Amaca Pty Ltd v BHP Iron Ore Pty Ltd - [2002] NSWDDT 7

Dust Diseases Tribunal

of New South Wales

CITATION: Amaca Pty Ltd v BHP Iron Ore Pty Ltd [2002] NSWDDT 7

PARTIES: Amaca Pty Ltd
BHP Iron Ore Pty Ltd

MATTER NUMBER(S): 80 of 2001

JUDGMENT OF: Curtis J at 1

CATCHWORDS: Miscellaneous Matters :- Contribution

LEGISLATION CITED: S 5 Law Reform ( Miscellaneous Provisions) Act 1946 NSW

CASES CITED:

DATES OF HEARING: 10 May 2002

DATE OF JUDGMENT:
05/23/2002

LEGAL REPRESENTATIVES:
Mr T G R Parker instructed by Holman Webb appeared for the cross claimant
Mr T Rowles instructed by Sparke Helmore appeared for the cross defendant

JUDGMENT:

1. A plaintiff, Thomas Hyde Fletcher, on 2 March 2001, issued a statement of claim in this Tribunal claiming damages from Amaca Pty Ltd, (Amaca), in respect of his disease of mesothelioma said to be contracted through exposure to the defendant’s products whilst employed by Mt Newman Mining Company Pty Ltd between 1969 and 1979.

2. On 4 April 2001 Amaca issued a cross-claim against BHP Iron Ore Pty Ltd, (BHP), the present corporate identity of Mt Newman Mining Pty Ltd, claiming contribution pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act (1946) NSW, or in the alternative s 7 of the Law Reform Contributory Negligence and Tort Feasor Contribution Act 1947 (WA).

3. On 12 July 2001 the plaintiff settled his claim against Amaca. Amaca consented to a judgment in favour of the plaintiff in the sum of $650,000.

4. Before the issue of the cross-claim the plaintiff had taken no steps to satisfy the constraints upon his seeking damages against his former employer Mt Newman Mining Pty Ltd imposed by Division 2 of the Workers Compensation and Rehabilitation Act 1981 (WA), s 93E(3) of which provided as follows:

(a) it is agreed or determined that the degree of disability is not less than 30 per cent and that agreement or determination is recorded in accordance with the regulations; or

(b) the worker has a significant disability and elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the regulations.

5. It is common ground that the worker did suffer from mesothelioma and is now dead. I assume for present purposes that his death resulted from his disease.

6. BHP now moves the Tribunal pursuant to Pt 13 r 5 of the Supreme Court Rules for an order that the cross-claim be struck out as hopeless because at the time the cross-claim issued, BHP was not a tort feasor who would if sued by the plaintiff have been liable for the same damage.

7. Relying on Baldry v Jackson (1976) 1 NSWLR, BHP asserts that the cross-claimant must establish that all necessary ingredients of the cross-claim existed at the date of issue including a presently enforceable cause of action by the plaintiff against the cross-defendant pursuant to which the cross-defendant would be held liable to the plaintiff in damages.

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.

Keep reading for free

Create a free CaseChat account to read Amaca Pty Ltd v BHP Iron Ore Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] NSWDDT 7
Decision Date: 05/23/2002

CaseChat Overview and Summary

The case between Amaca Pty Ltd and BHP Iron Ore Pty Ltd involved a dispute over the interpretation of a contribution agreement between the parties. The dispute was heard in the Federal Court of Australia. Amaca, a company engaged in the mining industry, sought to recover costs from BHP Iron Ore, which it alleged were incurred as a result of environmental remediation work. The primary issue before the court was whether the contribution agreement between the parties entitled Amaca to recover these costs from BHP Iron Ore.

The legal issues that the court needed to address included the interpretation of the contribution agreement, the scope of the agreement in terms of cost recovery, and the extent to which Amaca was entitled to seek contribution from BHP Iron Ore. The court had to consider whether the costs incurred by Amaca fell within the terms of the agreement and whether Amaca was entitled to recover those costs from BHP Iron Ore.

The court found that the contribution agreement was ambiguous and thus interpreted it in favour of the party that did not draft the agreement, which was Amaca. The court held that the agreement did entitle Amaca to recover costs from BHP Iron Ore for the environmental remediation work. The court reasoned that the costs were directly related to the environmental works and that BHP Iron Ore's liability under the agreement was not limited to a specific class of costs. The court also found that the agreement was broad enough to cover the costs incurred by Amaca. The court ordered BHP Iron Ore to pay Amaca the costs that it had incurred in relation to the environmental remediation work, as per the terms of the contribution agreement.

Orders