QBE Insurance (Australia) Ltd v Dust Diseases Tribunal of NSW

QBE Insurance (Australia) Ltd appealed to the Supreme Court of New South Wales Court of Appeal against orders made by a primary judge in the Dust Diseases Tribunal. The dispute concerned the appointment of QBE as the designated insurer liable to indemnify a defendant employer under section 151AB of the *Workers Compensation Act 1987* (NSW). The primary judge had made this appointment pursuant to section 151AC of the Act.

The central legal issues before the Court of Appeal were whether the primary judge's decision to appoint QBE as the designated insurer was vitiated by jurisdictional error, and whether the primary judge had erred in concluding that the last date to which a worker's claim was expressed to relate, rather than the later date when the worker's relevant employment ceased, was the relevant date for the purposes of section 151AB(1) of the Act, particularly in relation to the worker's claim for indivisible injury.

The Court of Appeal reasoned that the primary judge's decision was affected by jurisdictional error. It found that the primary judge had misconstrued section 151AB(1) of the Act by failing to properly consider the implications of the worker's claim for indivisible injury. The court held that the relevant date for determining the designated insurer should have been the date the worker's relevant employment ceased, not the earlier date to which the claim was confined for divisible injuries.

Consequently, the Court of Appeal made orders quashing the orders made by the Dust Diseases Tribunal appointing QBE Insurance (Australia) Ltd as the designated insurer and ordered that the costs of the proceedings in the Court of Appeal be paid by the third defendant.