Nominal Defendant v Alex Kay Pty Ltd [1973] HCA 3

High Court of Australia Barwick C.J. McTiernan, Menzies, Walsh and Stephen JJ. Nominal Defendant v Alex Kay Pty Ltd [1973] HCA 3

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1973, March 9 Barwick C.J.

I have had the advantage of reading the reasons for judgment prepared in this case by my brother Walsh. I agree entirely in his conclusions and in the reasons he gives for them and desire to add nothing to them.

In my opinion the appeal should be dismissed.

McTiernan J.

I agree in the reasons for judgment of Menzies J. and would therefore allow the appeal.

Menzies J.

This is an appeal by the nominal defendant arising out of proceedings wherein one Taylor sued the nominal defendant and Alex Kay Pty. Ltd. (the owner) for damages for injuries suffered in a motor car accident. At the time of the accident, the motor car was being driven by one Wing who was found to have been negligent. The nominal defendant was sued on the footing that Wing was driving an uninsured motor vehicle; the owner was sued alternatively on the footing that it was the owner of an insured vehicle. A third party notice was served by the nominal defendant upon the owner seeking indemnity. At the trial there was judgment in favour of the plaintiff against the nominal defendant for $29,000; there was judgment in favour of the owner against the plaintiff; and there was judgment in favour of the nominal defendant against the owner. There were appeals to the Court of Appeal of the Supreme Court of New South Wales. The nominal defendant appealed against the judgment in the action on the basis that the vehicle was "an exempt vehicle and so was not uninsured". This appeal failed. The owner appealed against the judgment against it in favour of the nominal defendant in the third party proceedings on the basis that Wing was, at the time of the accident, driving the motor car without its authority. This appeal succeeded. The present appeal by the nominal defendant seeks judgment for $29,000 in favour of the plaintiff against the owner rather than against the nominal defendant and, alternatively, that verdict and judgment should be entered for the plaintiff against the nominal defendant for $29,000 and that there should also be verdict and judgment in favour of the nominal defendant against the owner in a like sum.