Nominal Defendant v Dunstan [1963] HCA 5

High Court of Australia Dixon C.J. Taylor and Owen JJ. Nominal Defendant v Dunstan [1963] HCA 5

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

1963, March 7 Dixon C.J., Taylor and Owen JJ.

In this matter the nominal defendant appeals from a judgment entered in an action which was heard by a judge of the Supreme Court of New South Wales without a jury pursuant to s. 3 of the Supreme Court Procedure Act, 1900-1957 N.S.W.. The action was of an unusual character inasmuch as the plaintiff, the first of the three respondents to this appeal, sought to recover damages from the nominal defendant or, alternatively, from the respondents Betteridge and Bristol Heater Company Pty. Limited (hereinafter referred to as the company). Betteridge was the driver and the company the owner of a motor vehicle and, in the language of the Motor Vehicles (Third Party Insurance) Act, 1942-1951 N.S.W., the plaintiff's injuries were caused by or arose out of the use of the motor vehicle in New South Wales. But, alleging that the motor vehicle was an uninsured vehicle within the meaning of s. 30 of the Act, the plaintiff claimed damages against the nominal defendant and succeeded in recovering judgment for a substantial amount. In this appeal the nominal defendant seeks an order setting the judgment aside on the ground that the vehicle was not an uninsured vehicle. If it was not, the plaintiff is entitled to judgment against Betteridge and also against the company if, in the peculiar circumstances of the case, the provisions of s. 16 of the Act operated to create notionally the relationship of principal and agent between the company and Betteridge.

Briefly, the relevant facts are that the company was a company which was incorporated in Victoria and it neither had a place of business nor carried on business in New South Wales. Its motor vehicle was registered in the former State and it was stolen in that State on 30th September 1958. The accident in which the plaintiff sustained his injuries occurred on 12th October 1958 when Betteridge was driving the vehicle in New South Wales between Woonona and Sydney. Where the vehicle had been, or what had happened to it between these two dates does not appear and since Betteridge was not called to give evidence we do not know how long the car had been in New South Wales or what his intentions with respect to it were. We should add that there was no evidence to show where Betteridge was ordinarily resident and, therefore, no purpose can be served by inquiring whether he was an "owner" within the meaning of that term as defined by the Act. Clearly enough, the car was not a registered vehicle (see definition of "registered") and that being so, any person entitled to the immediate possession of it was, under the Act, an owner. The relevant definitions are capable of producing some curious results, but in the circumstances, it is unnecessary to pursue the topic.