PATRICK STEVEDORES NO 1 LTD T/AS PATRICK THE AUSTRALIAN STEVEDORES v DIVERS [1998] NSWCA 170

PATRICK STEVEDORES NO 1 LTD T/AS PATRICK THE AUSTRALIAN STEVEDORES v DIVERS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, COLE and STEIN JJA 1 April 1998

[1998] NSWCA 170

Handley JA This is an appeal by Patrick Stevedores No | Ltd in the interest of QBE Workers Compensation (New South Wales) Ltd from awards made by Burke CCJ in favour of the worker. The only grounds of appeal sought to be pursued are grounds relating to the apportionment of the appellant's liability to the worker against earlier insurers or employers. However these earlier insurers and employers, whoever they may be, have not been joined in the proceedings and are not parties to this appeal.

S22(7) of the Workers Compensation Act makes it plain that apportionment under that section is not a matter which is to directly affect compensation payable to the worker. This view is reinforced by the provisions of s22A(4) and s22A(5) which relate to the working out of apportionment orders among various employers and insurers.

Since the only party before the Court as a respondent cannot be affected directly by an order of apportionment at this stage of the proceedings, and since the other parties who might be affected by such an order, if it were to be made, were not joined in the Compensation Court and are not parties to the appeal, this Court simply cannot consider the apportionment issues which this appellant seeks to raise.

In those circumstances I am of the view that the appeal fails for want of necessary parties and should be dismissed with costs.

Cole JA I agree. Stein JA I also agree. Handley JA The order of the Court is appeal dismissed with costs.

The appeal is dismissed with costs.