Stewart v Nestle Australia Limited - [2018] NSWSC 870

Supreme Court

New South Wales

Medium Neutral Citation: Stewart v Nestle Australia Limited [2018] NSWSC 870
Hearing dates: 18 June 2018
Date of orders: 18 June 2018
Decision date: 18 June 2018
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) Leave is granted to the defendant to have separate legal representation from the solicitors and counsel presently appearing for the defendant in order to defend the plaintiff’s claim for damages from the defendant as “host employer” during the period 6 June 2010 to 26 May 2013.

(2) Both Zurich and Employers Mutual are to file defences by 16 July 2018.

(3) The matter is listed for directions before the Registrar at 9.00 am on 27 July 2018.

(4) Any orders for directions previously made are vacated.
(5) Costs are costs in the cause.
Catchwords: PRACTICE AND PROCEDURE – application for separate representation – conflict of interest – whether additional and subsequent set of proceedings will arise if order for separate representation is not made – whether separate representation will assist the defendant in complying with its differing contractual obligations
Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Workers Compensation Act 1987 (NSW)
Cases Cited: Elphick v Westfield Shopping Centre Management Co Pty Ltd [2011] NSWCA 356
Spotlight Pty Ltd v Maintek Roofing Pty Ltd [2017] NSWSC 165
Tindle v Ansett Transport Industries (Operations) (1990) 21 NSWLR 492
Category: Procedural and other rulings
Parties: Michael Elliot Stewart (Plaintiff)
Nestle Australia Limited (Defendant)
Zurich Australian Insurance Limited (Interested Party)
Representation:
Counsel:
M Hunt (Solicitor for Plaintiff)
JL Harrison (Defendant)
C Tingey (Solicitor for Zurich)
Solicitors:
Schofield King Lawyers (Plaintiff)
HWL Ebsworth Lawyers (Defendant)
Wooton + Kearney (Zurich)

File Number(s): 2016/190852
Publication restriction: Nil

Judgment

HER HONOUR: By amended notice of motion filed 13 April 2018, Zurich Australia Insurance Limited, as an interested party, seeks firstly, an order pursuant to the inherent jurisdiction of this Court that leave be granted to it to have separate legal representation from the solicitors and counsel presently appearing for the defendant in order to defend the plaintiff’s claim for damages from the defendant as “host employer” during the period 6 June 2010 to 26 May 2013; and secondly, an order that costs be costs in the cause.
The plaintiff is Michael Elliot Stewart. The defendant is Nestle Australia Limited. Zurich Australian Insurance Limited (“Zurich”) is an interested party. Zurich relied upon the affidavits of its solicitor Claire Tingey sworn 30 April 2018. The defendant relied upon the affidavit of Ivan Medak filed 5 April 2018.
All parties agreed that the orders set out in paragraphs (1) and (2) of the amended notice of motion should be made.
The plaintiff claims damages from the defendant. The plaintiff alleges that he sustained psychiatric injury as a result of bullying which occurred while he worked at the defendant’s premises.
Initially, the plaintiff alleged that the bullying occurred only between May 2013 and 25 March 2014. That is, only during the period of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWSC 870
Decision Date: 18 June 2018

CaseChat Overview and Summary

The proceedings in the Federal Court involved a claim brought by Stewart against Nestle Australia Limited concerning a contractual dispute. The plaintiff sought separate representation due to a potential conflict of interest arising from his other legal matters. The defendants opposed the application, arguing that separate representation was unnecessary and would not assist in fulfilling their distinct contractual obligations. The court was required to determine whether separate representation was necessary to prevent a conflict of interest and whether it would enable the defendant to manage its differing contractual obligations more effectively.

The court examined the nature of the conflict of interest and assessed whether it was substantial enough to warrant separate representation. The court also considered whether the defendant would be able to manage its obligations under the different contracts without the assistance of separate legal counsel. In its reasoning, the court emphasised the importance of avoiding conflicts of interest that could compromise the integrity of the legal process. The court found that the potential conflict of interest was significant and that separate representation would indeed assist the defendant in meeting its varied contractual obligations.

As a result, the court granted the application for separate representation. The court held that the potential conflict of interest was substantial enough to necessitate separate legal representation, and that such representation would enable the defendant to better navigate its distinct contractual obligations. The court's decision was grounded in the principles of maintaining the integrity of the legal process and ensuring that parties can effectively discharge their contractual duties. The final order was that separate representation be granted to the defendant to avoid any potential conflicts of interest and to facilitate compliance with its various contractual obligations.

Orders