(Re Macarthur-Onslow) Wallaby Grip Ltd and Ors v Amaca Pty Ltd and Anor [2006] NSWDDT 31

Dust Diseases Tribunal of New South Wales

CITATION : (Re Macarthur-Onslow) Wallaby Grip Ltd and Ors v Amaca Pty Ltd and Anor [2006] NSWDDT 31

Wallaby Grip Ltd, Wallaby Grip (BAE) Pty Ltd (In Liquidation) and Hillsdale Investments Pty Ltd (Formerly Denzil Macarthur- Onslow Pty Limited (In the interests of Vero Insurance Limited) (Cross Claimants) PARTIES : Amaca Pty Ltd (Under External Administration) (First Cross Defendant) Mercantile Mutual Insurance (Workers Compensation) Ltd (Second Cross Defendant)

MATTER NUMBER(S) : 5135/05/2

JUDGMENT OF: Duck J

CATCHWORDS: Dust Diseases Tribunal :- Arbitration - Insurance dispute

LEGISLATION CITED: Dust Diseases Tribunal Act 1989

DATES OF HEARING: 12/09/2006

DATE OF JUDGMENT: 09/12/2006

EX TEMPORE JUDGMENT DATE : 09/12/2006

Mr B McHardy of Mclaughlin & Riordan Solicitors appeared Amicus Curiae for the Plaintiff Mr T J Morahan instructed by Middletons appeared for Wallaby Grip Ltd and Wallaby Grip (BAE) Pty Ltd (In Liquidation) (Cross Claimant) LEGAL REPRESENTATIVES: Ms W S Strathdee instructed by Lee & Lyons Lawyers appeared for Vero Insurance Ltd (Cross Claimant)

Ms N Lapthorn of Phillips Fox appeared for the First Cross Defendant Mr J de Greenlaw appeared for the Second Cross Defendant

JUDGMENT:

RULING DUCK J 1. I grant leave to Wallaby Grip BAE Pty Ltd and Wallaby Grip Pty Ltd to file in court a notice of motion today. Effectively what is sought is that orders previously made pursuant to which the insurance dispute essentially between Vero Insurance Ltd on the one hand and Mercantile Mutual Insurance Workers Compensation Ltd (Mercantile Mutual) on the other, be referred to arbitration. At the call over a week ago I ordered that the matter be referred to the registrar of the Tribunal for that purpose. The Wallaby Grip companies urge the Tribunal to revoke the appointment previously made. They point out that pursuant to s 7A of the Dust Diseases Tribunal Act 1989 I have the power in the absence of the President, who is overseas, to exercise the powers that he might otherwise exercise, that is I have the power to appoint someone other than the registrar to be the arbitrator for the purposes of the dispute. 2. It happens that I was the judge at the hearing at which the plaintiff's evidence was taken shortly before his death. I have some knowledge of the facts of the case. It would be forensically speaking a relatively simple matter to appoint myself as the arbitrator and order that the hearing of the insurance dispute take place within the next couple of weeks. Mr de Greenlaw who appears for Mercantile Mutual opposes the taking of those steps for a number of reasons. He submits firstly that there must be some reason evident as to why the orders previously made should be revoked. I am not troubled by that submission because I think the reason is clear enough, that is that when the orders were previously made I was troubled and expressed my concern about whether I had the power to do what the President could otherwise do. I am satisfied that in his absence I do have the power. 3. The next submission was that I should not sit on appeal, as it were, from orders made previously by myself. I do not believe that the present application involves that concept. What the parties are trying to do is move the case forward as quickly as possible. It is not a question of an appeal from orders previously made. 4. It is next submitted that whatever happens there is no entitlement at present for the Wallaby Grip companies to be present at an arbitration and Mr de Greenlaw frankly submits that if there is to be an insurance dispute he does not want them present. However, r 13(7) of the Tribunal rules is relevant: Pursuant to order of the Tribunal the parties to the action may be present at the hearing of the insurance dispute, and that reason would not cause me to stay my hand. 5. The last point, however, does trouble me, and that is that if I make a determination of the insurance dispute and a party is dissatisfied with that determination the appeal is from me to another judge of the Tribunal. There may be circumstances in which that may not matter but on its face it does not seem to be a very desirable way to proceed. As I indicated at the time I made the previous orders the second thing that I was attempting to do apart from avoiding jurisdictional problems was to follow the procedure the parliament had set forth in the regulations. The advantage to be obtained by appointing myself as the arbitrator is that a hearing might take place in the next couple of weeks, subject to the convenience of the parties and the availability of counsel. I have not explored and I do not know what further evidence the parties may wish to call on the insurance point but I believe that it is likely that a hearing could take place quickly. 6. However, the first appointment before the Registrar is set down for 26 September next. Thereafter the matter will be in his hands. I emphasise a matter which I mentioned at the end of the Court hearing last Monday: that the Registrar is in fact a trained arbitrator. It would seem to me that to appoint myself as the arbitrator would achieve a little but very little in terms of speed of hearing but the potential for embarrassment in the event that a party is dissatisfied with any determination I might make is real in that one of only three other judges who constitute the Tribunal would have to sit in appeal on my decision. The gain is too little for the price. I decline to make the orders sought for those reasons and I confirm the orders previously made. 7. Application is made now pursuant to r 13(7) by the Wallaby Grip companies for leave to appear at the arbitration. My understanding of the terms of settlement is not perfect but I apprehend that, indeed I have been told that the extent of any cover to be provided by Vero Insurance Limited will be less than full indemnity and will vary depending upon the date determined as being the last date on which the plaintiff was employed in an employment to the nature of which is disease was due. There is the potential for the Wallaby Grip companies to be exposed to payment of some of the verdict. That being so, I would grant them leave to appear at the arbitration, and I do so. 8. Today's costs ought be costs in the cause associated with the arbitration.