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APPENDIX 6 - SETTLEMENT OFFER: AGREEMENT AND RELEASE

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

BETWEEN: No. of 199

Plaintiff

and

CSL LIMITED and

COMMONWEALTH OF AUSTRALIA Defendants

AGREEMENT AND RELEASE

Definitions

A. "the plaintiff" means.

B. "the defendants" means CSL Ltd. and the Commonwealth of Australia.

C. "the proceeding" means action no: of 199.

D. "the Commonwealth" means the Commonwealth of Australia.

E. "CSL" means CSL Limited.

F. "CJD" means Creutzfeldt-Jakob Disease.

G. "HPAC" means the Human Pituitary Advisory Committee.

H. "hPG" means hPG and/or fSH provided under the HPAC program or

H. "hGH" means hGH provided under the HPAC program.

I. "the HPAC program" means the program supervised and/or managed by the HPAC and under which hPG/hGH was provided to the plaintiff.

J. "the fund" means the Human Pituitary Hormones Trust Account Trust Fund.

2. Introductory

2.1 The plaintiff has instituted the proceeding claiming damages from the defendants in respect of her/his treatment with hPG/hGH.

2.2 [original] The defendants have denied and maintain a denial of liability in respect of any claim brought by the plaintiff in the proceeding.

2.2 [added] The plaintiff maintains that the defendants are liable in respect of any claim brought by the plaintiff in the proceeding.

2.3 The plaintiff and the defendants are concerned to avoid litigation and the costs involved with such litigation and accordingly wish to effect a settlement of the proceeding to resolve their rights once and for all time.

3. Undertakings

3.1 Subject to paragraphs 3.2, 3.3 and 4.1 the Commonwealth undertakes in the event of the plaintiff contracting CJD as a result of her/his treatment with hPG/hGH to pay an amount of compensation ("the compensation") to her/him or her/his legal representative.

3.2 The compensation is to be assessed in accordance with the principles of common law assessment of damages as at the date that the plaintiff or her/his legal representative gives notice to the Commonwealth that the plaintiff has been diagnosed as having contracted CJD.

3.3 The assessment of damages pursuant to paragraph 3.2 shall not include any allowance by way of compensation for any damages, costs or expenses paid or payable to the plaintiff or paid or payable on behalf of the plaintiff or her/his family pursuant to the fund.

4. Arbitration

4.1 In the event that any issue relating to the application of and/or interpretation of paragraph 3.1 cannot be resolved between the plaintiff and the Commonwealth the parties agree to submit such differences to a single arbitrator in accordance with the provisions of the Arbitration Act 1985.

4.2 The arbitrator shall be appointed by agreement between the plaintiff and the Commonwealth.

4.3 In the event that the plaintiff and the Commonwealth are unable to agree as to an appropriate arbitrator either party may apply to the Chairman of the Victorian Bar Council to appoint an arbitrator appropriately qualified in the area of personal injuries litigation.

5 The Fund

5.1 This agreement shall not affect any entitlement of the plaintiff to payments in accordance with the provisions of the fund.

6 Orders

6.1 The plaintiff and defendants agree to obtain the following orders

(a) The proceeding be struck out.

(b) Reserving to the parties liberty to apply on notice on the issue of costs.

7. Costs

7.1 The defendants agree to pay the plaintiff's costs of this proceeding including reserved costs.

7.2 In the event that costs cannot be agreed between the plaintiff and the defendants the defendants agree

(a) that the proceeding be reinstated;

(b) that by consent an order be made that the defendants pay the plaintiff's costs to be taxed.

8. Release

8.1 In consideration of the Commonwealth providing the undertaking contained in paragraph 3.1 and the defendants paying the plaintiff's costs in accordance with paragraph 6.1 the plaintiff hereby releases and forever discharges each of the defendants from any claims, proceedings, suits, demands, causes of proceeding, liabilities and costs of whatsoever kind arising out of or in respect of this proceeding including any claim she/he may have in respect of the contraction of CJD save as provided under paragraph 3.

 

The plaintiff

 

Rennick Briggs
Solicitors for the plaintiff

 

Australian Government Solicitor
Solicitor for the defendants

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