High Court of Australia
HIGH COURT OF AUSTRALIA
FRENCH CJ,
GUMMOW, HAYNE, HEYDON AND KIEFEL JJ
Matter No S281/2009
WALLABY GRIP LIMITED APPELLANT
AND
QBE INSURANCE (AUSTRALIA) LIMITED & ANOR RESPONDENTS
Matter No S284/2009
IRENE STEWART (AS LEGAL PERSONAL
REPRESENTATIVE OF THE ESTATE OF THE LATE
ANGUS CLUGSTON STEWART) APPELLANT
AND
QBE INSURANCE (AUSTRALIA) LIMITED & ANOR RESPONDENTS
Wallaby Grip Limited v QBE Insurance (Australia) Limited
Stewart v QBE Insurance (Australia) Limited
[2010] HCA 9
30 March 2010
S281/2009 & S284/2009
ORDER
In each matter:
1. Appeal allowed.
2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 3 April 2009 and in their place order that the appeal to that Court be dismissed with costs.
3. First respondent to pay the appellant's costs.
On appeal from the Supreme Court of New South Wales
Representation
B W Walker SC with D J Russell SC for the appellant in S281/2009 and the second respondent in S284/2009 (instructed by Middletons Lawyers)
D F Jackson QC with D R J Toomey for the second respondent in S281/2009 and the appellant in S284/2009 (instructed by Turner Freeman Lawyers)
A J Sullivan QC with G F Little SC and D T Miller for the first respondent in both matters (instructed by Moray & Agnew Solicitors)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Wallaby Grip Limited v QBE Insurance (Australia) Limited
Stewart v QBE Insurance (Australia) Limited
Insurance – Workers' compensation – Workers' Compensation Act 1926 (NSW) ("Act") s 18(1) required employers to obtain insurance or indemnity policy from insurer in respect of liability for injury to any worker – Act stipulated minimum level of cover in respect of employer's liability independently of Act – General terms and conditions of policy referred to in Act and in Appendix to Workers' Compensation Regulations 1926 (NSW) ("Regulations") – Where insurance policy lost – Where no evidence as to level of indemnity in policy – Whether any limitation upon indemnity imposed by Act or policy – Whether insurer or insured carries burden of proving limitation upon indemnity.
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