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Contents (2017 - 10)
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Motor Accident Injuries Act 2017 No 10
Current version for 1 February 2019 to date (accessed 27 January 2020 at 23:24)
Part 2 Division 2.4
Division 2.4 Uninsured or unidentified motor vehicles
2.27   Nominal Defendant
(cf s 32 MACA)
(1)  The Authority is, for the purposes of this Act, the Nominal Defendant.
(2)  Any action or proceeding by or against the Nominal Defendant is to be taken in the name of the “Nominal Defendant”.
2.28   Application of Division to statutory benefits
For the purposes of the application of this Division to a claim against the Nominal Defendant for statutory benefits payable under Part 3, the liability of the Nominal Defendant is deemed to be a liability in respect of death or injury caused by the fault of the owner or driver of a vehicle that is not an insured motor vehicle or, as the case may be, a vehicle the identity of which cannot be established.
2.29   Claim against Nominal Defendant where vehicle not insured
(cf s 33 MACA)
(1)  An action for the recovery of damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle that is not an insured motor vehicle in the use or operation of the vehicle on a road in New South Wales may be brought against the Nominal Defendant.
(2)  Any such action may be brought despite the fact that the owner or driver of the motor vehicle is dead or cannot be found or is the spouse of the person whose death or to whom injury has been caused.
(3)  In respect of any such action, the Nominal Defendant is liable as if it were the owner or driver of the motor vehicle.
(4)  If the motor accident resulting in the death of or injury to a person occurred on land that is a road related area within the meaning of section 4 (1) of the Road Transport Act 2013 because it is an area that is open to or used by the public for driving, riding or parking vehicles, there is no right of action against the Nominal Defendant under this section if at the time of the motor accident the person was a trespasser on the land.
(5)  There is no right of action against the Nominal Defendant under this section:
(a)  if the motor vehicle is owned by the Commonwealth or by any person or body of persons representing the Commonwealth, or
(b)  if there is a right of action under section 2.32 in respect of the death or injury, or
(c)  if, at the time the motor accident resulting in the death or injury occurred, the motor vehicle was registered under the law of a place other than New South Wales or under a law of the Commonwealth and the motor vehicle was covered under a policy of compulsory third-party personal injury insurance or was subject to coverage under a compulsory motor vehicle accident compensation scheme of that place or of the Commonwealth, or
(d)  if the regulations provide that in the circumstances specified in the regulations there is no right of action against the Nominal Defendant.
(6)  For the purposes of this section, and any regulations made for the purposes of this section:
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, or
(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 disrepair.
2.30   Claim against Nominal Defendant where vehicle not identified
(cf s 34 MACA)
(1)  An action for the recovery of damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle on a road in New South Wales may, if the identity of the vehicle cannot be established, be brought against the Nominal Defendant.
(2)  A claim cannot be made against the Nominal Defendant under this section unless due inquiry and search has been made to establish the identity of the motor vehicle concerned.
(3)  If the motor accident resulting in the death of or injury to a person occurred on land that is a road related area within the meaning of section 4 (1) of the Road Transport Act 2013 because it is an area that is open to or used by the public for driving, riding or parking vehicles, there is no right of action against the Nominal Defendant under this section if at the time of the motor accident the person was a trespasser on the land.
(4)  The inquiry or search may be proved orally or by affidavit of the person who made the inquiry or search.
(5)  In respect of any such action, the Nominal Defendant is liable as if it were the owner or driver of the motor vehicle.
2.31   Rejection of claim for failure to make due inquiry and search to establish identity of vehicle
(cf s 34A MACA)
(1)  If due inquiry and search has not been made to establish the identity of the motor vehicle concerned, a claim against the Nominal Defendant under section 2.30 cannot be referred for assessment under Division 7.6 unless:
(a)  the Nominal Defendant has lost the right to reject the claim for failure to make that due inquiry and search, or
(b)  the Dispute Resolution Service has determined that due inquiry and search has been made, or
(c)  the claim is referred only for a certificate of exemption from assessment under Division 7.6.
(2)  The Nominal Defendant loses the right to reject a claim for failure to make due inquiry and search to establish the identity of a vehicle if the Nominal Defendant:
(a)  does not, within 2 months after the claim is made, reject the claim for failure to make that due inquiry and search or ask the claimant to make that due inquiry and search, or
(b)  does not, within 2 months after being notified of efforts to establish the identity of the vehicle, refuse to accept that there has been due inquiry and search to establish the identity of the vehicle.
(3)  If court proceedings are commenced on a claim against the Nominal Defendant under section 2.30, the Nominal Defendant may apply to the court to have the proceedings dismissed on the ground that due inquiry and search to establish the identity of the vehicle has not been made.
(4)  An application to have proceedings dismissed on that ground cannot be made more than 2 months after the statement of claim is served on the Nominal Defendant and also cannot be made if the Nominal Defendant has lost the right to reject the claim on that ground.
(5)  On an application to have proceedings dismissed on that ground, the court must dismiss the proceedings unless satisfied that due inquiry and search to establish the identity of the vehicle has been made.
2.32   Claim against Nominal Defendant where a NSW registered trailer is attached to a motor vehicle not registered in NSW
(cf s 35 MACA)
(1)  The Nominal Defendant is taken to have issued a policy of insurance under this Act which insures:
(a)  the owner of a registered trailer:
(i)  which is attached to a motor vehicle which is not registered, or
(ii)  which runs out of control having become detached from the towing motor vehicle which is not registered, and
(b)  the owner of a motor vehicle which is not registered:
(i)  to which a registered trailer is attached, or
(ii)  from which a registered trailer becomes detached and runs out of control, and
(c)  any other person who at any time drives such a vehicle (whether or not with the consent of the owner),
against liability in respect of the death of or injury to a person caused by the fault of the owner of the trailer or the owner or driver of the vehicle in the use or operation of the vehicle in any part of the Commonwealth (whether or not on a road).
(2)  An action for the recovery of damages in respect of the death of or injury to a person as referred to in subsection (1) may be brought against the Nominal Defendant.
(3)  Any such action may be brought despite the fact that the owner of the trailer or the owner or driver of the towing vehicle is dead or cannot be found or is the spouse of the person whose death or to whom injury has been caused.
(4)  In respect of any such action, the Nominal Defendant is liable as if it were the owner of the trailer or the owner or driver of the towing vehicle.
(5)  There is no right of action against the Nominal Defendant under this section:
(a)  if the trailer or the towing vehicle is owned by the Commonwealth or by any person or body of persons representing the Commonwealth, or
(b)  if, at the time the motor accident resulting in the death or injury occurred, the motor vehicle was registered under the law of a place other than New South Wales or under a law of the Commonwealth and the motor vehicle was covered under a policy of compulsory third party personal injury insurance or was subject to coverage under a compulsory motor vehicle accident compensation scheme of that place or of the Commonwealth, or
(c)  if the regulations provide that in the circumstances specified in the regulations there is no right of action against the Nominal Defendant.
2.33   Exclusion of acts of terrorism from claims against Nominal Defendant
(cf s 35A MACA)
(1)  There is no right of action against the Nominal Defendant under section 2.29, 2.30 or 2.32 for damages that are attributable to an act that, having regard to the nature of the act and the context in which the act was done, it is reasonable to characterise as an act of terrorism.
(2)  An act cannot be characterised as an act of terrorism for the purposes of this section unless it can be so characterised under section 2.10 (2).
(3)  This section is repealed on a date to be appointed by proclamation for the purposes of this section.
2.34   Nominal Defendant as tortfeasor
(cf s 36 MACA)
(1)  The Nominal Defendant may join another person, or may be joined, for contribution or indemnity in respect of a claim or proceedings under this Act as if the Nominal Defendant were a tortfeasor.
(2)  Joinder of the Nominal Defendant is required to be effected in accordance with this section.
(3)  A person seeking to join the Nominal Defendant in respect of a claim or proceedings must give the Nominal Defendant notice of the person’s intention to do so. The notice must include a copy of the notice of claim under section 6.12 given to the person.
(4)  The notice must be given within 3 months after the claim is made against the person under section 6.12, or within 3 months after the person becomes a party to proceedings in respect of the claim, whichever occurs first.
(5)  The court may extend the period for giving notice to the Nominal Defendant if the person seeking to join the Nominal Defendant gives a full and satisfactory explanation for not having given notice within the 3-month period.
(6)  Within 2 months after notice is given, the person giving notice must provide the Nominal Defendant with full details of the allegations made against the Nominal Defendant (or against the person to whom the Nominal Defendant is taken to have issued a third-party policy).
(7)  An application may not be made to join the Nominal Defendant as a party to proceedings before the court after 3 years from the date on which the claim under section 6.12 in respect of which contribution or indemnity is sought must be made, except with the leave of the court.
(8)  If the Nominal Defendant is sought to be joined because the identity of another motor vehicle is not known, joinder may not be effected unless due inquiry or search to identify the vehicle has been made. The inquiry or search may be proved orally or by affidavit of the person who made the inquiry or search.
(9)  Except as provided by this section, nothing in this section affects any rules of court relating to the joinder of parties.
2.35   Payment of claims against Nominal Defendant
(cf s 37 MACA)
The Nominal Defendant is not personally liable to pay any amount payable in satisfaction of any claim made or judgment obtained under section 2.29, 2.30 or 2.32 or the amount of any costs or expenses incurred by it in relation to any such claim or judgment, but every such amount is to be paid by the Nominal Defendant out of the Nominal Defendant’s Fund established under this Division.
2.36   Licensed insurers to act for Nominal Defendant
(cf s 38 MACA)
(1)  The Nominal Defendant is to allocate claims made against it to licensed insurers in accordance with the arrangements contained in the Insurance Industry Deed or as determined by the Authority.
(2)  The Nominal Defendant is not required to allocate claims that are unlikely to involve a liability of the Nominal Defendant.
(3)  A licensed insurer to whom a claim is allocated is authorised, on behalf of and in the name of the Nominal Defendant, to deal with the claim (and any proceedings relating to the claim) in such manner as it thinks fit.
(4)  A licensed insurer may settle or compromise any such claim.
(5)  A licensed insurer is authorised, on behalf of and in the name of the Nominal Defendant, to bring and prosecute proceedings under section 2.37 relating to any such claim and to settle or compromise those proceedings as it thinks fit.
(6)  A licensed insurer is required to provide to the Authority such reports as the Authority may reasonably require in relation to any thing done by the licensed insurer under the authority of this section.
2.37   Recovery from owner or driver
(cf s 39 MACA)
(1)  Any amount properly paid by the Nominal Defendant in satisfaction of a claim made or judgment obtained under section 2.29, 2.30 or 2.32 and the amount of any costs and expenses properly incurred by it in relation to any such claim or judgment may be recovered by the Nominal Defendant as a debt:
(a)  from the person who, at the time of the occurrence out of which the claim arose or in respect of which the judgment was obtained, was the owner of the motor vehicle, or
(b)  where at the time of such occurrence some other person was driving the motor vehicle, from the owner and the driver jointly or from either of them severally.
(2)  However:
(a)  it is a sufficient defence in any proceedings under this section against the owner (whether severally or jointly with the driver) if the owner establishes to the satisfaction of the court that, at the time of the occurrence, some other person was driving the motor vehicle without the owner’s authority, and
(b)  it is a sufficient defence in any proceedings under this section against the driver of an uninsured motor vehicle (whether severally or jointly with the owner) if the driver establishes to the satisfaction of the court that, at the time of the occurrence, the driver was driving the motor vehicle with the authority of the owner or had reasonable grounds for believing and did in fact believe that the driver had such authority, and that the driver had reasonable grounds for believing and did in fact believe that the motor vehicle was an insured motor vehicle.
(3)  The Nominal Defendant is not entitled to recover any amount under this section from the owner or driver of a motor vehicle which, at the relevant time, was not required to be registered or was exempt from registration or, if required to be registered, was not required to be insured under this Act.
2.38   Establishment of Nominal Defendant’s Fund
(cf s 40 MACA)
(1)  There is established a fund, to be known as the Nominal Defendant’s Fund, belonging to and vested in the Authority.
(2)  The following is to be paid into the Fund:
(a)  money collected under section 2.39,
(b)  the interest from time to time accruing from the investment of the Fund,
(c)  money recovered by the Nominal Defendant under this Division,
(d)  money required to be paid into the Fund out of the Policyholders Protection Fund in accordance with section 16E of the Insurance Protection Tax Act 2001,
(e)  money required to be paid into the Fund by or under this or any other Act.
(3)  The following is to be paid from the Fund:
(a)  money required to be paid from the Fund under section 2.35,
(b)  money required to be paid by the Nominal Defendant as the relevant insurer under Part 3,
(c)  money required to be paid into the Fund out of the Policyholders Protection Fund in accordance with section 16G of the Insurance Protection Tax Act 2001,
(d)  all other money required to be paid from the Fund by or under this or any other Act.
(4)  The Authority may invest money in the Fund that is not immediately required for the purposes of the Fund:
(a)  if the Authority is a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in any way that the Authority is permitted to invest money under that Part, or
(b)  if the Authority is not a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in any way approved by the Minister with the concurrence of the Treasurer.
2.39   Collections for Nominal Defendant’s Fund
(cf s 41 MACA)
(1)  In this section:
financial year means a year commencing on 1 July.
(2)  The Authority may determine the amount to be collected for the purposes of the Nominal Defendant’s Fund in respect of each financial year.
(3)  An amount to be collected for the purposes of the Nominal Defendant’s Fund is to be collected from such persons or fund, and in accordance with such arrangements, as may be prescribed by the regulations.
(4)  The Authority is not to determine an amount under subsection (2) in respect of a financial year if it is of the opinion that satisfactory arrangements have been made in respect of that year (pursuant to the Insurance Industry Deed or otherwise) by licensed insurers to meet claims made against the Nominal Defendant.