CGU Insurance Limited v AAI Limited; CGU Insurance Limited v AAI Limited (No 2) [2017] NSWCA 58

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: CGU Insurance Limited v AAI Limited; CGU Insurance Limited v AAI Limited (No 2) [2017] NSWCA 58 Hearing dates: On the papers Decision date: 28 March 2017 Before: McColl JA; Gleeson JA; Emmett AJA Decision: The Court makes the following orders in addition to those made on 12 December 2016: 5. The respondents pay the appellant's costs of the appeal. 6. The matter be remitted to the Dust Diseases Tribunal for the purpose of dealing with any application by the cross-claimant in the Tribunal for a "Bullock" order in relation to the costs that the cross-claimant has been ordered to pay to the second cross-defendant pursuant to order 3(d). 7. Any costs that the first respondent is ordered to pay to the second respondent under such a "Bullock" order on remitter are to include the costs that the second respondent has been ordered to pay to the appellant pursuant to order 6 and the second respondent's costs of the appeal. 8. The parties' costs of the motion of 15 December 2016 are to be treated as part of their respective costs of any application made to the Tribunal on remitter. 9. The parties' costs of the motion filed on 21 December 2016 are to be treated as their respective costs of the appeal. 10. The motions of 15 December 2016 and 21 December 2016 are otherwise dismissed. Catchwords: COSTS – Bullock order – whether Bullock order should be made in respect of costs of proceedings in Dust Diseases Tribunal below – whether Bullock order should be made in respect of costs of appeal – whether reasonable to join both defendants in cross-claim in proceedings below – importance of evidence of conduct of parties in Dust Diseases Tribunal below Cases Cited: CGU Insurance Limited v AAI Limited; CGU Insurance Limited v AAI Limited [2016] NSWCA 335 Category: Costs Parties: CGU Insurance Limited (Appellant) AAI Limited (First Respondent) Amaca Pty Limited (Second Respondent) Representation: Counsel: D Hooke SC with T Bors (Appellant) B Walker SC with DT Miller SC and MJ Smith (First Respondent) DJ Russell SC (Second Respondent)