QBE Insurance (Australia) Ltd v Wallaby Grip Ltd

QBE Insurance (Australia) Ltd appealed to the Court of Appeal of New South Wales against orders made by the President of the Dust Diseases Tribunal. The dispute concerned the apportionment of liability between concurrent tortfeasors following the settlement of a plaintiff's claim for dust-related diseases. QBE, as a cross-defendant, had paid an amount in settlement, and the question arose as to whether a subsequent judicial determination of apportionment should apply, potentially entitling QBE to recover overpaid contributions.

The central legal issue before the Court of Appeal was whether the Dust Diseases Tribunal had the power to depart from an earlier summary provisional determination of apportionment between concurrent tortfeasors, particularly after the plaintiff's claim had been settled. This involved considering the interplay between the claims resolution process within the Tribunal and the statutory framework governing contribution between tortfeasors, specifically Division 5 of Part 7 of the *Civil Liability Act 2002* (NSW). The court had to determine the appropriate considerations for a judicial determination of apportionment in such circumstances.

The Court of Appeal reasoned that the summary provisional determination was not intended to be final and that the Tribunal retained jurisdiction to make a later judicial determination of apportionment. The court emphasised that the purpose of the claims resolution process was to facilitate settlement, and that a party who had overpaid contributions should not be precluded from seeking a final determination of their entitlements. The court found that the President had erred in setting aside the respondents' notice of motion, which sought such a determination.

Consequently, the Court of Appeal allowed the appeal, set aside the orders of the President, and remitted the respondents' notice of motion to a different judge of the Dust Diseases Tribunal for hearing and determination according to law. Leave to appeal was granted, and QBE was awarded costs.