Morgan v State of Queensland

[2005] NSWSC 539

CITATION:	Morgan v State of Queensland & Ors [2005] NSWSC 539
HEARING DATE(S):	21 March 2005
JUDGMENT DATE :	8 June 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Harrison
DECISION:	(1) The second cross claim so far as it pleads causes of action against the second cross defendant is dismissed; (2) The second cross claimants (Willis) are to pay the second cross defendant's (Cuylenburg's) costs as agreed or assessed.

CATCHWORDS:

Strike out proceedings as against second defendant - ss 44 & 45 Safety Rehabilitation & Compensation Act 1988 (Cth) - cross claim

LEGISLATION CITED:

Defence Act 1903 (Cth) - s 62
Law Reform Act (Qld) - s 6
Law Reform (Miscellaneous Provisions) Act 1946 (NSW) - s 5
Safety Rehabilitation and Compensation Act 1988 (Cth) - ss 44 & 45
Supreme Court Rules 1970 (NSW) - Part 8 r 9, Part 15 r 26

CASES CITED:

Australia Pacific Group Limited (in Liq) v Airservices Australia (2000) 203 CLR 136
Building and Civil Engineering Holdings Scheme Management Ltd v Post Office [1966] 1 QB 247
Contribution Fund of Australia v Hunt (182) 44 ALR 365
Derbyshire Building Co Pty Ltd v Becker (1962) 107 CLR 633
Gemmell Power Farming Co Ltd v Nies (1935) 35 SR (NSW) 469
G Scammell & Nephew Ltd v HC & JG Ouston [1941] AC 251
Harding v Lithgow Municipal Council (1937) 57 CLR 186
Morgan v State of Queensland & Ors [2004] NSWSC 565
Pearce v Crown Equipment Pty Ltd (unreported, Gallop J ACTSC, 26.5.95)
Winford v Permanent Nominees (Aust) Ltd [2002] ACTSC 21
Woolworths Ltd v Kelly (1991) 22 NSWLR 189

PARTIES:

Cherinda Evangeline Morgan
(Plaintiff)

State of Queensland
(First Defendant)

Robert Joseph Willis
(Fourth Defendant)

Fay Rose Willis
(Fifth Defendant)

Alan Willis
(Sixth Defendant)

Jennifer Jane Willis
(Seventh Defendant)

Mervyn Ernest Hunter Cuylenburg
(Second Cross Defendant)

FILE NUMBER(S):

SC 20282/2003

COUNSEL:

Mr P A Regattieri
(Second Cross Defendant)

Mr N E Chen
(Fourth to Seventh Defendants)

SOLICITORS:

Jones Staff & Co
(Second Cross Defendant)

Henry Davis York
(Fourth to Seventh Defendants)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

WEDNESDAY, 8 JUNE 2005

20282/2003 - CHERINDA EVANGELINE MORGAN v
STATE OF QUEENSLAND & ORS

JUDGMENT (Strike out proceedings as against
second defendant – ss 44 & 45 Safety
Rehabilitation & Compensation Act 1988 (Cth) – cross claim)

1 MASTER: By notice of motion filed 17 January 2005 the second cross defendant to the second cross claim seeks an order that the second cross claim as against him be struck out pursuant to Part 15 r 26 of the Supreme Court Rules 1970 (NSW) (SCR) or in the alternative that the second cross claim as against him be dismissed pursuant to Part 13 r 5 of the SCR or in the alternative that the second cross defendant to the second cross claim cease to be a party to the proceedings pursuant to Part 8 r 9 of the SCR. The second cross defendant to the second cross claim is Mervyn Ernest Hunter Cuylenburg. He relied on his affidavit affirmed 16 December 2004 and the affidavit of Vicki Hutchinson affirmed 13 January 2005.

2 The plaintiff is Cherdina Evangeline Morgan. The first defendant is the State of Queensland. The fourth defendant is Robert Joseph Willis. The fifth defendant is Fay Rose Willis. The sixth defendant is Alan Willis. The seventh defendant is Jennifer Jane Willis. The Willis’s are the second cross claimants) (the Willis’s). The eighth defendant is Stuart Michael Donald (Donald). The plaintiff has discontinued proceedings against the third, ninth and tenth defendants. In this judgment I shall refer to the parties by name.

3 The main issue raised in this motion is whether Willis can maintain an action when Morgan has not made an election in writing to proceeding against Cuylenburg. Part 8 r 9 of the SCR provides for the removal of a party where they have been improperly or unnecessarily joined, or have ceased to be a proper or necessary party. Whether or not the second defendant is removed will depend upon the outcome of the main issue.

Background

4 On arrival at Bullimba after an 18-hour road trip, Cuylenburg decided to convey the plaintiff and her group in a Land Cruiser utility, registration number 325-ADZ (the utility). The utility was owned and controlled by the fourth and/or fifth and/or sixth and/or seventh defendant (the Willis’s). Donald was the driver of the utility. The tenth defendant was attached to the ACC as the safety officer. The plaintiff was a cadet occupying the rear tray of the utility together with other cadets and a substantial amount of luggage. The Coroner’s findings were that the driver of the motor vehicle lost control of the vehicle prior to it rolling over and causing the fatal injuries to cadet, Clare Stokes. In attempting to avoid a gate in the fence line that traversed the vehicle’s track, the driver of the utility executed a right hand turn that caused the motor vehicle to tip over.

5 The coroner found that a number of circumstances contributed to the fatal incident including: the un-roadworthiness of the subject motor vehicle; it being grossly overloaded with stores and cadet personnel; it being driven at an unsafe speed; it being driven at that unsafe speed in less than ideal circumstances having regard to poor natural lighting which in the circumstances was exacerbated by only one headlamp on the motor vehicle being operative; the loose dirt road surface upon which it was being driven and the failure of the driver to heed the protestations by a fellow officer in the cabin of the motor vehicle and cadets on the vehicle’s tray to stop the motor vehicle because of their safety concerns. Additionally, the driver’s prior notice of the motor vehicle’s poor manoeuvrability well before the incident occurred and the fact that he was satisfied that there was a reasonable inference available to a jury to conclude that both the owner of the vehicle, David Willis, and the officer-in-charge of the exercise, Cuylenburg, knew of the unsuitability of the motor vehicle for its intended purpose; the sheer potential for harm given the obvious mechanical defects of that motor vehicle; its severe overloading and in the case of Cuylenburg, his knowledge that a subordinate officer was allowed to drive the vehicle having had partaken of alcohol. There is a statement to the effect that Cuylenburg also partook of alcohol. As a result, the second defendant, Stuart Michael Donald and David Willis were charged with unlawful killing. The charge was discontinued as against Cuylenburg.

6 On 30 June 2004 I delivered judgment and dismissed the statement of claim as against Cuylenburg. In that decision I referred to Parts 13 r 5 and 15 r 26 of SCR and the law which I shall not repeat here. Now Cuylenburg seeks that the Willis’s cross claim against him be dismissed on essentially the same grounds.

The statutory provisions

7 To understand the arguments raised it is necessary to once again reproduce ss 44 and 45 of the Safety Rehabilitation and Compensation Act 1988 (Cth).

8 They read:

“44 Action for damages not to lie against Commonwealth etc. in certain cases

(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.


(2) Subsection (1) does not apply in relation to an action or proceeding instituted before the commencement of this section.

(3) …

(4) …

45 Actions for damages—election by employees

(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.


(3) An election is irrevocable.

(4) 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.

(5) The election by an employee under this section to institute an action or proceeding against the Commonwealth, a Commonwealth authority, a licensed corporation or another employee does not prevent the employee, before, or instead of, formally instituting such action or proceeding, doing any other thing that constitutes an action for non-economic loss.”

9 So, an action for damages does not lie against the Commonwealth or its employee for the injury sustained by the plaintiff in the course of her employment if the Commonwealth would, but for the subsection, be liable, vicariously or otherwise for damages.

10 Cuylenburg submitted that no election in writing was given by Morgan (the plaintiff) to Cuylenburg before she commenced proceedings for her claim for economic loss so Cuylenburg as second defendant cannot be sued. On 30 June 2004 in Morgan v State of Queensland & Ors [2004] NSWSC 565 Morgan’s claim against Cuylenburg was dismissed. Cuylenburg submitted that the cross claim brought against him should be struck out for similar reasons.

11 Willis submitted that s 44(1) is to be construed to include an additional requirement that the liability of an employee of the Commonwealth must arise “in the course of his or her employment”. The legislation should be read in this way according to Willis so that it avoids an unexpected, unjust or unintended result. By way of example assume the plaintiff fell, in the course of her employment, at Cuylenberg’s residence collecting a vehicle and Cuylenburg’s liability arose by virtue of his occupation ownership of the premises. According to Willis, if s 44 did not have the requirement that the liability arose in the course of his employment then he could plead s 44 as a bar and the plaintiff would be restricted to claiming (assuming an election was made) damages for non economic loss. The words in s 44(1) are clear. They should not be read so as to include an additional qualification namely that the employee of the Commonwealth must be in the course of his/her employment. It is my view that these additional words cannot be imputed into s 44(1) and this argument is hopeless.

12 Even though Cuylenburg has deposed that the exercise carried out by him was within the scope of his employment, I am still prepared, for the purpose of this application, to adhere to what I said at paragraph [29] of my earlier judgment. That is, in the circumstances of this case, namely the drivers’ alleged consumption of alcohol and the instruction to the cadets to be conveyed in an unroadworthy and severely overloaded vehicle, it is at least arguable that the second defendant was on a “frolic of his own” and the Commonwealth would not be held to be vicariously liable for his actions. It is also possible that this court may find that the Commonwealth does not owe the plaintiff a non-delegable duty of care in these circumstances nor a general duty of care. Thus it is at least arguable that s 44 of the Act does not apply.

13 It is common ground that the plaintiff is an employee of the Commonwealth pursuant to s 5(6) of the Act. But Willis submitted that in the circumstances outlined above, Cuylenburg could not be considered a deemed employee in accordance with s 5(6) of the Act.

14 Cuylenburg was an Officer commanding in the Australian Cadet Corp (ACC) having joined in January 1993 as a Second Lieutenant. On 4 September 1993 he was formally appointed at the rank of Lieutenant. In March 1994 he attended an Officer of Cadets advanced training course for one week which was run by the Australian Army. In July 1995, he was appointed acting Officer Commanding. On 17 September 1995 he was promoted to the rank of Captain. On 1 January 1996 he was appointed Officer Commanding. During the financial year 1997 Cuylenburg was employed by the Department of Defence. On 1 January 1998 he was promoted to Major.

15 All activities in which Cuylenburg was involved in with the ACC had to be approved by the Senior Staff Officer of Cadets who was a member of the Australian Defence Force or Staff Officer 1 who was a regular Army Officer. Cuylenburg took orders from both of these people. Cuylenburg had no authority to undertake any activities without their prior approval.

16 Cuylenburg deposed that the exercise in which the plaintiff was alleged to have been injured was a legitimate and approved exercise carried out by him within the scope of his employment with the Department of Defence. This exercise was carried out annually and had been approved by the Department of Defence. The Department of Defence has the control of the ACC.

17 Section 5(6) of the Act reads:

“The Minister may, by notice in writing, declare:
(a) that persons specified in the notice, being persons who engage in activities or perform acts:
(i) at the request or direction, for the benefit, or under a requirement made by or under a law, of the Commonwealth; or
(ii) at the request or direction, or for the benefit, of a Commonwealth authority or a licensed corporation;
shall, for the purposes of this Act, be taken to be employed by the Commonwealth, or by that authority or corporation, as the case may be; and
(b) that the employment of the person shall, for those purposes, be taken to be constituted by the performance by the person of such acts as are specified in the notice;
and such a declaration shall have effect accordingly.”

18 By Gazette No S365 of 30 November 1998 the then Minister of State for Social Security by notice in writing declared that the class of persons who are members of the ACC established under s 62 of the Defence Act 1903 (Cth) are for the purpose of subsection 5(6) of the Act, persons to be included as employees. Employment is declared to be constituted by an act performed in connection with the activities of the ACC. It may be arguable that the acts performed by Cuylenburg were not acts performed in connection with the activities of the ACC. Acts such as allowing an intoxicated subordinate to drive an overloaded motor vehicle with obvious mechanical defects may not be considered as acts which are performed in connection with the activities of the ACC. It may be arguable that Cuylenburg’s actions fell outside those covered in the Gazette.

The pleading by Willis against Cuylenburg in the second cross claim between the Willis’s (Willis)

19 Is the claim by Willis against Cuylenburg, in substance, one of entitlement to be indemnified by him, or contribution in respect of any liability they (Willis) may be found to have in respect of the plaintiff’s claim? Or is the claim against Cuylenburg, in substance, brought in respect of other rights? Or is the cross claim brought in respect of acts or omissions on the part of Cuylenburg which were wrongful against Willis? To answer these questions, it is necessary to examine the cross claim in more detail. If the cross claim is in substance a claim for contribution then it is caught by the provisions of s 45. At the outset, the second cross claim (2XC) pleads at [4] that Willis seeks damages, contribution and/or indemnity pursuant to s 6 of the Law Reform Act (Qld) and s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). The loss and damage are pleaded as being the expenditure, liability and incurrence of legal costs in investigating and defending the claim [22(a)]. Paragraph [22(b)] refers to an award of damages to the plaintiff against the Willis’s for which they should be indemnified.

20 Willis pleads against Cuylenburg causes of action styled bailment, negligence and breach of contractual licence. It is common ground that there was an agreement between Willis (per David Allan Willis) and Cuylenburg whereby Willis offered the use of an unregistered 1994 Toyota Landcruiser with a wide tray back to Cuylenburg on certain conditions, one of the conditions being that the utility would be driven slowly. Willis pleads that there were two additional conditions firstly, that the utility had no brakes; and secondly, that the gears would have to be used to brake the vehicle. The additional conditions are disputed by Cuylenburg but for the purposes of this application the case will be taken at its highest so they will be taken into account.

(1) Breach of bailment

21 The cross claim pleads that the loss and damage of the plaintiff were caused or contributed by the breach of bailment, specifically:

(a) in directing Donald to drive the utility when it was known to Cuylenburg that Donald had consumed a significant amount of alcohol; and

(b) in failing to advise Donald as to the conditions of bailment. The Willis’s plead that they have suffered and will continue to suffer, loss and damage as a result of the breach of the bailment or the breach of duty of care of Cuylenburg [paragraphs 20 and 21, 2XC].

22 Cuylenburg submitted that Willis’s claim for breach of bailment can only be in relation to goods and not personal injury. Willis referred to a passage in ‘Bailment’ (1991) Law Book Company Ltd, 2nd Ed at 78 where N E Palmer, the learned author stated that:

“When the bailor complains of negligence in the custody or carrying of goods, he or she would seem to enjoy alternative remedies in tort or contract and the level of damages will be that appropriate to the form of action he or she has chosen.”

23 In support of this proposition the learned author referred to Building and Civil Engineering Holdings Scheme Management Ltd v Post Office [1966] 1 QB 247 at 261-262 where Lord Denning stated:

“At common law in a case of bailment, the general principle is resititutio in integrum, which means that the party damnified is entitled to such a sum of money as will put in as good a position as if the goods that not been lost or damaged. This is subject, however, to the qualification that the damages must not be too remote, i.e., they must be such damages as flow directly and in the usual course of things from the loss or damage, see The Argentino [(1888) 13 P.D. 191 at 196, 200]. If the party damnified suffers damage of a special kind, he is entitled to recover it, subject to the qualification that the damages must not exceed such damages as would be produced in the ordinary course of things by the act complained of, see Cory v Thomas Ironworks [1868) L.R. 3 Q.B. 188]”

24 Thus, Willis submitted that the damages, being personal injuries suffered by the plaintiff, are not too remote: that is, they flow directly and in the usual course of things from the loss or damage.

25 In Derbyshire Building Co Pty Ltd v Becker (1962) 107 CLR 633 McTiernan J quoted with approval Jordan CJ in Gemmell Power Farming Co Ltd v Nies (1935) 35 SR (NSW) 469:

“[W]hen one person, for value, supplies a chattel to another to be used for an agreed or stated purpose…he impliedly promises, in the absence of some provision to the contrary, that it is reasonably fit for such use.”

26 In the present case the bailment was not for value. Further if this test was to be applied in the present case it would still not assist. The utility was provided on the basis that it had no brakes and gears would need to be used in lieu of the brakes. The utility was not reasonably fit for such use.

27 The texts Fleming’s ‘The Law of Torts’ 9th Edition and Trindade and Cane’s ‘The Law of Torts in Australia’ 3rd Edition do not acknowledge the possibility that an action in bailment extends to cover personal injuries caused by defective goods the subject of a bailment.

28 I remind myself that, as this is a summary judgment application, the court should be particularly astute not to risk stifling the development of the law. As Master Allen (as he then was) observed in Contribution Fund of Australia v Hunt (1982) 44 ALR 365 at 373-374:

“One cannot predict, with firm assurance, what the future holds as the final formulation of the new development.”

29 Nevertheless, even bearing this quote above in mind it is unlikely that damages being personal injuries suffered by the plaintiff are too remote. Further, the bailment was not for value. This claim is therefore hopeless.

(2) Negligence

30 Cuylenburg characterises the second count in the cross claim as being one of contribution, or alternatively if it is not characterised as a claim for contribution, then it does not disclose a reasonable cause of action.

31 It is my view that Willis’ claim in negligence is in essence a claim for contribution. In Austral Pacific Group Limited (in Liq) v Airservices Australia (2000) 203 CLR 136 (Austral), Austral was unsuccessful in an attempt to obtain contribution from Airservices as a third party. The High Court held that fatal to Austral’s claim was the original plaintiff’s failure to make an election to initiate proceedings against the Commonwealth pursuant to s 45 of the Act. By this omission the requirement under s 44(1)(a) “operated to deny from the outset the existence of a cause of action in respect of those relevant events” against Airservices. Section 44 was held to go to ““the validity of the title to enforce the liability” not merely “to the mode of enforcing it, or the fulfilment of a preliminary procedural condition”.” - Gleeson CJ, Gummow and Hayne JJ in Austral quoting with approval Dixon J in Harding v Lithgow Municipal Council (1937) 57 CLR 186. Gleeson GJ, Gummow and Hayne JJ concluded at [35] that Airservices “at no time has been a tortfeasor who would, if sued by the plaintiff, have been liable as a joint tortfeasor in respect of the same damage as Austral Pacific”.

32 The right to contribution is set out in the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). Section 5(1)(a) sets the threshold for making out a prima facie claim in contribution:

“(1) Where damage is suffered by any person as a result of a tort …:

(a) judgment recovered against any tort-feasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tort-feasor in respect of the same damage…”

33 The threshold is reached where the damage the subject of a claim by B against C is the “same damage” previously recovered by A from B. The threshold is satisfied in the present case as the damage the subject of the claim by Willis against Cuylenburg is the “same damage” as that which the original plaintiff recovered from Willis. Section 44(1) is activated following the failure of the original plaintiff Morgan to make a s 45 election. Willis’ claim in negligence is in essence a claim for contribution, and that being so, is untenable.

34 However, Willis referred to two ACT Supreme Court decisions to support his submission that s 45 does not apply here, namely Pearce v Crown Equipment Pty Ltd (unreported, Gallop J ACTSC, 26.5.95) (Pearce) and Winford v Permanent Nominees (Aust) Ltd [2002] ACTSC 21 (Winford). Pearce was decided prior to Austral.

35 In Pearce the plaintiff was injured in an accident which occurred in the course of the plaintiff’s employment. The plaintiff’s cause of action was pleaded in negligence. The defendant delivered a third party notice to a third party. The third party filed a defence to the third party claim denying the defendant’s entitlement to damages and pleading s 44 (1) of the Safety Rehabilitation and Compensation Act 1988 prevented an action or other proceedings for damages in respect of injury to the plaintiff.

36 Gallop J stated:

“I am in no doubt that the defendant’s claim for damages for breach of contract against the third party is an action or other proceeding in respect of an injury sustained by the plaintiff in the course of his employment within the meaning of s44 (1) of the Act. The cause of action is in contract, but that makes no difference to the fact that it is an action or other proceeding for damages in respect of an injury. (p6)

The words ‘in respect of’ have a very wide meaning. Indeed, they have a chameleon-like quality in that they commonly reflect the context in which they appear” (Technical Products Pty Ltd v State Government Insurance office (Q) (1989) 167 CLR 45 at 47). (p6)
Giving the words a wide meaning, it is appropriate to identify the defendant’s claim for damages for breach of contract against a third party as an action or other proceeding in respect of an injury sustained by the plaintiff in the course of his employment within the meaning of s44 (1) of the Act. The defendant’s claim is referable to the plaintiff’s injury and the damages sought are the same as what the plaintiff may recover in his action against the defendant. (p7)
It follows that I reject the submission on behalf of the defendant that its claim against the third party is in respect of breach of contract and not in respect of an injury sustained by the plaintiff”. (p7)

37 Thus, Gallop J characterised the defendant’s claim for breach of contract against a third party as being an action or proceedings in respect of an injury sustained by the plaintiff in the course of his employment and therefore s 44(1) was applicable. This does not assist Willis.

38 In Winford the plaintiff was injured in the course of her employment. The issue was whether or not to set aside a third party notice issued by the defendant. The relevant third party claimed that the plaintiff was prevented from suing it because of s 44 of the Act. The defendant relied upon a contractual indemnity in the lease between it and the relevant third party.

“It is accepted that it would be at least arguable that the First Third Party was in breach of its duty of care towards the Plaintiff and, but for s44 SRC Act, the Plaintiff could maintain an action against the First Third Party. [12]
The result is that the effect of the contractual indemnity is not excluded or qualified, as between the lessor and the lessee by the terms of s44 of the SRA Act. The liability to indemnify, at least, in part, the Defendant flows from the terms of that indemnity clause not the tortious injury to the Plaintiff, though it is that injury which has “triggered” that contractual liability. [66]
Nor can the “policy of the Act” be called in aid. The disadvantage sustained by the First Third Party arises out of its freely undertaken contractual bargain with the Defendant. Had it wished to avoid the indirect assumption of part of the damages claimable by the Plaintiff from the Defendant, it could have so agreed. It cannot now redefine its past bargain”. [77]

39 The facts in Winford are distinguishable because it was held that liability arises from a specific contractual indemnity clause contained in the lease between lessor and lessee. It is my view, that the negligence claim made by Willis against Cuylenburg is caught by the provisions of s 45 of the Act.

(3) Claim for breach of contractual licence

40 Alternatively, the Willis’s allege that the use of Bulimba Station by Cuylenburg was pursuant to a licence to use the property in consideration of the public benefit afforded to the cross claimants, and its members, as members of the public [paragraphs 23 and 24, 2XC].

41 A licence is a permit to do something that would otherwise, without the permit, be unlawful, while a contractual licence is a licence to occupy land given on terms contained in a contract [The Australian Encyclopaedic Legal Dictionary].

42 The general rule is that consideration must be sufficient but need not be adequate: Carter and Hartland ‘Contract Law in Australia’ 4th Edition, discussed in Woolworths Ltd v Kelly (1991) 22 NSWLR 189 at 193.

43 In G Scammell & Nephew Ltd v HC & JG Ouston [1941] AC 251 at 268 Lord Wright said:

[I]t is a necessary requirement that an agreement in order to be binding must be sufficiently definite to enable the court to give it a practical meaning. Its terms must be so definite, or capable of being made definite without further agreement of the parties, that the promises and performances to be rendered by each part are reasonably certain.

44 The submission must fail because the consideration of ‘public benefit’ lacks sufficient definition to enable the Court to give it practical meaning. The pleading that a contractual licence existed between Willis and Cuylenburg is hopeless and should be struck out. Even if I am wrong in my analysis of the cause of action brought by virtue of the cross claim and they are viable, the end result is that Willis is seeking indemnity or contribution from Cuylenburg. That being so the claims brought are subject to the provisions of s 45 of the Act.

Election

45 Willis’s last submission is that evidence adduced in support of this application does not prove that an election has not been made by the plaintiff at the relevant time. An election must be made in writing before proceedings are commenced. However, in the prior judgment at paragraph [30] I stated that Morgan (the plaintiff) has not made an election in respect of the pursuit of her rights against the Commonwealth. Her election had to be made prior to her commencing proceedings for non-economic loss. Mr Cuylenburg has never been served with a notice of election by Morgan. Willis submitted that service is not a requirement of s 45. The plaintiff has not made an election. This submission fails. The result is, the second cross claim as against the second cross defendant is dismissed.

46 Costs are discretionary. Costs normally follow the event. The second cross claimants are to pay the second cross defendant’s costs as agreed or assessed.

The court orders:

(1) The second cross claim so far as it pleads causes of action against the second cross defendant is dismissed.

(2) The second cross claimants (Willis) are to pay the second cross defendant’s (Cuylenburg’s) costs as agreed or assessed.
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