Depasquale v Allianz Australia Insurance Limited & Anor [2008] NSWDDT 5

Procedural Posture

Dust Diseases Tribunal Application to Proceed Against Insurers Under S 6(4) of the Law Reform (miscellaneous Provisions) Act 1946 / Interlocutory Notice of Motion for Leave; Final Orders Deferred for Short Minutes

Legal Issues

1. 1 ['Whether the plaintiff should be granted leave under s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 to proceed against insurers of Lifesavers Australasia Limited.' 'Whether leave should be refused because s 151AB of the Workers Compensation Act 1987 identified an appropriate insurer.' 'Whether s 151AB applies where there is no insurer on risk when the plaintiff was last employed in employment to the nature of which the disease was due.' "Whether the plaintiff's later, less intense asbestos exposure could be determined on an interlocutory basis to be employment to the nature of which the disease was due."]

Ratio Decidendi

The plaintiff was entitled to relief under s 6(4) because the elements of the section were established and no insurer had established an entitlement to disclaim. Section 151AB did not justify refusing leave on the interlocutory application: it was arguable that the section had no application if there was no insurer on risk when the plaintiff was last employed in employment to the nature of which the disease was due, and the court could not determine on the material before it whether the later lesser asbestos exposure was employment to the nature of which the disease was due or identified a responsible insurer.

Court Disposition

Plaintiff held entitled to relief under s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946, but final orders were deferred pending clarification of the insurer on risk, any amendment to the pleading, and short minutes of order.

Orders

• ['The parties are to bring in short minutes of order in conformity with the reasons.' 'The matter is listed for the handing up of short minutes on Thursday, 7 February 2008.']