Dust Diseases Tribunal of New South Wales CITATION : Coutts v CSR Ltd (ACN 000 001 276) [2005] NSWDDT 5 Brian Coutts PARTIES : CSR Ltd (ACN 000 001 276) MATTER NUMBER(S) : 106 of 2000 JUDGMENT OF: Duck J at 1 :- Substitution of insurer for employer CATCHWORDS: need for arguable case as to employer's liability LEGISLATION CITED: Law Reform Miscellaneous Provisions Act 1946, ss 6(1), 6(4) DATES OF HEARING: 16/2/05 EX TEMPORE JUDGMENT DATE : 02/16/2005 FOR PLAINTIFF: Mr F Tuscano instructed by Doherty Partners. LEGAL REPRESENTATIVES: FOR DEFENDANT: Mr J Sharpe instructed by Hunt and Hunt. JUDGMENT: 1. The Court has before it a motion pursuant to which the plaintiff seeks leave to join the GIO as a party to the proceedings as insurer of the second defendant J Odwin Shopfitting (International) Pty Ltd. The application is made pursuant to s 6(4) of the Law Reform Miscellaneous Provisions Act 1946. It may be observed that the motion also placed reliance on s 151AB of the Workers Compensation Act 1987 but in the running of the application Mr Tuscano, who appeared for the plaintiff, disclaimed reliance on that latter section. 2. There is much common ground between the approach of the parties. It seems probable on the evidence adduced thus far that there was a policy issued by the Government Insurance of New South Wales to the second defendant, which remained in force up to and including 14 August 1985. The statement of claim upon which the plaintiff relies, that is the fourth amended statement of claim filed on 13 January 2003 pleads employment with the second defendant between 23 June 1981 and "1985" simpliciter. Submissions today suggest that there will be an issue of fact as to when the plaintiff's employment with the second defendant ceased. Further, when the plaintiff was last employed in an employment in the nature of which his disease was due is to be a matter of dispute. Further, whether the plaintiff's condition, that is part or all of it, may properly be treated as a disease at all is a matter to be disputed. 3. Both sides agree that there are issues of fact which will need to be thrashed out at a hearing with all available evidence to be called then. It is to be noted in passing that thus far the plaintiff has not adduced evidence as to his assertion about when he was last employed in an employment to the nature of which his disease was due. When a forensic criticism along these lines was made by learned counsel for the defendant learned counsel for the plaintiff responded by saying at this stage of proceedings all that the Tribunal needs to know is that there is an arguable case as to the employer's liability, the existence of a contract of insurance providing indemnity and the fact that the liability became a charge within the meaning of the words in s 6(1) of the Law Reform Miscellaneous Provisions Act 1946 and that there is a real possibility that the insured will not be able to meet the judgment if one is obtained. 4. The prospect of litigating the facts to be determined as thrown up in the application is daunting in that it will take days and the parties agree that these are matters really to be determined at the hearing in the light of all the evidence that is presented at that time. The practical way to achieve that the matter goes forward so that what is in issue can be dealt with at the hearing is to grant the application. I propose to make the order sought in par 1 of the notice of motion filed on 26 October 2004, deleting, however, reference to s 151AB of the Workers Compensation Act 1987. Further I make the orders sought in par 3 of the motion, that is leave be granted nunc pro tunc to take it back to the time of amendment. 5. Costs of the application should be plaintiff's costs in the cause. Those costs ought not include anything from 10 December 2004. Mr F Tuscano instructed by Doherty Partners appeared for the plaintiff Mr J Sharpe instructed by Hunt and Hunt appeared for the defendant DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.