Amaca Pty Ltd v CSR Ltd & Anor - [2015] VSC 582

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2003 05689

AMACA PTY LTD (ACN 000 035 512) (Under NSW Administered Winding Up)	Plaintiff
v
CSR LTD (ACN 000 001 276)	First Defendant
and
BRADFORD INSULATION INDUSTRIES PTY LTD (ACN 000 078 357)	Second Defendant

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	4-7, 13-14, 18-21, 25-28 August 2014
DATE OF JUDGMENT:	21 October 2015
CASE MAY BE CITED AS:	Amaca Pty Ltd v CSR Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2015] VSC 582

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TORT – 204 claims for contribution between tortfeasors – Eight claims tried separately pursuant to r.47.04 Supreme Court (General Civil Procedure) Rules 2005 (Vic) – Where tortfeasors were manufacturers and suppliers of asbestos thermal insulation – Where torts committed between 1964 and 1979 – Section 24(1)(c) and s 24(2) Wrongs Act 1958 (Vic) as applying before amendments in 1985 – Whether plaintiff proved exposure of injured persons to asbestos manufactured or supplied by defendants.

TORT – Contribution claims between tortfeasors – Divisible and indivisible injuries – Whether there should be different approaches to the determination of contribution depending upon the nature of the victim’s injury – Sienkiewicz v Grief (UK) Limited [2011] 2 AC 229.

EQUITY – Recovery of contribution upon the discharge of a coordinate liability – Coordinate liability of partners due to the liability of one partner – Sections 10 and 12 Partnership Act 1892 (NSW) – Whether action for contribution available notwithstanding rule in Merryweather v Nixan (1799) 8 TR 186; 109 ER 1377 – Whether action for equitable contribution available notwithstanding enactment of statutory remedy for contribution between tortfeasors – Albion Insurance Company Limited v Government Insurance Office (New South Wales) (1969) 121 CLR 342; Burke v LFOT Pty Ltd (2002) 209 CLR 282; Belan v Casey (2003) 57 NSWLR 670; Dall v Blue Wren Taxi Co Pty Ltd (1926) VLR 365.

LIMITATION OF ACTIONS – Statutory construction of s 24(4) Wrongs Act 1958 (Vic) as it applied before 31 December 1971 – Whether contribution claims barred or maintainable where writ in the original action was not served on the claimant for contribution – Meaning of ‘writ served in the original action’ – Whether s 24(4) Wrongs Act 1958 (Vic) is the exclusive limitation provision for contribution claims under s 24(1) – Allman v Daly [1959] VR 175.

LIMITATION OF ACTIONS – Statutory construction of s 24(4) Wrongs Act 1958 (Vic) as amended by Wrongs Act 1972 (Vic) – Interaction between s 24(4)(a)(i) Wrongs Act 1958 (Vic) and s 5(1A) Limitation of Actions Act 1958 (Vic) – Whether defendant raising limitation defence must exclude the possibility the injured party could have obtained an extension under s 23A Limitation of Actions Act 1958 (Vic) – State Electricity Commission of Victoria v Fooks [1994] 1 VR 259; Cavenett v Commonwealth [2007] VSCA 88.

LIMITATION OF ACTIONS – Application of statutory limitation provisions to equitable actions for contribution by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] VSC 582
Decision Date: 21 October 2015

CaseChat Overview and Summary

In the case of Amaca Pty Ltd v CSR Ltd & Anor, the Supreme Court of Victoria was tasked with resolving multiple claims for contribution between parties involved in the manufacture and supply of asbestos thermal insulation, with the torts occurring between 1964 and 1979. The central issues were whether the plaintiff had successfully demonstrated that the injured individuals were exposed to asbestos produced or supplied by the defendants, and the applicable legal frameworks governing the contribution claims, particularly under the Wrongs Act 1958 (Vic) and the Limitation of Actions Act 1958 (Vic). The case also explored the implications of statutory amendments and equitable principles in determining the availability and validity of contribution claims.

The court delved into the complexities of contribution claims among tortfeasors, examining whether the nature of the victim's injury—divisible or indivisible—should influence the approach to determining contribution. This was considered in light of the UK Supreme Court's decision in Sienkiewicz v Grief (UK) Limited, which highlighted the need for a coherent approach to contribution claims irrespective of the nature of the injury. Additionally, the court considered whether equitable contribution actions could proceed despite statutory provisions for contribution and whether certain equitable defences, such as laches, could be invoked despite the claims being within the statutory time limits.

In its reasoning, the court found that the plaintiff had not met the burden of proving exposure to asbestos manufactured or supplied by the defendants. It concluded that the statutory provisions governing limitation periods for contribution claims under the Wrongs Act 1958 (Vic) were applicable by analogy to equitable contribution actions, thereby subjecting such actions to the same limitation periods. The court further held that defences of laches, acquiescence, and waiver were not available if the claim was brought within the statutory time frame, even if the delay had caused an adverse change to the defendant. Lastly, the court addressed the admissibility of hearsay evidence, ruling that certain statements made by unavailable witnesses to doctors could be admitted under the exceptions to the hearsay rule in the Evidence Act 2008 (Vic).

The final orders of the court dismissed all claims for contribution, affirming that the plaintiff had not proven exposure of the injured persons to the defendants' asbestos products. The court's decision underscored the stringent requirements for proving exposure in contribution claims and the importance of adhering to statutory limitation periods and equitable principles in such litigation.

Orders