Stewart v Nestle Australia Limited [2018] NSWSC 870

Stewart v Nestle Australia Limited [2018] NSWSC 870

Separate representation was warranted because the amended pleading created opposing interests between Employers Mutual and the defendant concerning whether injury was caused during Zurich's earlier public liability risk period or Employers Mutual's later workers compensation risk period. The different statutory...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
18 June 2018
Procedural Posture
Application for Separate Representation / Amended Notice of Motion Filed 13 April 2018 Heard and Determined on 18 June 2018
Outcome
Leave granted for separate representation; costs ordered costs in the cause.
Legal Topics
['separate Representation' 'conflict of Interest' 'interests of Justice' 'case Management' 'host Employer Liability' 'apportionment Between Insurers']
['practice and Procedure' 'insurance' 'personal Injury' 'workers Compensation'] ['separate Representation' 'conflict of Interest' 'interests of Justice' 'case Management' 'host Employer Liability' 'apportionment Between Insurers']

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Procedural Posture

Application for Separate Representation / Amended Notice of Motion Filed 13 April 2018 Heard and Determined on 18 June 2018

Legal Issues

  1. 1 ["Whether leave should be granted for the defendant to have separate legal representation to defend the plaintiff's claim as host employer for the period 6 June 2010 to 26 May 2013." 'Whether the differing interests of Zurich and Employers Mutual created a conflict or potential conflict justifying separate representation.' 'Whether separate representation would avoid additional proceedings and assist the defendant in complying with differing contractual obligations to its insurers.']

Ratio Decidendi

Separate representation was warranted because the amended pleading created opposing interests between Employers Mutual and the defendant concerning whether injury was caused during Zurich's earlier public liability risk period or Employers Mutual's later workers compensation risk period. The different statutory regimes could affect evidence, liability and quantum, and refusal of leave was likely to create injustice by leaving the defendant's interests insufficiently protected, risking duplicative proceedings and complicating compliance with differing insurance obligations.

Court Disposition

Leave granted for separate representation; costs ordered costs in the cause.

Orders

  • ['Leave is granted to the defendant to have separate legal representation from the solicitors and counsel presently appearing for the defendant in order to defend the plaintiff\'s claim for damages from the defendant as "host employer" during the period 6 June 2010 to 26 May 2013.' 'Both Zurich and Employers Mutual...