Coomblas v Gee and Australian National Railways No. Scgrg-96-2202 Judgment No. S6894
[1998] SASC 6894
•2 October 1998
COOMBLAS v GEE AND AUSTRALIAN NATIONAL RAILWAYS
[1998] SASC 6894
Full Court: Prior, Lander and Wicks JJ
PRIOR J
1 I agree with the reasons published by Justice Wicks.
LANDER J
2 I have had the advantage of reading in draft the opinion of Wicks J and I agree with the conclusion at which His Honour has arrived.
3 I desire to add a few remarks of my own.
4 Section 25 of the Wrongs Act was enacted to make all tortfeasors who have contributed to the same damage liable to the person who has suffered that damage notwithstanding that an action has been brought by the injured or damaged party against only one of those tortfeasors.
5 Relevantly s25 provides as follows:
(1) Where damage is suffered by any person as a result of a tort (whether a crime or not) -
...
(c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would at any time have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought:
(ca) a tort-feasor who, on or after the coming into operation of the Wrongs Act Amendment Act, 1959, becomes liable in respect of that damage may recover contribution from a third party as defined in subsection (2) of this section or commence proceedings for such recovery notwithstanding -
(i) that judgment in an action founded on the tort has not been given determining the tort-feasor’s liability in respect of that damage; or
(ii) that the plaintiff as defined in that subsection has released the third party from his liability to the plaintiff for that or any part of that damage; or
(iii) that the plaintiff has not duly given any notice that would be required if the plaintiff were to recover judgment against that person; or
(iv) that the time within which the plaintiff may commence action against the third party has expired; or
(v) that the third party is the Crown or an instrumentality of the Crown:
(d) where the tort or torts causing the damage was or were committed by the husband or wife of the person suffering the damage and some other person, that other person may recover contribution as mentioned in paragraph (c) of this subsection from the husband or wife, as if the husband or wife had been liable to the person suffering the damage.
In this section, so far as the context admits or requires,
‘third party’ means -
(i) a tort-feasor from whom any other tort-feasor is entitled to recover contribution under paragraph (c) of subsection (1) of this section; and
(ii) the husband or wife of a person suffering the damage and from whom some other person is entitled to recover contribution under paragraph (d) of subsection (1) of this section:
‘plaintiff’ means the person suffering the damage referred to in subsection (1) of this section whether or not that person has commenced an action for recovery of judgment in respect of the damage:
‘proceedings’ means proceedings before a court.
Any proceedings by a tort-feasor for the recovery of contribution from a third-party under this section must be instituted before the expiration of two years from the day on which the amount of damages or other compensation payable by the tort-feasor to the plaintiff is determined by the judgment of a court of competent jurisdiction, or by agreement between the plaintiff and the tort-feasor."
5 An action by one tortfeasor to recover contribution from another tortfeasor is not an action or proceeding for damages; Unsworth v Commissioner for Railways (1958) 101 CLR 73 at 87 and 91. It is a statutory right of action for contribution.
6 The South Australian provisions for proceedings against a contribution between several joint tortfeasors are in different form to similar provisions in other States of the Commonwealth.
7 In s25(1)(c) a tortfeasor can recover contribution from another tortfeasor "who is, or would at any time have been, liable in respect of the same damage".
8 The equivalent section, for example, in New South Wales is s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 which provides in like terms save that it speaks of "who is, or would if sued have been, liable in respect of the same damage".
9 There are two important differences. The South Australian Act allows for contribution from a tortfeasor who would "at any time" have been liable.
10 The New South Wales Act does not include these words and only allows for contribution against a tortfeasor who would be liable "if sued".
11 The South Australian Act has been in its form since 1959. Prior to that time it was in the same form as the New South Wales Act.
12 There is no doubt in my opinion that the South Australian Act was amended so as to be read without the importation of any temporal element. That is made clear by the amendment to s25(1)(c) itself and also because at the same time the inclusion of s25(1)(ca).
13 That paragraph makes it clear that contribution may be recovered from a third party as defined in s25(2) of the Wrongs Act notwithstanding that when the action for contribution is brought that third party is no longer liable to the injured party in respect of that same damage.
14 Therefore it seems to me a tortfeasor is entitled to recover contribution from another tortfeasor in respect of the same damage suffered to a plaintiff if the first tortfeasor can establish that the second tortfeasor would at any time have been liable in respect of the same damage.
15 Section 44 of the Safety, Rehabilitation and Compensation Act 1988 puts an end to causes of action for damages against the Commonwealth or its employees (amongst others) for personal injuries caused to employees sustained in the circumstances mentioned in s44(1)(a): Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297.
16 That being the case the Commonwealth and any employees of the Commonwealth could never be liable to an injured employee in respect of any claim for damages for personal injuries suffered by that injured person.
17 In those circumstances the Commonwealth and its employees would never be someone who would, at any time, have been liable in respect of the same damage. I think that, because the Commonwealth and its employees cannot ever be liable in respect of the same damage, subject to one proviso which I shall mention shortly, then a tortfeasor cannot recover contribution from the Commonwealth or its employees.
18 However, there is one circumstance where an employee might be entitled to bring a claim for damages for personal injuries against the Commonwealth and an employee of the Commonwealth. That is a circumstance identified in s45 of the Safety, Rehabilitation and Compensation Act 1988. If an employee who has suffered personal injury, and in particular non economic loss, at any time before an amount of compensation is paid to him or her under s24, s25 or s27 in respect of the injuries suffered, elects in writing to institute an action or proceeding against the Commonwealth, or other employee for damages for that non economic loss.
19 A limited right to damages is preserved in s45 of the Safety, Rehabilitation and Compensation Act. It is a right to damages for non economic loss suffered by an employee. Further the right is limited to damages for non economic loss to a figure not exceeding $110000 [s45(4)].
20 Not only does s45 limit the damages which might be recovered, it also limits the circumstances in which the right to those limited damages might be exercised. First, a right does not exist unless compensation is payable under s24, s25 or s27 of the Safety, Rehabilitation and Compensation Act. Because of those provisions no employee has a right to damages for non economic loss unless the employee has a permanent impairment [s24(1)], the degree of which is equal to or more than 10% [s25(1)(b)].
21 Not surprisingly a right to damages for non economic loss only exists if the Commonwealth or its employees would, but for s44(1), be liable for damages for non-economic loss.
22 However, the right is without a remedy unless the employee has elected in writing to institute an action or proceeding against the Commonwealth or its employees before an amount of compensation has been paid under s24, s25 or s27.
23 If the employee makes an election, which if made becomes irrevocable, then s44(1), which otherwise would put an end to a cause of action against the Commonwealth or its employees for damages for non-economic loss, does not apply. Moreover, if an election is made the employee is not entitled to compensation after the date of the election, under s24, s25 or s27 [s45(2)(b)]. Of course the employee could not have received compensation under those sections because the receipt of any compensation under those sections disqualifies the employee from making an election.
24 However, there are circumstances where the Commonwealth or its employers could become liable as a tortfeasor to an employee of the Commonwealth but the liability of the Commonwealth or its employees could never exceed $110000.
25 At first sight it might be said that if an election was made under s45 then there would be a time when the Commonwealth and its employees would become liable in respect of the same damage, that time being the point of time when an election is made. Of course an election under s45 only allows an action to be brought for damages for non economic loss and it would only be in respect of that same damage that the Commonwealth or its employees could ever be liable.
26 That would mean, in so far as the same damage is concerned, any tortfeasor seeking to recover contribution from the Commonwealth or its employees, at the very best, would be limited to bringing a claim for contribution in respect of non economic loss only and then only to the extent of a maximum of $110000: Unsworth v Commissioner for Railways (supra).
27 The question is whether the right to elect which is given to the employee under s45 of the Safety Rehabilitation and Compensation Act means that the Commonwealth or its employees can be brought within s25(1)(c) of the Wrongs Act in the limited sense which I have described, that is in relation to non economic loss.
28 This point was considered by the Court of Appeal in New South Wales in The Commonwealth of Australia v Flaviano (1996) 40 NSWLR 199. The Court of Appeal in that case decided that the right to election did not bring the Commonwealth within the provisions of s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946.
29 It must be remembered, however, that that section is in a different form to the South Australian section in the two respects which I have mentioned.
30 Whilst the New South Wales Act does not include the words "at any time", I do not think the decision can be distinguished on that basis. That is because, in reaching its conclusion, the Court of Appeal had regard to a previous decision of the High Court in Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213. In that case the High Court held that in reading s5(1)(c) of the New South Wales Act the section should "be read without the importation of any temporal element or as if the words ‘at any time’ were present after the words ‘if sued’." It seems to me that the South Australian Act cannot, for the purposes of a consideration of this matter, be distinguished upon the basis that the words "at any time" are included in the South Australian Act and not in the New South Wales Act.
31 The only other question to be addressed is whether or not the decision in the The Commonwealth of Australia v Flaviano can be distinguished upon the basis that the words "if sued" were material to the Court of Appeal’s decision. I do not think the words "if sued" had any bearing upon the decision made by the Court of Appeal in The Commonwealth of Australia v Flaviano. Notwithstanding the differences in the legislation in two States, in my opinion it is not possible to distinguish the decision in that case.
32 That decision should be followed in this State. The principal Act under consideration was a Commonwealth Statute, the Safety, Rehabilitation and Compensation Act. The second Act under consideration, whilst not identical with the legislation in this State, is not substantially different. It would not be appropriate to refuse to follow that decision unless this Court was convinced that the decision was plainly wrong: Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492; Fernando v Commissioner of Police (1995) 36 NSWLR 567 at 587 - 590; Minister for Industrial Affairs v Civil Tech (1997) 69 SASR 348 at 359.
33 In The Commonwealth of Australia v Flaviano the Court of Appeal further decided that an employee had to make an election in writing prior to commencement of any proceedings against the Commonwealth or its employees under s45. It decided that the commencement of an action or the issue of proceedings against the Commonwealth would not amount to an election under s45(1) of the Safety, Rehabilitation and Compensation Act. It expressly disapproved and declined to follow a decision of Her Honour Judge McMurdo in Grogan v The Commonwealth (Queensland District Court, McMurdo DCJ, 5 June 1996, unreported).
34 In due course Grogan v The Commonwealth was reconsidered by the Court of Appeal in Queensland. That Court reversed the decision arrived at by Judge McMurdo and decided, consistent with the reasoning in The Commonwealth of Australia v Flaviano that if any employee sought to make an election under s45(1), such an election had to be made prior to the commencement of proceedings against the Commonwealth.
35 In due course special leave to appeal to the High Court was sought from that decision but was refused. In refusing special leave, McHugh J, who with Kirby and Callinan JJ comprised the Court on the application for special leave, said:
"The application for special leave must be refused in this case. The principal issue in the application is whether s45 of the Safety, Rehabilitation and Compensation Act 1988 requires that an election under that section be communicated to the Commonwealth before commencing proceedings. The Queensland Court of Appeal held that it must. The applicant contends that the signing of a plaint commencing proceedings constitutes an election whether or not it is communicated to the Commonwealth. We see no reason to doubt the correctness of the conclusion of the Court of Appeal. The words ‘subsequently instituted by the employee against the Commonwealth’ in s45(2) indicate that the election must be made prior to commencing the action or proceeding. It is a short step to conclude that the election so made must be communicated.
The construction placed on the section by the Court of Appeal in this case also receives support from a decision of the New South Wales Court of Appeal in The Commonwealth of Australia v Flaviano & Anor (1996) 40 NSWLR 199."
36 It seems to me that the effect of the decision of the respective Courts of Appeal in New South Wales and Queensland considered with the High Court decision in Giorgiadis v Australian and Overseas Telecommunications Corporation (supra) means that no employee has any right to bring any claim for damages unless an employee, before bringing those proceedings, has made an election pursuant to s45 of the Safety, Rehabilitation and Compensation Act.
37 Unless and until any election is made the Commonwealth has no liability for damages of any kind to an employee for personal injuries sustained in the circumstances predicated in s44(1)(a).
38 In those circumstances it seems to me that until an election is made the Commonwealth and its employees could not be a tortfeasor who is or would at any time have been liable in respect of the same damage.
39 In this case the plaintiff claimed compensation pursuant to the Safety, Rehabilitation and Compensation Act and received compensation pursuant to s24 and s27 of the Act. As soon as he received that compensation he was not entitled to make an election under s45. In those circumstances neither the Commonwealth nor its employees could ever be persons who are or would at any time have been liable in respect of the same damage.
40 Where an employee is not entitled to make an election under s45 because that employee has received compensation pursuant to s24, s25 or s27; or does not cross the threshold test making compensation payable under s24, s25 or s27; or where an employee has not made an election pursuant to s45(1) of the Safety, Rehabilitation and Compensation Act, then in those circumstances, in my opinion, the Commonwealth and its employees are not tortfeasors who are or would at any time have been liable in respect of the same damage and have no liability to contribute to any damages which might be payable by a joint or concurrent tortfeasor.
41 If, however, an election is made under s45 of the Safety, Rehabilitation and Compensation Act in circumstances where the employee would qualify for an entitlement of damages for non-economic loss not exceeding $110000 then, in those circumstances, the Commonwealth and its employees will become a tortfeasor who would be liable in respect of the same damage but only to the extent of $110000: Unsworth v Commissioner for Railways (supra).
42 However, that was not the case in this case. As I have said, no election was made.
43 In those circumstances, in my opinion, the action for contribution brought by the appellant must fail.
44 I agree with the answer proposed by Wicks J.
WICKS J
45 This is an appeal against an order made in this Court on 14 May 1998 with respect to certain preliminary points arising in the action.
46 The plaintiff has issued proceedings for damages for personal injury suffered by him arising out of a motor accident in which he was involved on 19 November 1993.
47 The accident in question took place at the junction of Long Plains Road and Port Wakefield Road, Windsor. At the time, the plaintiff was a passenger in a van being driven by Mr Andrew Gee. Both Mr Gee and the plaintiff were employees of the Australian National Railways Commission ("ANRC") and the accident occurred in the course of their employment.
48 The other vehicle involved in the accident was a truck driven by Mr Nicholas Coomblas. He was an employee of MacMahon Construction Pty Ltd ("MacMahon") and the accident occurred in the course of his employment.
49 The Statement of Claim in the action alleged that MacMahon and the State of South Australia ("the State") had entered into an agreement for road construction work to be performed by MacMahon.
50 The proceedings brought by the plaintiff were against Mr Coomblas, his employer MacMahon and the State.
51 It is alleged in the pleadings that Mr Coomblas was negligent in his driving of the truck and that the State was negligent in that, through the agency of the Commissioner of Highways, it failed to place appropriate warning signs at the junction. MacMahon was also alleged to have been negligent in that it failed to erect adequate warning signs at the junction.
52 The plaintiff claimed compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Compensation Act") and on 19 December 1997, received compensation of $114,244.99 from Comcare, the administering authority, pursuant to s24 and s27 of that Act.
53 Various third party and contribution proceedings were commenced by the three defendants to the action. Mr Coomblas issued third party notices against Mr Gee and ANRC, his employer, claiming contribution or indemnity from them with respect to any liability which may be established in the action by the plaintiff against Mr Coomblas.
54 As a defence in the third party proceedings, Mr Gee and ANRC have pleaded that Mr Coomblas is barred from seeking indemnity or contribution from either of them by reason of s44 of the Compensation Act.
55 On 1 December 1997, a Master of this Court ordered that the point of law as to whether the claims for indemnity or contribution made against Mr Gee and ANRC are barred pursuant to s44 be tried as a preliminary issue pursuant to r75.02. On 14 May 1998, a Judge of this Court determined the point of law as follows:
"The claims made against the second and third third parties are either barred by the operation of s44(1) of the Compensation Act 1988 (Cth) or, on a proper construction of ss25 and 26 of the Wrongs Act 1936, are not maintainable."
56 Mr Coomblas appealed against the determination to the Full Court. The respondents in the appeal were Mr Gee and ANRC.
57 The Compensation Act establishes a scheme for the rehabilitation of, and the payment of compensation to, Commonwealth employees. The scheme is administered by Comcare, whose role it is to assess and pay claims for compensation in accordance with the Act. Compensation is payable in respect of an injury suffered by an employee "arising out of, or in the course of, the employee’s employment ...": s4. Provision is made in the Compensation Act for the payment of compensation for injuries, resulting in permanent impairment.
58 Part IV is entitled "Liabilities arising apart from this Act". Part IV encompasses s42-s52 inclusive. I set out the text of s44 and s45 as follows:
(1) Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority, a licensed corporation or an employee in respect of:
(a) an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth, Commonwealth authority or licensed corporation would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or
(b) the loss of, or damage to, property used by an employee resulting from such an injury;
whether that injury, loss or damage occurred before or after the commencement of this section.
Subsection (1) does not apply in relation to an action or proceeding instituted before the commencement of this section.
45. (1) Where:
(a) compensation is payable under section 24, 25 or 27 in respect of an injury to an employee; and
(b) the Commonwealth, a Commonwealth authority, a licensed corporation or another employee would, but for subsection 44(1), be liable for damages for any non-economic loss suffered by the employee as a result of the injury;
the employee may, at any time before an amount of compensation is paid to the employee under section 24, 25 or 27 in respect of that injury, elect in writing to institute an action or proceeding against the Commonwealth, the Commonwealth authority, the licensed corporation or other employee for damages for that non-economic loss.
(2) Where an employee makes an election:
(a) subsection 44(1) does not apply in relation to an action or other proceeding subsequently instituted by the employee against the Commonwealth, the Commonwealth authority, the licensed corporation or the other employee for damages for the non-economic loss to which the election relates; and
(b) compensation is not payable after the date of the election under section 24, 25 or 27 in respect of the injury.
An election is irrevocable.
In any action or proceeding instituted as a result of an election made by an employee, the court shall not award the employee damages of an amount exceeding $110,000 for any non-economic loss suffered by the employee."
59 Section 25 of the Wrongs Act 1936 deals with the question of contribution between tort-feasors in respect of the same damage. The relevant provision is as follows:
"25.(1) Where damage is suffered by any person as a result of a tort (whether a crime or not) -
...
(c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would at any time have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise ..."
60 Section 26 deals with the extent of any contribution and is as follows:
"26. In any proceedings for contribution under the last preceding section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable, having regard to the extent of that person’s responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity."
61 The question in issue therefore is whether Mr Coomblas is entitled to recover contribution from Mr Gee and ANRC or whether s44 of the Compensation Act acts in whole or in part as a bar to such a claim.
62 Were it not for s44 of the Compensation Act, the claim by Mr Coomblas for contribution on a third party notice against Mr Gee and ANRC would be maintainable and contribution in respect of that claim would be recoverable (assuming there to be negligence on their part).
63 With one qualification to which I will refer later, s44 provides that "an action or other proceeding for damages" will not lie against a Commonwealth authority (in this case, ANRC) or its employee (in this case, Mr Gee) in respect of an injury sustained by an employee of a Commonwealth authority (in this case, Mr Ricciotti) in the course of his employment, being an injury in respect of which ANRC and Mr Gee would otherwise be liable for damages, whether vicariously or otherwise. But for s44, the plaintiff could make a claim against Mr Gee or ANRC.
64 It has been held that s44 does more than bar a remedy; it extinguishes the cause of action itself: Georgiadis v Australian and Overseas Telecommunications Commission (1993-1994) 179 CLR 297 per Mason CJ and Deane and Gaudron JJ at 306. That case was concerned with a claim for damages by an employee of a Commonwealth Authority against his employer. That case was clearly "an action or other proceeding for damages" within the meaning of s44.
65 On the other hand, an action under s25(1)(c) of the Wrongs Act for contribution has been held not to be an action or other proceeding for damages: Unsworth v Commissioner for Railways (1958) 101 CLR 73 at 87 and 91. It is a statutory right of action for contribution.
66 In my view, an action for contribution under s25 of the Wrongs Act is not "an action or other proceeding for damages" within the meaning of s44 of the Compensation Act. Section 44 of the Compensation Act does not therefore directly operate to bar or extinguish the claim for contribution in the present case. It is, however, a bar to a direct action for damages brought against Mr Gee and ANRC by the plaintiff should he have chosen to take such a course.
67 Unsworth v Commissioner for Railways (supra) involved a widow’s action for damages brought against the Commissioner for Railways and the driver of a motor vehicle in which her husband was a passenger. The plaintiff’s husband was killed when the motor vehicle in which he was travelling collided at night with unlit railway trucks stationary at a crossing.
68 The jury brought in a verdict against both defendants for $5,615. By statute, the Commissioner’s liability was limited to $2,000. Under s5 of The Law Reform (Tort-feasors, Contributory Negligence and Division of Chattels) Act 1952 (Qld), a provision corresponding to s25 of the Wrongs Act, liability was apportioned as to 85% against the Commissioner and 15% against the driver of the vehicle. In assessing liability of the Commissioner for the loss, the damages were apportioned in the first instance. As the amount for which the Commissioner was liable under the apportionment exceeded $2,000, the Commissioner’s liability was limited to that amount.
69 The following passage is taken from the judgment of Fullagar J in Unsworth’s case:
"We have still to turn to s5(c) of The Law Reform Act to see what the appellant’s rights against the commissioner are. His right is to recover ‘contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage’. Mr Mylne said that the commissioner was another tortfeasor who was liable with Unsworth for the wrongful causing of the death of King, and that s5(c) had no bearing on the quantum of the contribution recoverable. But it is, in my opinion, clearly implicit in s5(c) that the amount of the liability to pay contribution cannot be greater than the amount of the primary liability. Contribution can only be recovered from one who ‘is, or would if sued have been, liable’ to pay damages to the person injured. A person cannot be said to be so liable except to the extent to which damages can be recovered from him at law. In any case, I do not think that it could be lawfully held to be ‘just and equitable’ within the meaning of s6 of The Law Reform Act that a person should be ordered to pay by way of contribution to another tortfeasor a larger amount than he could be compelled to pay to the person injured."
70 The words of par25(1)(c) differ from the corresponding provision in the Queensland legislation in one respect and that is the passage ‘who is, or would if sued have been liable’ in the Queensland legislation has been replaced in South Australia by the passage ‘who is, or would at any time have been liable’. In argument, Mr Walsh QC sought to make something of this difference but in my view his argument in that respect fails. I do not think that the words "if sued" in the Queensland legislation are a necessary element of the reasoning adopted by Fullagar J in the passage quoted above.
71 In the present case, contribution could only be recovered from one who is or would at any time have been liable for the injury sustained by the plaintiff. Neither Mr Gee nor ANRC were so liable due to the bar under s44 of the Compensation Act.
72 The last sentence of the passage from the judgment of Fullagar J quoted above is important. He said that it was not just and equitable within the meaning of an equivalent provision to s26 of the Wrongs Act in this State that a person would be ordered to pay contribution to another tort-feasor in a larger amount than he could be compelled to pay to the person injured. The same reasoning would apply in a case such as the present where it is not a question of paying more compensation but rather a question of whether any compensation should be paid at all.
73 Section 44 of the Compensation Act does not operate as a bar to an action or other proceeding for damages in all circumstances. The section is subject to s45 which enables an employee to elect to take proceedings against a Commonwealth authority or an employee of such an authority for damages for non-economic loss provided the election is made before the employee receives compensation under s24, s25 or s27 of the Compensation Act for permanent impairment. In the plaintiff’s case the election was not exercised and cannot now be exercised because the plaintiff has received his compensation for permanent impairment under the sections to which I have referred. See subs45(1) and generally Commonwealth v Flaviano (1996) 40 NSWLR 199 at 204.
74 In the present case, s44 of the Compensation Act would operate as an extinguishment of any claim by the plaintiff against Mr Gee and ANRC. It follows that on the principle enunciated by Fullagar J as referred to earlier in these reasons, it would not be just and equitable that they should be required to pay contribution to Mr Coomblas in respect of the plaintiff’s claim when the primary claim is barred by s44 of the Compensation Act.
75 Accordingly, I would uphold the conclusion arrived at by the learned Judge. I would allow the appeal but only for the purpose of varying the answer to the preliminary point of law to read as follows:
"On a proper construction of ss25 and 26 of the Wrongs Act 1936 and s44 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), the claims made by the appellant against the respondents on the third party notices dated 28 August 1997 are not maintainable."
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