Franklin v Coal Mines Insurance Ltd & Ors [2024] NSWDDT 11

Franklin v Coal Mines Insurance Ltd & Ors [2024] NSWDDT 11

Mr Franklin established, save as to Alminco, that CMI issued policies covering the last date of employment for each deregistered employer (or was deemed to be the insurer by statute), for work falling within the scope of the coal industry, and fulfilled the statutory criteria for leave. Dual insurance was irrelevant to the entitlement to proceed. Leave granted to proceed against CMI except as to the Alminco claim and the claim in pars 95-103.

Parties
Plaintiff: Luke Verne Franklin; First Defendant: Coal Mines Insurance Ltd; Fourth Defendant: Workers Compensation Nominal Insurer
Jurisdiction
Australia
Judgment Date
16 October 2024
Procedural Posture
Application for Leave to Proceed Against Insurer of Deregistered Companies / Ruling on Motion for Leave Under S 5 of Civil Liability (third Party Claims Against Insurers) Act 2017 (nsw)
Outcome
Leave granted in part. Application otherwise declined in part. Costs reserved.
Legal Topics
Leave to Proceed Against Insurer, Employer's Indemnity Insurance, Deregistered Companies, Dual Insurance, Dust Diseases, Occupational Diseases, Coal Industry Insurance
Insurance Law Workers Compensation Occupational Health and Safety Procedural Law Leave to Proceed Against Insurer Employer's Indemnity Insurance Deregistered Companies Dual Insurance +3 more

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Parties

Luke Verne Franklin

Plaintiff

Coal Mines Insurance Ltd

First Defendant

Workers Compensation Nominal Insurer

Fourth Defendant

Procedural Posture

Application for Leave to Proceed Against Insurer of Deregistered Companies / Ruling on Motion for Leave Under S 5 of Civil Liability (third Party Claims Against Insurers) Act 2017 (nsw)

Legal Issues

  1. 1 Whether applicant entitled to leave to proceed against insurer under Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW)
  2. 2 Whether CMI was insurer on risk for the liabilities of the deregistered companies
  3. 3 Whether relevant insurance policies existed and covered the risk and period in question

Ratio Decidendi

Mr Franklin established, save as to Alminco, that CMI issued policies covering the last date of employment for each deregistered employer (or was deemed to be the insurer by statute), for work falling within the scope of the coal industry, and fulfilled the statutory criteria for leave. Dual insurance was irrelevant to the entitlement to proceed. Leave granted to proceed against CMI except as to the Alminco claim and the claim in pars 95-103.

Court Disposition

Leave granted in part. Application otherwise declined in part. Costs reserved.

Orders

  • Subject to order (2) grant leave nunc pro tunc to commence and continue these proceedings against the first defendant Coal Mines Insurance Ltd in relation to the claims pleaded in the Second Further Amended Statement of Claim against deregistered companies.
  • Decline to grant such leave in relation to the claim pleaded in pars 95-103 of the Second Further Amended Statement of Claim.