QBE WORKERS COMPENSATION (NSW) LIMITED v. DOLAN [2004] NSWCA 458

Reported Decision : 62 NSWLR 42

New South Wales Court of Appeal

CITATION : QBE WORKERS COMPENSATION (NSW) LIMITED v. DOLAN [2004] NSWCA 458 HEARING DATE(S) : 25/08/2004 JUDGMENT DATE : 15 December 2004

JUDGMENT OF : Mason P at 1; Beazley JA at 2; Tobias JA at 81 DECISION : 1. Appeal allowed.; 2. Set aside the orders and judgment of Gibb DCJ dated 26 September 2003.; 3. Verdict and judgment for the appellant.; 4. Direct parties to file short minutes of order in relation to the quantum of damages and indemnity.; 5. The respondent to pay the appellant's costs in this Court and in the court below.; 6. The respondent is to have a certificate under the Suitors' Fund Act 1951 (NSW) if so entitled.

CATCHWORDS : ESTOPPEL - Consent judgment between employee and third party tortfeasor - Subsequent proceedings for indemnity brought by employer against third party tortfeasor - Whether employer a privy in interest to claim brought by employee against third party tortfeasor - Whether res judicata estoppel - Whether independent right. - STATUTORY CONSTRUCTION - Workers Compensation Act 1987 (NSW), s.151Z(1)(d) - Construction - Employer's indemnity for compensation paid to employee - Consent judgment - Whether third party tortfeasor was a person in whom a liability was created within the meaning of the section - Whether right to indemnity is an independent right. Law Reform Miscellaneous Provisions Act 1946 LEGISLATION CITED : Suitors' Fund Act 1951 (NSW) Workers Compensation Act 1987 (NSW) Australian Securities Commission v. Marlborough Gold Mines Ltd (1993) 177 CLR 485 Baxter v. Obacelo Pty. Ltd. (2001) 205 CLR 635 Blair v Curran (1939) 62 CLR 464 Effem Foods Pty. Ltd v. Trawl Industries of Australia Pty. Ltd (1993) 43 FCR 510 GIO of New South Wales v. McDonald (1991) 25 NSWLR 492 CASES CITED : Gleeson v J Wippell & Co Ltd [1977] 3 All ER 54 James Hardie & Co. Pty. Limited v. Seltsam Pty. Limited (1998) 196 CLR 53 Manners v. Transfield Pty. Limited (1992) 110 ALR 70 Ramsay v. Pigram (1968) 118 CLR 271 Tickle Industries Pty. Limited v. Hann (1974) 130 CLR 321 Tooth v Tillyer (1956) 95 CLR 605 PARTIES : QBE WORKERS COMPENSATION (NSW) LIMITED (Appellant) FRANCIS DOLAN (Respondent) FILE NUMBER(S) : CA 40881/03 COUNSEL : G.M. Watson SC/N.E. Chen (Appellant) S. Gageler SC/R.C. Tonner (Respondent) SOLICITORS : Gillis Delaney Brown (Appellant) Moray & Agnew (Respondent)