Coveney v Asbestos Injuries Compensation Fund Ltd; Davis v Asbestos Injuries Compensation Fund Ltd; WorkCover Queensland v Asbestos Injuries Compensation Fund Ltd [2024] NSWCA 317

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Coveney v Asbestos Injuries Compensation Fund Ltd; Davis v Asbestos Injuries Compensation Fund Ltd; WorkCover Queensland v Asbestos Injuries Compensation Fund Ltd [2024] NSWCA 317 Hearing dates: 18 December 2024 Decision date: 24 December 2024 Before: Ward P; Leeming JA; Payne JA Decision: In proceeding 2024/390046 commenced by Mr Coveney: 1. Join the Attorney-General of New South Wales as the second respondent. 2. Join James Hardie 117 Pty Ltd as the third respondent. 3. Join WorkCover Queensland as the fourth respondent. 4. Grant leave to appeal. 5. Order that the notice of appeal already filed by Mr Coveney in proceeding 2024/362958 be taken as the appeal filed in proceeding 2024/390046. 6. Appeal allowed. 7. Set aside the orders made by the primary judge on 13 September 2024 and 3 October 2024. 8. Direct the parties to supply agreed short minutes of order, or in lieu of agreement, minutes of the orders for which they contend accompanied by submissions not exceeding four pages, by 7 February 2025, and submissions in reply not exceeding three pages by 14 February 2025, with a view to orders thereafter being made without further hearing. In proceeding 2024/373482 commenced by Mr Davis: 1. Join the Attorney-General of New South Wales as the second respondent. 2. Join James Hardie 117 Pty Ltd as the third respondent. 3. Join WorkCover Queensland as the fourth respondent. 4. Grant leave to appeal. 5. Direct Mr Davis to file a notice of appeal in accordance with the draft notice of appeal, and dispense with the requirements as to service. 6. Appeal allowed. 7. Set aside the orders made by the primary judge on 13 September 2024 and 3 October 2024. 8. Direct the parties to supply agreed short minutes of order, or in lieu of agreement, minutes of the orders for which they contend accompanied by submissions not exceeding four pages, by 7 February 2025, and submissions in reply not exceeding three pages by 14 February 2025, with a view to orders thereafter being made without further hearing. In proceeding 2024/372881 commenced by WorkCover Queensland: 1. Join the Attorney-General of New South Wales as the second respondent. 2. Join James Hardie 117 Pty Ltd as the third respondent. 3. Grant leave to appeal. 4. Direct WorkCover Queensland to file a notice of appeal in accordance with the draft notice of appeal, and dispense with the requirements as to service. 5. Appeal allowed. 6. Set aside the orders made by the primary judge on 13 September 2024 and 3 October 2024. 7. Direct the parties to supply agreed short minutes of order, or in lieu of agreement, minutes of the orders for which they contend accompanied by submissions not exceeding four pages, by 7 February 2025, and submissions in reply not exceeding three pages by 14 February 2025, with a view to orders thereafter being made without further hearing. Catchwords: TRUSTS – judicial advice – scheme established to compensate victims of asbestos-related diseases – two victims claimed damages for personal injury based on exposure to asbestos – victims obtain judgments – victims had previously received workers compensation payments from Queensland workers compensation insurer – WorkCover Queensland asserted an entitlement to reimbursement and a charge over the judgments – whether trustee justified in not making payments to discharge judgment debts of liable entity to the extent that they were subject to reimbursement by WorkCover Queensland Legislation Cited: Corporations Act 2001 (Cth), s 5G James Hardie Former Subsidiaries (Winding up and Administration) Act 2005 (NSW), ss 3, 4, 23, 32 Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld), s 5 Supreme Court Act 1970 (NSW), s 101 Trustee Act 1925 (NSW), s 63 Uniform Civil Procedure Rules 2005 (NSW), rr 51.29, 55.2, 55.4 Uniform Commercial Code, Art 2-208 Workers Compensation Act 1987 (NSW) Workers Compensation and Rehabilitation Act 2003 (Qld), s 207B Workers' Compensation (Dust Diseases) Act 1942 (NSW), s 8E Cases Cited: Agricultural & Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570; [2008] HCA 57 Beck v Henley [2014] NSWCA 201 Corporate Affairs Commission v Bradley [1974] 1 NSWLR 392 Davis v Amaca Pty Ltd [2024] NSWDDT 2 Doyle's Farm Produce Pty Ltd v Murray Darling Basin Authority (No 2) (2021) 106 NSWLR 41; [2021] NSWCA 246 Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher & Barnet (as liquidators of Octaviar Administration Pty Ltd (in liq)) (2015) 89 NSWLR 110; [2015] NSWCA 85 Haines v Bendall (1991) 172 CLR 60; [1991] HCA 15 Harris v Commercial Mines Ltd (1996) 186 CLR 1; [1996] HCA 49 In the matter of Asbestos Injuries Compensation Fund Ltd (and WorkCover Queensland) [2024] NSWSC 1163 In the matter of Asbestos Injuries Compensation Fund Ltd (and WorkCover Queensland) (No 2) [2024] NSWSC 1238 Re Asbestos Injuries Compensation Fund Ltd [2011] NSWSC 97 Re Buckton [1907] 2 Ch 406 Resilient Investment Group Pty Ltd v Barnet and Hodgkinson as liquidators of Spitfire Corporation Ltd (in liq) (2023) 111 NSWLR 446; [2023] NSWCA 118 Talifero v Asbestos Injuries Compensation Fund Limited as Trustee for the Asbestos Injuries Compensation Fund (2018) 98 NSWLR 1107; [2018] NSWCA 227 Wholesale Distributors Ltd v Gibbons Holdings Ltd [2008] 1 NZLR 277; [2007] NZSC 37 Category: Principal judgment Parties: Eric Thomas Coveney (Applicant in 2024/390046 and purported Appellant in 2024/362958) Barry Edward Davis (Applicant in 2024/373482) WorkCover Queensland (Applicant in 2024/372881) Asbestos Injuries Compensation Fund Ltd as trustee for the Asbestos Injuries Compensation Fund (First Respondent in all proceedings) Attorney-General (NSW) (Second Respondent in all proceedings) James Hardie 117 Pty Ltd (Third Respondent in all proceedings) Representation: Counsel: B Walker SC with A Giurtalis (Mr Coveney) S Robertson SC with S Tzouganatos (Mr Davis) P Dunning KC with K F Holyoak and A Schonell (WorkCover Queensland) R Higgins SC with C Tran (AICF) D Hume (Attorney-General (NSW)) J Lockhart SC with M Gvozdenovic (James Hardie 117 Pty Ltd)