COSENZA v ORIGIN ENERGY LIMITED [2017] SASC 145 (12 October 2017)

Last Updated: 27 October 2017

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)

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COSENZA v ORIGIN ENERGY LIMITED

[2017] SASC 145

Judgment of The Honourable Justice Blue

12 October 2017

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

PROCEDURE - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE - ACTIONS TO REVIEW OR SET ASIDE JUDGMENT

TORTS - TRESPASS - TRESPASS TO LAND AND RIGHTS OF REAL PROPERTY - WHAT CONSTITUTES TRESPASS AND DEFENCES THERETO

Appeal against Magistrate’s order setting aside default judgment.

The Cosenzas sued Mr Palancha and Origin Energy Limited for damages of $100,000 for trespass to land.

After Origin was served with the proceeding by post and failed to file an appearance within 21 days, the Cosenzas filed a Request to the Registrar to sign judgment in default. The Registrar erroneously entered judgment for $100,000 instead of entering judgment on liability and listing the matter to proceed to an assessment of damages.

Origin applied to set aside the judgment supported by an affidavit by its corporate lawyer, Ms Tipping. Ms Tipping exhibited a draft defence and said that she believed that it was arguable that Origin had a good defence because there was no revocation of the implied licence to enter the property and when revoked Mr Palancha left the property within a reasonable time. Ms Tipping did not depose to any detail of her source of knowledge as to what occurred at the Cosenza property.

The Magistrate set aside the judgment in its entirety. Mr Cosenza appeals against that order, contending that the Magistrate erred in finding that Origin had established an arguable defence and that the Magistrate ought instead to have confined the judgment to judgment on liability for damages to be assessed.

Held:

1. The onus of proof of establishing an implied licence on an application to set aside judgment for trespass to land lies on the applicant defendant (at [49]).

2. Ms Tipping’s affidavit did not establish an arguable defence of implied licence (at [51] - [56]).

3. Ms Tipping’s affidavit did not establish an arguable defence that Origin was not liable for Mr Palancha’s actions (at [67] - [71]).

4. The Magistrate ought to have varied the judgment to confine it to a judgment on liability with damages to be assessed rather than setting it aside in its entirety (at [72]).

5. A new affidavit by Ms Tipping filed in this Court after the hearing of the appeal establishes that Origin has an arguable defence of implied licence, justifying a setting aside of the judgment in its entirety and the matter should proceed to trial in the Magistrates Court (at [83] - [85]).

Colonial Mutual Life Assurance Society Limited v The Producers and Citizens Cooperative Assurance Company of Australia Limited [1931] HCA 53; (1931) 46 CLR 41; Edwards v Railway Executive (1952) AC 737; Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1; Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635; Sweeney v Boylan Nominees Pty Limited [2006] HCA 19; (2006) 226 CLR 161, discussed.

COSENZA v ORIGIN ENERGY LIMITED
[2017] SASC 145

Magistrates Appeal:

BLUE J:

1. This is an appeal against a decision by a Magistrate setting aside a default judgment.
2. The appellant Dean Cosenza and his mother Eleonora Cosenza issued a claim in the Magistrates Court against Mahesh Palancha and the respondent Origin Energy Limited for damages of $100,000 for trespass to land.
3. The Cosenzas filed a request to the Registrar to sign judgment against Origin in default of its having filed an appearance within 21 days of service by post of the claim. The Registrar erroneously entered judgment for $100,000 in favour of the Cosenzas against Origin notwithstanding that on the face of the particulars of claim the action was for unliquidated damages. The Registrar ought instead to have entered judgment on liability and listed the matter to proceed to an assessment of damages.
4. Origin applied to set aside the judgment supported by an affidavit by its corporate lawyer Jane Tipping. Ms Tipping explained why Origin had not filed a defence before judgment was entered. She said that she believed that it was arguable that Origin had a good defence to the claim on the ground that it was arguable that there was no revocation of the implied licence to enter the property and when revoked Mr Palancha left the property within a reasonable time. Ms Tipping exhibited a draft defence that would be filed if judgment were set aside.
5. On the hearing of the set aside application, the Magistrate refused Mr Cosenza’s application for an adjournment to file an answering affidavit. The Magistrate held that the judgment was irregular because judgment could not be entered for a money sum on a claim for unliquidated damages. The Magistrate was satisfied that Origin had an arguable defence. The Magistrate set aside the judgment in its entirety.
6. Mr Cosenza appeals against the order, contending that the Magistrate erred in finding that Origin had established that it had an arguable defence and he ought to have confined the judgment to a judgment on liability for damages to be assessed rather than setting it aside in its entirety. Mr Cosenza contends in the alternative that the Magistrate erred in refusing his application for an adjournment.

Background

7. On 30 June 2012 the Cosenzas were the occupiers of a house property at Woodville South. Mr Palancha entered the property, walked to the front door and rang the doorbell. When Mr Cosenza answered the door, Mr Palancha said that he was selling electricity supply contracts for Origin and produced an Origin identification card bearing the number 25262. Mr Cosenza escorted Mr Palancha from the property.
8. On 9 July 2012 Mr Cosenza wrote a letter to Origin’s legal department alleging that Mr Palancha had committed trespass to land and foreshadowing an intention to bring an action in the District Court.^[1]
9. On 4 September 2012 Ms Tipping wrote a letter in response to Mr Cosenza. She said:

We have investigated this matter internally and, based on our findings strongly deny the allegations you have made against Origin. We believe your claim has no merit or prospect of success ... We will defend any action you bring against us and will seek costs.

10. On 19 March 2015 the Cosenzas issued the claim against Mr Palancha and Origin. They claimed damages for trespass to land, including for anguish, distress and aggravation to pre-existing psychiatric conditions suffered by Mr Cosenza, aggravated and exemplary damages.
11. On 23 November 2016 Mr Cosenza posted the claim to Origin’s registered office in Sydney and filed an affidavit of proof of service.
12. On 28 December 2016 Mr Cosenza filed an application to the Registrar to sign judgment against Origin in default of defence.
13. On 28 December 2016 the Registrar entered judgment in favour of the Cosenzas against Origin for $100,000.
14. On 17 January 2017 Mr Cosenza wrote a letter to Origin’s legal department informing them of the judgment. He enclosed a Creditors Statutory Demand for $100,000.
15. On 7 February 2017 Ms Tipping swore an affidavit in support of an application to set aside the default judgment. Ms Tipping exhibited her correspondence with Mr Cosenza and a draft defence.
16. On 8 February 2017 Origin’s solicitors filed an application to set aside the default judgment together with an affidavit of Roxanne Smith exhibiting Ms Tipping’s supporting affidavit.
17. On 14 February 2017 the Magistrate heard Origin’s application. Mr Cosenza applied for an adjournment to enable him to file an answering affidavit. The Magistrate refused the application. After hearing argument, the Magistrate gave ex tempore reasons for granting the application to set aside judgment and ordering that a defence be filed within 21 days.

The Magistrate’s reasons

18. The Magistrate held that the judgment was irregular because it was for a money sum when the claim was for unliquidated damages. The Magistrate said:

The Registrar should not have entered judgement in this action for the monetary claim of $100,000. Rather the Registrar should have had regard to Magistrate Court Rules.62(4) that directs that in an action for damages for personal injury where a party seeks to signs [sic] judgement the Registrar must then fix a date, time and place for a directions hearing and give at least 21 days’ notice in writing to all parties. That clearly has not occurred in this matter. The monetary judgment cannot therefore stand as there has been no assessment of the claim for unliquidated damages as required under the Rules.
...

Rule 104 of the Magistrates Court Rules clearly empowers the court to vary or set aside a judgement if it does not reflect the intention of the Court or it it [sic] was obtained consequential upon an irregularity. In my view judgment cannot stand as it is irregularly obtained as a consequence of the oversight of the Registry staff.

19. The Magistrate found that Ms Tipping’s affidavit established that Origin had an arguable defence and the judgment should be set aside in its entirety. The Magistrate said:

Ms Tipping identified in paragraph’s 15-19 inclusive of her affidavit that at all times it has been the clear position of Origin that the defendants have an arguable defence to the claim. She notes Origin asserts that there was an implied licence for the first defendant – Origin’s servant or agent – to enter the plaintiff’s property and that licence was never revoked as a matter of law....
...

Further I am satisfied that even without the irregularity, in accordance with the legal principles that bind this court, I am obliged in any event to set aside the judgment and give the opportunity for the defendants to file a defence to the action. The defendants have acted in a timely way to set aside the judgment upon being notified of the judgment. I am satisfied that there is a reasonable excuse as to why a defence was not filed within the time prescribed by the rules (assuming it was served as the plaintiff deposed). I agree with Mr Belperio it is clear that in an application of this nature it is not incumbent upon the Court to embark upon a hearing as to the relative strength and weight of the proposed defence but simply be satisfied that there is an arguable defence. I am satisfied on the basis of the evidence provided by Ms Tipping there is an arguable defence.

The Magistrates Court Rules

20. Rules 60 to 62 of the Magistrates Court (Civil) Rules 2013 (SA) (the Rules) address judgment in default of defence. They relevantly provide:

ACTIONS NOT DEFENDED
60. (1) Subject to Sub-rule (4), where a party has been served with an action (other than an action under Rules 26, 37, 39 and 40) and does not file a defence within 21 days of service, or any other period fixed by the Court, the other party, on proof to the Registrar of such service, may sign judgment against the party in default, by filing a Form 18.

...

61. (1) Where a party signs judgment for a claim:

(a) for a debt or liquidated sum; or
(b) for the cost of repairs to, or the loss of, property and any other consequential loss;

the party will have judgment for the claim, plus costs on the scale applicable to the claim, but the party has no entitlement to pre-judgment interest except if it is awarded by the Court on an interlocutory application.

(2) A party may sign judgment for a claim under paragraph (b) of Sub-rule (1) only if the party proves that, at the same time as the action was served, a copy of any relevant evidentiary material (including a repair or loss account, quotation, invoice or receipt) upon which he or she is intending to rely, was served on the other party.
...

62. (1) Subject to Sub-rule (4), in any other case not provided for in Rule 61, where a party signs judgment the Registrar must fix a date, time and place for the hearing, by the Court, in respect of the assessment of damages or such other order, remedy or relief as the action may require, and give at least 21 days notice in writing of the hearing to the parties.

...

(4) In an action for damages for personal injury, where a party signs judgment the Registrar must fix a date, time and place for a directions hearing, and give at least 21 days notice in writing of the directions hearing to the parties. ...

21. Rules 87 and 104 address applications to set aside or vary judgments. They relevantly provide:
    87. (1) The Court may set aside or vary a judgment (not being a final judgment).

(2) The Court must not set aside such a judgment unless the party seeking to set it aside establishes that he or she –

(a) has an arguable case on the merits; and
(b) has a reasonable excuse for not having complied with these Rules, or an order of the Court, or any time limit fixed by these Rules or order of the Court, in respect of the action or proceeding.
...

104. (1) The Court may vary or set aside a judgment –

(a) before it is entered; or
(b) after it is entered −

(i) if the judgment was obtained by fraud;
(ii) if the judgment does not reflect the intention of the Court;
(iii) if the parties consent; or
(iv) if it was obtained consequent upon any irregularity.

(2) A clerical mistake in a judgment, or an error arising in it from a slip or omission, may at any time be corrected by the Court, or the Registrar at the direction of the Court.

The parties’ submissions

22. There are four matters of common ground. First the claim was for unliquidated damages and was therefore governed by rule 62. Mr Cosenza concedes that the Registrar erred by entering judgment for $100,000 and ought instead to have entered judgment on liability and listed the matter to proceed to an assessment of damages.^[2]
23. Secondly the judgment for $100,000 was thereby irregular.^[3] Mr Cosenza concedes that, if Origin had established that it had an arguable defence on the merits, the Magistrate was correct in setting aside the judgment entirely. Conversely, Origin concedes that, if it did not establish that it had an arguable defence on the merits, the Magistrate had power to vary the judgment by confining it to a judgment on liability for damages to be assessed.^[4]
24. Thirdly Origin does not contend that the Magistrate ought to have found that the claim was not received by Origin in the mail (as opposed to its not reaching Origin’s legal department and not being actioned).
25. Fourthly Mr Cosenza concedes that the Magistrate did not err in finding that Origin had established that it had a reasonable excuse for not having filed a defence within the time limit fixed by the Rules for the purpose of rule 87(2)(b).
26. I proceed on the basis of these matters of common ground. The primary issue on appeal therefore is whether the Magistrate was correct in finding that Origin established that it had an arguable defence on the merits.
27. Mr Cosenza contends that Ms Tipping’s affidavit did not establish that Origin had an arguable defence on the merits that Mr Palancha had an implied licence to enter the land and left the property within a reasonable time after the implied licence was revoked by Mr Cosenza. Origin contends that Ms Tipping’s affidavit did establish these matters on an arguable basis, which is a relatively low threshold.
28. Origin contends in the alternative that Ms Tipping’s affidavit established that Origin had an alternative arguable defence, namely that it was not liable for any trespass committed by Mr Palancha because he was not an employee of Origin but an independent contractor and it was arguable that Origin was not liable for acts of an independent contractor. Mr Cosenza contends that Ms Tipping’s affidavit does not establish, even on an arguable basis, that Mr Palancha was not an employee or that Origin was not liable for his acts.
29. Origin contends in the further alternative that, if it did not establish that it had an arguable defence, while it accepts that the Magistrate had power to vary the judgment by confining it to a judgment on liability, the Magistrate had a discretion to set aside the entire judgment instead and did not err in the exercise of that discretion.
30. Mr Cosenza contends in the alternative to his contentions above that the Magistrate erred in refusing his application for an adjournment. Origin takes issue with this contention. For the purpose of deciding this issue, I received portions of an affidavit by Mr Cosenza sworn on 2 June 2017, an affidavit by Ms Tipping sworn on 13 June 2017 and portions of an affidavit sworn by Mr Cosenza on 14 June 2017.

Establishment of arguable defence

31. There are three relevant differences between an application to set aside judgment pursuant to rule 87 and a trial of the action.
32. First at trial the plaintiff bears the ultimate onus of proof of each element of the cause of action; whereas the defendant bears the ultimate onus of proof of a defence strictly so called. On an application to set aside judgment, the defendant bears the onus of proof of negating an element of the cause of action or establishing a defence strictly so called.
33. Secondly at trial the plaintiff bears the onus of persuading the judge or magistrate that the plaintiff has established each element of the cause of action and the defendant bears the onus of persuading the judge or magistrate that the defendant has established a defence strictly so called. On an application to set aside judgment, the defendant’s onus is merely to establish that it has an arguable defence (by negating an element of the cause of action or establishing a defence strictly so called) rather than establishing that it will ultimately succeed on that issue.
34. Thirdly at trial hearsay evidence is generally inadmissible. On an interlocutory application, hearsay evidence is generally admissible.^[5]

Licence to enter property

35. The elements of the cause of action of trespass to land are:

1. the plaintiff is in exclusive possession of land;^[6]

2. the defendant enters onto the land or otherwise directly interferes with the plaintiff’s exclusive possession of the land;^[7] and
3. the entry onto the land is a voluntary act or the direct interference with the plaintiff’s exclusive possession of the land is an intentional act.^[8]
36. The defences to an action for trespass to land are:
    1. the entry or interference was reasonably necessary to protect a person or property from a threat of real and imminent harm (the necessity defence);^[9]
    2. the defendant has consent of the plaintiff (a licence) to enter onto the land or otherwise act in the manner that interferes with the plaintiff’s exclusive possession of the land (the licence defence);^[10]
    3. the defendant has lawful authority under statute or at common law to enter onto the land or otherwise act in the manner that interferes with the plaintiff’s exclusive possession of the land (the lawful authority defence).^[11]
37. It is common ground that, on Origin’s application to set aside judgment, no issue arose as to the three elements of the cause of action and Origin did not contend that it was arguable that one of them was negated. It is common ground that no question of a necessity or lawful authority defence arose. The issue relates to the licence defence.
38. It is common ground that the licence defence is a defence strictly so called. It is common ground that a licence can be express or implied. It is common ground that:
    1. the occupier of an ordinary housing property in a city or town ordinarily grants an implied licence to persons to enter onto the land and approach the house for legitimate purposes;
    2. if an occupier erects a sign at the entrance to such land which would be seen by a reasonable person in the position of the defendant, no implied licence will arise.
39. The issues between the parties relate to the onus of proof in respect of these matters.
40. The general rule is that the ultimate onus of proof lies on a plaintiff to prove an element of the cause of action; whereas the ultimate onus of proof lies on a defendant to establish a defence strictly so called.^[12] However, sometimes the defendant may in defined circumstances bear an evidentiary onus to adduce some evidence to negate an element or sub-element of the cause of action and sometimes the plaintiff may in defined circumstances bear an evidential onus to adduce some evidence to negate a defence or sub-element of a defence strictly so called.^[13]
41. Origin contends that there is a presumption that there is an implied licence for persons with a legitimate reason to enter an ordinary residential property and the onus of proving that such a licence has been negated lies on a plaintiff at trial. Origin contends that on an application to set aside judgment the same position applies. Mr Cosenza takes issue with both propositions.
42. It is not strictly necessary to decide whether Origin’s first contention is correct because I reject its second contention. However, I address Origin’s first contention as a preliminary step to considering its second contention.
43. In Edwards v Railway Executive,^[14] children were accustomed to playing on a railway embankment. A boy was injured when he came into contact with the live electric rail. He sued the railway company in negligence. It was accepted by the House of Lords that the issue of negligence depended on whether the boy was a trespasser, which in turn depended on whether he had an implied licence to enter the land. The House of Lords held that there was no such implied licence. Lord Porter said:

The onus is on the appellants to establish their licence, and in my opinion they do not do so merely by showing that, in spite of a fence now accepted as complying with the Act requiring the respondent to fence, children again and again broke their way through... An open pathway, as in Cooke v Midland Great Western Railway of Ireland, or a knowledge that a track is and has long been constantly used, coupled with a failure to take any steps to indicate that ingress is not permitted, as in Lowery v Walker, may well amount to a tacit licence. But I do not accept the theory that every possible step to keep out intruders must be taken and, if it is not, a licence may be inferred.^[15]

44. Although Edwards was not a case of ordinary residential premises, in Halliday v Nevill^[16] Gibbs CJ, Mason, Wilson and Deane JJ referred to this passage from Lord Porter’s judgment in the first sentence of the passage extracted at [45] below.
45. In Halliday v Nevill,^[17] the High Court (Brennan J dissenting) held that a police officer had an implied licence to enter residential land in pursuit of a disqualified driver fleeing from the police officer. Gibbs CJ, Mason, Wilson and Deane JJ said:

While the question whether an occupier of land has granted a licence to another to enter upon it is essentially a question of fact, there are circumstances in which such a licence will, as a matter of law, be implied unless there is something additional in the objective facts which is capable of founding a conclusion that any such implied or tacit licence was negated or was revoked:cf. Edwards v. Railway Executive^[18]. The most common instance of such an implied licence relates to the means of access, whether path, driveway or both, leading to the entrance of the ordinary suburban dwelling-house. If the path or driveway leading to the entrance of such a dwelling is left unobstructed and with entrance gate unlocked and there is no notice or other indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorized, the law will imply a licence in favour of any member of the public to go upon the path or driveway to the entrance of the dwelling for the purpose of lawful communication with, or delivery to, any person in the house. Such an implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it.^[19]

46. The reference to there being no notice that entry is forbidden as one of the conditions for the implied licence suggests that the onus lies on the defendant to establish that there is no such notice.
47. In Plenty v Dillon,^[20] the High Court held that a police officer did not have an implied licence to enter residential land to serve a summons on the occupier. Gaudron and McHugh JJ said:

The policy of the law is to protect the possession of property and the privacy and security of its occupier. A person who enters the property of another must justify that entry by showing that he or she either entered with the consent of the occupier or otherwise had lawful authority to enter the premises.^[21]

48. By reference to principle and authority, the ultimate onus of proof at trial lies on a defendant to prove the existence of an implied licence including where applicable to prove that no notice was given forbidding entry. However, if the defendant proves at trial that he or she entered an ordinary housing property in a city or town without seeing any sign or other indication forbidding entry, it ordinarily creates an evidentiary onus on the plaintiff to adduce some evidence that there was a sign forbidding entry or other indication that the occupier was not granting an implied licence.
49. However, even if the ultimate onus of proof at trial were to lie on a plaintiff to negate the existence of an implied licence, the position would be different on an application to set aside judgment. On such an application, the onus lies on the defendant to negate even an element of the cause of action and equally the onus lies on the defendant to establish a defence. Accordingly, the onus lay on Origin to adduce evidence that that there was no sign at the entrance to the Cosenza property forbidding entry that would be noticed by a reasonable person seeking to enter the property.
50. The relevant paragraphs of Ms Tipping’s affidavit were paragraphs 17 and 18:
    17. In my view, based on the facts pleaded in the draft defence, it is (or would be, as the case may be) arguable that:

17.1 there was no revocation of the implied licence to enter the property and knock on the front door prior to Mr Palanka entering the property; and

17.2 insofar as the implied license was revoked during the time that Mr Palanka was on the property, he left the property within a reasonable time.

18. I therefore consider that Origin has an arguable case that the Plaintiffs’ cause of action cannot be made out.

51. I first address subparagraph 17.1 of Ms Tipping’s affidavit. The draft defence included paragraph 6 which responded to paragraph 6 of the plaintiffs’ particulars of claim which pleaded that on about 30 June 2012 Mr Palancha entered the property, banging and ringing the front doorbell in an aggressive and unreasonable manner. Paragraph 6 of the draft defence read:
    6. As to paragraph 6:

6.1 admits that Mr Palancha attended at the Property on or about 30 June 2012;
6.2 says that when Mr Palancha arrived at the Property, he knocked on the front door and was greeted by a male occupant;

6.3 the male occupant directed Mr Palancha to a “No Trespassing ” sign displayed an [sic] another part of the Property and then asked him to leave;

6.4 Mr Palancha promptly left the property after being asked to leave; and

6.5 denies the balance.

52. Ms Tipping’s affidavit did not establish any facts on the basis of which it was arguable that Mr Palancha had an implied licence to enter the property and knock on the front door for three reasons. First Ms Tipping did not depose to any facts at all as to what occurred on 30 June 2012. All she deposed to was that, if the facts pleaded in the draft defence were established, Origin would have a defence of implied licence to enter the property. She did not depose to the truth of the facts pleaded in paragraph 6 or any other paragraph of the draft defence.
53. Secondly the only manner in which Ms Tipping could have deposed to what occurred on 30 June 2012 was on information and belief: that is by saying what she had been informed by Mr Palancha. Ms Tipping did not depose to any statement by Mr Palancha and I reject Origin’s submission that this could or should be inferred.
54. Thirdly, even if Ms Tipping had said in her affidavit that she had been told by Mr Palancha the matters set out in subparagraphs 6.1 to 6.4 of the defence, those matters were too vague and elliptical to establish on an arguable basis that Mr Palancha had an implied licence to enter the property and knock on the front door. What was required was for Mr Palancha (through Ms Tipping) to tell the story of what occurred on 30 June 2012. In particular, it was necessary for him to identify the gate or other entranceway by which he entered the property and whether he saw any sign at the entranceway upon his entry. Due to the form of the pleading in paragraph 6, while it might hint that there were two entranceways one of which had a sign saying “No Trespassing” and the other of which did not, reading the affidavit together with the pleading such a fact is not established even on an arguable basis. In any event, the pleading did not say that Mr Palancha did not see a no trespassing sign on his entrance to the property.
55. I note for completeness that paragraph 7 of the draft defence denied paragraph 7 of the particulars of claim which pleaded that a notice of revocation of implied licence to enter the property had been clearly delineated at the entry of the property. This denial in the defence does not assist Origin for the reasons identified at [52] and [53] above. In any event, when paragraph 7 is read together with paragraph 6.3 of the defence which refers to a no trespassing sign, it is entirely unclear what the denial in paragraph 7 means.
56. Given my conclusion, it is not necessary to consider subparagraph 17.2 of Ms Tipping’s affidavit, namely the issue whether Origin established that it had an arguable defence that, insofar as the implied licence was revoked when Mr Palancha was on the property, he left the property within a reasonable time. However, Ms Tipping’s affidavit did not establish this as an arguable defence for the reasons identified at [52] and [53] above.

Liability of Origin for actions of Mr Palancha

57. Origin contends that Ms Tipping’s affidavit established an arguable defence that, even if Mr Palancha was liable for trespass, Origin was not liable for his actions.
58. The Magistrate did not find that Origin had an arguable defence on this ground. The Magistrate did not in his reasons for judgment refer to this issue and it is clear from the passages extracted at [19] above that the arguable defence to which he referred related to an implied licence. Origin ought to have filed a notice of contention raising lack of liability for Mr Palancha’s actions as an alternative ground on which to uphold the Magistrate’s order. However, Mr Cosenza does not take this procedural point and I address the contention on its merits.
59. Origin accepts that, if Mr Palancha were an employee, it would be vicariously liable for his actions. However, Origin contends that Mr Palancha was an independent contractor and it is not liable for his actions.
60. The doctrine of vicarious liability draws a critical distinction between an employee engaged to perform services and an independent contractor engaged to provide a service. A person is vicariously liable for acts of an employee performed in the course of the employment.^[22] A person is not vicariously liable per se for acts of an independent contractor performed for the purpose of providing a service to that person.^[23]
61. The doctrine of agency renders a principal liable for the acts of an agent in the course of and for the purpose of executing the agency.^[24] The doctrine of agency only applies to the relationship of principal and agent recognised by the law of agency and not to so-called agents in a non-technical sense.^[25]
62. In Colonial Mutual Life Assurance Society Limited v The Producers and Citizens Cooperative Assurance Company of Australia Limited, ^[26] the defendant insurer Colonial engaged Mr Ridley to canvas members of the public for insurance proposals for Colonial’s consideration. Mr Ridley could perform the contract by his clerks and servants or personally. Mr Ridley did not have authority to enter into insurance contracts on behalf of Colonial but only to procure proposals to present to it for its consideration. Mr Ridley was paid by commission on the acceptance of proposals by Colonial. The contract expressly prohibited Mr Ridley defaming any person. In the course of attempting to procure a proposal, Mr Ridley slandered the plaintiff insurer. The High Court (Evatt and McTiernan JJ dissenting) held that, if Mr Ridley was an independent contractor rather than an employee of Colonial, nevertheless he was an agent of Colonial and Colonial was liable as his principal. Gavan Duffy CJ and Starke J said:

[W]e apprehend that one is liable for another's tortious act "if he expressly directs him to do it or if he employs that other person as his agent and the act complained of is within the scope of the agent's authority." It is not necessary that the particular act should have been authorized: it is enough that the agent should have been put in a position to do the class of acts complained of. And if an unlawful act done by an agent be within the scope of his authority, it is immaterial that the principal directed the agent not to do it. The class of acts which Ridley was employed to do necessarily involved the use of arguments and statements for the purpose of persuading the public to effect policies of insurance with the defendant, and in pursuing that purpose he was authorized to speak, and in fact spoke, with the voice of the defendant. Consequently the defendant is liable for defamatory statements made by Ridley in the course of his canvass, though contrary to its direction.^[27]

63. Dixon J (with whom Rich J agreed) said:

[A] difficulty arises when the function entrusted is that of representing the person who requests its performance in a transaction with others, so that the very service to be performed consists in standing in his place and assuming to act in his right and not in an independent capacity. In this very case the "agent" has authority to obtain proposals for and on behalf of the appellant; and he has, I have no doubt, authority to accept premiums. When a proposal is made and a premium paid to him, the Company then and there receives them, because it has put him in its place for the purpose. This does not mean that he may conclude a contract of insurance which binds the Company. It may be, and probably is, outside his province to go beyond soliciting and obtaining proposals and receiving premiums; but I think that in performing these services for the Company, he does not act independently, but as a representative of the Company, which accordingly must be considered as itself conducting the negotiation in his person.
...

If the view be right which I have already expressed, that the "agent" represented the Company in soliciting proposals so that he was acting in right of the Company with its authority, it follows that the Company in confiding to his judgment, within the limits of relevance and of reasonableness, the choice of inducements and arguments, authorized him on its behalf to address to prospective proponents such observations as appeared to him appropriate. The undertaking contained in his contract not to disparage other institutions is not a limitation of his authority but a promise as to the manner of its exercise. In these circumstances, I do not think it is any extension of principle to hold the Company liable for the slanders which he thought proper to include in his apparatus of persuasion.

The wrong committed arose from the mistaken or erroneous manner in which the actual authority committed to him was exercised when acting as a true agent representing his principal in dealing with third persons.^[28]

64. In Sweeney v Boylan Nominees Pty Limited,^[29] the High Court confirmed the principle articulated in and result of Colonial Mutual and confined the principle to an agency relationship properly so called. Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ said:

In Colonial Mutual Life the person, for whose statements the appellant was sought to be made vicariously liable, had been engaged by the appellant to canvass for proposals for life insurance. The statements which it was alleged that he made, and which were slanderous of the respondent company, had been uttered in the course of his attempting to induce persons to make proposals for life insurance by the appellant. He was not a servant of the appellant company. Yet it was held that the appellant was vicariously liable for his statements because he made them in acting as the company's agent.
...

... the conclusion reached in Colonial Mutual Life fits entirely within the explanation of vicarious liability identified by Pollock and reflected in the subsequent decisions of this Court culminating in Scott, Hollis and Lepore.
Colonial Mutual Life establishes that if an independent contractor is engaged to solicit the bringing about of legal relations between the principal who engages the contractor and third parties, the principal will be held liable for slanders uttered to persuade the third party to make an agreement with the principal. It is a conclusion that depends directly upon the identification of the independent contractor as the principal's agent (properly so called) and the recognition that the conduct of which complaint is made was conduct undertaken in the course of, and for the purpose of, executing that agency.
...

The conclusion reached in Colonial Mutual Life, that the party engaging an agent (albeit as an independent contractor) to solicit for the creation of legal relationships between that party and others is liable for the slanders uttered in the course of soliciting proposals, stands wholly within the bounds of the explanations proffered by Pollock for the liability of a master for the tortious acts of a servant. It stands within those bounds because of the closeness of the connection between the principal's business and the conduct of the independent contractor for which it is sought to make the principal liable. The relevant connection is established by the combination of the engagement of the contractor as the agent of the principal to bring about legal relations between the principal and third parties, and the slander being uttered in the course of attempting to induce a third party to enter legal relations with the principal. ^[30]

65. Ms Tipping in her affidavit did not address the relationship between Origin and Mr Palancha. When she identified what she contended were arguable defences of Origin at paragraph 17, she did not make any contention that Origin was not liable for the acts of Mr Palancha.
66. In paragraph 3 of their particulars of claim, the Cosenzas had pleaded that Mr Palancha was either an agent, representative or employee of Origin. Clearly this pleading was made in circumstances in which they did not know the nature of the internal relationship between Origin and Mr Palancha. Paragraph 3 of the draft defence exhibited to Ms Tipping’s affidavit read:
    3. As to paragraph 3:

3.1 says that the first defendant (Mr Palancha) was a sales contractor engaged by Salmat Ltd;

3.2 admits that Mr Palancha’s identification number was 25262; and

3.3 denies the balance.

67. Ms Tipping’s affidavit did not establish any facts on the basis of which it was arguable that Origin was not liable for the acts of Mr Palancha either as an employee or an agent for three reasons. First Ms Tipping did not depose to any facts as to the relationship between Origin and Mr Palancha at all. She did not depose to the truth of the facts pleaded in paragraph 3 or any other paragraph of the draft defence.
68. Secondly the only manner in which Ms Tipping could have deposed to the relationship between Origin and Mr Palancha was either by exhibiting the written contract or contracts between Origin and Mr Palancha or between Origin and any intermediate party (such as Salmat Ltd (Salmat)) and between the intermediate party and Mr Palancha if their relationship was governed by written contract and/or on information and belief from whoever was a party to the relevant contract or contracts. Ms Tipping did not exhibit any contracts or depose to any facts at all in respect of the relationship between Origin and Mr Palancha.
69. Thirdly, even if Ms Tipping had said in her affidavit that she had been told by a person who had the relevant knowledge the matter set out in subparagraph 3.1, namely that Mr Palancha was a sales contractor engaged by Salmat, this would not have established that it was arguable that Origin was not liable for the acts of Mr Palancha. No information was provided as to the relationship between Mr Palancha and Origin to explain why Origin had issued to Mr Palancha an identification card. Merely because Mr Palancha was described in the draft defence as a “sales contractor” did not negate that he was an employee of Salmat. Merely because Mr Palancha was described as having been engaged by Salmat did not necessarily entail that he was not an employee of Origin, nor did it entail that he was not an agent of Origin.
70. In order to establish facts on the basis of which it was arguable that Origin was not liable for the acts of Mr Palancha, it was necessary for Ms Tipping to exhibit the relevant contracts and depose to relevant facts on the basis of which it was arguable that:

1. Mr Palancha was not an employee of Origin; and

2. Mr Palancha:

(a) was not an agent (either directly or via Salmat) of Origin; or

(b) was an agent but was not when entering the Cosenzas’ land acting in the course of and for the purpose of executing the agency.

71. Ms Tipping’s affidavit manifestly failed to establish any such facts.

Conclusion

72. Origin failed to establish that it had an arguable defence on the material before the Magistrate. The Magistrate erred in finding that Origin established that it had an arguable defence.
73. Given this conclusion, it is not necessary to consider Mr Cosenza’s alternative contention that the Magistrate erred in refusing his application for an adjournment.

Set aside versus variation of judgment

74. As noted above, Origin accepts that, if it did not establish that it had an arguable defence on the merits, the Magistrate had power to vary the judgment by confining the judgment to liability with damages to be assessed. However, Origin contends that in that event the Magistrate nevertheless had a discretion to set aside the judgment instead of varying it and it has not been demonstrated that the Magistrate erred in so doing.
75. The Magistrate did not need to decide whether the discretion would have been exercised to vary rather than set aside the judgment if Origin had not established that it had an arguable defence because the Magistrate found that it had established an arguable defence. The Magistrate did not explicitly refer to the discretion. Origin contends that it should be inferred that the Magistrate exercised the discretion against varying the judgment. I reject that contention because, if the Magistrate had done so, the Magistrate would have been bound to give reasons for the exercise of the discretion. In the absence of the Magistrate saying that he exercised the discretion and in the absence of any reasons for the exercise of the discretion, the only conclusion open is that the Magistrate did not exercise the discretion. In any event, the absence of any reasons would have vitiated any exercise of the discretion by the Magistrate.
76. In the circumstances, it is appropriate that I exercise the discretion rather than remitting the question to the Magistrates Court because the issues were fully argued before me and this will save the parties further time and cost.
77. As the Magistrate observed, it was the Registrar who was responsible for entering judgment erroneously for a money sum when the Registrar ought only to have entered judgment on liability with damages to be assessed. Taking into account that Mr Cosenza was not a lawyer, the Request to Registrar signed by him left it to the Registrar to determine the appropriate form of judgment.
78. Taking into account the fact that the error was one made by an officer of the Court, coupled with the fact that Origin clearly failed to establish that it had an arguable defence, it is appropriate to exercise the discretion to vary the judgment to substitute judgment on liability with damages to be assessed and remit the matter to the Magistrates Court to proceed to an assessment of damages rather than setting aside the judgment in its entirety.

New evidence on appeal

79. As noted above, both parties filed new evidence on appeal relevant to the question whether Origin has an arguable defence to the claim. Mr Cosenza filed affidavits sworn on 2 and 14 June 2017. Origin filed an affidavit by Ms Tipping sworn on 13 June 2017.
80. The parties agree that, rather than remitting the matter to the Magistrates Court to hear and determine a fresh application to set aside the judgment based on the new material, I should decide that question.

Implied licence to enter

81. Ms Tipping exhibits a statement taken from Mr Palancha and signed by him on 9 August 2012. Mr Palancha says that he entered the property through a small [pedestrian] entrance gate on its left hand side (the small entrance), made his way to the front door and knocked on the door. He said that the occupant [obviously Mr Cosenza] told him that he had trespassed on his property and Mr Palancha replied “What is the problem?” The occupant led him to a large [driveway] entrance on the right hand side of the property (the large entrance) and pointed at a no trespassing sign on the right hand gate. Mr Palancha said that he told the occupant that he did not see the sign. The occupant said “You have now seen the sign, leave”. Mr Palancha apologised and left the property by the large entrance.
82. In Mr Cosenza’s responding affidavit sworn on 14 June 2017, Mr Cosenza says that the gate at the small entrance was kept locked. He also says that there was a trespass sign clearly delineated at that gate.
83. Mr Palancha’s statement is hearsay and would be inadmissible at trial. However, as observed above hearsay evidence is generally admissible on an application to set aside judgment. The evidence of Mr Palancha’s statement is sufficient to establish an arguable defence to trespass by Mr Palancha’s entry onto the property.
84. While there is a conflict between Mr Cosenza’s evidence that the gate at the small entrance was kept locked and Mr Palancha’s statement that he entered through that gate, this is the type of conflict that is to be resolved at trial rather than on a set aside application. While Mr Palancha did not say that he checked the gate at the small entrance for a sign after being escorted off the property and his statement suggests that he did not, he did say that he told the occupant that he did not see a sign when entering through the property and for the purposes of a set aside application (as opposed to trial) it may be inferred that Mr Palancha did not in fact see a sign when entering.
85. Mr Cosenza’s responding affidavit submits that Mr Palancha did not refute the existence of a sign at the small gate. If Mr Palancha gives evidence at trial, no doubt his examination and cross-examination will explore whether he did see a sign at the small gate and if not whether and if so how he looked for a sign. However, on a set aside application, it is sufficient to give rise to an arguable defence that Mr Palancha said that he did not see a sign when entering through the small gate.

Failing to leave when requested

86. Mr Palancha said in his statement that he left the property when requested by the occupant, who led him to the gate at the large entrance. Mr Cosenza in his 2 June 2017 affidavit says that Mr Palancha failed to leave the property despite being instructed repeatedly to do so after being advised that he was trespassing and Mr Palancha instead insisted on continuing to try to convince Mr Cosenza to enter into a contract with Origin.
87. While there is a conflict between Mr Cosenza’s evidence in this respect and Mr Palancha’s statement that he left when requested, this is the type of conflict that is to be resolved at trial rather than on a set aside application.

Liability of Origin for Mr Palancha’s actions

88. Given my conclusion that Ms Tipping’s new affidavit establishes an arguable defence of an implied licence to enter, it is not strictly necessary to decide whether it establishes an arguable defence that Mr Cosenza was not an employee of Origin and was either not an agent of Origin or when entering the property was not acting in the course of and for the purpose of executing the agency.

The Salmat contract

89. Ms Tipping exhibits a contract (the Salmat contract) between Origin and Salesforce Australia Pty Ltd (Salmat). The contract provides for Salmat to perform Services for Origin in accordance with Campaign Briefs,^[31] for which Salmat is to pay the service fees set out in the Campaign Briefs.^[32] Campaign Briefs are annexed to the contract and address residential door to door sales; telephone sales; and business door to door sales.
90. The Campaign Brief for residential door to door sales (Annexure 1) (the Campaign Brief) provides that Origin engages Salmat to promote Origin’s products and services; to provide door-to-door services in connection with the sale of energy and services by Origin to existing and prospective residential customers; and to complete an energy contract between Origin and each customer on Origin’s behalf (the Services).^[33] It provides for the payment of service fees on a variable cost per sale basis.^[34]
91. The Salmat contract and the Campaign Brief give to Origin a high level of control over the activities of Salmat and its sales personnel in performing the Services. Salmat is required to provide personnel to enable it to provide the Services.^[35] Origin is required to train the personnel.^[36] The personnel are required to regularly consult or liaise with and report to Origin with respect to the scope, nature and performance of the Services.^[37] Origin is empowered to require Salmat to suspend personnel pending investigation and replace them with persons acceptable to Origin^[38] and Origin has the right to request replacement of any designated personnel.^[39] Origin must approve all sales presentation and verification scripts, which cannot be varied other than in accordance with the instructions in the script.^[40]
92. The Salmat contract provides that the relationship between Origin and Salmat is that of principal and contractor and provides that the contract does not constitute Salmat or its personnel as an employee of Origin.^[41] It provides that it does not establish a party as agent of the other except as expressly provided.^[42]
93. The Salmat contract provides that Salmat has authority to complete an energy contract on Origin’s behalf with a customer and thereby constitutes Salmat as Origin’s agent to enter into contracts on its behalf.^[43] While there is as between Salmat and Origin power for Origin to reject a supply application on the grounds that it is incomplete, incorrect, contrary to law, fraudulent or cancelled by the customer, this is confined to limited grounds (it maybe doubtful whether in any event Origin has this power as between Origin and the customer). Salmat has authority to canvas customers and for that purpose it is contemplated that its personnel will enter onto customers’ premises for the purposes of providing the door-to-door services.
94. The Salmat contract provides that, after a customer has signed a door-to-door contract, at the point of sale the customer must be directed to make an outbound telephone call to the Salmat verification centre whereupon Salmat will confirm that the customer understands the offer and thereby verify the sale.^[44]
95. The Salmat contract provides that Salmat must ensure that it discharges all Regulatory Requirements relevant to the provision of the services of which Salmat is aware.^[45] Regulatory Requirements are defined to include requirements of general law.^[46]

The Palancha contract

96. Ms Tipping exhibits a contract (the Palancha contract) between Salmat and Mr Palancha. It provides that Mr Palancha is appointed to provide the Services, which is to provide services to Origin in accordance with the Campaign and specifically to explain to potential customers Origin services and products following scripts provided and sell the Origin product to residential customers.^[47] Mr Palancha is required to visit as many potential customers as practical and use his best endeavours to promote and maximise the sale of Origin product.^[48] The Palancha contract provides Mr Palancha is appointed as an independent contractor and provides that Salmat is not the employer of Mr Palancha.^[49]
97. The Palancha contract provides that Mr Palancha must at all times maintain a courteous, professional, friendly and polite manner.^[50]

Training materials

98. Ms Tipping exhibits the Door-to-Door Participant’s Workbook issued by Origin to door-to-door sales personnel which included a statement that they must respect requests evident in “Do Not Knock” or “No Canvassing” signs and must be vigilant and look out for such signs. She exhibits Origin and Salmat training materials to similar effect.

Analysis

99. The Salmat and Palancha contracts prove prima facie that Mr Palancha is not an employee of Origin. This leaves the question whether it is arguable that Mr Palancha was not an agent of Origin or that he entered onto the Cosenzas’ premises other than in the course of and for the purpose of executing the agency.
100. The Salmat contract proves that Salmat is an agent for Origin in the strict sense to canvas potential customers by door-to-door knocking and on Origin’s behalf to enter into energy contracts. Although there is no direct contract between Origin and Salmat personnel, the Salmat contract contemplates and provides for Salmat personnel to act as agents for Origin in canvassing potential customers by door-to-door knocking and on Origin’s behalf to enter into energy contracts (subject to verification by the Salmat verification centre). By the combination of the Salmat and Palancha contracts, Mr Palancha was an “agent” of Origin within the meaning of agency used by the High Court in Colonial Mutual Life Assurance Society Limited v The Producers and Citizens Cooperative Assurance Company of Australia Limited^[51] and Sweeney v Boylan Nominees Pty Limited.^[52]
101. This leaves the question whether it is arguable that Mr Palancha entered onto the Cosenzas’ premises other than in the course of and for the purpose of executing the agency.
102. On the one hand, it is very difficult to distinguish the present case from the situation in Colonial Life Assurance. In each case there was an agency in the strict sense to canvas customers and procure contracts signed by customers albeit subject or arguably subject to acceptance by the principal. In each case the agency necessarily entailed the agent engaging in the activity (discussions with prospective customers in the case of Colonial Life Assurance and entering onto customers’ properties in the case of door to door sales personnel acting as agents for Origin) in the course of which the agent committed the tort (defamation in the case of Colonial Life Assurance and trespass in the present case). In each case the contract arguably provided that the agent must not engage in the specific conduct comprising the tort (defamation in the case of Colonial Life Assurance and breach of the general law in the present case).
103. On the other hand, a question of law may be arguable by a party for the purpose of the judgment set aside test notwithstanding that upon hearing full argument it is conclusively decided that the party’s argument fails.
104. Although Mr Cosenza has a strong argument that on the basis of the Salmat and Palancha contracts Mr Palancha was acting in the course of and for the purpose of executing the agency when he entered onto the Cosenzas’ property (and that argument would be even stronger if he did not notice a sign on the small gate on the assumption that such a sign was present), it is preferable not to finally decide whether Origin’s contention in this respect is arguable and it is not necessary to do so.

Conclusion

105. The Magistrate erred in finding that Origin had established an arguable defence based on Ms Tipping’s affidavit. But for the new evidence adduced on appeal, I would have set aside the Magistrate’s orders, varied the default judgment to a judgment on liability only and remitted the matter to the Magistrates Court to proceed on an assessment of damages.
106. Ms Tipping’s new affidavit sworn on 13 June 2017 establishes that Origin has an arguable defence. In the circumstances, I consider that the appropriate course is to decline to set aside the Magistrate’s order setting aside the default judgment as the matter will now need to proceed to trial. I will hear the parties as to the orders to be made.

---

^[1] Although the letter was marked without prejudice and was expressed to be a notice before action for the purpose of rule 33 of the District Court Civil Rules 2006, both parties by their conduct have waived any settlement privilege that would otherwise apply to the communications between them.

^[2] It does not matter for present purposes whether the claim was governed by subrule 62(1) or (4).

^[3] Mr Cosenza accepts that this follows from the decision in Gemini Property Investments Pty Ltd v Woodards Investments Pty Ltd [2000] SASC 210 at [17] per to Debelle J.

^[4] Origin accepts that this follows from the decisions in Gemini Property Investments Pty Ltd v Woodards Investments Pty Ltd [2000] SASC 210 at [18] per Debelle J; Westpac Banking Corporation v Garrett [2004] SASC 265 at [35] per White J; Monkton v Stephenson [2011] NSWSC 67 at 53 per Hall J; Starrs v Retravision (WA) Ltd [2012] WASCA 167 at [44]- [51] per Allanson J (with whom Pullin and Murphy JJA agreed).

^[5] Magistrates Court (Civil) Rules 2013 (SA) rule 12; Supreme Court Civil Rules 2006 (SA) rule 162(2) Exception 1.

^[6] JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419 at 435 per Lord Browne-Wilkinson; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63, (2001) 208 CLR 199 at [43] per Gleeson CJ.

^[7] Victoria Park Racing and Recreation Grounds Co Ltd v Taylor [1937] HCA 45; (1937) 58 CLR 479 at 494 per Latham CJ; Bathurst City Council v Saban (1985) 2 NSWLR 704 at 706 per Young J.

^[8] Nickells v City of Melbourne [1938] HCA 14; (1938) 59 CLR 219 at 225 per Dixon CJ; Public Transport Commission (NSW) v Perry [1977] HCA 32; (1977) 137 CLR 107 at 133–134 per Gibbs J.

^[9] Cope v Sharpe (No 2) [1912] 1 KB 496 at 504 per Buckley LJ; Proudman v Allen [1954] SASR 336 at 338-340 per Hannan AJ; Kuru v New South Wales [2008] HCA 26, (2008) 236 CLR 1 at [40] per Gleeson CJ, Gummow, Kirby and Hayne JJ.

^[10] Kuru v New South Wales [2008] HCA 26; (2008) 236 CLR 1 at [45] per Gleeson CJ, Gummow, Kirby and Hayne JJ referring to Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1.

^[11] Kuru v New South Wales [2008] HCA 26; (2008) 236 CLR 1 at [43] per Gleeson CJ, Gummow, Kirby and Hayne JJ.

^[12] Currie v Dempsey [1967] 2 NSWR 532 at 539 per Walsh JA; Coshott v Sakic (1998) 44 NSWLR 667 at 670-672 per Spigelman CJ (with whom Mason P and Handley JA agreed).

^[13] See for example Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 285 per Mason CJ and Gaudron J.

^[14] [1952] AC 737.

^[15] At 744. (Emphasis added) (Citations omitted)

^[16] [1984] HCA 80; (1984) 155 CLR 1.

^[17] [1984] HCA 80; (1984) 155 CLR 1.

^[18] [1952] AC 737, at p 744.

^[19] At 6-7. (Emphasis added) (Footnote retained)

^[20] [1991] HCA 5; (1991) 171 CLR 635.

^[21] At 647. (Emphasis added) (Footnote omitted)

^[22] Sweeney v Boylan Nominees Pty Limited [2006] HCA 19, (2006) 226 CLR 161 at [12] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ.

^[23] Sweeney v Boylan Nominees Pty Limited [2006] HCA 19; (2006) 226 CLR 161 at [12] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ.

^[24] Colonial Mutual Life Assurance Society Ltd v The Producers and Citizens Cooperative Assurance Company of Australia Limited [1931] HCA 53; (1931) 46 CLR 41 at 46 per Gavan Duffy CJ and Starke J and 48-50 per Dixon J (with whom Rich J agreed); Sweeney v Boylan Nominees Pty Limited [2006] HCA 19; (2006) 226 CLR 161 at [17]- [24] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ.

^[25] Sweeney v Boylan Nominees Pty Limited [2006] HCA 19; (2006) 226 CLR 161 at [26]- [28] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ.

^[26] [1931] HCA 53; (1931) 46 CLR 41. .

^[27] At 46-47. (Citations omitted)

^[28] At 48-49 and 50. (Citations omitted)

^[29] [2006] HCA 19; (2006) 226 CLR 161.

^[30] At [17], [21]-[22], [24]. (Emphasis added) (Footnote omitted)

^[31] Contract clause 5.

^[32] Contract clause 9.

^[33] Annexure 1 Clause 2.

^[34] Annexure 1 Clause 8.

^[35] Contract clause 8(a).

^[36] Contract clause 8(b).

^[37] Contract clause 8(e).

^[38] Contract clause 8(f).

^[39] Annexure 1 clause 5(i).

^[40] Annexure 1 clause 5(d).

^[41] Contract clause 3(a) and (b).

^[42] Contract clause 3(c).

^[43] Annexure 1 clause 2.2(a)(ii).

^[44] Annexure 1 clauses 5(c) and 7(b).

^[45] Contract clause 17.1(a).

^[46] Contract clause 1.1.

^[47] Contract clause 2 and Schedule 2 paragraphs 1-3.

^[48] Schedule 2 paragraphs 4 and 6.

^[49] Contract clause 2 (d).

^[50] Contract clause 3.1(iii)(H).

^[51] [1931] HCA 53; (1931) 46 CLR 41..

^[52] [2006] HCA 19; (2006) 226 CLR 161.