GARRY F S BOYCE AND THE PERSONS NAMED IN THE ANNEXED SCHEDULE T/AS 'HUNT AND HUNT LAWYERS' v GOODYEAR AUSTRALIA LTD [1996] NSWCA 63

GARRY F S BOYCE AND THE PERSONS NAMED IN THE ANNEXED SCHEDULE T/AS 'HUNT AND HUNT LAWYERS' vy GOODYEAR AUSTRALIA LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY AP, GILES AND SIMOS AJJA 16 September 1996, 16 September 1996

[1996] NSWCA 63

Solicitors — information obtained acting for client in defending asbestos claims — client's defence conducted by insurer — term of policy that client to provide information to insurer — in later proceedings solicitors act for insurer against client — information relevant to dispute — client seeks access to information, solicitors claim legal professional privilege on behalf of insurer — application to restrain solicitors from acting or disclosing material.

Held no answer to application that client required to provide information to insurer. Duty to client goes beyond not disclosing confidential information, includes not using client's information in interests of insurer and against interests of client.

Mallesons Stephen Jacques v KPMG Peat Marwick (1994) WAR 357 referred to.

Giles AJA Ex tempore

Goodyear Australia Ltd (Goodyear) employed Mr Jeal from 1957 to 1987. Mr Jeal worked in a factory at Camellia adjacent to a factory of James Hardie & Co Ltd (Hardie). Goodyear was relevantly insured by National Employers Mutual General Insurance Association Ltd from 1942 to 1958 and from 1962 to 30 June 1983, and from 30 June 1983 was relevantly insured by Switzerland Insurance Co Ltd.

In 1994 Mr Jeal brought proceedings in the Dust Diseases Tribunal of New South Wales against Goodyear and Hardie, alleging that he was exposed during his employment to asbestos dust and fibre from Hardie's factory and thereby contracted pleural mesothelioma. National Employers Mutual General Insurance Association Ltd had gone into liquidation, and the entity responsible in its place became Insurers Guarantee Fund-National Employers Mutual General Insurance Association Ltd (NEM). The liabilities of Switzerland Insurance Co Ltd had been assumed by Manufacturers Mutual Insurance Ltd (MMI). Each of NEM and MMI denied liability to indemnify Goodyear in respect of Mr Jeal's claim. Accordingly, Goodyear cross-claimed in the Dust Diseases