Amaca Pty Ltd v Cremer - [2006] NSWCA 164

No judgment structure available for this case.

Reported Decision: 66 NSWLR 400

Court of Appeal

CITATION: AMACA PTY LTD v CREMER & ORS [2006] NSWCA 164

HEARING DATE(S): 13 October 2005

JUDGMENT DATE:
28 June 2006

JUDGMENT OF: McColl JA at 1; Basten JA at 104; Brereton J at 132

DECISION: 1. Appeal allowed; 2. Set aside the judgment in favour of the first respondent as against the appellant; 3. In lieu thereof, give judgment for the first respondent against the appellant in the sum of $29,363.25; 4. Set aside the orders as to costs made on 13 May 2004 and 21 December 2004 and in lieu thereof order; (1) Respondents to pay the appellant’s costs of the hearing on 10 May 2004 on a party-party basis; (2) Appellant, second, third and fourth respondents to pay the first respondent’s costs of the proceedings in the Tribunal and, in the case of the second, third and fourth respondents, on an indemnity basis from 14 May 2004; 5. Respondents to pay the appellant’s costs of the appeal; 6. Grant to each respondent a certificate under the Suitors’ Fund Act 1951 if otherwise entitled

CATCHWORDS: Dust Diseases - Dust diseases legislation - Dust Diseases Tribunal - Damages for non-economic loss after plaintiff’s death - Plaintiff dies after instituting proceedings in Dust Diseases Tribunal – Estate joins additional defendant after plaintiff’s death – Whether damages for non-economic loss are recoverable against defendant added by amendment after plaintiff’s death - Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 2(2)(d) — Dust Diseases Tribunal Act 1989 (NSW), s 12B

LEGISLATION CITED: Administration and Probate Act 1958 (Vic), s29(2A)
Administration and Probate (Dust Diseases) Act 2000 (Vic)
Dust Diseases Tribunal Act 1989 (NSW), ss 10, 11, 11A, 12, 12A, 12B, 12C, 12D, 17, 23, 25, 25A, 25B, 32
Dust Diseases Tribunal Rules, r 2
Interpretation Act 1987, s33
Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 2
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5
Limitation Act 1969, s 26
Supreme Court Act 1970, s 75A
Supreme Court Rules 1970 (NSW), Pt 8, rr 2, 8, 10, 11(3), Pt 20, r 1, r 4
Uniform Civil Procedure Rules 2005 (NSW), rr 6.24, 6.28
Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 (NSW), Sched 2 and 3, cl 8

CASES CITED: Amaca Pty Ltd v CSR Ltd (2001) 51 NSWLR 476
Baldry v Jackson [1976] 2 NSWLR 415
Baxter v Obacelo Pty Ltd (2001) 205 CLR 635
BHP Billiton Limited v Schultz (2004) 221 CLR 400
Blake v Norris (1990) 20 NSWLR 300
Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213
Bull v Attorney-General (NSW) (1913) 17 CLR 370
Cheny v Spooner (1929) 41 CLR 532
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Clarence v Electricty Commission of New South Wales (1990) 20 NSWLR 1
Cremer v Seltsam Pty Limited & Ors (No. 1) (2004) 1 DDCR 478
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234
Fernance v Nominal Defendant (1989) 17 NSWLR 710
Fitch v Hyde-Cates (1982) 150 CLR 482
Forrest v Kelly (1991) 105 ALR 397
George Wimpey & Co Ltd v British Overseas Airways Corporation [1955] AC 169
Goliath Portland Cement Co Ltd v Bengtell (1994) 33 NSWLR 414
Grain Elevators Board (Vic) v Dunmunkle Corporation (1946) 73 CLR 70
Grout v Gunnedah Shire Council (1995) 129 ALR 372
Herbert Berry Associates Ltd v Inland Revenue Commissioners [1977] 1 WLR 1437
Holmes v Permanent Trustee Company of New South Wales Ltd (1932) 47 CLR 113
Hope v Bathurst City Council (1980) 144 CLR 1
IW v City of Perth (People Living with AIDS case) (1997) 191 CLR 1
James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53
James Hardie & Co Pty Ltd v Newton (1997) 42 NSWLR 729
James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1997) 15 NSWCCR 247
Ketteman v Hansel Properties Ltd [1987] AC 189
Khoury v Government Insurance Office of New South Wales (1984) 165 CLR 622
McEvoy v Public Trustee (1989) 16 NSWLR 92
McGee v Yeomans [1977] 1 NSWLR 273
Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 79 ALJR 679
New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islanders Commission (1995) 59 FCR 369
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Quazi v Quazi [1980] AC 744 (CA); 800 (HL)
Re Healey; Re Inquiry into Election in Australian Workers' Union (SA Branch) (1992) 40 IR
Re Struthers, Liquidator of P.A.C.I. Pty Ltd (No 3) [2005] NSWSC 1113
Roads & Traffic Authority v Ryan (2005) 62 NSWLR 609
State of Queensland v Stephenson & Anor [2006] HCA 20
Sugden v Sugden [1957] P 120
Unsworth v Commissioner for Railways (1958) 101 CLR 73
Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797
Wallaby Grip BAE Pty Limited v Eraring Energy (2004) 60 NSWLR 701
Weldon v Neal (1887) 19 QBD 394
Wenham v General Credits Ltd (McLelland J, 16 December 1988, unreported)

PARTIES: Amaca Pty Limited - Appellant
Philip Leslie Cremer (as executor of the estate of the late Winifred Cremer) - First Respondent
Seltsam Pty Limited - Second Respondent
Wallaby Grip Limited - Third Respondent
Wallaby Grip (BAE) Pty Limited (In liquidation) - Fourth Respondent

FILE NUMBER(S): CA 40209/05

COUNSEL: T.C.R. Parker SC - Appellant
B.R. Ferrari/D.R. Toomey - First Respondent
D.J. Russell SC - Second to Fourth Respondent

SOLICITORS: Holman Webb - Appellant
Watkins Tapsell - First Respondent
Leigh Virtue & Associates - Second Respondent
Middletons, Third and Fourth Respondents

LOWER COURT JURISDICTION: Dust Diseases Tribunal of New South Wales

LOWER COURT FILE NUMBER(S): DDT 444 of 2002

LOWER COURT JUDICIAL OFFICER: Duck J

LOWER COURT DATE OF DECISION: 13 May 2004,
21 December 2004

LOWER COURT MEDIUM NEUTRAL CITATION: Cremer (as Executor of the Late Winifred Cremer) v Seltsam Pty Ltd and Ors (No. 1) [2004] NSWDDT 27; (2004) 1 DDCR 478
Philip Cornel Lesley Cremer as Executor of the Late Winifred Cremer v Seltsam Pty Ltd & Ors (Dust Diseases Tribunal of NSW, unreported, 21 December 2004)
Philip Cornel Lesley Cremer as Executor of the Late Winifred Cremer v Seltsam Pty Ltd & Ors (Dust Diseases Tribunal of NSW, unreported, 21 December 2004)

CA 40209 of 2005
DDT 444 of 2002

McCOLL JA
BASTEN JA
BRERETON J
28 June 2006

AMACA PTY LIMITED v PHILIP LESLIE CREMER (as executor of the late WINIFRED CREMER) & ORS

Judgment

1 McCOLL JA: A plaintiff dies after commencing proceedings in the Dust Diseases Tribunal to recover damages in respect of a dust-related condition from which she is alleged to be suffering. Does subs 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 (the “Miscellaneous Provisions Act”) preclude her estate from recovering damages in respect of her pain or suffering, her bodily or mental harm or for curtailment of her expectation of life from a defendant joined as a party to the proceedings after her death?

2 His Honour Judge Duck held that it did not because of s 12B of the Dust Diseases Tribunal Act 1989 (the “Tribunal Act”) which provides that subs 2(2)(d) does not apply in relation to proceedings commenced by a person before his or her death and pending before the Dust Diseases Tribunal at the date of his or her death: Cremer (as Executor of The Late Winifred Cremer) v Seltsam Pty Limited & Ors (No. 1) [2004] NSWDDT 27; (2004) 1 DDCR 478.

3 In my view his Honour erred. Section 12B did not apply to the proceedings against the appellant and, accordingly, her estate was precluded from recovering subs 2(2)(d) damages from it.

Statement of the case

4 On 6 November 2002 Winifred Cremer commenced proceedings in the Dust Diseases Tribunal of New South Wales against Seltsam Pty Limited, Wallaby Grip Limited and Wallaby Grip (BAE) Pty Limited (In Liquidation) (the second, third and fourth respondents) in which she sought to recover damages in respect to the dust-related condition of mesothelioma from which she alleged she was suffering as a result of exposure to asbestos products and the inhalation of dust from those products during her employment in the hardware industry.

5 Mrs Cremer died from mesothelioma on 16 March 2003.

6 Subsequently Philip Leslie Cremer, the first respondent and executor of her estate, was substituted as plaintiff: Pt 8 r 10, Supreme Court Rules 1970. He subsequently moved the Tribunal for leave to amend the proceedings to join Amaca Pty Limited, the appellant, as a defendant.

7 His Honour Judge O’Meally acceded to the joinder motion on 29 September 2003. According to the primary judge leave to join the appellant was granted by his Honour pursuant to SCR, Pt 20 r 1: Cremer (as Executor of The Late Winifred Cremer) v Seltsam Pty Limited & Ors (No. 1) at [12] (the reference to the “first defendant”, should clearly be a reference to the “fourth defendant”). The Second Amended Statement of Claim naming the appellant as the fourth defendant was filed on 1 October 2003. It alleged that Amaca had manufactured and supplied asbestos cement sheeting which Mrs Cremer had either been required to handle, or to the handling of which (in particular the cutting and working thereof) she had been exposed during her employment.

8 By its defence filed on 25 February 2004 the appellant pleaded, relevantly for this appeal, that while it did not admit Mrs Cremer was entitled to damages, interest and costs as claimed or at all:

Law Reform (Miscellaneous Provisions) Act

The judgments below

9 His Honour Judge Duck heard argument as to the efficacy of the appellant’s subs 2(2)(d) defence as a separate issue.

10 Before the primary judge the appellant submitted, in essence, that “proceedings” in s 12B referred to proceedings arising out of the cause of action against it. Accordingly any damages awarded against it could not include those referred to in subs 2(2)(d) of the Miscellaneous Provisions Act s 12B because the proceedings against it had not been commenced until after Mrs Cremer’s death. The first respondent submitted that proceedings for the purposes of s 12B were commenced by the filing of the original Statement of Claim which was sufficient to bring them within s 12B(2), no matter when the appellant was added as a party. The Wallaby Grip respondents adopted the first respondent’s submissions principally, it appears, to preserve any rights of contribution they might have against the appellant.

11 The primary judge rejected the appellant’s subs 2(2)(d) argument. He referred to SCR Pt 20, r 1 and Pt 8, r 8 (addition of parties and new causes of action to existing proceedings) and concluded (at [19]) that having regard to “the way in which the Rules provide wide power to amend proceedings by adding parties and by adding causes of action, it seems to me to be preferable to construe ‘proceedings’ in s 12B … in a way which is consistent with that breadth of power”. He rejected the appellant’s submissions as contending for “too narrow a construction”. He also observed, without elaboration (at [20]), that “the express proviso in s 2(7) Law Reform (Miscellaneous Provisions) Act 1944 seems to point this way”.

12 The matter proceeded to trial. In his second judgment the primary judge found against each defendant: Philip Cornel Lesley Cremer as Executor of the Late Winifred Cremer v Seltsam Pty Ltd & Ors (Dust Diseases Tribunal of NSW, unreported, 21 December 2004). It is unnecessary to consider that judgment in detail. It is sufficient to note that the first respondent’s case as described by the primary judge (at [2]) was that “Mrs Cremer was exposed to the inhalation of asbestos dust and fibre in circumstances which showed a want of reasonable care on the part of the defendants for her safety”. Her exposure to those products was said to have come about when she worked in various hardware businesses over the periods 1936 to 1944, 1961 to 1965, 1965 to 1974 and finally from 1974 to 1984.

13 The respondents were, respectively, the manufacturers of various products, each of whom was severally said to have supplied those products, presumably for sale, to the hardware businesses in which Mrs Cremer worked. The evidence was that the appellant supplied fibro sheeting to the businesses. The primary judge found (at [30] and [50]) that all staff in the hardware stores, including Mrs Cremer, handled fibro sheeting and that it gave off dust when the handling was being undertaken and that exposure caused her mesothelioma.

14 Damages were assessed at $191,613.25, comprising $150,000 for general damages, $8,250 in interest on general damages and $4,000 for loss of expectation for life. It appears that judgment has been satisfied by one or all of the second – fourth respondents – a fact reflected in the vigour with which they resisted the appeal.

15 The primary judge ordered the appellant to pay indemnity costs from 14 May 2004 on the basis that the first respondent had done “a little better” than an offer of compromise made on 16 April 2004. His Honour also ordered that the costs of the separate hearing be costs in the cause.

16 The appellant does not contest the primary judge’s findings on liability or quantum. Its appeal is confined to the complaint that the primary judge erred in holding that s 12B applied to the first respondent’s proceedings against it and, the consequential finding that the first respondent was entitled to recover as against it damages for pain and suffering of the deceased, bodily and mental harm suffered by the deceased and curtailment of the deceased’s expectation of life.

Submissions

17 Mr T.G.R. Parker SC, who appeared for the appellant substantially repeated the argument unsuccessfully advanced below. He submitted that s 12B did not apply to the proceedings against the appellant as they had not been commenced at the time of her death. He contended that “proceedings commenced” in s 12B meant “proceedings commenced [against]” the party from whom a plaintiff sought subs 2(2)(d) damages.

18 Mr Parker argued that the term “proceedings” in s 11(1) of the Tribunal Act focused on the proceedings brought by or on behalf of the victim, the person who suffered damages, against a particular wrong-doer guilty of breach of duty. He pointed to subs 11(1)(b) which refers to an allegation that the dust-related condition was attributable or partly attributable to a “breach of duty owed to the person by another person”, and contended that where claims were made against a number of defendants, each on the basis of a separate breach of duty, separate “proceedings” for the purposes of the Act could be instituted against each defendant. The proceedings against the appellant were, it followed, different “proceedings” for the purposes of the Act from the proceedings against the second – fourth respondents.

19 Mr Parker also argued that the proceedings against the appellant were different from those commenced against the second – fourth respondents because the proceedings brought against them were brought by “the person who is … suffering from the dust-related condition”, whereas the proceedings against the appellant had been brought by “a person claiming through that person”. Next, he pointed out that while SCR, Pt 8 r 2 provided for the joinder of two or more persons as defendants where separate proceedings might otherwise be brought against them and r 8 provided for the joinder of additional parties if appropriate, the plaintiff had not been required to bring all the proceedings against the four different defendants in one action. He submitted that had a separate action been brought against the appellant after Mrs Cremer’s death, there would have been no question of s 12B applying. Accordingly the procedural circumstance that the action against the appellant was able to be “tacked” on to the actions against the other defendants should not be determinative of the parties’ substantive rights.

20 Mr Parker submitted that the same result followed by determining whether “proceedings” had been “commenced” for the purposes of s 12B when the proceedings first began against the other defendants or when it had been joined as a defendant. He submitted they were commenced against the appellant when it was joined whether by operation of the Supreme Court Rules which applied to proceedings in the Tribunal (Dust Diseases Tribunal Rules, r 2 and see Fernance v Nominal Defendant (1989) 17 NSWLR 710 at (720)) or as a matter of general principle: Ketteman v Hansel Properties Ltd [1987] AC 189 at (200).

21 The consequence if the appellant’s argument is successful, would be that the judgment against Amaca would be set aside and replaced by one for the costs of care and agreed out-of-pocket expenses (which was the only head of economic loss) in the amount of $29,363.25.

22 Mr B Ferrari, who appeared for the first respondent adopted the second, third and fourth respondents’ written submissions. In addition he submitted that on its proper construction, s 12B applied as long as proceedings had been commenced and were pending prior to the relevant death seeking damages for a dust related condition. He also argued that, to the extent that it might be thought that the word “proceedings” in s 12B was ambiguous, the fact it appeared in a beneficial provision meant it should be “construed so as to give the most complete remedy which the phraseology will permit”.

23 Mr D Russell SC, who appeared for the second, third and fourth respondents, submitted that the construction accepted by the primary judge promoted the purpose underlying s 12B in accordance with s 33 of the Interpretation Act 1987. He emphasised that the purpose of s 12B was to increase the rights of victims of dust diseases. Like the first respondent, he contended the Act was beneficial legislation and should be construed accordingly.

24 Mr Russell submitted that s 12B focused on whether the victim’s proceedings were in existence and pending before the Tribunal at the date of death, rather than the identity of the parties to the proceedings. He argued that the construction for which the appellant contended would have the effect of imposing a form of limitation period in relation to some heads of damages in favour of a defendant, contrary to the purpose of s 12B.

25 He argued that proceedings commenced against anybody prior to the deceased’s death were sufficient to satisfy s 12B(2) if four elements, all of which he contended were satisfied in this case, were present:

(a) proceedings;

26 Mr Russell argued that SCR, Pt 8 r 11(3) was only important in cases where a party was joined after a limitation period had expired in order to establish the date of commencement of proceedings against the added party. He pointed out that in the case of claims by victims of dust-related conditions, there was no limitation period (s 12A). He submitted that Pt 8 r 11(3) had no role to play when the date of the commencement of proceedings against a particular party had no particular significance.

27 Finally, Mr Russell contended that the first respondent had only brought one “proceedings” by filing one Statement of Claim, albeit that several defendants were named in that process. In support of that argument he submitted that Pt 8 r 11(3), SCR spoke in terms of “proceedings” in the singular to which an additional defendant was joined as a party. He contended that if the appellant’s construction of the word “proceedings” in s 12B were correct, there would be no need for Pt 8 r 11(3) because “separate” proceedings were commenced by the joinder of an additional defendant.

Legislative framework

28 The Tribunal Act was passed to create a Tribunal with jurisdiction to hear claims in tort for negligence and breach of statutory duty relating to death or personal injury attributable to dust-related conditions. It was created as a Tribunal separate from the common law jurisdictions of both the Supreme and District Courts to ensure such claims were dealt with “expeditiously … [by] a fast-track mechanism”: Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 3 May 1989, 7398.

29 In Goliath Portland Cement Co Ltd v Bengtell (1994) 33 NSWLR 414 (at 417) Gleeson CJ described the Tribunal Act in the following terms:

“The scheme of the legislation is to create a specialist tribunal to deal with a certain type of claim for damages, to constitute that tribunal a court of record, and to give it the exclusive jurisdiction to hear and determine claims of the specified kind. Such proceedings would otherwise be heard in the Supreme Court or the District Court. In that respect, the Tribunal's jurisdiction replaces that formerly exercised by those courts.”

30 The Tribunal Act was significantly amended by the Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005 (the “2005 Act”) but not, in my view, in a manner which illuminates the interpretation issue posed by this case: cf Grain Elevators Board (Vic) v Dunmunkle Corporation [1946] HCA 13; (1946) 73 CLR 70. I refer to the provisions in force at the time the Statement of Claim was filed, which remained in force until judgment.

31 The Tribunal has “exclusive jurisdiction to hear and determine proceedings referred to in sections 11 and 12”: s 10. In any proceedings brought under s 11 or transferred under s 12, the Tribunal has the same power to make decisions as the Supreme Court would, but for s 10, have had in relation to similar proceedings brought in the Supreme Court: subs 10(4)

32 Section 11 provided:

11 Claims for damages for dust diseases etc to be brought under this Act

Compensation to Relatives Act

33 Section 12 provided that if, on its commencement, “proceedings of the kind referred to in section 11(1)” were “pending” in the Supreme or District Courts and the hearing of those proceedings had not begun, or if, after that commencement, “proceedings of that kind” were brought or were pending in the Supreme or District Courts, the relevant registrar of either Court was required to transfer “the proceedings to the Tribunal, together with any ancillary or related matters”.

34 Section 12B was inserted into the Tribunal Act by the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 (the “Dust Diseases Amendment Act”).

35 In the Second Reading Speech to the Bill which became the Dust Diseases Amendment Act the Attorney General, The Hon J W Shaw MLC, described its main purpose as being “to increase the fairness of workers compensation and common law provisions relating to dust diseases …”. He said:

“It is an established principle that the relevant employers have a responsibility to fund claims under the separate workers compensation dust diseases scheme and related common law claims. This bill provides a package of improvements that is designed to be fair and reasonable to all parties affected. One of the main proposals relates to common law entitlements for dust diseases in circumstances where the claimant dies before his or her claim is determined by the Dust Diseases Tribunal. In those circumstances, the entitlement to general damages – that is, damages for pain and suffering, loss of amenity and related items – is automatically extinguished.

It is not uncommon for workers and other persons suffering from the most serious type of dust disease to have very limited life expectancy. Consequently, claimants are often under considerable pressure to try to finalise their general damages claim before death, for the benefit of their families. This has meant that in some cases hearings have been held in harrowing circumstances when the claimant is on the verge of death. Having regard to the special nature of dust diseases, the Bill provides that where the claimant dies before completion of the Tribunal proceedings the claimant’s estate will still be able to pursue recovery of the outstanding general damages. This is intended to avoid the arbitrariness and added distress involved in the present situation.”

Parliamentary Debates

36 In Wallaby Grip (BAE) Pty Ltd (in liq) v Eraring Energy [2004] NSWCA 269; (2004) 60 NSWLR 701 at [24] Mason P (with whom Sheller and Ipp JJA agreed) described “[t]he entire focus of … the second reading speech [as] concern for the victim”.

37 Section 12B provides:

12B Damages for non-economic loss after death of plaintiff

(1) The purpose of this section is to enable the estate of a person whose death has been caused by a dust-related condition to recover damages for the person’s pain or suffering, or for any bodily or mental harm suffered by the person, or for curtailment of the person’s expectation of life, provided proceedings commenced by the person were pending before the Tribunal at the person’s death.

(2) Section 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 does not apply in relation to proceedings commenced by a person before his or her death and pending before the Tribunal at his or her death, where the cause of action is for damages in respect of a dust-related condition.”

38 Schedule 3 enacted Savings, transitional and other provisions consequential upon, inter alia, the Dust Diseases Amendment Act. Clause 8 provided:

8 Damages for non-economic loss after death of plaintiff

(1) Section 12B, which was inserted by the amending Act, extends so that it applies in relation to the following proceedings:

(a) proceedings commenced before the commencement of that section and pending at that commencement,

(b) proceedings commenced before the commencement of that section, where the person died before 7 May 1998 and the proceedings:

(ii) were still pending on 7 May 1998,

(2) Section 12B applies in relation to proceedings commenced after the commencement of that section, whether the cause of action arose before or arises after that commencement.

(3) However, section 12B does not apply in relation to a cause of action to the extent that proceedings on the cause of action have been determined before the commencement of that section.”

39 Schedule 2 of the Dust Diseases Amendment Act also amended s 2 of Miscellaneous ProvisionsAct by inserting a new subs (7), so that it relevantly provides:

“2 Effect of death on certain causes of action

(1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in the person shall survive against, or, as the case may be, for the benefit of, the person’s estate…

(d) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall not include any damages for the pain or suffering of that person or for any bodily or mental harm suffered by the person or for the curtailment of the person’s expectation of life.

Dust Diseases Tribunal Act

40 Sections 12A, 12C and 12D were also inserted by the Dust Diseases Amendment Act.

41 Section 12A removed limitation periods for those suffering from dust-related conditions, enabling such “proceedings to be brought before the Tribunal … at any time”. Section 12C ensured that settlement with “one or more joint tortfeasors in or in relation to proceedings before the Tribunal and who are liable in respect of damage as a result of a dust-related condition” should not bar recovery against one or more other joint tortfeasors (whether or not they are defendants in the proceedings), unless the terms of the settlement otherwise provide.

42 Section 12D applies to “proceedings before the Tribunal…for damages in relation to dust-related conditions” and provides that “[i]n determining damages for non-economic loss in any such proceedings, no deduction is to be made for any amount of compensation already paid or payable, or payable in the future, under the Workers’ Compensation (Dust Diseases) Act 1942”.

43 Section 17 deals with parties to proceedings before the Tribunal. It relevantly provides:

(b) a decision in the proceedings may be given and enforced against the person or persons found to be liable.

(4) An executor, administrator, trustee or other legal personal representative may bring or defend proceedings before the Tribunal in the same manner as if he or she were bringing or defending proceedings in his or her own right.

(5) If, before the holding of particular proceedings before the Tribunal or at any stage during the holding of any proceedings, the Tribunal is of the opinion that a person ought to be joined as a party to the proceedings, the Tribunal may, by notice in writing served on the person or by oral direction given during the proceedings, join the person as a party to the proceedings.”

44 At all relevant times the Supreme Court Rules applied to proceedings before the Tribunal “with necessary modifications and to the extent they [were] not inconsistent with” the Act: Dust Diseases Tribunal Rules, cl 2.

45 Part 8 r 11(3), SCR provided:

(a) where he is added as a defendant – the date on which the amendment adding him as a defendant is made or the date of entry of his appearance or the date of filing his defence, whichever is earliest;

(b) otherwise – the date on which the amendment adding him as a party is made.”

46 No party suggested the appellant had been added as a party pursuant to either Pt 8 r 10 (substitution of a person for a deceased party) or Pt 20 r 4(3) (amendment to correct misnomer).

Consideration

47 The appeal is confined to error of law: s 32, Tribunal Act. There was no argument that, if the primary judge had erred in his interpretation of s 12B, he had erred in law: Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at pp 8–9 per Mason J (with whom Gibbs, Stephen, Murphy and Aickin JJ agreed).

48 The task of construing s 12B falls for consideration primarily by reference to its context, including in that expression the existing state of the law and the mischief it was intended to remedy: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 (at 408). It should be construed so that it is consistent with the language and purpose of all provisions of the Act: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]. In undertaking this exercise, the Court is required to prefer a construction that would promote the purpose or object underlying the Act to one which would not promote that purpose or object: s 33, Interpretation Act 1987.

49 As I have already noted, the main purpose of the Dust Diseases Amendment Act was, inter alia, “to increase the fairness of common law provisions relating to dust diseases”. It sought to do so not only by the ameliorating provisions of s 12B, but also by ensuring proceedings relating to dust-related conditions were not subject to any limitation period (s 12A), by addressing the outcome of James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1997) 15 NSWCCR 247 concerning the effect on rights of contribution of entry of judgment in favour of a defendant against the plaintiff (s 12C) and, too, addressing the decision of this Court in James Hardie & Co Pty Ltd v Newton (1997) 42 NSWLR 729 by ensuring that workers compensation entitlements of a person claiming damages for a dust disease were only deducted from that part of damages relating to economic loss (s 12D).

50 Section 12B is, therefore, properly to be regarded as of a beneficial or remedial nature (see State of Queensland v Stephenson & Anor [2006] HCA 20 at [52] – [53] per Kirby J) and, if ambiguous, to be construed “so as to give the most complete remedy which is consistent ‘with the actual language employed’ and to which its words ‘are fairly open’ ”: Khoury v Government Insurance Office of New South Wales [1984] HCA 55; (1984) 165 CLR 622 (at 638) per Mason, Brennan, Deane and Dawson JJ; Holmes v Permanent Trustee Company of New South Wales Limited [1932] HCA 1; (1932) 47 CLR 113 at (119) per Rich J.

51 It is essential to recall, that in Bull v Attorney-General (NSW) [1913] HCA 60; (1913) 17 CLR 370, the classic judgment on interpreting remedial statutes, Isaacs J said (at 384) that the beneficial approach did not mean “that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow”. Thus, identifying s 12B as remedial should not obscure the question of determining the meaning of the relevant words: Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 77 ALJR 1797 at [33] per Heydon J (with whom McHugh ACJ, Gummow, Kirby and Hayne JJ agreed). Further, the principle that beneficial legislation should be given a liberal construction does not entitle a court to give it a construction that is unreasonable or unnatural: IW v City of Perth (People Living with AIDS case) [1997] HCA 30; (1997) 191 CLR 1 (at 11 – 12) per Brennan CJ and McHugh J.

52 The first task in determining the meaning of s 12B is to consider the legislative context.

The Tribunal’s jurisdiction

53 While the Tribunal Act ostensibly merely carved out the jurisdictions of the Supreme and District Courts to hear and determine claims for damages for breaches of duty said to have caused a dust-related condition, it also established a substantive and procedural regime peculiar to such matters, the nature of which was described by Callinan J in BHP Billiton Limited v Schultz [2004] HCA 61; (2004) 221 CLR 400 at [241] as follows:

Tribunal Act

54 It is pertinent to note some other observations Callinan J made (at [231] – [234]), with which Kirby J agreed at [148]. He described s 12B as:

“…alter[ing] the common law, and is, if not unique, certainly an unusual provision enabling the recovery of damages for non-economic loss by the estate of a person dying after the institution of proceedings for damages with respect to a dust-related condition.”

55 It is not entirely clear why his Honour referred to s 12B as altering the common law, rather than the operation of subs 2(2)(d), but the point to be taken from this observation is his description of s 12B as “unusual”. His Honour made a similar observation about s 17(1) describing it (at [236]) as “arguably at least allow[ing] a finding of liability to be made against a person who has not been served with process” and (at [252]) as “capable of producing a situation which justice and accordingly courts generally abhor, of judgment and enforcement of it against a person who has been found liable, even though he or she may not have been served with process in, and be unaware of the proceedings”.

56 To this might be added Kirby J’s comments (at [148]) that ss 12A, 12B, 12C and 12D “expressly enlarge the rights of a claimant (or the claimant's family in the case of death) against the party found liable” and are “significant alterations to the substantive rights and obligations of parties”.

57 Other provisions of the Tribunal Act illustrate the unique nature of the tribunal’s jurisdiction. Section 11A permits the Tribunal to make an award of damages in stages. As Callinan J explained in BHP Billiton Limited v Schultz (at [226], Kirby J agreeing at [147]), s 11A “operate[s] to deprive the [defendant] of a defence that would otherwise be open: that the [plaintiff’s] damages had been assessed and judgment entered for him.” Gummow J agreed (at [79]) with Callinan J’s analysis of s 11A, adding (at [100]) that s 11A was “specially designed” to “operate to the favour of one side in the litigation”. Finally, ss 23, 25, 25A and 25B were described by Callinan J (at [253]) as:

audi alteram partem

58 I would also note that confining an appeal as of right from the Tribunal to the Supreme Court to a point of law and to questions as to the admission or rejection of evidence (s 32(1)) is a substantial restriction. In common law matters heard in the Supreme and District Courts appeals are by way of rehearing: s 75A(5), Supreme Court Act 1970.

59 It was into this legislative matrix that s 12B was inserted. It would be proper, in the light of that review, to describe the Tribunal Act, as well as s 12B, as remedial and calling for interpretation in that sense.

60 However s 12B must also be understood in the context of subs 2(2)(d) of the Miscellaneous Provisions Act, whose operation it modifies.

Section 2 of the Miscellaneous Provisions Act

61 At common law a cause of action in tort died with the person in whom it vested and did not survive for the benefit of the estate (actio personalis moritur cum persona - a personal action dies with the person): Fitch v Hyde-Cates [1982] HCA 11; (1982) 150 CLR 482 [at 487], per Mason J (with whom Gibbs CJ, Stephen, Aickin and Brennan JJ agreed).

62 Subsection 2(1) of the Miscellaneous Provisions Act abolished that rule ensuring the cause of action survived either to benefit or burden the estate of the deceased. However, where “a cause of action survives … for the benefit of the estate of a deceased person” the damages recoverable for the benefit of the estate are limited in the manner set out in subs 2(2).

63 Section 2 (with the exception of subs 2(2)(d)) of the Miscellaneous Provisions Act was substantially based on the Law Reform Miscellaneous Provisions Act 1934 (UK). Mason J explained the origin of subs 2(2)(d) in Fitch v Hyde-Cates (at 490):

Law Reform Act

The amending provision, to be found in s 17(1) of the

Statutes Amendment Act

1937 (NZ), was introduced to limit the defendant’s liability for loss of expectation of life in an action by the deceased’s estate, it being thought in New Zealand that

Rose v Ford

had opened the door to the deceased’s beneficiaries ‘making a profit’ out of his death

in McLeavey v Marris and Campbell Ltd

64 In Sugden v Sugden [1957] P 120 (at 134–5), speaking of the equivalent provision of the English Act, Denning LJ (as he then was) said:

actio personalis moritur cum persona

65 In McEvoy v Public Trustee (1989) 16 NSWLR 92 (at 102), Powell J (as he then was) described the function of s 2 as “twofold”, being “(a) in the cases to which it applies, to preserve the relevant ‘cause of action’; and (b) to transmit ‘the title’ to that ‘cause of action’ to the legal personal representative of the relevant deceased.”

The s 12B cause of action

66 Section 12B only relieves the estate of a person whose death has been caused by a dust-related condition from the subs 2(2)(d) limitation “in relation to proceedings commenced by a person before his or her death and pending before the Tribunal at his or her death, where the cause of action is for damages in respect of a dust-related condition.”

67 To what “cause of action” does s 12B refer?

68 A “cause of action” is “the fact or combination of facts which gives rise to a right to sue … [i]n an action for negligence, it consists of the wrongful act or omission and the consequent damage”: Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234 (at 245) per Wilson J.

69 In Ketteman v Hansel Properties (at 200), speaking of a limitation act provision precluding the bringing of an action after “the expiration of six years from which the cause of action accrued”, Lord Keith of Kinkel said:

“A cause of action is necessarily a cause of action against a particular defendant, and the bringing of the action which is referred to must be the bringing of the action against that defendant in respect of that cause of action.”

70 It is plain, accordingly, that “cause of action” in s 12B refers to a cause of action against a particular defendant. Which one?

71 Mr Ferrari accepted that the first respondent’s case proceeded on the premise that the appellant and the second – fourth respondents were concurrent rather than joint tortfeasors, and, accordingly, that Mrs Cremer had a separate cause of action against each. This was an appropriate characterisation of the proceedings, consistent with the distinction between joint and concurrent tortfeasors explained by Gleeson CJ and Callinan J in Baxter v Obacelo Pty Ltd [2001] HCA 66; (2001) 205 CLR 635 at [18] – [19]:

Joint Torts and Contributory Negligence

Thompson v Australian Capital Television Pty Ltd

The ‘Koursk’

Several concurrent tortfeasors, on the other hand, could not be joined as defendants in the one action. That was because they were severally liable ‘on separate causes of action’.

In the case of several concurrent tortfeasors, there was a separate cause of action against each, and if a plaintiff desired to sue more than one, it was necessary to commence separate actions

72 The following must therefore be accepted. First, the cause of action Mrs Cremer had against the appellant was separate to that she had against the second – fourth respondents. It was that cause of action, to use Powell J’s phraseology, which was preserved by s 2 of the Miscellaneous Provisions Act and transmitted to the first respondent. Secondly, Mrs Cremer could not, save for SCR, Pt 8, r 2, have brought proceedings in one statement of claim against more than one of the defendants, they being concurrent tortfeasors only. The procedural mechanism in SCR, Pt 8, r 2, designed to ensure the efficient disposition of actions, cannot disguise the reality that the proceedings against the appellant related to a separate cause of action and were different from those against the second – fourth respondents.

73 However the respondents argue that “proceedings” in s 12B does not refer to the proceedings against the appellant but to those against the defendants commenced by Mrs Cremer prior to her death and pending at that date, and that the commencement of those proceedings was sufficient to attract the operation of s 12B to all joined in those proceedings, whenever they became a party.

The s 12B proceedings

74 This leads to the critical question: to what “proceedings” does s 12B speak? Is it any proceedings commenced prior to the deceased’s death against any party, to which other parties may be joined after death or, as the appellant submits, proceedings commenced against a particular defendant in respect of a cause of action which survived pursuant to s 2(1) of the Miscellaneous Provisions Act?

75 It is clear that “[t]he word ‘proceedings is one of great generality” and “takes its precise meaning from the context in which it appears” Clarence v Electricity Commission of New South Wales (1990) 20 NSWLR 1 (at 4) per Kirby P, citing Quazi v Quazi [1980] AC 744 (CA); 800 (HL) at 808, 809 and 811-812. In Blake v Norris (1990) 20 NSWLR 300 (at 306) Smart J observed that Stroud's Judicial Dictionary, 5th ed, vol 4 at 2029-2035 gave “some fifty-five instances … of the use of the words ‘proceeding’ or ‘proceedings’ in legislation, rules of court or documents having legal significance”.

76 The jurisdiction the Tribunal exercises is, in effect, the common law jurisdictions of the Supreme and District Courts vested in it by s 10 which gives the Tribunal jurisdiction to “hear and determine proceedings” referred to in ss 11 and 12. While the Act is beneficial in nature, nothing indicates that words in it referring to the invocation of the jurisdiction which would otherwise be exercised by those courts, are used other than in their primary sense as terms of legal art: see Herbert Berry Associates Ltd v Inland Revenue Commissioners [1977] 1 WLR 1437 (at 1446) per Lord Simon of Glaisdale (with whom Viscount Dilhorne, Lord Morris of Borth-y-Gest and Lord Scarman agreed).

77 The word “proceedings” ordinarily refers to the “method permitted by law for moving a court or judicial officer to some authorised act” (Cheney v Spooner [1929] HCA 12; (1929) 41 CLR 532 (at 536-537) per Isaacs and Gavin Duffy JJ), or “any application by a suitor to a court in its civil jurisdiction for its intervention or action” (Cheney v Spooner at 538-539, per Starke J) or to “the invocation of the jurisdiction of the court by process other than writ” (Herbert Berry Associates Ltd v Inland Revenue Commissioners at 1446).

78 “Proceedings” when used in ss 10-11 of the Tribunal Act plainly refers to the invocation of the Tribunal’s jurisdiction to enforce the cause of action to recover damages in relation to the breach of duty referred to in s 11(1)(b) against the person said to have breached that duty. “Proceedings” in s 12B also refers to the invocation of the Tribunal’s jurisdiction, clearly refers to s 11(1) proceedings and must, therefore, be given the same meaning as in that section: see Herbert Berry Associates Ltd v Inland Revenue Commissioners at 1446.

79 This approach accords with Wallaby Grip (BAE) Pty Ltd (in liq) v Eraring Energy (at [25], [29]) where Mason P held that the “proceedings” referred to in s 12A should be understood by reference to ss 11(1) or 12 which identified the persons entitled to commence proceedings that “may be brought before the Tribunal”. Accordingly s 12A(2) did not operate to displace the operation of s 26 of the Limitation Act 1969 on cross-claims for statutory contribution in the Tribunal or elsewhere.

80 Accordingly, in my view, s 12B applies to proceedings in relation to a cause of action for damages in respect of a dust-related condition commenced against a particular defendant by the deceased and pending before the Tribunal at his or her death.

When were proceedings commenced against the appellant?

81 This leads to the question of when proceedings were commenced against the appellant. I did not understand the respondents to dispute that if the relevant proceedings for the purposes of s 12B were those commenced against the appellant, they were commenced when it was joined as a party after the deceased’s death. That concession was properly made as the following demonstrates.

82 The primary judge said the appellant was joined pursuant to Pt 20 r 1, SCR. That cannot be correct. That rule was a general power of amendment. A general rule of that nature will not operate in the face of specific provisions dealing with adding parties (Fernance, at 721). In this case the Tribunal had two potential sources of power to add a party: s 17(5) of the Actor SCR Pt 8 r 8.

83 It is more probable that when dealing with the first respondent’s application to add the appellant as a party O’Meally J exercised the s 17 power, a power which prevailed over any rule of court. That provision was silent as to the date when proceedings against the appellant “commenced”. That question was to be determined by SCR Pt 8, r 11(3) or as a matter of principle. Both approaches led to the conclusion that the proceedings against the appellant were commenced when it was added as a party, a position which would have applied even in the absence of a specific rule: Wenham v General Credits Ltd (McLelland J, 16 December 1988, unreported) cited with approval in Fernance (at 718).

Absurdity

84 Both parties submitted that their contention should be accepted to avoid absurd consequences.

85 Mr Russell submitted that if the first respondent had not joined the appellant, the second, third and fourth respondents would have been liable for the entire judgment but could have cross-claimed to seek contribution from the appellant: s 5, Law Reform Miscellaneous Provisions Act 1946. Had they succeeded on that claim, he argued, they could have obtained contribution from the appellant towards the entire judgment; including the subs 2(2)(d) damages. If the appellant’s argument was correct, however, it was not liable for those heads of damage as it was joined after the victim had died. Accordingly, Mr Russell contended that the appellant’s construction left the quantum of some defendants’ rights to contribution at the mercy of whether or not the estate had joined another tortfeasor after the death of the victim.

86 This argument can be readily disposed of. It proceeds on a false premise. If the damages the first respondent can recover against the appellant are limited by virtue of subs 2(2)(d) of the Miscellaneous Provisions Act, that must be taken into account when considering a contribution order pursuant to the Law Reform (Miscellaneous Provisions) Act 1946, s 5 – whenever the appellant was joined as a cross-defendant. As Fullagar J said in Unsworth v Commissioner for Railways (1958) 101 CLR 73 (at 87):

The Law Reform (Tortfeasors Contribution, Contributory Negligence and Division of Chattels) Act of 1952

The Law Reform Act

87 As Bryson JA said in Roads & Traffic Authority v Ryan [2005] NSWCA 34; (2005) 62 NSWLR 609 at [103], it is “well established that regard should be paid, when deciding what contribution is to be awarded under s 5, to special statutory limitations of the damages recoverable against a person against whom contribution is to be awarded.”

88 The appellant’s absurdity argument has more force. Its argument was that the primary judge’s decision exposed it to a liability to which it could not have been exposed if the proceedings against it had been commenced after Mrs Cremer’s death i.e. if it had not been added as a defendant to the original Statement of Claim. This argument highlights the extent to which s 12B changed the pre-existing law.

89 Subsection 2(2)(d) applies irrespective of when proceedings were commenced. If the plaintiff commenced proceedings then died, subs 2(2)(d) meant while the cause of action survived death, the estate would not recover subs 2(2)(d) damages. The same result enured if the estate commenced proceedings after the death of a person in whom a cause of action was vested.

90 When the legislature decided to exempt dust-related conditions from the subs 2(2)(d) limitation, it did so by reference to whether proceedings had been commenced prior to death. This was not an arbitrary date but, rather, one apparently selected on the premise that, but for the precipitate demise which often followed diagnosis of dust-related conditions, the deceased would in most cases be able to see such proceedings to fruition and to recover damages to the fullest extent, including, of course, recovering damages for non-pecuniary losses.

91 There can be no doubts 12B was intended to be given ample operation as can be seen from cl 8 of the Savings, transitional and other provisions which I earlier set out giving s 12B both substantive and procedural retrospective operation, save in respect of proceedings which had been determined prior to its commencement (cl 8(3)).

92 As I earlier observed, the insertion of s 2(2)(d) in the Miscellaneous Provisions Act appeared to have been prompted by a concern that the estate should not profit from the deceased’s demise. The legislature’s concern to remove that constraint in dust-related condition cases can be readily understood. It could have achieved the result for which the respondents contend by providing that subs 2(2)(d) did not apply to causes of action to recover damages for dust-related conditions. It did not. It made that relief conditional on the commencement by the person suffering from the dust-related condition of proceedings in relation to the cause of action against the person to whose breach of duty that condition was alleged to have been attributable.

93 The legislature, accordingly, applied a limitation on the s 12B exemption from s 2(2)(d) which must be reflected in its interpretation. The interpretation the appellant proposes for s 12B gives effect to that limitation. The respondents’ does not.

94 In his Second Reading Speech to the Dust Diseases Amendment Act the Attorney General said the Bill provided “improvements … designed to be fair and reasonable to all parties affected”. This is reflected, in my view, in the condition the legislature attached to the relaxation of the subs 2(2)(d) limitation.

95 Even accepting the dictates of principles relating to the interpretation of beneficial legislation, the respondent’s contentions are, in my view, not fairly open on the language employed of s 12B.

96 In my view the appeal should be allowed.

Costs

97 The consequence is that the judgment against the appellant should be set aside leaving it only to a judgment for the heads of economic loss in the amount of $29,363.25.

98 The appellant submits that once the judgment against it is reduced the foundation for an indemnity costs award against it disappears. It also contends that if the appeal is upheld it should have succeeded on the separate hearing and been awarded its costs of that argument.

99 It seeks an alteration to the first instance costs orders and their replacement by an order that the respondents pay its costs of the separate hearing on a party-party basis and that it pay the first respondent’s costs of the proceedings on a party-party basis.

100 The first respondent accepts that if the appellant succeeds on the appeal the indemnity costs order must go. He resists, however, the appellant’s application for an order varying the costs of the separate trial. He submits that that trial was an interlocutory hearing and the order that its costs be costs in the cause was appropriate, whatever its outcome. He also submits that the question to be determined was a novel point not previously dealt with by the Tribunal which, by way of analogy with a test case, it was in the interests of the parties to have resolved before trial.

101 As to the costs of appeal the first respondent points out that the original Notice of Appeal sought relief only against him. It appears that at the Registrar’s call-over he directed the appellant’s attention to the need for leave where the only matter in dispute was costs, he at that stage having been paid the entirety of the verdict. The appellant then joined the second – fourth respondents. The first respondent submits that the appellant would not have been granted leave to appeal where the only matter in issue was whether it should pay indemnity or party-party costs and, in the circumstances, that the appropriate costs order is that the appellant pay his costs of the appeal.

102 In my view the first respondent’s submissions should be rejected. The separate trial was one in which all parties participated. Had the appellant succeeded, as it ought, it is difficult to see why the appropriate costs order would not have been in its favour. Equally the first respondent participated in the appeal when he could have filed a submitting appearance, reserving his position on the costs of the appeal. It was clearly in his interests to participate more fully in the appeal to seek to preserve the costs orders from which he benefited below.

103 I propose the following orders:

1. Appeal allowed.

2. Set aside the judgment in favour of the first respondent as against the appellant.

3. In lieu thereof, give judgment for the first respondent against the appellant in the sum of $29,363.25.

(1) Respondents to pay the appellant’s costs of the hearing on 10 May 2004 on a party-party basis;

(2) Appellant, second, third and fourth respondents to pay the first respondent’s costs of the proceedings in the Tribunal and, in the case of the second, third and fourth respondents, on an indemnity basis from 14 May 2004.

5. Respondents to pay the appellant’s costs of the appeal.

Suitors’ Fund Act

104 BASTEN JA: I have read in draft the judgment of Brereton J and am indebted to him for his comprehensive and balanced consideration of the matters potentially relevant to the determination of this appeal. However, I have come to a different conclusion.

105 The late Winifred Cremer was exposed to asbestos in the course of her employment with four separate employers. On 16 March 2003, she died from mesothelioma. Prior to her death she had commenced proceedings in the Dust Diseases Tribunal against three employers; after her death her executor joined the fourth employer, Amaca Pty Ltd, which is the present Appellant.

106 The ultimate issue in this appeal is whether Mrs Cremer’s estate was entitled to recover damages from Amaca on account of pain and suffering, bodily or mental harm suffered by her, or for the curtailment of her expectation of life. (It is convenient to refer to these heads of damage, compendiously, as “damages for pain and suffering”.)

107 The proceedings were brought in the Dust Diseases Tribunal, a body established by the Dust Diseases Tribunal Act 1989 (NSW) (“the Tribunal Act”). That Act provides for “proceedings for damages in respect of [a] dust-related condition or death” to be brought before the Tribunal; it does not create any statutory cause of action: see s 11 set out at [32] above. Accordingly, the proceedings must relate to a general law cause of action, namely negligence, which will survive the death of the plaintiff, for the benefit of his or her estate, by virtue of s 2 of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) (“the LRMP Act”). However, s 2(2)(d) provides that where such a cause of action survives for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate shall not include damages for pain and suffering: see text of s 2 set out at [39] above.

108 If the estate were reliant upon the effect of s 2 of the LRMP Act, damages for pain and suffering would not be recoverable. However, subject to one qualification, s 12B of the Tribunal Act overrides the exclusion contained in s 2(2)(d) of the LRMP Act, so that the estate may recover damages for pain and suffering, if the qualification is fulfilled: see text of s 12B, set out at [37] above. The qualification, being the condition for the engagement of s 12B, is that “proceedings commenced by the person were pending before the Tribunal at the person’s death”. The issue in this case is whether that condition was satisfied.

109 The primary contention put on behalf of the estate, and accepted by the Tribunal, was that Mrs Cremer suffered a dust-related condition, namely mesothelioma, in respect of which she had a cause of action for damages. Proceedings with respect to that condition were pending at the date of her death, albeit not against the Appellant. The existence of those proceedings, in relation to that condition, was sufficient to satisfy the statutory condition in s 12B and, accordingly, s 2(2)(d) of the LRMP Act did not apply in relation to those proceedings.

110 The counter argument, put on behalf of the Appellant, was that the proceedings must relate to a cause of action which must, in turn, identify a legal liability on the part of a particular person (including a corporation). Section 12B(2), which refers to “the cause of action” must be read distributively so as to apply separately to each cause of action in respect of which a particular proceeding has been commenced. Thus, the commencement of proceedings against one employer only, will allow damages for pain and suffering to be obtained by the estate from that employer, but not from a separate employer, who was only joined after the death of the claimant.

111 In the event that it was unsuccessful on its primary argument, the estate sought to avoid the effect of the Appellant’s construction by asserting that it had, in any event, commenced proceedings against the Appellant before the death of Mrs Cremer because, pursuant to the doctrine of relation back, the addition of a cause of action to existing proceedings is taken to have effect from the commencement of the proceedings and not from the date of joinder.

112 The concept of “relation back” needs to be approached with some care. On the one hand, it may prevent the addition of a cause of action which had not arisen at the time the proceedings were commenced: see Baldry v Jackson [1976] 2 NSWLR 415. On the other hand, it may be invoked to overcome a limitation period which had expired prior to the joinder. Other temporal problems can arise: thus, assuming the joinder to be effective, the doctrine might leave the new defendant immediately out of time to file a defence and allow the plaintiff to sign judgment forthwith. The answer to each of these difficulties will depend upon the operation of the particular statutory scheme.

113 The parties assumed in the course of the current proceedings that the Appellant was added pursuant to Part 8 of the Supreme Court Rules, which have application in the Tribunal, except as otherwise provided by the Tribunal rules: see Dust Diseases Tribunal Rules, r 2. However, the Supreme Court Rules only apply with such necessary modifications and to the extent that they are not inconsistent with the Tribunal Act: r 2(2). Thus, before considering the possible effects of the Supreme Court Rules in relation to joinder, it is necessary to consider the operation of the Tribunal Act.

114 The starting point for the relevant statutory analysis is s 17, which needs to be considered as a whole.

17 Parties to proceedings before the Tribunal

Supreme Court Act 1970

115 There are two features of s 17(1) which invite attention. First, sub-s 17(1) suggests that, in the case of joint liability, proceedings may give rise to a finding of liability on the part of each person jointly liable, even though only one of those persons has been served with the process. That gives rise to both a general question and a specific question. The general question is whether it is necessary to name each of the parties who are jointly liable in order to establish such liability on the part of those not served with process. The specific question is whether the Appellant was jointly liable with the other employers in the present case.

116 No reliance was placed in the present case on s 17(1), presumably because exposure to asbestos does not give rise to a cumulative effect, but each exposure involves a separate and independent liability. Nevertheless, even if s 17(1) is not engaged in the present case, it is potentially relevant to the construction of s 12B.

117 The second aspect of s 17(1) which deserves attention is that, at least in relation to joint liability, the Parliament was prepared to allow the Tribunal to proceed against one party, in the absence of others who might be affected by its judgment, in circumstances which would generally be considered procedurally unfair. The operation of this provision appears not to have been considered in detail in reported cases, but its unusual features were adverted to by Callinan J in BHP Billiton Ltd v Schultz (2004) 221 CLR 400 at [236] and [252].

118 The joinder power contained in sub-s 17(5) is a power conferred on the Tribunal and not on a party to proceedings. Thus, the Tribunal is given an independent power to join parties who, in its view, “ought to be joined”. While such a power existed in the Supreme Court Rules, its exercise by the Court of its own motion would be rare: see Supreme Court Rules 1970 (NSW), Part 8, r 8(1) (as then in force). Further, the power in r 8 was engaged where a person “ought to have been joined” as a party or as a person whose joinder was “necessary” to dispose of all matters in dispute: see now Uniform Civil Procedure Rules 2005 (NSW), r 6.24. As will appear below, s 17(5) deals both with the joinder of parties “before the holding of particular proceedings” (though presumably after their commencement) and, subsequently, to proceedings already constituted and underway. In the Supreme Court Rules, once proceedings had commenced, further parties could be added, rather than being joined. (The Uniform Civil Procedure Rules adopt the language of joinder in both instances.)

119 On the assumption that the Appellant was indeed added to the proceedings pursuant to the Supreme Court Rules, it is appropriate to note their relevant effect. The operation of Part 8, r 8 of the Supreme Court Rules was discussed in Fernance v Nominal Defendant (1989) 17 NSWLR 710. That case is authority for two propositions. The first is that, for the purposes of the Limitation Act 1969 (NSW), the date of commencement of a particular action will be determined by reference to the rules of the court in which the proceedings are brought. Secondly, where a person had been added to existing proceedings, pursuant to Part 8 of the Supreme Court Rules, the date of commencement of proceedings against that person was determined in accordance with Part 8, r 11(3) as the date on which the person was added in accordance with the relevant rule in Part 8: see now Uniform Procedure Rules, r 6.28. The specific effect of that provision was held to operate according to its terms and to the exclusion of the general power of amendment contained in Part 20, r 4. As noted by Gleeson CJ in Fernance (at 719B-E):

McGee

v Yeomans

120 At the very least, s 17 would appear to permit the Tribunal to have a discretion in determining whether a person should be added as a party and, where parties are jointly liable, to proceed to uphold liability which may be enforceable against any party held liable, so long as at least one such person has been served with its process.

121 For reasons which will appear below, in my view the condition in s 12B was satisfied once proceedings were commenced by Mrs Cremer in respect of her dust-related condition. Those proceedings did not need to be commenced against each employer, prior to her death, in order for her estate to recover damages for pain and suffering from that employer. Accordingly, it is not necessary to determine whether a joinder effected by the Tribunal pursuant to s 17(5) should be treated as having occurred automatically at the commencement of the proceedings (by the doctrine of relation back) or to have occurred only upon joinder, or whether it was open to the Tribunal to determine when the joinder was to take effect and, if the Tribunal had such a power, whether it could specify a date earlier than that on which the new party was in fact joined. However, it would have been necessary to answer that question in relation to s 17(5) in order to determine whether Part 8, r 11(3) of the Supreme Court Rules would have been inconsistent with the statutory power and whether some modification would have been necessary.

122 Turning then to the operative provision, s 12B appears to look, Janus-like, in two directions at once. Thus, sub-s (1) qualifies its identification of its own purpose by reference to the time when proceedings were commenced. On the other hand, sub-s (2), which is the operative provision, refers not merely to “proceedings commenced” by a person before her death, but adds a further qualification, namely “where the cause of action is for damages in respect of a dust-related condition”. The addition of the further qualification, by reference to “the cause of action” is somewhat ambivalent. According to the Appellant, it highlights the need to focus not on the proceedings generally, but on the proceedings in relation to a particular defendant, as a cause of action can only exist as between identified parties. The alternative construction would give the qualification quite different work to do. Pursuant to sub-ss 11(3) and (4), matters can be included in proceedings before the Tribunal if they are related to, but are not themselves, a claim in respect of a dust-related condition or death. Accordingly, the purpose of the qualification to s 12B(2) may be to limit the right to recover damages for pain and suffering to that cause of action which is in relation to a dust-related condition or death, so that it will not apply to any pendent or ancillary claim. If the latter construction is correct, it does not dispose of the Appellant’s argument, but it removes what would otherwise be powerful and express support in the statutory language.

123 These are clearly matters of impression about which minds might differ, given the somewhat opaque language of the provision. Nevertheless, I prefer the view that the qualification to sub-s (2), limiting it to a cause of action in respect of a dust-related condition, is intended to have the effect of excluding claims in respect of some other matter.

124 That conclusion does not, as noted, resolve the question raised by the Appellant. In substance, the question is whether the purpose identified in s 12B(1) is, properly understood, to enable the estate of a person whose death has been caused by a dust-related condition to recover damages for pain and suffering, being the subject matter of the proceedings which have been commenced, or only to enable such recovery from a party against whom such proceedings have been commenced prior to death.

125 As Brereton J has explained in detail, there are policy considerations and potential anomalies which support and militate against either potentially available construction. These do not, in my view, favour one construction over another. Similarly, identification of the “purpose” of the provision does not allow any firm conclusion to be reached as to its precise scope: that question must be answered by reference to the statutory language taken as a whole – see Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 79 ALJR 679 at [21] (Gleeson CJ, Hayne, Callinan and Heydon JJ).

126 The choice is not readily assisted by reference to any policy underlying the amending Act which included s 12B in the Tribunal Act: namely the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 (NSW). Its policy was to avoid the undignified and distressing phenomenon of bedside hearings, in an attempt to complete proceedings so as to allow the recovery of damages for pain and suffering, which would be unavailable if the claimant died before the proceedings were completed.

127 Because of the speed with which mesothelioma often progresses, the period from diagnosis to death can be severely limited. In order to recover damages for pain and suffering, it is nevertheless necessary to commence proceedings prior to death. In some cases proceedings may need to be commenced without certainty that each of the relevant employers has been identified and joined. As this case demonstrates, identification of circumstances where work conditions may have involved exposure to asbestos and identification of the relevant employers responsible for such conditions, is not necessarily a straightforward matter. As Brereton J notes at [182], no proceedings can be brought without the identification of a proper defendant: the jurisdiction can only properly be invoked by making a non-colourable claim against a specific defendant: c.f. New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islanders Commission (1995) 59 FCR 369, 382F and 385D (Hill J). But once proceedings have been instituted, and assuming that the reference to “the cause of action” in the qualification to sub-s 12B(2) is not restrictive in the way proposed by the Appellant, I would accept the proposition, identified by Brereton J at [171] (other than the last sentence) that the ordinary meaning of the word “proceedings” as used in the Tribunal Act is wider than a single cause of action and supports the conclusion that each claim for damages against each defendant constitutes part of “proceedings in respect of a dust-related condition”, in circumstances where several defendants were joined.

128 It comes down to this: had the Parliament intended to lift the barrier to recovery of damages for pain and suffering by reference to recovery from a particular defendant against whom proceedings had not been commenced prior to death, it could easily have done so. Instead, it lifted the bar by reference to the commencement of proceedings “for damages in respect of a dust-related condition”, thus focusing on the condition suffered by the plaintiff, in order to identify the relevant proceedings. On that approach, the plaintiff’s estate can recover damages, not limited to economic loss, from any person partly responsible for her condition, if she commenced non-colourable proceedings before death against any one such person.

[30] Section 10(1) of the Act provides that the Tribunal has exclusive jurisdiction to hear and determine ‘proceedings referred to in sections 11 and 12’. The only ‘proceedings referred to’ in s 11 are ‘proceedings for damages’ in s 11(1). The reference to ‘proceedings’ in s 11(3) and s 11(4) are specifically references back to s 11(1) proceedings.

[31] ‘Matters’ may be included in s 11(1) proceedings pursuant to s 11(3) and s 11(4) however those matters are not labelled ‘proceedings’ in s 11. It seems to me that the legislature has carefully labelled them as a ‘claim in respect of some other matter’ in s 11(3) and a ‘matter that is ancillary or related’ in s 11(4). If it had been intended to include such ‘matters’ in the exclusive jurisdiction of the Tribunal the legislative pen need only have inserted the word ‘proceedings’ instead of ‘claim’ in s 11(3) and instead of ‘matter that’ where first appearing in s 11(4) of the Act.

[32] The only ‘proceedings referred to’ in s 12 of the Act are ‘proceedings of the kind referred to in section 11(1)’. The Registrar is required to transfer those ‘proceedings’ to the Tribunal ‘together with any ancillary or related matters’. It seems to me that the legislature was careful to separate these matters from the ‘proceedings’ in this context. They are not referred to as ‘proceedings’ even though it may well have been that such ‘matters’ were already the subject of a cross claim in the Supreme Court.

Seltsam

[34] I am of the view that the reservation of ancillary and related matters from the label ‘proceedings’ in s 11 and s 12 is indicative of an intention that the exclusive jurisdiction of the Tribunal is limited to the proceedings for damages referred to in s 11(1) of the Act. I am also of the view that exclusivity is not intended to be triggered by the inclusion of ancillary and related matters.

175 The position has subsequently – after the proceedings at first instance, and apparently in response to Wallaby Grip v Eraring – been complicated by the insertion, with effect from May 2005, in s 11 of s 11(1A), which contemplates “proceedings … to recover contribution”, so that it is no longer the case that the only proceedings referred to in s 11 are “proceedings for damages” in s 11(1): there is now also reference to “proceedings … to recover contribution” in s 11(2), which permits proceedings, by a tort-feasor liable in respect of such damages, to recover contribution, to be brought before the Tribunal but also in any other court of competent jurisdiction:-

Note.

176 While the similarity of the phrase “proceedings … in relation to dust-related conditions” in s 12A, and “proceedings … where the cause of action is for damages in respect of a dust-related condition” in s 12B, favours the application to the construction of s 12B of a similar approach to that adopted to s 12A, that does no more than support a construction which limits the application of s 12B to proceedings under s 11(1), which the requirement that the cause of action be “for damages in respect of a dust-related condition” does is any event. It does not illuminate whether it catches only proceedings on the cause of action in respect of which the s 11(1) proceedings were instituted before death, or extends to any other cause of action for damages in respect of a dust-related condition which might later be added by amendment.

177 Accordingly, the usage of “proceedings” elsewhere in the DDT Act is not of assistance in the construction of s 12B.

178 Mr Parker submitted that had the executor, instead of amending the existing proceedings to add Amaca, commenced separate proceedings against Amaca, there would be no question of s 12B(2) applying, and that, joinder being discretionary and being influenced by issues of practicality and convenience, the legislation should not be construed so as to produce a different substantive result depending upon whether or not that discretion is exercised in favour of joinder rather than separate proceedings. This is said to apply equally to joinder under s 17(5), which is also discretionary. The premise – that in separate proceedings by the Estate against Amaca, there would be no question of s 12B applying – is plainly correct. But although the proposition that in those circumstances, the substantive result should not differ depending on whether Amaca is sued separately or joined in pending proceedings has some initial attraction, its force is diminished once it is recognised that proceedings by the Estate in respect of a victim’s death involve a different cause of action from proceedings by a victim for damages in respect of a dust-related condition.

179 Little if any assistance is to be derived from what the respondents submitted was the remedial character of the legislation. To so characterise it is to overlook the entire context. The relevant legislation is s 12B(2), which must been seen in the light of LRMP Act, s 2(2)(d), which limited the recoverability of damages for non-economic loss in an action for damages which survived death; and s 12B created an exception to that limitation. Section 12B does not create a remedy; it merely qualifies the removal of a remedy in certain cases.

180 Nor is much assistance to be derived from the second reading speech [Hansard, Legislative Council, 17 November 1998], to which the respondents also resorted. While it is clear that one of the mischiefs sought to be remedied by the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 (NSW), which introduced both DDT Act, s 12B and LRMP Act, s 2(7), was the conduct of urgent “death-bed” hearings in harrowing circumstances, and the arbitrariness associated with the recoverability of general damages depending on whether or not proceedings were completed prior to death in a setting where there was often a very short life expectancy, it is not apparent that adoption of the construction favoured by the trial judge promotes that purpose any more than does the construction proposed by the appellant.

181 Mr Ferrari submitted that it was consistent with, and would promote, the legislative purpose if recoverability of general damages against a particular defendant was not contingent on whether or not that defendant was joined before death. He contended that the legislation recognised that proceedings in respect of dust-related conditions often had to commenced urgently, on imperfect information, and for that reason exempted such proceedings from s 2(2)(d) provided only that they were commenced before death. However, the legislature has chosen to leave the recoverability of general damages in dust claims after death not at large, but contingent on the commencement before death of proceedings for damages in respect of a dust-related condition. The same restriction does not apply in respect of damages for economic loss. That distinction is readily understandable: damages for economic loss compensate for losses to the deceased’s estate, so that the deceased’s successors as well as the deceased suffer the loss; whereas damages for non-economic loss compensate for losses personal to the deceased which are not suffered by the estate. That rational distinction is removed by s 12B, in limited circumstances – not for the purpose of allowing general damages to be recoverable generally in dust claims after death, but rather to relieve what would otherwise be the pressure for rapid finalisation of claims imposed in respect of claims brought before death if general damages were recoverable only if the proceedings were completed before death.

182 To bring proceedings at all requires the identification of a proper defendant – it would be an abuse of process to bring proceedings against a defendant whom there was no reason to suppose was liable to the plaintiff simply for the sake of commencing proceedings. As Mr Russell accepted, on the construction adopted by the trial judge and supported by the respondents, it would be sufficient to attract s 12B for a plaintiff to commence proceedings before death against any defendant in respect of a dust-related condition and, upon finding that that defendant was not responsible at all for the plaintiff’s condition, after death to discontinue against that defendant and substitute another or other defendants, against whom general damages could be claimed. There is nothing in the second reading speech to suggest that s 12B was intended to authorise such a procedure. The appellant’s construction, on the other hand, would have the consequence that a defendant against whom damages for non-economic loss were sought would have to be joined prior to the date of death, but that is substantially equivalent to the commencement of proceedings prior to death – which is a condition of the operation of s 12B in any event – and certainly does not require a death-bed hearing in harrowing circumstances.

183 Moreover, joinder in pending proceedings would, on the respondents’ construction, effectively revive – akin to extension of a limitation period – an exposure to liability (for general damages) which had been extinguished by the death of the deceased. The effect of a victim’s death is that thereafter, any liability of a potential defendant not already joined is limited to damages for economic loss – but on the respondents’ construction, only unless and until joined in the pending proceedings, so that such a joinder in effect would revive a liability which has been extinguished by the victim’s death. Again, there is nothing in the second reading speech to suggest that s 12B was intended to authorise such a procedure. On the appellant’s construction, the liability once extinguished would not be revived, but it would be preserved for causes of action in respect of which proceedings had been commenced prior to death. These comparative practical consequences of each construction tend to favour the appellant’s construction: in particular, it is exceptional and would require clear words to revive after a victim’s death a liability which had been extinguished, whereas the opposite may be said of the preservation after death of a liability for the enforcement of which the victim had already commenced proceedings before death.

184 Accordingly, the mischief to be remedied and the legislative purpose, as revealed by the second reading speech and by s 12B(1), particularly in the absence of any avowed intent to authorise the exceptional courses of allowing liabilities to be revived after death by amendment, or preserving an ability to claim general damages against a potential defendant by commencing proceedings before death against a different defendant - do not favour the respondents’ construction: pressure for rapid resolution of proceedings once commenced is not alleviated by a construction of s 12B which permits general damages to be claimed against a defendant added after death. Pressure to identify the proper defendants might be relieved, but that was not the apparent purpose of the section, and as there remains in any event a requirement to identify a proper defendant so that there may be pending proceedings capable of attracting s 12B at all, this does not significantly inform the construction of s 12B.

185 Mr Russell made a submission that the appellant’s construction of s 12B(2) could produce an absurd consequence in respect of recovery of contribution from other tort-feasors, which may be summarised as follows.

186 Every victim who can prove breach of duty and dust disease then seeks to establish various heads of damage. Every victim can prove general damages, interest on general damages, and loss of expectation of life. Some, but not all, can also prove economic loss. The survival from diagnosis of the disease to death is typically very short, and is said to be anywhere between a couple of months and two years. A plaintiff who was in retirement might be diagnosed and die very quickly, within weeks, and would have a claim for general damages, but may have no claim for economic loss. If that hypothetical plaintiff were to sue three defendants (“the original defendants”, corresponding to the second, third and fourth respondents in this case), and recover a judgment of $150,000 for general damages, those defendants within two years of that judgment (regardless of the plaintiff’s intervening death) could claim contribution from any other defendant whose breach of duty materially contributed to the contraction of disease (“the additional defendant”, corresponding to the appellant in this case), so that the additional defendant would have to bear its proportion of the general damages, even though the plaintiff died in the interim. However, if the additional defendant were joined to the pending proceedings after the death of the plaintiff, then on the appellant’s construction it would be held not liable to the plaintiff’s estate for general damages, and as those were the only damages claimed by the plaintiff, the additional defendant, although guilty of breach of duty of care, would be entitled to a judgment in its favour, because there would be no damages recoverable by the plaintiff’s estate against it. In that event, the additional defendant having been sued and found not liable by judgment, would not be liable for contribution. Thus, submits Mr Russell, on the appellant’s construction, the original defendants’ right to contribution could be jeopardised by something out of their control, namely whether the plaintiff’s estate joined the additional defendant after death.

187 There are at least two answers to this submission.

188 The first is that the original defendants have almost as much ability as the plaintiff to ensure that their right to contribution is preserved, since they are entitled before the plaintiff's death to join the additional defendant as a cross defendant in the pending proceedings. Although, as Mr Russell pointed out, there are two circumstances in which there would be practical difficulty in doing so - one where proceedings have been filed by the plaintiff but not yet served, in which circumstance the right to general damages against the original defendants is preserved but they not even knowing of the action against them are not in a position to join the additional defendant, and the other where the original defendants are served upon the morning of the plaintiff's death, which sometimes happens, and do not have any time to bring a cross-claim before death – these possibilities which may admittedly occur in extreme cases do not substantially weaken the position that it is generally open to a defendant to join cross-defendants before death, so that the entitlement to contribution is not at the whim of a plaintiff or his/her estate.

189 The second answer to Mr Russell’s submission is Mr Parker’s response that, if there is potential on one view for an anomalous result - the anomaly being that if Amaca was joined and sued to judgment, and damages were not recoverable because of s 2(2)(d), then that would deny a cross-claim for contribution, whereas if Amaca was not joined, contribution would be available in respect of general damages - that anomaly was a consequence of the approach authorised by the High Court to claims for contribution under the Law Reform (Miscellaneous Provisions) Act 1946, s 5(1)(c), which provides that any tort-feasor liable in respect of damage suffered by any person as a result of a tort may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise. While Mr Parker referred to Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213, and the decision of the House of Lords in George Wimpey & Co Ltd v British Overseas Airways Corporation [1955] AC 169, in which a judgment in favour of one defendant against the plaintiff on a limitation defence was held to deny another defendant the ability to claim contribution against it, perhaps the clearest indication of this is in a case which originated in the Dust Diseases Tribunal, James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53, in which a consent judgment in favour of one defendant was held to preclude another defendant from claiming contribution against it. As a judgment in favour of a defendant on any ground takes that defendant out of the scope of those from whom contribution can be recovered – even where that judgment is by consent or on grounds apart from the merits – then anomalies in the recovery of contribution are an inevitable result of s 5(1)(c), and even if such anomalies are more likely to arise on one construction of DDT Act, s 12B, that does not tell against that construction – since it is the product of s 5(1)(c) rather than of s 12B. As Mr Parker put it, Mr Russell’s argument is a restatement of the anomaly created by s 5(1)(c), and cannot be a reason for construing s 12B in a particular way.

190 There is a third possible answer to Mr Russell’s submission, namely that the potential jeopardy to the original defendants’ right to contribution depends not just on the Estate's whim as to whether the Estate seeks to join the fourth defendant to the pending proceedings, as it could also be affected by the Estate’s decision to commence separate proceedings after death against the additional defendant, in which case it would clearly not be liable for general damages. Such a course would be required if the Tribunal refused leave to join the additional defendant in the original proceedings. Mr Ferrari submitted that this analysis was flawed, and that if the Estate filed a separate claim after death, a judgment against the Estate in that action would have no effect on the result of the action which had been brought in the deceased's lifetime resulting in judgment against the original defendants or on their ability to seek contribution from the additional defendant, as the Estate’s failure to recover general damages against the additional defendant would not alter the position that at the time of the deceased's death there was a cause of action against the additional defendant for general damages, but only that the deceased having died, there were no damages recoverable by the Estate; because the right to contribution arises out of the deceased's action commenced during her lifetime which culminated in a judgment against the original defendants, and there was a right of action in the deceased against the additional defendant which existed then but was not exercised until later, the original defendants remained entitled to seek contribution against the additional defendant, and it was irrelevant to their right to contribution that the executor later on might bring a claim and fail because, the deceased having died, there were no recoverable damages.

191 Although, given the first two answers to Mr Russell’s submission, it is unnecessary to resolve this third answer, I am inclined to accept Mr Ferrari’s submission. Although there is no temporal element in s 5(1)(c), so that the question is whether the person from whom contribution is claimed would if sued at any time have been liable for the same damage as the claimant [Brambles Constructions Pty Ltd], and although a defendant who is at any time sued to judgment is not within the second limb of s 5(1)(c) [James Hardie & Co Pty Ltd], an executor’s claim in respect of a victim’s death is a different cause of action from a victim’s claim in respect of a dust-related condition, and a defendant who is unsuccessfully sued to judgment by an estate after the death of the victim has not been sued in respect of the same damage (general damages not being available) and so would still be within the second limb of s 5(1)(c). Whereas if the additional defendant was joined, after death of the plaintiff, in pending proceedings instituted before death against the original defendants, and it was determined in those proceedings that the additional defendant was not liable for general damages, that would be a determination on the victim’s original cause of action against the additional defendant in respect of a dust-related condition, which survived under LRMP Act, s 2, rather than on the Estate’s cause of action in respect of the victim’s death, and the additional defendant would, on relevant assumptions, have been held not liable for the general damages and so would not be liable to contribute.

192 However, for the first two reasons advanced, the arguments based on potentially inconsistent and arbitrary results in claims for contribution said to arise from adoption of the appellant’s construction do not ultimately favour the respondents’ construction, first because defendants’ rights to claim contribution are not at the whim of the Estate’s decision to join an additional defendant after death of the plaintiff, since the original defendants could if they wish join additional defendants before the plaintiff’s death, and secondly because potentially inconsistent and arbitrary results are a result of the established construction of s 5(1)(c).

193 The construction of s 12B, in the context of s 2(2)(d), is, however, informed by the description of the word “proceedings” in relation to which s 2(2)(d) is not to apply by the phrase “where the cause of action is for damages in respect of a dust-related condition”. That phrase has a dual context: it not only describes the proceedings in relation to which s 2(2)(d) is not to apply, but it also identifies the cause of action, vested in a person on his or her death which survives for the benefit of the deceased person’s estate, referred to in LRMP Act, s 2(1) and (2), in respect of which s 2(2)(d) is not to apply. LRMP Act, s 2, addresses causes of action, not proceedings. Prima facie, LRMP Act, s 2(1) has the effect that a cause of action vested in a person for damages in respect of a dust-related condition survives that person’s death for the benefit of the deceased person’s estate. Then, s 2(2)(d) limits the damages recoverable for the benefit of the estate of that person, by excluding any damages for the pain or suffering of that person or for any bodily or mental harm suffered by the person or for the curtailment of the person’s expectation of life. Then, s 12B(2) (in conjunction with LRMP Act, s 2(7)) disapplies that limitation, where proceedings have been commenced by a person before his or her death and are pending before the Tribunal at his or her death.

194 The dual context of the phrase “the cause of action” in s 12B requires that attention be focussed first on the cause of action, in order to ascertain whether it is one in respect of which s 2(2)(d) has been disapplied. It will have been disapplied if proceedings on that cause of action have been instituted before and are pending at death. The section preserves an entitlement to damages for non-economic loss in respect of causes of action which survive death, for the enforcement of which proceedings have been instituted before death. The circumstances that s 12B creates an exception from a limitation which otherwise applies to a particular cause of action, favours a construction which correspondingly focuses on a particular cause of action – namely, that on which proceedings were pending at death. Because the limitation under s 2(2)(d) is one which applies to a cause of action, the exception to the limitation is properly to be seen as also applying in respect of the cause of action to which the limitation would otherwise apply. The focus of s 12B(2) is that cause of action, and the “proceedings” to which s 12B(2) refers, therefore, are proceedings in respect of the cause of action to which s 2(2)(d) would otherwise apply. Thus, where a cause of action for damages in respect of a dust-related condition survives death, the limitation otherwise imposed by s 2(2)(d) on the damages recoverable does not apply in relation to proceedings instituted in the Tribunal before death on that cause of action.

195 In Fernance, Clarke JA said, with reference to Ketteman (at 732):-

196 Likewise, the “cause of action” referred to in s 12B(2) must be a cause of action against a particular person. It follows that where, after death, an additional defendant is joined to proceedings, there were no proceedings on any cause of action against it pending at death, and s 12B does not disapply s 2(2)(d) from proceedings on the (new) cause of action against the added defendant.

Conclusion

197 Whether under the general law or by operation of SCR Pt 8, r 11(3), the date of commencement of the proceedings against Amaca was the date of the amendment joining Amaca, which was after, not before, the date of death of the deceased. Proceedings as against Amaca were therefore not pending in the Tribunal as at the death of the deceased. However, the rule, although applicable whenever it is necessary to determine when proceedings were commenced against an added defendant, is intended to restate the position that proceedings are not to be taken to have been commenced against the added defendant before it is joined, so that there is in this respect no relation back; it was not intended to allow the added defendant to assert for all purposes a fiction that the proceedings were not commenced at all until it was joined. Accordingly, the circumstance that no proceedings were pending against Amaca before the death of Mrs Cremer does not mean that Amaca’s liability can be approached on the footing that no proceedings on a cause of action for damages in respect of a dust-related condition were then pending at all (albeit not against it), and accordingly is not conclusive of the ultimate issue: it remains necessary to resolve whether it suffices to attract s 12B, as against a defendant added after death, that the proceedings were commenced, albeit not against it, before death.

198 The usage of “proceedings” elsewhere in the DDT Act does not illuminate whether the exception provided by s 12B - in which there is specific reference to “the cause of action” - is limited to the proceedings on “the cause of action” commenced before death, or extends to all claims for damages in respect of a dust-related condition, whensoever brought, in such proceedings.

199 Section 12B does not create a remedy, but merely creates an exception in certain cases to the removal of a remedy; in those circumstances its construction is not assisted by characterising it as beneficial or remedial legislation.

200 The comparative practical consequences of each construction tend to favour the appellant’s construction: in particular, it is exceptional and would require clear words to revive, after a victim’s death, a liability which had been extinguished by that death, whereas the opposite may be said of the preservation after a victim’s death of a liability for the enforcement of which the victim had already commenced proceedings before death. The mischief to be remedied and the legislative purpose, as revealed by the second reading speech and by s 12B(1), particularly in the absence of any avowed intent to authorise the exceptional courses of allowing liabilities to be revived after death by amendment, or of preserving an ability to claim general damages against a potential defendant by commencing proceedings before death against a different defendant - do not favour the respondents’ construction: pressure for rapid resolution of proceedings once commenced is not alleviated by a construction of s 12B which permits general damages to be claimed against a defendant added after death.

201 The arguments based on potentially inconsistent and arbitrary results in claims for contribution said to arise from adoption of the appellant’s construction do not ultimately favour the respondents’ construction, first because defendants’ rights to claim contribution are not at the whim of the estate’s decision to join an additional defendant after death of the plaintiff, since the original defendants could if they wish join additional defendants before the plaintiff’s death, and secondly because potentially inconsistent and arbitrary results are a result of the established construction of s 5(1)(c).

202 Because the limitation under s 2(2)(d) is one which applies to a cause of action, the exception to that limitation provided by s 12B is properly to be seen as also applying in respect of the cause of action to which the limitation would otherwise apply. The focus of s 12B is that cause of action, and the “proceedings” to which s 12B(2) refers, therefore, are proceedings in respect of the cause of action to which s 2(2)(d) would otherwise apply. Thus, where a cause of action for damages in respect of a dust-related condition survives death, the limitation otherwise imposed by s 2(2)(d) on the damages recoverable does not apply in relation to proceedings instituted in the Tribunal before death on that cause of action.

203 I would therefore allow the appeal; set aside the judgment against the fourth defendant, and in lieu thereof substitute judgment that the fourth defendant pay the plaintiff $29,363.25; vary the costs orders made by the Dust Diseases Tribunal to the intent that the plaintiff and the first, second and third defendants pay the fourth defendant’s costs of and incidental to the proceedings on 10 May 2004, and that otherwise the defendants pay the plaintiff’s costs of the proceedings, in the case of the first second and third defendants on the indemnity basis from 14 May 2004; and order that the respondents pay the appellant’s costs of the appeal.

204 Since writing the above I have had the benefit of reading in draft the judgment of McColl JA, in which her Honour proposes orders different in form but the same in substantive effect to those which I would make. I therefore agree with the orders which her Honour proposes.

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Citations

Amaca Pty Ltd v Cremer [2006] NSWCA 164

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CITATION:	AMACA PTY LTD v CREMER & ORS [2006] NSWCA 164
HEARING DATE(S):	13 October 2005
JUDGMENT DATE:	28 June 2006
JUDGMENT OF:	McColl JA at 1; Basten JA at 104; Brereton J at 132
DECISION:	1. Appeal allowed; 2. Set aside the judgment in favour of the first respondent as against the appellant; 3. In lieu thereof, give judgment for the first respondent against the appellant in the sum of $29,363.25; 4. Set aside the orders as to costs made on 13 May 2004 and 21 December 2004 and in lieu thereof order; (1) Respondents to pay the appellant’s costs of the hearing on 10 May 2004 on a party-party basis; (2) Appellant, second, third and fourth respondents to pay the first respondent’s costs of the proceedings in the Tribunal and, in the case of the second, third and fourth respondents, on an indemnity basis from 14 May 2004; 5. Respondents to pay the appellant’s costs of the appeal; 6. Grant to each respondent a certificate under the Suitors’ Fund Act 1951 if otherwise entitled
CATCHWORDS:	Dust Diseases - Dust diseases legislation - Dust Diseases Tribunal - Damages for non-economic loss after plaintiff’s death - Plaintiff dies after instituting proceedings in Dust Diseases Tribunal – Estate joins additional defendant after plaintiff’s death – Whether damages for non-economic loss are recoverable against defendant added by amendment after plaintiff’s death - Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 2(2)(d) — Dust Diseases Tribunal Act 1989 (NSW), s 12B
LEGISLATION CITED:	Administration and Probate Act 1958 (Vic), s29(2A) Administration and Probate (Dust Diseases) Act 2000 (Vic) Dust Diseases Tribunal Act 1989 (NSW), ss 10, 11, 11A, 12, 12A, 12B, 12C, 12D, 17, 23, 25, 25A, 25B, 32 Dust Diseases Tribunal Rules, r 2 Interpretation Act 1987, s33 Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 2 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 Limitation Act 1969, s 26 Supreme Court Act 1970, s 75A Supreme Court Rules 1970 (NSW), Pt 8, rr 2, 8, 10, 11(3), Pt 20, r 1, r 4 Uniform Civil Procedure Rules 2005 (NSW), rr 6.24, 6.28 Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 (NSW), Sched 2 and 3, cl 8
CASES CITED:	Amaca Pty Ltd v CSR Ltd (2001) 51 NSWLR 476 Baldry v Jackson [1976] 2 NSWLR 415 Baxter v Obacelo Pty Ltd (2001) 205 CLR 635 BHP Billiton Limited v Schultz (2004) 221 CLR 400 Blake v Norris (1990) 20 NSWLR 300 Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 Bull v Attorney-General (NSW) (1913) 17 CLR 370 Cheny v Spooner (1929) 41 CLR 532 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Clarence v Electricty Commission of New South Wales (1990) 20 NSWLR 1 Cremer v Seltsam Pty Limited & Ors (No. 1) (2004) 1 DDCR 478 Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 Fernance v Nominal Defendant (1989) 17 NSWLR 710 Fitch v Hyde-Cates (1982) 150 CLR 482 Forrest v Kelly (1991) 105 ALR 397 George Wimpey & Co Ltd v British Overseas Airways Corporation [1955] AC 169 Goliath Portland Cement Co Ltd v Bengtell (1994) 33 NSWLR 414 Grain Elevators Board (Vic) v Dunmunkle Corporation (1946) 73 CLR 70 Grout v Gunnedah Shire Council (1995) 129 ALR 372 Herbert Berry Associates Ltd v Inland Revenue Commissioners [1977] 1 WLR 1437 Holmes v Permanent Trustee Company of New South Wales Ltd (1932) 47 CLR 113 Hope v Bathurst City Council (1980) 144 CLR 1 IW v City of Perth (People Living with AIDS case) (1997) 191 CLR 1 James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53 James Hardie & Co Pty Ltd v Newton (1997) 42 NSWLR 729 James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1997) 15 NSWCCR 247 Ketteman v Hansel Properties Ltd [1987] AC 189 Khoury v Government Insurance Office of New South Wales (1984) 165 CLR 622 McEvoy v Public Trustee (1989) 16 NSWLR 92 McGee v Yeomans [1977] 1 NSWLR 273 Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 79 ALJR 679 New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islanders Commission (1995) 59 FCR 369 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Quazi v Quazi [1980] AC 744 (CA); 800 (HL) Re Healey; Re Inquiry into Election in Australian Workers' Union (SA Branch) (1992) 40 IR Re Struthers, Liquidator of P.A.C.I. Pty Ltd (No 3) [2005] NSWSC 1113 Roads & Traffic Authority v Ryan (2005) 62 NSWLR 609 State of Queensland v Stephenson & Anor [2006] HCA 20 Sugden v Sugden [1957] P 120 Unsworth v Commissioner for Railways (1958) 101 CLR 73 Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797 Wallaby Grip BAE Pty Limited v Eraring Energy (2004) 60 NSWLR 701 Weldon v Neal (1887) 19 QBD 394 Wenham v General Credits Ltd (McLelland J, 16 December 1988, unreported)
PARTIES:	Amaca Pty Limited - Appellant Philip Leslie Cremer (as executor of the estate of the late Winifred Cremer) - First Respondent Seltsam Pty Limited - Second Respondent Wallaby Grip Limited - Third Respondent Wallaby Grip (BAE) Pty Limited (In liquidation) - Fourth Respondent
FILE NUMBER(S):	CA 40209/05
COUNSEL:	T.C.R. Parker SC - Appellant B.R. Ferrari/D.R. Toomey - First Respondent D.J. Russell SC - Second to Fourth Respondent
SOLICITORS:	Holman Webb - Appellant Watkins Tapsell - First Respondent Leigh Virtue & Associates - Second Respondent Middletons, Third and Fourth Respondents
LOWER COURT JURISDICTION:	Dust Diseases Tribunal of New South Wales
LOWER COURT FILE NUMBER(S):	DDT 444 of 2002
LOWER COURT JUDICIAL OFFICER:	Duck J
LOWER COURT DATE OF DECISION:	13 May 2004, 21 December 2004
LOWER COURT MEDIUM NEUTRAL CITATION:	Cremer (as Executor of the Late Winifred Cremer) v Seltsam Pty Ltd and Ors (No. 1) [2004] NSWDDT 27; (2004) 1 DDCR 478 Philip Cornel Lesley Cremer as Executor of the Late Winifred Cremer v Seltsam Pty Ltd & Ors (Dust Diseases Tribunal of NSW, unreported, 21 December 2004) Philip Cornel Lesley Cremer as Executor of the Late Winifred Cremer v Seltsam Pty Ltd & Ors (Dust Diseases Tribunal of NSW, unreported, 21 December 2004)