QBE Insurance (Australia) Ltd v Dust Diseases Tribunal of NSW [2011] NSWCA 421

QBE Insurance (Australia) Ltd v Dust Diseases Tribunal of NSW [2011] NSWCA 421

The Tribunal lacked power to appoint QBE as designated insurer under s 151AC(4) because the statutory precondition for s 151AC was not met: there was no dispute as to which of two or more insurers was liable to indemnify Dai John under s 151AB. AGC could not be liable because it ceased to insure Dai John before either possible relevant date, and no other insurer was identified. The primary judge's assumption that a dispute existed merely because there were two insurers and neither had agreed to indemnify Dai John had no evidentiary basis. Further, insofar as the reasoning treated the date chosen by Mr Costigan for his damages claim as the relevant date for the indivisible progressive...

Jurisdiction
Australia
Judgment Date
22 December 2011
Procedural Posture
Application Under S 69 of the Supreme Court Act 1970 to Quash Orders of the Dust Diseases Tribunal / Court of Appeal Review of Dust Diseases Tribunal Decision Dated 21 April 2011
Outcome
Application allowed; orders of the Dust Diseases Tribunal appointing QBE as designated insurer quashed.
Legal Topics
['jurisdictional Error' 'error of Law on the Face of the Record' 'dust Diseases Tribunal' 'designated Insurer' 'occupational Diseases' 'divisible and Indivisible Injuries' 'indemnity Under Workers Compensation Insurance']
['administrative Law' 'workers Compensation' 'insurance Law'] ['jurisdictional Error' 'error of Law on the Face of the Record' 'dust Diseases Tribunal' 'designated Insurer' 'occupational Diseases' 'divisible and Indivisible Injuries' 'indemnity Under Workers Compensation Insurance']

Case Brief

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Procedural Posture

Application Under S 69 of the Supreme Court Act 1970 to Quash Orders of the Dust Diseases Tribunal / Court of Appeal Review of Dust Diseases Tribunal Decision Dated 21 April 2011

Legal Issues

  1. 1 ['Whether the Dust Diseases Tribunal had power under s 151AC(4) of the Workers Compensation Act 1987 to appoint QBE Insurance (Australia) Ltd as the designated insurer.' 'Whether there was a dispute as to which of 2 or more insurers was liable to indemnify Dai John under s 151AB, so as to engage s 151AC.' 'Whether the primary judge erred by treating January 1974, the date to which Mr Costigan confined his damages claim, as the relevant date for s 151AB(1) in respect of the indivisible injury of progressive massive fibrosis.' "Whether the Tribunal's decision was vitiated by jurisdictional error or error of law on the face of the record."]

Ratio Decidendi

The Tribunal lacked power to appoint QBE as designated insurer under s 151AC(4) because the statutory precondition for s 151AC was not met: there was no dispute as to which of two or more insurers was liable to indemnify Dai John under s 151AB. AGC could not be liable because it ceased to insure Dai John before either possible relevant date, and no other insurer was identified. The primary judge's assumption that a dispute existed merely because there were two insurers and neither had agreed to indemnify Dai John had no evidentiary basis. Further, insofar as the reasoning treated the date chosen by Mr Costigan for his damages claim as the relevant date for the indivisible progressive...

Court Disposition

Application allowed; orders of the Dust Diseases Tribunal appointing QBE as designated insurer quashed.

Orders

  • ["An order pursuant to s 69 of the Supreme Court Act quashing the orders made on 21 April 2011 in proceedings 307/2000 in the Dust Diseases Tribunal appointing QBE Insurance (Australia) Ltd as designated insurer for the purposes of s 151AC of the Workers Compensation Act and ordering that the costs of the...