Pertzel v Qld Paulownia Forests Ltd & Anor [2008] QCA 287

SUPREME COURT OF QUEENSLAND

CITATION: Pertzel v Qld Paulownia Forests Ltd & Anor [2008] QCA 287

PARTIES: BERT ALFRED PERTZEL (plaintiff/respondent) v QLD PAULOWNIA FORESTS LTD (first defendant/not a party to the appeal) ALLIANZ AUSTRALIA INSURANCE LIMITED ABN 15 000 122 850 (second defendant/appellant)

FILE NO/S: Appeal No 2073 of 2008 / DC No 1084 of 2004

DIVISION: Court of Appeal

PROCEEDING: Application for leave s 118 DCA (Civil)

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 19 September 2008

DELIVERED AT: Brisbane

HEARING DATE: 25 July 2008

JUDGES: Keane JA, Mackenzie AJA and Lyons J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Application for leave to appeal grantedAppeal allowed and the orders below set aside only to the extent that questions (c) and (d) each be answered "No"Respondent to pay one quarter of the appellant's costs of the appeal to be assessed on the standard basis

CATCHWORDS: INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – RISKS INSURED – RELATIONSHIP WITH WORKERS' COMPENSATION CLAIMS – where the respondent commenced proceedings seeking compensation for injuries sustained whilst driving a vehicle belonging to his employer – where the appellant was the insurer of the vehicle – whether the respondent's claim was a "motor vehicle accident claim" as that term is defined under s 4 of the Motor Accident Insurance Act 1994 (Qld) / INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – RIGHTS AND LIABILITIES OF INSURER IN RESPECT OF DEFENCE AND COMPROMISE – QUEENSLAND – where the appellant acknowledged receipt of the respondent's claim and commenced the pre-trial procedures as required under the Motor Accident Insurance Act 1994 (Qld) – where the appellant was acting under the honestly held mistaken belief that the statutory policy of insurance covered the circumstances of the respondent's claim – where the appellant later sought to rely upon an exclusionary clause under the statutory policy of insurance to deny its liability to the respondent – where the respondent had pursued his claim against the appellant at the expense of other potential avenues for compensation – whether the commencement by the appellant of the pre-trial procedures under the Act constituted a binding representation that the insurance policy issued by the appellant responded to the respondent's injuries – whether the appellant was estopped from now relying upon the exclusionary clause in order to avoid its liability to the respondent / TRADE AND COMMERCE – TRADE PRACTICES ACT 1974 (CTH) AND RELATED LEGISLATION – TERMINOLOGY – TRADE OR COMMERCE – GENERAL PRINCIPLES – whether the appellant's dealings with the respondent in relation to the respondent's claim constituted conduct "in trade or commerce" – whether the appellant engaged in misleading or deceptive conduct "in trade or commerce" as prohibited under s 52 of the Trade Practices Act 1974 (Cth) / District Court of Queensland Act 1967 (Qld), s 118(3) / Motor Accident Insurance Act 1994 (Qld), s 4, s 37, s 41, s 44, s 52(4), Sch 1 cl 3(2) / Trade Practices Act 1974 (Cth), s 52 / AAMI v NRMA Insurance (2002) 124 FCR 518; [2002] FCA 1061, cited / Beesly v Hallwood Estates Ltd [1960] 2 All ER 314, distinguished / Braverus Maritime v Port Kembla (2005) 148 FCR 68; [2005] FCAFC 256, cited / Brew v Followmont Transport Pty Ltd (No 2) [2005] 2 Qd R 482; [2005] QCA 245, distinguished / Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39, cited / Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; [1990] HCA 17, applied / De Innocentis v Brisbane City Council [2000] 2 Qd R 349; [1999] QCA 404, applied / Little v Law Institute of Victoria (No 3) [1990] VR 257, cited / Pertzel v Qld Paulownia Forests Ltd & Anor [2008] QDC 9, related / Sykes v Reserve Bank of Australia (1998) 88 FCR 511, cited

COUNSEL: D B Fraser QC, with M J Liddy, for the appellant / R J Douglas SC, with C J Cilento, for the respondent

SOLICITORS: Deacons for the appellant / Jensen McConaghy for the respondent

KEANE JA: The respondent is the plaintiff in an action for damages for personal injury suffered by him when the vehicle he was driving collided with a tree. The learned primary judge determined a number of questions in advance of the trial of the respondent's action. His Honour's principal conclusion was that the appellant, the licensed insurer of the vehicle in question, was estopped from contending that it is not liable to the respondent as it would be if the respondent's claim was a "motor vehicle accident claim" as that term is defined in s 4 of the Motor Accident Insurance Act 1994 (Qld) ("the Act").

The issue which is central to this conclusion by the learned primary judge, and which the appellant seeks leave to appeal to challenge in this Court, is whether a licensed insurer under the Act, who mistakenly acknowledges that a claim by an injured person is "a motor vehicle accident claim", can be estopped from subsequently resisting a claim for damages by the plaintiff on the footing that the claim is, in truth, not a "motor vehicle accident claim".

Under s 118(3) of the District Court of Queensland Act 1967 (Qld), leave is necessary to enable the appeal to proceed because the decision of the learned primary judge was not a final judgment. The arguments advanced on behalf of the appellant involve matters of sufficient substance that it is convenient to reserve the question of leave and to proceed to a consideration of the merits of those arguments.

The background to the respondent's claim

On 2 April 2001 the respondent was driving a truck in the course of his employment by Qld Paulownia Forests Ltd ("the employer") when the truck left the roadway and collided with a tree stump. As a result of the collision, the respondent suffered personal injuries. The respondent's employer is in liquidation and took no part in the proceedings below and in this Court.

The appellant was the licensed insurer of the truck under a policy of insurance issued pursuant to the Act. The respondent's solicitors sent a notice of claim to the appellant under s 37 of the Act. After some initial hesitation, the appellant confirmed to the respondent's solicitors that the notice of claim complied with s 37 of the Act.

The respondent commenced proceedings on 23 March 2004, alleging that his injuries had been caused by the employer's breach of its duty to exercise reasonable care to provide the respondent with a safe system of work and safe equipment. In the appellant's defence delivered on behalf of itself and the employer on 8 October 2004, it was not suggested that the plaintiff would not be entitled to judgment against the appellant pursuant to s 52(4) of the Act if he proved his case.

On 19 August 2005 the appellant filed an amended defence asserting, for the first time, that the terms of the policy issued by it under the Act in respect of the truck excluded liability in the appellant to indemnify the employer in respect of its liability for the respondent's injury. The appellant relied upon the exclusionary provision in cl 3(2) of the policy issued by the appellant under the Act. This provision was in the following terms:

"This policy does not insure an employer against a liability to pay damages for injury to an employee if–

(a) the injury arises from the employer's failure to provide a safe system of work for the employee or the employer's breach of some other duty of care to the employee; and

(b) neither the employer nor another employee of the employer was the driver of the motor vehicle at the time of the motor vehicle accident out of which the injury arose."

The genesis of this exclusionary provision of the statutory policy of insurance, and the circumstance which gave rise to the misunderstandings which bedevilled the parties on each side of the action, were conveniently summarised by his Honour:

"This exclusion was inserted into the policy by an amendment made by the Motor Accident Insurance Amendment Act 2000 which took effect on 1 October 2000. That amendment act, which made quite a number of changes to the Act, was designed to address an environment of rising compulsory third party premiums. Although it was not said as frankly as this in the explanatory note, essentially this was done by reducing the benefits available in various ways, such as restricting legal costs recoverability for smaller claims so as to make them uneconomic, introducing a cap on economic loss claims, and restricting claims for loss of consortium or servitium, and gratuitous care claims. There had always been in the statutory policy an exclusion of liability of an employer for worker’s compensation, and according to the explanatory note the amendment to the schedule 'strengthens the exclusions under the policy of insurance to specifically exclude a failure of an employer to provide a safe system of work.' Presumably the intention was that the burden of these claims would be transferred from motor vehicle insurers to WorkCover.

Curiously, however, although the scope of the policy was restricted in this way, there was no equivalent amendment to s 5 dealing with the application of the Act. It would seem to follow that although the Act still applied in circumstances within the exclusion, the policy did not provide insurance cover to the employer."¹

In July 2006 the respondent accepted an offer of workers' compensation in respect of his injuries from WorkCover Queensland.

On 10 August 2007 the respondent filed an amended claim and statement of claim alleging that the employer, by the conduct of the appellant in relation to the claim in his action, had engaged in conduct by which it represented that the compulsory third party insurance policy in respect of the truck did respond to the respondent's claim, and that the appellant was liable to pay to the respondent any amount of damages recoverable by the respondent against the employer. The respondent made a claim in the alternative for damages for misleading and deceptive conduct in trade or commerce on the part of the appellant pursuant to s 52 of the Trade Practices Act 1974 (Cth).

When the appellant persisted in relying upon the exclusion, the respondent filed a reply in which he contended that the appellant was estopped from contending that it was not liable to the respondent under the Act, or had waived the right to contend to that effect.

The decision below

The parties agreed to seek the court's decision of a number of questions separately from all other questions in the proceedings. The learned primary judge answered the questions posed for his determination as follows:

"…

(a) Is the claim made by the plaintiff in these proceedings a 'motor vehicle accident claim' as that term is defined in s 4 of the Motor Accident Insurance Act 1994 (Qld)?

Answer: No.

(b) If the answer to (a) is in the negative:

(i) Is the second defendant estopped or precluded, and if so to what extent, from contending that:

(A) the plaintiff's claim in these proceedings is not a 'motor vehicle accident claim' as that term is defined in the Motor Accident Insurance Act; or,

(B) it is not liable to pay such claim, if adjudicated in the plaintiff's favour, as if it were 'a motor vehicle accident claim' as so defined?

Answer: Yes in respect of both (A) and (B).

(ii) Has the second defendant waived any right it may have had to contend that the plaintiff's claim in these proceedings is not a 'motor vehicle accident claim' as so defined?

Answer: No.

(c) Do the provisions of s 52 of the Trade Practices Act 1974 (Cth) apply to any or all of the second defendant's pleaded conduct in these proceedings?

Answer: Yes.

(d) If yes to (c), by any of the pleaded conduct to which it is applicable, by engaging in such conduct, did the second defendant contravene s 52 of the Trade Practices Act?

Answer: Yes.

(e) If yes to (d), has the plaintiff suffered loss and damage by such contravening conduct, pursuant to s 82 of the Trade Practices Act?

Answer: No."²

Question (b)(i)

In deciding question (b)(i) adversely to the appellant, the learned primary judge analysed in detail the history of the dealings between the parties in relation to the respondent's claim.

As his Honour observed, the respondent's solicitors were, initially at least, solely responsible for the mistaken view that the respondent's claim was a "motor vehicle accident claim" for the purposes of the Act. In this regard, his Honour said:

"In the present case the notion that the plaintiff was injured in what was a 'motor vehicle accident' for the purposes of the Act, and that the plaintiff’s claim was a motor vehicle accident claim for the purpose of the Act, came initially from the plaintiff (or rather his solicitors). The first solicitor handling the matter believed it was a claim under the Act, and so notice was given of the claim purportedly pursuant to s 37 of the Act dated 31 July 2001 by the solicitors on behalf of the plaintiff. Under s 17(a) of the Motor Accident Insurance Regulation 2004 the notice of claim must be in the approved form, which was used. That form said that it was to be used 'if you personally suffered an injury in a motor vehicle accident which was wholly or partly the fault of some other person'. It was forwarded under cover of a letter from the solicitors dated 14 August 2001, which expressly stated that it was forwarded pursuant to s 37 of the Act.

The claim form indicated that the owner of the vehicle and the plaintiff’s employer were one and the same, that the plaintiff was the driver at the time, and that the plaintiff alleged that the handbrake was not connected, and the accident occurred after the airbrakes had 'leaked out', which presumably reduced their efficiency, when the truck had stalled. The description of the accident included a reference to the vehicle being loaded with woodchips. Although there was not an express statement that the plaintiff was required to drive the vehicle in the course of his employment, it is I think a reasonable inference from what was stated. On the face of the information contained in the Notice of Accident form, therefore, it should have been apparent that exclusion 3(2) of the policy in the schedule applied; at the least, the prospect of this should have been suggested by these facts."³

The appellant's response to the respondent's notice of claim form proceeded on the same mistaken assumption as had been made on the respondent's side.⁴ His Honour took the view that the appellant demanded information of the respondent to which the appellant was entitled only if the respondent had suffered the injuries in respect of which he was making his claim as a motor vehicle accident claim for the purposes of the Act.⁵ In this regard, his Honour said:

"By a letter dated 1 October 2001 the second defendant, after repeating the reference to the effect of s 30 of the Act and the assertion about the identity of the insurer (which appeared on every letter written by the second defendant in relation to this claim), advised again that the 'Notice of Accident claim form still does not comply with the requirements of s 37 of the Act. The second defendant expressly did not waive the non-compliance, and required compliance to be attended to without further delay. That involved an implied assertion that the obligation of s 37 did fall on the plaintiff if the plaintiff wished to pursue a claim for damages for personal injuries arising out of this accident. The additional information form was signed by the plaintiff on 6 September 2001 and presumably forwarded to the second defendant on 16 October; it was acknowledged by a letter of 25 October 2001, and on 30 October 2001 the second defendant confirmed that as a result of the information contained in the letter of 16 October 2001 'the notice now complies with the requirements of s 37 of the Act. The second defendant went on to request copies of any medical reports or other documentary material relevant to the claim pursuant to s 45(2) of the Act. Section 45(2) imposes an obligation on a 'claimant'. It follows from the definitions of 'claimant' and 'claim' in s 4 that this means a person by whom or on whose behalf a motor vehicle accident claim was made. It would only have applied if the plaintiff had suffered his injuries in a 'motor vehicle accident' for the purposes of the Act."

The appellant criticised the approach of the learned primary judge on the basis that the appellant, by responding to the respondent's claim, was doing no more than it was obliged to do by the provisions of the Act which require a response to a claim. In this regard, s 4 of the Act defines the term "motor vehicle accident" to mean "an incident from which a liability for personal injury arises that is covered by insurance under the statutory insurance scheme", being the insurance scheme established by the Act. The term "motor vehicle accident claim" is relevantly defined to mean "a claim for damages based on a liability for personal injury arising out of a motor vehicle accident …" The appellant's point is that to respond to a claim, which is merely an assertion of a number of propositions, is not to confirm that the assertion is in some particular respect correct: it is merely to acknowledge that the assertion is being made and to state the responding party's attitude to the assertion. There is force in the appellant's criticism, but, as will appear, I do not consider that it is decisive of the case.

By letter dated 25 February 2002, the appellant wrote to the respondent's solicitors admitting liability for the respondent's injuries to the extent of 60 per cent. This letter is important, and so it is desirable to set it out in full:

"We have considered all of the information which is presently available to inform ourselves of the circumstances of this accident.

We consider that our insured breached a duty of care and that this breach contributed to the cause of this accident. However, we consider that contribution also lies with your client on the basis that he agreed to drive the vehicle although the handbrake was not connected and/or failed to report that the vehicle’s handbrake was not connected.

Therefore we admit liability to the extent of 60%.

Please note that:

**·**This admission does not extend to any injury, loss or damage alleged to have been sustained as a result of the accident nor their consequences.

**·**This admission is made pursuant to our obligations as imposed by Section 41 of the Motor Accident Insurance Act 1994 ('the Act').

**·**This admission is not intended to be an offer nor to form the basis of a contract between FAI Allianz Ltd and your client.

**·**We reserve our right to rely on any Statute which imposes a time limit on the commencement of proceedings should your client fail to comply with that requirement.

**·**In the event of that you or your client should receive communication (written or otherwise) from FAI Allianz Ltd or their legal representatives for the purpose of progressing the investigation and ultimate resolution of this claim, it should be noted that despite such communication, it is the intention of FAI Allianz Ltd to maintain reliance upon any statutory provision which imposes a time limit or any other constraint upon the commencement of legal proceedings. Therefore any claim to an estoppel being caused by such correspondence will be denied and defended appropriately."

In relation to this letter, the learned primary judge said:

"The second defendant wrote to the plaintiff’s solicitors on 25 February 2002, purporting, pursuant to s 41 of the Act, to admit liability to the extent of 60%. Section 41 imposes an obligation on the insurer who has received notice of a 'motor vehicle accident claim' to give a notice advising the claimant whether liability is admitted or denied, and if contributory negligence is claimed, the degree of contributory negligence expressed as a percentage. The letter was not in accordance with that requirement; it purported to 'admit liability to the extent of 60%', when it should have admitted liability, claimed contributory negligence and alleged a degree of contributory negligence of 40%. Nevertheless, the letter was plainly in purported compliance with s 41, and therefore implied an assertion that s 41 of the Act applied.

The second defendant had no authority to make the sort of admission of liability contemplated by s 41 of the Act (As to the effect of this, see Till v Nominal Defendant [2000] 2 Qd R 676) unless the plaintiff’s claim was a motor vehicle accident claim for the purposes of the Act. It involved an admission that the first defendant breached a duty of care owed to the plaintiff. Given that it was clear from the material provided that the plaintiff was the first defendant’s employee, this involved an admission or assertion that any injury suffered by the plaintiff arose from the employer’s breach of a duty of care to the employee, which satisfied the requirement of clause 3(2)(a) of the policy. The letter also expressly referred to the plaintiff’s having agreed to drive the vehicle, which satisfied subclause (b); this was part of the basis of the allegation of contributory negligence, based on his having known that the handbrake was not connected when he drove the vehicle prior to the accident.

The letter went on to note that the admission did not extend to any injury or loss or damage alleged to have been sustained as a result of the accident, that it was not intended to be an offer nor form the basis of a contract, that the second defendant reserved its right to rely on any statute which imposed a time limit on the commencement of proceedings, and that notwithstanding any further communication for the purpose of progressing the investigation and the ultimate resolution of the claim 'it is the intention of FAI Allianz Ltd to maintain reliance upon any statutory provision which imposes a time limit or any other constraint upon the commencement of legal proceedings. Therefore, any claim to an estoppel being caused by such correspondence will be denied and defended appropriately.'"⁶

His Honour referred to the authorities which explained the origin of the disclaimers which appeared in the letter of 25 February 2002, and went on to say:

"It does not follow, however, that the letter of 25 February 2002 is incapable of giving rise to any estoppel at all. The letter expressly reserved the right to rely on any time limit, and referred to an estoppel being caused by future correspondence, but did not expressly reserve the right to do something which would be completely inconsistent with making an admission under s 41, namely asserting that the claim was not a motor vehicle accident claim for the purposes of the Act. The letter did not assert that there was no statutory right to proceed against the insurer, as provided by the Act if it were a motor vehicle accident claim; on the contrary, the letter asserted that any proceeding to enforce the claim was to be brought within any statutory time limit, and was required to comply with any other constraints upon the commencement of the proceedings, presumably those in the Act. That assumed that proceedings to enforce the claim were contemplated, and in the context of the requirement under the Act for any proceeding to be commenced against the second defendant as well as the first, it seems to me clear the letter was talking about a proceeding against the second defendant pursuant to the Act, something which can only be brought in the case of an action for damages for personal injury arising out of a 'motor vehicle accident' for the purposes of the Act: s 52(1)."⁷

By January 2004, there had not yet been a compulsory conference in respect of the respondent's claim. The limitation period was due to expire on 2 April 2004. The respondent's solicitors took steps to enable proceedings to be commenced notwithstanding non-compliance with the pre-commencement provisions of the Act. On 18 March 2004 the parties agreed to a consent order that the respondent have leave to bring proceedings against the employer and the appellant for damages for personal injury arising out of a motor vehicle accident "pursuant to s 39(5)(c)(ii)" of the Act.

The respondent's action was commenced, as I have said, on 23 March 2004. In the appellant's defence of 6 October 2004, the appellant admitted that the employer was insured under a policy issued pursuant to the Act. Strictly speaking, this admission was accurate: the point later taken by the appellant was that the policy which insured the employer did not cover the employer's liability for this particular claim.

His Honour noted some of the material parts of the appellant's pleaded defence:

"The defence also admitted the allegation in para 16 of the statement of claim that the plaintiff had complied with the WorkCover Queensland Act 1996. That was a somewhat curious admission, in circumstances where, if the Act did not apply, or more precisely, if the Act did not impose an obligation on the first defendant to have insurance in respect of the liability to the plaintiff alleged in the claim and statement of claim, there was a good deal in the WorkCover Queensland Act 1996 which prevented the plaintiff from taking proceedings in a court against the first defendant. The plaintiff had not given a notice under s 280 of that Act to WorkCover, there had not been a compulsory conference as contemplated by s 293 of that Act, the requirements of s 303 of that Act had not been satisfied, and the court had not under s 305 given leave to bring proceedings notwithstanding non-compliance with s 280 (Bonser v Melnacis [2002] 1 Qd R 1). In these circumstances, the plaintiff was able to bring the present action against the first defendant only if the plaintiff’s claim was in respect of a liability to pay damages for personal injury which was within the scope of the cover provided by a policy under the Act.

No doubt in practice the admission of the allegation that the requirements of the WorkCover Queensland Act 1996 had been complied with occurred on the instructions of the second defendant, rather than the first defendant. The authority of the second defendant to make that admission on behalf of the first defendant was itself dependent upon the liability of the first defendant to the plaintiff being one covered by the second defendant’s statutory policy of insurance: s 44. The admission was not one which was otherwise binding on the first defendant, or for that matter on WorkCover: s 44(3).

There was nothing in the defence at that time to suggest any liability of the first defendant to the plaintiff in respect that the plaintiff’s claim was not recoverable from the second defendant pursuant to the Act. The defence asserted that the truck was roadworthy at the time of the collision, and that the collision was caused by or contributed to by the negligence of the plaintiff in, among other things, overloading the truck."⁸

The learned primary judge then discussed, at some length, the authorities on estoppel. His Honour's analysis of the facts of the case was focused by the statement of Deane J in The Commonwealth v Verwayen⁹ where it was said that, for a defendant to be estopped from resiling from an assumption generated in the other party, the defendant "must have played such a part in the adoption of, or persistence in, the assumption that he would be guilty of unjust and oppressive conduct if he were now to depart from it."

His Honour came to the conclusion that the appellant's role in creating the assumption which led to the respondent's persistence in his pursuit of the claim against the appellant rather than a claim against the employer and WorkCover Queensland was such that it was unconscionable of the appellant to seek to resile from that assumption. In this regard, his Honour said:

"Section 41 expressly requires the insurer to take reasonable steps to inform itself of the circumstances of the motor vehicle accident out of which the claim arises. This is not a situation therefore where the insurer is expected simply to decide how it is appropriate to respond to the claim, and may well respond to the claim simply by deciding to rely on what the claimant says about the claim. The statute requires the insurer to inform itself of the relevant circumstances, and there is no reason why that should not include circumstances relevant to the question of whether or not the claim was within the scope of the cover provided under the statutory policy. This is particularly appropriate in circumstances where it is required by the statute to give written notice of whether liability is admitted or denied, and in circumstances where the insurer is also required by subsection (2)(a) to make a fair and reasonable estimate of damages to which the claimant would be entitled in an action against the insurer. That involves a consideration of whether an action can be brought against the insurer, within s 52 of the Act.

Assuming that the effect of the decision in Brew is that a response under s 39 does not involve any implied representation as to the applicability of cover under the Act, the position in respect of the response under s 41 seems to me to be significantly different. It is the point at which, if the insurer is going to dispute a liability to indemnify the first defendant in respect of the plaintiff’s claim, that issue ought to be raised. In these circumstances, it seems to me that the effect of the Act, and in particular s 41, is that there was a duty on the second defendant, at least at the time when it purported to respond pursuant to s 41 of the Act, to state its position as to whether or not it was liable to satisfy the plaintiff’s claim if made out, or at least, if its position was that it was not so liable, to take that point at that time. Accordingly, in my opinion, a response under s 41 which does not raise the issue of whether the insurer is liable under the policy is capable of founding an estoppel preventing the insurer from disputing liability under the policy.

In the present case, however, there was much more than that. There have been a whole series of steps taken by the second defendant which were consistent only with its being liable to satisfy the plaintiff’s claim which came to be the subject of the action if it were made out. Insistence on compliance with s 37 of the Act, requiring additional information purportedly under s 37A of the Act, purporting to advise in accordance with s 39(1)(a)(iv) of the Act, relying on s 45(2) of the Act to obtain information in relation to the plaintiff’s claim, undertaking the conduct and control of negotiations and a proceeding under s 44(1), consenting to orders purportedly under ss 39(5)(c)(i), 51A(5) and 51C(11), and foreshadowing settlement negotiations prior to the holding of a conference under the terms of the order which was made, and for that purpose postponing taking further steps in the action. All of those maters occurred before the limitation period expired. Indeed, even after the limitation period expired, the second defendant continued for a further 18 months to behave as though the claim were one it was liable to meet, conducting the negotiations and legal proceeding, including putting in a defence to the action which was plainly consistent only with that state of affairs. Throughout the whole period from the time when the notice of claim was first received until August 2005, the second defendant behaved as though it was responsible for satisfying any proper claim the plaintiff had against the first defendant.

I am not suggesting that the second defendant was engaged in any wrongdoing in adopting this attitude. The position was simply that the second defendant had itself fallen into the same legislative trap created by the amendment to the terms of the statutory policy in 2000 into which the plaintiff (or rather the plaintiff’s solicitors) had previously also fallen. It really demonstrates how unsatisfactory the legislation became as a result of this amendment, that even licensed insurers who are dealing with claims under the Act all the time can make this sort of mistake. Nevertheless, the question of whether it is unconscionable for the second defendant now to be able to take the point depends not on the position of the second defendant, but on the position of the plaintiff if the point is now able to be taken."¹⁰

The learned primary judge considered the extent of the respondent's reliance upon the position taken by the appellant in failing to take steps to preserve his rights against WorkCover Queensland. His Honour found that the respondent's legal advisers would have taken steps to preserve his rights to pursue a claim under the WorkCover regime had the appellant disputed whether the policy issued by it under the Act responded to the respondent's claim for damages. His Honour concluded:

"In all the circumstances, I am satisfied that the requirements for an estoppel laid down in the judgment of Deane J in Verwayen (supra) were satisfied in the present case. The second defendant is estopped from denying that it is responsible for satisfying any damages the plaintiff is entitled to recover from the first defendant in the action, or that if the plaintiff can make out a good claim for damages against the first defendant judgment can be given against it for that amount. In these circumstances, it is appropriate to answer question (b)(i) 'yes, in respect of both (A) and (B).'"¹¹

It is to be noted that fundamental to his Honour's conclusion that the appellant played such a part in the adoption of the erroneous assumption that the respondent's claim was, in truth, a motor vehicle accident claim that the appellant was estopped from asserting otherwise, was his Honour's understanding of the nature and extent of the responsibility imposed on a licensed insurer by s 41 of the Act. It will be necessary to consider more closely in due course his Honour's view that the effect of s 41 of the Act was to impose a duty on the appellant to state "whether or not it was liable to satisfy the [respondent's] claim if made out, or … to take that point at that time" as the learned primary judge held.

Question (c)

In relation to question (c), the learned primary judge accepted the respondent's contention that the second defendant was engaged in trade or commerce in its dealings with the respondent's claim. In this regard, his Honour's essential reasoning can be seen in the following passages:

"Although the statutory scheme contemplates that the process of making and processing claims will occur between the claimant and the insurer, rather than between the insured and the insurer as in the ordinary case, I do not think that that detracts from the essential identification of the process involved as the ordinary processing of claims which arise in the course of the insurance business concerned, so that steps which are taken in the course of that process are steps taken in trade or commerce, as part of the ordinary run of the licensed insurer’s business. The position might be different if the Act created a statutory corporation which provided services under a statutory monopoly as a public service, such as the Nominal Defendant; it is unnecessary finally to decide that question, but it seems to me that the arguments advanced on behalf of the second defendant as to why it was not engaged in trade or commerce when dealing with a particular claim would apply with more force if advanced in the context of the operation of the Nominal Defendant.

In my opinion what is occurring here is not the performance of a statutory function, but rather the carrying on of an ordinary business activity, albeit in a way which is closely regulated by the statute, and in accordance with that regulation. That the process is so regulated does not deprive it of its ordinary character of being in trade or commerce, which it receives from the fact that the carrying on of this insurance business in this way is part of the ordinary business activity of the second defendant as an insurer, and specifically as a licensed insurer under the Act. It is carrying on this activity not because that is its function given to it by the statute, but because it chooses to carry on business as a licensed insurer, because that is its business. Accordingly, the process of handling particular claims is part of the ordinary business activity of a licensed insurer, and is therefore conduct in trade or commerce for the purposes of s 52.

…

It was submitted for the second defendant that the actions of a CTP insurer under the Act were not something which required consumer protection provided under the Trade Practices Act, and that there is no open market in respect of this activity. It seems to me, as I have previously indicated, that the Act assumes that there will be at least some sort of a market for CTP insurance, although the way in which owners of registered vehicles access the market is to some extent restricted by the Act. As to the submission about the mischief test, it seems to me that this argument, to have any force, would have to operate as a reading down of the operation of the Trade Practices Act. There is nothing in the Trade Practices Act to suggest that it was not intended to operate in the case of insurers, or in the more limited case of insurers offering CTP policies under the Act. The operation of the Queensland Act cannot restrict the scope of operation of the Commonwealth Act. I do not find that submission persuasive."¹²

Question (d)

In relation to question (d), his Honour said:

"I have already referred earlier to the effect that these various communications and other Acts of the second defendant had, in terms of the operation of the Act. It follows from what I have said earlier that in my opinion the combined effect of that conduct was to represent that the compulsory third party insurance policy issued by the second defendant to the first defendant in respect of the vehicle involved in the incident the subject of the plaintiff’s claim did respond to the plaintiff’s claim, that the second defendant was liable for any damages proved by the plaintiff against the first defendant in respect of the collision involving the truck, and that the second defendant was so liable as the compulsory third party insurer under the Act of the first defendant. These are all just aspects of the broader proposition, that the second defendant was responsible for satisfying the plaintiff’s claim for damages from the first defendant, to the extent that it was a good claim, referred to earlier. The question then is whether that was misleading or deceptive.

That was a representation as to a present existing state of affairs, and not a representation as to the state of mind of the second defendant. Whether the second defendant was responsible for satisfying the plaintiff’s claim, if any, was something which depended upon the circumstances of the claim and the terms of the policy. Both of those were matters of historical fact as at the time when all of that conduct occurred. Whether conduct is misleading or deceptive does not depend on the intention of the corporation (Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 223), and conduct can be misleading or deceptive even if the corporation has taken great care to avoid that consequence (Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 140 CLR 191 at 197).

The submissions on behalf of the second defendant conceded that a representation as to a matter of law may be misleading or deceptive if it is not correct, although it was submitted that this applied only if it was made known to the corporation that the recipient of the representation relied upon the expertise of the corporation (Based on the reasons in SKF Hoists (supra) at 51,607-8). That is a separate question from the question of whether a representation as to a legal position can amount to misleading or deceptive conduct; it is concerned with the question of causation for the purposes of s 82, not the question of whether there has been a breach of s 52 of the Act. It is sufficient in my opinion if the representations made were intended by the second defendant to be acted on, and it was reasonable for the plaintiff to have acted on them. Until August 2005 the second defendant was, objectively, behaving as it if intended the plaintiff to treat it as the insurer responsible for the plaintiff’s claim, and it was reasonable for the plaintiff to do so, as I have found. It is also not to the point that the person misled had been careless or could have discovered the misrepresentation for himself (Henville v Walker [2001] HCA 52 [140], [165]; 206 CLR 459). Under the Trade Practices Act as it stood at the relevant time contributory negligence was not a defence, or even a matter which gave rise to a reduction in damages.

For practical purposes, in a context such as the present, a representation will be misleading if it is incorrect (SKF Hoists (supra) at pp 51,606-8). If the representation was made, as I have found, that the second defendant was responsible for satisfying the plaintiff’s claim for damages, then as I have already concluded the representation was incorrect. The real issue is whether that representation was made by the second defendant’s conduct, and I have already decided that point against the second defendant. Once it is concluded that the representation was made, it seems to me, with respect, that the representation was obviously misleading or deceptive. Accordingly, the answer to question (d) is 'yes'."¹³

Question (e)

The learned primary judge's answer to question (e) reflects his Honour's conclusion that, because he had determined that the appellant was estopped from denying that the respondent's claim was covered by the statutory policy of insurance, the respondent had not suffered any loss or damage by reason of the appellant's contravention of s 52 of the Trade Practices Act.

The appellant's arguments in this Court

The appellant contends that the learned primary judge erred in three respects: first, that his Honour misunderstood the effect of s 41 of the Act; secondly, that his Honour erred in concluding that the appellant's dealings with the respondent in relation to the respondent's claim constituted conduct in trade or commerce; and, thirdly, that his Honour erred in concluding that the appellant, in failing to alert the respondent that the appellant did not accept that the claim was a motor vehicle accident claim, engaged in misleading and deceptive conduct.

Section 41 of the Act

The appellant's first argument requires a consideration of the effect of s 41 of the Act. It is in the following terms:

"Insurer must attempt to resolve claim

(1) Within 6 months after an insurer receives notice of a motor vehicle accident claim under this division, the insurer must–

(a) take reasonable steps to inform itself of the circumstances of the motor vehicle accident out of which the claim arises; and

(b) give the claimant written notice stating–

(i) whether liability is admitted or denied; and

(ii) if contributory negligence is claimed–the degree of the contributory negligence expressed as a percentage; and

(c) if the claimant made an offer of settlement in the notice of claim, inform the claimant whether the insurer accepts or rejects the offer or, if the claimant did not make an offer of settlement in the notice, invite the claimant to make a written offer of settlement.

(2) As soon as practicable after an insurer receives notice of a claim under the division, the insurer must–

(a) make a fair and reasonable estimate of the damages to which the claimant would be entitled in an action against the insurer; and

(b) make a written offer (or counteroffer) of settlement to the claimant setting out in detail the basis on which the offer is made, or settle the claim by accepting an offer made by the claimant.

(3) If a notice of claim is not given as required under this division, the insurer is taken to receive the notice when–

(a) the insurer gives the claimant notice that the insurer waives compliance with the requirement that has not been complied with or is satisfied the claimant has taken reasonable action to remedy the noncompliance; or

(b) the court makes a declaration that the claimant is taken to have remedied the noncompliance, or gives leave to bring a proceeding based on the claim despite the noncompliance.

(4) An offer (or counteroffer) of settlement must be accompanied by a copy of medical reports, assessments of cognitive, functional or vocational capacity, or other material in the offerer’s possession that may help the person to whom the offer is made make a proper assessment of the offer.

(5) An insurer or claimant to whom a written offer (or counteroffer) of settlement is made must (unless a response to the offer is to be made under subsection (1)(c)) respond in writing to the offer, within 3 months after receiving it, indicating acceptance or rejection of the offer.

(6) An admission of liability by an insurer under this section–

(a) is not binding on the insurer on another claim arising out of the same motor vehicle accident; and

(b) is not binding on the insurer at all if it later appears the admission was induced by fraud."

It is desirable to note, as well, the terms of s 44 of the Act. It is in the following terms:

"Power of insurer to act for insured

(1) If a motor vehicle accident claim is made against an insured person, the insurer–

(a) must undertake the conduct and control of negotiations and legal proceedings related to the claim; and

(b) may compromise or settle the claim or legal proceedings related to the claim and act for the insured person in any other way in relation to the claim.

(2) The insured person must sign any documents necessary to give effect to this section and, if the insured person does not sign or is dead, absent or can not be found, the insurer may sign for the insured person.

(3) Nothing said or done by an insurer in connection with a motor vehicle accident claim, or legal proceedings related to a motor vehicle accident claim, is an admission of liability in, or otherwise prejudices or affects, another claim or proceedings arising out of the same circumstances."

The appellant argues that to say that the appellant's letter of 25 February 2002 "did not assert that there was no statutory right to proceed against the insurer"¹⁴ is distinctly not to say, as did the learned primary judge, that the appellant offered the respondent, or his legal advisers, an assurance that the appellant would not raise such a contention if it became aware of a basis for doing so. Further, the appellant argues that, to the extent that the appellant laboured under the same misconception as affected the respondent's lawyers, s 41 of the Act imposed no obligation on the appellant to correct the respondent's lawyers' error. There was nothing in the appellant's purported performance of its obligations under s 41 of the Act to suggest that it acted otherwise than in good faith, and, in such circumstances, so it was contended by the appellant, there was nothing unconscionable in the appellant asserting the true position against the respondent when it became aware of its error. I must confess that I was initially attracted by the force of these arguments.

Generally speaking, there is nothing unconscionable in seeking to defeat a claim by raising a defence of which one has not previously been aware. In this case, there is no suggestion here that the appellant intentionally led the respondent "up the garden path" so that the respondent found himself out of time to pursue a claim under the WorkCover regime. Both the appellant and the respondent's legal advisers laboured under the same failure to appreciate the effect of the statutory amendments made in 2000 to the policy of insurance issued under the Act.

It is difficult to see that there is anything unconscionable in a party raising a defence based on that change when it had previously dealt with the other party honestly, on the basis of its then knowledge and belief, unless it was obliged to ensure that the position it had previously conveyed to that party was based on an accurate understanding of the facts and the law applicable to that party's claim. Ordinarily, one party to litigation does not bear such a responsibility towards another party to litigation. It is difficult to imagine a more antagonistic relationship in proceedings conducted within a civil society than that which obtains between a plaintiff and a defendant within an adversarial system of litigation. Each party can, in general, expect the other to conduct itself fairly within the rules which govern the litigation, but neither party can expect the other to correct its own mistakes. Any attempt to do so could be expected to be rejected as, either an impertinence, or a case of "Greeks bearing gifts".

The question which arises in this case though is whether s 41 of the Act indicates an intention on the part of the legislature that, as between claimant and insurer, the insurer is obliged to state a position in relation to its liability to the claimant from which it may not be free to resile.

Further reference to the provisions of the Act which bear upon this point is necessary at this point. I am persuaded that these provisions serve to confirm that the s 41 response by a licensed insurer is intended to be taken seriously by a claimant so that a licensed insurer may not be at liberty to repudiate that response.

Section 3(c) of the Act states that one of the objects of the Act is "to encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents".

Under s 52(1) of the Act, an action brought in a court for damages for personal injury arising out of a motor vehicle accident must be brought against the insured person and the insurer as joint defendants. Section 52(4) of the Act provides relevantly that "[i]f judgment is given in favour of the claimant on the claim related to personal injury, the judgment must be given against the insurer and not the insured person …"

The text of s 41 of the Act makes detailed requirements of a licensed insurer in terms of the timeliness and content of its response to a claim in the context of the protocol prescribed by the Act for "the speedy resolution of personal injury claims resulting from motor vehicle accidents." Section 41(1)(b)(i) is of particular relevance here. In terms, it imposes on the insurer a responsibility to state to the claimant the insurer's considered position in relation to the insurer's liability to meet the claim. That statement of the insurer's considered position on liability necessarily involves the insurer's position on whether the claim is one which is covered by the statutory insurance policy. That is because, as was established by the decision of this Court in De Innocentis v Brisbane City Council,¹⁵ the liability of an insurer depends on the policy affording an indemnity to its insured. An admission of liability by an insurer of necessity involves, as one of its ingredients, an admission that the statutory policy responds to the claim. Thus when one speaks of the liability of an insurer in respect of a motor vehicle accident claim, one is necessarily speaking of a liability which exists because the statutory policy issued by the insurer responds to the claim upon its insured. By reason of the terms of s 41(1)(b)(i) of the Act, the obligation of an insurer is to state its considered position on the issue of its liability to the claimant, as distinct from its view of the liability of its insured to the claimant. In my respectful opinion, it is not appropriate to describe this obligation as a duty to correct a mistake on the part of the claimant as to whether the policy responds to the claim: rather, the provision imposes on the insurer a responsibility to state to the claimant its position in relation to the question of liability, and this necessarily involves stating its position in relation to whether the policy answers the claim.

It is only if a claimant can treat the insurer's considered statement of its position in this regard as an indication from which it is not free to resile that the claimant is able confidently to proceed either to resolve its claim by negotiation or to decide to pursue the litigious options available to it. I am confirmed in this view by the terms of s 41(6) of the Act which contemplates, at least, that an insurer may, in some circumstances the identification of which the Act leaves to the general law, be bound by an admission of liability. This is, I am persuaded, a sufficient basis for concluding that the insurer may be held to an estoppel where the claimant acts upon the insurer's statement of its position under s 41(1) of the Act so that options which would otherwise have been available to the claimant are lost as a result.

While it may be said that the appellant's offer in the letter of 25 February 2002 which contained an admission of "liability to the extent of 60%" was not in strict conformity with s 41(1)(b)(i) of the Act, it does not lie in the mouth of the insurer to contend that the letter of 25 February 2002 could not have been so regarded by the respondent. There can be no doubt that the letter was intended to be regarded by the claimant as the insurer's response under s 41 of the Act. While the precise extent of the appellant's liability was a matter for negotiation or litigation, it was reasonably open to the respondent and his advisers to proceed with the claim against the appellant on the footing that the liability of the appellant to the respondent was not disputed so far as the responsiveness of the statutory policy to the claim was an ingredient of the appellant's liability.

In Brew v Followmont Transport Pty Ltd (No 2),¹⁶ this Court was concerned with the operation of s 282 of the (now repealed) WorkCover Queensland Act 1996 (Qld), a provision analogous to s 39 but not s 41, of the Act. This Court held that WorkCover's response under that provision did not constitute a representation that the injury the subject of the injured person's claim was one in respect of which the policy of insurance issued under the WorkCover Queensland Act to the plaintiff's employer was available to meet the plaintiff's claim. Williams JA, with whom Jerrard JA and Wilson J agreed, went on to deal with a more general argument for an estoppel:

"It can be accepted for present purposes that WorkCover may by its conduct be estopped from denying or asserting a fact relevant to the litigation; so much was said by McPherson J., as his Honour then was, in Wilson v Austral Motors (Qld) Pty Ltd [1983] 2 Qd R 774 at 782. The appropriate test to be applied in determining whether or not a party is estopped is now to be derived from the reasoning of the High Court in Commonwealth of Australia v Verwayen (1990) 170 CLR 394. There Mason CJ said at 413:

'The result is that it should be accepted that there is but one doctrine of estoppel, which provides that a court of common law or equity may do what is required, but not more, to prevent a person who has relied upon an assumption as to a present, past or future state of affairs (including a legal state of affairs), which assumption the party estopped has induced him to hold, from suffering detriment in reliance upon the assumption as a result of the denial of its correctness.'

That was expanded upon by Deane J in his reasons; at 444 he relevantly said:

'The central principle of the doctrine is that the law will not permit an unconscionable – or, more accurately, unconscientious – departure by one party from the subject matter of an assumption which has been adopted by the other party as the basis of some relationship, course of conduct, act or omission which would operate to that other party’s detriment if the assumption be not adhered to for the purposes of the litigation.

Since an estoppel will not arise unless the party claiming the benefit of it has adopted the assumption as the basis of action or inaction and thereby placed himself in a position of significant disadvantage if departure from the assumption be permitted, the resolution of an issue of estoppel by conduct will involve an examination of the relevant belief, actions and position of that party.

The question whether such a departure would be unconscionable relates to the conduct of the allegedly estopped party in all the circumstances. That party must have played such a part in the adoption of, or persistence in, the assumption that he would be guilty of unjust and oppressive conduct if he were now to depart from it. The cases indicate four main, but not exhaustive, categories in which an affirmative answer to that question may be justified, namely, where that party … knew that the other party laboured under the assumption and refrained from correcting him when it was his duty in conscience to do so.'

The evidence in the present case, and a consideration of the provisions of the Act, does not persuade me that WorkCover was under a duty to indicate to the appellant at some earlier point of time than it did that it considered the appellant’s claim to be governed by the provisions of the MAI Act and not the Act. As already noted, WorkCover was not to know whether or not the appellant had contemporaneously taken steps to comply with pre-litigation requirements of the MAI Act. Further, WorkCover was not to know that the appellant’s solicitor was treating its s 282 response as containing some admission or representation beyond what was necessarily involved in a response pursuant to s 282 of the Act; in other words, WorkCover was not to know that the appellant’s solicitor was treating its responses of 15 and 28 May 2002 as an admission or representation that the appellant’s claim was validly made pursuant to the provisions of the Act …"¹⁷

Brew v Followmont Transport Pty Ltd (No 2) is distinguishable on the basis that s 41(1)(b)(i), properly construed, does cast the risk of a mistaken belief that the liability asserted by a claimant is covered by the statutory policy upon the insurer insofar as a claimant acts to his or her detriment on the faith of the insurer's considered statement of its position in this regard. In this case, one cannot say that the appellant was not to know that the respondent's lawyers would regard the appellant's s 41 response to the respondent's claim as a statement that the respondent's claim was one to which the policy responded as "a motor vehicle accident claim". In such circumstances, where the respondent has, in pursuing the claim under the Act at the expense of alternative paths to compensation, relied on that assertion, it would be unjust or unconscionable to allow the appellant now to resile from this position.

The appellant also sought to rely on the proposition that an estoppel "cannot be invoked to negative the operation of a statute"¹⁸ to argue that an estoppel cannot lie against the appellant to prevent it defending itself against a claim for which it is not, in truth, liable under the statutory insurance policy. But the proposition on which the appellant relies has no application here. The Act simply does not provide that a licensed insurer must not admit liability in respect of a claim which is not covered by the statutory policy. The appellant, by admitting its liability to the respondent, was not acting contrary to any provision of the Act.

For these reasons, I consider that the appellant's contention that the learned primary judge erred in his answer to question (b) must be rejected.

Trade or commerce

The appellant advances its second argument in reliance upon the decision of the High Court in Concrete Constructions (NSW) Pty Ltd v Nelson¹⁹ where the court said:

"… it is plain that s 52 was not intended to extend to all conduct, regardless of its nature, in which a corporation might engage in the course of, or for the purposes of, its overall trading or commercial business …"

The appellant argues that the learned primary judge erred in focusing upon the appellant's "antecedent activities which have created the stage for the activity in question". In accordance with the approach taken by the High Court, the reference to conduct "in trade or commerce" in s 52 can be construed as referring only to conduct which is itself an aspect or element of "activities or transactions which, of their nature, bear a trading or commercial character."²⁰

In my respectful opinion, the appellant's argument on this point must be accepted. The conduct of the appellant on which the respondent's case depends was the making of a response to a claim in accordance with obligations imposed by statute as conditions precedent to litigation. This conduct occurred within statutorily ordained processes intimately associated with the administration of justice. These processes were themselves concerned to facilitate the determination of the rights and obligations of the parties where those matters were in dispute. One would not recognise these dispute resolution processes as part of trade or commerce for the same reason that one would recoil from the suggestion that the courts are engaged in trade or commerce. In each case, one is concerned with activities which take their character from the function of the State in providing for the peaceful resolution of disputes. That these particular dispute resolution processes stem, in part, from the appellant's activities in the business of providing insurance does not mean that the conduct of the process in conformity with the requirements of the statutory regime is an activity that "of its nature bears a trading or commercial activity".

Within the four walls of the compulsory dispute resolution mechanisms established by the Act, the nature of the appellant's activity bears no more a trading or commercial character than does the conduct of the respondent. If the scope of the phrase "in trade or commerce" used in s 52 of the Trade Practices Act were as broad as the learned primary judge's view of it, then a corporation which honestly brought a suit in which factually incorrect assertions were made upon a policy of insurance effected by both plaintiff and defendant in the course of their respective businesses could be guilty of a contravention of s 52 of the Trade Practices Act. It is, with respect, inconceivable that the legislature intended such a result. The connection between the activities in question and the trading or commercial activities of the parties is historical only. That history might afford an explanation as to how the assertions made in the litigation came to be made, but it has no greater relevance than that. It cannot be said to overwhelm the character of the activity as the conduct of litigation. The position is not materially different where the activities in question occur as part of a pre-litigation protocol established by statute.

To say this is not to say that the mere circumstance that the activities occurred in obedience to a statutory command means that the activity is not of the character of trade or commerce.²¹ Rather, the point is that the activities occur within a statutory regime for the resolution of disputes which is an adjunct to the judicial system of the State. It is this context which denies the activities in question the character of trade or commerce.²²

This question should have been answered: "No".

Question (d)

The appellant's conduct was not in trade or commerce. It could not give rise to a contravention of s 52 of the Trade Practices Act. This question should have been answered: "No".

Conclusion and orders

The application for leave to appeal should be granted. The appeal should be allowed, and the orders below should be set aside but only to the extent that questions (c) and (d) should each be answered: "No".

Having regard to the relative success enjoyed by the parties, I would order that the respondent should pay one quarter of the appellant's costs of the appeal to be assessed on the standard basis.

MACKENZIE AJA: I agree with Keane JA’s conclusions as to how each of the questions in issue should be answered, for the reasons given by him. I agree with the orders proposed by him.

LYONS J: I have had the advantage of reading the reasons for judgment of Keane JA. I agree with the reasons and the orders proposed by his Honour.

Footnotes

1. Pertzel v Qld Paulownia Forests Ltd [2008] QDC 9 at [7] – [8]. ↩

2. [2008] QDC 9 at [116]. ↩

3. [2008] QDC 9 at [19] – [20]. ↩

4. [2008] QDC 9 at [21] – [22]. ↩

5. [2008] QDC 9 at [23]. ↩

6. [2008] QDC 9 at [24] – [26] (citation footnoted in original). ↩

7. [2008] QDC 9 at [32]. ↩

8. [2008] QDC 9 at [42] – [44] (citation footnoted in original). ↩

9. (1990) 170 CLR 394 at 443 – 446. ↩

10. [2008] QDC 9 at [62] – [65]. ↩

11. [2008] QDC 9 at [81]. ↩

12. [2008] QDC 9 at [91] – [92], [96]. ↩

13. [2008] QDC 9 at [102] – [105] (citations footnoted in original). ↩

14. [2008] QDC 9 at [32]. ↩