Amaca Pty Limited v Telstra Corporation Limited

[2025] NSWDDT 1

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:

Amaca Pty Limited v Telstra Corporation Limited; (re Edwards) [2025] NSWDDT 1

Hearing dates:

26 March 2025

Date of orders:

2 April 2025

Decision date:

02 April 2025

Before:

Judge Russell SC

Decision:

(1)   Grant leave to Amaca Pty Ltd to amend its cross claim in accordance with this judgment.

(2)   Notice of Motion filed on 19 February 2025 is otherwise dismissed.

(3)   Order Amaca Pty Ltd to pay its own costs of the Notice of Motion filed on 19 February 2025.

(4)   Order Amaca Pty Ltd to pay the costs of Telstra Corporation Limited of the proceedings; such costs are to be assessed on the ordinary basis up to 19 April 2024 and thereafter on the indemnity basis.

Catchwords:

PROCEDURAL – Notice of Motion to amend identity of cross defendant and basis of claim against new party– cross defendant told cross claimant that it was the wrong party – information from plaintiff’s solicitor also indicated that the wrong cross defendant was sued – leave granted to amend cross claim – amended cross claim should make specific allegations to identify basis of liability of new cross defendant

COSTS – amendment effectively discontinues against cross defendant – significant delay in making application to amend – no evidence that cross claimant took steps to check accuracy of claim once advised of the problems – ordinary costs – indemnity costs

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 64

Uniform Civil Procedure Rules 2005 (NSW) Rule 14.7

Category:

Procedural rulings

Parties:

Amaca Pty Limited (Cross Claimant)
Telstra Corporation Limited (Cross Defendant)

Representation:

Counsel:
Mr D A Priestley SC (Cross Claimant)
Mr J L Sharpe (Cross Defendant/Respondent)

Solicitors:
Mills Oakley Lawyers (Cross Claimant)
Sparke Helmore (Cross Defendant)

File Number(s):

2023/00307275

Publication restriction:

NIL

JUDGMENT

Introduction

1. Mr Darryl Edwards contracted mesothelioma as a result of exposure to asbestos cement building products manufactured and supplied by the defendant Amaca Pty Limited (Amaca). Mr Edwards commenced proceedings in this Tribunal against Amaca. His claim proceeded through the Claims Resolution Process (CRP) and settled at a mediation on 14 October 2024 for $650,000 inclusive of costs. A Consent Judgment was entered on 18 October 2024.

2. Amaca brought a cross claim against Telstra Corporation Limited (Telstra Corporation) on 28 February 2024. The cross claim alleged that Telstra Corporation was a tortfeasor obliged to make contribution towards any damages recovered by Mr Edwards. Telstra Corporation was therefore part of the CRP. A Contributions Assessment Determination (CAD) was made which found Telstra Corporation liable for a percentage of damages. Amaca has paid all of the damages to Mr Edwards and has not sought to rely upon the CAD, or have Telstra Corporation pay any money towards the damages.

Notice of Motion filed on 19 February 2025

3. Amaca filed a Notice of Motion to amend the cross claim against Telstra Corporation to substitute Telstra Limited as the cross defendant in place of Telstra Corporation. Amaca seeks leave to file an Amended Cross Claim. Amaca also seeks an order that the costs of the motion be paid by Telstra Limited once leave has been granted to file an Amended First Cross Claim. Finally, Amaca also seeks “such further orders as this Honourable Court deems fit.”

Evidence in Support of the Motion

4. Amaca relies upon an affidavit by its solicitor Mr Cilona dated 19 February 2025 (CCX 1). Mr Cilona sets out the history of the proceedings which can be summarised as follows.

5. On 27 September 2023 Mr Edwards commenced proceedings in this Tribunal against Amaca.

6. On 21 February 2024 Mr Edwards filed his Statement of Particulars which said:

“Telstra – Sydney, NSW

In about February 2000, I got a job with Telstra in North Sydney, installing and removing telephone systems. My job required me to cut and drill into fibro walls when doing installs and I had some exposure to asbestos during this employment. I only did this work for about three or four months.

This period could represent about 5% of my lifetime exposure.”

7. On 28 February 2024 Amaca filed its cross claim against Telstra Corporation. The cross claim alleged that Mr Edwards was employed by Telstra Corporation and that his exposure occurred during that period of employment. It is noted that in his Statement of Particulars Mr Edwards did not specifically say that he was employed by Telstra Corporation. Nor did he mention Telstra Corporation at all. Instead, he said, “I got a job with Telstra”.

8. On 19 April 2024 Telstra Corporation filed a Reply as part of the CRP. The Reply annexed an email from the solicitor for Mr Edwards. The email said that Mr Edwards had instructed that he applied for a position with Telstra Limited which was formerly NDC Limited. The email annexed a copy of the advertisement which led to Mr Edwards working at the Telstra job in North Sydney. The job was advertised by an organisation known as Manpower, and referred to engagement of technicians in the electrical trade to commence work with NDC Limited in March 2000. The email concluded by saying that Mr Edwards believes that he may have worked as a contractor as opposed to an employee.

9. Thus as at April 2024 when the Telstra Corporation Reply was served, Amaca had material to suggest that it had sued an incorrect cross defendant (Telstra Corporation rather than Telstra Limited) and that the basis for any liability of the cross defendant was in a capacity different than that of employer. There is no evidence in the Affidavit of Mr Cilona as to whether any steps were taken by Amaca, after receiving that information, to check its accuracy.

10. On 6 September 2024 Amaca was served with a Statutory Declaration by Mr Edwards. In that Statutory Declaration Mr Edwards said that although his Statement of Particulars referred to employment with Telstra, upon further reflection Mr Edwards believed that he worked on a contract basis as opposed to a worker for wages. He said that the job he applied for was advertised by a labour hire agency called Manpower. Mr Edwards believed that he was engaged on a contract basis, as opposed to being a worker for wages. This was further confirmation by Mr Edwards that the basis for Amaca’s cross claim against Telstra Corporation was misconceived.

11. After receipt of that Statutory Declaration Mr Cilona wrote to the solicitors for Telstra Corporation enquiring whether the cross claim could be amended by consent “to reflect the correct entity name”. The solicitors for Telstra Corporation replied indicating that they wished to take the plaintiff’s evidence if Mr Edwards’ claim resolved at mediation.

12. By a letter dated 8 October 2024 the solicitors for Telstra Corporation informed Mr Cilona that Telstra Corporation placed in dispute all matters pleaded in the first cross claim. They confirmed that they would not consent to an amendment to the first cross claim. That letter reiterated that the plaintiff was not an employee of any Telstra entity or predecessor. The letter said that the employer would have been Manpower.

13. The mediation occurred on 14 October 2024 and settled for $650,000 inclusive of costs on a full and final basis. An Amended Statement of Claim was filed on 18 October 2024 to plead an additional period of domestic asbestos exposure for which Amaca was liable. A Consent Judgment for Mr Edwards was filed on 18 October 2024.

14. On 24 October 2024 the plaintiff gave sworn evidence before the mediator. In summary, that evidence referred to performing work for NDC, which provided instructions, supplied a uniform, special tools and all wires and line cables. Mr Edwards said that he signed a contract at the Manpower office.

15. From 9 January 2025 onwards Mr Cilano was attempting to obtain the consent of the solicitors of Telstra Corporation to an amendment of the cross claim. That consent was not forthcoming, resulting in Amaca filing the Notice of Motion on 19 February 2025.

Power to Amend

16. The power to grant an amendment of the cross claim is found s 64 of the Civil Procedure Act 2005 (NSW) (CPA) which provides as follows:

64   Amendment of documents generally

(1)  At any stage of proceedings, the court may order—

(a)  that any document in the proceedings be amended, or

(b)  that leave be granted to a party to amend any document in the proceedings.

(2)  Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.

(3)  An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made.

(4)  If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party.

(5)  This section does not apply to the amendment of a judgment, order or certificate.

17. The power to amend a pleading is to be exercised subject to s 58 of the CPA, as the court considers necessary in the interests of justice, and not to punish a party for its pleadings. These matters will generally require consideration of the nature and degree of any prejudice that may be suffered by the grant or refusal of the application. Justice to the applicant in permitting amendment is always to be balanced against any injustice to the respondent. Any delay in bringing the application for leave to amend must be taken into account. The explanation for why the amendment is necessary must be given by the applicant.

18. Telstra Corporation opposes the amendment sought. In one way this is surprising, as Telstra Corporation has always maintained that it was not the correct defendant and should not have been sued. In correspondence, it relied upon the “innocent defendant” provisions in the CRP. However, as an alternative submission, Telstra Corporation submitted that if the amendment is granted, in effect it means that Amaca is discontinuing against Telstra Corporation and ought to pay Telstra Corporation’s costs to date. If the amendment is granted Telstra Corporation will no longer be a party to the proceedings, but will have incurred legal costs in raising opposition to the cross claim, which Amaca effectively now concedes to be correct and well founded. Telstra Corporation sought such costs on an indemnity basis.

Consideration

19. The cross claim in its present form is doomed to fail. Amaca acknowledges that it has sued the wrong company as cross defendant, and has sued on the wrong basis (i.e. employment rather than contractor and/or occupier). Counsel for Telstra Corporation criticised the form of the proposed Amended Cross Claim, saying that it did not make clear the basis for Telstra Limited being liable. That criticism is, in my view, well founded. However, the form of the proposed cross claim does not determine whether or not the power under s 64 of the CPA should be exercised.

20. The amendment proposed will result in the real issue on the cross claim being determined, in the sense that the correct cross defendant will now be sued (at least so far as Amaca is presently informed). The amendment will also, when properly pleaded, enable Telstra Limited to know the basis upon which it is said to have been a tortfeasor.

21. There has been significant delay in making the application to amend. When the Telstra Corporation Reply was served almost a year ago it contained information provided by the plaintiff’s solicitor (not just assertions by Telstra Corporation) which informed Amaca that it had sued the wrong cross defendant, on the wrong basis. That information was only confirmed by the Statutory Declaration and the later sworn evidence by Mr Edwards. It is surprising that Amaca did not take steps much earlier to amend the cross claim, particularly when it was content to engage in a CAD which, on the evidence it had, would make Telstra Corporation liable to pay part of the damages, on a basis which Amaca knew to be unsupportable. However, the delay has not caused prejudice to Amaca. The delay has caused prejudice to Telstra Corporation, in that it has incurred legal costs, among other things, for constantly informing Amaca that it was suing Telstra Corporation on an incorrect basis. That prejudice can be cured by an order for costs.

22. I propose to make an order granting leave to amend the cross claim so that the real issues between Amaca and Telstra Limited can be put before a court. The amendment to change the identity (not just the name) of the cross defendant will result in Telstra Corporation being relieved of the burden of incurring further legal costs. The prejudice suffered by Telstra Corporation, not only by reason of the amendment, but by reason of Amaca ignoring the information which it has held for almost a year can be cured by order for costs. There will be an order that Amaca pay the costs of Telstra Corporation to date. That order for costs will be made on the ordinary basis up until the Telstra Corporation Reply was filed and thereafter will be on an indemnity basis. As previously recited there is no evidence as to whether Amaca took any steps to ascertain its rights after being informed in April 2024, not by Telstra Corporation, but by material provided by solicitors for Mr Edwards, that it was going down the wrong path.

Costs Against Telstra Limited?

23. Order 3 sought in the Notice of Motion filed on 19 February 2025 is an order that the costs of the motion be paid by Telstra Limited, once leave has been granted to file an amended first cross claim and Telstra Limited is added to the proceedings and substituted for Telstra Corporation Limited. I decline to make that order.

24. Telstra Limited has not been heard in relation to such an order. Further, in no way could it be said that Telstra Limited has done anything to cause Amaca Pty Ltd to sue the wrong cross defendant or to bring the motion for leave to amend. While Telstra Corporation and Telstra Limited may well be related entities, they are in law separate legal persons, and must be treated as such.

Form of the proposed amendment

25. Mr Cilona annexes to his affidavit a proposed amended cross claim. I will not grant leave to amend the cross claim in the form of that proposed pleading.

26. Para 12 of the proposed amended cross claim states:

“For the purposes of this Statement of Cross Claim, Amaca repeats the facts, assertions and allegations of negligence against it in the plaintiff’s Statement of Particulars as allegations against Telstra.”

27. This is confusing, as the allegations of negligence against Amaca appear, not from the Statement of Particulars, but from the original Statement of Claim. More fundamentally, to repeat allegations in a Statement of Particulars, when such allegations are broad and uncertain (“I got a job with Telstra in North Sydney”) does not inform Telstra Limited of the following:

1. Whether Telstra Limited employed Mr Edwards.

2. Whether NDC employed Mr Edwards.

3. Whether Manpower employed Mr Edwards.

4. Whether Mr Edwards worked not as an employee but as a contractor or subcontractor, and if so, with whom did he contract?

5. Whether Telstra Limited is sued as an occupier.

28. The grant of leave to amend will therefore be in general terms, but in my view, the amended cross claim should be more specific in making legal allegations against the Telstra Limited rather than simply reciting the facts and allegations in previous documents or previous evidence.

29. Rule 14.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides as follows:

14.7   Pleadings to contain facts, not evidence

(cf SCR Part 15, rule 7; DCR Part 9, rule 3)

Subject to this Part, Part 6 and Part 15, a party’s pleading must contain only a summary of the material facts on which the party relies, and not the evidence by which those facts are to be proved.

ORDERS:

30. The orders of the Tribunal are:

1. Grant leave to Amaca Pty Ltd to amend its cross claim in accordance with this judgment.

2. Notice of Motion filed on 19 February 2025 is otherwise dismissed.

3. Order Amaca Pty Ltd to pay its own costs of the Notice of Motion filed on 19 February 2025.

4. Order Amaca Pty Ltd to pay the costs of Telstra Corporation Limited of the proceedings; such costs are to be assessed on the ordinary basis up to 19 April 2024 and thereafter on the indemnity basis.

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Decision last updated: 02 April 2025