LAY v EMPLOYERS MUTUAL LTD [2005] NSWCA 450

Reported Decision : 66 NSWLR 270

New South Wales Court of Appeal

CITATION: LAY v EMPLOYERS MUTUAL LTD [2005] NSWCA 450

HEARING DATE(S): 02/11/2005

JUDGMENT DATE: 19 December 2005

JUDGMENT OF: Santow JA at 1; McColl JA at 2; Bryson JA at 3

DECISION: Appeal allowed with costs.

CATCHWORDS: WORKERS COMPENSATION - Dust diseases - insurance - claim for common law damages against insurer where employer company wound up between end of employment and manifestation of disease - availability of insurance as at time of last employment under Workers Compensation Act 1926 s.18(6B) - effect of repeal of WCA 1926 and whether accrued liability at time of repeal - conflicting views in Dust Diseases Tribunal - while appeal pending, retrospective amendment to s.151AB enacted provision similar to repealed s.18(6B) - appeal decided in accordance with retrospective amendment - reject contention that retrospective amendment breached the Kable principle.

Acts Interpretation Act 1901 (Cth) - s.8 Commonwealth of Australia Constitution Act – s.77(iii) Corporations Act 2001 (Cth) - s.601AH Dust Diseases Tribunal Act 1989 - ss.3(1), 32(1) Interpretation Act 1984 (WA) Interpretation Act 1987 (NSW) - s.30(1)(c) Judiciary Act 1903 (Cth) - s.78B Law Reform (Miscellaneous Provisions) Act 1946 - s.6 Limitation Act (1939) (UK) - s.26 LEGISLATION CITED: Miscellaneous Acts (Workers Compensation) Amendment Act 1987 Supreme Court Act 1970 – ss.19(1), 48(1)(a), 48(2)(f), 75A, 81 Supreme Court Rules 1970 – Pt 40 r3(1) & (3), Pt 51 r6(1), Pt 51 r5(1), Pt 51 r2(1) Workers Compensation Act 1926 – ss. 18(6A) & (6B) Workers Compensation Act 1987 – ss.281, 151AB Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 Workers Compensation Legislation Amendment Act 2004 [No.56] – Sch.1[4] & [6], Sch.6 Workers Compensation Regulations 1926 Workers' Compensation (Dust Diseases) Amendment Act 1967