Black v Luke and Singer Pty Ltd [2024] NSWDDT 16

Dust Diseases Tribunal New South Wales Medium Neutral Citation: Black v Luke and Singer Pty Ltd [2024] NSWDDT 16 Hearing dates: 25 November 2024 Date of orders: 29 November 2024 Decision date: 29 November 2024 Before: Russell SC DCJ Decision: (1) Grant leave to the plaintiff pursuant to ss 4 and 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) to bring proceedings against QBE Insurance (Australia) Ltd. (2) Order that QBE Insurance (Australia) Ltd be substituted for the first defendant in these proceedings. (3) Grant leave to the plaintiff to file a Further Amended Statement of Claim in the form of Exhibit PX 4. (4) Order that the plaintiff pay the costs of QBE Insurance (Australia) Ltd of and incidental to the Notice of Motion filed on 19 September 2024. Catchwords: DUST DISEASES – insurance – application for leave to proceed against an insurer – whether insurance policy covered the last date of employment – different last employment date and last exposure date – insurer on risk on date of last exposure – leave granted DUST DISEASES – costs – plaintiff to pay insurer's costs despite succeeding on the Motion – plaintiff sought leave to amend Statement of Claim by oral application at the hearing of the Motion – three forms of the plaintiff's pleading implied a last date of exposure after QBE was no longer on risk – pleading handed up in court finally accorded with plaintiff's instructions and his Statement of Particulars Legislation Cited: Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) ss, 4, 5 Workers Compensation Act 1987 (NSW) s 151AB Cases Cited: Avant Insurance Ltd v Burnie [2021] NSWCA 272 CGU Insurance Limited v AAI Insurance Limited [2016] NSWCA 335 Mrdajl v Southern Cross Constructions (NSW) Pty Ltd (In Liq) [2018] NSWSC 161 Category: Procedural rulings Parties: David Brian Black (Plaintiff) Luke and Singer Pty Ltd (First Defendant) Amaca Pty Ltd (Second Defendant) QBE Insurance (Australia) Ltd (Respondent) Representation: Counsel: S Tzouganatos (Plaintiff) M Smith (Respondent)