Austral Pacific Group Limited v Airservices Australia

High Court of Australia|2000-08-03|Before: McPherson JA, Pincus JA, Ambrose J, Gleeson CJ, Callinan JJ, Hayne JJ

The application to strike out the Third Party Notice was dismissed at first instance. On appeal to the Court of Appeal of Queensland (McPherson, Pincus JJA and Ambrose J) the application was allowed.

The arguments in the District Court and the Court of Appeal did not focus upon the question which was extensively argued in this Court, whether on its proper construction, Pt IV (ss 42-52) of the Act discloses an intention to state exhaustively the liabilities of the Commonwealth and its Authorities in a case such as the present.

"forces the conclusion that unless and until an employee makes an election s 44(1) applies and no action lies. Put another way, until Mr Flaviano made an election in writing to institute an action, s 44(1) prevented him from suing the Commonwealth in respect of the injury sustained by him."

Pincus JA regarded the construction of the Act preferred by the Court of Appeal of New South Wales as "technical" and artificial but held that the Court should apply that decision as a decision of a co-ordinate court on the meaning of a federal statute[87]. Ambrose J was of a similar mind to Pincus JA[88].

In this Court the appellant submits that the respondent is a person who if sued would have been liable under s 6(c) of the Law Reform Act because the expression "any other tortfeasor who is, or would if sued have been, liable" extends to a party who, if appropriate steps were taken by the plaintiff would be found to be liable: that the fact that the plaintiff may not have given a notice before action is an irrelevant circumstance. The appellant bases its argument upon the reasoning and decision of this Court in Brambles Constructions Pty Ltd v Helmers[89] and relies principally upon a statement made by Windeyer J in that case[90]:

"The description, a tort-feasor who if sued would have been liable, denotes any person who would have been held liable in tort had he been sued in a competent court, by proper process, at a proper time and on evidence properly presented - that is anyone whose liability as a tort-feasor could have been ascertained in an action."

There, the Court was concerned with the question whether the words in the New South Wales contribution legislation, which are relevantly the same as those to be construed here, should have imported into them any temporal element[91].

Barwick CJ, with whom McTiernan J agreed, in reasoning similar to that of Windeyer J held that they should not, as did Owen J[92].

It was also part of the appellant's submission that the giving of a notice of election as required by the Act should not be regarded as a necessary element of the cause of action against a Commonwealth Authority such as the respondent: that so to construe the Act produces the result that the characterisation of the respondent as a tortfeasor or not depends on the whim of the plaintiff and not on the tortious conduct of the Authority.

In order to decide this case it is necessary to consider Pt IV of the Act in context with other sections of it.

Sections 1 to 9 are concerned with the application of the Act and the calculation of wages, of employees covered by it, for the purposes of the Act.

Section 14 provides that Comcare, a body established by s 68 of the Act, is liable to pay compensation in accordance with the Act, in respect of an injury suffered by an employee covered by the Act. The following sections deal with such matters as the circumstances giving rise to injury, or death, compensation for medical expenses, and the method by which earnings are to be calculated[93].

By s 24, Comcare is liable to pay compensation to an employee in respect of an injury resulting in permanent impairment. Section 25 makes provision for payment of compensation after the determination of the degree of permanent impairment. Section 26 requires that compensation be paid within 30 days after the date of the assessment of the compensation payable. Section 27 establishes a formula for the calculation of compensation for non‑economic loss.

Sections 28 to 41A make provision for the payment of compensation to enable employees to recoup certain other expenses such as home care expenses, the redemption of a liability to pay period, that is, compensation by a lump sum payment, rehabilitation, and reviews of compensation payable.

It may be noted that s 44(1) does not state that any employee may either elect to receive compensation or to sue for damages. It provides that[94]:

"Subject to section 45, an action for damages does not lie against the Commonwealth, [or] a Commonwealth authority … in respect of … an injury sustained by an employee … in respect of which the Commonwealth, [or] Commonwealth authority … would, but for this subsection, be liable … for damages" (emphasis added).

However, s 45 does make provision for such an election in the case of a claim for damages for non-economic loss, so long as it be made before any compensation under s 24, 25 or 27 is paid, and so long as the election be made in writing. The consequence of such an election is that the bar against an action against the Commonwealth imposed by s 44 is lifted and compensation is not to be payable under s 24, 25 or 27 in respect of the injury. The election may not be revoked and a ceiling of $110,000 is imposed in respect of non-economic loss[95].

Section 46 provides that where compensation is payable under the Act, and the employee has instituted proceedings against some other party, the employee must give notice of those proceedings to the Safety, Rehabilitation and Compensation Commission established by s 89A of the Act.

Section 47 also obliges an employee who has instituted proceedings against a Commonwealth Authority to give notice to Comcare.

"Compensation not payable where damages recovered
(1) This section applies where:

(a) an employee recovers damages in respect of an injury to the employee or in respect of the loss of, or damage to, property used by the employee, being an injury, loss or damage in respect of which compensation is payable under this Act; or

(b) damages are recovered by, or for the benefit of, a dependant of a deceased employee in respect of the death of the employee and compensation is payable under this Act in respect of the injury that resulted in that death.

(2) The employee or dependant shall, not later than 28 days after the day on which the damages were recovered, notify Comcare in writing of the recovery of the damages and the amount of the damages.
Penalty: $1,000.
(3) If, before the recovery of the damages by, or for the benefit of, the employee or dependant, any compensation under this Act was paid to the employee in respect of the injury, loss or damage, or to, or for the benefit of, the dependant in respect of the injury that resulted in the death of the employee, as the case may be, the employee or dependant is liable to pay to Comcare an amount equal to:

whichever is less.
(4) Compensation is not payable under this Act to the employee in respect of the injury, loss or damage, or to, or for the benefit of, the dependant in respect of the injury that resulted in the death of the employee, after the date on which the damages were recovered by the employee or by, or for the benefit of, the dependant, as the case may be.
(4A) Subsection (3) does not apply where the damages were recovered in proceedings instituted by the employee as a result of an election by the employee under section 45, or by way of a settlement of such proceedings."

Section 49 is concerned with cases in which dependants of a deceased employee may have an entitlement to compensation.

There is no provision of the Act which deals with claims for indemnity or contribution by a tortfeasor or a joint tortfeasor against the Commonwealth or Commonwealth Authority, although s 50[96] in terms confers upon Comcare the right to institute proceedings or fresh proceedings against a tortfeasor or joint tortfeasor, whenever an amount of compensation is paid under the Act to an employee, if the employee has not instituted proceedings, has discontinued them, or has not properly prosecuted them. The section is not concerned with circumstances in which damages (as opposed to compensation) are claimed in legal proceedings against the Commonwealth. In other words the section is not intended to operate in the same way as the contribution legislation in circumstances in which two tortfeasors are sued or in which one tortfeasor wishes to establish liability against another in third party proceedings. Section 51[97] does give some rights to Comcare to claim reimbursement from a torfeasor liable to an employee but does not, taken with s 50, make provision for indemnity or contribution in anything like the same way as the contribution legislation does.

Part V of the Act deals with claims for compensation, the form in which they should be made, their survival in the case of death and the obligations of claimants to provide information and to submit to medical examinations.

Reconsideration and review of determinations are the subject of Pt VI, and except to note that decisions may be subject to review under the Administrative Appeals Tribunal Act 1975 (Cth) need no further comment.

Section 69 of the Act, which sets out the functions of Comcare, places emphasis upon the making of determinations accurately and quickly[98].

It is unnecessary to refer to the later sections of the Act which are concerned with the funding of Comcare and the Commission and of the financial obligations to employees for which the Act makes provision.

The Act does not expressly or in my opinion by implication provide a code, for the prosecution, by or against the Commonwealth, or a Commonwealth Authority, of claims for indemnity or contribution in orthodox litigation against the Commonwealth or against the Commonwealth and another party or parties. As I have pointed out, s 50 is concerned only with a case in which an amount of compensation is paid or payable and s 51 has a limited operation only.

As comprehensive as the Act is with respect to compensation payable to relevant employees, it has nothing to say about joint tortfeasors in proceedings for contribution or indemnity. No right to contribution or indemnity between joint tortfeasors existed at common law. Any foundation for such a right is entirely statutory.

In this case because the respondent was a Commonwealth Authority established under a Commonwealth Act to carry out functions as a Commonwealth Authority for and on behalf of the Commonwealth, and the claim of the appellant clearly relates to those functions, the District Court of Queensland was exercising federal jurisdiction in a civil matter in dealing with the respondent's application. The question then arises whether either of s 64 or 79 of the Judiciary Act 1903 (Cth) has the effect of attracting the operation of the Queensland contribution legislation[99].

Section 79 of the Judiciary Act provides as follows:

"State or Territory laws to govern where applicable
The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable."

The section does operate to attract the operation of the Queensland Act because neither the Constitution nor any Commonwealth law otherwise provides. The Act certainly does not, and it was not argued that the respondent, although an Authority of the Commonwealth enjoyed any other immunity on that account.

Section 64 which provides as follows may also have an operation here on the application of the reasoning in Maguire v Simpson[100]:

"Rights of parties
In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject."

However, neither it nor s 79 of the Judiciary Act provides a solution to the appellant's difficulties.

In The Commonwealth v Evans Deakin Industries Ltd[101] Gibbs CJ, Mason, Wilson, Deane and Dawson JJ in discussing the operation of s 64 of the Judiciary Act said[102]:

"[I]n deciding whether a private person has a right against the Commonwealth, and the Commonwealth has a corresponding obligation, it must be remembered that once a suit is commenced between those parties the rights of the parties in that suit will as nearly as possible be the same as in a suit between subject and subject. If it is possible to say that once a suit is commenced the Commonwealth will be held liable, it follows that it can also be said, before the suit is commenced, that the events which have happened have created a liability which will be recognized and enforced in legal proceedings."

In this case an event essential to the creation of a liability in the respondent Commonwealth Authority has simply not happened. Literally and substantively the appellant cannot bring itself within the passage from Evans Deakin that I have just quoted and which relevantly delineates the boundaries within which s 64 of the Judiciary Act is to operate.

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 s 45 of the Act that would do so. In Georgiadis v Australian and Overseas Telecommunications Corporation[103] Mason CJ, Deane and Gaudron JJ said that s 44 puts an end to a cause of action against the Commonwealth, or its agencies, and that it is inaccurate to describe s 44 as a provision which modifies the action of Commonwealth employees against Commonwealth employers. Earlier, I contrasted other introductory language which might have been used such as "an employee may either claim compensation or sue for damages" with the unequivocal words of s 44, "an action … does not lie".

The result is somewhat anomalous and perhaps unintended. It seems unjust that although the Commonwealth or one of its Authorities may have been negligent and responsible in some measure for an employee's injuries, it may escape liability for such damages simply because an employee has chosen to sue a joint tortfeasor only.

The appellant also sought to rely upon James Hardie & Coy Pty Ltd v Seltsam Pty Ltd[104]. However, as Gaudron and Gummow JJ[105] make clear in their judgment, that case was concerned with the question of the time at which one tortfeasor might pursue a claim against another, and not, as here, whether the plaintiff has a right of action against another tortfeasor.

Airservices Australia v Austral Pacific Group Ltd (1998) 157 ALR 125. ↑

See Crimmins v Stevedoring Industry Finance Committee (1999) 74 ALJR 1 at 4 [6]-[8], 4‑5 [12]-[16], 26-29 [134]-[147], 35-36 [187]-[189], 48-50 [244]-[257]; 167 ALR 1 at 3‑4, 4‑5, 34‑38, 46‑47, 64‑67. ↑

Arturi v Zupps Motors Pty Ltd (1980) 33 ALR 243. ↑

LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581. ↑

Re Wakim; Ex parte McNally (1999) 73 ALJR 839 at 868‑871 [135]-[147]; 163 ALR 270 at 310‑314. ↑

Sections 13-18 and ss 20-22 respectively provide for a very significant role for the Minister in the performance by Airservices of its functions and the exercise of its powers and in the composition of the Board of Airservices. There is provision for the payment of dividends to the Commonwealth (s 46). The capital of Airservices is repayable to the Commonwealth at such times and in such amounts as the Minister determines in writing (s 44(3)). ↑

Deputy Commissioner of Taxation v State Bank (NSW) (1992) 174 CLR 219 at 232. See also the Commonwealth Authorities and Companies Act 1997 (Cth), which applies to Airservices and deals with matters relating to Commonwealth authorities, including reporting and accountability, banking and investment, and conduct of officers. ↑

Felton v Mulligan (1971) 124 CLR 367 at 373, 402-404. ↑

cf the interpretation of s 64 of the Judiciary Act in The Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254 at 263-264 and see The Commonwealth v Western Australia (1999) 196 CLR 392 at 438‑439 [131]-[136]. ↑

Maguire v Simpson (1977) 139 CLR 362 at 376; The Commonwealth v Mewett (1997) 191 CLR 471 at 556; Northern Territory v GPAO (1999) 196 CLR 553 at 574‑575 [32]-[34]. ↑

Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 458-460, 470-472. ↑

Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 458, 464-465. ↑

"In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject." ↑

(1977) 139 CLR 362 at 390, 398-399, 406, 407. ↑

The Commonwealth v Western Australia (1999) 196 CLR 392 at 421 [81], 436‑439 [126]-[137], 447 [165], 475‑476 [246]-[248]. ↑

(1999) 196 CLR 553 at 587‑589 [78]-[83], 606 [135], 650 [254]. ↑

(1994) 179 CLR 297 at 317. Nothing for present purposes follows from the fact that this was a dissenting judgment. ↑

The term is defined in s 4(1) of the Compensation Act. ↑

cf Unsworth v Commissioner for Railways (1958) 101 CLR 73 at 86. ↑

cf Harding v Lithgow Corporation (1937) 57 CLR 186 at 192. ↑

(1937) 57 CLR 186 at 195. See also the authorities referred to in Rudolphy v Lightfoot (1999) 73 ALJR 1619 at 1621 [9]-[12]; 167 ALR 105 at 107‑108. ↑

Airservices Australia v Austral Pacific Group Ltd (1998) 157 ALR 125. ↑

Repatriation Commission v Kirkland (1923) 32 CLR 1 (although s 75(iii) was not directly raised, the action giving rise to the issue in this case was one where a person had sued the Repatriation Commission in tort, and the Court accepted that the Repatriation Commission was the Crown); Bank of NSW v The Commonwealth (1948) 76 CLR 1; Steele v Defence Forces Retirement Benefits Board (1955) 92 CLR 177; State Bank (NSW) v Commonwealth Savings Bank (1984) 154 CLR 579. ↑

Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 458, 463; Telstra Corporation Ltd v Worthing (1999) 197 CLR 61 at 73-74 [15]. See also s 4(1) of the Compensation Act. ↑

Section 7(1) of the Commonwealth Authorities and Companies Act 1997 (Cth) relevantly defines a Commonwealth authority as a body that holds money on its own account and is a body corporate that is incorporated for a public purpose by an Act or by regulations under an Act. ↑

"State jurisdiction is the authority which State Courts possess to adjudicate under the State Constitution and laws": Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 at 1142 per Isaacs J. ↑

"[F]ederal jurisdiction is the authority to adjudicate derived from the Commonwealth Constitution and laws": Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 at 1142 per Isaacs J. This simple exposition of the concept of "federal jurisdiction" gives no indication of the complexity it has assumed since then. See, for example, Northern Territory v GPAO (1999) 196 CLR 553. ↑

Re Wakim; Ex parte McNally (1999) 73 ALJR 839 at 868-871 [133]-[149]; 163 ALR 270 at 310-314. ↑

Northern Territory v GPAO (1999) 196 CLR 553 at 588 [80] per Gleeson CJ and Gummow J. ↑

Section 79 directs the application of the laws of each State or Territory "except as otherwise provided by the Constitution or the laws of the Commonwealth". Section 80 directs the application of the common law of Australia "[s]o far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment" and "so far as [the common law of Australia] is applicable and not inconsistent with the Constitution and the laws of the Commonwealth". ↑

To determine whether a Commonwealth law "otherwise provided" for the purposes of s 79, one looks at whether the operation of the Commonwealth law so reduces the ambit of the State law that the provisions of the Commonwealth law are irreconcilable with the provisions of the State law: Northern Territory v GPAO (1999) 196 CLR 553 at 588 [81]. This s 79 kind of "inconsistency" should be compared with the two kinds of s 64 "inconsistency" discussed later. ↑

See, for example, the facts of Commissioner for Railways (Q) v Peters (1991) 24 NSWLR 407, although in that case s 79 was not addressed, only s 64. ↑

Pedersen v Young (1964) 110 CLR 162 at 165-166 per Kitto J. ↑

Maguire v Simpson (1977) 139 CLR 362 at 408 per Murphy J. See also The Commonwealth v Mewett (1997) 191 CLR 471 at 514 per Toohey J. ↑

John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 80-81, 83, 88, 94-95. ↑

Bass v Permanent Trustee Co Ltd (1999) 73 ALJR 522 at 529 [26]; 161 ALR 399 at 409. ↑

The Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254 at 263-264: on the requirement for an existing suit to which the Commonwealth is a party, following The Commonwealth v Anderson (1960) 105 CLR 303; on jurisdiction, referring to s 75(iii) of the Constitution and s 39(2) of the Judiciary Act. ↑

Although there does not need to be some other law which has given the claimant a cause of action before the suit is commenced, there must be a liability sought to be enforced against the Commonwealth. As discussed later, the source of that liability may be the common law (as in The Commonwealth v Mewett (1997) 191 CLR 471), or it may be a law of a State that is "picked up" by s 79 of the Judiciary Act. ↑

Dao v Australian Postal Commission (1987) 162 CLR 317 at 331-332; Bass v Permanent Trustee Co Ltd (1999) 73 ALJR 522 at 530 [29]-[30]; 161 ALR 399 at 410-411. ↑

Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55 at 63. ↑

Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55 at 63-64; Bass v Permanent Trustee Co Ltd (1999) 73 ALJR 522 at 530 [30]‑[31]; 161 ALR 399 at 410-411. ↑

"[I]t is the rights of parties as in a suit between subject and subject, not the law, that are to apply as nearly as may be": The Commonwealth v Anderson (1960) 105 CLR 303 at 310 per Dixon CJ. ↑

See, for example, Maguire v Simpson (1977) 139 CLR 362 at 401 per Mason J, 404-405 per Jacobs J; China Ocean Shipping Co v South Australia (1979) 145 CLR 172 at 203 per Gibbs J; The Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254 at 263 per Gibbs CJ, Mason, Wilson, Deane and Dawson JJ; cf Commissioner for Railways (Q) v Peters (1991) 24 NSWLR 407. ↑

The Commonwealth v Cigamatic Pty Ltd (In liq) (1962) 108 CLR 372. ↑

See, for example, Maguire v Simpson (1977) 139 CLR 362 at 390 per Gibbs J, 402 per Mason J, 403-404 per Jacobs J; The Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254 at 267 per Gibbs CJ, Mason, Wilson, Deane and Dawson JJ; Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 428 per Brennan CJ, 460 per McHugh J, 474 per Gummow J. ↑

The Commonwealth v Mewett (1997) 191 CLR 471 at 551 per Gummow and Kirby JJ. ↑

In The Commonwealth v Mewett (1997) 191 CLR 471 at 514, Toohey J said: "Sections 64 and 79 of the Judiciary Act in combination 'pick up' a State limitation statute which 'becomes, for this purpose, surrogate Commonwealth law'", adopting Murphy J's description (in Maguire v Simpson (1977) 139 CLR 362 at 408) of the State law becoming a "surrogate Commonwealth law" by operation of s 64. ↑

The Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254 at 266. ↑

The Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254 at 265‑266. ↑

Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55 at 63-64; Bass v Permanent Trustee Co Ltd (1999) 73 ALJR 522 at 530 [30]‑[31]; 161 ALR 399 at 410-411. ↑

"[Section 64] was intended to fill what would otherwise be lacunae or gaps in the law of the Commonwealth": Dao v Australian Postal Commission (1987) 162 CLR 317 at 331. ↑

Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 at 221. ↑

Sections 44(1) and 45 of the Compensation Act deal with an action for damages against the Commonwealth, a Commonwealth authority, a licensed corporation or an employee. For the purposes of this appeal, it is unnecessary to look at the position of licensed corporations and employees. ↑

Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 306-307 per Mason CJ, Deane and Gaudron JJ, 310 per Brennan J. ↑

(1) In this Act, unless the contrary intention appears:

'[A]uthority of the Commonwealth' includes the following:

(d) a body, whether incorporated or not, established for a public purpose by or under a law of the Commonwealth or of a Territory;

(e) the holder of an office established for a public purpose by or under a law of the Commonwealth or of a Territory;

(f) a company in which the Commonwealth owns shares that carry more than half the voting power".

(1) A body called Airservices Australia is established by this subsection.

Note: The Commonwealth Authorities and Companies Act 1997 applies to AA. That Act deals with matters relating to Commonwealth authorities, including reporting and accountability, banking and investment, and conduct of officers.

"Proceedings against, and contribution between, joint and several tortfeasors

Where damage is suffered by any person as a result of a tort (whether a crime or not) -

(a) judgment recovered against any tortfeasor 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 tortfeasor in respect of the same damage;

(b) if more than 1 action is brought in respect of that damage by or on behalf of the person by whom it was suffered, or for the benefit of the estate, or of the spouse, parent, or child of that person, against tortfeasors liable in respect of the damage (whether as joint tortfeasors or otherwise) - the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given; and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the court is of opinion that there was reasonable ground for bringing the action;

(c) any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by the person in respect of the liability in respect of which the contribution is sought." ↑

"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." ↑

(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.

(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.

(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." ↑

(1996) 40 NSWLR 199 at 204. See Coomblas v Gee (1998) 72 SASR 247. ↑

See (1966) 114 CLR 213 at 220 per Barwick CJ. ↑

(i) is paid to an employee in respect of an injury to the employee or in respect of the loss of, or damage to, property used by the employee; or

(b) the injury, loss, damage or death occurred in circumstances that appear to create a legal liability in a person to pay damages in respect of the injury, loss, damage … ; and

(c) proceedings against that person for the purpose of recovering such damages have not been instituted by the employee or by or for the benefit of the dependant, or have been so instituted but have been discontinued or have not been properly prosecuted;

Comcare may institute proceedings or fresh proceedings against the person in the name of the employee or dependant for the recovery of damages in respect of the injury, loss, damage or death or may take over the conduct of the proceedings, as the case requires.

(2) Comcare is liable to pay all costs of or incidental to any proceedings taken over by it, being costs payable by the plaintiff in those proceedings, other than costs unreasonably incurred by the plaintiff.

(3) Where Comcare institutes, or takes over the conduct of, proceedings under this section, Comcare may:

(a) settle the proceedings, either with or without obtaining judgment; and

(b) if a judgment is obtained in the proceedings in favour of the plaintiff - take such steps as are necessary to enforce the judgment.

(4) The employee or dependant shall sign any document relevant to proceedings instituted or taken over by Comcare under this section (including the settlement of the proceedings), being a document that Comcare requires the employee or dependant to sign and, if he or she fails to sign any such document, the court or tribunal in which the proceedings are taken may direct that the document be signed on his or her behalf by a person appointed by Comcare for the purpose.

(5) Where Comcare institutes, or takes over the conduct of, proceedings under this section, the employee or dependant shall comply with any reasonable requirement of Comcare for the purpose of the proceedings and, where the employee or dependant fails to comply with any such requirement, the right of the employee or dependant to compensation under this Act in respect of the injury, loss, damage or death to which the proceedings relate is suspended until such time as the employee or dependant complies with that requirement.

(6) Where a right to compensation is suspended under subsection (5), compensation is not payable in respect of the period of the suspension.

(7) Any damages awarded under a judgment obtained in proceedings referred to in this section, or payable as a result of the settlement of such proceedings, shall be paid to Comcare and Comcare shall deduct from the amount of those damages:

(a) an amount equal to the total of all amounts of compensation paid to the employee or dependant under this Act in respect of the injury, loss, damage or death to which the proceedings relate; and

(b) the amount of any costs of or incidental to those proceedings paid by Comcare;

and shall pay the balance (if any) to the employee or dependant.

(8) Where Comcare pays an amount to an employee or dependant under subsection (7), the employee or dependant is not entitled to receive any further amounts of compensation under this Act in respect of the injury, loss, damage or death to which the proceedings related until the amount of compensation that would, but for this subsection, have been payable to the employee or dependant in respect of that injury, loss, damage or death equals the amount paid by Comcare to the employee or dependant under subsection (7).

'person' does not include the Commonwealth, a Commonwealth authority, a licensed corporation or an employee." ↑

(a) to pay damages to an employee in respect of an injury to the employee, or in respect of the loss of, or damage to, property used by the employee, being an injury, loss or damage in respect of which an amount of compensation has been paid under this Act; or

(b) to pay damages to a dependant of a deceased employee in respect of the death of the employee, where that death resulted from an injury in respect of which an amount of compensation has been paid under this Act;

Comcare may, by notice in writing given to the person, require that:

(c) if the person agrees to pay damages to the employee in respect of the injury, loss or damage or to the dependant in respect of the death; or

(d) if damages against the person are awarded to the employee in proceedings instituted in respect of the injury, loss or damage, or to the dependant in proceedings instituted in respect of the death;

the person pay to Comcare so much of the amount of the damages as does not exceed the amount that would be payable by the employee or dependant to Comcare under section 48 or 49 if the damages had been paid to the employee or dependant.

(i) to pay damages to an employee in respect of an injury to the employee, or in respect of the loss of, or damage to, property used by the employee, being an injury, loss or damage in respect of which an amount of compensation has been paid under this Act; or

(ii) to pay damages to a dependant of a deceased employee in respect of the death of the employee, where that death resulted from an injury in respect of which an amount of compensation has been paid under this Act; or

(i) to an employee in proceedings instituted in respect of an injury to the employee or in respect of the loss of, or damage to, property used by the employee, being an injury, loss or damage in respect of which an amount of compensation has been paid under this Act; or

(ii) to a dependant of a deceased employee in proceedings instituted in respect of the death of the employee, where that death resulted from an injury in respect of which an amount of compensation has been paid under this Act;

Comcare may, by notice in writing given to the person, require the person to pay to Comcare so much of the amount of the damages as does not exceed the amount that would be payable by the employee or dependant to Comcare under section 48 or 49 if the damages had been paid to or in respect of the employee or dependant.

(3) Where, before a notice under subsection (2) was received by a person, the person had paid to or in respect of the employee or dependant, all or part of the damages to which the notice related:

(a) if all of the damages had been paid - the notice has no force or effect; or

(b) if part only of the damages had been paid - the reference in that subsection to the amount of the damages shall be read as a reference to so much of that amount as had not been paid.

(4) If a person fails to pay an amount to Comcare in accordance with a notice under this section, Comcare may recover that amount from the person in a court of competent jurisdiction as a debt due to Comcare.

(5) The payment of an amount to Comcare by a person in accordance with a notice under this section is, to the extent of the amount paid, a discharge of the liability of that person to the employee or dependant and of the liability (if any) of the employee or dependant to Comcare under section 48 or 49.

'person' does not include the Commonwealth, a Commonwealth authority, a licensed corporation or an employee." ↑

Trade Practices Act 1974(Cth)

Authorities and Companies Act 1997(Cth)

Austral Pacific Group Limited v Airservices Australia [2000] HCA 39

At a glance

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Legislation Cited (10)

Cases Cited (38)