Precedent (Australian Lawyers Alliance)
HOW A LEGISLATIVE PROVISION ERODES DAMAGES FOR WORKPLACE INJURIES IN NSW
By Larry King SC
The effect of s151Z of the Workers Compensation Act 1987 (NSW) is to reduce an injured worker’s damages when the worker’s employer and a third party are concurrent tortfeasors and the third party is claimed against. It could come into play, for example, when the worker’s employer is a labour-hire company and the third party is the company responsible for the overall management of the site which used the services of the labour-hire company. Another example might be when the plaintiff’s employer was a company sub-contracted to carry out some work on a building site and the third party (non-employer) was the head contractor of the site, or another subcontractor whose negligent conduct injures the worker.
Although s151Z of the Workers Compensation Act 1987 (NSW) (the WCA) has been the subject of much judicial and extra-judicial consideration, its meaning is clear only in certain respects. In others, it remains the source of continuing uncertainty for legal practitioners in industrial accident personal injuries litigation and, indeed, in personal injuries litigation generally.
In arguing a relatively recent application before the High Court, David Jackson QC described s151Z as ‘... not without its obscurities’. Of course, personal injuries litigation is not confined to industrial accidents and in NSW may be affected by the Motor Accidents Compensation Act 1999 (NSW) (MACA) and the Civil Liability Act 2002 (NSW) (CLA). The latter contains, in s19, a provision which equates to those parts of s151Z that deal squarely with the quantification of an injured plaintiff's damages against a third party tortfeasor when his or her employer was also negligent in causing the relevant injury. This article, however, confines itself to consideration of s151Z.
Workers Compensation Act 1987 (NSW)
151Z Recovery against both employer and stranger
(1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect:
(a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for payment of that compensation, but is not entitled to retain both damages and compensation,
(b) if the worker recovers firstly compensation and secondly those damages, the worker is liable to repay out of those damages the amount of compensation which a person has paid in respect of the worker's injury under this Act, and the worker is not entitled to any further compensation,
(c) if the worker firstly recovers those damages the worker is not entitled to recover compensation under this Act,
(d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages),
(e) if any payment is made under the indemnity and, at the time of the payment, the worker has not obtained judgment for damages against the person paying under the indemnity, the payment is, to the extent of the amount, a defence to proceedings by the worker against that person for damages,
(e1) if any payment is made under the indemnity and, at the time of the payment, the worker has obtained judgment for damages against the person paying under the indemnity (but judgment has not been satisfied), the payment, to the extent of its amount, satisfies the judgment,
(f) all questions relating to matters arising under this section are, in default of agreement, to be settled by action or, with the consent of the parties, by the Commission.
(2) If, in respect of an injury to a worker for which compensation is payable under this Act:
(a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker's employer; and
(b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer;
the following provisions have effect:
(c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable;
(d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages;
(e) if the worker does not take proceedings against that employer or does not accept satisfaction of the judgment against that employer, subsection (1) applies as if the worker had not been entitled to recover damages from that employer, except that;
(i) if the compensation paid by that employer exceeds the amount of the contribution that could be recovered from that employer as a joint tortfeasor or otherwise – the indemnity referred to in subsection (1)(d) is for the amount of the excess only; and
(ii) if the compensation paid by that employer does not exceed the amount of that contribution – subsection 1)(d) does not apply and the employer has, to the extent of the compensation so paid, a defence to an action for such a contribution.
(3) This section applies to proceedings taken independently of this Act by a person to whom compensation is payable under this Act in respect of the death of a worker as a result of an injury.
(4) If a worker is liable under subsection (1)(b) to repay any money out of damages recovered by the worker, the worker is not liable to repay the money out of any damages payable after the date of recovery by way of periodic or other payments for loss of future earnings or earning capacity or for future expenses.
(5) For the avoidance of doubt, this section applies and is taken to always to have applied to the recovery of compensation or damages, whether or not the compensation or damages were paid under an award or judgment. For example, compensation or damages may be paid under an agreement.
HOW SUBSECTION 2 REDUCES A PLAINTIFF’S DAMAGES A THIRD-PARTY TORTFEASOR
It is subsection (2) of s151Z which adversely affects the damages recoverable by an injured plaintiff from a third party tortfeasor when his or her employer was also negligent. It is this subsection which has attracted most attention in judicial decisions and in papers such as that delivered by Campbell J to the NSW Bar Association's Personal Injury Conference on 7 February 2009. Of reported cases, the best known are probably Leonard v Smith, Grljak v Trivan Pty Ltd, Grljak v Trivan Pty Ltd (No. 2), and Clout Industrial Pty Ltd v Baiada Poultry Pty Ltd. The unreported decision of the Court of Appeal in J Blackwood & Son v Skilled Engineering is also relevant, and not solely in relation to the reduction of a plaintiff's damages against a third party tortfeasor, as will later be shown. Similarly pertinent is the unreported decision of Hislop J in Hodge v CSR Ltd.
Section 151Z is not confined to personal injuries claims by living plaintiffs. It applies also to claims for damages ‘... by a person to whom compensation is payable ... in respect of the death of a worker as a result of an injury’; that is, typically, a claim under the Compensation to Relatives Act 1897 (NSW).
DAMAGES FROM THE EMPLOYER WILL BE LOWER THAN DAMAGES FROM THE NON-EMPLOYER
The critical provisions in reducing a plaintiff's damages are s151Z(2)(c) and (d), which are predicated upon subclauses (a) and (b) – that is, that the worker takes or is entitled to take proceedings for damages against both the third party tortfeasor and the employer. In those circumstances, the effect of clause (d) is that the court must calculate damages against the third party tortfeasor (either under the MACA or CLA) and also calculate damages against the employer under the Workers Compensation Act (that is, ‘Modified Common Law Damages’ in accordance with Part 5 Div 3). The latter comprises only past and future economic loss; past and future superannuation losses thereon; and Fox v Wood taxation deductions from past weekly payments of compensation. Almost inevitably, such damages will be lower than damages calculated under the MACA or CLA. If the injured plaintiff does not reach the threshold of 15 per cent Whole Person Impairment (WPI), no damages are recoverable under the Workers Compensation Act, notwithstanding that there is an ‘entitlement’ to take proceedings against the employer (in the sense that there has been a breach of duty of care and causation of an injury). (The effect of the legislation is that the cause of action against the employer is worthless, if the threshold is not met.)
The court is required to find the level of blame of the employer, even if it is clear from the beginning that the employer will make no contribution, because there are no assessable damages to create a monetary liability in the employer under the Workers Compensation Act.
The operation of s151Z(2)(c) is simple enough once the necessary pre-conditions of liability in the third party (the non-employer) and the employer have been met and a ‘just and equitable’ apportionment of blame to each has been made (in accordance with s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW)).
Then it is only necessary to work out the higher (non-employer) and lower (employer) measures of damage in respect of the injury. Two practical examples are given below to show what happens then. In both examples, we assume that the apportionment of blame is 50/50.
Assume that non-employer damages are $500,000 and employer damages $200,000. Under the old common law, the measure of damage against each would have been the same. The plaintiff would have got judgment against each for that sum but could have executed only once. The non-employer and the employer would have got judgment against each other on their cross-claims for $250,000.
By clause (d) of s151Z(2), however, now the fund of money from which the non-employer is entitled to a contribution from the employer is calculated as if it were assessed as Modified Common Law Damages in accordance with Part 5 Div 3 of the Workers Compensation Act. So, instead of a contribution of $250,000 from the employer, the non-employer gets a contribution of $100,000.
Then, by clause (c) of s151Z(2), the plaintiff's damages against the non-employer are reduced by the difference between the contribution that would have been obtainable under the old common law ($250,000) and the contribution now actually obtainable ($100,000): that difference is $150,000. The damages against the non-employer are reduced to $350,000.
As Allen J pointed out in Leonard v Smith (supra), the end result for the non-employer is as it was under the old common law: the non-employer is out of pocket by $250,000 – that is, the $350,000 payable to the plaintiff less the employer’s contribution of $100,000 (if the employer is insured or otherwise solvent).
Again we assume that the apportionment of blame is 50/50. In this case, assume non-employer damages of $400,000, and employer damages of zero because the plaintiff does not reach the 15 per cent WPI threshold. Formerly, the non-employer would have got a contribution of $200,000, but now gets a contribution of 50 per cent of zero which is zero. The difference between the two is $200,000. The plaintiff's damages against the non-employer are reduced from $400,000 to $200,000.
The cases noted above bear out this application of s151Z(2). See, in particular, Clout Industrial Pty Ltd v Baiada Poultry Pty Ltd.
NO REQUIREMENT FOR PROPORTIONATE JUDGMENTS
In regard to the cases noted above, it must be mentioned that Allen J in Leonard v Smith made one error in his otherwise excellent elucidation of s151Z (the operation of which he described as ‘draconic’) in that he held that it ousted the old law that a plaintiff who proved a case against two defendants got judgments in solidum against each; that is, under the old law, if the measure of damage was $500,000, the plaintiff would have got judgment against each in that amount (but could have recovered only once). His Honour held that the section required proportionate judgments rather than judgments in the full measure against each defendant. However, there is no support in s151Z for that conclusion, as the Court of Appeal held (without reference to Leonard) in Oxley County Council v McDonald & Ors; Brambles Holdings Ltd v McDonald & Ors per Sheller JA, with whom Priestley and Powell JJA agreed. Thus, in Example A above, the plaintiff would get judgment against the non-employer for $350,000 and against the employer for $200,000, but could not recover more than $350,000 in total.
THRESHOLDS AND ONUS: WHEN THE EMPLOYER IS NOT SUED
Section 151Z(2) is clear in its application, whether or not the plaintiff sues the employer. Thus, a plaintiff's damages against a non-employer may be reduced if the employer is not a defendant or, for that matter, even if the employer is not a party to the proceedings at all; that is, not a cross-defendant either. But in such a situation the question of onus arises in respect of the threshold requirement for quantifying the employer damages. Obviously enough, it is in the plaintiff's interests that there be assessable damages, because that means that the gap between non-employer damages and employer damages will be narrower than if the latter are assessed at zero, with the consequence that the plaintiff will suffer a lesser reduction in his or her damages against the non-employer.
In practice, this is seldom a problem area: if a plaintiff has a cause of action against the employer and can get the statutory certificate of 15 per cent or more WPI, the plaintiff will usually join the employer and endeavour to maximise employer damages. If the non-employer joins the employer as a cross-defendant, the plaintiff will usually follow suit and bring the employer in as a defendant in the expectation that if the employer is held not liable, there will be no question of non-employer damages being reduced and the plaintiff should get a Bullock or Sanderson order avoiding adverse costs by reason of the failure of the claim against the employer.
But what of the situation in which the plaintiff has a cause of action against the employer but does not press it? A certificate following a medical assessment under Part 7 of the Workers Compensation Act might not exist, or might not certify that the plaintiff has 15 per cent WPI or more. If the non-employer wishes to recover an actual contribution from the employer as well as secure a discount in the amount of damages it must pay to the plaintiff, what happens about proving 15 per cent WPI or more so as to show a fund of recoverable damages greater than zero for the purposes of s151Z(2)(d)? And what happens if the non-employer does not seek an actual contribution from the employer, but the plaintiff naturally wishes to show that damages are assessable under the Act so as to ameliorate the reduction in damages available to the non-employer? What evidence has to be obtained and who has the onus of obtaining and adducing it?
The answers to these questions appear to be as follows.
Firstly, where there is no live claim by the plaintiff against the employer, any certificate or medical report that was proffered could not be regarded as in compliance with the legislation, because the relevant machinery is confined to a worker's claim against an employer, and a certificate for another purpose would be ultra vires. But the existence of the necessary WPI could be proved by evidence not amounting to a statutory certificate; that is, evidence that the plaintiff could have got one if he were claiming against the employer and what the percentage WPI was.
Secondly, in regard to onus, if the non-employer or plaintiff or both are endeavouring to prove a fund of assessable damages against the employer, the onus is on them to prove that the necessary WPI exists and what the damages are. If the non-employer is endeavouring to prove that the WPI is less than 15 per cent so as to maximise the reduction in damages recoverable against it by the plaintiff (that being a partial defence to the plaintiff's claim), the onus is on the non-employer to do so. This was the view of Hodgson JA in Forstaff Blacktown Pty Ltd v Brimac Pty Ltd, with which McColl JA disagreed, but which was supported by Basten JA in Maricic v Dalma Formwork (Australia) Pty Ltd, and then by McColl JA (with whom Mason P and Beazley JA agreed) in Pollard v Baulderstone Hornibrook Engineering Pty Ltd.
WHEN THE APPORTIONMENT OF BLAME IS NOT JUST AND EQUITABLE
What has been said above is essentially concerned with the operation of s151Z in respect of claims in tort, and the examples given are in respect of a 50/50 contribution between the employer and non-employer. But, as is well known, contribution in tort under the Law Reform Act 1946 (NSW) can be 100 per cent (that is, a 100 per cent contribution amounting to an indemnity). If a non-employer were entitled to an indemnity from the employer in tort then, in Example A above, there would be an argument that the plaintiff's damages be reduced to $200,000 against the non-employer, and in Example B, to zero. Fortunately for plaintiffs, it is difficult to imagine a situation in which a non-employer is entitled to a full tortious indemnity from a negligent employer. (Contracts ostensibly giving such indemnity are discussed below.) Some sort of just and equitable split will be the norm. An indemnity in favour of an employer from a non-employer is a more practical possibility, especially where labour hire companies are concerned, as the employer has hired out the services of the plaintiff to the non-employer acting as employer pro hac vice. In such cases, if the employer is liable only because of its non-delegable duty to the plaintiff (that is, liable only because the non-employer was negligent), there can be an indemnity in favour of the employer; but, for present purposes, the significance of this state of affairs is that if there is in fact no direct negligence on the part of the employer and the only source of its liability is in its non-delegable duty of care, there should be no reduction in the plaintiff's damages against the non-employer under s151Z(2).
It is hoped that the above discussion explains what might be described as the ‘everyday’ operation of the way in which s151Z(2) reduces a plaintiff's damages against a non-employer. But if we look at s151Z as a whole, we see that there are considerations beyond those mentioned above. Unfortunately, these are more complicated and difficult. I will endeavour to identify and discuss them below.
Indemnity and contracts
As we have seen, the reduction in a plaintiff's damages against a non-employer is directly related to the difference in contribution recoverable by the non-employer from the employer, arising from the different measures of damages. The allocation of some level of blame to the employer is essential if the non-employer is to receive a contribution from the employer or get a reduction in the plaintiff’s damages against it. The above discussion assumes a just and equitable allocation of blame by operation of s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW); and, in examples A and B, a 50/50 split in tort was assumed.
But what if there is a contractual requirement on the part of the employer to indemnify the non-employer pursuant to an indemnity clause in a contract between them, or if there is a contract between them which has no applicable indemnity clause but the employer breached the contract in a way causally related to the plaintiff's injury, so that there would be the real prospect of a contractual indemnity in any event? What of the situation in which the employer may be in breach of statutory obligations or duties owed to the non-employer pursuant to the Commonwealth Trade Practices Act or the NSW Fair Trading Act? The possible implications here are very stark: if, for example, a non-employer were entitled to a complete indemnity in contract, or otherwise, and the plaintiff had no assessable damages against the employer, the damages payable by the non-employer would arguably be reduced to zero.
Section 151Z(2) is the successor to s150(2) of the Workers Compensation Act. When the Act was enacted in 1987, it precluded claims for damages by workers against their employers, and in respect of claims for damages for employment injuries that were available against non-employers, it provided in s150(2)(c) that the non-employer could not recover a contribution from the employer, but went on in s150(2)(d) to provide that:
‘(d) the damages that may be recovered from the person [ie, the non-employer] by the worker in proceedings referred to in paragraph (a) shall be reduced by the amount of the contribution that (but for paragraph (c)) the Court determines that the person would otherwise have been entitled to recover from that employer as a joint tortfeasor or otherwise’.
Thus it can be seen that s151Z is the logical successor to s150, enacted in 1989 when claims for damages against employers in modified form were provided for by amendment of the Workers Compensation Act.
Both s150(2)(d), when extant, and s151Z, speak of contribution recoverable as a tortfeasor ‘or otherwise’. These two troublesome words clearly throw up the need to consider sources of contribution in contract and by statute. On the face of things, liability in an employer to give a non-employer a complete indemnity in respect of the liability to the injured plaintiff would work the same modifications to Examples A and B above as is arguably worked by a 100 per cent contribution or indemnity in tort. In considering the former s150, Mathews J in Georgitsis v Lend Lease Interiors Pty Ltd clearly felt that the competing points of view were real, but held that while subsection (2)(c) did not bar contractual claims between non-employer and employer, such a claim should not operate upon s150(2)(d). Its operation was concerned with tortious liability related to the occurrence of the injury. As far as I am aware, there has been no appellate or other reported decision directly applying this reasoning to s151Z(2)(c) but there is no reason why it would not apply and every reason why it should. After all, it seems much fairer that an injured worker's rights should not be adversely affected by commercial dealings between his or her employer and somebody else to which he is not a party and of which he or she is probably ignorant, and every reason why those rights should be determined according to actual responsibility for the injury.
When one comes to rights of contribution for breach of statutory duty, a question immediately arises whether such rights between non-employer and employer are within the phrase ‘or otherwise’. The view that they are was taken by the Court of Appeal in Hampic Pty Ltd v Adams and Lapcevic v Collier. The application of these cases or concepts is not entirely easy. For present purposes, they probably constitute obiter dicta, and it is probably fair to say that doubt has been obliquely suggested about their correctness by Campbell JA in J Blackwood & Son Ltd. This decision is one which will repay careful consideration in respect of the operation of the entirety of s151Z. It may be, however, that the difficulties are more apparent than real. Actions for breach of statutory duty are generally regarded as actions in tort. It was said in the High Court in Roads & Traffic Authority of NSW v Dederer that all duties were duties of reasonable care, and regard can be had to statutory reforms providing in many contexts that at least for an injured worker (or persons claiming through him or her if he or she is deceased), contributory negligence is a partial defence to liability for breach of statutory duty. That notion could arguably be extended to s151Z to exclude any argument based upon alleged 100 per cent liability in an employer to a non-employer for breach of statutory duty in similar fashion to the way in which Mathews J dealt with a contractual indemnity in Georgitsis v Lend Lease Interiors Pty Ltd.
When the worker is guilty of contributory negligence
A further possible uncertainty which could affect the amount of damages recovered by a plaintiff against a non-employer arises from s151Z by reason of the interaction between the right of recovery given to an employer in respect of payments of compensation to an injured worker from a negligent non-employer, and a worker's right to have the compensation repayable from his or her damages to the employer reduced, if he or she is found guilty of contributory negligence, to the same extent as the overall damages are reduced for that contributory negligence in accordance with s10 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW). (In the case of a claim for modified common law damages by a plaintiff against an employer, s151N of the Workers Compensation Act does the same work as s10 of the 1965 Law Reform Act.) The potential difficulty lies in the fact that the employer's right of recovery in respect of payments of compensation, given by s151Z(1)(d)-(e1), is expressed to be an indemnity, limited only to the amount of damages the worker would recover, without provision for any reduction for contributory negligence, yet any payment made by the non-employer to the employer pursuant to the indemnity is a defence to the worker's claim for damages, if any, against the non-employer. Thus it would seem that if effect is given to the employer's right of indemnity against a non-employer when the injured worker brings a claim for damages against the non-employer and is found guilty of contributory negligence, the non-employer, having refunded or become liable to refund the compensation to the employer in full, could rely on s151Z to say against the worker that it was entitled to a defence for that full amount, and that the worker's right to a proportionate reduction in the payback in accordance with the finding of contributory negligence against him or her does not in the circumstances apply.
This lack of neat interaction between s151Z of the Workers Compensation Act and s10 of the 1965 Law Reform Act is probably more apparent than real. A considerable body of authority, some of it obiter dicta, suggests that each provision takes effect according to its terms, and that in a situation in which the employer avails itself of the indemnity from the non-employer in respect of payments of compensation, and the worker also claims against the non-employer and is found guilty of contributory negligence, the employer makes a full recovery up to the limit of the worker's damages, the worker gets the benefit of any proportionate reduction in the compensation paid to him or her, and probably, or at least arguably, the non-employer bears the shortfall in what would otherwise be a defence to the full amount of the compensation paid created by that proportionate reduction. So much seems to follow implicitly, though without express statement, from Hickson v Goodman Fielder Ltd. In that case, the High Court held that there was no need for a court to make a finding of contributory negligence before the proportionate reduction in the workers’ compensation payback to the employer could take effect under s10 of the 1965 Law Reform Act, and in a passage which is undoubtedly obiter dicta, Bell J, with whom the other four members of the High Court agreed, said:
‘Goodman Fielder submits that the operation of those provisions of s151Z(1) which confer an indemnity on the employer against the tortfeasor, paras (d), (e) and (e1), provide support for its contention. An employer who brings proceedings pursuant to the statutory indemnity is said to be entitled to full recovery of the amount of compensation paid. This is said to be inconsistent with reduction in the amount of the repayment by the worker under s10(2) in any but the confined circumstances asserted. The submission overlooks that s10(2) speaks to s151Z(1)(b) and not to paras (d), (e) and (e1). It is not necessary to consider the operation of paras (d), (e) and (e1) for the determination of the appeal. However, it is to be observed that there is no necessary incongruity under a statutory no-fault compensation scheme in treating the injured worker differently from the tortfeasor.’ (emphasis added)
The decision of Bozic SC DCJ in Saffell v Mekhaeel; Motor Cycles Australia v Mekhaeel and the decision of the Court of Appeal in Marien v Gardiner; Marien v H J Heinz Company Australia Ltd, are consistent with the above passage from the reasons of Bell J in Hickson v Goodman Fielder and support the view that s151Z does not disadvantage a plaintiff who has received compensation and claimed damages against a non-employer if found guilty of contributory negligence, notwithstanding that the employer has enforced its right of recovery in accordance with s151Z. However, it must be conceded that the situation is uncertain. The statements in the cases can also be read consistently with the proposition that if the employer has enforced its indemnity under s151Z(1)(d), the plaintiff loses the proportion of reduction in the payback of compensation that he or she would otherwise have got from s10 of the 1965 Law Reform Act. An argument exists that because the relevant provision of s151Z restates the earlier relevant provisions of s64 of the 1926 Workers Compensation Act, the legislature, by in effect bracketing s10 of the 1965 Law Reform Act with a conflicting provision, intended s151Z to prevail.
There are no doubt still further difficulties, or to parrot David Jackson QC, ‘obscurities’, which can be perceived in the construction and application of s151Z, but they must await discovery by others.
Larry King SC is a barrister at the Sydney Bar. He practises chiefly in personal injuries and occupational health and safety.
 Australian Native Landscapes Pty Ltd v Minogue  HCA Trans 240 (2 September 2011), p4.
 27 NSWLR 5 (Allen J).
 35 NSWLR 82 (NSW Court of Appeal).
  NSWCA 233.
  NSWCA 89; 61 NSWLR 111.
  NSWCA 142.
  NSWSC 27.
 Section 151Z(3).
 (supra) at para , 61 NSWLR 125-6 (supra) at para .
  NSWCA 126 at para .
 See Fuller v K & J Trucks Coffs Harbour Pty Ltd  NSWCA 88; 67 NSWLR 516 at para , pp527-8.
  NSWCA 423; (2005) 4 DDCR 179.
  NSWCA 174.
  NSWCA 99 at .
 See Hodges (supra) paras -.
 See Mayo v Florida Hotels Pty Ltd (1965) 65 SR(NSW) 41 at 51 per Sugerman P, and on appeal to the High Court HCA 26; , 113 CLR 588, and Taylor v Leach & Sons Pty Ltd (Supreme Court of NSW, Wood J, 23 October 1984, unreported) at p33.
 17 NSWLR 106.
  NSWCA 455; (2000) ATPR 41-737, paras -.
  NSWCA 300.
 (supra) at para .
 234 CLR 330 per Gummow J.
  HCA 11; 237 CLR 130.
 Ibid, at .
 5 April 2012, unreported.
  NSWCA 396, per Meagher JA, with whom MacFarlan JA agreed, at  (placing some reliance on Campbell JA in J Blackwood & Son (supra) at -) and Emmett JA at .