Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE AND HEYDON JJ

NOMINAL DEFENDANT APPELLANT

AND

GLG AUSTRALIA PTY LIMITED & ORS RESPONDENTS

Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11

5 April 2006

S329/2005

ORDER

1. Appeal allowed.

2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales dated 23 August 2004 and, in their place, order that the appeal to that Court be dismissed.

3. (a) The first respondent to repay the sum of $132,370.34 to the appellant plus interest calculated at $32.64 per day from 12 November 2004 until the date when this order takes effect.

(b) The order in paragraph (a) is suspended for seven days.

(c) In the event of the first respondent filing and serving written submissions within that period contending that the order in paragraph (a) is wrong:

(i) it will remain suspended until further order; and

(ii) the appellant is directed to file and serve written submissions in reply within a further seven days, and to apply within a further seven days to re-list the matter before a single Justice.

4. The first respondent to pay the appellant's costs of the appeal to the Court of Appeal and of the proceedings in this Court.

On appeal from the Supreme Court of New South Wales

Representation:

P J Deakin QC with P J Nolan for the appellant (instructed by Sparke Helmore)

J E Maconachie QC with N J Polin for the first respondent (instructed by Curwood & Partners)

Submitting appearance for the second respondent.

Submitting appearance for the third respondent.

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Nominal Defendant v GLG Australia Pty Limited

Statutes – Motor Accidents Act 1988 (NSW) ("the Act") – Scope of indemnity – Scope of definition of "injury" under s 3(1) of the Act – A system of work involving forklift vehicle produced vibrations causing boxes in container to fall and strike worker – Whether injury "is a result of and is caused during ... the driving of the vehicle" under par (a)(i) of the definition of "injury" – Whether Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 79 ALJR 1079; 215 ALR 385 required definition of "injury" to be construed consistently with s 69(1) of the Act – Whether injury "caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle" – Whether fault in failing to devise a safe system of work can be invoked as basis of claim for indemnity under the Act – Causation – Whether direct and proximate relationship between the driving of the vehicle and the injuries.