New South Wales Court of Appeal CITATION : Hasniyah MURAD v PACIFIC SERVICES PTY LTD & Anor [2004] NSWCA 251 HEARING DATE(S) : 21/7/04 JUDGMENT DATE : 21 July 2004 JUDGMENT OF : Spigelman CJ at 1; Handley JA at 31; Beazley JA at 32 DECISION : Leave to appeal granted; appeal allowed. CATCHWORDS : Meaning of "motor vehicle" in Motor Accidents Compensation Act - whether a trolley shunter is a motor vehicle - natural and ordinary meaning of vehicle Driving Instructors Act 1992 Industrial Relations Act 1986 Motor Accidents Act 1988 Motor Accidents Compensation Act 1999 Motor Vehicle Sports (Public Safety) Act 1985 Road Transport (General) Act 1999 Road Transport (Vehicle Registration) Act 1997 LEGISLATION CITED : Road Transport (Driver Licensing) Act 1998 Road Transport (Heavy Vehicles Registration Charges) Act 1995 Road Transport (Safety and Traffic Management) Act 1999 Road Obstructions (Special Provisions) Act 1979 Stamp Duties Act 1920 Supreme Court Act 1970 Tow Truck Act 1989 Traffic Legislation Amendment Act 1997 Traffic Act 1909 CASES CITED : Fawcett v BHP By-Products Pty Limited (1960) 104 CLR 80 Hasniyah Murad (Claimant) PARTIES : Pacific Services Pty Ltd (First Opponent) David Lim (Second Opponent) FILE NUMBER(S) : CA 41093/03 COUNSEL : Mr A Lakeman (Claimant) Mr R Cavanagh (Opponent) SOLICITORS : G H Healey & Co (Claimant) Minter Ellison (Opponent) LOWER COURT District Court JURISDICTION : LOWER COURT 8552/02 FILE NUMBER(S) : LOWER COURT Gamble ADCJ JUDICIAL OFFICER : - 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA: 41093/03 DC: 8552/02 SPIGLEMAN CJ HANDLEY JA BEAZLEY JA Wednesday 21 July 2004 Hasniyah MURAD v PACIFIC SERVICES PTY LTD & Anor Judgment 1 SPIGELMAN CJ: This is an application for leave to appeal from a decision of her Honour Acting Judge Gamble of the District Court. The Claimant was the plaintiff in proceedings before that Court. Her Honour struck out the plaintiff's Statement of Claim. The Claimant seeks leave to appeal from that decision. 2 The Claimant suffered injuries after being struck by shopping trolleys at the Eastgardens Shopping Mall Pagewood in Sydney. Trolleys were being moved by a vehicle known as a trolley shunter. The issue before Gamble ADCJ was whether or not the trolley shunter was a motor vehicle within the meaning of the Motor Accidents Compensation Act 1999. If so, the Claimant's Statement of Claim was barred by s108 of that Act. 3 The sole issue in this Court is whether her Honour was right in her conclusion that the trolley shunter was a motor vehicle. 4 In evidence is a photograph of the trolley shunter. It is a three-wheel piece of equipment with a built-in motor. There is a handle and a red string which connects to the row of trolleys in front of it. It has the appearance of a lawn mower. 5 The shunter is a pushing device designed to project a row of trolleys. The shunter is attached to the trolleys by a black string and is located under the last trolley. It is not a device on which the operator can stand or sit. It is not designed to carry or contain any object or person. The operator can turn the engine on and off by pulling or releasing the red string. It appears that the shunter can work without the operator providing any additional force by way of pushing. The operator drives the shunter, it appears, in the usual case by manipulating the red string. The trolley shunter is propelled by its own motor and by the attachment propels the trolleys. 6 The Claimant's written submissions in this Court were based on the proposition that the trolley shunter was not a registrable vehicle within the meaning of the legislative scheme to which I will presently refer. 7 It was submitted that the definition of motor vehicle should be read down to refer only to a registrable vehicle. The Opponent submitted that her Honour was correct to apply the words of the definition of motor vehicle, i.e. a vehicle that is propelled by the motor which forms part of the vehicle. The Opponent submitted that the trolley shunter answered that definition. 8 In my opinion it is not necessary to go as far as the Claimant originally submitted. It is sufficient to dispose of this case if the trolley shunter is not a vehicle. Mr A Lakeman, who appeared for the Claimant, adopted this alternative in oral submissions. Mr Lakeman asserted that the proposition was advanced sufficiently below. Mr Cavanagh, who appeared for the Opponent, contested this. The issue may have implications as to the order for costs. 9 I turn to the legislative scheme. Section 108 of the Motor Accidents Compensation Act 1999 provides that a claimant is not entitled to commence Court proceedings in respect of a claim unless a certificate under s92 or s94 of that Act is issued. By s3 of that Act the word "claim" is defined to mean: "A claim for damages in respect of the death of or the injury to a person caused by the fault of the owner or driver of a motor vehicle in the use of or operation of the vehicle". 10 Section 3 now contains the following definition of motor vehicle: "Motor vehicle means a motor vehicle or trailer within the meaning of the Road Transport (General) Act 1999." 11 By reason of the earlier date of operation of the Motor Accidents Compensation Act 1999 this section originally referred to the identical definition in the Traffic Act 1909. 12 The Road Transport (General) Act 1999 contains the following definitions: "Motor vehicle means: a vehicle which is built to be propelled by a motor that forms part of the vehicle. Vehicle means: (a) any description of vehicle on wheels (including a light rail vehicle) but not including any other vehicle used on a railway or tramway or, (b) any other vehicle prescribed by the regulations." 13 The Road Transport (General) Act 1999 is one of a number of interrelated acts. The same definition of motor vehicle as is incorporated by reference in the Motor Accidents Compensation Act appears, either expressly or by reference, in a number of cognate New South Wales statutes, referred to in s5 of the Road Transport (General) Act 1999 as the "road transport legislation": the Road Transport (General) Act s3; the Road Transport (Vehicle Registration) Act 1997 s4; the Road Transport (Driver Licensing) 1998 Act s4 and the dictionary; the Road Transport (Heavy Vehicles Registration Charges) Act 1995 s3; the Road Transport (Safety And Traffic Management) Act 1999 s4 and the dictionary. 14 In the scheme for compensation for road accidents in existence immediately before the Motor Accidents Compensation Act 1999 the words 'motor vehicle' had been defined in identical terms (see the Motor Accidents Act 1988 s3 and Traffic Act 1909 s2). 15 This amended definition was inserted into the Traffic Act 1909 by the Traffic Legislation Amendment Act 1997 which inserted the same definition in a wide variety of acts including the Driving Instructors Act 1992, the Industrial Relations Act 1986, the Motor Vehicle Sports (Public Safety) Act 1988, the Road Obstructions (Special Provisions) Act 1979, the Stamp Duties Act 1920, the Supreme Court Act 1970 and the Tow Truck Act 1989. 16 The Traffic Legislation Amendment Bill of 1997, according to the Second Reading Speech for that Bill, implemented a nationally approved package of reforms of road transport law that had been adopted by the Ministerial Council for Road Transport in October 1996. 17 This package included a nationally approved concept of road and road related area and also a nationally approved definition of motor vehicle and trailer (See New South Wales Legislative Assembly Hansard 12 November 1997 at 1616-1617). This new definition was continued in these disparate statutes when the Road Transport Legislation Amendment Act 1999 replaced references to the Traffic Act 1909 (thereby repealed) with references to the Road Transport (General) Act 1999. 18 The definition, as can be seen, has been adopted on a uniform basis, indeed on a national basis, to serve a broad range of purposes in the regulation of transport, including, in this State, in the scheme for compensation for motor accidents. 19 Within the Motor Accidents Compensation Act itself the word 'motor vehicle', as defined, is found in a number of operative provisions, in addition to its use in the definition of claim, which word relevantly appears in s108. These instances include the definition of motor accidents, s3; the definition of the owner of motor vehicle which is registered, s4; the definition of the use of an uninsured motor vehicle on a road, s8; the statutory third party policy for the owner of a motor vehicle, s10 (see also ss11-13, 15, 18 and 19). 20 Of particular significance is the use of the words motor vehicle in the definition in s3 of "motor accident". This concept is central to the scheme under the Act with respect to uninsured or unidentified motor vehicles in 2.4, motor accidents injury in Ch 3; motor accident claims in Ch 4; and the scheme for award of damages in Ch 5. 21 There is an element of circularity in the statutory definition; a 'motor vehicle" is a "vehicle" of a particular character: However, the word "vehicle" is defined in terms of itself, relevantly, as a "vehicle on wheels". Where a word is defined, in part, in terms of itself then, subject to the context, the Act uses the word as appearing in the definition in its natural and ordinary meaning. 22 In my opinion, the natural and ordinary meaning of the word 'vehicle' conveys the idea of conveyance or carriage and, perhaps, of movement within or upon the object. A device which does no more than push is not, in my opinion, a vehicle unless, perhaps, the person operating it also travels in some way on the object. I do not find it necessary to decide that particular issue. 23 The primary meaning in the Macquarie Dictionary is: "any receptacle, or means of transport, in which something is carried or conveyed or travels" (see also Fawcett v BHP By-Products Pty Limited (1960) 104 CLR 80 at 918 per Windeyer J). 24 Mr Cavanagh referred to the definition in the Australian Pocket Oxford Dictionary: "Any conveyance used on land or in space for transporting people, goods". The definition that appears in the Australian Concise Oxford Dictionary is: "carriage or conveyance of any kind used on land or in space". 25 Mr R Cavanagh submitted that the sole purpose of the shunter was to move the trolleys and, therefore, to "transport" them. Alternatively, the shunter "conveyed" the trolleys. However, in no sense can it be said that the trolleys are conveyed "in" the shunter. 26 It is not sufficient, in my opinion, that a piece of equipment on wheels provides propulsion to an object. There is no more here. In my opinion the trolley shunter is not a vehicle and, therefore, it is not a "motor vehicle" within the meaning of the Motor Accidents Compensation Act 1999. 27 The issue of costs has arisen because the proposition on which the claimant has succeeded in this Court was not put in precisely the same way before Gamble ADCJ. Nevertheless, in my opinion looking at the submissions overall, the Claimant did put in issue the legislative scheme and raised the concept of a vehicle being within the scope and purpose of the legislative scheme, including the scheme of the entire body of road transport legislation, as defined in the Road Transport (General) Act 1999. 28 The Claimant raised the issue in terms of whether or not a vehicle had to be a registrable vehicle, but that was put in the context of the scope and purpose of the scheme. This, in my opinion, sufficiently raised the question of whether or not the object in issue was a vehicle, although it was not put in terms of its natural and ordinary meaning below. 29 The Opponent had conceded before the trial judge that the Opponent bore the onus of establishing that the trolley shunter was not a motor vehicle. For the reasons I have outlined it could not discharge that onus. In my opinion the Claimant should not be deprived of its costs. 30 I propose the following orders: 1. Leave to appeal granted, subject to the Notice of Appeal being filed within 14 days; 2. Appeal allowed; 3. Vacate the order made by Gamble ADCJ on 31 October 2003; 4. Notice of Motion of 1 September 2003 in the District Court of New South Wales dismissed; 5. Order the Opponent/Respondent to pay the Claimant/Appellant's costs before Gamble ADCJ and in this Court. 31 HANDLEY JA: I agree. 32 BEAZLEY JA: I agree. ********** Last Modified: 08/03/2004 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.