Judgment date: 9 August 2011. Kiaya Uele by her next friend
Roxanne Hallcroft v Nominal Defendant (Unreported). District
Court of New South Wales1
A vehicle which is capable of obtaining an Unregistered Vehicle
Permit will be covered by the Nominal Defendant scheme even if the
vehicle is not being used for the approved purpose at the time of
At about 3.30 pm on 19 January 2008 the claimant was a
pedestrian on Cobar Reserve when an unregistered motorcycle
collided with her causing serious injuries. The motorcycle was
being ridden for recreational purposes at the time of the accident.
The claimant commenced proceedings against the Nominal Defendant.
It was agreed between the parties that the rider of the motorcycle
had breached his duty of care to the claimant and caused her
The proceedings were listed for hearing of the indemnity issue
under s 33 of the Motor Accidents Compensation Act 1999.
That section allows actions to be brought against the Nominal
Defendant in relation to uninsured motor vehicles where the
following conditions apply:
"(5) For the purposes of
this section, and any regulations made for the purposes of this
"motor vehicle" means a motor vehicle:
(a) that is exempt from registration, or
(b) that is not exempt from registration, is required to be
registered to enable its lawful use or operation on a road in New
South Wales and:
(i) was at the time of manufacture capable of registration,
(ii) was at the time of manufacture, with minor adjustments,
capable of registration, or
(iii) was previously capable of registration but is no longer
capable of registration because it has fallen into
It was agreed between the parties that, at the time of the
manufacture of the motorcycle in 2000, it was not exempt from
registration and could not have been registered for normal road use
without extensive and expensive modification, but that it would
have been possible to obtain an Unregistered Vehicle Permit (UVP)
to use the motorcycle for agricultural purposes. It was also agreed
that the motorcycle would have been capable of being certified
roadworthy for the purposes of obtaining a UVP but that the Roads
and Traffic Authority would not have issued a UVP for recreational
use on Cobar Reserve. However, a UVP does allow the use of the
vehicle on public rods in accordance with specified conditions of
The claimant argued that the issue in determining indemnity
under s 33 was whether or not the vehicle was capable of
registration, including a UVP, at the time of manufacture. The
insurer argued that indemnity must be determined with reference to
whether the vehicle was, at the time of manufacture, capable of
registration for use to which the vehicle was being put at the time
of the accident. The trial judge noted that the Nominal Defendant
scheme is beneficial in nature and the provisions should therefore
be interpreted beneficially. He therefore adopted the former
approach and gave judgment in favour of the claimant.
This decision dramatically broadens the number of vehicles which
may potentially be covered by the Nominal Defendant scheme.
Essentially, any vehicle which is capable of being registered or
obtaining a UVP could potentially fall within the scheme, even
where the purpose for which it is being used at the time of the
accident is not an approved use.
The mechanism to obtain a UVP is rather lax. Essentially the
owner must certify that the vehicle was roadworthy at the time of
1. Judge RA Sorby
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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