Andy's Earth Works Pty Ltd v Verey [2012] NSWCA 32

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Andy's Earth Works Pty Ltd v Verey [2012] NSWCA 32 Hearing dates: 8 December 2011 Decision date: 08 March 2012 Before: Beazley JA at [1] Macfarlan JA at [8] Whealy JA at [40] Decision: (1) Leave to appeal granted. (2) Direct that within fourteen days of the date of this judgment the applicant file and serve a Notice of Appeal in the form of the draft provided to the Court. (3) Set aside the finding of the primary judge that the excavator referred to in Mr Verey's Statement of Claim was a "motor vehicle" within the meaning of the Motor Accidents Compensation Act 1999. (4) Judgment for the applicant in the District Court proceedings brought by Mr Verey. (5) Order Mr Verey to pay the applicant's costs of the proceedings at first instance and on appeal. (6) Mr Verey to have a certificate under the Suitors' Fund Act 1951, if qualified. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: MOTOR ACCIDENTS COMPENSATION - worker claimed from his employer damages under the Motor Accidents Compensation Act 1999 in respect of injury suffered in the course of his employment whilst a passenger in the bucket of an excavator - whether the excavator was a "motor vehicle" as defined in the Act - whether the excavator was a vehicle "on wheels" within the meaning of the Road Transport (General) Act 2005 Legislation Cited: Motor Accidents Compensation Act 1999 Road Transport (General) Act 2005 Road Transport (General) Amendment (Tracked Vehicles) Regulation 2011 Cases Cited: Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 Doumit v Jabbs Excavations Pty Ltd [2009] NSWCA 360; 54 MVR 332 Fawcett v BHP By-Products Pty Ltd [1960] HCA 59; 104 CLR 80 Grygorcewicz v Broken Hill Proprietary Co Ltd [1963] NSWR 1205; 80 WN (NSW) 828 Nguyen v Nguyen [1990] HCA 9; 169 CLR 245 Category: Principal judgment Parties: Andy's Earth Works Pty Ltd (Appellant) Wayne Leslie Verey (Respondent) Representation: Counsel: K Rewell SC/G Smith (Appellant) P Maiden SC/J Cairn (Respondent) Solicitors: Mersal & Associates Pty Ltd (Appellant) Herbert Weller Solicitor (Respondent) File Number(s): CA 2009/337610 Decision under appeal Citation: Wayne Leslie Verey v Andy's Earth Works Pty Ltd Date of Decision: 2011-04-14 00:00:00 Before: Puckeridge ADCJ File Number(s): DC 2009/337610