Gosbell v ADI Ltd & Anor [2001] NSWSC 354

New South Wales Supreme Court

CITATION : Gosbell v ADI Ltd & Anor [2001] NSWSC 354 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20111 of 2001 HEARING DATE(S) : 2 May 2001 JUDGMENT DATE : 25 May 2001

Scott Raymond Gosbell (Plaintiff) PARTIES : v ADI Limited (First Defendant) Inter-Chillers Pty Ltd (Second Defendant) JUDGMENT OF : Master Malpass

Mr M Joseph SC (Plaintiff) COUNSEL : Mr R S Sheldon (First Defendant) N/A (Second Defendant) TD Kelly & Co (Plaintiff) SOLICITORS : Sparke Helmore (First Defendant) PricewaterhouseCoopers Legal (Second Defendant) CATCHWORDS : Election to be made under s 45 - a sequential step to be taken prior to institution of action or proceeding - must be in writing - need to be express - not made in this case. LEGISLATION CITED : Safety, Rehabilitation And Compensation Act 1988, s 44, s 44 (1) s 45, s 45 (1), s 45 (2). Supreme Court Rules 1970, Pt 31. Austral Pacific Group Ltd (in liq) v Air Services Australia 173 ALR 619. CASES CITED : Commonwealth v Flaviano (1996) 40 NSWLR 199. Grogan v Commonwealth of Australia (1999) 1 QdR 30. DECISION : See Paragraph 25.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

FRIDAY 25 MAY 2001

20111 of 2001 SCOTT RAYMOND GOSBELL v ADI LIMITED & ANOR JUDGMENT 1 The plaintiff suffered injury in a work incident. Proceedings for recovery of damages were brought on 16 February 2001. 2 The first defendant was his employer at the time of the incident and is also "the licensed corporation" for the purposes of the Safety, Rehabilitation And Compensation Act 1988 (the Act). 3 A defence has been filed by the first defendant. It puts in issue the question of whether or not there has been an election which satisfies the requirements of s 45 of the Act. It relies on s 44 as barring the right to commence and maintain the proceedings. 4 A Notice of Motion was filed by the first defendant on 12 April 2001. In effect, it sought summary relief. It came on for hearing on 2 May 2001. 5 Following the commencement of the hearing, a separate question was formulated by the parties. An order was made pursuant to Pt 31 of the Supreme Court Rules 1970. By consent, the court then proceeded to hear the separate question. 6 The formulation of the separate question may be found in Exhibit B. It is in the following terms:- "Whether the Plaintiff elected in writing to institute an action or proceeding against the Commonwealth, the Commonwealth Authority or the licensed corporation under s 45 of the Safety, Rehabilitation & Compensation Act, 1988 prior to the commencement of these proceedings." 7 It is common ground that an election satisfying the requirements of s 45 has to be made prior to the commencement of proceedings. The making of such an election has been regarded as being a condition precedent to the commencement of valid proceedings. Unless and until that happens, s 44 applies and no action lies. 8 Section 44 of the Act provides that an action or other proceeding for damages did not lie against the Commonwealth, a Commonwealth Authority, a licensed corporation or employee in certain cases. It is expressed to be subject to s 45. 9 Section 45 is in the following terms:- "45. Actions for damages---election by employees (1) Where: (a) compensation is payable under section 24, 25 or 27 in respect of an injury to an employee; and (b) the Commonwealth, a Commonwealth authority, a licensed corporation or another employee would, but for subsection 44(1), be liable for damages for any non-economic loss suffered by the employee as a result of the injury; the employee may, at any time before an amount of compensation is paid to the employee under section 24, 25 or 27 in respect of that injury, elect in writing to institute an action or proceeding against the Commonwealth, the Commonwealth authority, the licensed corporation or other employee for damages for that non-economic loss.