Canberra International Airport Pty Limited v Oak Dedicated Limited Co [2007] ACTSC 19 (29 January 2007)

Last Updated: 7 May 2008

CANBERRA INTERNATIONAL AIRPORT PTY LIMITED v OAK DEDICATED LIMITED CO [2007] ACTSC 19 (21 March 2007)

INSURANCE - third party liability - proceedings by third party against insurer - application for leave - requirement for applicant to have arguable case against insurer - Civil Law (Wrongs) Act 2002 (ACT), s 206, 207.

INSURANCE - whether insurer liable - two possible causes of loss - insurer able to disclaim liability if concurrent cause not covered under policy - whether insurer so entitled an arguable question of causation.

CONTRACT - construction and interpretation - assumed unreasonable commercial result insufficient to avoid plain meaning of words if no alternative construction available - "arising out of".

Civil Law (Wrongs) Act 2002 (ACT), s 206, 207

Law Reform (Miscellaneous Provisions) Ordinance 1955 (ACT), s 25, s 26

Andjelkovic v AFG Insurances Ltd (1980) 31 ACTR 17

AFG Insurances Ltd v Andjelkovic [1981] FCA 104; (1981) 54 FLR 398

Wayne Tank and Pump Co Ltd v Employers Liability Assurance Corp Ltd [1974] QB 57

No. SC 451 of 2005

Judge: Gray J

Supreme Court of the ACT

Date: 21 March 2007

IN THE SUPREME COURT OF THE )

) No. SC 451 of 2005

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: CANBERRA INTERNATIONAL AIRPORT PTY LIMITED

Plaintiff

AND: OAK DEDICATED LIMITED CO

Defendant

ORDER

Judge: Gray J

Date: 21 March 2007

Place: Canberra

THE COURT ORDERS THAT:

1. Leave not be granted to the plaintiff to proceed under s 207 of the Civil Law (Wrongs) Act 2002 to commence an action under s 206 of that Act against Oak Dedicated Limited Co or to join that entity as a defendant in proceeding SC 297 of 2004.

1. Canberra International Airport Pty Limited (the plaintiff) seeks leave to commence an action against Oak Dedicated Ltd Co (Oak) which is a consortium of insurance writers who held a policy of insurance entitled "Professional Indemnity Act, Error or Omission Policy" (the policy) in respect of Strarch International Limited (Strarch), a designer and constructer of steel framed hangars for aircraft.

Background

2. The plaintiff is the Crown Lessee of the Canberra International Airport and operates the business of the airport.

3. On or about 25 September 2002, the plaintiff entered into an agreement with the Commonwealth of Australia by which the plaintiff agreed to procure Construction Control Pty Ltd (Construction Control) to design and construct an aircraft hangar and associated facilities which were to be completed by 2 October 2003 or such other date determined for practical completion. The hangar and its facilities were then to be leased to the Commonwealth of Australia from that date. On or about 20 October 2002, the plaintiff entered into a written design and construct contract with Construction Control. Construction Control then entered into a contract with Strarch for the design and construction of the hangar component of the project. In about October 2002, for its part, Strarch engaged 24 Hour Fabrication Pty Ltd (24 Hour) to fabricate, deliver to site, paint and erect the hangar. Strarch retained responsibility for the design.

4. On 7 May 2003, the hangar, which was then partially erected, collapsed.

5. The plaintiff claims as a consequence that it sustained substantial loss relating to the delay in completing the hangar, loss of rent, additional construction costs and overhead costs.

6. The plaintiff's claim against Strarch is a claim that Strarch owed a duty of care to the plaintiff to exercise reasonable skill and take reasonable care in the design and specification for the hangar.

7. At the time the hangar collapsed, Strarch was the insured under a policy of insurance entitled "Professional Indemnity Act, Error or Omission Policy". Oak is the syndicate of underwriters in respect of the policy. On 11 March 2004, Strarch was placed in liquidation. On 21 May 2004, the plaintiff was given leave to issue proceedings against Strarch (in Liquidation), and those proceedings are SC 297 of 2004. The proceedings contain particulars of the breach of care alleged against Strarch in aspects of the design of the hangar.

8. The plaintiff has an expert report from a Mr Richard Hough, a structural engineer, that provides an opinion as to the cause of the collapse of the hangar. On the assumptions made by Mr Hough, he was of the opinion that the design of the gaplock plates provided for the structure did not meet with the Building Code of Australia requirements in its compliance with the Loading Standards (AS 4100 of Standards Australia) and that one bolt in the gaplock was incorrectly installed. He considered that it is likely that the bolt failure would not have occurred if either of these conditions had been absent. He also considered if several bolts were incorrectly installed, this was "not a condition that the designer was expected to accommodate within the requirement for design against progressive collapse".

9. Accordingly, the question of the design causing or contributing to the collapse of the structure is very much in issue.

The Civil Law (Wrongs) Act 2002 (ACT)

10. Section 206 (1) and (2) of the Civil Law (Wrongs) Act 2002 (ACT) provides that where a person insured under a contract of insurance indemnifying the insured against liability to pay damages or compensation and an event occurs giving rise to such a claim, the insured's liability in relation to the event becomes a charge on the insurance money that is or may become payable in relation to the liability. Section 207 then provides for enforcement of such a charge. Section 207(1) provides that such a charge is enforceable by an action against the insurer in the same way and in the same court as if the action were an action to recover damages or compensation from the insured. However, except where the corporation is or is deemed to be in liquidation at the time of the event, action cannot be begun without the leave of the court (s 207(4)). There is a qualification concerning the granting of leave in s 207(5) of that Act which provides:

Leave must not be given if the court is satisfied that -

(a) the insurer is entitled under the terms of the contract of insurance to disclaim liability; and

(b) any proceeding, including any arbitration proceeding, necessary to establish that entitlement have [sic] been taken.

11. The effect of that provision and the granting of leave generally under the provisions of the Act, were considered by Blackburn CJ in Andjelkovic v AFG Insurances Ltd (1980) 31 ACTR 17. That case concerned ss 25 and 26 of the Law Reform (Miscellaneous Provisions) Ordinance 1955 (ACT) which was in similar terms to the provisions that I am now considering. Blackburn CJ took the view that the provision which preceded s 207 (5) did not exhaustively prescribe the circumstances in which the grant of leave is to be refused (see at 22). He concluded (at 24):

The main purpose of the provision requiring leave to commence the statutory action is to prevent the substitution of a statutory claim for a claim against the insured where the latter is available and will apparently be effective. Leave may also be refused where the applicant's claim is unarguable, ie where the applicant's contention, that the statutory conditions for the vesting in him of a right of action have been fulfilled, could not possibly succeed. But if on such an issue there is an argument in the applicant's favour which could be seriously put, then in my opinion, on the proper construction of the Ordinance, leave should be granted and the issue should be determined in the action in any available way.

12. Blackburn CJ took the view that in the case before him, the contention put by the applicant in that case could not be said to be an unarguable one. On appeal, his conclusion in that respect was reversed by the Full Court of the Federal Court (Franki, McGregor and Kelly JJ). That case was AFG Insurances Ltd v Andjelkovic [1981] FCA 104; (1981) 54 FLR 398. However, the court accepted the test proposed by Blackburn CJ whilst disagreeing as to its application. At 400, the court said:

We accept the relevant test proposed by the respondent which is really the test formulated by the primary judge, namely, has the [applicant] presented a case which is at least arguable?

13. Contrary to the conclusion of Blackburn CJ, the court considered that "the [applicant] had not shown that she had any case or even one that could be said to be arguable" at (402).

14. It is Oak's contention that it is entitled to disclaim liability under the policy because the event is an event encompassed by the exclusion clauses in the policy and that the plaintiff does not have an arguable case that can be put against Oak's entitlement to disclaim.

The insurance policy

15. The insurance policy was issued by Resource Underwriting Pacific Pty Limited (sometimes referred to in documents as RUPPL). Oak, through Lloyds of London, was the underwriter.

16. The policy comprises what appears to be a standard printed form headed, "Professional Indemnity Act, Error or Omission Policy". That printed form contains the words "Policy Holding" in block letters on the first page. The text is set out under six headings. They are: A. Insuring Clause, B. Definitions, C. Automatic Extensions, D. Optional Extensions, E. Exclusions, F. Conditions. In addition, there is a Policy Schedule with the policy number 02N-008-S0386-001584 which identifies the insured, the broker and the underwriters. It describes "the Professional Business" as "Structural Engineering - Civil". It sets out the limit of liability, the excess and the premium. It states that the optional extensions are not included and it states that the endorsements to the policy are attached. The period of insurance is set out as from 24 July 2002 to 24 July 2003 and the date of the proposal 25 July 2002.

17. There are five endorsements which describe themselves as being attached to and forming part of Policy No. 02N-008-S0386-001584.

18. Three of the endorsements are a year 2000 compliance exclusion, an exclusion declared effective from 24 July 2002 in respect of terrorism loss and damage, and an amendment effective 24 July 2002 replacing the definition of "employee".

19. There are two other endorsements. One which "declared and agreed":

... that effective 24 July, 2002, notwithstanding anything to the contrary stipulated in this Policy or endorsed thereon, this Policy does not indemnify the Insured for claims arising out of work performed by a Contractor and/or Sub-contractor for or on behalf of the Insured.

The other is an endorsement stated to be effective 24 July 2002 deleting, "E. EXCLUSIONS 16." and replacing it with the following:

E. EXCLUSIONS

16. This Policy does not indemnify the Insured in respect to any Claim or loss arising out of bodily injury, disease, emotional distress, or any other mental, emotional or physical injury, or death of any person; or damage to or destruction of any tangible property including both loss of use thereof and/or consequential loss.

The exclusion E. paragraph 16 in the standard form headed "Professional Indemnity Act, Error or Omission Policy" had formerly provided:

This Policy does not indemnify the Insured in respect of any Claim or loss alleging death, bodily, mental or emotional injury to any person and/or property damage unless such Claim or loss arises out of advice, design, specification or formula.

It is these two endorsements that are in issue.

Parties' contentions

20. It is Oak's contention that the last two endorsements referred to would entitle it to disclaim liability under the policy. It is the plaintiff's contention that regard should not be had to the endorsement which purports to replace "E. Exclusions 16" in the policy. The plaintiff further contends that even were that endorsement to be held to be operative, that the terms of the clause and the endorsement are insufficient to exclude liability to indemnify Strarch against a claim made in respect of the collapse of the hangar. The plaintiff should have leave to begin an action against Oak if its first contention is arguable and, if it is not, then leave should be given if the second is.

The endorsement to the policy concerning property damage

21. The plaintiff had put before me as an exhibit to the affidavit of its managing director what was said to be a true copy of the professional indemnity policy issued to Strarch. That exhibit contained the "Professional Indemnity Act, Error or Omission Policy", the "Policy Schedule" and the five endorsements to which I have previously referred.

22. During the course of the hearing before me, Mr Crowe SC, counsel for Oak, put in evidence a file subpoenaed from Chegwyn Craig Australia Pty Ltd (Chegwyn), the insurance broker for Strarch. Mr Garling SC, who was then appearing as counsel for the plaintiff, submitted that the file raised the question of which was the applicable exclusion clause in view of the quotation received by the brokers from the solicitors for the underwriters.

23. The quotation, which was dated 16 July 2002, referred to the following adjacent to the subject heading "Extensions/Endorsements":

As per Policy, Excludes Y2K matters,

Automatic Reinstatement Clause;

Terrorism Exclusion;

Full Bodily Injury/Property Damage exclusion;

Excluding claims arising out of the activities of subcontractors.

It was Mr Garling's submission that the "Full Bodily Injury/Property Damage exclusion" in that quotation could only refer to the original clause 16 exclusion set out in the standard form policy. That submission resulted in Mr Crowe seeking an adjournment to adduce additional evidence to meet it.

24. As a consequence, Oak filed an affidavit of John Davaine, an insurance broker employed by Chegwyn at the relevant time. His affidavit annexes the quotation of 16 July 2002. The relevant paragraphs of the affidavit are [9-14]:

9. Annexed and marked `B' is a copy of a letter I wrote to Resource Underwriting Pacific Pty Limited (Resource), dated 10 July 2002, enclosing a copy of the proposal form completed by Strarch in relation to its existing insurers.

10. Annexed and marked `C' is a coy of a facsimile from Mr Declan Rye of Resource to me, dated 16 July 2002, setting out the proposed terms of cover. Relevantly, the proposed terms of cover were:

Limit of Liability $5,000,000 each & every claim/in the aggregate for any one policy period

Deductible $20,000 each & every claim including costs and expenses

Premium $30,091 plus charges

Wording RUPPL Miscellaneous Policy Form

Extensions/ 3696011 (indecipherable)

Endorsements As per Policy, Excludes Y2K matters

Automatic reinstatement clause;

Terrorism exclusion

Full Bodily Injury/Property Damage Exclusion;

Excluding claims arising out of the activities of subcontractors

Comments -Subject to fully completed Resource Underwriting proposal form

-Please be aware that Underwriters are unable to bind cover without a copy of the written instructions from the Insured in addition to any Broker instructions

11. The facsimile also bears a handwritten notation which says "m Daniel w".

12. I do not recall any specific conversations with Declan Rye. It was, however, my usual practice to speak with an insurer in relation to any proposed terms and attempt to negotiate the premium and just as importantly, ensure that the intention of any endorsement and exclusion was fully understood as it was also my usual practice to ensure that clients were also conversant with these endorsements and / or exclusions. Usually, exclusions were non negotiable, as these indicated the capacity for cover the insurer had at the relevant time.

13. In relation to Annexure C, the reference to the RUPPL Miscellaneous Policy Form, I understood at the time and now to be a reference to Resource's standard professional indemnity policy terms at that time. ... I cannot recall if, in July 2002, I had a copy of the RUPPL Miscellaneous Policy Form current at that time. I tried to have copies of all relevant wordings in the office. If I did not have the relevant wording, I would usually obtain a copy online or by email request.

14. In any event, I understood at that time, as I do now, that the Fully Bodily Injury/Property Damage Exclusion was meant to limit an insured's cover, in respect of claims made by third parties, to financial losses or economic loss only, arising from events other than bodily injury or property damage.

25. Mr White SC, who appeared as counsel for the plaintiff at the time the affidavit was read, objected to the content of paragraph 14. It was put that the paragraph was irrelevant and that there was no evidence that the "Full Bodily Injury/Property Damage" exclusion referred to in the quotation was the Exclusion 16 which had accompanied the policy.

26. I do not agree and would not allow the objection. It is plain from the file subpoenaed from Chegwyn that the policy and endorsements held by that company as Strarch's broker included each of the endorsements referred to in the quotation. Mr Davaine's understanding excludes the proposition put by both Mr Garling and Mr White that it could be reasonable to infer that the reference to "Full Bodily Injury/Property damage" in the quotation was a reference to the original clause 16 in the standard policy.

27. Mr Davaine also goes on in his affidavit to refer to the difficulty in obtaining cover:

In relation to the insurance market, in general, in or around mid 2002, I recall that:

(a) it was very difficult to obtain combined design and construct cover. Insurers often saw a conflict in such cover and were more comfortable issuing a PI policy for design issues and a construction policy for construction issues;

(b) it was very difficult for engineers to obtain bodily injury and property damage cover. ...

(c) it was a "hard" market and insurers in general were limiting the cover provided under policies, especially for occupations that had poor claims histories, regardless of the individual history of any client specifically. This situation continued up until early to mid 2003.

28. His affidavit also gives some indication of the significantly increased costs of obtaining cover for a professional indemnity insurance cover containing a property damage write back. I consider that it is open to accept the implication from Mr Davaine's affidavit that an exclusion clause in the terms under consideration of the replacement clause dealing with personal injury and property damage claims was not extraordinary nor uncommercial at the time that it was proposed. It is not, however, necessary for me to make a positive finding to that effect and I will regard the issue as arguable.

29. I am satisfied from Mr Davaine's affidavit and the documents annexed to it, that the insurance cover was bound by the insurer with effect from 24 July 2002 and that although the formal policy evidencing its terms was not forwarded to Strarch by its broker until 2 January 2003, such a delay in issuing the formal policy is not an unusual circumstance. I do not consider that the delay supports an argument, as the plaintiff now contends, that the endorsement replacing clause 16 of the standard form policy can be said to not form part of the policy. In my view, the plaintiff has not shown that it is arguable that the endorsement replacing clause 16 of the standard form policy is not a term of the policy.

The endorsement to the policy excluding claims arising out of work performed by subcontractors

30. No point was taken by the plaintiff in respect of the endorsement that concerned the exclusion from the policy of claims arising out of work performed by a subcontractor for or on behalf of the insured as not being part of the policy. Oak sought to rely upon that endorsement as a specific exclusion to prevent the insured from recovering for a loss caused by that excluded event even if the loss is also covered by another event that is covered by the policy.

31. Mr Crowe submitted that the report of Mr Hough put forward by the plaintiff suggested that there were concurrent causes for the collapse of the hangar. Those causes put broadly as being inadequate design and inadequate installation. Responsibility for the design was said to lie with the plaintiff. Responsibility for the installation was said to be that of 24 Hours, the subcontractor.

32. Reference was made to Wayne Tank and Pump Co Ltd v Employers Liability Assurance Corp Ltd [1974] QB 57. I was referred to the commentary on that case in Principles of Insurance Law, Kelly & Ball (2001) at [8.0020.30]:

In that case, extensive fire damage was caused to a factory when plastic piping, which formed part of the installation, melted and ignited during a test run. The test took place at night. The equipment was left unattended after it was switched on, and the piping was totally unsuitable for the purpose. The insured's policy covered "accidents happening in the course of the[ir] business". However, it also excluded liability for `damage caused by the natur[e or] condition of any goods ... supplied'. The insured argued that the proximate cause of the loss was not the nature of the piping but the lack of supervision of the equipment. The English Court of Appeal rejected that argument. It held that even if the lack of supervision was a proximate cause of the loss, so also was the piping. Accidents resulting from the natural condition of the goods were excluded. Consequently, the insured was not entitled to recover.

33. However, the Court of Appeal in Wayne Tank (supra) was concerned to ascertain the effective dominant and proximate cause. Two of the judges, Lord Denning MR and Roskill LJ, considered that the effective dominant and proximate cause was the condition within the exception to the policy. Cairns LJ would have also selected that cause as the dominant cause. All judges were of the view that if there were two causes of the damage being equal or nearly equal, one within the general words of the policy and one within an exception, the insurers can rely upon the exception. It would seem to follow that if the effective dominant and proximate cause was an event covered by the policy, the insurer would be held to be liable.

34. It can be seen that, ultimately the question is one of causation. I cannot, on the preliminary information before me, reach any concluded or unarguable view. This is very much a matter dependent upon the evidence that may be called upon the trial of this matter. I am not prepared to say, at this stage, that it is unarguable that the exclusion of claims arising out of work performed by a subcontractor prevents a call upon the policy.

The endorsement excluding claims for damage to tangible property

35. A far more formidable obstacle that the plaintiff has to overcome is the terms of the endorsement replacing clause 16 which excludes any claim for bodily injury or damage to or destruction of tangible property.

36. The plaintiff refers to the scope of the Insuring Clause in the standard form policy. That clause provides:

A. INSURING CLAUSES

1. Indemnify the Insured up to, but not exceeding in the aggregate for all Claims under this insurance, the Limit of Liability stated in the Schedule against any Claim or Claims first made against them or any of them during the Period of Insurance specified in the Schedule and which has been notified by the Insured to Underwriters in writing during the Period of Insurance stated in the Schedule for breach of professional duty in their conduct of the Professional Business stated in the Schedule, by reason of any act, error or omission, whenever or wherever committed or alleged to have been committed by the Insured.

Accordingly, it is said that here the claim arises out of defective design and the submission is put in the plaintiff's written submissions that:

The property damage is the yardstick by which one calculates the damages but is not the cause of the loss nor does it constitute a cause of action. The cause of the loss is the breach of professional duty in respect of which the insuring clause extends cover. The calculation of the loss is determined by reference to the cost of demolition and replacement. That is not determinative of whether the Claim or loss arises out of "property damage".

37. The fact that the claim can be said to be founded upon defective design does not alter the character of the claim. The policy defines "claim" as:

Claim(s) means:

(i) any Writ, Summons, Application or other originating legal or arbitral process, cross-claim, counter-claim, issued against or served upon any Insured alleging a breach of professional duty in the conduct of the Insured's Professional Business;

(ii) any written demand alleging any breach of professional duty by the Insured in their conduct of the Professional Business against an Insured communicated to an Insured by whatever means.

38. It is that claim "alleging breach of professional duty" to which the exclusion from indemnity in clause 16 of the policy refers. The exclusion then provides that it is the claim that has the characteristic of "arising out of ... damage to or destruction of any tangible property".

39. I was referred to other phrases throughout the policy to suggest that the words "arising out of" were words of limited import in the context of the policy. In particular, reference was made to phrases such as "arising out of or happening through", "brought about or contributed to", "directly or indirectly arising out of", "happening through or in consequence of", "caused by or arising from or in consequence of", "directly or indirectly caused by, resulting from or in connection with" and the like.

40. The plaintiff claims that the application of the exclusion clause produces an unreasonable and uncommercial result, permitting the insurer to impose a heavy burden on the insured and a serious erosion of a feature of the cover which is inconsistent with the purpose of the policy. I will assume that this aspect is at least arguable, although Mr Davaine's evidence is to the contrary. I was referred to Derrington and Ashton "The Law of Liability Insurance", 2^nd ed, p 202 para [3-68] as support for the approach to the construction of the exclusion clause:

The enquiry as to the policy's purpose presupposes knowledge of its genesis, the background, its context, and the market in which the parties were operating. What must be ascertained is the intention which reasonable people would have had if placed in the position of the parties, that is, an objective intention. It is begging the question sometimes to construe a clause, such as an exclusion, which controls the extent of the cover, by reference to the policy's purpose, which can only be discovered from the clause itself. However, reference to the rest of the policy as a whole may be a guide; and the court's knowledge of the general expectation of policyholders may also assist. Further, an unreasonable result permitting the insurer to impose a heavy burden on the insured, or the serious erosion of a feature of the cover by a particular construction may persuade the court that it is inconsistent with the purpose of the contract and that an alternative construction which does not have that effect should be adopted. (references omitted)

41. Although I have some sympathy with the view that the plaintiff expresses concerning the extent of the exclusion clause in the context of the policy, there must be an available alternative construction of the provision which is consistent with the purpose of the policy. As the author of the passage that I have cited says, it may beg the question to construe an exclusion clause by reference to the policy's purpose. In such a case, the question is what is being excluded from that purpose.

42. As I have earlier said, the evidence of Mr Davaine goes some of the way to explaining the circumstances that resulted in the cover being in the form that it is although I must say that does not seem to me to justify the brokers giving the certificate of currency that they did as "professional indemnity" cover without qualification. I would have thought that the description of the cover given by the brokers should have been significantly qualified by the exclusion to the policy which effectively limits it to claims for economic loss arising from events other than those where bodily injury or property damage is caused. Nevertheless, I am unable to construe the plain words of the exclusion so as to say that the clause is of no effect which is really what the plaintiff is contending.

43. The plaintiff's submission as to the alternative construction that might be given to clause 16 focussed on the words "arising out of". The submission is made:

The Oxford English Dictionary defines "arise" as "of circumstances viewed as results: to spring, originate or result from". The same publication describes "out of" as meaning "from (something) as a cause or motive; as the result or effect of; because or by reason of". Combining the two definitions in participle form suggests that "arising out of" has a meaning along the lines of "springing as the result or effect of" or "originating by reason or because of". It is submitted that in the present circumstances the Claim or loss springs from or originates from the inadequate design of Strarch.

44. I do not see how the clause can be construed in the way suggested by the plaintiff. The subject of the phrase "arising out of" is not inadequate design but damage to or destruction of tangible property. Nor does the plaintiff's reference to the Oxford English Dictionary meanings add to or contradict the MacQuarie Dictionary meaning of "arise" as, "1. to come into being or action; originate; appear". In the present case, the claim (as defined in the policy) comes into being by reason of the damage to or destruction of the hangar (which is "tangible property"). I do not see any alternative construction of the clause which would avoid that result. In all the circumstances, I do not see that the plaintiff has an arguable case against the insurer having regard to the terms of the endorsement to the policy which excludes claims arising out of damage or destruction to tangible property.

45. For these reasons, I would not grant leave for the plaintiff to proceed under s 207 of the Civil Law (Wrongs) Act 2002 to commence an action under s 206 of that Act against Oak Dedicated Limited Co or to join that entity as a defendant in proceeding SC 297 of 2004.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 21 March 2007

Counsel for the plaintiff: Mr P R Garling SC and then Mr S T White, SC

Solicitor for the plaintiff: Mallesons Stephen Jaques

Counsel for the defendant: Mr R L Crowe, SC

Solicitor for the defendant: Minter Ellison

Date of hearing: 11 September 2006

Date of judgment: 21 March 2007