Allianz Australia Insurance Ltd v National Jet Systems Pty Ltd - [2004] SASC 438

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
ALLIANZ AUSTRALIA INSURANCE LTD v NATIONAL JET SYSTEMS PTY LTD
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Anderson)
23 December 2004
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - DECLARATIONS - APPROPRIATE FORM OF RELIEF - DISCRETION OF COURT
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - PERSONS ENTITLED TO COMPENSATION - WHO IS A "WORKER" OR "EMPLOYEE"
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - INJURIES OUT OF JURISDICTION - TERRITORIAL CONNECTION
Appeal from a decision of a single Judge granting the respondent declarations of entitlement to indemnity under an insurance policy with the appellant - employee of the respondent made claim for damages in the ACT - respondent claimed indemnity pursuant to the policy of insurance - entitlement to indemnity depended on the respondent's employee satisfying the definition of "worker" under the ACT workers' compensation legislation - appellant contended that the respondent was not entitled to indemnity because contract of employment entered into outside of ACT - question of whether the employment located substantially within the ACT - question of whether the employee's injuries were incurred within the ACT - question not able to be answered on the facts before the single Judge - costs: whether policy of insurance gives present entitlement to costs - when appropriate to grant immediate relief - principles applying to grant of declaration - where declaration futile and hypothetical - held: question of whether employee a "worker" not capable of resolution prior to trial - insufficient evidence as to where injuries sustained - therefore an inappropriate case for grant of immediate relief - appeal allowed.
Workers' Compensation Act 1951 (ACT) s6 and s7(1); Workers' Compensation Act 1928 (VIC) s7(1)(a); Supreme Court Rules 1988 (SA) r25.02, referred to.
Mynott v Barnard (1939) 62 CLR 68; Settlement Wine Co Pty Ltd v National and General Insurance Co Ltd (1988) 146 LSJS 150, applied.
King's College v Allianz Insurance Australia Ltd [2004] 1 Qd R 394; Tomalin v S Pearson & Son Ltd (1909) 2 KB 61; Krzus v Crow's Nest Pass Coal Ltd [1912] AC 590; J N Taylor Holdings Ltd (In Liq) v Bond (1993) 59 SASR 432; AMP Fire and General Insurance Company Ltd v Dixon [1982] VR 833; McGarrigle v Public Service Board [1979] 1 NSWR 292; Mentha v G E Capital Ltd (1997) 154 ALR 565, considered.

ALLIANZ AUSTRALIA INSURANCE LTD v NATIONAL JET SYSTEMS PTY LTD
[2004] SASC 438
Full Court: Doyle CJ, Duggan and Anderson JJ

DOYLE CJ I would allow the appeal, set aside the declarations and orders made by a Judge of this Court, and substitute an order dismissing the respondent’s application of 19 June 2003 for immediate relief. I would hear further submissions from the parties as to whether the appellant’s application of 14 August 2003, for an order transferring the proceedings to the Supreme Court of the Australian Capital Territory, should be dealt with by this Court or should be heard by a single judge. I wish to hear the parties on the question of the costs of the application for immediate relief and the costs of the appeal.
I have read the reasons of Anderson J. Subject to what follows, I agree substantially with his reasons for making these orders.
The declarations made by the Judge are hypothetical, because they will take effect only if Ms Rawson, the plaintiff in the proceedings in the Supreme Court of the Australian Capital Territory (“the ACT proceedings”), succeeds in her claim against the respondent and establishes an entitlement to damages for an injury suffered by her within the Australian Capital Territory. The case has been conducted on the basis that the respondent’s entitlement to indemnity from the appellant is only in respect of an injury suffered within the Australian Capital Territory. In addition, the respondent will be entitled to indemnity only if it establishes that Ms Rawson is a “worker” for the purposes of the Workers Compensation Act 1951 of the Australian Capital Territory (“the Act”), and is a worker of the respondent.
Ms Rawson’s claim against the respondent might fail altogether. Her claim might succeed, but she might fail to prove that her injury was suffered within the Australian Capital Territory. On the facts, the question of where Ms Rawson suffered injury, if she did suffer injury in the course of her employment, is a very live issue. The respondent might fail to establish that Ms Rawson was a worker for the purposes of the Act, because the Act does not apply to her employment. It is for those reasons that the respondent’s entitlement to indemnity under the policy of insurance is a hypothetical issue at this stage.
I agree that the decisions in AMP Fire and General Insurance Company Limited v Dixon [1982] VR 833 and in King’s College v Allianz Insurance Australia Ltd [2003] QSC 353; [2004] 1 Qd R 394 are persuasive authorities against the making of a declaration in a case like this.
A further matter to consider is that it is not at all clear that the appellant will be bound by findings made in the ACT proceedings between Ms Rawson and the respondent. It is not a party to those proceedings. If, by the declarations, the Judge has purported to bind the appellant by the findings yet to be made, it appears to me that it would not be appropriate to do so. To do so would be to bind the appellant to findings in the making of which it plays no part. If it is not bound, that fact further limits the utility of the declarations made.
It is not just that the declarations are hypothetical. The general terms in which the declarations are made might give rise to difficulty in their application, once the proceedings between Ms Rawson and the respondent have been decided. The first declaration depends upon a finding of liability in respect of “injury” which is sustained within the Australian Capital Territory in the course of Ms Rawson’s employment. There might conceivably be more than one injury or occasion of injury. It is possible, in that event, that different injuries might have been sustained in different places.
I accept that the Judge had power to grant the declarations that he granted, but in my respectful opinion it was not appropriate to do so in a case like this.
The declarations are preceded by a finding by the Judge, contested by the appellant, that Ms Rawson was, for relevant purposes, a worker as defined by the Act, and so was, for the purposes of the policy issued by the appellant, a worker of the respondent.
That finding is itself premised on a finding of fact, set out by Anderson J that Ms Rawson’s employment “was located substantially in the ACT”. There is no doubt that from time to time Ms Rawson carried out her duties of employment in the Australian Capital Territory. But whether it is correct to say that her employment was located substantially in that Territory is another matter. In my respectful opinion, having regard to the very limited factual material before the Judge, this issue is not suitable for resolution in a summary fashion. It should have been determined only after the facts were fully explored.
That finding was important because the Judge seems to have taken the view, relying on the decision of the High Court in Mynott v Barnard (1939) 62 CLR 68, that the Act would apply to the employment of a worker whose employment was “located substantially in the ACT” and who suffered an injury “at least in part” in the Australian Capital Territory.
In Mynott v Barnard differing views were expressed by the members of the High Court as to the criterion of application of the Victorian Workers Compensation Act 1928, which for present purposes may well be similar to the Act. Latham CJ and Starke J favoured, as the criterion of application of the legislation, the place where the injury happened: at 85-86 and at 89-90 respectively. McTiernan J appears to have been of the same view: at 94. Rich J and Dixon J favoured, as the criterion of application, the place of employment, seeming to mean the place with which the employment was identified, even though on occasions the worker might travel outside that place: at 87 and at 93 respectively.
The Judge appears to have drawn on both approaches. He was, of course, bound by the High Court decision. But, as I have said, in my respectful opinion, the issue of the place of employment was not one appropriately determined on an application for immediate relief. As well, the place where Ms Rawson suffered her injury remains unknown at this stage. It cannot be said at this stage that she is a worker for the purposes of the Act. Moreover, the Judge’s reference to an injury sustained “at least in part” in the Australian Capital Territory introduces an element of uncertainty that might well prove awkward.
It is for those reasons, and for the reasons given by Anderson J, that in my respectful opinion the Judge erred in deciding the issues before him by way of immediate relief. Accordingly, the declarations should be set aside.
I add that I do not necessarily accept the submission for the appellant that the respondent will be entitled to payment of costs incurred in defending Ms Rawson’s claim, only if Ms Rawson establishes an entitlement to damages against the respondent in respect of which the respondent is entitled to indemnity. There is authority suggesting otherwise: see, for example, Karenlee Nominees Pty Ltd v ACN 004312234 Ltd (1994) 8 ANZ Ins Cas 61-236. Moreover, the relevant part of the policy refers to proceedings in which liability to a worker (for the purposes of the Act) “is alleged”. It is unnecessary to decide the point, but it is desirable to make it clear that in allowing the appeal that submission advanced by the appellant has not been decided in its favour.
DUGGAN J. In my view the application for immediate relief in this case should not have been granted.
I agree with the orders proposed by the Chief Justice. I agree with his reasons and, subject to the comments made by the Chief Justice, I agree with the reasons of Anderson J.
ANDERSON J This is an appeal from a Judge of this court who granted immediate relief pursuant to Rule 25.02 of the Supreme Court Rules 1988.
The learned Judge granted the respondent declarations of entitlement to indemnity under an insurance policy with the appellant. The question arises as to whether, in respect of a liability that might result from proceedings issued in the Supreme Court of the Australian Capital Territory, (“the ACT proceedings”), it was appropriate to grant immediate relief to the respondent in this court.
One of the issues involved is whether the plaintiff, (Ms Rawson), in the ACT proceedings is a worker for the purposes of the Workers Compensation Act 1951 (ACT), (“the Act”), then in turn, whether the respondent employer has an entitlement to indemnity from the appellant insurer.
S7(1) of the Act at the relevant time provided that:
“Where a worker suffers personal injury arising out of or in the course of the worker’s employment, the employer is liable to pay compensation in accordance with Schedule 1.”
‘Worker’, in turn, was defined in s6 of the Act as follows:
“’Worker’, means any person who has entered into or works under a contract of service or apprenticeship with an employer, whether the contract is expressed or implied, oral or in writing, but does not include…” (These exclusions are irrelevant for present purposes).
The ACT Proceedings
Ms Rawson was employed by National Jet as a co-pilot and regularly flew from Canberra to Brisbane, MacKay, and Rockhampton in Queensland. She departed from Canberra each day and returned to Canberra at the end of the day.
Obviously, because of the distances involved, she must have spent a large amount of time each day flying over New South Wales and Queensland and relatively little time flying in the Australian Capital Territory.
In the ACT proceedings, she seeks damages for personal injuries sustained in the course of her employment. Her claim is for damages independently of the Act for breach of a duty of care owed by the respondent, as employer, to her. Apart from suing National Jet Systems, Ms Rawson has also sued BAE Systems and BAE Systems Australia Ltd as the bodies corporate involved in the design and manufacture of the aircraft in question. Certain designs in relation to the engines are criticised and suggested as the cause for exhaust fumes entering the cabin.
She alleges in the ACT proceedings that she has suffered from various neurological deficits, and lists symptoms which appeared at different stages during her employment. The symptoms include headaches, fatigue, sore throat, husky voice, smelling foul odours, nausea, poor concentration, and generally feeling unwell. It is alleged that these symptoms were caused in some way or other by exhaust fumes which somehow entered the cockpit of the aircraft.
Ms Rawson makes no specific allegation that she suffered any physical or mental injury in the ACT, or in any other single place. The question of any breach of duty or where any injury occurred will require an analysis of a considerable body of evidence which would be led in the trial including her own evidence and expert medical evidence. The appellant, in my view quite reasonably, says that there is nothing on the face of the statement of claim which alleges an injury sustained in the ACT.
Decision to Grant the Declarations
The appellant in these proceedings had issued a policy of insurance (“the Policy”) to the respondent providing unlimited cover in respect of any liability which might arise under the Act or independently of the Act, but any liability is limited to a worker and an injury suffered within the ACT.
The appellant also argues in its written submissions that there was not sufficient evidence to enable any finding as to any such injury without a determination of:
“… the relativities within Ms Rawson’s employment and duties. There was no analysis of the times within each shift that Rawson spent in Canberra as opposed to other places. There was no analysis about the flying times over the ACT, New South Wales or Queensland.”
Affidavits were filed before the learned Judge containing details of, amongst other things, the insurance policies, employment details, details of National Jet’s head office, and in general terms, setting the scene for some but not all of the factual details involved in the issues in the ACT proceedings.
After a review of the affidavit evidence, declarations were made by the learned Judge as follows:
“National Jet Systems is entitled to be indemnified by Allianz Australia in respect of any liability that is determined in action number SC 509 of 2001 in the Supreme Court of the Australian Capital Territory that National Jet Systems has to Susan Rawson in respect of injury sustained by her within the Australian Capital Territory in the course of her employment with National Jet Systems in the period from the 18^th day of September 1994 until the 31^st day of July 1997.
National Jet Systems is entitled to be indemnified by Allianz Australia in respect of the legal costs and expenses which it has reasonably and properly incurred and will continue to reasonably and properly incur in defending the claim being brought by Susan Rawson insofar as such claim is made in respect of injuries alleged to have occurred in the Australian Capital Territory.”
An application was also made by the appellant to have this particular action cross-vested to the Supreme Court of the Australian Capital Territory, but in view of the outcome, no such order was made.
Injury in the ACT
It seems that there was no specific finding that the injury occurred within the ACT. It was asserted by the respondent before the learned Judge that injury, loss and damage were suffered in the ACT. The learned Judge said at [28]:
“Ms Rawson complained of foul odours during warm up, taxiing, takeoff and landing. These events occurred whilst Ms Rawson was within the territorial limits of the ACT. The events also occurred while she was performing duties outside the ACT.”
It is not clear what ‘these events’ are. If the events referred to by his Honour are the complaints of foul odours, that of course is not decisive of where the injury occurred. If the events are warm up, taxiing, take-off and landing then it is likely, given the amount of time spent in the air, and in particular outside of the ACT, that the foul odours, if generated by the engines, cumulatively affected Ms Rawson during the time she was both flying the aeroplane, and the time from when the engines were started including take-off and landing and ceasing when the engines were stopped.
His Honour says at [38]:
“It was accepted by National Jet that any liability of Allianz was limited to injury suffered by a worker within the territorial limitations of the ACT.”
As stated, there is no specific finding that the injury did occur within the ACT, other than the reference to ‘these events’ in the passage referred to earlier. There is one final reference which may be relevant in his Honour’s reasons at [51]. His Honour says there, in discussing the question of whether Ms Rawson was a worker:
“It would be artificial, to use the words of Dixon J, to resort to the laws of another State to resolve Ms Rawson’s claim for damages for injuries sustained, at least in part, in the ACT.”
If this is a finding that she did sustain injury in the ACT, it is challenged.
In describing her employment, the learned Judge said at [32]:
“While Ms Rawson spent a proportion of her working hours outside the ACT, substantially her employment duties were centred in Canberra. Ms Rawson had to report to the Canberra Airport at the beginning and end of each shift. She undertook her ground duties at those premises and was involved in warm up, taxiing, take off and landing duties from the ACT.”
His Honour also said at [50]:
“Ms Rawson’s working day began and ended in Canberra. Her duties were more often carried out there than in any other State or Territory of Australia. Ms Rawson’s employment was located substantially in the ACT. Ms Rawson reported for duty in the ACT, completed paperwork, took off and flew within the ACT. Following transitory attendances interstate she then returned to end the working day.”
The appellant challenged these findings on the basis that they were not an accurate description of her work in relation to the hours she spent in the air. It was argued that most of the time was interstate and that it was wrong to describe that as ‘transitory attendances interstate’.
A table was provided as part of the appellant’s submissions setting out the pleaded symptoms and the location of any incidents giving rise to the symptoms. Most were unspecified as to the place where the symptoms first occurred, but included cruising at altitude, at the conclusion of flight and after disembarkation, but without saying where. Other allegations specified on the ground at Canberra and on the ground at Brisbane as definite places where symptoms occurred.
It is clear that Ms Rawson’s symptoms were cumulative and that it will be no easy question for the trial Judge in the ACT proceedings to finally determine where the injury occurred. The tort of negligence may well have several different locations on the basis of what information is now available.
Professor Nygh says in his Conflict of Laws in Australia (1995, 6^th ed) at 351, in comparing the test in jurisdictional matters to choice of law issues:
“Indeed, it would appear that the basic test to be applied is the same. Although earlier decisions stressed the place where the act was done from which the harm ensued, both the English Court of Appeal and the High Court of Australia have now adopted for choice of law purposes the test formulated by the Privy Council in Distillers Co (Biochemicals) Ltd v Thompson:
“The right approach is, when the tort is complete, to look back over the events constituting it and ask the question: where in substance did the cause of action occur?”
Although the mere fact that damage occurred in a particular jurisdiction it is not sufficient, the tendency in cases of ‘double locality’ torts has been to stress the place at which the activity of the defendant was directed, rather than the place where the activity complained of originated. That proposition can be illustrated by considering each tort separately.”

(Footnotes omitted)

In my view, the trial in the ACT will involve looking back over the events constituting the tort and asking where in substance did the cause of action occur.
If the ultimate finding is that any injury proved was suffered outside of the ACT then the policy of insurance would not respond to the declarations made by the learned Judge appealed from. So much seems clear.
From a perusal of the papers provided to the learned Judge and from hearing argument as to the deficiencies in the evidence presented, it appears the learned Judge did not have all of the information which would be necessary to determine where the injury was incurred.
It was argued that because of the absence of important facts, it was impossible to draw conclusions which were necessary for the purpose of granting immediate relief.
It is my view that, on the facts of this case, there is a paucity of evidence with a potential for different results dependent on further evidence. I consider that it was not appropriate to grant immediate relief because there was no certainty at all that any injury occurred within the ACT.
Place of Entering the Contract
This was a further topic of argument on the basis that his Honour’s findings were that Ms Rawson’s employment was substantially in the ACT and that, in addition, there was an injury sustained, at least in part in the ACT - see paragraphs [50] and [51] of his Honour’s reasons, and my earlier discussion at paragraphs [36] and [39] of these reasons.
The argument put to us by the appellant was that for someone to come within the definition of worker, they must have entered into the contract of service in the ACT. The respondent relies on the decision of the High Court in Mynott v Barnard (1939) 62 CLR 68 to counter that argument. It was argued by the respondent that the legislation in the Victorian Act which was relevant at the time, namely, the Workers Compensation Act 1928 (VIC) is identical with the Australian Capital Territory legislation in question and that therefore the cases are on all fours.
In Mynott, a Victorian resident contracted with a builder in Victoria for work to be performed in New South Wales, in fact just across the border which was the river Murray. The worker was killed and his dependants brought claims for statutory benefits under the Victorian Legislation.
The appellant argued, and the learned trial Judge found, that in this case there was no clear evidence as to where exactly the contract was executed. However, his Honour found that the contract was not executed in the ACT. The complaint made by the appellant is that the learned Judge erred in holding that ‘worker’ was not restricted to the ACT but that all that was required for entitlement under the legislation was an injury in the ACT.
Both counsel analysed the decision in Mynott v Barnard in considerable detail. Mr Trim QC, for the respondent, argued that the definition in the ACT legislation relevant in this case was in line with both the traditional definitions of ‘worker’ in various Acts and consistent with numerous decisions over the years. He pointed in his analysis of Mynott v Barnard to texts relating to Workers Compensation, including Workers Compensation (New South Wales) by CP Mills (1979, 2^nd ed), and referred in particular to paragraph 130 of the text which I set out as follows:
“The entitlement of a worker to compensation under par 7(1)(a) is limited to injuries which occur within New South Wales: Mynott v Barnard … and it is enough that the injury occurs within the State, that the contract may have been entered into outside the State, that the parties are both resident outside the State, or that part of the work is to be performed outside the State, does not take the injury outside the scope of the section…”
The approach of Rich and Dixon JJ in Mynott was an attempt to characterise employment as to whether in that case it could be regarded as ‘Victorian’ employment or not. The rationale applied was that even though the contract was made in Victoria, the whole basis of the contract of employment was for performance of the contract to be achieved outside of Victoria and therefore it was not ‘Victorian’ employment. Dixon J reasoned that the employment was not carried on or localised in Victoria but in New South Wales.
Whatever the case, it seems clear that both those Judges did not regard the place where the actual contract was entered into as anything more than a factor, but certainly not the determining factor in deciding the question. Latham CJ and Starke J endorsed the proposition that it was not the place where the contract was entered into which was the deciding factor.
Latham CJ reasoned that the mere fact that the contract of employment was made in Victoria was not sufficient to decide whether the Victorian statute applied and Starke J reasoned that in determining whether there was employment within the State it was the continual relationship which was relevant and not the engagement or contract to employ on the one hand and serve on the other. Both their Honours used the place where the injury occurred in deciding the relevant legislation.
Latham CJ followed Tomalin v S Pearson & Son Ltd (1909) 2 KB 61. In that case it was decided that the relevant English statute did not apply to an accident in Malta despite the fact that there was a contract of employment, between a resident of England and an English company, made in England. Tomalin was approved by the Privy Council in Krzus v Crow’s Nest Pass Coal Ltd [1912] AC 590 at 597. McTiernan J in his brief reasons also followed Tomalin.
It is my view that Mr Trim’s analysis of both Mynott v Barnard and his references to comparable legislation is the correct analysis but the questions which remain unanswered in this matter are the place of employment and where the injury was suffered.
Are the Declarations Futile?
Mr Trim, in my view, was not able to answer the dilemma created by these declarations, namely, their futility when all that the declarations really amount to is saying that the insurer will be liable if the claim falls within the policy. For that purpose, it is necessary to know where the injury was sustained, and to see whether there is an event which is covered by the policy. If, in due course, it is established there was an insured event, then the insured would be entitled to indemnity. That is something that everyone knows in any event and the declaration is not required for that purpose.
The grant of immediate relief may be futile because the appellant would not be bound by any findings of fact made between Ms Rawson and the respondent in the proceedings in the ACT Supreme Court.
It seems clear that the appellant could not be bound by the first declaration because it is not involved in the case in the ACT. There would be, of necessity, further litigation required in those circumstances.
The declaration, as it stands, would be futile if Ms Rawson does not succeed in establishing that an injury, within the meaning of the Act, was sustained in the ACT. Mr Trim sought to answer this by saying that his client was entitled to what he called “the comfort of the declaration”.
Although the discretion to grant relief is very wide, see J N Taylor Holdings Limited (In Liq) v Bond (1993) 59 SASR 432 at 435-436, there are circumstances where the relief should not be granted, particularly where the declaration sought is hypothetical. See AMP Fire and General Insurance Company Ltd v Dixon [1982] VR 833 at 837. Mr Trim’s description of the declaration as a ‘comfort’ may be just another way of saying that it is “a weapon or argument for use in negotiations” – see McGarrigle v Public Service Board [1979] 1 NSWR 292 and 295 per Moffitt P and Mentha v G E Capital Ltd (1997) 154 ALR 565 at 574-575 per Finkelstein J.
AMP v Dixon was said by the appellant in its supplementary submissions to deprecate the practice of determining indemnity in advance of determining the defendant’s liability to a plaintiff in the absence of ‘‘the most exceptional circumstance”. I agree with that submission.
The relevant test for immediate relief enunciated by King CJ in Settlement Wine Co Pty Ltd v National and General Insurance Co Ltd (1988) 146 LSJS 150 at 153 is as follows:
“Immediate Relief may be justified not only by circumstances of urgency requiring speedy decision of issues which are capable of resolution without lengthy trial, but also by the lack of any credible defence in the sense of real issue to be tried, irrespective of the existence of circumstances of urgency. If there were a triable issue in the present case, it would be incapable of resolution without trial.”
In the absence of any finding as to where the injury occurred, it is my view that the declarations as framed are futile because there is a triable issue which must be resolved at trial. The procedure under Rule 25.02 was not appropriate because facts needed to be established before argument could proceed on the relevant questions of law.
Costs
The Policy provides that:
“…the Insurer will also pay all costs and expenses incurred with the written consent of the Insurer in connection with the defence of any legal proceedings in which such liability is alleged.”
The policy, as indicated, provided that the insurer would indemnify National Jet for liability incurred independently of the Workers Compensation legislation in respect of the person “who is or is deemed by the Act to be a worker which is defined in the Act”. One of the main arguments put forward by the appellant in this court was that the learned Judge was wrong in his consideration of this question.
Mr Trim pointed to the prejudice to his client in having to fund the defence of the action out of its own pocket, but, as I have said, there was nothing in the declaration which, in my view, said anything more than what was obvious depending on the findings which were ultimately made. No urgency and therefore no prejudice in connection with the timing of any declaration was argued as a relevant matter.
Mr Trim asserts, as a result of the declaration, that he has a present right to have his client’s legal costs paid. He relates this to the actual words of the policy set out above and in particular because of the allegation of liability. As discussed earlier, there is really no clear allegation of injury as such in the ACT proceedings.
The declaration is set out in paragraph [31] of these reasons, and again in any event relates any entitlement to injuries alleged to have occurred in the ACT.
In my view, there is really nothing by way of an advantage from the declaration because it is not clear, as I read it, that there is any present entitlement to costs.
Conclusion
In the view I have taken, this matter is incapable of resolution without a trial. It is not capable of resolution, on the affidavit material provided, as to where the injury occurred. I believe this to be a real issue, especially because of the nature of the injury. It was, or is, a cumulative injury, and there are very real questions, both factually and legally, in my view, as to whether Mr Rawson could establish that her injury occurred within the ACT.
I therefore consider that it was an inappropriate case in which to order immediate relief, and accordingly I would allow the appeal, and set aside the declarations and orders made by the learned Judge.
That leaves outstanding the question of the application to cross vest. I would hear the parties as to whether the matter should be referred to a single Judge of this court to hear argument on that matter or dealt with by this court. I would also hear the parties on costs.