GIO GENERAL LIMITED v MALATHOUNIS [1997] NSWCA 124

GIO GENERAL LIMITED v MALATHOUNIS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY and STEIN JJA, and BROWNIE AJA 22 May 1997, 30 September 1997

[1997] NSWCA 124

Workers Compensation — relationship between Workers' Compensation Act 1926 and Law Reform (Miscellaneous Provisions) Act 1946; addition of insurer as a defendant without leave.

The respondent sued a number of employers for negligence resulting in his contraction of silicosis. The statement of claim was served on the appellant, the insurer of the first defendant. The trial judge ordered that the appellant be joined as a defendant and an award of damages was made against the defendant.

On appeal:

(1) S6 Law Reform (Miscellaneous Provisions) Act 1946 does not apply to policies of workers compensation insurance.

(2) The appellant should not have been added as a defendant without leave.

Held: Appellants arguments accepted.

Spain v Metropolitan Meat Industry Board [1971]1 NSWLR 91 National Mutual Fire Insurance Co Ltd v Commonwealth of Australia [1981] 1 NSWLR 400 applied.

Priestley JA Brownie AJA sets out in his reasons the four points which were argued in this appeal.

I agree with the reasons given by Brownie AJA for holding against the appellant on the first point.

As to the second point, I do not think the court should grant leave in the present case for National Mutual Fire Insurance Co Ltd v Commonwealth of Australia [1981] 1 NSWLR 400 to be reconsidered. It has stood for sixteen years. Toohey J's remarks about it in Emanuele v Australian Securities Commission (1997) 71 ALR 717 at 725 were not made until after the present appeal had been argued, and were not expressed as being definitive. The question whether this court should consider the correctness of National Mutual or leave it to the High Court to do so should be left until a more appropriate occasion arises before this court.