TRIVAN PTY LTD (IN LIQUIDATION) FORMERLY TRIVAN BUILDING SERVICES PTY LTD v GOWA PTY LTD FORMERLY A & G FORMWORK CONTRACTORS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY JA 21 February 1994 [1994] NSWCA 320 Priestley JA There is a notice of motion before the court in an appeal in proceedings in which a worker brought proceedings claiming damages for negligence against the building contractor which had contracted to build a building on which the worker was working at the time of the alleged negligence. The worker did not bring proceedings against his employer. The defendant in the workers' proceedings, the contractor, by cross-claim joined the employer. An appeal from Cole J's judgment in those first instance proceedings is going ahead, and is in the normal preparatory stages. The notice of motion before the court today by the claimant appellant building contractor asks that certain proceedings which were taken last year by the building contractor against Employers' Mutual Indemnity Workers' Compensation Ltd should be moved into the Court of Appeal and determined simultaneously with the appeal which has been brought by the building contractor against the worker and also against the employer as another respondent in the appeal. The reason for the application is the wish to have a point of construction under s151Z of the Workers' Compensation Act, to be raised in the appeal, determined in proceedings in which Employers' Mutual Indemnity Workers' Compensation Ltd would be represented. That company was said by the employer to be its insurer for purposes of the alleged negligence. That company, however, denies that it is liable to indemnify the employer in regard to the negligence but it wishes also, if that claim should fail, to be heard on the construction point involving s151Z. The reason why it might not be able to be heard simply in the appeal is that the employer is in liquidation and may well take no part in the appeal proceedings. Employers' Mutual Indemnity also wishes to be heard on the issue of apportionment of responsibility between the employer and the building contractor. Cole J apportioned that responsibility in a way which the building contractor wishes to challenge in the appeal. It is in the interests of Employers' Mutual Indemnity Workers' Compensation Ltd to seek to uphold the apportionment made by Cole J. It therefore seems desirable, if it can be achieved, to bring about a situation in which Employers' Mutual Indemnity can be heard on the construction question and the apportionment question. This result could be achieved if the Court of Appeal had before it for hearing, either simultaneously or consecutively, the appeal presently on foot and the cause constituted by the first instance proceedings brought by the building contractor against Employers' Mutual Indemnity Workers' Compensation Ltd. There could be difficulties in the Court of Appeal endeavouring to decide virtually simultaneously an appeal and what would in strict form be a first instance trial. In the course of discussion today, however, it seemed clear enough 2 UNREPORTED JUDGMENTS that those difficulties could be avoided provided the first instance trial was conducted on the basis that the correct result in that trial would be argued on the footing of the facts stated and found by Cole J in his reasons for judgment in the first proceeding, which is subject to the regular appeal. An agreement has been reached which is substantially embodied in some draft short minutes of order which have been placed before me between the legal representatives of the building contractor and Employer's Mutual Indemnity Workers' Compensation Ltd to the effect that if the trial is before the Court of Appeal together with the hearing of the appeal from the first set of proceedings, in the way I have indicated, then neither party in the first instance proceedings will challenge any factual finding appearing from the reasons of Cole J, already referred to, and that the only issues the court will be asked to decide in those first instance proceedings will be the question of construction of s151Z of the Workers' Compensation Act and the question whether the proportion of responsibility fixed by Cole J between the building contractor and the employer should be changed, it being made clear that the Court of Appeal could only entertain this proposal on the footing that the argument for changing the proportion would be based entirely upon what appears in Cole J's reasons as founding his conclusion, that is, that there would be no challenge to any of the matters stated by Cole J as being relevant to his final decision concerning proportion, and the only argument would be whether that proportion could be disturbed on the basis of what appears in Cole J's reasons for judgment. On those footings I would be prepared to make the orders sought in the notice of motion. However, on inquiring about the power of the Court of Appeal to remove into the Court of Appeal the proceedings commenced in the Common Law Division, and having been helpfully addressed by counsel as to the court's power to do so, I am not comfortably persuaded at this moment that the court does have power. It may do. On the other hand it may not, and it seems to me to be safer for the parties in the second proceeding to follow a track where there is undoubted power, that is, the track of seeking an order from a judge in the Common Law Division ordering the removal to the Court of Appeal of the proceedings for substantially the reasons that I have outlined. I cannot bind the decision of any judge of the Common Law Division before whom this application comes, but I have given reasons in this short form for the assistance of any judge before whom such application comes and so that that judge will know that, so far as the Court of Appeal is concerned, the order of the removal of the matter to the Court of Appeal by a judge of the Common Law Division would' in the particular circumstances of this case, be perfectly acceptable. There are some procedural matters which arose in the course of the discussions which I need not detail and which can be adjusted before this notice of motion comes back before this Court. Since the matter is a little complicated it would save time if it comes back before me, and I will adjourn the notice of motion presently before me until 9.30 am on Monday 14 March next. On that occasion, I should be able, if a Common Law Division judge has made the anticipated order, to see that all the procedural matters concerned with the notice of motion have been complied with, and make any further directions that may be necessary for the conduct of the appeal in association with the first instance matter. UIRJVAN PTY LTD (IN LIQUIDATION) FORMERLY TRIVAN BUILDING SERVICES PTY LTB v GOWA PTY LTD FORMERLY A & G FORMWORK CONTRACTORS PTY LTD (Priestley JA) On that footing I will stand the notice of motion over till 14 March, and reserve today's costs.