INSURERS' GUARANTEE FUND NEM GENERAL INSURANCE ASSN LTD (in liq) V BAKER [1995] NSWCA 209

INSURERS' GUARANTEE FUND NEM GENERAL INSURANCE ASSN LTD (in liq) V BAKER

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and SHELLER JJA 10 February 1995, 10 February 1995 [1995] NSWCA 209

PRACTICE PROCEDURE — Court of Appeal — costs — appeal bound to succeed on basis of clear authority of Court of Appeal — appellant suggests to other parties consent orders to allow appeal and set aside award of Compensation Court — one respondent does not agree to the proposed course — costs of hearing of appeal incurred — resisting respondent agrees belatedly to orders proposed — held: By reason of delay in accepting a proposal of the appellant, the resisting respondent should pay the costs of the appeal of the appellant and of the other respondent which was agreeable to the orders proposed.

COSTS — Court of Appeal — suggestion that appeal bound to proceed — held: Resisting respondent must pay costs of appellant and other respondent.

COMPENSATION costs — appeal — apportionment not available — appeal bound to succeed — held: Respondent which necessitated appeal must pay costs of other parties.

Workers Compensation Act 1987.

Kirby P Ex tempore

In the Compensation Court Geraghty CCJ made an award in favour of a worker, Mr J Baker. There were a number of insurers joined in the proceedings.

His Honour, apparently without argument, proceeded to apportion liability as between the insurers. His Honour's award in this respect is covered by a decision of this Court in Insurers Guarantee Fund NEM Insurance Association (in liquidation) v GIO General Ltd (1994) 33 NSWLR 247 (CA). By that decision, it was not competent for his Honour, in law, to apportion liability as between the succeeding insurers. The Workers Compensation Act 1987 does not, so it was held, permit that course.

That this is so is not now in dispute. The appeal of Insurers Guarantee Fund NEM General Insurance Association Ltd (In Liquidation), which was the insurer assigned liability by his Honour, must therefore succeed. That is also not in dispute. The question is who should pay the costs which have been occasioned by the appeal which has therefore succeeded.