Vonhoff v Jondaryan Shire Council
[2001] QDC 92
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- Vonhoff v Jondaryan Shire Council[2001] QDC 92
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Vonhoff v Jondaryan Shire Council[2001] QDC 92
Vonhoff v Jondaryan Shire Council[2001] QDC 92
DISTRICT COURT OF QUEENSLAND
CITATION: | VonHoff v. Jondaryan Shire Council & Anor [2001] QDC 092 |
PARTIES: | ANTHONY EDWARD VONHOFF (Plaintiff) v. JONDARYAN SHIRE COUNCIL (First Defendant) And NOMINAL DEFENDANT (Second Defendant) |
FILE NO/S: | D46 of 2000 |
DIVISION: | |
PROCEEDING: | Preliminary question |
ORIGINATING COURT: | District Court Toowoomba |
DELIVERED ON: | 29 May 2001 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 18 May 2001 |
JUDGE: | McGill DCJ |
ORDER: | Leave to the plaintiff to amend the claim and statement of claim to claim damages within the monetary limit of the jurisdiction of the court. Preliminary question answered “Yes” |
CATCHWORDS: | MOTOR VEHICLES – Compulsory Insurance – whether bobcat excluded from definition of “vehicle” because used for construction or maintenance of road transport infrastructure – Transport Infrastructure (Roads) Regulation 1991 s.2. MOTOR VEHICLES – Compulsory Insurance – definition of “motor vehicle” – effect on requirement for registration of existence of authorization to use vehicle on road – Transport Infrastructure (Roads) Regulation 1991 ss. 2, 12, 44 INSURANCE – Motor Vehicle Accident – whether bobcat used with a permit to repair water main under road a “motor vehicle” – Motor Accident Insurance Act 1994 ss. 4, 5; Transport Infrastructure (Roads) Regulation 1991 ss. 2, 12, 44 Ritter v. Dabo Constructions Pty Ltd [1989] 1 Qd.R. 460 – distinguished Kelly v. Alford [1988] 1 Qd.R. 404 - considered Brunner v. Elder Trading Pty Ltd [1988] 1 Qd.R. 19 - cited Mason v. The Nominal Defendant [1987] 2 Qd.R. 190 – considered Workers’ Compensation Board of Queensland v. Suncorp Insurance and Finance [1998] 1 Qd.R. 567 – considered Startune Pty Ltd v. Ultra-Tune Systems (Aust) Pty Ltd [1991] 1 Qd.R. 192 – applied |
COUNSEL: | J B Rolls for the plaintiff M. Grant-Taylor SC and S.A. McLean for the defendants |
SOLICITORS: | Shine Roche McGowen for the plaintiff Wonderley & Hall for the defendants |
- [1]There is before me for determination in advance of the trial, pursuant to a consent order made 22 December 2000 and r.483 of the Uniform Civil Procedure Rules, the following question:
“As at 13 May 1997, was the skid steer loader referred to in para. 2(d) of the Statement of claim a ‘motor vehicle’ as that term is defined in the Motor Accident Insurance Act 1994?”
When this matter came on for hearing on 18 May 2001, counsel for the plaintiff submitted that that question should be answered “yes”, and the first and second defendants were represented by the same counsel who submitted that the question should be answered “no”. There was some evidence taken on that day, from the plaintiff and a number of other witnesses. In order to understand the question, it is necessary to say something about the facts leading to the action.
Facts
- [2]By a claim filed in the Toowoomba Registry of the District Court on 11 May 2000, the plaintiff claimed damages for negligence from the first or second defendant or both. The plaintiff was, at the relevant time, employed by the first defendant within that part of its workforce responsible for maintaining the water supply and sewerage facilities in the Shire. On 13 May 1997, while he was driving home from work, he noticed water coming from the ground at an intersection at Oakey. This looked to him like a water leak under the footpath: p.7. He called another employee to bring from the depot a piece of equipment, a Mustang model 940 skid steer loader, which at the relevant time was fitted with a Dirt King backhoe attachment: Exhibit 1, p.21. This is the skid steer loader referred to in para. 2(d) of the statement of claim. A skid steer loader is commonly known as a “bobcat”.
- [3]With this piece of equipment, the co-worker excavated above the water pipe under the footpath, to a point where the plaintiff was able to identify the water pipe at the bottom of the hole p.8. He told the operator to stop digging, which he did, and the plaintiff climbed into the hole and located the water main, and placed his crowbar into the ground so that it was standing upright immediately to the side of the water main, in order to locate it for the assistance of the bobcat operator. When the operator was positioning the bucket to continue to expose the pipe, the bucket struck the crowbar, which in turn struck the plaintiff across the chest and sent him flying: p.9. The statement of claim alleges that as a result the plaintiff suffered personal injury; for present purposes, it is I think sufficient to note that it is an injury caused in this way for which the plaintiff is suing.
The pleadings
- [4]The statement of claim pleaded in paragraph 2 inter alia:
“(d) The first defendant was the owner of a skid steer loader with a backhoe attachment;
- (e)The skid steer leader was a “motor vehicle” as that term is defined in the [Motor Accidents Insurance] Act [1994].”
At the moment the claim is defective as it does not claim relief within the jurisdiction of the court. I give leave to file an amended claim and statement of claim in which the damages claimed are limited to the monetary limit of the jurisdiction of the court: Startune Pty Ltd v. Ultra-Tune Systems (Aust) Pty Ltd [1991] 1 Qd.R. 192
- [5]The first defendant filed on 25 August 2000 a Notice of Intention to Defend to which was attached a Defence in which it denied the fact alleged in para 2(e) of the statement of claim, because:
“The skid steer loader was not a vehicle for which registration was required under the Transport Infrastructure (Roads) Regulation 1991 or the Motor Vehicles Control Act 1975.” (para. 2(e)).
The first defendant also admitted that the loader was not insured under a policy of insurance issued under the Motor Accident Insurance Act 1994 (“the Act”), but alleged that it was not required to be so insured “as it was equipment used for the construction of works for, or maintenance of, road transport infrastructure”.
- [6]The second defendant filed a Notice of Intention to Defend on 11 July 2000, to which was attached a Defence which, among other things, did not admit the allegation in para. 2(e) of the statement of claim, and alleged that:
“The skid steer loader with backhoe attachment referred to in para. 2(d) of the statement of claim was being used pursuant to a limited use permit number No. F0815 and Period Permit Number 93124 issued pursuant to the Transport Infrastructure (Roads) Regulation 1991…” (para. 4)
The legislation
- [7]I have attempted to identify and apply the legislation in force as at the date of the accident, 13 May 1997; most of it has subsequently been changed. The scope of the Act is governed by s.5 which was in the following terms:
“5(1). This Act applies to personal injury caused by, through or in connection with a motor vehicle if, and only if, the injury –
- (a)is a result of –
- (i)the driving of the motor vehicle; or
- (ii)a collision, or action taken to avoid a collision, with the motor vehicle; or
- (iii)the motor vehicle running out of control; or
- (iv)a defect in the motor vehicle causing loss of control of the vehicle while it is being driven; and
- (b)is caused, wholly or partly, by a wrongful act or omission in respect of the motor vehicle by a person other than the injured person.
- (2)For an uninsured motor vehicle, subsection (1) applies only if the motor vehicle accident out of which the personal injury arises happens on a road or in a public place.
- (3)However, this Act does not apply to personal injury caused by, through or in connection with –
- (a)a backhoe, bulldozer, end loader, forklift, industrial crane or hoist, or other mobile machinery or equipment;
- (b)an agricultural implement; or
- (c)a motor vehicle adapted to run on rails or tram tracks; or
- (d)an amphibious vehicle; or
- (e)a motor vehicle of a class prescribed by regulation;
unless the motor vehicle accident out of which the injury arises happens on a road.”
A motor vehicle was defined in s.4 of the Act as being:
“A vehicle for which registration is required under the Transport Infrastructure (Roads) Regulation 1991 or the Motor Vehicles Control Act 1975 and includes a trailer.”
It is common ground that the Motor Vehicles Control Act 1975 did not apply and that the skid steer loader was not within the definition of “trailer”, so whether the skid steer loader was a motor vehicle for the purposes of the Act depends on whether it was a vehicle for which registration was required under the Transport Infrastructure (Roads) Regulation 1991 (“the regulation”).
- [8]The regulation does not actually require registration of any particular vehicle, the relevant provision rather containing a prohibition on certain use of a vehicle which is not registered. Section 12 of the regulation provided[1]:
“A person must not use, or permit to be used, on a road, a vehicle (being a motor vehicle or trailer) that is not registered under this regulation, unless the use of the vehicle is authorised –
- (a)under the law of another State, Territory, the Commonwealth or a foreign country, and the person complies with Division 3 or
- (b)by a limited used permit or limited use plate, and the person complies with Division 4; or
- (c)by a dealers plate, and the person complies with Division 5.”
Since the skid steer loader was not a trailer, its use on the road only required registration if it was a “motor vehicle”, which was defined (s.2) in the regulation as a self propelled vehicle subject to certain exclusions, none of which could fit the skid steer loader. However the regulation also provided (s.2) that “vehicle” did not include:
- (a)an agricultural implement; or
- (b)equipment used for the construction of works for, or maintenance of, road transport infrastructure.
Was the “bobcat” a “vehicle”?
- [9]The defendants’ first argument was that the skid steer loader was equipment used for the construction of works for, or maintenance of, road transport infrastructure, and was therefore not a vehicle for the purposes of the regulation, so that its use on the road was not within s.12. It was therefore not required to be registered under the regulation, and thus not a motor vehicle for the purposes of the Act. The term “equipment” was not relevantly defined, but I regard the skid steer loader with, or indeed without, the backhoe attachment as being within the ordinary meaning of that word.
- [10]My initial reaction to exclusion (b) from the definition of vehicle was that the word “used” was a reference back to the prohibition in s.12 on using on a road a vehicle which is not registered, so that equipment which would otherwise be a motor vehicle and therefore was not to be used on a road unless registered would not infringe that prohibition if it were used on a road for the construction of works for, or maintenance of, road transport infrastructure. Commonly when roads are being constructed they are not accessible to traffic, and maintenance work on roads often involves part or all of the road being closed off to other traffic. Even when this is not done, there is usually extensive warning of the presence of any such equipment in use on a road. As well, such equipment commonly does not move from place to place under its own power. The bobcat in the present case would be capable of moving along an ordinary road under its own power, but only quite slowly, and so in practice is moved to and from the workplace on a trailer: p.24. It would therefore be reasonable to expect that equipment in such use would not be covered by the insurance scheme for ordinary road traffic.
- [11]It is one thing to say that a piece of equipment which is being used as road making equipment should not have to be registered (and therefore not insured under the Act) and another thing to say that a piece of equipment which is ordinarily, or commonly, or routinely used for that purpose, can also be used on a road for other purposes without having to be registered (or insured). Such use could be simply use as a vehicle while being driven from place to place on the road, or being used for other construction work. The former would reflect the distinction between road making and using a made road referred to by Kneipp J in Ritter v. Dabo Constructions Pty Ltd [1989] 1 Qd.R. 460.
- [12]It was submitted on behalf of the defendants that such an approach is inconsistent with the authorities. Of the two cases relied on, Ritter v. Dabo Constructions Pty Ltd (supra) was concerned with a definition under the Main Roads Regulations 1933 excluding “machinery especially designed for road making.” That expression, in my opinion, was clearly not establishing a test directed to the particular use being made of the equipment at a particular time. The other was Kelly v. Alford [1988] 1 Qd.R. 404, which concerned a vehicle which was routinely and regularly in use on public roads, and therefore ought to have been registered (its registration had expired) although at the time the vehicle was involved in the injury to the plaintiff it was not on a public road so that no offence was then being committed by not having it registered. Connolly J at p.408 rejected the argument that the vehicle was only required to be registered when it was actually in use on a public road, and said:
“If a vehicle is in constant use on public roads, it is a vehicle which is required to be registered for, permits apart, it cannot be so used lawfully without registration.”
- [13]That approach is certainly different from the approach to which I have referred, although I note that under s.5 of the Act it is quite possible for a vehicle to be covered by the Act, or not covered by the Act, many times a day. The effect of s.5(3) is that the Act does not apply to a personal injury caused by, for example, an end loader, if the accident happened when the end loader is not on a public road, and that would appear to be the case whether or not the end loader is required to be registered under the regulation, or indeed is registered under the regulation. So if the facts in Kelly v. Alford (supra) were to arise now, but involving an end loader rather than a prime mover and refrigerated van, the effect of s.5(3) would appear to be that the Act would not apply, whether or not the end loader was registered or required to be registered. It may be therefore that his Honour’s reasoning does not apply as readily to the 1994 Act.
- [14]In the present case however, in the light of the evidence that I have heard, this point really does not arise, because the effect of the evidence is that what this piece of equipment was doing at the relevant time was what it usually does, or most commonly does, that is, work on water mains in the Shire. The evidence was that these mains are constructed within road reserves, usually under the footpath but sometimes under the carriageway (p.29), so that about 95% of the work done by this piece of equipment, when working on matters associated with water supply, would involve work on roads: p.30. The defendants’ evidence was that during the 1996-97 financial year just over 78% of the hours worked by this particular piece of equipment involved work on water supply (Exhibit 2), so that is the dominant or principal or usual use of this piece of equipment. The plaintiff’s evidence was less precise, but he said that the equipment was usually used for the water supply and sewerage section to which he was attached: p.11. In these circumstances, it does not matter whether the test is what the equipment was actually being used for at the relevant time, or what it was predominantly or usually used for.
- [15]The defendants’ submission was that working on a water main which was buried within a road reserve involved the construction of works for, or maintenance of, road transport infrastructure. There is, however, no definition of “road transport infrastructure” which extends to water pipes which happen to be located in road reserves. According to the Transport Infrastructure Act 1994, “transport infrastructure” means road, rail, port and miscellaneous transport infrastructure, while “road transport infrastructure” includes transport infrastructure relating to roads. Reading these two definitions together, it follows that “road transport infrastructure” includes road transport infrastructure, a proposition which does not throw much, or indeed any, light on the scope of the concept.
- [16]Nevertheless, in my opinion the use of this expression rather than simply the word “roads” was to ensure that other things associated with and existing because of the roads, such as bridges, road drainage works, street lighting, and other related matters would be included. A water supply may well be within the term, if the water supply is being provided to the road or in connection with the use of the road, for example, to provide water to enable unsealed roads to be sprinkled, or to provide water for shrubs or flowers used for decorative purposes within the road. But that was not the situation here; the water main was simply the ordinary water supply main for some or all of Oakey, and the involvement of the road was fortuitous. The water main was buried under the footpath because that is a convenient place to put a water main, not because it is a necessary or ordinary part of a road. In my opinion, doing work on a water main is not doing work on road transport infrastructure, even if the water main happens to be buried under a road so that the road has to be dug up in order to get to the water main, and presumably made good afterwards.
- [17]It was submitted on behalf of the defendants that doing work on the water main necessarily involved doing work on the road, because the road had to be dug up (or opened) in order to get access to the pipe, and then remade above the filled in trench after the pipe had been repaired. That may be so, but equipment being used in such circumstances was not being used for the construction or the maintenance of the road or some related facility: it was being used for the maintenance of the pipe. This machine was not repairing the road, it was repairing the water main. That the road was involved was incidental. The position may be different if separate equipment is used specifically to open or reinstate the road surface, but that was not the case here.
- [18]On the evidence before me in my opinion this piece of equipment was not used (either ordinarily or on this particular occasion) for the construction of works for, or maintenance of, road transport infrastructure. It was being used, and was ordinarily used, for repair and hence the maintenance of the water reticulation system. It was therefore not within exclusion (b) of the definition of vehicle, and, being a self propelled vehicle, was a motor vehicle for the purposes of the Regulations, so that by s.12 it was prima facie required to be registered when used on a road.
The Period Permit
- [19]The defendants however had a second string to their bow; there was evidence that at the relevant time the vehicle was covered by Period Permit 93124, said to be a permit issued under s.44 of the regulation. That section provided as follows:
“1. When a vehicle is used on a road in accordance with the prior approval of the chief executive, the use of the vehicle does not contravene a provision of s.10 or 12 or the Transport Operations (Road Use Management) Regulation 1995, schedule 4 stated in the approval.
- The approval must be in writing and specify –
- (a)the vehicle or class of vehicles to which it applies; and
- (b)the roads on which the vehicle may be used; and
- (c)the period of use on the roads; and
- (d)such other terms and conditions as the chief executive determines
- The chief executive may require the payment of the costs or estimated costs, to be incurred by the chief executive of –
- (a)assessing the route and preparing the relevant plans and estimates:
- (b)preparing and strengthening road transport infrastructure; and
- (c)the repair, replacement or reconstruction of road transport infrastructure; and
- (d)ensuring observance of the terms and conditions of the approval.”
- [20]The permit was put in evidence: Exhibit 3. The document is on a Police Service form headed “Period Permit” and refers to the Traffic Act and Regulations thereunder, which is inappropriate for an approval under s.44. The heading also states “For Excess Dimension or Specially Constructed Vehicle” which is difficult to reconcile with s.44 of the regulation. None of the provisions listed there are concerned with the size of the vehicle. Nevertheless, it goes on to state that the first defendant “is hereby permitted, subject to the conditions hereunder, to use unregistered vehicles listed on attached appendix on roads within the Jondaryan Shire. For use on buildings/repair works and associated work”. The permit was valid from December 1996 until 3 December 1997, so it covered the date of the plaintiff’s accident. Attached to the permit was a list of “unregistered roadmaking plant” which included the relevant skid steer loader, given serial number 420. The permit therefore purportedly permitted the use of that vehicle unregistered on roads within the Jondaryan Shire for use on building/repair works and associated work.
Was this approval under s.44
- [21]I have some difficulty in determining whether this is an approval under s.44. I note that at the foot of the first page there is a statement marked:
“NB – This permit does not exempt the holder thereof from obtaining any permit or other authority under and/or otherwise complying with the provisions of any other law, for instance the State Transport Act and Regulations or the Main Roads Act and Regulations.”
The Transport Infrastructure (Roads) Regulation 1991 superseded the Main Roads Regulations, just as the Transport Infrastructure (Roads) Act 1991 repealed the Main Roads Acts: s.1.3. When a permit purports to be issued under the Traffic Act and Regulations, and expressly does not exempt the holder from the requirements of the Main Roads Regulations, it is difficult to see how it is really to be construed as a permit under s.44 of the Transport Infrastructure (Roads) Regulation 1991, even if it is issued by a person who does have authority to issue a permit under that regulation.
- [22]Apart from this, the conditions on the permit are the sort of conditions which would be appropriate for the movement of an oversize vehicle. For example, a sign saying “Danger Wide Load” or “Danger Long Load” as was appropriate was to be affixed to the vehicle above the cabin and to the rear of a rotating amber flashing light to be attached to the top of the vehicle, and at the rear of the unit in a position clearly visible to following traffic, having the style, colouring and dimension set out in Appendix C. However, the warning signs were to be removed or covered when the vehicle or load did not exceed the maximum dimensions provided for in the Traffic Regulations 1962. As well, red flags were to be displayed at each of the extremities of the vehicle. The original or a copy of the permit was to be carried by the driver of the unit. None of this sounds appropriate for the use of a skid steer loader with a backhoe attachment to dig holes in a footpath.
- [23]There is also the question of whether Exhibit 3 meets the requirement of s.44 that the relevant provision be “stated in the approval”, when Exhibit 3 does not expressly state that it operates in respect of s.12, although that is plainly the section relevant to the permission which is typed in on the form. It may also be necessary to consider whether the expression “use on building/repair works and associated work” which is typed in should be construed by reference to the identification of the relevant “unregistered vehicles” in the Schedule as “roadmaking plant”, so that on its true construction the permit applies only to such vehicles when they are used for building/repair work and associated work involving roadmaking.
- [24]Closer examination of the specific provisions referred to in s.44(1) of the regulation supports my suspicions. Both s.10 of the regulation and Schedule 4 of the Transport Operations (Road Use Management) Regulation 1995 are concerned with the weight of the vehicle. Section 14 of the Transport Operations (Road Use Management) Regulation 1995[2]provides that the person who has control of a vehicle must ensure the vehicle complies with a mass requirement applying to it, and Schedule 4 set out various mass requirements in the form of mass limits of the tyres, wheels and axles, and mass limits relating to axle spacing. Section 10 of the regulation permits the Chief Executive to determine the maximum loaded mass of the vehicle that may use a bridge or culvert forming part of a declared road, and, where this is less than that permitted under Schedule 4 of the Transport Operations (Road Use Management) Regulation 1995, there must be a conspicuous notice setting out the maximum mass and any conditions applicable. It goes on to provide that a person must not use or permit to be used a vehicle in contravention of such a notice without the prior written approval of the Chief Executive. Section 12 of the regulation of course covers something entirely different. I did at one stage wonder whether the inclusion of a reference to s.12 in s.44(1) was a mistake, but an examination of earlier reprints of the regulation indicate that, at least back to Reprint 4, the equivalent to regulation 12 was always included in the equivalent to regulation 44[3].
- [25]Interestingly, s.11 of the regulation prohibits the use of a vehicle wider than 4.6 metres on a road without the chief executive’s written approval, although a footnote to this section notes that approvals may also be required under other legislation, for example the Traffic Regulation 1962[4]. Section 8 of the regulation also permitted the chief executive to issue a permit allowing certain kinds of vehicle, or a vehicle in certain circumstances, to exceed the maximum mass permitted under the regulation. The interrelationship between a s.8 permit and a s.44 permit is not clear to me.
Requirements for insurance in the regulation
- [26]It is also curious that s.12 listed three specific ways in which the use on a road of a vehicle which is not registered might be authorised, which list did not include under s.44. One feature of the categories of authorisation contemplated by s.12 is that all of them required that there be insurance under the Act before the authorisation was given, except in the case of a vehicle registered elsewhere in Australia and insured under some equivalent legislation elsewhere in Australia. A person could comply with Division 3 only if the vehicle was insured under the Act or was a vehicle registered in the Commonwealth or another State, under a contract of insurance made under the law of the Commonwealth or State that was similar to that Act: s.32(1)(e). A person could comply with Division 4 only if the chief executive had authorised in response to an application accompanied by “an insurance certificate for the vehicle … under the [Act]”: s.34(2)(b). A person could comply with Division 5, and hence be able to use a dealers plate, only if an application for the plate was accompanied by “an insurance certificate for the vehicle, for the period to which the plate was to be effective, under the [Act]: s.36(2)(b).
- [27]If a vehicle was not required to be registered because its use on a road was authorised under one of the paragraphs in s.12, it was apparently not a vehicle for which registration was required under this regulation, and therefore not a motor vehicle for the purposes of the Act. It would seem to follow that under the Act insurance was not required for it. Could there be a valid policy of insurance in accordance with the Act issued for such a vehicle? The policy of insurance is in the form set out in the Schedule to the Act, and speaks of “motor vehicle”, presumably as defined in the Act. It is difficult to see that that policy would provide some insurance cover in respect of something which was not a motor vehicle as defined in the Act. If it would not, it would follow that the requirements in the regulation for obtaining a certificate of insurance in these situations are a waste of time, and apparently a waste of the money of the applicant.
An example of a s.12 authorisation: a dealer’s plate
- [28]Take the example of a motor dealer who has obtained a dealer’s plate after making an application which was accompanied by the required insurance certificate for the period for which the plate was to be effective, as required by s.36(2)(b). Once that dealer’s plate has been attached to a vehicle as required by s.37, that vehicle may be used on a road for one of the purposes specified in s.38, and the vehicle is not one required to be registered under s.12 and a person will not commit an offence against that section using the vehicle on the road. But it would be an odd result if as a consequence that vehicle was not one to which the Act applied.
- [29]The policy issued under the Act is, apart from statutory consequences, also effective as an insurance policy: Workers’ Compensation Board of Queensland v. Suncorp Insurance and Finance [1998] 1 Qd.R. 567 at 572 per McPherson JA . It may well be that the policy would take effect as a policy in such circumstances even if the Act did not apply to the vehicle. But apparently the various provisions in Part 4 of the Act would not apply: there would be no obligation to give notice of accidents under s.34, no obligation to follow the pre-litigation procedure in Division 3 of Part 4, no requirement to join the insurer defendant, an award of exemplary or punitive damages could be made even though that was not covered by the policy (clause 3(2)), and the plaintiff would be entitled to require a trial with a jury. It is very difficult to believe that the legislature could have intended such an outcome.
- [30]It may also be possible for a situation to arise where a dealer had complied with Division 5 and obtained a dealer’s plate, and it was properly displayed on the vehicle which was being used for the proper purpose, but through no fault of the dealer there was no policy of insurance issued. The dealer may with his application for the plate have forwarded “the appropriate insurance premium” rather than an insurance certificate for the vehicle, thereby complying with the requirements of s.36(2)(b). If in such circumstances a dealer’s plate was issued, the dealer would have complied with the requirements of Division 5 and there would not be a requirement to register the vehicle, but if there was not in fact an insurance policy issued, the dealer would be left without indemnity and the plaintiff would be left with recourse only against the assets of the dealer, unless the vehicle could in those circumstances be categorised as an “uninsured motor vehicle”. The Nominal Defendant is liable only if personal injury is caused by or through or in connection with a motor vehicle, and the vehicle would not be a “motor vehicle” unless it is a “a vehicle for which registration is required” under the regulation. It is difficult to believe that the legislature could have intended such a consequence.
- [31]Under the previous Act, the Motor Vehicles Insurance Act 1936, vehicles using dealer’s plates were treated as within the scheme of protection so that insurance under that Act would be applicable, or if not, the Nominal Defendant would be liable; indeed, the dealer’s plate system was treated by the statute as a form of registration: Gowthorpe v. Dianich (1995) 22 MVR 61. It is difficult to believe the legislature intended when passing the Act to withdraw some of the protection previously available to dealers and the public in this area.
Authorities on interrelationship of registration and insurance
- [32]Although the Act talks about a vehicle for which registration is required, there is no provision in the regulation which in terms requires motor vehicles to be registered: see Kelly v. Alford (supra) p.408. The previous Act was in that case construed by reference to the previous regulation, and there and in Brunner v. Elder Trading Pty Ltd [1988] 1 Qd.R. 19 it was held that one looked to the then equivalent of s.12 of the current regulation to determine whether a vehicle was required to be registered. The then equivalent, regulation 3 of the Main Roads Regulations 1933, prohibited the use of a motor vehicle on a road unless the vehicle was registered or such use was authorised by a permit issued pursuant to that regulation, or it was provided otherwise elsewhere in the regulations.
- [33]The Full Court in Brunner approved and followed the earlier decision of the Full Court in Mason v. The Nominal Defendant [1987] 2 Qd.R. 190. In that case the plaintiff was injured in a collision between a vehicle he was driving and another vehicle, which was not in fact registered or insured under the Motor Vehicles Insurance Act 1936, while they were travelling on a track across private property. The Full Court held that the track was not a road for the purposes of regulation 3 of the Main Roads Regulations 1933, so that the defendant’s vehicle was not required to be registered in accordance with the regulations and therefore was not an uninsured motor vehicle for which the nominal defendant was responsible.
- [34]McPherson J (as his Honour then was) said at p.193:
“It must be acknowledged that regulation 3(1) does not in terms require a motor vehicle to be registered. What it does is to prohibit the use of such a vehicle on a road unless it is registered or has the benefit of a permit in accordance with that regulation. Contravention of the prohibition is visited by a daily penalty: see regulation 103. Nevertheless, it seems never to have been doubted in Queensland that it is to regulation 3 that s.4(f)(1)(b) of the [Motor Vehicle] Insurance Act [1936] refers when it speaks of a motor vehicle being “required” to be registered under the Main Roads Act.… The principal question for determination here is whether Bull’s vehicle was required to be registered pursuant to regulation 3(1). If it was, then it was an “uninsured motor vehicle” within the meaning of s.4(f)(1)(b) of the Insurance Act, and the plaintiff’s claim may be enforced against the Nominal Defendant. The parties accept that the answer to that question depends on whether or not what I have so far been careful to call the track on which Bull’s vehicle was being used was a “road” within the meaning of regulation 3(1).”
After further consideration of the question, his Honour concluded that the reference to a “road” was a road dedicated to public use: p.199. The other members of the Full Court agreed.
Analysis
- [35]There was no consideration in that case of the significance of the availability of a permit as an alternative to registration. But it does demonstrate that one must now look to s.12 of the regulation to determine what is a motor vehicle that is required to be registered. Plainly the two provisions are intended to work together; the Act operates expressly by reference to the requirements of the regulation, and the regulation imposes requirements which are meaningful only in the context of the Act, and indeed defines some terms by reference to the meaning of those terms in the Act: s.2. In my opinion, they ought to be construed in a way which would facilitate their working harmoniously together, rather than in a way which might tend to frustrate that objective[5]. That approach, in my opinion, is consistent with the requirements of s.14A of the Acts Interpretation Act 1954. In these circumstances, this is one of the rare cases where it is permissible to have regard to the terms of a regulation to decide what is really a question of the true construction of a provision of the Act, that is, the definition of motor vehicle: Deputy Federal Commissioner of Taxation v. Ellis & Clark Ltd (1934) 52 CLR 85 at 89.
- [36]The evident legislative desire that there be a congruence between the provisions stipulating what vehicles have to be registered to be used on roads, and those stipulating what vehicles have to be insured to be used on roads, was achieved by saying that the vehicles in respect of which the Act applies are the vehicles which a person must not use on a road unless registered (or otherwise authorised) under the regulation. In other words, the test of what was a “motor vehicle” for the purpose of the Act was the test of what was a “vehicle” for the purposes of s.12 of the regulation. When the definition of “motor vehicle” referred to a requirement for registration under the regulation, what it meant was a requirement for registration or authorisation under the regulation.
- [37]On the interpretation contended for on behalf of the defendants, the specific provisions of the regulation dealing with categories of authorisation provided for in regulation 12, which contemplate the existence of insurance under the Act, present a paradox because vehicles so authorised would not be within the operation of the Act as defined in s.5. If the alternative interpretation is adopted, the paradox disappears. The Act must have contemplated that vehicles authorised in one of the ways listed in s.12 were still motor vehicles for the purposes of the Act, because the regulation required them to be insured under the Act. What this approach does is pick up the definition of “vehicle (being a motor vehicle or trailer)” in the regulation. For the reasons I have given earlier, that included this skid steer loader.
- [38]This approach would also mean that, if a person did suffer personal injury as a result of the driving of a vehicle which was not registered but was not required to be registered because it was authorised under s.12 (for example a vehicle using a dealer’s plate) the various provisions of the Act impacting on the claim for damages would operate in the same way in respect of the insurance policy issued in respect of that vehicle as would be the case if the vehicle were registered, and if the certificate of insurance expired or was not effective, the innocent victim would still have the protection of the provisions of the Act in the same way as if the registration of a registered vehicle had expired. A construction which avoids such an omission of cover is desirable when dealing with this beneficial legislation: Bull v. Attorney-General (NSW) (1913) 17 CLR 370 at 384.
- [39]Once this approach is adopted, it naturally follows that the existence of a permit under regulation 44 does not matter, as that regulation is not concerned with identifying the sort of vehicle covered by the obligation to register, assuming no other authorisation. It was simply a different form of authorisation, but one which appears to have lacked the safeguard, otherwise provided in the regulation, for the existence of relevant insurance under the Act. There was no obvious reason why the legislature should have intended that a vehicle in respect of which a limited use permit had been issued under s.34 of the regulation would be a “motor vehicle” for the purposes of the Act, but one with an approval under s.44 of the regulation would not. It is worth bearing in mind that the function of s.44 is not to exempt people from having proper insurance for vehicles on roads, but merely to provide that certain use does not contravene the prohibition in s.12 (if that is the provision stated in the approval).
- [40]Nevertheless, it does appear to me that the difficulty of construction here arises because s.44 was not properly drafted. Assuming that the reference to s.12 was not an error, the desirability for such an approval to be listed also in s.12 was overlooked, as well as the desirability of making express provision for the vehicle exempted from s.12 by s.44 to have insurance cover under the Act, as was provided for the other exclusions from the obligation to register. But I do not think that this poor drafting should determine the true construction of the definition of “motor vehicle” in the Act. It would be as well for the relevant authorities to check to see that the current provisions do not include any similar anomaly.
- [41]In these circumstances it is not necessary for me to arrive at a final conclusion as to whether the permit, Exhibit 3, really was a permit for the purposes of s.44 of the regulation. Assuming it was, the bobcat was still a motor vehicle for the purpose of the Act. It follows that in my opinion the second argument on behalf of the defendants also fails. Accordingly, I answer the preliminary question “yes”. I order the defendants’ pay the plaintiff’s costs of and incidental to the determination of the preliminary question.
Footnotes
[1] The form of the regulation in force on 13 May 1997 appears in Reprint No. 7. Reprint 8 includes a para (aa) inserted by 1997 SL No. 138 s.4 which commenced in 1 July 1997, and a para (d) was subsequently inserted. I cannot take them into account.
[2] I have used Reprint 2. This regulation now contains a number of provisions formerly made under Traffic Act 1949, which Act has apparently been repealed by s.55 of the Road Transport Reform Act 1999 as from 1 August 2000, according to Martin & Morley “Motor Vehicle Law Queensland” p.511.
[3] The regulation has been subsequently amended, but the later versions are neither a permissible nor particularly helpful source of guidance towards the true construction, although s.20A of the Act, introduced in 1999, is interesting.
[4] Possibly this is a reference to the provision for which Exhibit 3 is, or was, the correct form, but I have not been able to identify such a provision.
[5] This desirable objective is not easily achieved, because of the way the provisions have been drafted apparently without always keeping it clearly in mind. An example of the difficulties in this area is provided by O'Donoghue v. Nominal Defendant [2000] QDC 255.