QBE Insurance (Australia) Ltd v Dust Diseases Tribunal of NSW [2011] NSWCA 421

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: QBE Insurance (Australia) Ltd v Dust Diseases Tribunal of NSW [2011] NSWCA 421 Hearing dates: 24 November 2011 Decision date: 22 December 2011 Before: Beazley JA at [1] Macfarlan JA at [4] Meagher JA at [31] Decision: (1) An order pursuant to s 69 of the Supreme Court Act quashing the orders made on 21 April 2011 in proceedings 307/2000 in the Dust Diseases Tribunal appointing QBE Insurance (Australia) Ltd as designated insurer for the purposes of s 151AC of the Workers Compensation Act and ordering that the costs of the application for that order be the plaintiff's costs in the cause. (2) Order that the third defendant, Michael Costigan, pay the costs of QBE Insurance (Australia) Ltd of the proceedings in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ADMINISTRATIVE LAW - proceedings in the Dust Diseases Tribunal - primary judge made an order pursuant to s 151AC Workers Compensation Act 1987 appointing appellant insurer as the designated insurer liable to indemnify defendant employer under s 151AB - no dispute between insurers as to which was liable to indemnify the employer - whether primary judge's decision was vitiated by jurisdictional error

WORKERS COMPENSATION - worker claimed damages in the Dust Diseases Tribunal in respect of divisible and indivisible injuries - worker continued relevant employment with defendant employer after appellant insurer went off risk but confined his damages claim to a shorter period - primary judge concluded that the last date to which worker's claim was expressed to relate was the relevant date for the purposes of s 151AB(1) Workers Compensation Act 1987 rather than the later date when worker's relevant employment ceased - whether conclusion was erroneous insofar as it related to the worker's indivisible injury claim Legislation Cited: Supreme Court Act 1970 Workers Compensation Act 1926 Workers Compensation Act 1987 Cases Cited: CIC Workers' Compensation (NSW) Ltd v Alcan Australia Ltd (1994) 35 NSWLR 169 CIC Workers' Compensation (NSW) Ltd v Kellogg (Australia) Pty Ltd (1996) 40 NSWLR 422 FAI Traders Insurance Co Ltd v HIH Winterthur Workers Compensation (NSW) Pty Ltd (1998) 45 NSWLR 257 Government Insurance Office of New South Wales v Colgate Palmolive Pty Ltd [2001] NSWCA 24; 50 NSWLR 729 Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531 MMI Insurance Compensation (NSW) Ltd v Baker (1990) 41 NSWLR 289 Orica Ltd v CGU Insurance Ltd [2003] NSWCA 331; 59 NSWLR 14 Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10 WorkCover Authority of New South Wales v Chubb Australia Ltd [2000] NSWCA 221 Category: Principal judgment Parties: QBE Insurance (Australia) Ltd (Applicant) Dust Diseases Tribunal of NSW (First Respondent) Dai John Excavating & Co Pty Ltd (In liquidation) (Second Respondent) Michael Costigan (Third Respondent) Sydney Water (Fourth Respondent) Wyvell Pty Ltd (formerly known as Harnett Constructions Pty Ltd) (Fifth Respondent) Representation: G F Little SC/T S Little (Applicant) D Letcher QC/S Tzouganatos (Third Respondent) Curwoods Lawyers (Applicant) Turner Freeman Lawyers (Third Respondent) File Number(s): CA 2011/289607 Decision under appeal Citation: Costigan v QBE Insurance (Australia) Ltd Date of Decision: 2011-04-21 00:00:00 Before: O'Meally PDDT File Number(s): DDT 307/2000