Tanwar v Aslam

The appeal concerned a dispute regarding findings that a worker was injured and that the appellant was the worker's employer. The third respondent was contingently liable to indemnify the worker if the appellant succeeded in arguing that the third respondent was the deemed employer. Neither the appellant nor the third respondent had paid workers compensation insurance premiums, meaning the Nominal Insurer was liable to indemnify the worker but was entitled to recover from the employer. The appeal was heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the third respondent should remain a party to the appeal, particularly given that the third respondent had died after the appeal commenced. The Nominal Insurer raised concerns that the estate of the third respondent might contest its entitlement to recover from the estate if the estate was not joined to the litigation. However, the Court also noted that joining the estate would inevitably involve expense and time, and that in many circumstances, such joinder would serve no practical purpose.

Leeming JA reasoned that the potential for the estate to contest the Nominal Insurer's recovery rights was a relevant consideration, but balanced this against the certainty of expense and time involved in joining the estate. The Court concluded that the joinder of the third respondent's estate was not necessary for the proper determination of the appeal and would not serve a useful purpose. Consequently, the Court ordered that the third respondent be removed as a party to the appeal. The Court also made directions regarding the filing of submissions by the first and second respondents and granted the Workers Compensation Nominal Insurer leave to relist the appeal for further directions if it considered it necessary for the estate to continue as a respondent.