CSR Timber Products Pty Limited v Weathertex Pty Limited [2013] NSWCA 49

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: CSR Timber Products Pty Limited v Weathertex Pty Limited [2013] NSWCA 49 Hearing dates: 4 June 2012 Decision date: 11 March 2013 Before: Bathurst CJ at [1]; Meagher JA at [2]; Hoeben JA at [49] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. (3) Applicant/appellant (CSR) pay respondent's (Weathertex) costs of the appeal. [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: WORKERS COMPENSATION - disease of gradual onset - claim to indemnity under s 151Z(1)(d) of Workers Compensation Act 1987 by employer liable to pay compensation from earlier employer in employment to nature of which disease was due - whether earlier employer a "person other than the worker's employer" within s 151Z(1) - reference to "worker's employer" in s 151Z(1) is to employer liable to pay compensation under s 9(1) - in relation to disease of gradual onset that employer is "last" employer under s 15(1)(b)

ESTOPPEL - issue estoppel - worker takes proceedings for compensation in relation to disease of gradual onset against two employers - Workers Compensation Commission holds that worker entitled to compensation from "last" employer in employment to nature of which disease due - whether that employer prevented by issue estoppel from claiming indemnity from earlier employer under s 151Z(1)(d) of Workers Compensation Act 1987 - no issue estoppel - not necessary for Commission to decide whether disease not contracted during period of employment by earlier employer Legislation Cited: District Court Act 1973 Interpretation Act 1987 Uniform Civil Procedure Rules 2005 Workers Compensation (Benefits) Amendment Act 1989 Workers Compensation Act 1987 Workers' Compensation Act 1926 Workmen's Compensation Act 1897 (UK) Workmen's Compensation Act 1906 (UK) Workmen's Compensation Act 1910 Workmen's Compensation Act 1916 Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: Ainslie v Ainslie [1927] HCA 23; 39 CLR 381 Allianz Australia Ltd v Sim [2012] NSWCA 68 Amaca Pty Ltd v Booth [2011] HCA 53; 86 ALJR 172 Blair v Curran [1939] HCA 23; 62 CLR 464 Brewer v Brewer [1953] HCA 19; 88 CLR 1 CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 Connair Pty Ltd v Frederiksen [1979] HCA 25; 142 CLR 485 Cory & Son Ltd v France Fenwick & Co Ltd [1911] 1 KB 114 Crisp v Chapman [1994] NSWCA 73; 10 NSWCCR 492 Dingle v Associated Newspapers Ltd [1961] 2 QB 162 Egri v DRG Australia Ltd (1988) 19 NSWLR 600 Elayoubi bhnf Kolled v Zipser [2008] NSWCA 335 Gett v Tabet [2009] NSWCA 76; 254 ALR 504 Grant v Sun Shipping Co Ltd [1948] AC 549 Grate Lace Pty Ltd v Theiss Watkins White (Constructions) Pty Ltd [1995] NSWCA 183; 12 NSWCCR 365 Griffiths v The Trustees of the Parliamentary Contributory Superannuation Fund [2012] NSWCA 231 I&J Foods Pty Ltd v Bergzam Pty Ltd (1997) 14 NSWCCR 486 Kelly v Glenroc Pastoral Co Pty Ltd [1994] NSWCA 162; 10 NSWCCR 178 Kempsey District Hospital v Thackham (1995) 36 NSWLR 492 Kornjaca v Steel Mains Pty Ltd [1974] 1 NSWLR 343 Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363 Oliver v Nautilus Steam Shipping Company Ltd [1903] 2 KB 639 Page v Burtwell [1908] 2 KB 758 Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd [1975] HCA 28; 132 CLR 336 Sienkiewicz v Greif (UK) Ltd [2011] 2 WLR 523 Smith v Mann [1932] HCA 30; 47 CLR 426 Somodaj v Australian Iron & Steel Ltd [1963] HCA 50; 109 CLR 285 Strong v Woolworths [2012] HCA 5; 86 ALJR 267 Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; 186 CLR 574 Wilson v State Rail Authority of New South Wales [2010] NSWCA 198; 78 NSWLR 704 Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 14 May 1987, 12205-12213 Category: Principal judgment Parties: CSR Timber Products Pty Limited (Applicant) Weathertex Pty Limited (Respondent) Representation: Counsel: M J Neil QC, B C A Bradley (Applicant/Appellant) R J H Darke SC (Respondent) Solicitors: Leigh Virtue & Associates (Applicant/Appellant) Edwards Michael Lawyers (Respondent) File Number(s): 2010/101169 Decision under appeal Date of Decision: 2011-04-01 00:00:00 Before: Kearns DCJ File Number(s): 2010/101169