(re Vasiliou) Chubb Australia Limited v Mercantile Mutual Insurance (Australia) Limited & Ors [2007] NSWDDT 21

Dust Diseases Tribunal of New South Wales

CITATION : (re Vasiliou) Chubb Australia Limited v Mercantile Mutual Insurance (Australia) Limited & Ors [2007] NSWDDT 21

Chubb Australia Limited Mercantile Mutual Insurance (Australia) Limited Government Insurance Office of New South Wales PARTIES : AMP General Insurance Limited Insurers Guarantee Fund - NEM General Insurance Association Limited (in liquidation) MMI Insurance Limited Mercantile Mutual Insurance (NSW Workers Compensation) Limited

MATTER NUMBER(S) : 160/1997/CC1 of

JUDGMENT OF: Kearns J

CATCHWORDS: Dust Diseases Tribunal :-

DATES OF HEARING: 11/05/2007; 21/05/2007 EX TEMPORE JUDGMENT DATE : 21 May 2007

Mr M White of Eakin McCaffery Cox appeared for the cross-claimant

LEGAL REPRESENTATIVES: Mr J de Greenlaw, instructed by McCulloch & Buggy, appeared for the first and sixth cross-defendants Mr S Taylor-Jones of Moray & Agnew appeared for the second cross-defendant Ms W Strathdee, instructed by N W Aussel, appeared for the fourth cross-defendant

JUDGMENT:

Dust Diseases Tribunal of New South Wales Matter Number DDT160 of 1997/1 (Re: George Vasiliou)

CC: Chubb Australia Limited (ACN 000 096 122) v C.D: Mercantile Mutual Insurance (Australia) Limited C.D: Government Insurance Office of New South Wales C.D: AMP General Insurance Limited C.D: Insurers Guarantee Fund - NEM General Insurance Association Limited (In Liquidation) C.D: MMI Insurance Limited C.D: Mercantile Mutual Insurance (NSW Workers Compensation) Limited 21 May 2007 RULING KEARNS J 1. On 11 May 2007, I delivered ex tempore reasons relating to costs disputes between the parties. I asked that short minutes of order be prepared in conformity with the ex tempore reasons and brought before me this morning. That has been done, but it has been done in the alternative because between 11 May 2007 and today a dispute has arisen between Mercantile and NEM as to an aspect of NEM's costs. 2. On 6 July 2004, Mercantile made payment to NEM. That was for the judgment amount that NEM had paid out to the plaintiff in the proceedings and also for NEM's costs up to that point. 3. Thereafter, the only matter left in issue between the parties to this litigation was the matter of costs. It was that that was the subject of some lengthy argument before me on 11 May 2007 and in respect of which I delivered ex tempore reasons. The matter of the costs paid by Mercantile to NEM in respect of its costs up to 6 July 2004 was not a matter that had been mentioned to me on 11 May 2007. Mr de Greenlaw says that there was no issue between Mercantile and NEM and that the costs had been paid out and that his argument on 11 May 2007 was directed to costs as between Mercantile and Chubb and costs as between Chubb and its other insurers in respect of which Mercantile may have been at risk. I have been informed this morning that short minutes of order have been prepared in the alternative depending upon what attitude I take as to the position that has now been mentioned to me as between Mercantile and NEM. On the face of it, when Mercantile paid out NEM on 6 July 2004 one would have thought that that was the end of NEM's involvement in the proceedings. The only thing left as between the parties was costs, but NEM had in fact been paid its costs and, on the face of it, one wonders what its interest in the subject matter of the proceedings was. 4. Ms Strathdee has put submissions to me this morning that indicate that there was a potential risk for NEM depending upon what costs orders may have been made and has submitted that the matter could have been simply dealt with by Mercantile agreeing to indemnify NEM in respect of its position as to costs. I am inclined to stay with the position that I indicated was a prima facie position, and that is that when Mercantile paid NEM on 6 July 2004 it paid out the judgment and also NEM's costs, and one would have thought that that would have been an end of the matter for NEM. True it is that Mercantile could have indemnified NEM in respect of any further involvement in the matter, but one would have thought that it was equally open to NEM to say to Mercantile something to the effect, what are we doing continuing in this matter, why do you not indemnify us? It seems to me that it is a relatively minor matter in the context of the overall litigation and costs of these proceedings and in the circumstances the order I would propose would be that the Sanderson order I made or indicated I would make in respect of NEM's costs would be one limited to 6 July 2004 and that NEM should bear its own costs thereafter. 5. I make orders in accordance with the short minutes of order dated today and signed by the representatives of the parties.