Government Insurance Office of New South Wales v Ce McDonald (NSW) Pty Ltd

The parties to this matter before the High Court of Australia were the Government Insurance Office of New South Wales (the applicant) and C.E. McDonald (NSW) Pty Limited (the respondent). The dispute concerned the operation of section 64(1)(b) of the *Workers' Compensation Act 1926* (NSW), specifically in relation to an employer's right to indemnity from a tortfeasor. The applicant sought special leave to appeal a decision of the New South Wales Court of Appeal.

The primary legal issues before the High Court were whether the right of a worker to sue a tortfeasor and the right of an employer to seek indemnity from that tortfeasor under the Act were interdependent. A further issue, arising from the factual circumstances, was the effect of a worker compromising their action against a tortfeasor, resulting in a verdict for the defendant and the defendant paying the worker's costs, on the employer's subsequent claim for indemnity against the tortfeasor.

The applicant argued that the Court of Appeal's decision on these issues was attended by doubt. The factual scenario involved a worker who had compromised their action against a tortfeasor, leading to a verdict for the defendant and the payment of the worker's costs. Subsequently, the employer sought indemnity from the tortfeasor. The applicant contended that the worker's cause of action against the tortfeasor no longer existed at the point the employer sought indemnity. The Court questioned whether the employer's right of action was independent and whether a previous judgment between the worker and tortfeasor was *res alios acta* in relation to the employer's claim.