Franklin v Coal Mines Insurance Limited (No 2) [2024] NSWDDT 13

Dust Diseases Tribunal New South Wales Medium Neutral Citation: Franklin v Coal Mines Insurance Limited (No 2) [2024] NSWDDT 13 Hearing dates: On the papers Date of orders: 18 November 2024 Decision date: 18 November 2024 Before: Russell SC DCJ Decision: (1) Order that the first defendant pay the plaintiff's costs of and incidental to the plaintiff's application for leave to proceed against the first defendant. Catchwords: DUST DISEASES – costs – whether costs of application for leave to sue insurer should follow the event – failure to answer reasonable queries about the existence of insurance policies – incorrect assertion that CMI not the insurer – inaccurate assertions about which policies did exist – piecemeal and slow production of insurance documents – need for the monopoly insurer to have a much better system for providing accurate and timely information about coal mines insurance policies Cases Cited: Franklin v Coal Mines Insurance Limited & Ors [2024] NSWDDT 11 Category: Costs Parties: Luke Verne Franklin (Plaintiff) Coal Mines Insurance Limited (First Defendant) Representation: Counsel: S Tzouganatos (Plaintiff) T Rowles (First Defendant)

Solicitors: Slater & Gordon (Plaintiff) Sparke Helmore (First Defendant) File Number(s): DDT 2023/7576

JUDGMENT

Introduction 1. On 16 October 2024 judgment was delivered on the plaintiff's application for leave to commence and continue proceedings against the first defendant Coal Mines Insurance Limited (CMI) in relation to claims arising from the employment of the plaintiff by deregistered companies – Franklin v Coal Mines Insurance Limited & Ors [2024] NSWDDT 11 (the primary judgment). 2. As requested by the parties, I reserved the costs of the plaintiff's application for leave to proceed against CMI. This judgment concerns the costs of the application. 3. The plaintiff filed two further affidavits: 1. Affidavit of J Wade dated 9 October 2024 (PX 12). 2. Affidavit of J Wade dated 23 October 2024 (PX 13). 1. CMI filed an affidavit of R Brewster dated 6 November 2024 (DX 2). 2. The following written submissions on costs were filed: 1. Plaintiff's written submissions dated 23 October 2024 (MFI 14). 2. CMI written submissions dated 6 November 2024 (MFI 15). 1. The affidavits of Ms Wade set out the history of correspondence between the parties, much of which was directed towards requiring CMI to produce copies of insurance policies issued to the deregistered companies, or correspondence concerning insurance so issued. The affidavit of Ms Brewster set out the procedural history of the matter. 2. In summary, the hearing of the Motion proceeded in a piecemeal fashion, with the plaintiff requesting further documents from CMI, and CMI producing further documents from time to time. 3. The end result of this protracted process was that the plaintiff was able to establish that there was a CMI policy in force on the alleged last date of employment with all of the deregistered companies except Alminco – primary judgment at [70]. 4. The need for the plaintiff to serve several Notices to Produce upon CMI, which resulted in fragmentary production of insurance related documents, was most unfortunate. On 7 June 2024 a lawyer for CMI swore an affidavit (PX 6) setting out, on her instructions, the polices of insurance which had been issued by CMI to certain of the deregistered companies. In the end the plaintiff established more extensive insurance than was contained in the CMI lawyer's affidavit.