Plaintiff v Defendant

1 The primary issue in the current proceeding is whether the Victorian Workcover Authority ('VWA') is liable to indemnify Tatura Milk Industries Ltd ('Tatura') in respect of Tatura's liability to the plaintiff at common law and for breach of statutory duty. Tatura's liability arose in respect of injuries sustained by the plaintiff, who was working as an independent contractor when he was injured. VWA refused to indemnify Tatura. It contended that it had no obligation to indemnify in respect of liability at common law and for breach of statutory duty in circumstances where the injuries were sustained by a worker who was not an employee.

2 VWA advanced the same submission in the present proceeding. I reject this submission. The fact that the plaintiff was an independent contractor at the time he sustained the injuries which gave rise to Tatura's liability at common law and for breach of statutory duty does not relieve VWA of liability to indemnify.

3 Tatura is a manufacturer of dairy products and infant formula. In July 2008, the plaintiff was working pursuant to a contract between Philip Moore Pty Ltd and Tatura for the performance of maintenance works at Tatura's factory located at 238 Hogan Street, Tatura. The plaintiff was the sole director, shareholder and employee of Philip Moore Pty Ltd. On 11 July 2008, the plaintiff was removing a pressure hose in a roof cavity when a nearby valve exploded, scalding him with hot steam.

4 On 20 July 2015, the plaintiff filed a writ and statement of claim in the County Court, naming Tatura as defendant. The statement of claim did not allege that the plaintiff was an employee of Tatura. The statement of claim alleged negligence on the part of Tatura as the occupier of the premises at 238 Hogan Street, Tatura. It also pleaded breach of statutory duty based on Tatura's failure to comply with regulations prescribed by the Occupational Health and Safety Regulations 2007 ('Occupational Health and Safety Regulations').

5 On 29 June 2016, Tatura filed a third party proceeding against VWA, seeking indemnity in respect of the plaintiff's claim against it. On 7 July 2016, the plaintiff settled his claim against Tatura for a total payment of $440,000, comprising $370,000 plus costs agreed at $70,000. VWA accepts that Tatura's settlement of the plaintiff's claim for the sum of $440,000 was reasonable. However, VWA contends that it is not liable to indemnify Tatura because at the time of the injury the plaintiff was not an employee of Tatura.

6 For the period from 30 June 2008 to 30 June 2009, VWA issued a WorkCover insurance policy to Tatura ('policy') pursuant to Part 2 of the Accident Compensation (WorkCover Insurance) Act 1993 ('WorkCover Insurance Act'). Clause 4 of the policy provided:

We will indemnify you in respect of all of your liability under the Accident Compensation Act and at common law or otherwise in respect of all injuries arising out of or in the course of or due to the nature of all employment with you during the Period of Insurance. We will also pay all costs and expenses incurred by you that are approved by us in connection with a claim made under the Policy.

7 VWA submits that 'employment' is a legal term of art which has different content in different legal contexts.[1] VWA submits that:

(a) Clause 4 of the policy distinguishes between 'liability under the Accident Compensation Act' and 'liability ... at common law or otherwise';[2]

(b) '[D]ifferent conceptions of employment are material to each kind of liability';[3]

(c) '[T]he word "employment" should be construed so that it responds to the particular kind of liability in question';[4]

(d) Where the liability is at common law, employment 'refers to the ordinary conception of employment at common law';[5]

(e) As the plaintiff was not a common law employee at the time of his injury, VWA has no liability to indemnify Tatura in respect of Tatura's liability to the plaintiff at common law;[6]

(f) The same considerations apply in respect of Tatura's claim for liability for breach of statutory duty. VWA submits that it has no liability to indemnify Tatura in respect of the plaintiff's claim for breach of statutory duty because the injuries were sustained by the plaintiff at a time when he was not an employee of Tatura.

8 Mr Solomon QC, who appeared with Mr Gladman for VWA, did not refer the Court to any authority which has held that the word 'employment' is a legal term of art. My own research has not unearthed any authority directly on point.

9 Where a document contains a legal term of art, a court should give the word its technical meaning, unless there is something in the context to displace the presumption that it was intended to carry its technical meaning.[7] There are various formulations in relevant authorities as to when a word/phrase is legal term of art:

• '[A]n expression that is not an expression that is part of everyday English but that has a special meaning in the law'.[8]

• A word (for example, 'penalty') which has an 'established legal meaning'.[9]

• '[A] technical expression' or 'an expression of known legal import' (for example, 'my next of kin').[10]

10 If a word in a contract has more than one meaning, in interpreting a contract, a court will have to decide what was the intention of the parties as revealed by or deduced from the terms and subject matter of their contract.[11]

11 'Employment' is not a word with an established legal meaning. It may have different meanings depending upon the context in which it is used. It may refer to the state of being employed, whether pursuant to a contract of employment or as an independent contractor. It may refer to an individual's '[o]ccupation, business; paid work; an activity in which a person is engaged'.[12]

12 Clause 1 of the policy provides that terms used in the policy have the meanings given by the Victorian WorkCover insurance laws, namely, the Accident Compensation Act 1985 ('Accident Compensation Act') and WorkCover Insurance Act. The word 'employment' is not defined by the Accident Compensation Act. However, it appears in numerous provisions in the Act as that Act was in effect in July 2008. Annexed to this judgment marked 'A' is a table of provisions in the Act as at July 2008 which include the word 'employment'. In some of the provisions, 'employment' refers to the state of being employed. For example:

• Section 93CD(3)(a): ... the worker has returned to work (whether in self-employment or other employment) ...

• Section 99(4): If a worker receives services from an employer who has made adequate arrangements to provide workers in the employer's employment with gratuitous medical, hospital, nursing, ambulance or personal and household, occupational rehabilitation services ...

• Section 123(1)(a): When - (a) a worker who has been receiving weekly payments for no current work capacity returns to work with the employer in whose employment the injury occurred ...

• Section 129A(b): In this Division - contributing employer means - ... (b) the employer of a worker at any time during the period of employment due to which or out of or in the course of which a contribution injury ...

• Section 139AA: Nothing in sections ... applies in relation to the employment of a student worker.

• Section 242(2): An employer must not dismiss a worker from employment by reason only that the worker complies with a request made under section 239 or 240.

• Section 246(1)(a): ... by the employer with some person apparently in the employment of the employer ...

13 In other provisions, 'employment' refers to the activities in which a worker is engaged. For example:

• Section 5(1): suitable employment, in relation to a worker, means employment in work for which the worker is currently suited (whether or not that work is available), having regard to the following - (a) the nature of the worker's incapacity and pre-injury employment; ...
• Section 82(6): ... if a worker suffers an injury which occurs by way of a gradual process over time and which is due to the nature of employment in which the worker was employed ...
• Section 82(8): ... any recurrence, aggravation, acceleration, exacerbation or deterioration of the pre-existing injury or disease arising out of or in the course of or due to the nature of employment with the employer ...

• Section 86(1): ... and the disease is due to the nature of any employment in which the worker was employed at any time prior to the date of incapacity ...

• Section 93D(1): ... a worker making every reasonable effort to return to work in suitable employment includes ...
• Section 111(1)(b): ... a declaration in the form approved by the Authority as to whether or not the worker is engaged in any form of employment ...

14 Mr Solomon submitted that the word 'employment' in the Act is given content by the definitions of 'worker' and 'employer'. Section 5(1) defines 'worker' as:

worker means -

(a) a person (including a domestic servant or an outworker) who has entered into or works under a contract of service or apprenticeship or otherwise with an employer whether by way of manual labour, clerical work or otherwise and whether the contract is express or implied, is oral or is in writing;

(b) a person who under this Act is deemed to be working under a contract of service;

(c) a person who under this Act is deemed to be a worker;

(d) if a student at a school within the meaning of Part 5.4 of the Education and Training Reform Act 2006 is employed under an arrangement under that Part - that student whilst so employed; or

(e) if a student of a TAFE provider is employed under a practical placement agreement under Part 5.4 of the Education and Training Reform Act 2006 - that student whilst so employed -

15 Sections 9 to 14 and 16 deem certain persons, for the purposes of the Act, to be respectively 'workers' and the 'employers' of those workers. As an independent contractor providing services to Tatura pursuant to a contract between Tatura and Philip Moore Pty Ltd, the plaintiff was deemed to be a worker for the purposes of the Act pursuant to s 9(2)(b)(i). Pursuant to s 9(2)(a)(ii), Tatura was deemed to be the plaintiff's employer.

16 Clause 2 of the policy provides, '[t]his Policy is to be read with the Victorian WorkCover insurance laws.' These laws include the Accident Compensation Act. Under that Act, where 'employment' is a reference to the state of being employed, no distinction is made between employment as an employee at common law and employment as an independent contractor. Rather, 'employment' refers to employment as a worker, which includes employment as either an independent contractor or a common law employee. Clause 2 requires the policy to be read harmoniously with the Act. If 'employment' in cl 4 refers to the state of being employed, it should be read harmoniously with provisions of the Act in which 'employment' is a reference to the state of being employed. So read, 'employment' is not confined to employment as a common law employee. This conclusion is reinforced by the use of the word 'all' in the phrase 'all employment' in cl 4.

[S]ince cl 4 expressly distinguishes between 'liability under the Accident Compensation Act' and 'liability ... at common law or otherwise' and different conceptions of employment are material to each kind of liability, the word 'employment' should be construed so that it responds to the particular kind of liability in question.[13]

This submission assumes, incorrectly, that, where 'employment' is used in the Act, its meaning is confined to the state of being employed and, insofar as a worker claims damages at common law, VWA's obligation to indemnify is confined to liability in respect of a common law employee.

18 I reject VWA's submission that 'employment' in cl 4 is used as a legal term of art. It is a word with more than one meaning. It is not appropriate to approach the task of construing cl 4 with a presumption that where liability arises at common law, 'employment' is a reference to the state of being employed as a common law employee. Rather, I approach the task of construction consistent with the approach endorsed by Hargrave J (as his Honour then was) in OZ Minerals Holdings Pty Ltd v AIG Australia Ltd:[14]

It is necessary to construe the relevant provisions of the policy in accordance with general principles of contractual interpretation. This requires the Court to consider what reasonable persons in the position of the parties would have understood the words to mean by reference to the text of the agreement, the surrounding circumstances known to the parties and the purpose or object of the transaction. In interpreting the words and resolving any ambiguity, the Court should proceed in a common sense and non-technical way and give the agreement a commercially sensible construction. The Court should have regard to all of the words used in the agreement 'so as to render them all harmonious with one another' and to ensure the 'congruent operation of the various components as a whole.'[15]

19 Clause 4 imposes an obligation upon VWA to indemnify Tatura in respect of all its liability:

(a) under the Accident Compensation Act; and

(b) at common law;

(c) or otherwise;

(a) arising out of; or

(b) in the course; or

(c) due to the nature of

all employment with Tatura during the Period of Insurance.

20 Clause 4 distinguishes between three discrete categories of liability. Further, VWA's obligation to indemnify in respect of each category is enlivened where Tatura's liability is in respect of injuries:

• arising out of all employment with Tatura; or
• in the course of all employment with Tatura; or
• due to the nature of all employment with Tatura

21 The three categories of enlivening criteria are not mutually exclusive. The criteria constitute discrete but potentially overlapping circumstances in which VWA will be required to indemnify Tatura.

22 The phrase 'due to the nature of all employment' focuses on the nature of the work performed by the injured worker.[16] The words 'due to' require a causal connection between the worker's injury and the nature of the work performed. The plaintiff's injury was not 'due to' his state of being employed. Rather, it was due to the nature of the work he was performing. The fact that at the time of his injury the plaintiff was undertaking work as an independent contractor rather than a common law employee does not relieve VWA of the obligation to indemnify Tatura under cl 4.

23 On VWA's construction of cl 4, the enlivening criterion, 'due to the nature of all employment with you', is to be read as meaning 'due to the nature of all employment as a common law employee with you'. This construction is untenable. Injuries in the workplace are not 'due to' the nature of a worker's engagement with an employer, whether it be pursuant to a contract of service or a contract for services. In context, the phrase 'nature of all employment' refers to the nature of the work performed by an injured worker, irrespective of whether the work was undertaken as an employee or an independent contractor. This conclusion is reinforced by provisions of the Act which include the phrase 'due to the nature of employment/any employment'. This phrase appears in a number of sections of the Accident Compensation Act, including ss 82(6), 82(8) and 86(1). In each of these provisions, the phrase 'due to the nature of employment/any employment' directs attention to the causal link between the injury sustained and the activities undertaken by the worker at the time of the injury.

24 Further, under the construction advanced by VWA, the word 'all' in cl 4 has no work to do in the phrase 'due to the nature of all employment with you'. If, as contended by VWA, this phrase should be read as 'due to the nature of all employment with you as a common law employee' where liability arises at common law, the word 'all' is otiose. On the other hand, if the phrase 'due to the nature of all employment with you' is read as 'due to the nature of all the activities undertaken by the worker with you', the word 'all' has work to do.

25 Consistent with principles of contractual interpretation, it is necessary to have regard to the purpose of cl 4. Clause 4 requires VWA to indemnify Tatura in respect of all liability under the Accident Compensation Act, at common law or otherwise, in respect of all injuries arising out of or in the course of or due to the nature of all employment with Tatura during the period of insurance. VWA contends that it is not required to indemnify Tatura in respect of any liability at common law unless the injured worker was a common law employee at the time of injury. Further, it submits that it is not required to indemnify Tatura in respect of its liability to pay damages for breach of statutory duty based upon non-compliance with the Occupational Health and Safety Regulations where the injured worker is not a common law employee.

26 During the period of insurance, Tatura's potential liability at common law and for breach of statutory duty was not confined to workers engaged under contracts of service. The plaintiff's claim for damages for negligence and breach of statutory duty were not contingent upon him being a common law employee. It would have been a simple matter for cl 4 to have stated in clear terms that VWA's obligation to indemnify 'at common law or otherwise' was limited to liability in respect of injuries sustained by a common law employee.

27 The plaintiff's right to commence a proceeding claiming common law damages, together with Tatura's potential liability in respect of such a claim, was subject to Part IV of the Accident Compensation Act. The right of a worker to bring a claim for common law damages was subject to ss 134AA and 134AB of that Act. The VWA contends that its liability to indemnify Tatura is limited to injuries sustained by a common law employee. No such limitation appears in the provisions of the Act which regulated the plaintiff's right to bring a claim for common law damages. The right is conferred upon a 'worker', which includes an independent contractor deemed to be a worker pursuant to s 9(2)(b).

28 One of the objects of cl 4 is to confer upon Tatura a right of indemnity from VWA in respect of its liability to injured workers arising under the Accident Compensation Act. For the purpose of determining whether Tatura had any liability under that Act, it was necessary to consider whether a worker was not entitled to compensation by reason of the exclusion in ss 82(7) and (8).

29 Sections 82(7) and (8) of the Accident Compensation Act provide:

(7) If it is proved that before commencing employment with the employer -

(a) a worker had a pre-existing injury or disease of which the worker was aware; and

(b) the employer in writing -

(i) advised the worker as to the nature of the proposed employment; and

(ii) requested the worker to disclose all pre-existing injuries and diseases suffered by the worker of which the worker was aware and could reasonably be expected to foresee could be affected by the nature of the proposed employment; and

(iii) advised the worker that subsection (8) will apply to a failure to make such a disclosure or the making of a false or misleading disclosure; and

(iv) advised the worker as to the effect of subsection (8) on the worker's entitlement to compensation; and

(c) the worker failed to make such a disclosure or made a false or misleading disclosure -

subsection (8) applies.

(8) If this subsection applies, any recurrence, aggravation, acceleration, exacerbation or deterioration of the pre-existing injury or disease arising out of or in the course of or due to the nature of employment with the employer does not entitle the worker to compensation under this Act.

30 In ss 82(7)(b)(i) and (ii) and (8), the phrases 'the nature of the proposed employment' and 'the nature of employment' refer to the nature of the activities to be undertaken by the worker. This corresponds with the meaning of 'the nature of all employment' in cl 4.

31 The phrase 'nature of all employment' in cl 4 has the same meaning irrespective of whether it relates to VWA's obligation to indemnify Tatura in respect of liability under the Accident Compensation Act or at common law. It is clear from the terms of ss 82(7) and (8) that, for the purposes of VWA's obligation to indemnify Tatura in respect of its liability under the Act, 'the nature of employment' is a reference to the activities undertaken by an injured worker. The 'nature of all employment' in cl 4 should be read as having the same meaning in respect of VWA's obligation to indemnify Tatura in respect of its liability at common law.

32 In addition to the obligation to indemnify Tatura in respect of liability under the Act and at common law, cl 4 required VWA to indemnify Tatura in respect of liability 'otherwise' in respect of all injuries arising out of or in the course of or due to the nature of all employment with it. For the purposes of the present proceeding, this liability relates to the plaintiff's claim for breach of statutory duty by reason of Tatura's failure to comply with regulations 2.1.2, 3.5.23, 3.5.24 and 3.5.45 of the Occupational Health and Safety Regulations. By virtue of regulation 1.1.8, these regulations applied to the plaintiff in his capacity as an independent contractor. A breach of the Occupational Health and Safety Regulations confers a private right of action for breach of statutory duty.[17] In its supplementary written submissions, VWA accepted that Tatura had established an underlying liability to the plaintiff for breach of statutory duty.[18]

33 VWA submits that 'employment' has different meanings in different legal contexts. It submits that where liability is under the Accident Compensation Act, rather than at common law, the word 'employment' refers to the extended conception of employment that applies for the purposes of the Act. Relevantly, this includes employment as an independent contractor. Where the liability is at common law, 'employment' refers to an individual engaged pursuant to a contract of employment. I reject this submission.

34 An independent contractor has standing to allege a breach of statutory duty based on a breach of the Occupational Health and Safety Act 2004 ('Occupational Health and Safety Act) and/or Occupational Health and Safety Regulations. Both the Occupational Health and Safety Act and the Accident Compensation Act confer rights upon individuals who are not common law employees, and impose liability upon parties who are not common law employers. If, as submitted by VWA, 'employment' in cl 4 has a different meaning depending upon the source of liability, there is no rational basis for confining liability based upon a breach of the Occupational Health and Safety Act or Occupational Health and Safety Regulations to an injury sustained by a common law employee. The Accident Compensation Act, Occupational Health and Safety Act and Occupational Health and Safety Regulations confer rights on independent contractors. Where an insured's liability under cl 4 is in respect of a breach of a statutory duty based upon non-compliance with the Occupational Health and Safety Regulations, 'employment' should be given the same meaning which it has in respect of liability arising under the Accident Compensation Act. So construed, 'employment' refers to employment under either a contract of service or a contract for services.

35 VWA is liable to indemnify Tatura in respect of its liability to the plaintiff for negligence and breach of statutory duty. This conclusion renders it unnecessary to address Tatura's alternative submissions which relied upon the doctrines of estoppel and election. Nevertheless, for the sake of completeness, I shall do so.

36 Tatura submits that, if the plaintiff's claim is not within the scope of cl 4 of the policy, VWA is nevertheless estopped from denying indemnity in respect of that claim. Equitable estoppel precludes a party, who has knowingly or intentionally induced another party to assume or a state of affairs of fact or law and consequently to act to their detriment, from unjustly or unconscionably departing from that state of affairs on which the other party acted.[19] Tatura bears the onus of establishing each of the three 'essential ingredients' of estoppel: representation, reliance and detriment.[20] Detriment is essential for an estoppel to arise.[21]

37 Tatura must establish that VWA represented that it would be indemnified under the policy in respect of any liability to the plaintiff at common law. Tatura submits that this representation was made by VWA by the following conduct from August 2008 to 4 September 2015:

(a) Initially accepting the WorkCover claims by the plaintiff, advising Tatura of its acceptance, and repeating its acceptance of the claim in various communications;[22]

(b) Indemnifying Tatura for the plaintiff's workers' compensation payments under cl 4 of the policy, including in April 2014 concerning the s 98C payment;[23] and

(c) Stating in a letter sent on 17 November 2014 by Wisewould Mahony on behalf of VWA, that Tatura was insured by the VWA in response to the plaintiff's serious injury application, pursuant to which the plaintiff proposed to sue Tatura for damages.[24]

38 Tatura submits that this conduct amounted to a representation as to indemnity and that, '[c]ritically', VWA did not state that it was indemnifying for statutory but not common law liabilities in respect of the plaintiff's injuries.[25] Tatura submits that the functions of VWA were 'varied' and emphasises that, under s 20(1)(g) of the Accident Compensation Act, its functions included to 'defend actions against employers under this Act and at common law'.[26]

39 For the purposes of considering Tatura's reliance on the doctrine of estoppel, it is necessary to set out relevant facts between 11 July 2008 and 4 September 2015.

On 15 August 2008, [VWA] accepted the plaintiff's claim for statutory compensation. Pursuant to cl 4 of the policy, [VWA] subsequently indemnified [Tatura] in respect of all its liability to the plaintiff under the Act.

On 27 October 2014, [VWA] was served with the plaintiff's serious-injury application under s 134AB(4) of the Act. At that time, direction 5.4(c) of the Ministerial Directions issued pursuant to the Act required a worker's serious-injury application to have attached to it a proposed statement of claim:

(a) naming each person against whom the worker claimed to have a cause of action; and

(b) stating and particularising each cause of action in a manner that complied with the rules of the County Court.

In accordance with that direction, the serious-injury application was accompanied by a draft statement of claim in which the plaintiff:

(a) named [Tatura] as a person against whom he claimed to have a cause of action;

(b) stated and particularised the cause of action that he claimed to have against [Tatura]; and

(c) alleged that, at all material times, he had been 'employed by [Tatura] as a boilermaker/welder.'

...

On 28 October 2014, [VWA] retained Wisewould Mahony to act on its behalf and on behalf of [Tatura].

On 17 November 2014, Wisewould Mahony wrote to [Tatura], stating:

We have been instructed by [VWA] and your authorised insurer, Allianz Australia Workers Compensation Vic Ltd, to review and defendant [sic] an application to bring proceedings for common law damages brought by the abovenamed worker [the plaintiff].

We enclose for your perusal the worker's:

1. Draft Statement of Claim.

2. Affidavit sworn 22 October 2014.

Our role

Our role in acting on behalf of [VWA], your authorised insurer and your organisation is to:

1. undertake enquiries into the claim and the injuries allegedly suffered by the worker;
2. facilitate an exchange with the worker's representatives of all material relevant to their claim;
3. provide advice to [VWA] and your authorised insurer as to the determination of whether the worker should be granted or not granted a serious injury certificate.

These steps must be taken before 24 February 2015.

Your role

• being insured by [VWA], is to assist us in completing points one and two above;

On 24 February 2015, Wisewould Mahony wrote to the plaintiff's solicitors, Slater & Gordon Ltd:

(a) stating that [VWA] had instructed them pursuant to

s 134AB(7) of the Act to advise that the plaintiff's degree of impairment was greater than 30 per cent and therefore his injury was deemed to be a serious injury within the meaning of s 134AB; and

(b) pursuant to s 134AB(8) of the Act, enclosing the documents upon which [Tatura] and [VWA] intended to rely in relation to any subsequent proceedings.

On 20 May 2015, Wisewould Mahony made a statutory offer of nothing to the plaintiff pursuant to s 134AB(12)(b) of the Act.

On 4 June 2015, the plaintiff made a statutory counter offer to [VWA] pursuant to s 134AB(12)(c). He offered to accept $500,000 plus retention of statutory benefits plus Ministerial costs in settlement of his claim against [Tatura]. Wisewould Mahony, on the instructions of [VWA], allowed that offer to lapse.

...

On 20 July 2015, the plaintiff filed a writ indorsed with a statement of claim in the County Court.

On 30 July 2015, [VWA] received a copy of the writ indorsed with the statement of claim. The next day, [VWA] retained Wisewould Mahony to act in the present proceeding on its behalf and on behalf of [Tatura].

...

[O]n 4 September 2015, Wisewould Mahony wrote to [Tatura], stating:

We note that the Plaintiff has named [Tatura] as the Defendant in the proceeding and pleads that it was the owner and occupier of premises situated at 238 Hogan Street, Tatura. It does not allege that the Plaintiff was employed by [Tatura].

In the circumstances, we suggest that you contact your public liability insurer and provide them with a copy of the enclosed Writ and Statement of Claim so that they may instruct solicitors on your behalf.[27]

40 The correspondence from Wisewould Mahony to Slater and Gordon dated 24 February 2015 annexed a draft defence. Paragraph 2 of the defence states:

IT DENIES the allegation in paragraph 2, and says further that the Plaintiff was employed by Philip Moore Pty Ltd.

This was in response to paragraph 2 of the plaintiff's draft statement of claim, which alleged that, at all material times, the plaintiff was employed by Tatura as a boilermaker/welder. The draft statement of claim was served under cover of a letter from Slater and Gordon dated 24 October 2014. The proposed defence was served on Slater and Gordon in accordance with s 134AB(8) of the Accident Compensation Act. This section required the VWA or its legal representatives to provide material to the plaintiff setting out the material upon which the VWA intended to rely in any proceedings brought by the plaintiff.

41 On 8 April 2015, Wisewould Mahony and Slater and Gordon participated in a conference as required by s 134AB(12). The notes of the s 12 conference made by a solicitor from Wisewould Mahony record:

Put on notice re: issue of contractor - P employed by own company - VWA deciding what to do about it - ie whether they will indemnify.

42 Approximately six weeks later, on 20 May 2015, Wisewould Mahony on behalf of VWA made a statutory offer as required by s 134AB(12). The amount of the offer was nil. It is an agreed matter that Tatura had no involvement in the decision to make that offer. The plaintiff responded on 4 June 2015 with a statutory counter offer of $500,000, plus retention of benefits, plus ministerial costs. Wisewould Mahony allowed the statutory offer to lapse without asking Tatura whether it wished to accept the counter offer.

43 The writ and statement of claim was served on Tatura on 29 July 2015. On 4 September 2015, Wisewould Mahony advised Tatura that, in effect, VWA would not indemnify Tatura because the statement of claim did not allege that the plaintiff was employed by Tatura.

44 Clause 17 of the policy is headed 'Defence of proceedings'. At all material times it provided:

We or the Agent for this Policy on our behalf will have the conduct of the bringing, defending, enforcing or settling of any claim or litigation which relates to anything indemnified under this Policy. You must give all information and assistance as we or the agent for this Policy require, including by giving us any documents that we request. We and the Agent for this Policy can use your name in respect of any actions that we take in relation to a claim or litigation.

45 On 23 October 2014, VWA was served with the plaintiff's serious injury application. On 17 November 2014, Wisewould Mahony wrote to Tatura advising that the firm had been instructed by VWA to review and defend an application by the plaintiff to bring a proceeding for common law damages. When VWA engaged Wisewould Mahony to defend the plaintiff's serious injury application, it exercised the rights conferred upon it by cl 17 of the policy. It continued to exercise those rights until 4 September 2015.

46 VWA submits that it did not represent to Tatura that it would provide indemnity in respect of claims made by the plaintiff that Tatura was liable in negligence as an occupier of premises and as a principal pursuant to a contract for services. It submits that, in the absence of any allegation in the statement of claim that the plaintiff was employed by Tatura at common law, VWA was no longer obliged under cl 17 of the policy to conduct the defence of the plaintiff's claim because the claim did not relate to anything indemnified under the policy.

47 It is correct that the statement of claim served on Tatura on 29 July 2015 alleged for the first time that the plaintiff was an independent contractor. However, VWA had been aware of the plaintiff's status as an independent contractor since at least 24 February 2015 when Wisewould Mahony served the draft defence. Further, the notes of the s 12 conference on 8 April 2015 record that VWA was actively considering whether or not to indemnify Tatura by reason of the plaintiff being an independent contractor.

48 Correspondence from Slater and Gordon to Wisewould Mahony dated 4 June 2015 includes the following:

I refer to the above and our discussion since 27 April 2015.

I confirm that you and your client, [VWA], are now satisfied as to the following:

1. That as per your draft defence, my client, [the plaintiff] is not an employee of [Tatura] as at the date of injury - on or about 11 July 2008. Accordingly, your client has confirmed that [the plaintiff] was an independent contractor trading under the Company name of Philip Moore Pty Ltd and as such, [the plaintiff] is an employee of Philip Moore Pty Ltd;
2. That the 'Serious Injury' Application served under cover letter dated 23 October 2014 in respect of [the plaintiff's] cause of action arising from an incident occurring on or about 11 July 2008 is a valid application made pursuant to the Accident Compensation Act 1985; and
3. That the 'Serious Injury' Certification dated 24 February 2015 granted by [VWA] is a valid one and in accordance with the provisions of the Accident Compensation Act 1985. Accordingly, [VWA] acknowledges that [the plaintiff] has now been granted permission to pursue damages for pain and suffering and loss of earnings/earning capacity at Common Law.

49 It is clear from this correspondence that Slater and Gordon confirmed prior to the commencement of the proceeding that any claim for damages would not allege that the plaintiff was an employee of Tatura. Notwithstanding this, no steps were taken by or on behalf of VWA for a further five months to inform Tatura that, by reason of the absence of any allegation that the plaintiff was an employee of Tatura, VWA considered that it was not liable to conduct the defence of the proceeding and to indemnify Tatura.

50 After the proceeding was commenced in July 2015, VWA waited for a further five to six weeks before advising Tatura that it would not be providing indemnity. This delay is inexplicable in light of the fact that VWA had, since April 2015, been actively considering whether to withdraw indemnity by reason of the plaintiff being an independent contractor.

51 The conduct of VWA amounted to a representation that it would indemnify Tatura in respect of the plaintiff's claim for damages, notwithstanding the absence of any allegation that the plaintiff was an employee of Tatura.

52 Tatura submits that it suffered detriment in reliance on the representation. It did not engage its own lawyers until after 4 September 2015. It was not provided with a copy of the plaintiff's statutory offer until 14 September 2015. Tatura submits that it lost the opportunity to conduct, for itself, the negotiation of the plaintiff's claim in the pre-litigation stage, and also in the period post the service of the writ on 29 July 2015 to 4 September 2015.

53 The plaintiff's claim was settled on 7 July 2016 for the sum of $440,000, inclusive of $70,000 as his reasonable costs and disbursements in the proceeding. Tatura submits that it lost the opportunity to negotiate a more favourable settlement prior to the commencement of the proceeding, at which point no costs in the County Court proceeding had been incurred by either the plaintiff or Tatura. Thus, it submits that it lost the real chance to pay less than $440,000 to the plaintiff. It also submits that it lost the opportunity to avoid or reduce its own legal costs which were incurred post 4 September 2015.

54 VWA submits that Tatura has not proved on the balance of probabilities that, in being denied the opportunity to negotiate directly with the plaintiff in the period prior to 4 September 2015, it lost an opportunity of any commercial value.

55 In Nigel Watts Fashion Agencies Pty Ltd v GIO General Ltd,[28] Kirby P stated:

[I]t is sufficient, in proving detriment, for the representee to establish that its reliance caused it to lose a real chance of avoiding the detriment which has ensued.[29]

VWA could have informed Tatura in February 2015 that it denied liability to indemnify by reason of the plaintiff being an independent contractor. Had it done so, Tatura could have engaged its own lawyers and sought to negotiate a settlement of the plaintiff's common law damages claim at a point prior to any costs having been incurred in the foreshadowed common law proceeding. Tatura was denied this opportunity which did have a commercial value.

56 Tatura seeks a declaration that VWA is estopped from denying liability to indemnify it in respect of the settlement sum of $440,000. It is important to bear in mind that Tatura's reliance upon estoppel is premised upon VWA having no contractual liability under the policy to indemnify it for the sum of $440,000. Further, there is no issue that Mr Moore was seriously injured on 11 July 2011. No evidence before the Court supports a finding that, had Tatura entered into negotiations with the plaintiff prior to 4 September 2015, such negotiations would have resulted in an agreement for a settlement sum less than the $370,000 (exclusive of costs) which the plaintiff agreed to accept on 7 July 2016. On the other hand, I infer that, if negotiations had been undertaken prior to the plaintiff incurring the costs of the County Court proceeding, there is a real prospect that the plaintiff would have accepted a settlement of $370,000.

57 The relief sought by Tatura would require VWA to indemnify it for the full settlement sum of $440,000, inclusive of costs. Such an outcome would be inequitably harsh. It would involve a significant lack of proportionality between the detriment suffered by Tatura and the benefit conferred upon it by reason of VWA being estopped from denying indemnity.

58 Each case turns on its own facts. In Commonwealth v Verwayen,[30] Deane J stated:

Prima facie, the operation of an estoppel by conduct is to preclude departure from the assume state of affairs. It is only where relief framed on the basis of that assumed state of affairs would be inequitably harsh, that some lesser form of relief should be awarded.[31]

59 The present proceeding is one where, absent a contractual obligation to do so, it would be inequitably harsh to require VWA to indemnify Tatura for the settlement sum of $440,000.[32]

60 If I had concluded, contrary to my primary conclusion, that VWA had no contractual obligation to indemnify I would have ordered VWA to pay Tatura the sum of $70,000. This payment would compensate Tatura for the detriment it suffered by being deprived of the opportunity to negotiate a settlement with the plaintiff prior to 4 September 2015. I have given consideration to whether it would have been appropriate to add to this sum an amount in respect of Tatura's own legal costs. However, I would have declined to do so in circumstances where there is no evidence before the Court which permits any assessment of the reasonableness of those costs.

61 Tatura submits in the further alternative that, if its estoppel claim fails, VWA made an election to indemnify Tatura and cannot now resile from that election.[33]

62 Tatura's claim based on the doctrine of election raises the following question:

(a) If, as Tatura contends (and VWA denies), VWA made an unequivocal election to indemnify Tatura under the policy in respect of its liability to the plaintiff at common law -

(i) did VWA make the election with knowledge of the relevant facts; and

(ii) did VWA communicate its election to Tatura -

such that VWA cannot now resile from the election?

63 In Sargent v ASL Developments Limited,[34] Stephen J stated:

The doctrine of election as between two inconsistent legal rights is well established but certain of its features are not without their obscurities. The doctrine only applies if the rights are inconsistent the one with the other and it is this concurrent existence of inconsistent sets of rights which explains the doctrine; because they are inconsistent neither one may be enjoyed without the extinction of the other and that extinction confers upon the elector the benefit of enjoying the other, a benefit denied to him so long as both remained in existence.[35]

64 For the doctrine of election to operate, the elector must have knowledge and there must be 'words or conduct sufficient to amount to the making of an election as between the two inconsistent rights which [the elector] possesses'.[36] Further, '[a] party can only be held to have elected "if he has so communicated his election to the other party in clear and unequivocal terms".'[37] The doctrine of election may arise on the same set of facts as the doctrine of estoppel but, in contrast to the latter, the former does not require Tatura to establish that it suffered any detriment.[38]

65 Tatura relies upon the same set of facts for its submission that VWA elected to accept that the indemnity arose by accepting liability to pay the plaintiff compensation in September 2008 and in 2014, inconsistent with its right to deny that indemnity.[39]

66 Assuming that the plaintiff's claim for damages falls outside the scope of the indemnity under the policy, there is a question as to whether, as a matter of law, VWA may be said to have been confronted with the option of choosing between two inconsistent rights and elected to pursue one in exclusion of the other.

67 Tatura submits that, upon VWA serving a draft defence on the plaintiff's solicitors on 24 February 2015, it was effectively 'locked in'. Tatura relies upon the following passage from the judgment of Brooking J in CE Heath Underwriting & Insurance (Australia) Pty Ltd v Campbell Wallis Moule & Co Pty Ltd:[40]

My present view is that an insurer who exercises his right under a condition like the present to take over and conduct the defence of legal proceedings when he has knowledge of facts which entitle him to deny liability under the policy runs the risk that it will be found that he has elected to pursue a course inconsistent with a denial of liability.[41]

68 The draft statement of claim which was served on VWA by the plaintiff's solicitors alleged that at all material times he was an employee of Tatura. The draft defence which was served by VWA's lawyers in reply denied this allegation and expressly pleaded that the plaintiff was employed by Philip Moore Pty Ltd. Tatura submits that, from the time VWA's solicitors served the draft defence on 24 February 2015, VWA had knowledge that the plaintiff was an employee of Philip Moore Pty Ltd. Notwithstanding this knowledge, it continued to act on behalf of Tatura between 24 February 2015 until 4 September 2015, when it advised Tatura that it would no longer indemnify it in respect of the claims in the statement of claim filed on 20 July 2015.

69 The observations of Brooking J in CE Heath are obiter dictum. Each member of the Court held that the underwriters had not assumed the conduct of the defence of the proceeding pursuant to any right conferred by the relevant insurance policy. The facts of CE Heath are, in any event, distinguishable from the present proceeding. Here, no legal proceedings were on foot as between the plaintiff and Tatura until he filed a writ and statement of claim on 20 July 2015. The statement of claim alleged, for the first time, that the plaintiff was not an employee of Tatura.

70 Tatura's reliance upon the doctrine of election is advanced in the alternative to its primary contention that VWA is required to indemnify it pursuant to cl 4 of the policy. Thus, its reliance upon the doctrine of election assumes that VWA is not required to indemnify it pursuant to cl 4 of the policy. In these circumstances, there is no proper basis for concluding that VWA made an election between two inconsistent rights: namely, accepting or denying an obligation to indemnify Tatura pursuant to the policy. If VWA did not have any liability to indemnify Tatura pursuant to the policy, it was not confronted with a choice between two inconsistent rights.

71 The judgment of the Queensland Court of Appeal in Freshmark Limited v Mercantile Mutual Insurance (Australia) Limited[42] supports the conclusion set out above. In Freshmark, the insurer informed the insured that it accepted a claim, which was not covered by the insurance policy, and authorised the commencement of repairs. The insurer later realised that the claim was outside the scope of the policy and denied liability. The Queensland Court of Appeal, by majority, held that the doctrine of election did not apply to the acceptance of a claim where there was no liability under a policy of insurance. McPherson JA stated:

The defendant was not confronted with the option of choosing between two alternative and inconsistent rights, nor did it elect to pursue one of those rights to the exclusion of the other. There was no choice between a right to accept liability under the policy, and a right to reject liability. That is so because there never was any liability under the policy, and consequently no right or even power under the policy to reject that liability.[43]

72 This approach was also adopted by the New South Wales Court of Appeal in National Vulcan Engineering Insurance Group Ltd v Transfield Pty Ltd, albeit as obiter dictum.[44] The insurer's solicitors wrote to the insured confirming that the indemnity 'extended' to the claim, then changed its mind and declined indemnity. The Court held that the policy did extend cover to the claim. Citing McPherson JA in Freshmark Limited, the Court held that, if the policy had not extended to the claim, the insurer could not have made a binding election by accepting the claim.[45]

73 I reject Tatura's submission that VWA made an election to indemnify Tatura which it cannot resile from.

74 VWA must indemnify Tatura in respect of the settlement sum of $440,000. I shall provide the parties with an opportunity to make submissions on the form of such order to give effect to this judgment, as well as the costs of the proceeding.

The objects of this Act are - ... (c) to increase the provision of suitable employment to workers who are injured to enable their early return to work ...

Despite anything to the contrary in this Act - (a) this Act ... applies to and in relation to an injury to a worker on or after the appointed day arising out of or in the course of employment on or after the appointed day; and ...

current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment;

(a) in relation to industrial deafness, inability to engage in the worker's own or other suitable employment because of an immediate and substantial risk of increasing the industrial deafness to a level of material disability;

(b) a disfigurement that is sufficient to affect the earning capacity of a worker or a worker's opportunities for employment;

injury means any physical or mental injury and, without limiting the generality of that definition, includes - ... (b) a disease contracted by a worker in the course of the worker's employment (whether at, or away from, the place of employment); ...

suitable employment, in relation to a worker, means employment in work for which the worker is currently suited (whether or not that work is available), having regard to the following -

(a) the nature of the worker's incapacity and pre-injury employment;

(b) the worker's age, education, skills and work experience;

(d) the details given in medical information including the medical certificate supplied by the worker;

(f) if any occupational rehabilitation services are being provided to or for the worker;

The function of a Medical Panel is to give its opinion on any medical question in respect of injuries arising out of, or in the course of or due to the nature of employment ...

(1) There is no entitlement to compensation under this Act other than in respect of employment that is connected with this State.

(a) the State in which the worker usually works in that employment; or

(b) if no State or no one State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment; or

(c) if no State or no one State is identified by paragraph (a) or (b), the State in which the employer's principal place of business in Australia is located.

(1) If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.

(6) ... if a worker suffers an injury which occurs by way of a gradual process over time and which is due to the nature of employment in which the worker was employed at any time before notice of the injury was given ...

(7) If it is proved that before commencing employment with the employer -

(a) a worker had a pre-existing injury or disease of which the worker was aware; and

(i) advised the worker as to the nature of the proposed employment; and

(8) If this subsection applies, any recurrence, aggravation, acceleration, exacerbation or deterioration of the pre-existing injury or disease arising out of or in the course of or due to the nature of employment with the employer does not entitle the worker to compensation under this Act.

An injury to a worker is deemed to arise out of or in the course of employment for the purposes of section 82(1) and 82(2) if the injury occurs -

(a) while the worker on any working day that the worker attended at the place of employment having been present at the place of employment is temporarily absent on that day ...

Subject to section 82(2B), if -

and the disease is due to the nature of any employment in which the worker was employed at any time prior to the date of incapacity ...

A worker is entitled to receive weekly payments under this section only if -

(ii) makes every reasonable effort to return to work in suitable employment; and

(iii) participates in assessments of the worker's ... and future employment prospects when requested to do so ...

A worker is entitled to receive weekly payments under this section only if -

(iii) where the worker's employer cannot provide suitable employment, makes every effort to return to work in suitable employment at another place of employment; and

(3) The Authority or self-insurer may determine that the worker's entitlement to weekly payments under this Part does not cease after the expiry of the second entitlement period within the meaning of section 93CB(1), if the Authority or self-insurer is satisfied that -

(a) the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week ...

Subject to this section, a reference in this Division to a worker making every reasonable effort to return to work in suitable employment includes any reasonable period during which - ...

The amount of any weekly payment payable to a worker under this Part must be reduced by the weekly amount of -

(a) any disability, retirement or superannuation pension received by the worker; and

(b) any redundancy or severance payment received by the worker -

which relates to the worker's retirement from, or the cessation or termination of, the employment out of, or in the course of which, or due to the nature of which, the injury arose.

If a worker receives services from an employer who has made adequate arrangements to provide workers in the employer's employment with gratuitous medical, hospital, nursing, ambulance or personal and household, occupational rehabilitation services, the employer shall ...

Subject to subsection (1A), a worker must provide to the Authority or self-insurer -

(b) a declaration in the form approved by the Authority as to whether or not the worker is engaged in any form of employment or in self-employment or voluntary work for which he or she receives or is entitled to receive payment in money ...

(a) a worker who has been receiving weekly payments for no current work capacity returns to work with the employer in whose employment the injury occurred ...

(b) the employer of a worker at any time during the period of employment due to which or out of or in the course of which a contribution injury ...

If subsection (4) applies, for the purposes of this Division ... a medical practitioner or worker shall not refuse to divulge to the Tribunal, or refuse to give evidence before the Tribunal in respect of, information acquired or given in relation to the medical treatment of a worker, any injury to a worker arising out of or in the course of employment or any physical or mental condition of that worker ...

This Division also applies to a claim for damages ... in respect of an injury if -

(a) the worker's employment is connected with Victoria ; and

What constitutes injury and employment and who is employer

(b) the determination of what constitutes employment or whether or not a person is the worker's employer is to be made on the basis that those concepts include anything that is within the scope of a corresponding concept in the statutory workers compensation scheme of another State.

another State means a State other than the State with which the worker's employment is connected.

common law proceeding means any suit or action by a worker to recover damages in respect of an injury, disease or death arising out of or in the course of employment or due to the nature of employment but does not include a claim, demand or application for compensation under this Act;

A worker ... who may be entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999 shall not ...

(b) in proceedings to which the employer is not a party where, by reason of section 83(1), the injury is deemed to have arisen out of or in the course of employment, if the worker's place of employment is a fixed place of employment and the injury did not occur while the worker was present at that fixed place of employment.

(1) A worker who is ... entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999 -

(2) A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if the injury is a serious injury and arose on or after 20 October 1999.

(b) for the purposes of proving a loss of earning capacity in accordance with subsection (38), a worker bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability;

(38) For the purposes of the assessment of serious injury in accordance with subsections (16) and (19) -

(f) for the purposes of paragraph (e)(i), a worker's loss of earning capacity is to be measured by comparing the worker's gross income from personal exertion (expressed at an annual rate) which the worker is earning in suitable employment as at that date ...

(g) a worker does not establish the loss of earning capacity required by paragraph (b) where the worker has, or would have after rehabilitation or retraining, and taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining, a capacity for any employment including alternative employment or further or additional employment ...

(1) A worker who is, or the dependants of a worker who are or may be, entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment ...

(2) Subsection (1) does not prevent the recovery of damages in proceedings ... in respect of the death of a worker -

(b) arising out of, or in the course of, or due to the nature of, any employment that was a significant contributing factor resulting in or materially contributing to the death.

(1) A worker who is, or the dependants of a worker who are or may be, entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment before 12 November 1997 -

(2) A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment -

(a) if employment of that nature was a significant contributing factor, and the injury is a serious injury and arose on or after 1 December 1992; or

(1) This section applies if a worker may have an entitlement to recover damages....in respect of an injury arising out of or in the course of, or due to the nature of, employment....

(4) The Master of the Supreme Court must not grant the orders...unless satisfied on the balance of probabilities that the injury arising out of or in the course of, or due to the nature of, employment....

Nothing in sections 141, 141A, 142(1), 142A(1), 142B, 142C(1), 143, 146(5) and 151 applies in relation to the employment of a student worker.

In determining whether a body corporate is fit and proper to be a self-insurer for the purposes of this Act, the Authority shall have regard to the following matters -

(c) the incidence of injuries to workers arising out of and in the course of employment by the body corporate and ...

In determining whether MAV is fit and proper to be a self-insurer for the purposes of this Act, the Authority shall have regard to the following matters -

(c) the incidence of injuries to workers arising out of and in the course of employment by MAV or participating corporations and the cost of claims in respect of such injuries;

In determining whether the partnership is fit and proper to be a self-insurer for the purposes of this Act, the authority shall have regard to the following matters -

(c) the incidence of injuries to workers arising out of and in the course of employment by the partnership and the cost of claims in respect of such injuries;

(a) a worker receives an injury arising out of, or in the course of, employment with an employer; and

(2) If, within the period specified in subsection (3), the worker no longer has an incapacity for work or has a current work capacity, the employer must provide the worker -

(a) if the worker no longer has an incapacity for work, with employment in a position which is the same as, or equivalent to, the position which the worker held before the injury; or

Relevant factors in determining whether compliance with section 155A would cause unjustifiable hardship to an employer include -

(j) the extent to which the injury that caused or materially contributed to the worker's incapacity is related to the worker's employment with the employer;

(k) the potential of the worker to obtain suitable employment elsewhere in the labour market if he or she is not provided with suitable employment by the employer.

(iii) an offer of suitable employment under section 155A; and

The Authority or a self-insurer may require a worker who is receiving weekly payments to attend at an interview with a representative of the Authority or self-insurer for the purpose of ascertaining whether the worker's opportunities for employment can be enhanced.

(2) An employer must not dismiss a worker from employment by reason only that the worker complies with a request made under section 239 or 240.

(b) dismiss a worker from employment because the worker has -

Any certificate, notice, form or other document required or authorized by this Act, the regulations or the rules or the Accident Compensation (WorkCover Insurance) Act 1993 or regulations under that Act to be served or given by the Authority or a self-insurer shall be deemed to have been duly served or given -

(a) if delivered personally to, or if left at the last known place of abode or business in or out of the State of the person, whether or not the person is an employer ... by the employer with some person apparently in the employment of the employer; or

Subject to subsection (3), a worker who is or the dependants of a worker who are or may be entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment ...

[1] Third party, 'Outline of Submissions', 8 March 2019, [8].

[7] Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64, [167]-[175] (Campbell JA); Brett v Barr Smith [1919] HCA 4; (1919) 26 CLR 87, 93 (Isaacs J); ACN 074 971 109 Pty Ltd (as trustee for the Argot Unit Trust) v National Mutual Life Association of Australasia Ltd (No 2) [2013] VSCA 241; (2013) 41 VR 476, 493-4 [51] (Nettle and Neave JJA) ('Argot (No 2)').

[8] Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64, [175] (Campbell JA).

[9] Argot (No 2) [2013] VSCA 241; (2013) 41 VR 476, 493-4 [51] (Nettle and Neave JJA).

[10] Gutheil v Ballarat Trustees, Executors and Agency Company Ltd [1922] HCA 19; (1922) 30 CLR 293, 299 (Knox CJ).

[11] L Schuler AG v Wickman Machine Tool Sales Ltd [1973] UKHL 2; [1974] AC 235, 256 (Lord Reid), quoted in Sydney Attractions Group Pty Ltd v Schulman [2013] NSWSC 858, [67] (Sackar J).

[12] Shorter Oxford English Dictionary (Oxford University Press, 5th ed, 2002) 817.

[13] Third party, 'Outline of Submissions', 8 March 2019, [12].

[14] [2015] VSC 185.

[16] Commonwealth v Bourne [1960] HCA 26; (1960) 104 CLR 32, 38-39 (Dixon CJ).

[17] Govic v Boral Australian Gypsum Ltd [2015] VSCA 130; (2015) 47 VR 430, 465 [146]-[147], 469-74 [156]-[176] (Redlich, Osborn and Kyrou JJA).

[18] Third party, 'Supplementary Submissions', 28 March 2019, [18].

[19] Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505, 511 [2] (French CJ, Kiefel, Bell and Keane JJ), quoting Giumelli v Giumelli (1999) 196 CLR 101, 112 [6] (Gleeson CJ, McHugh, Gummow and Callinan JJ); Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26; (2016) 260 CLR 1, 17 [39] (French CJ, Kiefel and Bell JJ), 43 [139]-[141] (Keane J), 68-9 [217] (Nettle J); Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, 418-9, 428-9 (Brennan J); Commonwealth v Verwayen (1990) 170 CLR 394, 422 (Brennan J); Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641, 674 (Dixon J).

[20] Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505, 523 [59] (French CJ, Kiefel, Bell and Keane JJ), quoting Steria Ltd v Hutchison [2006] EWCA Civ 1551; [2007] ICR 445, 467 [129]-[130] (Neuberger LJ).

[21] Commonwealth v Verwayen (1990) 170 CLR 394, 409 (Mason CJ), 423 (Brennan J), 444 (Deane J), 454 (Dawson J).

[22] Defendant, 'Opening Submissions', 27 February 2019, [38].

[27] Third party, 'Outline of Submissions', 8 March 2019, [22]-[23], [25]-[29], [31]-[32], [35].

[29] Ibid 75,644. See also Austral Standard Cables Pty Ltd v Walker Nominees Pty Ltd (1992) 26 NSWLR 524, 528 (Kirby P), 537-8 (Clarke JA), 540 (Handley JA).

[32] See also ACN 074 971 109 Pty Ltd (as Trustee for the Argot Unit Trust) v National Mutual Life Association of Australasia Ltd [2008] VSCA 247; (2008) 21 VR 351, 393-5 [166]-[171] (Buchanan, Nettle and Dodds-Streeton JJA); Pipikos v Trayans [2018] HCA 39; (2018) 92 ALJR 880, 893 [61] (Kiefel CJ, Bell, Gageler and Keane JJ).

[33] Defendant, 'Opening Submissions', 27 February 2019, [55].

[35] Ibid 641. See also Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570, 588-9 [56]-[58] (Gummow, Hayne and Kiefel JJ).

[36] Sargent v ASL Developments Limited (1974) 131 CLR 634, 642 (Stephen J).

[37] Immer (No 145) Pty Limited v Uniting Church in Australia Property Trust (NSW) [1993] HCA 27; (1993) 182 CLR 26, 39 (Deane, Toohey, Gaudron and McHugh JJ), quoting The Kanchenjunga [1990] 1 Lloyd's Rep 391, 398 (Lord Goff of Chieveley).

[38] Sargent v ASL Developments Limited (1974) 131 CLR 634, 647 (Stephen J).

[39] Defendant, 'Opening Submissions', 27 February 2019, [55].

[40] [1992] VicRp 25; [1992] 1 VR 386.

[42] [1993] QCA 222; [1994] 2 Qd R 390.

[43] Ibid 395. Cited with approval in John Connell Holdings Pty Ltd v Mercantile Mutual Insurance Holdings Ltd [1999] QCA 429 [29] (de Jersey CJ); Owners-Strata Plan 62658 v Mestrez Pty Limited [2012] NSWSC 1259 [167] (Lindsay J); Switzerland Insurance Australia Limited v Mowie Fisheries Pty Ltd [1997] FCA 231; (1997) 74 FCR 205, 241, 243 (Beaumont J, dissenting but the majority expressed no view on election).

[44] [2003] NSWCA 327; (2003) 59 NSWLR 119.

[45] Ibid 137 [62]-[64] (Santow JA), 138 [69]-[70] (Ipp JA and Young CJ in Eq agreeing).