Coveney v Asbestos Injuries Compensation Fund Ltd; Davis v Asbestos Injuries Compensation Fund Ltd; WorkCover Queensland v Asbestos Injuries Compensation Fund Ltd [2024] NSWCA 317

The exclusion in the relevant definitions of 'Personal Asbestos Claim' and 'Payable Liability' does not operate to subtract from the claims of Messrs Coveney and Davis the amounts already received as workers compensation, as their successful damages claims against Amaca were not, and could not have been, recovered under a Worker's Compensation Scheme or Policy. Therefore, the trustee (AICF) is justified in paying the judgment debts in full; AICF is not precluded from paying claimants the balance of their damages awards irrespective of any prior statutory compensation received or charge asserted by WorkCover Queensland.

Parties: Applicant in 2024/390046 and Purported Appellant in 2024/362958: Eric Thomas Coveney; Applicant in 2024/373482: Barry Edward Davis; Applicant in 2024/372881: WorkCover Queensland; First Respondent in All Proceedings: Asbestos Injuries Compensation Fund Ltd as trustee for the Asbestos Injuries Compensation Fund; Second Respondent in All Proceedings: Attorney-General (NSW); Third Respondent in All Proceedings: James Hardie 117 Pty Ltd
Jurisdiction: Australia
Judgment Date: 24 December 2024
Procedural Posture: Appeal / Decision on Appeal From Judicial Advice (supreme Court of Nsw, Equity Division)
Outcome: Appeals allowed; leave granted; orders of the primary judge set aside; trustee advised it is justified in paying the full judgment debts; parties to formulate consequential orders.
Legal Topics: Trustee Powers and Duties, Workers Compensation Clawback, Judicial Advice to Trustee, Statutory Construction of Compensation Schemes, Interplay of Compensation Payments and Damages Claims

Trusts Compensation Law Statutory Interpretation Trustee Powers and Duties Workers Compensation Clawback Judicial Advice to Trustee Statutory Construction of Compensation Schemes Interplay of Compensation Payments and Damages Claims

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Parties

Eric Thomas Coveney

Applicant in 2024/390046 and Purported Appellant in 2024/362958

Barry Edward Davis

Applicant in 2024/373482

WorkCover Queensland

Applicant in 2024/372881

Asbestos Injuries Compensation Fund Ltd as trustee for the Asbestos Injuries Compensation Fund

First Respondent in All Proceedings

Attorney-General (NSW)

Second Respondent in All Proceedings

James Hardie 117 Pty Ltd

Third Respondent in All Proceedings

Procedural Posture

Appeal / Decision on Appeal From Judicial Advice (supreme Court of Nsw, Equity Division)

Legal Issues

1 Whether the trustee (AICF) is justified in not making payments to discharge judgment debts owed to claimants where those sums correspond to amounts previously received as workers compensation under Queensland law.
2 Whether compensation payments to claimants under interstate (Queensland) workers compensation schemes are to be deducted from 'Payable Liabilities' under the James Hardie trust scheme.
3 Proper construction of the exclusions in trust and funding instruments regarding payments 'recovered or recoverable under a Worker's Compensation Scheme or Policy'.

Ratio Decidendi

Court Disposition

Appeals allowed; leave granted; orders of the primary judge set aside; trustee advised it is justified in paying the full judgment debts; parties to formulate consequential orders.

Orders

Attorney-General of NSW, James Hardie 117 Pty Ltd, and WorkCover Queensland joined as respondents in all relevant proceedings.
Leave to appeal granted to all applicants.