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[2026] NSWSC 112
General information, not legal advice.
Supreme Court of NSW
2026-02-17
Emmett J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: French v Commonwealth of Australia [2026] NSWSC 112
Hearing dates: 17 February 2026
Date of orders: 17 February 2026
Decision date: 17 February 2026
Jurisdiction: Common Law
Before: Emmett J
Decision: (1) Dismiss the defendant’s amended notice of motion dated 26 September 2025;
(2) In relation to the plaintiffs’ amended notice of motion, direct the plaintiffs to serve on the first defendant a further draft amended statement of claim within 7 days of today;
(3) Direct the Commonwealth to indicate to the plaintiffs within 7 days of that date whether the Commonwealth maintains opposition to the grant of leave;
(4) If the Commonwealth does not maintain opposition the parties are to inform the Associate to Justice Emmett within 7 days and in that event, leave will be granted in Chambers;
(5) If the Commonwealth does maintain opposition to a grant of leave, the parties are to file and serve and send to the Associate to Justice Emmett submissions of no more than 5 pages setting out their respective positions on the draft further amended statement of claim and whether the matter can be dealt with in Chambers.
The Court makes the following notations:
(6) If satisfied that the matter can be dealt with in Chambers, it is the Court’s intention to do so;
(7) The plaintiffs’ notice of motion filed 12 May 2025 will be dealt with at the same time as the plaintiffs’ amended notice of motion filed 22 August 2025.
Catchwords: CIVIL PROCEDURE – Pleadings – Summary dismissal – Striking out – No reasonable cause of action or defence – where Defence Force trainee allegedly subject to false imprisonment, assaults and other mistreatment – where first plaintiff recipient of compensation payment under Military Rehabilitation and Compensation Act (2004) – where Act extinguishes cause of action for compensation in respect of ‘service injury’ – whether first plaintiff can bring a tenable claim – finding that the first plaintiff’s case is at least reasonably arguable – summary dismissal and strike out application dismissed.
STATUTORY INTERPRETATION – Military Rehabilitation and Compensation Act (2004) – where Act purports to extinguish any cause of action against Commonwealth in respect of a service injury – whether statutory extinguishment extends to intentional torts.
STATUTORY INTERPRETATION – Military Rehabilitation and Compensation Act (2004) – Definitions – Interpretation of definition by reference to term defined – meaning of ‘injury’ and ‘service injury’ – extent to which claims for damages for intentional torts fall are covered by s 388 and the definition of ‘service injury’ – operation of ss 388 and 389 in relation to deterioration of injuries, or fresh injuries, arising out of incident previously the subject of compensation.
CONSTITUTIONAL LAW – Commonwealth Constitution – Legislative power – Acquisition of property – contention that statutory extinguishment constitutes acquisition of property on unjust terms contrary to Constitution of Australia – whether question arising under the Constitution should be decided.
CIVIL PROCEDURE – Pleadings – Leave to amend – where plaintiffs seek leave to file Amended Statement of Claim – whether material facts are adequately pleaded in second plaintiff’s claim – where material facts are improperly set out in particulars – finding that the grant of leave to replead should be subject to the plaintiffs addressing those concerns.
Legislation Cited: Civil Liability Act 2002 (NSW) ss 3, 30
Commonwealth Constitution, s 51(xxxi)
Judiciary Act 1903 (Cth), s 78B
Military Rehabilitation and Compensation Act 2004 (Cth), ss 6, 27, 29, 30, 68, 71, 75, 335, 339, 388, 389
Cases Cited: Annetts v Australian Stations Pty Limited (2002) 211 CLR 317; [2002] HCA 35
Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136; [2000] HCA 39
Commonwealth of Australia v Flaviano (1996) 40 NSWLR 199
FJ (a pseudonym) v Commonwealth of Australia (2017) 55 VR 108; [2017] VSCA 84
Roncevich v Repatriation Commission (2005) 222 CLR 115; [2005] HCA 40
Ross v Commonwealth of Australia [2025] VSCA 108
Smith v ANL Ltd (2000) 204 CLR 493; [2000] HCA 58
Victoria v the Commonwealth (1996) 187 CLR 416; [1996] HCA 56
Category: Procedural rulings
Parties: Alister James French (First Plaintiff)
Lisa French (Second Plaintiff)
Commonwealth of Australia (Defendant)
Representation: Counsel:
A Khoury / J Paul (First and Second Plaintiffs)
Z Maud SC / J McKenzie / S Wright (Defendant)
Solicitors:
Operational Legal Australia (First and Second Plaintiff)
Australian Government Solicitor (Defendant)
File Number(s): 2024/00412490
Publication restriction: Nil
The Court has before it two notices of motion: one by the only current defendant, the Commonwealth of Australia (“the Commonwealth”), for summary dismissal or strike-out of the plaintiff’s statement of claim; and one by the plaintiffs for leave to file an amended statement of claim (“ASOC”).
The first plaintiff’s claim is as follows:
The first plaintiff enlisted in the Royal Australian Air Force on 2 July 2019.
In the draft ASOC the plaintiffs currently propound, the first plaintiff alleges that he was subjected to harassment and neglect by members of the Army School of Electrical and Mechanical Engineering because of a flare-up of a back injury. This is said to be by way of background, although the allegation is picked up in allegations of negligence and the causation of loss.
The central claim is for assault, battery and false imprisonment arising out of an alleged incident of torture or mistreatment by three other defence force personnel on 1 October 2020. It is not necessary to canvass the alleged particulars or details of that assault beyond observing that if the particulars are proved, they would plainly make out an arguable claim for assault, battery and false imprisonment, of a kind that as a matter of common law may readily attract aggravated and/or exemplary damages.
The three other defence force personnel, who are proposed to be the second to fourth defendants in the draft ASOC, are said to be liable for the torts of assault, battery and false imprisonment. The particulars of injury include sexual assault, physical assault, psychiatric injury and psychological sequelae.
The Commonwealth is alleged to be vicariously liable for those intentional torts.
The first plaintiff also sues the Commonwealth for negligence for failing to take reasonable precautions against the risk of harm suffered as a result of the conduct of the second to fourth defendants, being enlisted defence force service personnel.
As to the second plaintiff’s claim:
The second plaintiff is the first plaintiff’s mother.
She brings a claim for nervous shock or pure mental harm consequent upon learning about the alleged harassment and the alleged torture incident.
388 Action for damages not to lie against Commonwealth etc. in certain cases
(1) Subject to section 389, an action or other proceeding for
damages does not lie against the Commonwealth, or a potentially liable member, in respect of:
(a) a service injury sustained, or a service disease contracted, by another member or a former member; or
(b) the loss of, or damage to, a medical aid used by another member.
Note: However, a person may choose to institute an action for damages for non‑economic loss against the Commonwealth or the potentially liable member under section 389.
(2) Subsection (1) applies whether that injury, disease, loss or damage occurred before or after this section commences. However, subsection (1) does not apply if an action or proceeding in respect of the injury, disease, loss or damage is instituted before this section commences.
(3) Subsection (1) does not prevent a dependant of a deceased member from bringing an action in respect of a service death of the deceased member (whether or not the deceased member had chosen to institute an action under section 389 before his or her death).
(4) However, if such a dependant recovers damages (including damages payable as a result of the settlement of a claim) from the Commonwealth or a potentially liable member in respect of the service death, subsections (5) and (6) have effect.
(5) If the dependant has received compensation under this Act in respect of the service death before recovery of the damages, the dependant is liable to pay to the Commonwealth the lesser of:
(a) the total of all amounts of compensation paid to the person under this Act in respect of the service death before the recovery of the damages (except MRCA supplement under section 245 and compensation for dependants under section 242, 253 or 255); and
(b) the amount of the damages.
(6) Compensation under this Act in respect of the service death is not payable to the dependant after the recovery of the damages.
389 Choice to institute action for damages against the Commonwealth etc. for non‑economic loss
(1) A person may choose to institute an action or proceeding against the Commonwealth or a potentially liable member for damages for non‑economic loss suffered by the person if:
(a) compensation is payable under section 68, 71 or 75 in respect of a service injury or disease of the person but the compensation has not yet been paid; and
(b) the Commonwealth or the potentially liable member would, apart from subsection 388(1), be liable for damages for that loss.
(2) A choice must be in writing and must be given to the Commission.
(3) A choice is irrevocable.
(4) If the person chooses to institute the action or proceeding:
(a) subsection 388(1) does not apply to the action or proceeding; and
(b) compensation under section 68, 71 or 75 in respect of the injury or disease is not payable after the date of the choice.
(5) In any action or proceeding instituted as a result of the person’s choice, the court must not award the person damages of more than $110,000 for non‑economic loss suffered by the person.
(6) The person’s choice to institute an action or proceeding against the Commonwealth or the potentially liable member does not prevent the person from doing any other thing that constitutes an action for non‑economic loss before, or instead of, formally instituting such an action or proceeding.
The first plaintiff has been paid compensation under s 68 of the MRC Act. That payment, on the evidence before me, is for depressive disorder and post-traumatic stress disorder. It is, on the evidence before me, at least in part referable to events that overlap with what is alleged as harassment in the draft ASOC and in part referable to alleged “incidents of abuse” in October 2020.
The Commonwealth contends that the injuries for which the first plaintiff has been paid are “service injuries”. “Service injury” as defined in s 27 includes:
(a) the injury or disease resulted from an occurrence that happened while the person was a member rendering defence service;
(b) the injury or disease arose out of, or was attributable to, any defence service rendered by the person while a member;
(c) in the opinion of the Commission:
(i) the injury was sustained due to an accident that would not have occurred; or
(ii) the disease would not have been contracted;
but for:
(iii) the person having rendered defence service while a member; or
(iv) changes in the person’s environment consequent upon his or her having rendered defence service while a member;
(d) the injury or disease:
(i) was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or
(ii) was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease;
Note: This paragraph might not cover aggravations of, or material contributions to, signs and symptoms of an injury or disease (see Repatriation Commission v Yates (1995) 38 Administrative Law Decisions 80). This is dealt with in section 30.
(e) the injury or disease resulted from an accident that occurred while the person was travelling, while a member rendering peacetime service but otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii) away from a place of duty upon having ceased to perform duty.
disease means:
(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b) the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid condition; or
(d) a temporary departure from:
(i) the normal physiological state; or
(ii) the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).
injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a) a disease; or
(b) the aggravation of a physical or mental injury.
It is accepted by the Commonwealth that in the definition of injury the expression “physical or mental injury” means physical or mental harm, or perhaps a disturbance in the body or mind. “Injury” in this context should not be understood in a broader sense to mean any affront or violation compensable at law. Consistent with that concession, I am comfortably of the view that “injury”, as defined, requires physical or mental harm or damage. In order to be a “service injury”, it must be an “injury” or a “disease”, as defined. In my view, it follows that a cause of action for an intentional tort, which is actionable independently of any damage, is not, per se, a cause of action in respect of a service injury.
The Court’s attention is drawn to the decision of the Victorian Court of Appeal’s decision of FJ (a pseudonym) v Commonwealth of Australia (2017) 55 VR 108; [2017] VSCA 84 (“FJ*”*) which, at [128], suggests that “injury” should be understood even more narrowly in this statutory context:
[128] We consider that the Act broadly reflects the ordinary meaning of ‘injury’ but sharpens that meaning by restricting its application to those impairments or incapacities that require treatment or ‘rehabilitation’. Accordingly, unless the authorities otherwise dictate, we consider that there are matters within the statutory context which indicate that the applicant’s pregnancy and childbirth do not come within the definition of ‘injury’ as that terms appears in s 388 of the Act.
At the very least, this would appear to confine “injury” to harm or damage that requires treatment or rehabilitation. It may also be that it confines “injury” to an impairment or incapacity, although the observations in the preceding paragraph, [127], do not suggest that their Honours had in mind that an injury must involve impairment or incapacity.
It is not necessary to decide that, save to observe that if “injury” is to be construed more narrowly, then that may make it harder – and less suitable to be determined on a strike-out motion – for the Commonwealth to establish that particular heads of damage or particular injuries that are sought to be the subject of claim are “injuries” and therefore “service injuries” as defined.
In particular, it seems reasonably clear that an affront to bodily integrity is not itself a “physical injury” as defined. Such an affront does not involve physical harm or damage, nor does it require treatment or rehabilitation. Of course, physical or mental injury in the sense defined in the MRC Act may follow from that affront to bodily integrity.
A cause of action for an intentional tort may involve a claim for damages for an injury which amounts to a service injury. I accept that an action for an intentional tort, insofar as it concerns such an injury, may well engage s 388. In that situation, if the Commonwealth’s other contentions are correct, the Court would not be permitted to award damages for the injury which is a service injury. But that would not, it seems to me, prevent the Court from awarding damages that are not referable to the disease or physical or mental injury (for example, damages for the deprivation or liberty or damages for the affront to bodily integrity, exemplary damages, and possibly aggravated damages).
The Commonwealth at one point appeared to contend that s 388 calls for the Court to characterise the proceeding as a whole, such that if the proceeding is “in respect of” a service injury, then it is excluded or barred by s 388(1) regardless of whether the causes of action pleaded also claim damages which are not service injuries.
I do not accept that, although in fairness it may be that the Commonwealth did not so contend. If a cause of action is pleaded that involves both a service injury and other heads of damage such as damages for the deprivation of liberty, exemplary damages, possibly aggravated damages, then it appears to me that s 388 only applies to the cause of action so far as it concerns a service injury.
As I say, in fairness, it is not clear to me that the Commonwealth advanced an argument contrary to that. The Commonwealth does contend that this claim is at least in part a claim in respect of a service injury, that is, the intentional tort claims are at least in part claims in respect of a service injury and that the causes of action pleaded, so far as they concern service injuries, are barred by s 388(1).
An important part of the Commonwealth’s case is that injuries consequent on the alleged torture incident on 1 October 2020 would be “service injuries”. Senior counsel for the Commonwealth acknowledged with appropriate candour that s 27(a) either could not be relied upon or at least could not be relied upon for today’s purpose because the first plaintiff was off-duty at the time, so that the temporal element in s 27(a) does not appear to be satisfied.
The Commonwealth relied on s 27(b) and, in support, draws attention to the High Court’s observations in Roncevich v Repatriation Commission (2005) 222 CLR 115; [2005] HCA 40 (emphasis added):
[24] There is little doubt in this case that there was a requirement, albeit not one to be found in formal military orders, and an expectation, of attendance at the Sergeants’ Mess and the consumption in some quantity, even perhaps to the point of intoxication short of physical incapacity, of alcoholic drinks. So too, the need for the appellant’s return to his quarters and the preparation of his uniform for the next day, are capable of being seen to have arisen out of, or of having been attributable to, his defence service. The remaining question is whether, climbing on to the box to expectorate through the open window, and then falling because he was inebriated, similarly either arose out of, or was attributable to his defence service.
The difficulty I have with this is that it involves the High Court recognising that an injury in a service person’s quarters is “capable of being seen” as arising out of or being attributable to defence service. I read this as their Honours simply saying that such a situation might (that is, is capable of) engaging s 27(b), but that it depends on the circumstances and is a matter for the tribunal of fact. I do not consider that I am able to reach a conclusion to the standard necessary on a summary dismissal application that such a finding must follow on the plaintiff’s case. It may call for a careful consideration of the evidence and the circumstances. It is a matter suitable for consideration at trial.
I would add one further matter about the Commonwealth’s case in connection with this issue. The Commonwealth contended that, in asking whether s 388(1) is satisfied, the Court is required to approach fact-finding in the way Parliament has prescribed for the Chief of the Defence Force and the Commission under ss 335 and 339(3). I am not persuaded that this is so, at least where the Court is asking whether an injury is a service injury as defined in s 27(a) or s 27(b), but it is not necessary for me to decide it. If anything, if the Court is obliged to apply ss 335 and 339(3), that would appear to reinforce the undesirability of dealing with the matter by way of strike-out on limited evidence today.
The first plaintiff advances the argument that section 388(1), if it operates as the Commonwealth contends, would operate as an acquisition of property otherwise than on just terms, and as a result would be beyond power by reason of s 51(xxxi) of the Constitution of Australia. Notices have been served in accordance with s 78B of the Judiciary Act 1903 (Cth).
There is considerable force in the Commonwealth’s contention that s 51(xxxi) has no operation where a Commonwealth statute prevents a cause of action from arising in the first place, rather than extinguishing that cause of action after it has arisen. The Court’s attention was drawn to the decisions of the High Court in Smith v ANL Ltd (2000) 204 CLR 493; [2000] HCA 58 at [52]; Victoria v the Commonwealth (1996) 187 CLR 416; [1996] HCA 56 at 559 and Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136; [2000] HCA 39 at [20]-[21].
In the former circumstance, where a Commonwealth statute prevents a cause of action from arising in the first place, it is not clear what is the property that is acquired. Senior counsel appearing for the Commonwealth accepted that this is attended by some conceptual difficulty in the present context where that cause of action is prevented from arising subject to s 389, which provides that it may arise.
The first plaintiff contends that s 388 should not be understood as preventing the cause of action from arising in the first place, but rather as operating on the cause of action, as soon as it arises, to extinguish it.
To my mind that is not the natural reading of s 388(1). I would more readily conclude that if the “action does not lie”, then no cause of action arose in the first place.
One difficulty for the Commonwealth is s 387(1):
387 Interpretation
(1) In this Chapter:
potentially liable member, in relation to an action or other proceeding, means a person who was, when the cause of action arose, acting in the capacity of a member.
This is drafted in a manner consistent with the proposition that a cause of action arises, but s 388(1) then operates to bar that cause of action. If so, that may provide support for the first plaintiff’s argument – although I would not describe it as, on the material that appears before me, a strong argument.
Of course, if the cause of action does arise and is then extinguished in whole or in part, I accept that that may take it outside the situation which has already received the attention of the High Court. That situation, if it arose under this statute (a matter of which I am not persuaded), would warrant significant legal argument.
However, given that I am satisfied that the case so far as it concerns intentional torts is pleadable, the case, it seems to me, will proceed to trial in any event. It then becomes a question whether I am satisfied that some parts of the claim should be excluded or struck out at this stage. Given my view that the Court should not grant summary dismissal as a whole, it is undesirable for me to offer a concluded view about this. The authorities are clear that constitutional issues should not be determined unless it is necessary to do so to resolve the issue between the parties and I do not consider it necessary to do so.
I am satisfied, as will be clear from what I have said in relation to intentional torts, and what I am about to say in relation to other parts of the pleading, that significant aspects of the plaintiffs’ claim are sufficiently arguable that they should go to trial. In those circumstances I do not consider that I should rule on that constitutional question.
The next issue that arises is that the first plaintiff relies on new injuries, for which he has not yet been compensated.
There is force in the first plaintiff’s contention. It seems to me that where a plaintiff suffers new injuries (or a deterioration of existing injuries) by reason of an incident in respect of which compensation has already been recovered albeit for other injuries, that falls outside the scope of s 388. Section 388 of the MRC Act operates by reference to the definition of “injury” or “disease”. It does not operate by reference to the incident leading to injury.
The Commonwealth argues that a worsening of symptoms does not create a new service injury. That may be true as far as it goes, but if one focuses on the mental injury or disease, that is, the harm – not to be confused with the symptoms – it is not obvious why a fresh injury does not call for the fresh application of ss 388 and 389.
In my view that, at least on the ordinary reading of the text, is clear enough where s 71 is engaged. Section 71 provides for recovery of additional compensation if there is additional impairment as a result of deterioration in a person’s compensable condition. Where there is such a deterioration, it is difficult to see why s 389(1) does not apply according to its ordinary language. Section 389(1) applies where compensation is payable under any of ss 68, 71 or 75. I would observe that it may also be necessary to meet all the requirements of s 71(2)(a), but that may be a matter appropriately addressed at trial.
If there is compensation payable under s 71 because of a deterioration, s 389 would appear to permit an election to bring a claim at common law. If that is correct, there would be a real problem with coherence, it seems to me, if the general operation of ss 388 and 389 did not operate by reference to the particular injury (in the sense of harm or damage) at issue. If that is the case, then provided there is a new injury that has not been compensated under one of ss 68, 71 or 75, it is not immediately clear why it would not be amenable to a fresh election under s 389.
In relation to the question of the bringing of a fresh election, my attention was drawn to two decisions, Commonwealth of Australia v Flaviano (1996) 40 NSWLR 199 (“Flaviano”) and Ross v Commonwealth of Australia [2025] VSCA 108 (“Ross”) as indicating that the cause of action is only available after an election has been made in writing. The Court of Appeal, in Flaviano at least, appeared to make it clear that the commencement of a claim is not itself an election in writing under relatively similar legislation.
Those decisions have given me real pause. I am, however, satisfied that in the circumstances of this case it is not appropriate to summarily dismiss the proceedings on the basis of those provisions, in circumstances where it is clear from the balance of my holding that significant parts of the statement of claim do fall outside ss 388 and 389, because they do not involve a service injury and so do not call for an election.
(a) whether the primary causes of action are established, (b) precisely what injuries were the subject of the statutory compensation (which may require attention to the first plaintiff’s physical and mental condition at that time), and (c) what injury or injuries have not been the subject of statutory compensation.
The next argument that the first plaintiff advances is that the alleged injury was not a “service injury” because the first plaintiff was not engaged in service with the Defence Force, as defined in s 6(2), because what led up to the incident on 1 Oct 2020 was inconsistent with any notion of serving in the Defence Force.
I must say, I do not see the first plaintiff’s argument on this point. The question for s 27 is whether the events occurred while the first plaintiff was a member rendering defence service, or if it arose out of the first plaintiff rendering those services. That might well occur, even if the persons perpetrating the assault were behaving in a manner utterly inconsistent with any proper notion of service within the Defence Force
If this were the only point, it might be suitable for determination by way of summary dismissal. But given my view that the matter should proceed to trial anyway, I do not offer a concluded view about this.
As I have indicated on a number of occasions, the first plaintiff proposes to plead intentional torts against the second to fourth defendants, and says that the Commonwealth is vicariously liable for those intentional torts.
The first plaintiff contends, as I have indicated, that those intentional torts are actionable per se and that therefore, so far as the claim concerns at least damages for the false imprisonment or assaults themselves and exemplary damages, the action is not “in respect of a service injury”. The Commonwealth contends that this does not matter, that is, the fact that the intentional torts may, in the abstract, be claimable outside s 388 does not matter because these proceedings and this claim is in fact a claim for damages for injury.
That may be true, subject to the other points that the first plaintiff has advanced, but on the Commonwealth’s best case, it could only be that part of the action that is “in respect of a service injury” that is barred by s 388(1). If the claim succeeds but all of the Commonwealth’s other arguments are accepted, the first plaintiff will not receive any damages for physical or mental injury. But I cannot see why he would not be entitled to other damages for intentional torts.
None of this is to say that intentional torts fall outside the statutory compensation regime. If intentional torts in fact lead to a physical or mental injury, then that may very well engage ss 27, 29 and 30. In that case, s 388(1) may have limited work to do.
As I have said, the difficulty for dealing with this on a strike-out is that the plaintiffs also have a claim for additional or incremental injury and/or deterioration of injury. As I have indicated, that will require an examination of all of the facts that will require consideration in any event. When that is taken alongside the constitutional challenge, weak though I think the constitutional challenge is, I am not persuaded that any of this should be dealt with by way of summary dismissal or strike-out.
(4) No damages are to be awarded to the plaintiff for pure mental harm if the recovery of damages from the defendant by or through the victim in respect of the act or omission would be prevented by any provision of this Act or any other written or unwritten law.
As Senior Counsel for the Commonwealth acknowledged, a difficulty with reliance on s 30(4) is the expanded definition of “damages” in s 3 of the Civil Liability Act:
damages includes any form of monetary compensation but does not include–
(a) any payment authorised or required to be made under a State industrial instrument, or
(b) any payment authorised or required to be made under a superannuation scheme, or
(c) any payment authorised or required to be made under an insurance policy in respect of the death of, injury to or damage suffered by the person insured under the policy.
Accordingly, the Commonwealth did not press the argument. I would indicate that I would not be persuaded to strike out the pleading on the basis of that argument were it pressed.
The Commonwealth further contended that the draft ASOC should not be permitted to proceed in the form in which it is currently advanced. There is some force in that. It strikes me that while it is not uncommon for plaintiffs to proceed by including what are really material facts in the particulars, in circumstances where the matter has been fully debated and the plaintiff needs the Court’s leave in order to amend the statement of claim, I should accede to the Commonwealth’s submission that that leave should not be granted except on the basis of a pleading in which material facts are pleaded as material facts so that the Commonwealth has an opportunity to plead and respond to those material facts.
The Commonwealth also expressed concerns that struck me as well made in relation to the particular drafting of those paragraphs in which the alleged incident on 1 October 2020 was pleaded. It strikes me that if the material facts are pleaded, those concerns are likely to be addressed.
The Commonwealth also expressed concerns about the adequacy of the pleading as to the allegation that the Commonwealth’s duty of care owed to the first plaintiff was non-delegable. Given that the plaintiff will be required to replead anyway, I invite the plaintiff to give attention to that matter, although I would observe that if the facts on which the plaintiff relies do not establish that any duty owed is non-delegable, then the plaintiff will not succeed on that allegation.
As to the duty alleged by the second plaintiff, again, a significant part of the Commonwealth’s concern was that material facts were set out in the particulars, rather than being pleaded. It may be that pleading those material facts significantly addresses the Commonwealth’s concern. As I have indicated, while both parties appear to accept before me that the claim sought to be pleaded against the second plaintiff is novel, nevertheless, it strikes me that, reasoning incrementally, it is not difficult to see how that claim is analogous to a well-recognised duty of care that may be owed to family, being the duty of care that is owed to the immediate family members of employees by an employer: see, eg, Annetts v Australian Stations Pty Limited (2002) 211 CLR 317; [2002] HCA 35 and s 30 of the Civil Liability Act 2002 (NSW).
Nevertheless, I will give the plaintiff an opportunity to propound a further statement of claim, and to the Commonwealth to consider whether it seeks to be heard further in relation to it, always mindful that if the plaintiffs’ claim is confined to particular facts and those facts do not make good a basis for finding a duty, then subject to considerations of procedural fairness and amendments, that will be a powerful point in the Commonwealth’s favour at final hearing.
For all those reasons, the Court makes the following orders:
(6) If satisfied that the matter can be dealt with in chambers, it is the Court’s intention to do so;
(7) The plaintiffs’ notice of motion filed 12 May 2025 will be dealt with at the same time as the plaintiffs’ amended notice of motion filed 22 August 2025.
**********
French
Commonwealth of Australia [2026] NSWSC 112
(2002) 211 CLR 317
(2000) 203 CLR 136
(1996) 40 NSWLR 199
(2017) 55 VR 108
(2005) 222 CLR 115
(2000) 204 CLR 493
(1996) 187 CLR 416
In those circumstances, where there is a live debate about whether the reasoning in Flaviano and Ross applies to the present circumstance, and in circumstances where that issue arose during oral argument today, I am not minded to strike out or summarily dismiss the proceedings on the basis of those authorities. That may be a matter that warrants attention later but as I say in circumstances where the proceeding otherwise is pleadable, and where the plaintiffs have an argument that I am not ruling on as to the constitutional validity of ss 388 and 389, it is undesirable to deal with the point taken by reference to Flaviano or Ross at the summary dismissal stage.
I should add that I have also taken into account the Commonwealth’s reliance on the observations of the Victorian Court of Appeal in FJ at [133]. As their Honours observe in that paragraph, the expression “in respect of” in s 388(1) is a connecting phrase that extends the reach of the bar. However, the Court of Appeal was not dealing with a situation like the present, and it strikes me that the operation of their Honours’ observations to a situation where a new injury is the subject of a claim is attended by real doubt. It seems to me that such questions are better resolved at trial, in the context of full evidence as to the nature of the old injuries for which compensation has been recovered, and the nature of the alleged fresh injuries.
Ultimately, if the first plaintiff’s construction is correct in relation to fresh injuries or deterioration – which I find to be at least reasonably arguable – then determining what the first plaintiff can or cannot recover on the basis of this argument alone will require attention to;
Dismiss the defendant’s amended notice of motion dated 26 September 2025;
In relation to the plaintiffs’ amended notice of motion, direct the plaintiffs to serve on the first defendant a further draft amended statement of claim within 7 days of today;
Direct the Commonwealth to indicate to the plaintiffs within 7 days of that date whether the Commonwealth maintains opposition to the grant of leave;
If the Commonwealth does not maintain opposition the parties are to inform the Associate to Justice Emmett within 7 days and in that event, leave will be granted in chambers;
If the Commonwealth does maintain opposition to a grant of leave, the parties are to file and serve and send to the Associate to Justice Emmett submissions of no more than 5 pages setting out their respective positions on the draft further amended statement of claim and whether the matter can be dealt with in chambers.
The Court makes the following notations: