Moseley v Atherton[2005] QDC 8

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 11 September 1999 at least four young people were injured in a head-on collision between two trail bikes being ridden along a “track” running roughly parallel to the course of the railway line at Merrimac. The riders controlling the bikes were Jarrod Atherton (whose passengers were Danyelle Gideona and Renee Moseley) and Darren Genge. All are plaintiffs seeking damages against the other of or both of the “drivers” as appropriate, and also against the Nominal Defendant. If Darren Genge’s passenger was injured, there is no claim by him presently before the Court.

1. In all four proceedings, at the instance of the Nominal Defendant, Judge Rackemann on 6 September 2004 ordered separate determination of certain “threshold” issues, fixing a hearing date before me on 1 December 2004.  The threshold issues appear to be the following of the greater number of “liability issues” identified in the Nominal Defendant’s applications on which Judge Rackemann made his orders pursuant to UCPR r 483(1):

“1. Whether, at the material time, the motorcycle ridden by Genge was:

 (a) unregistered;

 (b) a ‘motor vehicle’ as that term is defined in the Motor Accident Insurance Act 1994.

2. Whether, at the material time, the motor cycle ridden by Atherton was:

 (a) unregistered;

 (b) a ‘motor vehicle’ as that term is defined in the Motor Accident Insurance Act 1994.”

As will appear, 1 (a) should be resolved in the affirmative, 1(b) and 2(a) in the negative; it is not necessary or advisable to answer 2(b), important issues about which were not fully argued: see para [56] below.

2. [2]
   On the hearing date, a view of the scene and surrounds took place. No determination could be made then, because late on the day it was confirmed that, contrary to the previous understanding of all plaintiffs and their lawyers, the Suzuki bike driven by Jarrod Atherton (which belonged to someone else) was registered and insured by Suncorp Metway Insurance Limited (“Suncorp”) for “compulsory third party” purposes. The other bike (a Kawasaki) is still believed to be unregistered and uninsured.

3. [3]
   The hearing was resumed on 17 December 2004, when Mr Dickson appeared for Suncorp. Mr Wilson SC was counsel for the Nominal Defendant, leading Ms Heyworth Smith. Mr Pope, although formally counsel for Ms Gideona only, presented the main argument for all the plaintiffs; there were appearances and questioning of witnesses by Mr P Howard for Renee Moseley and Mr E Howard for Darren Genge. Jarrod Atherton’s solicitors represented him. Ms Gideona was made available for further cross-examination by Mr Dickson.

4. [4]
   The point of the exercise embarked on by the Nominal Defendant is to have all proceedings against it dismissed. The discovery of Suncorp’s being insurer of the Suzuki led to the plaintiffs’ (other than its own insured, Jarrod Atherton) filing applications to join it. Suncorp opposed its being joined on the basis that pre-litigation steps mandated by the Motor Accident Insurance Act 1994 (the Act) have not taken place; it may now be too late for any plaintiff to cure that.  Otherwise, Mr Dickson supported the plaintiffs in their assertions of entitlement to proceed against the Nominal Defendant.

The Statutory Scheme

5. [5]
   Section 5 of the Act provides:

“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.”

6. [6]
   Sub-Section (3) provides the Act doesn’t apply to personal injury arising from certain categories of vehicle and equipment unless the motor vehicle accident out of which the injury arises happens on a road. It was common ground that Reprint No 3 contains the applicable provisions of the Act at the relevant time. The various plaintiffs abandoned an earlier contention made by some of them that the track where the collision happened was a “road”. So far as the Kawasaki is concerned, it is important to the plaintiffs other than the owner-rider of it (who cannot relevantly complain of his own manner of driving) to establish that the track was a “public place”.

7. [7]
   Reference must be made to definitions in s 4 of the Act:

““motor vehicle” means a vehicle for which registration is required under the Transport Operations (Road Use Management—Vehicle Registration) Regulation 1999 and includes a trailer.”

““uninsured motor vehicle” means a motor vehicle for which there is no CTP insurance policy in force, other than a motor vehicle owned by a self-insurer or a trailer.”

8. [8]
   By s 23 of the Act, registration of a motor vehicle (likewise renewal of registration) brings into force a policy of insurance in terms of the Schedule, which is in part:

“Extent of insurance cover

(1) This policy insures against liability for personal injury caused by, through or in connection with the insured motor vehicle anywhere in Australia.

(3) The liability mentioned in subsection (1) or (2)—

8. (a)is a liability for personal injury to which the Motor Accident Insurance Act 1994 applies; and
9. (b)includes the liability of a tortfeasor to make a contribution to another tortfeasor who is also liable for the personal injury.

(4) This policy does not insure a person (the “injured person”) against injury, damage or loss—

8. (a)that arises independently of any wrongful act or omission; or
9. (b)to the extent that the injury loss or damage is attributable to the injured person’s own wrongful act or omission.

2 Insured person

The person insured by this policy is the owner, driver, passenger or other person whose wrongful act or omission in respect of the insured motor vehicle causes the injury to someone else and any person who is vicariously liable for the wrongful act or omission. 

3 Exclusions … ”

9. [9]
   The insurance cover is defined carefully; it does not extend to every event involving an insured motor vehicle.

10. [10]
    By s 31(1)(b) of the Act, among other cases, the Nominal Defendant is the insurer of a motor vehicle “if the motor vehicle is not insured” (subject to an irrelevant exception). The liability is defined by s 33:

“33 Nominal Defendant as the insurer

(1) The Nominal Defendant’s liability for personal injury caused by, through or in connection with a motor vehicle is the same as if the Nominal Defendant had been, when the motor vehicle accident happened, the insurer under a CTP insurance policy under this Act for the motor vehicle.

(2) If the insurer under a CTP insurance policy becomes insolvent, the Nominal Defendant becomes the insurer under CTP policies in force under this Act for which the insolvent insurer was formerly the insurer unless the policies are transferred to some other licensed insurer.

(3) The Nominal Defendant is liable for personal injury arising out of a motor vehicle accident outside Queensland only if the liability arises under subsection (2).”

11. [11]
    The requirement of registration (nowhere express, but held by the courts to be an implication of s 20 of the Act, which commences:

“20.(1)  A person must not drive an uninsured motor vehicle on a road or in a public place.

Maximum penalty – 80 penalty units.

(2) A person who is the owner of an uninsured motor vehicle must not permit someone else to drive it on a road or in a public place.

Maximum penalty – 80 penalty units.

(3) …”

and like provisions) must be sought in the Regulation mentioned in s 4 of the Act, or the Motor Vehicles Control Act 1975, which had been repealed by the time of Reprint No 3.  See the Transport Operations (Road Use Management) Act 1995 (somewhat inelegantly called “TORUM”) s 93 (schedule 2).  Section 79M(1)(a) of the TORUM authorises the making of regulations about the operation of vehicles and their use in a public place, but no such regulation has been made.  However, s 175 of the TORUM provides:

“Motor Vehicles Control Act 1975 references

175. A reference to the Motor Vehicles Contract Act 1975 may, if the context permits, be taken to be a reference to this Act."

12. [12]
    The long title of the 1975 Act was:

“An Act to provide for the registration of certain motor vehicles used elsewhere than on roads and to regulate the use of such vehicles in public places; to provide with respect to the use of motor vehicles for the carriage of passengers and within declared areas and with respect to the dangerous driving of motor vehicles; to provide for matters incidental to the foregoing matters.”

Definitions in s 4 include:

““motor vehicle” means any vehicle propelled wholly or partly by gas, motor spirit, oil, electricity, steam or like motive power and includes a trailer but does not include a fire engine, fire reel or any machinery designed specially for road-making or road-maintenance, or any machinery designed for cutting grass or foliage and used for no other purpose;

  “public place” means a place of public resort open to or used by the public as of right, and a place for the time being used for a public purpose or open to access by the public, whether on payment or otherwise, or open to access by the public by the express or tacit consent or sufferance of the owner of that place, whether the place is or is not so open at all times, and a place for the time being declared by regulation to be a public place for the purposes of this Act, but does not include –

(a) a track which at the material time is being used as a course for racing or testing motor vehicles and from which other traffic is excluded during that use; or

(b) a place that is a road within the meaning of the Transport Infrastructure (Roads) Act 1991 or the Traffic Act 1949; or

(c) a place that is declared under section 25 not to be a public place.”

13. [13]
    Section 10 is:

“Conditions for use of vehicles in public places

10. A person shall not use a motor vehicle in a public place unless –

8. (a)there exists in respect of that vehicle a current certificate of registration or of renewal of registration issued under the Transport Infrastructure (Roads) Act 1991 or under and in accordance with corresponding legislation of any other State or Territory of the Commonwealth or under and in accordance with the regulations made pursuant to this Act in relation to recreation vehicles; and
9. (b)the number plates issued in respect of the vehicles are fixed in a conspicuous position on the front and rear thereof; and
10. (c)the identifying number on each number plate fixed on the vehicle is not in any way obscured or rendered not easily distinguishable.

Maximum penalty – 4 penalty units.”

14. [14]
    Section 10 in my opinion is spent by the repeal of the legislation containing it. There is no longer an offence of using a “motor vehicle” as relevantly defined in a public place, if it is unregistered – nor is there any longer an implied requirement that such a motor vehicle be registered. During the hearing there was some discussion of the distinction between referring to the 1975 legislation for definitions, and referring to it as the source of obligations and/or penalties being imposed for certain conduct. The former exercise may be appropriate; I do not think the latter would be. The TORUM contains definitions in schedule 3 which effectively replace those in the 1975 legislation:

“ “motor vehicle” means a vehicle propelled by a motor that forms part of the vehicle, and includes a trailer attached to the vehicle.”

“ “public place” means a place –

(a) of public resort open to or used by the public as of right; or

(b) for the time being –

(i) used for a public purpose; or

(ii) open to access by the public;

whether on payment or otherwise; or

(c) open to access by the public by the express or tacit consent or sufferance of the owner of that place, whether the place is or is not always open to the public;

but does not include –

(d) a track that at the material time is being used as a course for racing or testing motor vehicles and from which other traffic is excluded during that use; or

(e) a road; or

(f) a place declared under a regulation not to be a public place.”

“ “vehicle” includes any type of transport that moves on wheels and a hovercraft but does not include a train or tram.”

15. [15]
    The changes in the definition of “public place” seem insignificant. The changes in the definition of “motor vehicle” potentially are significant: an unregistered rider lawnmower, for example, may now be deprived of the exemption conferred in 1975 so that one would use it on a road (for example to mow the footpath in a public-spirited gesture) at one’s peril.

16. [16]
    As at 11 September 1999, the implied requirement to register arose from s 12 of the Transport Infrastructure (Roads) Regulation 1991:

“Division 1 – Registration

Use of vehicle on road

12. 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 –

(aa) under section 16(2): or

(a) under the law of another State, a Territory, the Commonwealth or a foreign country, and the person complies with division 3; or

(b) by a limited use permit or limited use plate, and the person complies with division 4; or

(c) by a dealer’s plate, and the person complies with division 5; or

(d) by a permit issued under section 44A.”

17. [17]
    Thus, at the date of the accident underlying these proceedings, it was an offence under s 12 of the Regulation to use an unregistered motor vehicle on a road (subject to exceptions); it was an offence under s 20 of the Act to drive an “uninsured motor vehicle” on a road or in a public place. The definitions in the Act mean that the Court’s concern is with the requirement to register – registration being the necessary condition of not infringing s 12, if one is bent on using a “motor vehicle” on a road.

18. [18]
    It is convenient to set out Mr Wilson’s demonstration that the track where the accident happened was not a road, although that was not contentious in the end:

“11. The definition which ought to be imported for the purposes of regulation 12 is the definition of “road” in the Transport Infrastructure (Roads) Act 1991.  That Act provided by section 1.5 –

 “road” means –

(a) any surveyed or unsurveyed land dedicated to public use as a road

(b) any track on land used by the public as a road through –

(i) vacant Crown land;

(ii) land under the control of a local authority;

(iii) any pastoral holding; or

(iv) any reserve;

whether or not the boundary of the land has been surveyed and the land dedicated to public use as a road;

(c) any bridge, culvert, ferry or ford; or

(d)  any part of such land bridge, culvert, ferry or ford”

12. The accident occurred on Queensland Rail land.  No part of the land, and in particular the track where the accident occurred, has been dedicated to public use.  Subparagraphs (b) to (d) do not apply to the cases at hand.  No tacit sufferance or implied permission to enter would amount to dedication of the land as a road.

14. The Transport Infrastructure (Roads) Act 1991 was repealed, at the latest, on 2 July 1998 by virtue of section 93 of the Transport Operations (Road Use Management) Act .

  Transport Infrastructure (Roads) Act 1991 references

  178. A reference to the Transport Infrastructure (Roads) Act 1991 may, other that in relation to transport infrastructure or another matter dealt with under the Transport Infrastructure Act 1994, and the context otherwise permits, betaken to be a reference to this Act.”

15. The Transport Infrastructure(Roads) Regulation 1991 does not specifically refer to the Transport Infrastructure (Roads) Act 1991 as the source for the meaning of the word “road” when used in the regulation.  However, as it is the Act pursuant to which the regulation was made, by implication the definition of “road” in the 1991 Act should be imported into the Regulation.

16. As the Transport Infrastructure (Roads) Act 1991  is not specifically referred to in the Regulation, this is not an instance where TORUM should be substituted in its place.

17. If a contrary view is taken, the definition of “road” in TORUM was, at the time of the accident, the definition of “road” in chapter 5 of the Transport Infrastructure Act 1994.  Whilst when first enacted the Transport Infrastructure Act 1994 did contain in chapter 5 a definition of the word “road”, at the time of the accident, that definition had been moved to Schedule 3 (the dictionary schedule), and provided:

“road” means -

(a) an area of land dedicated to public use as a road; or

(b) an area that is open to or used by the public and is developed for, or has a 1 of its main uses, the driving or riding of motor vehicle; or

(c) a bridge, culvert, ferry, ford, tunnel or viaduct; or

(d) a pedestrian or bicycle path; or

(e) a part of an area, bridge, culvert, ferry, ford, tunnel, viaduct or path mentioned in paragraphs (a) to (d).

18. This definition of “road” does not assist the Plaintiffs in any event: the track was not dedicated to public use as a road.  It was not developed for, nor did it have as one of its main uses, the driving of motor vehicles, but rather it was part of a rail corridor; and, insofar as [there] may have been used by certain persons of the track for the riding of trail bikes – the fact or extent of which is disputed by the Nominal Defendant – it is disingenuous for the Plaintiffs to now assert that their own wrong (that is, the riding of the motorcycles on private land without permission to do so) should convert the track to a “road”.

19. At the time of the accident, the motor cycles were not travelling on a road, and thus there was no requirement that they be registered.”

19. [19]
    The conclusion drawn was disputed by the plaintiffs, who argued that a broader enquiry about the use made of a vehicle was appropriate, an enquiry which here, it was alleged, established use at other times (and specifically times not long before the accident) on a road, so as to require registration. The authority relied on was Kelly v Alford [1988] 1 Qd R 404, in which Connolly J with the agreement of the other members of the Full Court said at 408, dealing with provisions since replaced:

“Now there is in truth no regulation which “requires” motor vehicles to be registered under the Main Roads Act 1920-1985 but it has been accepted by this Court in Brunner v. Eldar Trading Pty Ltd [1988] 1 Qd R 19 that for the purposes of s. 4F(1)(b) the relevant provision of that Act is reg.3(1) of the Main Roads Regulations which provides that, except as is otherwise provided in the regulations, a motor vehicle shall not be used on a road unless – (i) such use is authorised by a permit issued pursuant to reg.3; or (ii) such vehicle is registered.  Regulation 103(1) provides a penalty for conviction of a breach of, amongst other regulations, reg.3.  It is accepted then that it is to reg.3 that one must turn to determine whether a vehicle is required to be registered within the meaning of s. 4F(1)(b)(i).  The prime mover and refrigerated van were used on public roads for a significant time as the learned trial judge has found, both before and after 17 August 1978.  Their use on each occasion on the public road system involved offences against reg.3 for there is no suggestion that permits were obtained and the registration had lapsed on 19 August 1977.  As the vehicles were regularly used prior to and on 17 August 1978 in a manner which was unlawful without registration (for one can put the possibility of permits to one side) one would think, at first glance, that they were fairly described as vehicles which were required to be registered.

However, The Nominal Defendant points to the fact that s. 4F is expressed in its first subsection to apply to accidental bodily injury caused by, through or in connection with a motor vehicle and the argument runs that the vehicle in question must answer the description “uninsured vehicle” at the moment when the bodily injury is sustained.  For the same reason, it is said that the words “at the material time” in s. 4F(2) refer to the same moment.

The argument as presented is highly artificial, for it involves the notion of a vehicle being required to be registered while on a public road but no so required as soon as it leaves that road.  The requirement might thus arise and lapse many times in the course of the day.  In my judgment this artificial construction should be rejected.  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.  These vehicles certainly required to be registered on 17 August 1978 from 4.00 a.m. in the morning when work started until 11.00 p.m. at night which is the approximate time when this accident occurred.  Once registered it would, in the ordinary course, have been registered for an annual period.

Reliance was placed on Lynch v. Middleton [1979] Qd.R.31 where it was held that a vehicle used only on private land need not be registered or insured and that it is accordingly not an “unregistered motor vehicle” within the meaning of s. 4F(1)(b).  This is, with respect, obviously correct.  The case, however, has no bearing on the situation of a vehicle which is being used from day to day on the roads so as to remove the requirement during the periods when they happen to be off the roads.  At the time of this accident, the prime mover and refrigerated van were engaged in returning to cold storage the balance of the refrigerated load from which deliveries had been made by way of the public roads throughout the day.

It follows that on the day in question, the vehicles in question were required to be registered and it was required that there be in force, in respect of them, contracts or policies of insurance under the Motor Vehicles Insurance Act.”

20. [20]
    The Nominal Defendant (Queensland) was adjudged liable to pay the damages flowing from the negligent driving in relation to an unregistered prime mover and attached refrigerated van on private land.

21. [21]
    In a differently constituted Full Court in Symonds v The Nominal Defendant (Queensland) [1992] 1 Qd R 444 Thomas J said at 450 ff:

“The concept that there are vehicles which are “required to be registered” and which cannot be used lawfully (even on private land) without registration was for the first time formulated in Kelly v. Alford [1988] 1 Qd.R. 404.

…

Until Kelly v. Alford, it had been generally held that if a vehicle was at the material time being used on private property, it was not then required to be registered (Lynch v. Middleton [1979] Qd.R. 31).  The attention of the courts was concentrated upon the use of the vehicle at the particular time, that is to say the use in relation to which the liability against which the owner is required to insure arose (cf. s. 3 of the Motor Vehicles Insurance Act).  Of course the essential question is the proper meaning of the term “uninsured motor vehicle” in s. 4F of that Act, and s. 4F(1)(b)(i) frames the test whether the vehicle is required to be registered under the Main Roads Act etc.  The operative part of s. 4F is the creation of liability in The Nominal Defendant for damages caused by, through or in connection with an uninsured motor vehicle “for which the owner of such uninsured vehicle would be legally liable under this Act were it insured hereunder at the material time” (s. 4F(2)).  The core insurance provision is s. 3 which requires the “owner” to have specified insurance during registration.  There is therefore much to be said for the correctness of the view that prevailed before Kelly v. Alford which focused upon the use of the vehicle at the time of creation of the liability rather than upon a morally oriented test whether it ought to have been registered having regard to its use on other occasions.  This was consistent with the scheme of legislation and it had the further merits of simplicity and certainty.  There is no express requirement of registration of vehicles; there is only a prohibition of use of a motor vehicle on a road or public place unless registered.  (See Brunner v. Eldar Trading Pty Ltd [1988] 1 Qd.R. 19; Main Roads Regulations 1987 reg. 6; Motor Vehicles Control Act 1975 s. 10).

However Kelly v. Alford is a decision of this Court and it should be departed from only if it is plainly wrong.  As I read that decision, it regards the question whether a motor vehicle is required by the Main Roads Act to be registered in accordance with the regulations, as a question of fact, and it regards that question as remaining open even if the accident in question occurs in a place where the obligation to register does not arise, i.e. on private land.  I am prepared to accept that decision, but think it should be confined to its own facts.  The facts in Kelly v. Alford were very strong indeed.  There had been commercial use of the vehicles on the same basis as if they were registered.  The vehicles were “in constant use on public roads”.  In such a situation the court was prepared to conclude that “it is a vehicle which is required to be registered for, permits apart, it cannot be so used lawfully without registration”.

The reference to “permits apart” in Kelly v. Alford is significant.  It appeared twice at critical parts of the judgment.  The reference of course is to limited permits which are obtainable from the Commissioner for Main Roads for short-term use of a vehicle on public roads.  Their use is authorised by reg. 16 of the Main Roads Regulations 1987.  They may be issued for periods of up to seven days.  They may be issued in respect of unregistered vehicles, i.e. where no certificate is in force in respect of the registration of the motor vehicle (reg. 16).  Such a permit is a perfectly lawful alternative to and less burdensome than full registration which is generally renewable from year to year.  It is particularly suitable for vehicles that are not in general use on public roads but where an ad hoc journey is desired to be made.  Application for permit is required to be accompanied by evidence of third party insurance under the Motor Vehicles Insurance Act, which, it may be inferred, would need to cover the period of the application for permit (reg. 16(3)).

Clearly enough the decision in Kelly v. Alford recognises that persons who might have in mind casual or occasional use of the vehicle on a public road might obtain an ad hoc permit and it seems to concede that such persons could not be required to obtain registration.  One would therefore need to look for something more than use which may be regarded as casual or spasmodic.  The obligation to register was considered by this Court in Brunner v. Eldar Trading Pty Ltd [1988] 1 Qd.R. 19, where it was recognised that the statutory provisions which induce citizens to register vehicles do not in their terms “require” registration at all.  They simply prohibit the use of a vehicle on a road or a public place unless the vehicle is registered (Main Roads Regulations 1987 reg. 6; Motor Vehicles Control Act 1975 s. 10).  These prohibitions were regarded in Brunner as an implied “requirement that the vehicle be registered”.

Upon whom is this implied requirement imposed?  In each instance (i.e. reg. 6 of the Main Roads Regulations and s. 10 of the Motor Vehicles Control Act) the prohibition is directed against the person who is minded to use the vehicle on a road.  In practical terms (because of the system of registration approved by the Commissioner) it is the owner on whose behalf the application is made, and it is the “owner” upon whom the obligation to obtain third party insurance is cast by s. 3 of the Motor Vehicles Insurance Act.

How then is a court to decide in a particular case that there exists an implied requirement that a particular vehicle be registered?  For present purposes attention is confined to a requirement to register under the Main Roads Act and Regulations.  From the very nature of an incident such as the present, where the accident occurs in a place where the use carries no obligation of registration, the use of the vehicle at the critical time is of no avail to the plaintiff.  The requirement to register must be proved, if proved at all, by evidence of intention on the part of some person to use the vehicle on a road.  That person will be the owner, or at least a person who has the use of the vehicle.  Where there is no direct evidence of such an intention, or an admission of it, the necessary intention can be found only by inference from the evidence.  In such a case (and the present is such a case) evidence of spasmodic or casual use will not generally be sufficient to justify an inference that within a material time prior to the accident some person intended to use that vehicle on a road.  In this context the existence of an intention of isolated or occasional use of as road may be lawfully carried into effect by the obtaining of a permit.  In such a case there would be nothing unlawful or contrary to the “requirement” of the Acts and regulations in using the vehicle on private property without the holding of a subsisting registration certificate.

It seems to me that having regard to the inherent difficulties of proof of the necessary intention, especially where the existence of such an intention is denied, it will be a comparatively rare case where the necessary inference may be drawn in relation to a vehicle which was at the time of the accident being used on private land.  Kelly v. Alford was such a case.  It was founded on “constant use of public roads”.  It may well be that that is the principal category where such a finding will be able to be made.  Kelly v. Alford is certainly not authority for the application of some loose test such as “ought the vehicle to have been registered?”.  It seems to me that proof of this issue will generally require a plaintiff to demonstrate a substantial usage of the vehicle upon roads at a time, especially usage close in time to that of the accident.”

22. [22]
    See also Moynihan J at 457 and Ambrose J at 465. Symonds concerned an unregistered motorised tricycle used almost exclusively on a dairy farm.  That was the location of an accident on 7 February 1988.  A witness accepted by the trial judge proved use of the tricycle on a public road three times in one unidentified week in 1987. 

23. [23]
    Mr Wilson located appellate court decisions earlier and later establishing that “one must look to the use of the vehicle at the time the accident occurred”. Mason v The Nominal Defendant (Queensland) [1987] 2 Qd R 190, cited in Kelly v Alford in argument, but not mentioned in the judgments, was decided on 19 December 1986.  At 195 support was expressed for views of the primary judge in Kelly v Alford (11 December 1985) by McPherson J; his Honour expressed a view about trail bikes and such vehicles being “not commonly registered” at 198 (he was not contemplating their use on public roads).  More pertinently, at 193, his Honour identified that “the question here therefore is whether Bull’s Volvo truck required registration … having regard to the fact that it was, at the time of the collision, being used on private land.”  In Vonhoff v Jondaryan Shire Council and the Nominal Defendant [2001] QCA 439, a judge was required to determine as a preliminary issue whether a “skid steer loader” (ie a “bobcat”) was a “motor vehicle” for the purposes of the Act.  The plaintiff alleged that he was injured because of negligent operation of the (unregistered) bobcat by a Council employee while it was in use digging up a road intersection to allow work to be done on a leaking water pipe underneath.  By s 2 of the 1991 Regulation, “vehicle” was defined as not including “equipment used for the construction of works for, or maintenance of, road transport infrastructure.”  Both “construction” and “maintenance” were defined terms.  The equipment was used predominantly for work on water mains, 95% of which involved work on roads.  Williams JA (the President agreeing) said:

“[14] If a bobcat is being driven along a road for the purpose of, for example, getting from A to B, it will be classed as a motor vehicle.  It would have to be registered and carry third party insurance.  If an accident occurred occasioning personal injury the third party insurer would be liable to indemnify the driver.  If it was uninsured then the Nominal Defendant would be the insurer.  But if the bobcat was being used for the maintenance of road transport infrastructure it would not have to be registered and the Nominal Defendant would not be liable to indemnify the owner or operator with respect to any personal injury occasioned whilst the bobcat was being used for that purpose.

[15] Against that background one must return to the findings of fact made … and consider the use to which this equipment was being put at the relevant time.

[16] Those findings establish that the work being done was necessary for the maintenance of the road. If the water pipe which was under the road (the footpath was clearly within the area of land dedicated to public use as a road) had been allowed to continue leaking the road would have eventually subsided or been eroded away.  The work involved not merely repairing the leaking pipe, but was work necessary to maintain the road in a trafficable condition.  In my view the work the bobcat was performing at the material time clearly comes within the definition of “maintenance” in the expression “used for … maintenance of road transport infrastructure” in s 2 of TIR Reg and that means in my view that at the material time the equipment in question was being used for the maintenance of road transport infrastructure.

[17] Such a conclusion is in keeping with the finding that “about 90% of the work done by this piece of equipment … would involve work on roads”.  There may well be difficulties where a particular piece of equipment is alternating frequently between work involving maintenance of road transport infrastructure and some other use; but the resolution of that problem can be left to another day.”

24. [24]
    In all four of the decisions canvassed above, the appeal court differed from the primary judge. Unsurprisingly, in Vonhoff (where there was division within the Court of Appeal), the legislature’s attention was drawn to the current definitions (“cumbersome, difficult to reconcile with each other, and probably unintelligible to a lay person”) and the regrettable uncertainty prevailing when “it is important that all owners of equipment, machinery or vehicles know whether or not that item has to be registered and carry third party insurance”: [18] – see also [3] and [30].

Darren Genge’s evidence: was the Kawasaki required to be registered?

25. [25]
    Exhibit 8 was an affidavit of Darren Genge sworn on 29 November 2004 in Tasmania, where he is studying. He was available by telephone to the other parties for cross-examination. All parties consented to an order being made on 1 December 2004 that evidence in each proceeding be evidence in the others. Only he was able to give evidence about the history and actual and intended use of the Kawasaki bike, which the affidavit says he had owned for about 18 months before the accident. Paras 5-10 inclusive are:

“5. On the day of the accident I left my house situated at 1 Merridown Drive, Carrara and walked my bike from my house down to the Track which is a distance from my house of approximately 1 kilometre.  Once I reached the Track, I started my motorcycle and rode along the Track approximately 1 kilometre.  At the end of the Track there is a property which was used by myself and many other motorcycle riders.

6. I left home some time between 8:00am and 9:00am.  I went with my friend Haydon Phillips and my cousin.  We rode around the property for some time.

7. The other motorcycle ridden by Haydon Philliops broke down.  As a result I returned home on my motorcycle.  My father was at home and I went down with my father in his ute to the property and collected the motorcycle which had broken down.

8. Upon returning home, I had lunch.  My friend Haydon Phillips remembered that he had left his helmet down at the property.  Haydon and I then left home and walked back down to the track and then I rode the motorcycle with Haydon as a pillion passenger on the back of my motorcycle down to the property to collect the helmet.

9. We found the helmet at the property.  There were a number of other people down at the property at the time and Haydon and I remained there for approximately half an hour.

10. Haydon and I then went to return home.  I was riding in a northerly direction along the Track with Haydon as a pillion passenger.  Approximately 100 metres south of Gooding Drive, while on the Track, I was involved in a motor vehicle accident the subject of my claim.”

26. [26]
    The following paragraphs of the affidavit tend to show the track may have been a public place or road.

27. [27]
    On the day of the accident (the affidavit gives no information about any other day) the deponent seems to have taken some care not to ride his bike on a public road. Twice he walked his bike from his home until he had crossed Gooding Drive. Paragraph 7 appears to say that he rode home, which was confirmed in a limited way upon cross-examination by Mr Paul Howard at p 52 of the transcript:

“Just from your own – okay, from your own point of view, your own knowledge, do you remember, like, as a young – well, you would have been 13 in 1997?--  Yep.

So grade 8 at school.  Before that time do you remember that there were local kids who would ride their motorcycles along the track?--  Year, for sure, yeah.

And this is way before the railway line was constructed?--  Ah, yeah.

All right.  Now, on occasions it is the case, isn’t it, that you sometimes rode your motorcycle on the roadway?--  Ah, yeah.

All right.  I’m just looking at – have you got your affidavit in front of you?--  No, I don’t,. no.

In paragraph number 8?--  Yeah.

You’re talking about having gone home for lunch and then your friend Haydon Phillips remembered that he had left his helmet back down at the track.  “Haydon and I then left home, walked back to the track.  I then rode my motorcycle.”  Yeah, oh, no, sorry, paragraph 7.  “The other motorcycle ridden by Haydon had broken down.  As a result I returned home on my motorcycle.”  To get home did you ride on the roadway that day?--  Yeah, well, what happens is you cross – where you come out you cross the main intersection.  Like, I normally walked across that.

Right?--  Walked across the main intersection and then you go down through, like, a bit of like someone’s back of their house.  Like, there is a bit of a grass yard and then you go up just a side street, so yeah, I did ride home, yeah.

So it is certainly the case that you would ride your motorcycle on the roadway?--  Yeah, yeah.

All right.  At various parts of the roadway anyway?--  Yep.

And we’re talking about on the bitumen surface too, aren’t we?--  Ah, yeah.”

28. [28]
    If the dates mentioned are reliable, the bike in 1997 would not have been the Kawasaki. Any riding of the Kawasaki on the ordinary public roads on 11 September 1999 and other occasions mentioned (which may have been before or after that day) seems to have been minor and exceptional, something which Darren Genge was aware he ought not to be doing presumably, because his bike was unregistered.

29. [29]
    Taking the approach of the Court in Symonds, it has not been shown that the Kawasaki was “required to be registered”.  Ordinarily, one would ask whether the bike was required to be registered on the basis of the use made of it at the time of the accident giving rise to the posing of the question. That was on the separate outing after lunch, when no use of the bike with its motor running occurred on any road – in contrast to the use made of the Suzuki, which was ridden along Wilunga Place.  It is a far cry from the Kelly v Alford situation in which the vehicles being considered were “in constant use on public roads”, “used from day-to-day on the roads”, and on the day in question had been so used from 4 am until 11 pm at night, when the relevant accident occurred, fortuitously on private land, where the balance of a refrigerated load was to be stored after deliveries “made by way of the public roads throughout the day.”  Those vehicles had previously been registered, and most recently in the name of a senior officer of the company which to a great extent (if not totally) used the vehicles and contributed to their upkeep.  There was not the slightest difficulty in identifying the vehicles as ones that required to be registered.  The Full Court considered that the proposition continued to hold good for times when the vehicles happened to be in use on private land.  The Kawasaki bike is not shown to be comparable.  It may be that on occasions Darren Genge committed an offence by riding a short distance on a public road.  As Symonds establishes, occasions of use on a public road do not necessarily “require” registration, because of the possibility of authorisations or permits now recognised in s 12 of the Transport Infrastructure (Roads) Regulation 1991.  The circumstances of the Kawasaki cannot really be distinguished from those of the tricycle in Symonds on the basis that for a short part of an earlier trip on the day, before lunch, when the Kawasaki was being returned to the place where it was garaged, it may have traversed a public road.  As I read the evidence, for much of that trip the bike was being ridden elsewhere “behind houses”, or even walked.  For all that appears, the overriding purpose of having the Kawasaki was to ride it at places like “the property” (as Mr Genge calls it) - in accessing which actual riding was ordinarily limited to tracks not qualifying as roads.

30. [30]
    From the description of the route of “ride” home to lunch, I take it that he crossed Gooding Drive then proceeded on the track that can be seen to continue to the north apparently just outside Railway land, which can be seen in Exhibit 1; further north, it veers north-west behind houses, as the Exhibit shows. There is no reason to think this area is a “road” or a public place. Exhibit 3 shows the track leading to a path of the kind depicted at Wilunga Place, between Lots 302 and 303, directly into Merridown Drive, where Darren Genge lived. The street opening is called Calgary Court, which appears to be no more than a half circle protruding from Merridown to enable the developers to incorporate street frontages for a couple more homesites. It is a fair inference from what is known of Wilunga Place that the path and land behind abutting the railway belong to the Council. In other words, Darren Genge’s actual riding on a public road on 11 September 1999 would have been de minimis; it is not shown how much of Merridown Drive he needed to traverse.

31. [31]
    In my opinion the plaintiffs have not shown that the Kawasaki was a vehicle “for which registration is required”; it follows they have not shown it was “a motor vehicle” for purposes of the Act.

Was the track where the accident happened a “public place”?

32. [32]
    The track runs roughly parallel to the railway line between Robina and Nerang. The electrified tracks are protected from access by unauthorised persons by a substantial and highly visible fence, constructed well within the boundaries of the railway land, which is the subject of ordinary freehold certificates of title. In some places (including the vicinity of the track) the securely fenced strip widens. Locked gates protrude at right angles outwards from the principal fence, the line of which is moved outwards to link the “far” gate posts. A gravel road of generous single lane width which runs alongside the fence and outside it is effectively enclosed within the fence in the “gated” sections as described. Signs on the gates make it clear the public are to keep out. No reasonable person would think the general public were invited to use the gravel road outside the fence, either. In one way or another, access to it is closed off – which does not mean that all members of the public keep out. Barriers put up are knocked down or removed, or people continue to slip past them.

33. [33]
    Off the gravel road, further out from the railway, was an “allurement” (to adopt the term used in Commissioner for Railways (NSW) v Cardy (1960) 104 CLR 274, 287, 289) in the form of a sizeable area (apparently on private land whose owner was not identified) where young people often resorted for social and recreational activities.  It appears to have no definite name, being referred to as the campsite, the base camp, the property and (I think) “snakers” by various witnesses.  “Picnics” might be held there, there might be overnight stays.  There were possibilities for swimming.  More pertinently, there was a suitable area for riding trail bikes.  Jumps were constructed of dirt, which required regular reshaping as use wore them down and spread the dirt.  While nobody positively welcomed the young people, only one farmer was ungracious enough to actively order them off his place.  Supposedly, his wishes were respected.

34. [34]
    The track in question provided one (perhaps the main one) of many ways of accessing the “campsite”, which the Court did not see on view undertaken on 1 December 2004. It skirted a widened section of the securely fenced enclosure within which the railway lines were, linking a section of the gravel road outside the secure fence south of one locked gate with the locked gate to the north, close to the bridge carrying Gooding Drive traffic across the railway line. The track is a narrow path (resembling a single wheel track) worn into the ground. It has much vegetation very close by, including trees several metres high, typically of a “bushy” nature. It runs on railway land, whose boundary still further out from the track is supposedly defined by a four strand wire fence. Photographs in evidence depict some posts, but they were not seen on the view, being concealed (assuming they existed) by high grass (up to head height) growing along the boundary, which appears to coincide with a drain or channel at the low point of the local topography, capable of receiving runoff from the railway and the more elevated land further away from it, where at some distance is the line of residential development accessed by cul-de-sacs called Wilunga Place (the more southerly) and Crelga Court. In at least one place, as a witness confirmed, the wire fence had been knocked down; the more intrepid could cut through the high grass there (at the cost of getting wet feet, on the view) or ride through, and thus avoid having to skirt the drain and high grass by going north almost all the way to the bridge and then turning towards the railway line along a difficult, meandering and steepish little path much less defined than the “track”.

35. [35]
    (Darren Genge said he got to the track from Gooding Drive by proceeding down a similar, probably steeper path which can be seen in aerial photography. No one could reasonably take it that the public were expected, still less authorised or invited to leave Gooding Drive in this way to get on the railway land. I take it that Mr Genge had to proceed across the Council reserve containing a covered playground to get on to the railway land.)

36. [36]
    Beyond the drain and the “barrier” created by the high grass (and wire fence?) was and is an open swathe of grassy area, reasonably kempt. To anyone coming upon the area, its status would be unclear. It might well be taken as parkland behind the houses. A narrow path between two residential properties gives access from Wilunga Place. Crelga Court offers direct access to the Council land containing the covered playground mentioned elsewhere. Since the time of the accident, a barrier has been installed to make riding a bike along the access opening directly on to Wilunga Place very difficult. From the access mentioned to Gooding Drive all of the land backing on to the privately owned railway land is privately owned. At Wilunga Place and Crelga Court the Gold Coast City Council is the owner; there is a playground covered by a large expansive shade cloth at the latter. Between is (or was at the relevant time) land owned by a private company. There is no doubt that whether or not they appreciated it themselves, Atherton, Gideona and Moseley were trespassing (apart from unlawfully riding on the Council land) when they rode in from Wilunga Place to the track on the railway land en route to the campsite.

37. [37]
    Mr Wilson asked the Court to make certain findings of fact which “did not interfere with or circumscribe the findings that will have to be made by the trial judge on the issue of liability”. There seemed no real opposition to any of the requested findings being made. They (with an indication of evidence justifying them) are:

“(a) The collision between the two motorcycles occurred on a track on land owned by Queensland Rail, which land was privately owned (exs 9A, 9B, 9C; T9.36; ex 4 photograph 6);

2. (b)
   The collision occurred approximately 100 metres south from the Gooding Drive overpass;

3. (c)
   The track was a worn path which was not constructed in any way, but rather was worn into the vegetation (Gideona T24.30; Lindsay T36.10; Moseley T46.30);

4. (d)
   The track was used not infrequently by a number of local youths to ride trail bikes, on part of the Queensland Rail land; some considerable distance (variously estimated at 600 metres – 1 kilometre) from the point of collision, youths used land for camping and riding motorcycles over jumps.  The owner of this land has not been identified;

5. (e)
   There was some vague evidence of occasional use by cyclists and walkers or joggers, but the frequency of such use, and by whom it was enjoyed was not made clear;

6. (f)
   There was, at the date of accident, no physical impediment to the plaintiffs accessing the track from its northern end, by riding from the council reserve adjacent to Crelga Court.  The means of access to the track was via a path worn through dense vegetation;

7. (g)
   To gain access to the track on which the accident occurred each of the plaintiffs Moseley, Gideona and Atherton traversed Lots 40 on RP847581 and 995 on RP882574 which were each held by the Gold Coast City Council for park and recreation purposes (exs 3, 5, 11A and 11B; GJ Lindsay at T35.12, 35.52; Gideona T16-17; Moseley T44.45-58);

(h Practically, to access the track it was necessary to traverse Council land either from Wilunga Place, or from Crelga Court (evidence of surveyor Lindsay);

1. (i)
   It was not lawful for the plaintiffs to traverse the council land on a motorcycle: Local Law 9.9(2), (3); Local Law Policy 9.1, clause 3 definition  of “motor vehicle”, clause 10, clause 11 (exs 12A and 12B);

10. (j)
    The plaintiffs Moseley Gideona and Atherton also traversed privately owned land, being Lots 20 on RP804691 (ex 3, ex 10);

(k) The plaintiffs Gideona, Moseley and Atherton did not have the permission of the Council to traverse its land (Gideona T20.6, T21.6; Moseley T48.15);

(l) The plaintiffs Moseley, Gideona and Atherton did not have the permission of the owner of the private land to traverse it (Gideona T20.50; Moseley T48.18);

(m) None of the plaintiffs had the permission of Queensland Rail to be on its land, nor did they seek it (Gideona T21.58, T22.1; Moseley T48.10; Genge T58.52);

(n) In so far as the plaintiffs relied on the evidence of WEJ Wynne, a track worker employed by Queensland Rail, he did not give permission to the plaintiffs to enter Queensland Rail land, and in any event did not have authority to do so (T40.30), nor did he see it as part of his job  to chase away youths using the track, which he saw as a waste of time because it would be ineffective (T38.30).”

38. [38]
    Those findings are made. By the same token, Mr Pope’s written summary of the evidence (subject to the comments made below) in which Danyelle Gideona is “the plaintiff”, is reasonable:

“The Plaintiff gave evidence that the track was used, in her case, on afternoons and weekends for over two years, and that she had met her friends down there and had seen strangers down there.

Jye Midgley had been using the track for two years prior to the accident.  He commonly saw 10 to 20 people on the track, with go-carts as well.

Darren John Genge gave evidence that he had driven along the track into the housing estate, which is a public road open to the public.  Mr Genge’s evidence is that since he was in Grade 8 motorcyclists have used the track.  There was no boom gate at the relevant time.  The track had been used for 13 years prior to the trial date.

Jennifer Anne Evinall gave evidence that she had been down the track on three occasions over two months prior to the accident and had seen as many as 10, maybe 15, people.

Justin Raymond Tucker had been on the track 100 or so times, and had seen other people using the track.

The Plaintiff gave evidence that she had seen Queensland Rail employees, had spoken to them, and they were never chased away.

Mr Wynne, a Queensland Rail track worker, gave evidence that he had seen motor cycles using the track, and he was not there on weekends.

Jye Midgley saw railway workers and the railway workers had been on the track where the accident happened.

Kenneth Glen Hogg gave evidence that he had seen railway employees on the track driving a utility and he had been on the track over a three-year period every weekend and sometimes after school.  He would see as many as half a dozen people, about half of them were strangers and at the point where the accident happened it was wide enough to take a vehicle.

Trevor Ford, who owned the Merrimac Shop for 8 years, could often hear motorcycles going up and down the track.

Michael Feeney, who lived in a house overlooking the area, saw motorcycles most weekends and had seen maintenance vehicles.”

39. [39]
    I would add that:

• The Queensland Rail employees are not shown to have been responsible for keeping people off railway land; in any event, they may well not have regarded land outside the secure high fence as railway land.
• Railway workers were nowhere about when the accident happened.
• There is no significance in railway employees using the track; they may have been using it simply as a short cut to the shops, maybe Mr Ford’s shop or shops across Gooding Drive.
• To the extent evidence was given about Railway employees in a utility or maintenance vehicle using the track, I cannot accept that evidence as reliable in relation to the narrow track where the accident is said to have happened, at least in respect of any relevant time.  It may well be that in earlier times, before and during construction of the Railway, things were different and that such use happened.  But, in 1999 and present day conditions,

(a) there was nowhere for a utility or similar vehicle to go; and

(b) the track was too narrow to accommodate a conventional four-wheeled vehicle.

40. [40]
    This is part of Mr Genge’s cross-examination by Mr Wilson at page 57:

“Now, if I can just concentrate on the trucks/utes which looked to be service-type vehicles.  Can I suggest to you that they were not ever driving in the area where the collision occurred?--  Yeah, no, that’s – yeah, you wouldn’t really see them up that end.  You might see them occasionally up that end, but not regularly, no.

You wouldn’t see them at all up that end, would you?--  Oh, I seen them on there a couple of times, a few backhoes and bobcats and that, but not much, no.

That would have been at the time that the railway was being built, though, would’nt it?--  Yeah, sort of.  I did see them up there a few other times, though.

But predominantly when you saw them it was on the wider section which was down near those crossroads that we’ve been speaking about?--  Down near the crossroad near the concrete pad area?

Yeah?--  What, down that way?

Yeah?--  Yeah seen them down that way there too, yeah.

That’s where you often saw them, either there or actually on the rail track itself?--  Uhm, yeah, I’ve seen them the whole way along pretty much, just not up the north end very much,  no.  I have seen them up there but.”

41. [41]
    Both Darren Genge (in an affidavit of M J Coman filed 16 December 2004) and Renee Moseley (in an affidavit of C J Pullos filed 8 December 2004) exhibited a statement of Jarrod Atherton signed on 29 September 2000 specifically under s 110A(5)(c)(ii) of the Justices Act 1886.  The statement may be seen as confusing, but the point of it is clear enough at the end.  It contains the following:

“At that time the road was wide enough to fit a car but it would have meant the car would have got scratched by the trees.  The trees hang over the track on both sides.

From the start of the track the first 50 metres is straight.  The next 20 metres is a little bit windy to get around the trees, then it goes straight for about another 20 metres.  After that the road is straight but fully blind due to the trees on both sides growing together, the trees are thin but they had a lot of leaves on them.  When you ride a motor bike through there you have to stop and duck down onto your tank and ride the clutch slowly to get through.

…

After setting off with the girls on the back of the Suzuki, I had ridden off along the first straight part for about 50 metres towards the bridge.  I then went through a wet boggy bit of marsh that leads onto the service road and then turned back to head towards Robina.  I then continued ahead and slowed down to about 23 kilometres an hour, I remember looking at the speedo because Renee said to me, “Don’t go fast.”  I new that Renee hadn’t been on a bike before because she told me when she first got on.

I slowed down even more to duck under the trees and went down on the tank.  I was looking ahead but with my head down low near the handlebar and my chest on the tank.  I could feel Danyelle had one of her hands on my right shoulder and her left arm fully around my waist.  The leaves were just brushing past my face and I remember seeing a flicker of light directly ahead of me and saying “Oh shit.”  There was then an impact and then after that I didn’t know what happened.”

42. [42]
    He is describing the accident scene. What he says, understood with the assistance of the view, renders it highly unlikely that conventional vehicles would, even could have used that section of the track . The witnesses I have reservations about may have been thinking of a wider section elsewhere, or of the “track” before the substantial fence was constructed to enclose what is presumably a road now behind it.

43. [43]
    The definition section of the Act, s 4 says:

““public place” means a place of public resort open to or used by the public as of right, and a place for the time being used for a public purpose or open to access by the public, whether on payment or otherwise, or open to access by the public by the express or tacit consent or sufferance of the owner of that place, whether the place is or is not so open at all times, and a place for the time being declared by regulation to be a public place for the purposes of this Act, but does not include –

(a) a track which at the material time is being used as a course for racing or testing motor vehicles and from which other traffic is excluded during that use; or

(b) a place that is a road within the meaning of the Transport Infrastructure (Roads) Act 1991 or the Traffic Act 1949; or

(c) a place that is declared under section 25 not to be a public place.”

44. [44]
    The 1975 definition is set out in a footnote in Reprint No 3. The only part of the 1975 definition referred to (or of the TORUM definition that may replace it) that might be relevant is:

“a place … open to access by the public by the express or tacit consent or sufferance of the owner.”

45. [45]
    Mr Pope relied on what McTiernan J said in Commissioner for Railways (NSW) v Cardy (1960) 104 CLR 274 at 288:

“It would appear from the evidence that the use of the land by the public was long-established and notorious.

Evidence was given for the appellant by railway officers who had duties in relation to the control of the land, from which the jury could conclude that these officers were well aware of the facts just mentioned.  According to their evidence the appellant, in fact, only permitted persons to go on the land who had official leave to do so and they proved that from time to time they warned persons whom they saw on the land, and who had no such leave, that they had no right to be there; and these officers also gave evidence that they frequently ordered grown-ups and children found on the dump area to leave the land.  In all the circumstances it seems to me that it was open to the jury to think that the action which these officers said that they had taken was rather a token of departmental attitude than a genuine prohibition of the entry of members of the public on the land.  It was, in my view, within the jury’s rights to attach the greater weight to the evidence upon which the respondent relied to prove that he was not a trespasser but, in fact, entered the land with the acquiescence of the appellant.  The jury could, after weighing all the evidence on that issue, reasonably find that members of the public had, in fact, tacit permission to go on to the land and walk about it and that such permission was not limited only to pathways between the places of entry and exit.  I am not prepared to hold that there was no evidence upon which the jury could reasonably find that the permission did not extend to the dump area, which, itself, was part of the whole area.  There was some evidence that children frequented the dump area and played on and about it when dumping was taking place and at other times.  In my opinion the jury could reasonably infer that the appellant, by its officers, was aware of these facts.”

46. [46]
    I am unable to derive much assistance from the passage in construing the relevant part of the definition of “public place”. McTiernan J was concerned with the potential liability of the owner of the land, who arguably had a duty, given what he did with the land, to take steps to protect people (particularly children) allowed to come on to that land. Here, there was no express consent of the Commissioner for Railways of Queensland (or whoever was the legal owner of the railway land). I am not persuaded there was any tacit consent to or even “sufferance” of “the public” having access to the land. Undeniably, some people who could claim to be members of the public were able (at some trouble) to get on to the track and enjoy it for walking, jogging or running (perhaps with a dog, or a baby in a stroller) or for riding on cycles (motorised or otherwise), or maybe on horseback – the point of the use for people such as the plaintiffs being to get to the allurement of the “camp”.

47. [47]
    Those who used the track, even if numerous, were in my view not relevantly representative or members of the public. They had found a secret or relatively isolated place which was not intended to be open to the public, but where they could go for enjoyment and/or exercise without anyone stopping them. Many in the community would probably think no harm was being done, even that it was good to see the land being used, and good to see the young people socialising and pursuing out in the open activities either healthy or exciting, depending on the point of view. Such special self-selecting groups do not, in line with relevant authority, amount to the public. One can easily imagine that if the general public began to access and use the land in the numbers to be expected if it were made known they were welcome, stronger measures might be tried to keep them out. Even so, it may well be the case, as Fullagar J put in Cardy at 299, that the owner “knew that children frequently wandered about and played in the area and it was obviously a physical impossibility to keep them out”.

48. [48]
    I have gained assistance from strong obiter dicta which the New South Wales Court of Appeal made a point of including in the reasons for judgment of Fitzgerald AJA in Nominal Defendant v Wardle (2001) 33 MVR 502; [2001] NSW CA 163, yet another case of primary judges, this time two of them, held to have been in error.  This was another collision between trail bikes, both of which were unregistered and uninsured.  Fitzgerald AJA (Mason P and Meagher JA agreeing) said at 504:

“[10] His Honour held that the place where the collision occurred was a “Public street” because it “… was, as a practical matter, open to the public and was in fact used by many members of the public, including pedestrians, trail bike riders and trail bike riding activities”.

[11] While the council might be said to have “tolerated” trail bike rides in the sense that it did not enforce their exclusion, I doubt whether that made the area which they used “open to them” in the material sense: see Boyton v Nominal Defendant [1980] 2 NSWLR 509; Mercantile Mutual Insurance Co Ltd v W Turner Pty Ltd [1982] 1 NSWLR 728; Markwort v Nominal Defendant [1999] NSWCA 267; BC9909080.

[12] In any event, the trial judge’s summary of the evidence overstated the nature and extent of the use of the material section of the land, that is, the part on which trail bikes were ridden.  That part of the land was used only by council employees in the course of their duties and, on weekends, contrary to the council’s policy, by a small group of young trail bike riders and sometimes a small group of spectators.  Other use of the overall land seems to have been substantially confined to occasional pedestrians along trails some distance away on the banks of the creek.

[13] In Schubert v Lee (1946) 71 CLR 589, the High Court said at 592:

The words “open to or used by the public” are apt to describe a factual condition consisting of any real use of the place by the public as the public – as distinct from use by license of a particular person or only casual or occasional use.

[14] The very limited evidence did not persuade me that the material section of the land was “open to or used by the public”.  Accordingly, I am not satisfied that the collision occurred on a “Public street”.  However, it is unnecessary to decide the appeal on that basis.

 Leave to proceed

[15] As noted earlier, Master Malpass refused leave on 22 August 1996 but Simpson J granted leave on 24 November 1997.  An application by the Nominal Defendant for leave to appeal was refused by two members of this court on 2 February 1998.  At that time the court was not persuaded “… that the judgment of Simpson J is vitiated by appellable error given that it relates to a discretionary judgment”, but added “… that it would be open to [The Nominal Defendant] if it suffers an adverse final judgment to reagitate the matter for which leave has presently been sought and to do so in a context in which prejudice, if any, at the final trial can be more clearly determined”.

…

[23] Accordingly leave to proceed should not have been granted.”

49. [49]
    I agree with the Nominal Defendant’s submission here that the dicta in [10]-[14] are apposite, notwithstanding that the New South Wales statutory language is different, and with the following of Mr Wilson’s written submission:

“29. The phrase ‘public place’ was considered by the Queensland Full Court in Symonds v. The Nominal Defendant (Queensland) [1992] 1 Qd R 444, in the context of a track on a farming property which was used by delivery and other vehicles.  In that case, Thomas J noted at p.449:

‘Indeed, there was no suggestion of any purpose at all for which any members of the public would choose to drive through the farm on this track.  It was not suggested for example that there was any recreational purpose for which outsiders were encouraged or permitted to come to this private land…’.

30. In considering whether the track was a public place, his Honour said, at p.455:

‘In my view “the public” there referred to cannot be taken to include persons who come and go to the farm at the express or implied invitation of the owner for the purposes of the carrying on of the farming enterprise.  No submission was here made to the contrary.  Indeed the term ‘the public’ in ordinary parlance refers to the public as a whole rather than a select group of persons (Tatem Steam Navigation Co v. Inland Revenue Commissions [1941] 2 KB 194; Morrison Holdings v. IRC [1966] 1 WLR 553).  In Harrison v Hill [1932] SC (J) 13, with respect to “roads to which the public have access” it was held that the reference was to the public generally, and not to the special class of members of the public who, for business or social purposes, have occasion to resort to particular premises.  That context refers to the public in a similar way to the reference in the present definition of “public place” in the Motor Vehicles Control Act’.

31. In the case of Harrison v. Hill, referred to by his Honour, the court after making the observations referred to, continued:

‘I think also that, when the statute speaks of the public having ‘access’ to the road, what is meant is neither (at one extreme) that the public has a positive right of its own to access, nor (at the other extreme) that there exists no physical obstruction, of great or less impenetrability, against physical access by the public, but that the public actually and legally enjoys access to it… There must be, as a matter of fact, walking or driving by the public on the road, and such walking or driving must be lawfully performed – that is to say, must be permitted or allowed, either expressly or implicitly, by the person or persons to whom the road belongs.’

32. When these judicial observations are considered, it cannot be said that the track which was on land wholly owned and controlled by Queensland Rail, was a public place.  Members of the public at large were not legally entitled to use the track.  Indeed, their presence on the track was discouraged by a fence, by long grass, the drain and by the fact that to access the track persons had to traverse other areas of private land, or council reserves which prohibited the use of motor vehicles and trail bikes in particular.  Those persons who managed to get to the track to use it for trail riding purposes fell within a special class of members of the public who for social purposes had occasion to resort to the track for trail bike riding.  Accordingly, they were not members of the public as that term is used in the definition of “public place”.  Nor can it be said that such persons had “access” to the track as the meaning of that term was discussed in the passage from Harrison v. Hill referred to above.  In order to gain access to the Queensland Rail land, the trail bike riders had to ride across Council land, which was unlawful, and perhaps across private land, which was also unlawful.

33. The question then arises as to whether or not the land upon which the accident occurred was a place open to access by the public, whether on payment or otherwise.

34. In the first instance, it is necessary to consider the means of access by the public to the track.  The lots adjacent to the Queensland Rail land at the time were either privately owned or held by the Gold Coast City Council as Reserve land, within the Local Law No. 9 (Parks and Reserves).  Section 9 of that Local Law and section 11 of the Local Law Policy No. 9.1 (Parks and Reserves) made thereunder precluded persons from bringing motor bikes onto the land.  Accordingly, it was unlawful  for persons to access the track with their trail bikes by means of the Council reserves.  As the decision in Harrison v Hill makes clear access to the land must be lawful.

39. The track does not satisfy the definition of “public place” in this regard: it was on private land which was quite remote and only accessed by persons with trail bikes through some effort, and prima facie unlawfully.  Moreover, the owner of the land had at least  partially fenced it, although persons who used the land had found a way through or around that fence.”

Utility of Notices of Claim given to the Nominal Defendant

50. [50]
    Section 37 of the Act is:

“Notice of accident claimant

37.(1) Before bringing an action in a court for damages for personal injury arising out of a motor vehicle accident, a claimant must give written notice of the claim to the insurer, or 1 of the insurers, against which the action is to be brought—

(a) containing a statement, sworn by the claimant, of the information required by regulation; and

(b) containing an offer of settlement, or a sworn statement of the reasons why an offer of settlement cannot yet be made; and

(c) accompanied by the documents required by regulation.

(2) The notice must be given within 9 months after the motor vehicle accident or the first appearance of symptoms of the injury.

(3) However, if the motor vehicle cannot be identified, the notice must be given to the Nominal Defendant within 3 months after the motor vehicle accident.

(4) If the notice is not given within the time fixed by this section, the obligation to give the notice continues and the notice, when given, must contain an explanation of the delay but, if a motor vehicle accident claim relates to injury caused by, through or in connection with a motor vehicle that cannot be identified and notice of the claim is not given to the Nominal Defendant within 9 months after the motor vehicle accident, the claim against the Nominal Defendant is barred.

(5) If 2 or more motor vehicles were involved in the motor vehicle accident, the insurer to which a notice of claim is given under subsection (1) must, within 7 days after receiving it, give a copy of the notice to any other insurer of a motor vehicle involved in the motor vehicle accident.”

51. [51]
    Section 40 applied to extend the time limits so they did not run til the respective plaintiffs turned 18. Until 1 December 2004, as noted, it was wrongly assumed by them and their advisors that both trail bikes were unregistered, and that the Nominal Defendant was the insurer of both. Compliant notices were addressed to it, a course which would have satisfied s 37(1) so far as Suncorp is concerned as insurer of the Suzuki, although no notice of claim went to it (for obvious reasons). The Nominal Defendant had no idea of any need to inform Suncorp under s 37(5).

52. [52]
    If the Nominal Defendant, which is not the insurer of the Suzuki, was not the insurer of the Kawasaki either, then s 37 has not been complied with at all. It and s 39 stand in the way of proceedings being pursued.  It was important to the plaintiffs Gideona, Moseley and Atherton to show that the Nominal Defendant was insurer of the Kawasaki in order to establish liability against it.  Atherton cannot establish liability against Suncorp (his insurer), but Gideona’s and Moseley’s prospects of doing so would be strengthened by their showing that the Nominal Defendant is insurer of the Kawasaki.  If they cannot show it, they will need some special indulgence.  At the last minute on 17 December 2004, Mr E Howard made oral application under s 39(5)(d) (the obvious basis for an indulgence, if one be appropriate at all) on behalf of Darren Genge.  I declined to entertain that or any similar application, indicating that, as the Court’s decision on matters already before it would be reserved, there would be ample opportunity to file and serve an application and supporting material, which the respondent could appropriately consider and (perhaps) answer.  There may be much room for argument about the existence and/or reasonableness of excuses for delay or non-compliance with the Act.

The position of Suncorp

53. [53]
    As so often happens in modern personal injuries litigation, there is contest among insurers, understandably anxious to saddle each other with any direct liability to a successful plaintiff or claimant or the obligation to indemnify someone who may be adjudged liable. The matters were adjourned on 1 December 2004 so that Suncorp could be informed of its newly unearthed potential involvement, and, presumably, seek to be heard, a hearing which Mr Dickson sought on 17 December 2004. By then, three of the plaintiffs had filed applications seeking Suncorp’s joinder as a defendant (Moseley on 7 December 2004, Gideona on 12 December 2004 (relying on s 52 of the Act) and Genge on 16 December 2004). The way in which s 52 might apply where the involvement of a second insurer is not an issue until a very late stage (as here) is not clear to me. I think all three applications ought to be treated as coming under the UCPR rules 69 and 70.  Suncorp was entitled to be heard, as were existing defendants.  Mr Wilson urged that Suncorp be added as a party (which Mr Dickson opposed) and, as I understood him, that this was the price Suncorp had to pay if it wished to be heard.

54. [54]
    It seemed to me absurd to join Suncorp as a party for the purpose of arguing (and possibly successfully) that it should not be added as a party. The rules mentioned contemplate a right to be heard, and in advance of the Court’s determination of the appropriateness of joinder. Further, although the implications of joinder were not gone into, there was obviously room for serious concern that if Suncorp were made a party its position under part 4 of the Act, division 3 in particular, might be inappropriately and irretrievably prejudiced.

55. [55]
    Suncorp was not solicitous of the Nominal Defendant’s interests, either. Against the possibility of its coming under some liability itself, it made common cause with the plaintiffs, arguing that the Kawasaki was a “motor vehicle” as defined and an “uninsured motor vehicle” at that, for which the Nominal Defendant became insurer. Those arguments have failed.

56. [56]
    Mr Dickson for Suncorp Limited presented an interesting argument (p 158 ff) of an in terrorem/reductio ad absurdum kind that, if the Nominal Defendant is correct about escaping liability because the Kawasaki was not required to be registered, and was therefore not a “motor vehicle” as defined in the Act, Suncorp would not be liable, either.  Its obligations as insurer are defined by the Act and the terms of the cover set out in the Schedule.  He says the existence in fact of a policy of insurance is irrelevant should the Act (or provisions picked up by the Act) not require registration of the Suzuki.  If registration was not required, the Suzuki was not a “motor vehicle”, and nothing in the Act will render its provisions applicable to an accident involving the Suzuki or to injury resulting to any person.  The spectre of insurance cover which everyone would have believed was there (if only because payment for it was made and accepted) evaporating ought not to dissuade the court from acceding to Mr Wilson’s argument if (as is the case) it seems sound.  The court decides nothing about Suncorp’s or any licensed insurer’s potential liability.  The circumstances of the actual and/or intended use of the Suzuki and the Kawasaki (from the point of view of their leading to a requirement for registration) are not the same.  Further, the very fact of registration and existence of a CTP policy may well make important differences.  Mr Dickson (though contending as he did) agreed that Suncorp would be pleased to take advantage of the situation if the point failed.  It is not necessary to decide here.  The “policy” considerations urged by Mr Dickson to the effect that the desirable consequences of registering motor vehicles should move the court to find a requirement to register more readily strike me as irrelevant.  Mr Dickson urged, too, that the track be found to be a “public place”, both from the point of view of a requirement of registration of the Kawasaki based on the Motor Vehicles Control Act 1975 (p 164) and from the point of view of arguing that the accident happened in a “public place”, to trigger the liability of an insurer in the Nominal Defendant.

Conclusion

57. [57]
    The threshold issues (Mr Wilson’s formulation of which was accepted by the other parties) should be determined as follows:

1. (a)
   Whether the motorcycles (trail bikes) were “motor vehicles” within the definition of that term in s 4 of the Act.  This requires consideration of whether they were vehicles “for which registration (was) required under the Transport Infrastructure (Roads) Regulation 1991 or the Motor Vehicles Control Act 1975.”  If they were not, then the Act does not apply and the actions against the Nominal Defendant must be dismissed.

The appropriate response is:

1. (i)
   The Kawasaki was not required to be registered and was not registered.

2. (ii)
   The Suzuki (as established by the affidavit of the dealer who sold it registered to one Brown only months before the accident) was registered.  It is unnecessary to say whether it was a motor vehicle as defined.  The case for its being so is far stronger than that for the Kawasaki.  Although little is known of its previous use, on the very journey which culminated in the accident it had been ridden (with the two female plaintiffs as passengers) on a public road.

2. (b)
   If the motor cycles were “motor vehicles”, whether they were insured or uninsured.  That is, whether a policy of compulsory third party insurance existed in respect of either of them at the time of the accident:

The situation was that:

1. (i)
   The Kawasaki was not insured, but it was not an “uninsured motor vehicle” as defined because it did not require to be insured.

2. (ii)
   The Suzuki was insured (by Suncorp) at the time of the accident, in light of which, as Mr Wilson submitted:

“In those circumstances, the action brought by Genge (D356/2003) must be dismissed against the Nominal Defendant.  Genge’s only right of action is against Atherton, the rider of the other motorcycle involved in the collision, and it is alleged that this motorcycle was registered and insured.  It is still necessary to determine whether the motorcycle ridden by Genge was an “uninsured motorcycle” as that term is defined in s. 4 of the Act, for the purpose of the other plaintiffs’ actions.”

3. (c)
   Did the accident happen on a “road” or in a “public place” as required by s 5(2) of the Act?

The accident did not occur in a “public place” as relevantly defined or (as conceded by the plaintiffs) on a road.

58. [58]
    In consequence of the foregoing, not only should the claim of Darren Genge as against the Nominal Defendant be dismissed but also the like claims of the other plaintiffs against it. The only insurer identified is that of the Suzuki ridden by Atherton. He can have no claim against it, but the other plaintiffs may have one.

59. [59]
    Notices of claim sent by the plaintiff to the Nominal Defendant are of no avail pursuant to the Act from the point of view of bringing in any other actual or potential insurer, such as Suncorp.

60. [60]
    The present applications for joinder of Suncorp as a defendant should be refused, but without prejudice to the applicants’ ability to renew them, should they or any of them obtain an order of the Court (on the appropriate application) or agreement from Suncorp to clear the way for a proceeding to be commenced against it notwithstanding that the provisions of part 4 division 3 of the Act have not been fully complied with.

61. [61]
    Mr Coman on 22 December 2004 enquired whether an application under s 39(5)(d) should be brought before me as opposed to another judge. There is no reason why I should hear it, as the relevant considerations and evidence are entirely extraneous to those in the matters that were before the court on December 1 and December 17.

62. [62]
    The parties will have the opportunity to consider these reasons and make submissions about appropriate orders.