Nominal Defendant v Bagots Executor & Trustee Co Ltd [1971] HCA 42

High Court of Australia Barwick C.J. McTiernan, Menzies, Windeyer and Walsh JJ. Nominal Defendant v Bagots Executor & Trustee Co Ltd [1971] HCA 42

ORDER Appeal allowed with costs. Order of the Full Court of South Australia setting aside the first declaration made by Bright J. and making a declaration in the opposite sense on the same subject matter, and so much of the order for costs as relates to the costs of the appeal against that declaration of Bright J. be set aside, and in lieu thereof, order that the appeal to the Full Court against that declaration of Bright J. be dismissed with costs. Sept. 22 Barwick C.J., Menzies, Windeyer and Walsh JJ.

The Court proposes to deliver judgment in this matter and I shall read the reasons of the Court. My brother McTiernan will add further reasons on his own behalf.

In a motor car accident in New South Wales on 3rd March 1959 K. L. Taylor, the driver of a Holden car SA 60-036, was killed. C. R. Taylor, a passenger in the car, was injured. The car was registered in South Australia and there was in force in respect of it a third party insurance complying with the provisions of the Traffic Act, 1958 S.A.. South Australia is a part of the Commonwealth prescribed under s. 15 (2) (a) (ii) of the Motor Vehicles Third Party Insurance Act, 1942-1963 N.S.W.. There was no third party policy in respect of the motor car effected under the New South Wales Act.

In the circumstances stated C. R. Taylor sued the nominal defendant for the purposes of the New South Wales Act pursuant to s. 15 (2) thereof, alleging the death of K. L. Taylor and alleging further negligent driving on his part causing the accident.

Judgment was recovered for £13,500 damages and £1,021 4s. 9d. for costs. The Nominal Defendant satisfied this judgment. The Nominal Defendant then sued the executor of the will of K. L. Taylor to recover the payment made to C. R. Taylor in satisfaction of the judgment.