(re Charlton) Rolls Royce v WorkCover

[2005] NSWDDT 24

Dust Diseases Tribunal

of New South Wales

CITATION:

(re Charlton) Rolls Royce v WorkCover [2005] NSWDDT 24

PARTIES:

(Re Albert Charlton) Rolls-Royce Australia Ltd (ACN 003 146 389)
WorkCover Authority of New South Wales

MATTER NUMBER(S):

431/02/2

JUDGMENT OF:

O'Meally P at 1

CATCHWORDS:

:- Dust Diseases Tribunal
Cross Claim
motion seeking particulars of defence
particulars ordered

LEGISLATION CITED:

Workers Compensation Legislation Amendment Act 2004

CASES CITED:

Orica Ltd v CGU Insurance Ltd (2003) 59 NSWLR 14; (2003) 1 DDCR 87

DATES OF HEARING:

1 June 2005

EX TEMPORE JUDGMENT DATE:

06/01/2005

LEGAL REPRESENTATIVES:

G M Watson SC instructed by Cowley Hearne appeared for the Cross-Claiment

D C Morgan instructed by Hunt & Hunt appeared for the Cross-Defendant

JUDGMENT:

RULING

O'MEALLY P

1. This is a motion on notice brought by Rolls Royce Australia Ltd (Rolls Royce) against WorkCover Authority of New South Wales (WCA) seeking particulars of its defence to a cross-claim. The cross-claim is listed for hearing on 8 June next, that is one week from today. Rolls Royce is seeking indemnity under a policy of insurance for damages it was required to pay to a plaintiff, Albert Charlton

2. The defence to the cross-claim is in very general terms. However, following discussions with counsel it emerged that the principal issue to be determined is whether the Workers Compensation Legislation Amendment Act 2004, which was passed to overcome the lacunae identified in Orica Ltd v CGU Insurance Ltd (2003) 59 NSWLR 14; (2003) 1 DDCR 87 operates to render WCA liable to indemnify Rolls Royce for the damages it paid.

3. When the cross-claimant sought particulars of the defence to the cross-claim it was met and continued to be met with an obdurate refusal to provide any particulars, asserting blandly that the defence itself sufficiently disclosed the position of the cross-defendant. With all respect to the argument addressed to me I am unable to agree. Every party to litigation is entitled to know with particularity the case to be presented and the case to be met. In the manner in which the defence has been framed and by reason of the absence of particulars of the defence the cross-claimant remains or would remain ignorant of the evidence it needs to adduce on matters which remain in issue. Accordingly, the cross-defendant should provide the particulars sought by letter from the cross-claimant's solicitors to the cross-defendant's solicitors which bears date 5 May 2005.

4. I make order 1 sought by the notice of motion filed on 26 May 2005. The cross-defendant will pay the cross-claimant's costs of this motion as agreed or assessed.

Mr G M Watson, SC instructed by Cowley Hearne appeared for the Cross-Claimant

Mr D C Morgan instructed by Hunt & Hunt appeared for the Cross-Defendant