Kuypers v Ashton Coal Operations Pty Limited

[2014] NSWSC 208

Supreme Court

New South Wales

Medium Neutral Citation:

Kuypers v Ashton Coal Operations Pty Limited [2014] NSWSC 208

Hearing dates:

10 March 2014

Decision date:

10 March 2014

Jurisdiction:

Common Law

Before:

Schmidt J

Decision:

Consent orders made.

Costs reserved.

Catchwords:

PROCEDURE - notice of motion - orders under rule 28.2 of the Uniform Civil Procedure Rules 2005 for the separate determination as to who is the appropriate insurer - consent orders made

Legislation Cited:

Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

Category:

Interlocutory applications

Parties:

Benjamin Kuypers (Plaintiff)
Ashton Coal Operations Pty Limited (First Defendant)
Silver City Drilling (NSW) Pty Ltd (Second Defendant/First Cross-Claimant)
Employers Mutual NSW Limited (First Cross Defendant)
Coal Mines Insurance Pty Limited (Second Cross Defendant)

Representation:

Counsel:
Mr T McKenzie (Plaintiff)
Ms O Dinkha (First Defendant)
Mr N Floreani (Second Defendant)
Mr L King SC with Mr B Odling (Second Cross-Defendant and mentioning for First Cross-Defendant)
Solicitors:
Taylor & Scott Lawyers (Plaintiff)
Curwoods Lawyers (First Defendant)
B & C Lawyers (Second Defendant/First Cross-Claimant)
Stephen Lee Legal (First Cross-Defendant)
Sparke Helmore (Second Cross-Defendant)

File Number(s):

2012/393861

Publication restriction:

None

EX TEMPORE Judgment

1. HER HONOUR: These proceedings were commenced by statement of claim filed in December 2012. By notice of motion filed December 2013, the second defendant sought orders under Rule 28.2 of the Uniform Civil Procedure Rules 2005 for the separate determination in advance of the trial of a question as to which of two insurers is liable to indemnify Silver City Drilling against legal costs and liability for compensation arising from the plaintiff's claim.

1. Today, the parties have appeared seeking orders in terms which are agreed on the footing that the question which has arisen be determined prior to the hearing.

1. The plaintiff is a quadriplegic who is presently receiving benefits paid by one of the insurers and there is some urgency in having this question resolved.

1. It is apparent from the submissions which the parties have advanced that it is appropriate for the matters which are agreed to be determined prior to the hearing.

1. The questions hinge on whether at the material time the second defendant was an employer in the coal industry. That will be resolved by evidence as to the nature of its business. That is an issue which concerns only it and the two insurers and one in which the plaintiff and the first defendant do not need to be engaged.

1. Its resolution is an important one, however, for the proceedings and will resolve that part of the litigation expeditiously, so that those not properly involved in the proceedings will no longer be caught up expending unnecessary time and cost.

1. In the circumstances, I am satisfied that the parties' agreement should be given effect consistently with the requirements of the Civil Procedure Act 2005. The orders sought are made in terms of the short minutes which I will mark MFI 1 as amended at the hearing so far as order 7 is concerned. Costs are reserved.

1. The matter is adjourned on that basis to a date to be fixed.

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Decision last updated: 11 March 2014