Accident Compensation Commission & Ors v Ce Heath Underwriting & Insurance (Australia) Pty Ltd & Ors; Baltica General Insurance Co Ltd; Royal Insurance Australia Limited

[1993] HCATrans 69

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M71 of 1992

B e t w e e n -

ACCIDENT COMPENSATION

COMMISSION & ORS

Applicants

and

C.E. HEATH UNDERWRITING & ORS

Respondents

Office of the Registry

Melbourne No M72 of 1992

B e t w e e n -

ACCIDENT COMPENSATION

COMMISSION & ORS

Applicants

and

BALTICA GENERAL INSURANCE CO

LTD

Respondent

Office of the Registry

Melbourne No M73 of 1992

1 12/3/93

B e t w e e n -

ACCIDENT COMPENSATION

COMMISSION

Applicant

and

ROYAL INSURANCE AUSTRALIA

LIMITED

Respondent

Applications for special leave

to appeal

MASON CJ
BRENNAN J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 MARCH 1993, AT 9.32 AM

Copyright in the High Court of Australia

MR R. MERKEL, QC:  May it please the Court, I appear with my

learned friend, MR M.F. FLEMING, on behalf of the

applicants in each of the matters.	(instructed by
Purves Clarke Richards)

MR F.H. CALLAWAY, QC:  May it please the Court, I appear

with my learned friend, MR M. O'LOGHLEN, QC, for

the respondents in each application. (instructed

by Lander & Rogers)

MASON CJ:  Mr Callaway, you oppose the applications, I take

it?

MR CALLAWAY:	We do, Your Honour, yes.
MASON CJ:	And on what grounds?

MR CALLAWAY: Substantially, Your Honour, does Your Honour

desire me just to outline it, or just to -

MASON CJ:  No, I just want an identification of the ground,

or grounds, of the opposition, that is all.

MR CALLAWAY:  I am sorry, Your Honour. In substance this,

that there is only one point which in our

submission might be regarded as a special leave

point in appropriate circumstances and that is the

successive insurers' contribution point. All the

other points are - - -

MASON CJ:	The two other points.
MR CALLAWAY:	Yes, Your Honour, the two other points depend

entirely on the interpretation of statutory
provisions which are peculiar to Victoria and which
although are not defunct are moribund, because they

2   12/3/93

are subject to a sunset clause which operated on

1 July 1982. The common law settlement point is

a discrete issue, it arises only in Mccumber.

Mccumber rais·es the common law settlement point, it

does not raise the contribution point or the date

of entry point. The other two cases both raise the

contribution point and the date of entry point,

they do not touch on the common law settlement

point.

So for one moment, putting the contribution issue to one side, at least in McCumber's case as a

synopsis of our submission, there simply is no

point of general public importance at all. That is

purely interpretation of statutory provisions and,

indeed, it is further complicated by the facts -

that is, the counsel's back sheet case.

If one then moves back to the other two cases,

Carter and Senzo, there the contribution issue

arises in a form which is affected by the agreed

facts. So that whatever view one takes of the

decision of the New South Wales Court of Appeal,

this is not an appropriate occasion to compare the

two judgments, and there are other things we wish

to say about that. But in addition, the

contribution point is linked to the date of injury

point so that it is not possible to limit special
leave to the contribution point and get rid of the

date of injury point.

That is another reason why in our submission

it is not an appropriate vehicle. The point, to

the extent it arises at all, arises in a matrix of moribund statutory provisions, not only as regards the contribution point but as regards the siamese

twin - the date of injury point. That is the gist

of the submission, Your Honour.

MASON CJ: Yes, thank you.

Mr Merkel, at this stage we will await what

Mr Callaway has to say on the issues relating to

date of injury and contribution. But we do want to

hear you on the third issue, that is the common law

settlement issue at this stage.

MR MERKEL:  If Your Honours please, the issue arises in a

very elementary way and that is that under the

Workers Compensation Act there is a statutory

policy which has a common law extension which

applies when an additional premium is paid. The

common law extension has an unlimited liability.
The common law and the premium is calculated

accordingly. The common law issue arises in

Mccumber as a result of terms of settlement which

3   12/3/93

are set out at page 53 of the application book at

lines 20 to 30.

What had· happened is that after commencing a common law damages claim the matter was settled

between counsel for the employer and counsel for

the worker for $135,000. Part of the settlement

anticipated an award for an unstated amount which
would be obtained at the Workers Compensation Board

and it is pursuant to that award that a claim for

supplementation would arise. The point that arises

in the question of law is that when one looks at

the relevant statutory provisions, and they are

sections 2B(5) and 2C(l), if I can take

Your Honours to those.	2B(5) is at page 229 of the
application book.

The additional amount, which is defined in

2B(5) at the top of page 229, which is the

retrospectively increased liability to pay

compensation, only arises when the:

compensation under this Act is in force

immediately prior to 1 July 1975 -

and that is changed by later dates and later Acts,

in respect of an injury of a worker arising

out of or in the course of the employment of

the worker before 1 July is increased by

virtue of the Workers Compensation (Amendment)

Act 1975.

And then 2C(l) provides:

Where an additional amount is payable by an

employer as compensation by virtue of

section 2A(3) -

2A(3) is at page 228 which says that the increased

compensation is payable irrespective of the date of
injury.	The point that we say arises is the proper

construction of the provisions and it is allied to

the general submissions we make on date of injury

and contribution that the scheme was intended to

cover retrospective increases in respect of

uninsured amounts. We say that the proper view to

be taken of McCumber's case is that the

compensation was paid not by virtue of these

statutory provisions alone, but by virtue of the

common law settlement which anticipated an award, and that part, and it may be said that indeed the

whole of the indemnity, it may not matter for our

purposes, of the insurer in respect of the $135,000 paid was sourced in the common law settlement which is antecedent to the award.

4   12/3/93

So we do not look behind the award, we accept

it, but we say that the statutory scheme on a

proper construction, having regard to its purpose,

should not award recompense unless the sole source

of obligation in respect of the amount paid as
compensation are the statutory provisions

increasing retrospectively the amounts of

compensation. We say that that requires a view to

be taken of the purpose of the scheme and we say

that that in substance is the common law settlement

point.

BRENNAN J:  Do you accept that the Board's award is within

jurisdiction?

MR MERKEL:  Yes, Your Honour, we do not raise, and have not

raised the issue that the Board's award, until set

aside, is beyond jurisdiction. If we were to raise

the point that it was beyond jurisdiction we would

have to raise the point by seeking to set it aside

and these cases have proceeded on the basis that

the award is within jurisdiction.

BRENNAN J:  If it is within jurisdiction, does that not

establish the conformity of the award with the

provisions of the Act?

MR MERKEL:  If, Your Honour, the provisions of the Act were

construed as in part by virtue of section 2A, the

answer would be yes. But if the provisions were

construed in the way that we wish to construe them,

which is solely by virtue of section 2A, the answer would be no, because the source of liability to pay

the $135,000 was also the antecedent common law

settlement which preceded the award. So it really

turns on the point whether "by virtue of" means

solely by virtue of, which we say is the intent and

purport of the statutory scheme.

BRENNAN J: Why is that? If there should be an antecedent

agreement that the antecedent agreement is such as

to enliven the jurisdiction of the Board and the

payment is made by virtue of 2A(3), why is that not

a sufficient fulfillment of the statutory

requirements, even though there is a preliminary,

or basic if you like, source in the agreement?

MR MERKEL:  We would say, Your Honour, there is an

additional source of liability for the $135,000

which is said to include an additional amount. I

accept that we cannot argue on the face of the

award that it is not a source of liability, but we

say it must be the only source of liability and

that is not this case. That is the issue that

arises on the common law settlement and to that

extent it is a discrete issue because there is no

question of the date of injury or contribution.

12/3/93

MASON CJ: Yes, thank you, Mr Merkel. Mr Callaway?

MR CALLAWAY:  If the Court pleases. Your Honours, I said a

moment ago that the only, in our submission,

arguable special leave point was the contribution

point. But in our submission these are not the

right circumstances in which to consider it and

there are a number of reasons for that. The first

emerges from the passage in the Full Court's

judgment at page 134 of the application book. At

page 134, line 3, Their Honours said:

It is to be emphasised that a consequence

of the agreed circumstances in each of the

relevant appeals is that the co-insurers were

themselves each liable under their policies in

conjunction with their liability under the Act

(by virtue of the Treasurer's requirement) to

indemnify their insured for the identical loss represented by the compensation payable to the

worker, the entitlement of whom was satisfied

by the insurer which claimed contribution.

And the three important components of that

paragraph are the "consequence of the agreed

circumstances" because these cases were fought, to

a large extent they are not exclusively, on agreed

facts. A consequence of the agreed circumstances,

each of the co-insurers was liable to indemnify the

insured for the identical loss and the entitlement

was satisfied by the insurer which claimed

contribution. Similarly at page 136, in a sentence

which begins at line 14 but the relevant part at

line 16, Their Honours say:

It would be fruitless to agonize over the

correct classification or label for the

insurance with which we are here concerned but

which admittedly had the consequence that more

than one insurer was legally bound (by virtue

of the Act as well as the policy) to meet the

payments which another insurer of the employer

was also legally bound to and did make.

Given that degree of common ground, those

agreed circumstances, the Albion Insurance case

must apply on these agreed facts. So that if I
might take Your Honours briefly to Albion, because

it does not require much to be read, we have some

photocopies available for the Court - - -

BRENNAN J: Is it a matter of reaching those conclusions

upon the facts that were agreed, or is it a

question of attributing a particular consequence to

the agreed facts?

6   12/3/93

MR CALLAWAY: It is the latter, Your Honour, but the extent

of the agreement brings one fairly and squarely

within what was said in Albion. The point can

probably be made sufficiently - I will give the

Court two references - but it can be made

sufficiently by reference to one sentence in the

judgment of the Chief Justice Sir Garfield Barwick,

Mr Justice McTiernan and Mr Justice Menzies. At

page 346, about point 7 of the page Their Honours

say in a paragraph which begins "It is at this

point". Three sentences later Their Honours say:

The matter can, we think, be decided simply

enough by inquiring whether payment by one

insurer of the policy holder's claim for

indemnity would provide the other insurer with

a defence to a like claim against it.

In our submission, that follows as night

follows day, in a case where as a result of the agreed c"ircumstances each of the co-insurers is

liable to indemnify the insured for the identical

loss represented by the compensation payable to the

worker, the entitlement of whom was satisfied by

the insurer who claimed contribution.

GAUDRON J: But does that not make an assumption about the

date of injury? Does it not proceed on the

assumption that an injury occurred every day?

MR CALLAWAY:  Those were in effect the agreed facts,

Your Honour. It was agreed that injuries occurred,

if not every -

GAUDRON J: But that is an assumption.

MR CALLAWAY:  In substance occurred from time to time. The

way the Act works, of course, is that if one has

two successive injuries and then supervening in

capacity, each of those injuries contributing to

the supervening incapacity, the employer can claim

against either insurer for the whole amount of the

compensation.

The contribution conclusion of the courts

below is not surprising because otherwise, as the
learned primary judge pointed out, it would be left

to the whim or election of the employer which

insurer to claim against. Each insurer is, on

these facts, liable for the whole of the loss and the identical loss. Once one gets to that point,

Albion applies, whatever one might wish to submit about the New South Wales Court of Appeal decision,

whether it is right or wrong or distinguishable,

Albion applies here.

12/3/93

BRENNAN J:  But is the principle of Albion amenable to

variation or abrogation, perhaps, by the terms of

the present statute? Is that not the question? In

other words, on a true construction of this Act, is

it the insurer in respect of the last injury who is

liable to bear the liability?

MR CALLAWAY:	Your Honour, as I understand it that was not contended by anyone in either of the courts below.
It was accepted in the courts below that each
insurer was liable for the whole amount of the
compensation.  The proposition that I mentioned to
Her Honour a moment ago was common ground below,
that if you have successive injuries -

MASON CJ:  Can we ask Mr Merkel whether that is so. Has

that been common ground, Mr Merkel?

MR MERKEL:  Your Honour, no. The common ground was the

anteced~nt facts which were that injuries occurred
throughout employment and under the policy which
rendered a statutory - under the policy there was

an obligation to pay compensation at the rate

prevailing at the date of commencement of the

policy, then the statute imposed a retrospective

liability in respect of the increased amount. That

was the substance of the agreed fact. The effect
was that the worker as a result could have called

upon successive insurers but we said did not call
upon successive insurers, only called upon and

lodged a claim with the last insurer on risk, who

in fact was liable for the whole of the amount

under its policy of indemnity which included no

uninsured amount and no retrospective amount.

Therefore the last insurer paid and we say

that that was how it was put. Then there was the

contribution issue as to whether there was a right of contribution under the Albion principle so that

contributing insurers could claim their

contribution as compensation paid under the Act,

rather than contribution.

BRENNAN J:  The right to recompense out of the fund turns on

whether there has been payment by the claimant,

does it not?

MR MERKEL:	We say that is so, Your Honour, although the Full Court took a broader view and said if there
was merely liability, not payment, that may give
rise to the entitlement.  But we would say that
cannot be right because that would mean everyone
had an entitlement to the full amount and we say
that payment, clearly, when one analyzes it, is the
critical factor.  But that would be the critical
factor for contribution.

12/3/93

BRENNAN J: Perhaps the critical factor is the meaning of

"required to pay", is it not, rather than payment.

MR MERKEL:  And also associated with the word "recompense",

Your Honour.

MASON CJ: Yes, Mr Callaway.

MR CALLAWAY:  So, Your Honours, it was not suggested below

that the first insurer was not liable. It was

simply that in every case the claim was made on the

last insurer which, given the terms of the

contribution agreement, would certainly not be

surprising after 1980. But it is reflected in the

judgments below that the principle is that each

insurer was at risk and the importance of the

passage at 136 is that each insurer was at risk for

the identical loss. That attracts Albion.

This is not a case where there is any need to

go beyond Albion. No doubt we would wish to do so

in the alternative if special leave were granted,

but in fact the passage at 136 shows that this.is a

peculiarly simple case of double insurance.

Your Honour, there is no question here, it is

submitted, of the statute modifying Albion.	The
question is whether there is a right of

contribution under the general law that one would

then take into account in construing the statute.

I think it is correct to say that no one on

either side has ever submitted that the statute

should be understood as modifying Albion. There

has been dispute about whether there is a right to

contribution, but not an effect of the statute on

Albion.

BRENNAN J:	The question then becomes whether or not the claimant contributors have paid or been required to
pay, is that right, in terms of the statute?
MR CALLAWAY: Broadly, Your Honour, yes. The Full Court

explains why, as does Mr Justice Tadgell. The contributions should be regarded as having the

character of compensation within the precise words

of the section. But that, of course, is purely

statutory, and all four judges who have considered

the matter below have come to the same conclusion.

It is submitted that on no view is that a matter of

public importance. Our concession is that the

double insurance point is interesting if it

properly arose, but it does not.

Secondly, and I need not elaborate this point

at length because I mentioned it at the summary at

the start in answer to Your Honour's question.	The
point cannot be conveniently separated from the

9   12/3/93

date of injury point. So that the contribution

point is not only affected by the agreed

circumstances, as the Full Court says, and arises

in a peculiar statutory matrix, as Your Honour

Justice Brennan has in mind in the question

Your Honour asked me a moment ago, but in addition

is linked to another point which is purely

statutory and which is, as I said a moment ago, is

its Siamese twin. So the point, for what it is

worth, is embedded in a matrix of moribund

provisions peculiar to this State.

The unsuitability of these cases as a vehicle,

if the Court pleases, emerges fairly clearly from

the affidavit, and I do not ask Your Honours to go
to it because Your Honours will recall the pages I

have in mind. At 211 to 213 the questions of law

are set out and apart from the contribution issue,
all the questions of law are phrased in terms of
"within the meaning of section such-and-such", or

"on the true construction of the relevant

provisions".

If one goes to page 69 of the appeal book one

gets, without wishing to labour the submission,

another example of the importance of the agreed
facts in these cases. At page 69 His Honour the

learned primary judge is dealing with the Fonyodi

case but there was a similar agreed fact in Senzo.

At line 5 His Honour says:

The key to the argument for the defendant

is the agreed fact that the worker sustained a

compensable injury on every day - i.e. at

every point of time - during his employment by

the employer.

So there is another example of an agreed

fact - in fact I think Your Honour Justice Gaudron

referred to in so many words earlier this morning -

being crucial to the resolution of these issues.

Your Honours, in our submission it is entirely

appropriate in a peculiarly State matter that the

parties interested in the industry should agree

facts and should submit test cases to the supreme

court for resolution. But when those issues have

been resolved unanimously by the four judges who

have considered them, then to say that they are

test cases and so forth does not justify a further

appeal to this Court unless there is some genuinely

important point which is conveniently and
appropriately raised by the form the parties chose

for their test cases.

The third submission on this branch of the

application has to do with the decision of the New

10   12/3/93

South Wales Court of Appeal in the Manufacturers

Mutual case. The special leave day is not the

occasion for us to make submissions about whether

that case can be distinguished or whether it is

wrong. The crucial point, in our respectful

submission, emerges from pages 208 to 209 of the

appeal book in Mr Tulloch's affidavit.

At page 208 in paragraph 34 the deponent

refers to the New South Wales decision and says:

The Full Court refused to follow and indeed was in direct conflict with the New South

Wales Court of Appeal decision in MMI

Ltd ..... which denied that there is a right to

contribution between successive workers

compensation insurers where an employer

seeking indemnity is liable to pay

compensation resulting from injuries occurring

in successive insurance periods.

But the deponent then says:

Further, the Applicants contend that,

regardless of that issue, one could not find

in the amounts paid as contribution any

distinct amount increased by virtue of the

retrospectivity provisions of the recompense

scheme.

So that the applicant's case is that it is not

necessary in the end to determine the correctness of what the Court of Appeal held or whether there is indeed conflict between the two decisions.

Your Honours, the second submission we make

about the Manufacturers Mutual case, I am very

conscious there is a_ submission that counsel is

always tempted to make when part of the special

leave case is that there are said to be conflicting

appellate decisions. It sometimes perhaps has more justification than others. The MMI case was

extempore, the judgment was extempore, and
delivered by Their Honours after a half day

hearing. His Honour Mr Justice Samuels in the MMI

case says that the double insurance point was

treated rather cavalierly in argument in the Full

Court. There can be no criticism of counsel if the

case only went for half a day.

The Victorian first instance decision was not

available to Their Honours, and necessarily because

of the chronology the Court of Appeal could not be aware of the detailed reserved consideration given

to this question by the Full Court in this State.

The first instance decision in South Australia, in

Australian Eagle, before Mr Justice King, which

11   12/3/93

accords with the Victorian decision was not cited

to the Court of Appeal.

In a case like that two things follow, in our

respectful submission. The first is it may well be

that the Court of Appeal will reconsider the matter

and distinguish or overrule MMI when Their Honours

have full argument and the opportunity for a

reserve judgment and the benefit of the South

Australian and now the Victorian decisions being

cited to them.

The second is that in a case like this it is

submitted that as a matter of fairness we should

not be required to bear the burden of a second

appeal if the substantial reason is to test the

correctness of the New South Wales decision. As I

say, I am conscious that submission can always be

made where there are two decisions. But in a case

like this where one is weighing a carefully

consider-ed, elaborate, reserved decision, on

carefully constructed test cases of importance to

this State and only to this State, to the extent

they turn on the statutory provisions against an

extempore judgment after half a day in which an

existing authority was not cited and a later
authority was not available, it may well be, as a

matter of fairness, that it is better to wait and see whether there is a problem in New South Wales

and, if there is, somebody with an interest in

resolving that problem approach this Court and

probably, almost certainly, approach the Court with

a more suitable vehicle.

Your Honours, there is just one footnote I

should add to the submissions so far as they relate

to contribution and date of injury. There is a
passage in the affidavit which is, in our

respectful submission, liable to cause a bit of

confusion. At page 200 the affidavit manages to

make it sound as if Senzo was a terrible mess, and

then the typist has managed to put the commas in

the wrong place as well. Reconstructing it as best

one can, page 200, line 10, we think that the way

it is intended to read is:

Notwithstanding that during the entire period

C.E. Heath was on risk, no new injuries were

able to be the subject of recompense which

ceased in respect thereof from 1 July 1982.

C.E. Heath, in its recompense application,

claimed the date of injury for recompense to

it to be 25 January 1973. Each contributing

insurer also claimed recompense for the amount
contributed. At trial, Counsel for the

insurers agreed both claims as made could not

succeed. As a result of the Full Court

12   12/3/93

decision each insurer is entitled to

recompense.

Both Mr-Justice Tadgell and the Full Court

refer to the fact that there had admittedly been a

mistake in the payments and say that that is not

the issue that we are required to determined.

Mr Justice Tadgell explains the irrelevance of that

point at pages 84 to 85 and the Full Court explains

the irrelevance of that point to the issues being

decided at page 178.

BRENNAN J:  Mr Callaway, if one leaves the insurers out of

account for a moment and focuses on the liability

of the employer, let it be that it is assumed that

it is the same employer who employs the employee

throughout the whole of the period, and attributes
the payment that he ultimately makes for the

incapacity to the first date of injury, does that

mean that an employer who is liable to pay the full

amount under an existing policy as at the last date of injury is entitled notwithstanding to recompense

in respect of the same payment because he

attributes the first date of injury?

MR CALLAWAY:  Your Honour, in all these cases the payment

was made in respect of all injuries. So there was

no case of saying the payments are being made but we are selecting the earliest injury and ignoring

the others. But even if one has - - -

BRENNAN J:  What is there to indicate that it was paid in

respect of all injuries?

MR CALLAWAY:  The awards are in an all forms all injuries

kind, Your Honour. I will see if I can find an

example. At pages 149, 154 and 178 they all say

much the same thing. My recollection is that the

actual terms of the award are set out at 149. Yes,

149, line 21 sets out the award in Mr Carter's

case. Your Honour will see that the compensation,

last three lines, is in respect of all injuries

arising out of or in the course of the applicant's

employment with the respondent. The award was in

similar terms in the other two cases.

BRENNAN J: Yes. Well then, my question must be varied. Is

it that the employer is entitled to recompense in

respect of those injuries which were suffered prior

to the 1975 and 1979 amendments, even though the

employer was fully liable in respect of the same

sum in respect of the last of the injuries post

amendment.

MR CALLAWAY:  Your Honour, yes, and it must be so because

one does not go behind the award. That has always

been common ground. The award awards compensation

13   12/3/93

in respect of all injuries and the law is, as I mentioned earlier, that the successive injuries

giving rise to a single incapacity.	One then goes
to the definiiion of the additional amount.	One of

the definitions is at page 229, at the top of the

page and relevantly the:

"Additional amount" means an amount by which

the sum payable as compensation -

in respect of a pre-amendment injury

is increased by virtue of a provision of the

Workers Compensation (Amendment) Act.

The award establishes that the compensation is in respect of each of the injuries. It therefore

follows necessarily from the definition that there

is an additional amount. One would otherwise have

to go behind the award.

BRENNAN J:  How is that apportioned as amongst each of the

injuries?

MR CALLAWAY:  My recollection, Your Honour, is that the

parties were able to agree on what the dollar
amounts were in respect of each of the additional

amounts that was claimed. That is set out in

Mr Justice Tadgell's judgment.

BRENNAN J:  How does the principle work? I mean, if you

say, "This employer had him in his employment

before 1975 and during that time he suffered three

injuries.	Up to 1979 another three injuries, after
1979 another three injuries.	He gets one sum."

What do you do? Divide it up equally?

MR CALLAWAY:  Yes, I am fully alive to the intellectual difficulty of what Your Honour asks me. I think it

is right to say that no one ever had to come to

dollar amounts had been agreed. grips with that in the courts below because the Your Honours, unless there is anything that I

can add that might assist the Court on the

contribution of date of injury points, I then

propose to turn to the common law settlement point,

which of course is Mccumber.

MASON CJ:  We need not trouble you on the common law

settlement point. Mr Merkel.

MR CALLAWAY: If the Court pleases.

MR MERKEL:  If the Court pleases. May I deal with what my

learned friend said on the contribution point

first. The contribution point only arises because

14   12/3/93

of the agreed fact which showed there were

successive injuries throughout employment. That

raised fairly and squarely the Albion question

which was determined by the Court of Appeal in the

Mercantile Mutual case on identical facts. The

contest between the parties and between the Courts

in Albion is whether the majority judgment which

focussed on a requirement that there be the same

risk insured against or whether the judgment of

Justice Kitto which placed more attention on a liability arising maybe from different sources for an amount ultimately paid was the true test.

The Full Court in Victoria held that as long as there was a liability, no matter how arising to

pay part or whole of the loss claimed, that gave a

right to contribution. Mercantile Mutual held just

as clearly to the contrary, that where there are

successive insurers who do not have a concurrent

liability, there cannot be a right of contribution

arising under of the Albion principle because they

are not insurers in respect of the same risk.

We say that there is a conflict upon a very

important matter of insurance law and it goes

to the heart of the decision of both courts. We

say that the agreed facts made sure that that point

was raised and had to be dealt with, and it was in

fact dealt with. We say that it is a matter that

will necessarily arise on the appeal because the

sole basis on which the Full Court held there is a

right in contributing insurers to claim recompense

was the fact that they had a right of contribution

in law and, second, that that right of contribution

resulted in them paying compensation under the Act.

My learned friend sought to suggest that there

could be a better vehicle.	We would submit, with
respect, there could not be.

MASON CJ:  Mr Merkel, we need not trouble you further.

There will be a grant of special leave in

relation to the two issues: date of injury and contribution. Special leave will be refused in relation to the third issue, that is the Mccumber

case, concerning common law settlement. In

relation to that issue we think the decision of the

court below is not attended with sufficient doubt

to justify the grant of special leave to appeal.

That means that the grant of special leave will

relate to the Senzo case and the Carter case.	Is
that correct?

MR MERKEL:  Yes, that is correct, Your Honour. That would

give effect to what Your Honour has indicated.

15   12/3/93

MASON CJ: Yes, there is no need for further identification

in relation to the subject-matter of the grant of

special leave.

MR MERKEL:	No, Your Honour.
MASON CJ:	Do you agree with that, Mr Callaway?
MR CALLAWAY:	I do, Your Honour, with respect, and we would

ask for costs of the special leave application in

McCumber's case.

MASON CJ: Yes.	You do not oppose that do you, Mr Merkel?
MR MERKEL:	No, we do not, Your Honour.

MASON CJ: Yes, that application will be refused with costs.

AT 10.10 AM THE MATTER WAS ADJOURNED SINE DIE

16 12/3/93