New South Wales Court of Appeal CITATION : Markwort v The Nominal Defendant [1999] NSWCA 267 FILE NUMBER(S) : CA 40505/97 HEARING DATE(S) : 6 May 1999 JUDGMENT DATE : 23 July 1999 PARTIES : Janelle Markwort v The Nominal Defendant JUDGMENT OF : Mason P at 1; Meagher JA at 6; Beazley JA at 13 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 4397/96 LOWER COURT JUDICIAL OFFICER : Phegan ADCJ COUNSEL : Appellant: J.D. Hislop QC/D. Andrews Respondent: R.R. Stitt QC. SOLICITORS : Appellant: Rishworth Dodd & Co Appellant: Abbott Tout. CATCHWORDS : Motor vehicle accident - definition of "public road". ACTS CITED : Motor Accidents Act, s.27, Western lands Act, 1901. CASES CITED: Boyton v Nominal Defendant (1982) 2 NSWLR 509; Carlaw v Nominal Defendant (1992-3) 17 MVR 380; DECISION : Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA: 40505/97 DC: 4397/96 CORAM: MASON P MEAGHER JA BEAZLEY JA Friday, 23 July 1999 Janelle MARKWORT v THE NOMINAL DEFENDANT JUDGMENT 1 MASON P: I agree with Meagher JA that this appeal must be dismissed. 2 The appellant's primary submission was that the airstrip as a whole was a "public road" because a track led to the air strip and because vehicles could and did pass along the airstrip after leaving the track. Boyton v Nominal Defendant [1980] 2 NSWLR 509 was cited. Unlike Meagher JA I have no difficulties with the decision or reasoning in Boyton. But it is clearly distinguishable. Members of the public frequently used Hat Head Beach for the purpose of driving or riding motor vehicles. That made it a "place … open to or used by the public" within the definition of "public street" in s2 of the Motor Traffic Act 1909. Hutley JA held (at 513) that "where there is selectivity in those entitled [to] the use of private property [there] is not … a user by the public as a public". 3 The airstrip was within an extensive grazing property. But the property was held by private owners on statutory lease and, in contrast to Boyton, gates abutting public roads were kept locked and only unlocked for the purpose of allowing access to authorised persons. As Phegan DCJ pointed out, there was no evidence to establish the kind of continuing use which was regarded as an important ingredient in Boyton. 4 His Honour also found that there was insufficient evidence to establish that any track in any meaningful sense ran across the airstrip at the point where the accident happened. I agree. To the extent, which I doubt, that some of the evidence led by the appellant suggested any more than that the airstrip as a whole was available for vehicular passage, His Honour was entitled to reject it. Mr Weekes' evidence was to the contrary (AB 231-2, 237, 241, 248, 252) and his evidence was preferred by the trial judge. That preference has not been undermined in the appeal. 5 Reliance upon Carlaw v Nominal Defendant (1993) 17 MVR 380 and the statutory covenant not to obstruct or interfere with reserves, roads or tracks (Western Lands Act 1901, s18 and Schedule A, cl(e) does not assist the appellant. There was, as I have indicated, no finding that the accident occurred on a "track". I prefer to reserve my position as to whether that covenant extends to reserves, roads and tracks coming into existence after the commencement of the relevant lease. 6 MEAGHER JA: This is an appeal by a disappointed plaintiff, Miss Janelle Markwort, against a verdict in favour of the defendant by Phegan ADCJ. She was injured on 6 October 1991 in an accident which occurred on a property known as "Pine View" near Bourke in New South Wales. She was being driven around the property by a friend in a Nissan Patrol open-topped vehicle. The vehicle was unregistered. Hence the identity of the defendant. 7 His Honour found, and there was a bulk of evidence to support the finding, that the accident occurred on a disused airstrip on the property. 8 I might add that there are as many versions of the topography of the property "Pine View" as there were witnesses in the case. That made it difficult for his Honour, and for the Court of Appeal, to understand where the airstrip was. One would have thought that in litigation such as this the solicitors for the parties could have agreed on such elementary facts as where the airstrip was situated in relation to the homestead. But they did not. This, of course, means that the plaintiff's onus of proof was unnecessarily high. 9 The main reason why the topography of the situation became important was because for the Nominal Defendant to be liable not only had the vehicle to be unregistered but he accident in which it was involved had to occur on a "public road"(Motor Accidents Act, s.27). 10 There were it seems, two ways the plaintiff sought to essay the unlikely task of proving that a disused airstrip was a "public road". The first was in reliance on a decision of this Court, Boyton v Nominal Defendant [1980] 2 NSWLR 509. In that case it was held that a beach subject to continuous public vehicular usage was a "public road" for the purposes of the Motor Accidents Act. One may, I think, doubt the cogency of the reasoning in that case. Its ratio would seem to be that a "public street" includes any public place. But, until it is overruled it must command our assent. Nevertheless, it does not avail the plaintiff because there was no evidence in the present case that the disused airstrip was the centre of any concentrated public use, or even any public use at all. 11 The second way the plaintiff tried to surmount the problem was to rely on the decision of Grove J in Carlaw v Nominal Defendant (1992-3) 17 MVR 380. That decision concentrated on the effect of property being leasehold land under the Western Lands Act, 1901. Section 18 of that Act preserves rights to be found in Schedule A of that Act. In schedule A paragraph (a) there is a covenant not to obstruct or interfere with any reserves, roads or tracks or the use thereof by any person. That, according to Carlaw v Nominal Defendant converts every road or track on land under that Act into a "public road". That may be so. But it hardly helps this plaintiff. In the first place, there was no evidence that the airstrip was part of, or on, any road or track. There was evidence that the plaintiff's father walked over the airstrip from time to time, but that did not create a "track". In the second place, the doctrine would only apply to such roads or tracks as existed at the commencement of the lease, and there was no evidence what the state of the property was at the commencement of the lease. 12 The appeal should be dismissed with costs. 13 BEAZLEY JA: I agree with Meagher JA. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.