the option of the owner be paid by the owner of the motor vehicle concerned to the Secretary of the Department of Main Roads or other person authorised in that behalf by the Commissioner of Main Roads . The Secretary or other authorised person may issue on behalf of the insurer concerned a certificate that the provisions of the Act have been complied with in respect of the motor vehicle concerned." (Because of s. 10 of the Motor Vehicles Insurance Act, Regulations made under that Act have the same effect as if enacted in the Act.) -- 21 of 29 -- That Regulation does in my view use the term "renewal" in the sense of extension of a current contract for a further term retaining the same insurer. But in referring as well to' the "issue" of contracts of insurance, it accommodates the possibility of change of licensed insurer by the issue of a new policy with a different insurer at the expiration of the current contract. The Regulation therefore does not support a narrow construction of s. 3(1) of the Act, or the addition to that sub-section of a limitation presently not there. The appellant 1 relied principally on Regulation 28 of the Main Roads Regulations, described by Counsel for FAI as setting up the machinery to ensure compliance by a motor vehicle owner with his obligation under s. 3(1) of the Motor Vehicles Insurance Act. Regulation 28(1) is in these terms: "(1) A person - (a) to whom a certificate of registration of motor vehicle has been issued; or (b) who has given notice of acquisition of a motor vehicle in accordance with these regulations; shall apply to the Commissioner not later than the expiration of the period for which certificate of registration has been issued for the renewal of the registration and issue of a certificate of renewal of registration and for the renewing of the contract of insurance in respect of the motor vehicle required by the Motor Vehicles Insurance Act 1936-1979." But for what follows, I would confidently have construed the word "renewing" in that Regulation as I did with respect to s. 3(5) of the Motor Vehicles Insurance Act, that is, replacing with something of the same kind although not necessarily with -- 22 of 29 -- the same insurer. The construction of that part of the regulation is however complicated by para. (2), which is in these terms: "(2) The application shall be accompanied by - (a) the prescribed fee for the renewal of registration of a motor vehicle; (b) (i) the premium for the renewal of the contract of insurance as required by the Motor Vehicles Insurance Act 1936- 1979; or (ii) if the contract of insurance is not being renewed, a certificate as required by the provisions of the Motor Vehicles Insurance Act 1936-1979, in respect of the motor vehicle issued on behalf of Suncorp Insurance and Finance or a licensed insurer of a premium paid under Regulation 19A of the Motor Vehicles Insurance Regulations of 1968; and (c) the annual amount payable under s. 4E(5) of the Motor Vehicles Insurance Act 1936-1979 (the Nominal Defendant fee)." It may fairly be said that to make sense of this paragraph, the word "renewal" should be read as contemplating retention of the same licensed insurer as before. That is because Regulation 19A of the Motor Vehicles Insurance Regulations deals with the situation where an owner's current licensed insurer refuses to "renew" the contract at the end of its term. Regulation 19A provides as follows: "(1) Notwithstanding anything to the contrary in these regulations, if the owner of a motor vehicle whose licensed insurer has refused to renew such owner's contract of insurance pays to the Secretary of the Department of Main Roads or other person authorised in that behalf by the Commissioner of Main Roads the premium that would have been payable for renewal had the licensed insurer not refused to renew the contract of insurance, such owner shall be deemed, subject to the consent of the Office, to have applied to the -- 23 of 29 -- Office for and to have effected with the Office a contract of insurance in respect of the period of one year commencing on the due date for renewal of the registration of the motor vehicle ." But as Counsel for FAI conceded, the words "or a licensed insurer" in Regulation 28(2)(b)(ii) (which I have underlined above) must be surplusage, Regulation 1 9A of the Motor Vehicles Insurance Regulations contemplating the issue of a certificate only on behalf of Suncorp, not on behalf of other licensed insurers. Another view of the inclusion of those unnecessary words is, of course, that the draftsman of the Regulation had in mind that the identity of a licensed insurer might change to an insurer other than Suncorp. Be that as it may, the proper construction of Regulation 28 is far from clear, and I consider that it would constitute an unreliable base from which to engraft a limitation onto s. 3(1) of the Motor Vehicles Insurance Act. Obviously enough, it may be submitted that, recognising that one should if possible give a word a consistent meaning when it recurs throughout a provision, then because in Regulation 28(2) (b) there is indication that "renewal" contemplates retention of the same insurer, the obligation to apply for the Commissioner for "renewal" of the contract of insurance referred to in Regulation 28(1) should also be read as involving retaining the same insurer. Counsel for FAI contended that such a construction would not be inconsistent with, or repugnant to, s. 3(1) of the Motor Vehicles Insurance Act, the source of the relevant obligation to insure. I have already said that I regard that section as leaving open the possibility -- 24 of 29 -- 13 of changing insurer, and that Regulation 28 - which contains at least one drafting discrepancy - would be an unreliable base from which to embellish that obligation. But faced with the possibility that the court might regard Regulation 28 as affecting the construction of s. 3(1), Counsel for RACQ submitted, as an alternative position, that Regulation 28 is ultra vires. Because of the way I approach the construction of the Regulation, it is not necessary for me to deal with that submission . One should construe Regulation 28 of the Main Roads Regulations, if possible, so as not to give rise to inconsistency with, or repugnancy to, s. 3(1) of the Motor Vehicles Insurance Act. One should thereby make every reasonable endeavour to save the Regulation from invalidity. Regulations have of course been held invalid for repugnancy to the general law, which may include an Act other than the authorising Act. See, for example, Powell v. May (1946) K.B. 330 and Stevens v. Perrett (1935) 53 C.L.R. 449. A Regulation may be held repugnant to or inconsistent with a provision of an Act because, for example, it adds to limitations upon rights already set up by the Act. See Morton v. The Union Steamship Company of New Zealand Ltd. (1951) 83 C.L.R. 402, Plunkett v. Smith (1911) 14 C.L.R. 76 and Ira L. and A.C. Berk Ltd, v. Commonwealth (1931) 30 S.R. N.S.W. (119). Against the background of my view on s . 3(1) of the Motor Vehicles Insurance Act, which while limiting the insurance which must be held, nevertheless leaves open some choice of insurer upon renewal of insurance at the end of the year, I consider that Regulation 28 -- 25 of 29 -- 14 of the Main Roads Regulations, which is after all a regulation made under another although related piece of legislation, should be read down as necessary, in order to ensure that it is not seen as interpolating into s. 3(1) another limitation not already there. I would therefore read the word "renewing" in Regulation 28(1), as meaning renewing although not necessarily with the same licensed insurer; but read the word "renewed" in Regulation 28(2)(b)(ii) as if it were followed by the words "with the same insurer" . That the same word should as a result carry a varying meaning through the regulation is unfortunate. That is however necessary in order to preserve the validity of the regulation. The regulation could not otherwise - especially because of its inherent drafting discrepancy - be used as the basis for imposing a further limitation upon motor vehicle owners with respect to compulsory third party insurance, a limitation not already contained in s. 3(1) of the Motor Vehicles Insurance Act, and which would be contrary to the option left open by that section. The learned Judge was strongly influenced in his construction of s. 3(1) of the Act, in the context of Regulation 28, by the desirability of minimising the prospect that a vehicle might for any period of use be uninsured. To allow to the owner of a motor vehicle the possibility that he might change his licensed insurer, does create a risk that the vehicle may be uninsured at some time. For example, were an owner to apply for insurance with a different licensed insurer, upon seeking renewal of registration, there may be a time lapse between the expiration of the current policy and the acceptance -- 26 of 29 -- 1 5 of risk by that different insurer. Until the different insurer were to issue a policy, the Commissioner would not be able to register the vehicle, and the owner could not use it on public roads, which may be inconvenient. That is a potential practical problem, and it is probably not a complete answer to say that the obligation is upon the owner to "keep (himself) indemnified", under s. 3 of the Motor Vehicles Insurance Act, and that he should therefore arrange any change of insurer sufficiently far in advance. But what is I think significant is that even on the construction urged by FAI and adopted by the learned Judge, there arises the possibility that a vehicle may be uninsured for periods of time. For example, the proviso to s. 3(4) of the Motor Vehicles Insurance Act excuses any licensed insurer from an obligation to make a contract of insurance with any person. Should the current licensed insurer refuse to take on the risk for a further period, the premium may be tendered to the Secretary of the Department of Main Roads, but the issue of the consequent policy by Suncorp is, in terms of Regulation 1 9A of the Motor Vehicles Insurance Regulations, still "subject to the consent of the Office". If Suncorp does not consent, absence of insurance is the result. Regulation 19(3) also raises the possibility that a vehicle may become uninsured for a time in certain circumstances where the premium has been tendered after the expiration of the 30 days period of "grace" and not accepted (or accepted in part) by the insurer within certain time limits after that. -- 27 of 29 -- Counsel for FAI pointed out that such absence of insurance arises from non-payment of premium as required. Why, he asked, add to that other possible situations of absence of insurance? As I have said, the other possible instances of absence of insurance also arise from an owner's failure to carry out his statutory obligation. But in order to avoid those possible additional risks, one should not adopt a construction of the Act which conflicts with its natural meaning. One should not embellish an obligation, clearly set up, by interpolating other constraints drawn from a poorly drafted regulation made under another Act and intended to have a subsidiary operation. On either construction, there is the possibility of the absence of insurance. One should not strain one's construction to serve a policy end, in order to minimise that risk. That is a matter for redrafting if thought necessary, not strained construction. Counsel for FAI submitted that, in any event, the form was not authorised as required, and should therefore not be used. Regulation 4(2) (a) of the Main Roads Regulations provides that "forms approved by the Commissioner shall . . . contain such particulars as the Commissioner reasonably requires for the purposes of the administration of the (Main Roads Act)' 1 . For the purpose of what follows, I am assuming, without deciding, that the form is one to which Regulation 4(2) (a) applies. There was evidence, tendered on behalf of the plaintiff, that one Manicaros, the Manager of the Commissioner's Motor Vehicles Registration Division, "on behalf of the Commissioner . . . authorised the issue of the form pursuant to the provisions of Regulation 4(2) (a) of the Main Roads Regulations". There is as -- 28 of 29 -- well, however, evidence from one Doyle, the Chief Administration Officer and Secretary to the Commissioner, that he is a delegate of the Commissioner under s. 7 of the Main Roads Act. Under that section, the Commissioner may delegate his powers. There is no evidence of any delegation of power to Mr. Manicaros. Counsel for FAI submitted in these circumstances that in view of the evidence of the delegation to Mr. Doyle, and the lack of any evidence that he approved the form, the court should conclude that the form was not approved. It may be however that there was delegation to Mr. Manicaros as well: one does not know. This independent challenge to the validity of the form should in the end fail for the following reason. The plaintiff bore the onus of establishing that the issue of the form was not formally authorised. Included in the plaintiff's own evidence was the assertion from Mr. Manicaros that he issued the form "on behalf of" the Commissioner, carrying with it an implication that he did so with the Commissioner's authority. I would not regard the evidence of delegation to Mr. Doyle as dispelling that implication on the balance of probabilities, and in my view, the plaintiff should be seen as not having discharged its onus with respect to this issue. I would allow the appeal, set aside the declaration and injunction made, order that the notice of motion be dismissed, and order that the first respondent/plaintiff pay the appellant's taxed costs of and incidental to the appeal and the hearing of the notice of motion including any reserved costs. -- 29 of 29 --