State of New South Wales (Ambulance Service of NSW) v McKittrick

The State of New South Wales (Ambulance Service of NSW) appealed to the Court of Appeal of New South Wales against an order made by the District Court requiring it to provide further and better particulars in proceedings brought by Mr. McKittrick. The dispute concerned an application for indemnification under section 151Z(1)(d) of the *Workers Compensation Act 1987* (NSW), where the Ambulance Service sought to recover damages it had paid to Mr. McKittrick, a former employee, from a third party.

The primary legal issue before the Court of Appeal was whether the District Court had erred in ordering the Ambulance Service to provide further and better particulars of its claim for indemnification. This involved considering the nature of indemnification proceedings under section 151Z(1)(d) and the applicability of rule 15.12 of the *Uniform Civil Procedure Rules 2005* (NSW) to such proceedings, particularly in relation to the burden of proving the damages payable by the putative tortfeasor.

The Court of Appeal reasoned that the nature of proceedings under section 151Z(1)(d) requires the plaintiff (in this case, the Ambulance Service) to establish that the damages it paid to its employee were "payable" in respect of the injury. This involves demonstrating that the employee had a cause of action against the third party and that the damages awarded were a consequence of that cause of action. The Court found that the District Court's order for particulars had gone beyond what was necessary to establish this fundamental requirement, effectively seeking particulars of the Ambulance Service's case against the third party, which was not the primary focus of the indemnification claim itself. The Court concluded that the order for further particulars was not justified under the rules.

The Court of Appeal granted the State of New South Wales leave to appeal, allowed the appeal, and set aside the order made by the District Court on 12 June 2008.