Morgan v State of Queensland

[2004] NSWSC 565

CITATION:

Morgan v State of Queensland & Ors [2004] NSWSC 565

HEARING DATE(S):

24 May 2004

JUDGMENT DATE:

30 June 2004

JURISDICTION:

Common Law

JUDGMENT OF:

Master Harrison

DECISION:

(1) The plantiff's statement of claim as pleaded against the second defendant is dismissed.; (2) The plaintiff is to pay the second defendant's costs.

CATCHWORDS:

Strike out proceedings as against second defendant - ss 44 & 45 Safety Rehabilitation & Compensatiuon Act 1958 (Cth)

LEGISLATION CITED:

Defence Act 1903 (Cth) - s 62
Law Reform Act 1995 (Qld)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW) - s 5
Supreme Court Rules 1970 (NSW) Part 13 r 5; Part 15 r 26
Safety Rehabilitation and Compensation Act 1988 (Cth) - ss 44 & 45

CASES CITED:

Air Services Australia v Zarb (unreported, NSWCA 26 August 1998)
Auckland Workingmen's Club and Mechanics Institute v Rennie [1976] 1 NZLR 278
Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136; 173 ALR 619
Brooke v Bool [1928] 2 KB 578
Canterbury Bankstown Rugby League Football Club Ltd v Rogers (1993) Aust Torts Report (1993) 81-246
Carpenters' Investment Trading Co Ltd v Commonwealth of Australia (1952) 69 WN (NSW) 175
Commonwealth of Australia v Flaviano (12996) 40 NSWLR 199
Commonwealth of Australia v Grogan [1997] QCA 286
Dalton v Angus (1881) App Cas 740
Deatons Pty Limited v Flew (1949) 79 CLR 370
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Dougherty v Chandler (1946) 46 SR (NSW) 370; 63 WN (NSW) 183
General Engineering Services v Kinston Corporation [1989] 1 WLR 69
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Gibson v Parkes District Hospital (1991) 26 NSWLR 9
Howard v State of Queensland [2000] QCA 223
Hospitals Constribution Fund of Australia v Hunt (1982) 44 ALR 365
James Hardie & Coy Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53
J F & B E Palmer Pty Ltd v Blowers and Lowe Pty Ltd (1987) 75 ALR 509
Jones v Manchester Corporation [1952] 2 QB 852; [1952] 2 All ER 125
Lackersten v Jones (1988) 92 FLR 6
NSW v Lepore & Anor (2003) 212 CLR 511; 195 ALR 412
Rouse v Squires [1973] QB 889
The Koursk [1924] All ER Rep 168
Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574; 141 ALR 1; 71 ALJR 131; (1997) Aust Torts Reports 81-412
Webster & Anor v Lampard (1993) 177 CLR 598

PARTIES :

Cherdina Evangeline Morgan
(Plaintiff)

State of Queensland
(First Defendant)

Mervyn Ernest Hunter
(Second Defendant)

FILE NUMBER(S):

SC 20282/2003

COUNSEL:

Mr P A Regattieri
(Second Defendant)

SOLICITORS:

Mr D Anderson,
Carbone Anderson
(Plaintiff)

Ms G Fuller,
Australian Government Solicitor
(First Defendant)

Ms V Hutchinson,
Jones Staff & Co
(Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

WEDNESDAY, 30 JUNE 2004

20282/2003 - CHERDINA EVANGELINE MORGAN v
STATE OF QUEENSLAND & 9 ORS

JUDGMENT (Strike out proceedings as against
second defendant – ss 44 & 45 Safety
Rehabilitation & Compensation Act 1958 (Cth))

1 MASTER: By notice of motion filed 12 February 2004, the second defendant seeks an order that the plaintiff’s statement of 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 an order that the statement of claim as against him be dismissed pursuant to Part 13 r 5 of the SCR; or alternatively he cease to be a party to the proceedings pursuant to Part 8 r 9 of the SCR. The second defendant relies on his affidavit sworn 14 May 2003 and the affidavit of Vicki Hutchinson affirmed 3 February 2004.

2 The plaintiff is Cherdina Evangeline Morgan. The first defendant is the State of Queensland. The second defendant is Mervyn Ernest Hunter Cuylenburg. 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 eighth defendant is Stuart Michael Donald. The plaintiff has discontinued proceedings against the third, ninth and tenth defendants. More importantly to these proceedings the plaintiff has also discontinued against the third defendant who was the Commonwealth of Australia.

The law in relation to summary judgment

3 Part 15 r 26 of the SCR provides:

“(1) Where a pleading -
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
(c) is otherwise an abuse of the process of the Court,
the Court may at any stage of the proceedings, on terms, order that the whole or any part of the pleading be struck out.
(2) The Court may receive evidence on the hearing of an application for an order under subrule (1).”

4 Part 13 r 5 of the SCR says:

“(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
(a) no reasonable cause of action is disclosed,
(b) the proceedings are frivolous or vexatious, or
(c) the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.”

5 In Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 the High Court held at 57 that:

“Ordinarily a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.”

6 According to their Honours, this is because:

“It would be wrong to deny a plaintiff resort to the ordinary processes of a court on the basis of a prediction made at the outset of a proceeding if that prediction is to be made simply on a preponderance of probabilities” (at 58).

7 Similarly, in Air Services Australia v Zarb (Unreported, NSWCA 26 August 1998) Rolfe AJA at 13 found it useful to remind himself of the highly demanding test imposed on a party seeking summary judgment. His Honour referred to Dey v Victorian Railways Commissioners (1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 and Webster & Anor v Lampard (1993) 177 CLR 598. I have reproduced some of the passages quoted in Zarb.

8 In General Steel Barwick CJ, who heard the application alone, stated at 130:

“Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”

9 Barwick CJ also said at 129:

“It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense’.”

10 In Webster Mason CJ, Deane and Dawson JJ reinforced the rigorous testing stating, at 602:

“The power to order summary judgment must be exercised with ‘exceptional caution’ and ‘should never be exercised unless it is clear that there is no real question to be tried.”’

11 According to Rolfe AJA in Zarb at 15-16:

“The demanding nature of the test is in no way lessened in circumstances where there are the potential for difficult factual and legal issues to arise. Rather, as the decision in Webster made clear, it is heightened: see also Wickstead & Ors v Browne (1992) 30 NSWLR 1 and Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241.”

12 Master Allen (as he then was) in Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365 at 373-374 said:

“…It is not by any means rare in the history of the development of the common law that a high appellate court, in enunciating a novel development in the law, albeit one avowedly based on a miscellany of old cases, has chosen to use general words of imprecise limits in meaning to facilitate the arrival, in later cases, of the final form of the development without the need to overrule what earlier had been stated. That being so I am of opinion that a court at first instance should be particularly astute not to risk stifling that development of the law by summarily throwing out of court actions in respect of which there is a reasonable possibility that it will be found, in the development of the law, still embryonic, that a cause of action does lie. The risk of injustice to the plaintiff, which summary termination of his claim would entail, is real. One cannot predict, with firm assurance, what the future holds as the final formulation of the new development.”

13 This passage was quoted with approval by Justice Badgery-Parker in Gibson v Parkes District Hospital (1991) 26 NSWLR 9 at 35.

14 The main issue in this case is whether the plaintiff has an action against the second defendant because she has not made an election in writing to institute proceedings against him. Also 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.

15 For the purposes of this application I have taken the plaintiff’s case at its highest.

16 The plaintiff was a student at the Cavendish Road State High School, Brisbane, Queensland (the school). The first defendant managed and operated the school. The second defendant was a Commanding Officer in the Australian Cadet Corps (ACC). The activities of the ACC were part of Cavendish Road State High School’s curriculum. On various occasions the school facilitated the plaintiff’s attendance at activities associated with the ACC. In June 1997 the ACC organised a survival camp to take place for a period of one week in the vicinity of Townsville.

17 On 19 June 1997 the plaintiff who was a cadet, attended the school and was then conveyed by the ACC, by way of mini bus, to Amberley Air Base and then by aircraft to Townsville. From Townsville the plaintiff was to fly to the vicinity of the survival camp, but arrangements were changed by the ACC for the group to travel to Bullimba by road. At this time the plaintiff was under the supervision of the second defendant. The fourth, fifth, sixth and seventh defendants were the occupiers of Bullimba Station (the property).

18 On arrival at Bullimba after an 18-hour road trip, the second defendant 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 eighth defendant 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 identified 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.

19 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, Mervyn Ernest 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 the second defendant 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 the second defendant.

20 The plaintiff alleges that the defendants were negligent and as a result she suffered severe personal injuries including a fracture to the skull and four fractured ribs.

21 The plaintiff submitted that at the time of the accident the second defendant was not acting in the course of his employment but was acting outside the scope of his employment. The plaintiff also submitted that s 44(1) of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the Act) does not refer to an employee of the Commonwealth and therefore does not apply. Further, the plaintiff submitted that in acting outside the scope of his employment, the second defendant was not acting as an employee. The second defendant submitted that the plaintiff is caught by the provisions of s 45 of the Act and as she has not made the election in writing against him, cannot maintain these proceedings. Hence the pleading in the statement of claim against him should be dismissed. Further, the second defendant submitted that he is unable to bring contribution/indemnity proceedings against the Commonwealth unless written notice is given pursuant to s 45 of the Act and that this written notice must also be given to the Commonwealth.

Safety Rehabilitation and Compensation Act 1988 (Cth)

22 It is common ground that the plaintiff is an employee of the Commonwealth pursuant to s 5(6) of the Act. 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. The second defendant also asserts that by virtue of s 5(6) he is an employee of the Commonwealth. However, the plaintiff disputes that at the time of the accident the second defendant fell within the definition of “employee”.

23 Sections 44 and 45 of the Act read as follows:

“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) …

24 Section 45 of the Act provides:

“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.”

25 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. The Commonwealth can be said to owe either a general duty of care, a non-delegable duty of care or be vicariously liable for the acts of its employee in order to be liable for damages.

26 Recently in NSW v Lepore & Anor (2003) 212 CLR 511; 195 ALR 412 the High Court reaffirmed that vicarious liability should not be extended beyond the two kinds of cases identified in Deatons Pty Limited v Flew (1949) 79 CLR 370, namely firstly, where the conduct of which complaint is made was done in the intended pursuit of the employer’s interest or the intended performance of the contract of employment; or secondly, where the conduct of which complaint made was done in the ostensible pursuit of the business or the apparent execution of the authority which the employer held out the employee as having done.

27 Further, illegal acts committed by an employee which are wholly unauthorised and inimical to the purposes of the employment are regarded as falling outside the course of employment and no vicarious liability falls upon the employer in respect of such acts – see Howard v State of Queensland [2000] QCA 223 [para 15]; Deatons; Carpenters’ Investment Trading Co Ltd v Commonwealth of Australia (1952) 69 WN (NSW) 175; Auckland Workingmen’s Club and Mechanics Institute v Rennie [1976] 1 NZLR 278; Lackersteen v Jones (1988) 92 FLR 6; General Engineering Services v Kingston Corporation [1989] 1 WLR 69; Canterbury Bankstown Rugby League Football Club Ltd v Rogers (1993) Aust Torts Report (1993) 81-246. The concept of ‘the frolic’ however, goes to the possibility of the employer being held vicariously liable for the employee rather than whether ’the frolic’ would determine classification as ‘employee’ or ‘non-employee’. As such, cases in relation to an otherwise defined employee going off on a frolic of his or her own go to liability of the employer rather than matters of classification.

28 The concept of a non-delegable duty of care traces its roots to Lord Blackburn’s statement in Dalton v Angus (1881) App Cas 740 that “a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor” – see Lepore per Gleeson CJ at 126. It is not a form of absolute duty nor can it be equated to a warranty, promise or undertaking to indemnify. If there is a non-delegable duty of care, it would be that the Commonwealth (or its employee) owes a duty to a cadet to take reasonable care to prevent harm to the cadet.

29 It 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 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.

Section 45

30 The second defendant submitted that there had been no valid election in writing served on him by the plaintiff, therefore the statement of claim is a nullity. The plaintiff has not made an election in respect of the pursuit of her rights against the Commonwealth. It follows that in respect of her injuries, at no time did she have an action or other proceeding against the Commonwealth. Any action against the Commonwealth brought by the second defendant would be seeking indemnification, or contribution by it in respect of any liability that may be found by the court to be just and equitable having regard to the extent of the Commonwealth’s responsibility for the damage alleged to be suffered by the plaintiff. Thus the claim brought against the Commonwealth is brought in pursuance of new statutory rights, namely - s 5 Law Reform (Miscellaneous Provisions) Act 1946 (NSW).

31 In Commonwealth of Australia v Flaviano (1996) 40 NSWLR 199 the Court of Appeal held that the requirements of s 45(1) are not met by conduct from which an election could be implied such as the institution of proceedings to recover damage. The effect of s 45 is to deem s 44 never to have applied in relation to an action to recover damages for non-economic loss that is instituted by the employee subsequently to the making of the election referred to in s 45(1).

32 In Commonwealth v Grogan [1997] QCA 286 the Queensland Court of Appeal held that the filing of a claim by the plaintiff for an action for damages cannot constitute election under s 45 of the Act. On an application for special leave to the High Court heard on 17 April 1998 the High Court refused to grant special leave to the plaintiff. McHugh J stated:

“The application for special leave must be refused in this case. The principle issue in the application is whether Section 45 of the Safety Rehabilitation & Compensation Act 1988 (Cth) 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 Section 45(2) indicate that the election must be made prior to commencing the action or proceeding. It is a short step to the section by the Court of Appeal in this case also received support from a decision of the New South Wales Court of Appeal in Commonwealth v Flaviano (1996) 40 NSWLR 199…”

33 Grogan and Flaviano established that an election must be made in writing before proceedings are commenced and that the filing of a statement of claim does not satisfy the requisite communication of an election in writing.

34 The second defendant submitted that s 45 of the Act covers not only the Commonwealth and the Commonwealth agencies but also employees who could be sued. The second defendant submitted that he is an employee who had been sued and the plaintiff should have served an election in writing on him so as to comply with s 45 of the Act. The second defendant submitted that he is unable to bring contribution/indemnity proceedings against the Commonwealth of Australia unless written notice is given pursuant to s 45 of the Act and referred to Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136; 173 ALR 619.

35 It would seem that the second defendant’s claim against the Commonwealth would be that he is entitled to contribution or indemnity as an employee or as a joint tortfeaser. Halsbury's Laws of Australia relevantly note that joint tortfeasors are two or more persons who together are held jointly and severally liable for the same tort. Joint liability arises because their acts have combined to produce the one damage, and those acts were intended, or in law were taken as intended, to be one act or design (see The Koursk [1924] All ER Rep 168 per Scrutton LJ; Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 and Rouse v Squires [1973] QB 889). Joint liability may arise through: vicarious liability (see Jones v Manchester Corporation [1952] 2 QB 852 at 869; [1952] 2 All ER 125 per Denning LJ); the liability of a principal for the tort of the agent (see J F & B E Palmer Pty Ltd v Blowers and Lowe Pty Ltd (1987) 75 ALR 509); the joint breach an obligation; and a tort being committed by persons taking 'concerted action to a common end' (see The Koursk [1924] All ER Rep 168 at 172 per Bankes LJ; Schumann v Abbott [1961] SASR 149 at 154-5 per Reed J; Schemmell v Pomeroy (1989) 50 SASR 450; Brooke v Bool [1928] 2 KB 578; Dougherty v Chandler (1946) 46 SR (NSW) 370; 63 WN (NSW) 183; Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574; 141 ALR 1; 71 ALJR 131; (1997) Aust Torts Reports 81-412).

36 In respect of the concept of the joint tortfeasor, the question posed in Austral was whether the Commonwealth authority was liable as a joint tortfeasor ‘in respect of the same damage’ as the manufacturer. Discussion focussed on the application of ss 6 and 7 of the Law Reform Act 1995 (Qld) (which were similar to the provisions considered by the High Court in James Hardie & Coy Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53 and the New South Wales Court of Appeal in Flaviano) given the absence of an election by the plaintiff under s 45 of the Act. As stated by Gleeson CJ, Gummow and Hayne JJ at 31-32:

“Austral Pacific contends that the expression in s 6(a) of the Contribution Act ‘who would, if sued, have been liable’ extends to a party who, if appropriate steps had been taken by the plaintiff, would be found liable and submits that the failure of the plaintiff to give a notice required by statute is an ‘irrelevant circumstance’… the election required by s 45 of the Compensation Act is more than the giving of a notice which is a condition precedent or necessary antecedent step to the maintenance of an action or the issue of initiating process. As indicated earlier in these reasons, s 44 is a provision going, to adapt the words of Dixon J in Harding v Lithgow Corp, ‘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’.”

37 Furthermore, as observed by Callinan J at 103: “No right to contribution or indemnity between joint tortfeasors existed at common law. Any foundation for such a right is entirely statutory”. In dismissing the appeal Austral the High Court held that it was essential that notice be given to the Commonwealth authority. As aptly stated by Callinan J at 109-110:

“In this case an event essential to the creation of a liability in the respondent Commonwealth Authority has simply not happened… the circumstances alone of the plaintiff’s injuries in February 1994 did not give rise to a right of action against the respondent. It is only those circumstances together with the making of an election in compliance with s45 of the Act that would do so.”

38 The plaintiff has not served the second defendant with the notice of election. In these circumstances there is no creation of liability in Commonwealth. It does not disclose a reasonable cause of action. Thus, it is my view that the orders sought by the second defendant in his notice of motion filed 12 February 2004 be granted. The statement as pleaded against the second defendant is dismissed.

39 Costs are discretionary. Normally costs follow the event. The plaintiff is to pay the second defendant’s costs.

Orders

40 The court orders:

(1) The plaintiff’s statement of claim as pleaded against the second defendant is dismissed.

(2) The plaintiff is to pay the second defendant’s costs.

**********

Last Modified: 07/02/2004