NEW SOUTH WALES COURT ISSUES JUDGEMENT FOR WORKCOVER QUEENSLAND V/S ASBESTOS INJURIES COMPENSATION FUND CASE

Australia, March 31 -- New South Wales Land and Environment Court issued text of the following judgementon March 4:

1. THE COURT: On 24 December 2024, this Court allowed an appeal by WorkCover Queensland from judicial advice given in the Equity Division of the Supreme Court: Coveney v Asbestos Injuries Compensation Fund Ltd; Davis v Asbestos Injuries Compensation Fund Ltd; WorkCover Queensland v Asbestos Injuries Compensation Fund Ltd [2024] NSWCA 317. That appeal was heard and determined with utmost expedition, together with two appeals brought by Messrs Coveney and Davis from identical advice given by the same judge in proceedings heard and determined together.

2. This Court's orders set aside the orders made at first instance, which concerned both the substance of the advice and costs. The parties were invited to make submissions in the event that they could not reach agreement as to appropriate orders, including "as to whether the principle stated in Re Buckton [1907] 2 Ch 406 at 414 is applicable to the costs of any or all of Messrs Coveney and Davis and WorkCover Queensland": at [100]. Agreement was reached in the other appeals, resulting in orders made by consent incorporating advice to the trustee in accordance with our reasons as well as orders that the trustee pay the costs of Messrs Coveney and Davis on an indemnity basis.

3. A small dispute remains outstanding between the trustee and WorkCover Queensland. Although there is no need to give further judicial advice in this proceeding, because the orders containing the advice already given have been set aside and because WorkCover Queensland is a party to the other proceedings, there is no harm in doing so in identical terms, as sought by the trustee, so that the outcome of this proceeding is clear without recourse to other proceedings involving the same parties. The remaining dispute is as to costs. It is common ground that the trustee should pay WorkCover Queensland's costs, both in this Court and in the Equity Division. But the trustee says it should pay those costs on the standard basis, while WorkCover seeks its costs on an indemnity basis.

4. The parties have exchanged short submissions, in accordance with this Court's directions.

5. WorkCover Queensland submits that it is entitled to costs assessed on the indemnity basis to be paid out of the trust fund. It says that it was joined as a party, did not act adversarially and thus invokes the rule "that prevails where a trustee applies for advice", which is that "the costs should be borne by the Trust Fund", in accordance with Re Buckton. It relies on Pohlner v Pfeiffer (1964) 112 CLR 52; [1964] HCA 8.

6. The trustee submits that WorkCover Queensland does not fall within Re Buckton because it was not a beneficiary or akin to a beneficiary of the trust, and the proceeding was adversarial. It submits that while this Court noted at [28] that "no party claimed he or it was acting adversarially", that does not prevent a finding that WorkCover Queensland was in fact acting adversarially. It also submits that it did not engage in any conduct warranting an order for indemnity costs.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1954a347282e51d64ce7c792)

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