Amaca Pty Limited v Orlit Proprietary Limited

[2008] NSWDDT 34

Dust Diseases Tribunal

of New South Wales

CITATION:	Amaca Pty Limited v Orlit Proprietary Limited [2008] NSWDDT 34
PARTIES:	Amaca Pty Limited (ACN 000 035 512) (Under NSW Administered Winding Up) Orlit Proprietary Limited
MATTER NUMBER(S):	7065 of 2007
JUDGMENT OF:	Kearns J
CATCHWORDS:	:- Whether claim for contribution, by one tort-feasor against another, in proceedings commenced by statement of claim after 1 July 2005 come under the Tribunal's claims resolution process (CRP).
LEGISLATION CITED:	Dust Diseases Tribunal Regulation 2007 Law Reform (Miscellaneous Provisions) Act 1946 Interpretation Act 1987
CASES CITED:	(re Linquist) Burroughs Wellcome and Co and QBE Insurance v Wallaby Grip Ltd and Anor [2006] NSWDDT 28; (re Heath) Delta Electricity v Power Technologies Pty Limited & Ors [2007] NSWDDT 19
DATES OF HEARING:	20/11/2008
DATE OF JUDGMENT:	26 November 2008
LEGAL REPRESENTATIVES:	Mr J Sheller, instructed by DLA Phillips Fox Lawyers, appeared for the plaintiff. Ms L McFee, instructed by Sparke Helmore, appeared for the defendant.

JUDGMENT:

1. The question is whether these proceedings are governed by the Tribunal’s Claims Resolution Process (CRP). The CRP was introduced into the Tribunal’s jurisdiction with effect from 1 July 2005.

2. The relevant dates for consideration are:

20 May 2004: Mr Mitchell commenced proceedings against Amaca Pty Limited (ACN 000 035 512) (Amaca) for damages for personal injury. His claim was for an asbestos- related condition within the meaning of the Dust Diseases Tribunal Regulation 2007 (DDT Regulation);

18 March 2005: Mr Mitchell settled his claim against Amaca;

1 July 2005: The provisions of the CRP became operative;

15 March 2007: Amaca filed a Statement of Claim in these proceedings against Orlit Proprietary Limited seeking indemnity or contribution from it pursuant so s5 of the Law Reform (Miscellaneous Provisions) Act 1946 (LRMPA) in respect of the damages it was required to pay to Mr Mitchell pursuant to the settlement of his claim against it.

3. The provisions of the CRP are contained within Part 4 of the DDT Regulation. The regulations I refer to hereunder are within Part 4.

4. Clause 12 sets out definitions. It includes the following:

“claim means a claim in proceedings in the Tribunal brought or to be brought under section 11 of the Act …”

Section 11 of the Act includes subsection (1A) which provides:

“proceedings by any tort-feasor liable in respect of damages referred to in subsection (1) to recover contribution from any other tort-feasor liable in respect of that damage may be brought before the Tribunal”.

Amaca’s claim clearly comes within s11 (1A). It, therefore, satisfies the definition in clause 12. The decision of O’Meally P in (re Linquist) Burroughs Wellcome and Co and QBE Insurance v Wallaby Grip Ltd and Anor [2006] NSWDDT 28 [para 24] supports this view.

5. Amaca argued that the CRP did not apply and part of its argument proceeded on the basis that clause 24, on its proper construction, was limited to claims by injured persons and those claiming through them. It did not, it was argued, apply to claims by one tort-feasor for contribution from another. The subject-matter and context of the clause, it was argued, produce that result. This argument may be correct, but I do not think it assists the resolution of the issue before me.

6. If the argument is correct, it cannot be drawn from that the CRP does not apply to cross-claims. That would be inconsistent with Linquist.

7. Clause 24 is a clause that sets out what a party must do. It proceeds on the basis that the claim is subject to the CRP. It does not determine whether or not the claim is subject to the CRP. The answer to that issue must be found elsewhere and I proceed to examine that.

8. Clause 14 provides:

“This Part applies to a claim in respect of an asbestos-related condition that is made by the person who is or was suffering from the asbestos-related condition (or by a person claiming through that person, including a compensation to relatives claim) or that is a cross-claim by a defendant on such a claim.”

Asbestos-related condition is defined by clause 12. It is common ground that Mr Mitchell’s claim was in respect of an asbestos-related condition.

9. The question to be answered here is whether the claim by Amaca is a “cross-claim” within the meaning of clause 14. Amaca’s claim has not been brought by way of cross-claim in the proceedings commenced by Mr Mitchell. It has been brought independently of those proceedings by way of statement of claim. For that reason, I do not consider that clause 14 applies.

10. In (re Heath) Delta Electricity v Power Technologies Pty Limited & Ors [2007] NSWDDT 19, I drew on the distinction between statements of claim and cross-claims to hold that the transitional provisions in Part 4 did not apply because they applied to claims commenced by statement of claim whereas the claim in that case had been commenced by cross-claim. I see no reason to depart from my reasoning process in that case.

11. Clause 14 may be divided into two parts as follows.

(1) Part 4 “applies to a claim in respect of an asbestos-related condition that is made by the person who is or was suffering from the asbestos-related condition (or by a person claiming through that person, including a compensation to relatives claim)”.

It is clear that this part of the clause does not apply to a claim for indemnity or contribution pursuant to s4 of the LRMPA.

(2) Part 4 also applies to a claim “that is a cross-claim by a defendant on such a claim”.

This part of the clause clearly applies to claims for indemnity or contribution pursuant to s4 of the LRMPA. What it applies to, however, is a claim that is a “cross-claim”. Amaca’s claim is not a cross-claim. The clause in my view, therefore, does not apply.

12. Clause 16 relevantly provides:

“(1) This Part applies only to the following claims:

(a) claims commenced by statement of claim filed on or after 1 July 2005 …”

13. There is an apparent inconsistency between clause 16 and clause 14. I do not think there is an inconsistency.

14. Clause 16 is a transitional provision. It is in that sense a timing provision, that is, it determines which proceedings by reason of their particular status at a given time come within the new provisions. It does not necessarily determine which of those provisions will apply to the proceedings. One needs to look to other clauses to determine that. When one then goes to clause 14, one sees that Part 4 applies to a claim for indemnity or contribution if it is a cross-claim in respect of an asbestos-related condition. In other words, there are two parts of clause 14 to be satisfied in this case. It must be a cross-claim and it must be in respect of an asbestos-related condition. Clause 16 could no more change this if a defendant had commenced by statement of claim (and assuming for the argument that clause 14 applied to statements of claim) a claim for contribution in respect of a condition that was not an asbestos-related condition. Such a claim would satisfy clause 16, but that does not mean it satisfies clause 14.

15. There may be another reason why clause 16 is not inconsistent with clause 14 or does not apply at all and that is that clause 16 may be limited to claims brought by injured persons or by persons claiming through injured persons. Such an interpretation of clause 16 would not be inconsistent with the President’s decision in Linquist.

16. The argument would be that “claims” when referred to in clause 16 did not include claims for indemnity or contribution pursuant to s4 of the LRMPA. Section 6 of the Interpretation Act 1987 provides “Definitions that occur in an Act or instrument apply to the construction of the Act or instrument, except in so far as the context or subject-matter otherwise indicates or requires”. The argument would be that the context and subject matter of clause 16 require that the word “claims” in that clause is limited to claims by injured persons or persons claiming through them.

17. As indicated earlier, argument to this effect was directed at clause 24, but I do not need to decide this point as to clause 16 or clause 24.

18. I rule that Part 4 of the Dust Diseases Tribunal Regulation 2007 does not apply to these proceedings.