Club Motor Insurance Agency Pty Ltd v Sargent [1969] HCA 21

High Court of Australia Taylor, Windeyer and Owen JJ. Club Motor Insurance Agency Pty Ltd v Sargent [1969] HCA 21

ORDER Appeals dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

May 27 Taylor J.

I have had the advantage of reading the reasons prepared by my brother Owen in these appeals and I agree with him that both appeals should be dismissed. I shall, however, add a few words for myself.

The first point which arises in the appeals is whether the judgment which was entered against the respondent Sargent at the instance of the nominal defendant can be said to be, in the language of the policy of insurance, "in respect of bodily injury to" the respondent Strang. The appellant in the first appeal, Club Motor Insurance Agency Pty. Limited (hereinafter referred to as the insurance company), contends that it cannot, asserting that the judgment is merely in respect of the liability imposed upon Sargent by cl. 41AQ of the Motor Traffic Ordinance 1936-1962 A.C.T. to indemnify the nominal defendant in respect of the judgment suffered by him in respect of bodily injury to Strang.

The insurance policy issued by the insurance company in Victoria in accordance with the Motor Car Act of that State purported to cover Sargent, as the insured, against all liability incurred by him as the owner or driver of the motor car described in a specified certificate, "in respect of the death or bodily injury to any person caused by or arising out of the use of such motor car in Victoria and in any other State or any Territory of the Commonwealth". But in the Australian Capital Territory, where the accident in which Strang suffered his injuries occurred, the car was an uninsured motor car because it was not a "visiting motor vehicle" within the meaning of the Ordinance and also because the insurance company was not an authorized insurer in the Territory. Accordingly, cl. 41AO (1) of the Ordinance required that Strang's claim should, in the first instance, be enforced against the nominal defendant. I say "in the first instance" because cl. 41AQ (1) provides that any amount paid by the nominal defendant in satisfaction of such a claim or in satisfaction of a judgment recovered against him in relation to any such claim "may be recovered by the nominal defendant as a debt from the person who, at the time of the occurrence out of which such claim arose or in respect of which such judgment was obtained, was the owner of the motor vehicle or, where at the time of that occurrence some other person was driving the vehicle, from the owner and the driver jointly or from either of them severally". It was pursuant to this clause that judgment was entered against Sargent in favour of the nominal defendant.