Babcock Australia Pty Limited v Bradford Insulation Industries Pty Limited
[2010] NSWDDT 12
•10 August 2010
Dust Diseases Tribunal
of New South Wales
CITATION: Babcock Australia Pty Limited v Bradford Insulation Industries Pty Limited [2010] NSWDDT 12 PARTIES: Babcock Australia Pty Limited
Bradford Insulation Industries Pty Limited
CSR LtdMATTER NUMBER(S): 168; 168/CC1 of 2009 JUDGMENT OF: Curtis J at 1 CATCHWORDS: Claims Resolution Process - DUST DISEASES TRIBUNAL - Proceedings :- Cross-Claim - Statement of Claim LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s5
Dust Diseases Tribunal Regulation 2007 (NSW) cl14, cl19, cl47, cl49, cl54, cl55, cl56, cl57, cl58
Civil Procedure Act 2005 (NSW) s3, s22, s90
Dust Diseases Tribunal Act 1989 (NSW) s11(1A)
Uniform Civil Procedure Rules 2005 (NSW) R6.2, R6.3, R9.1, R28.2CASES CITED: Power Technologies Pty Limited v Energy Australia [2010] NSWCA 107
Wallaby Grip Ltd v Klinger Ltd [2009] NSWDDT 13 (22 May 2009)TEXTS CITED: Report on the Review of the Dust Diseases Claims Resolution Process DATES OF HEARING: 30 July 2010
DATE OF JUDGMENT:
10 August 2010LEGAL REPRESENTATIVES: Mr G M Watson SC instructed by Colin Biggers and Paisley appeared for CSR Ltd and Bradford Insulation Industries Pty Limited
Mr D Miller instructed by Moray and Agnew appeared for Babcock Australia Pty Limited
JUDGMENT:
Dust Diseases Tribunal of New South Wales
Matter number DDT168 of 2009 and DDT168/09/CC1
Babcock Australia Pty Limited
(Applicant)
v
Bradford Insulation Industries Pty Limited
(First Respondent)
and
CSR Ltd
(Second Respondent)
10 August 2010
RULING
CURTIS J
Introduction
1. On 9 May 2009 the Tribunal entered judgment for a plaintiff, Mr Kirkpatrick, against Babcock Australia Pty Limited (Babcock) in the sum of $1,771,640 plus costs. On 30 June 2009 Babcock filed a statement of claim in the Tribunal claiming contribution to this judgment from Amaca Pty Limited, Wallaby Grip Ltd (WGL), Wallaby Grip BAE Pty Limited, (BAE) and Bradford Insulation Industries Pty Limited, (Bradford) pursuant to the Law Reform (Miscellaneous Provisions) Act 1946. Amaca has cross-claimed against CSR Ltd (CSR).
2. By letter of 26 October 2009 Babcock requested the Registrar of the Tribunal to exercise the power conferred by clause 49 of the Dust Diseases Tribunal Regulation 2007 and appoint a Contributions Assessor to determine apportionment between the parties in accordance with the "Claims Resolution Process" established by Part 4 of the Regulation.
3. On 13 November 2009 Mr James Kearney, the assessor duly appointed by the registrar, determined that the contributions of the parties were to be as follows:
Party per cent Babcock Amaca WGL BAE Bradford CSR TOTAL
4. Babcock, Amaca, WGL, and BAE are content with this apportionment and have paid appropriate contributions to Babcock. Bradford and CSR are aggrieved, and desire that the claim by Babcock go to trial.
5. By Notice of Motion filed 5 March 2010, Babcock seeks orders pursuant to s90 of the Civil Procedure Act 2005 that Bradford and CSR pay to Babcock sums of money corresponding to the contributions assessed against them, to be held by Babcock pending determination of the claim.
6. S90 provides relevantly that the Tribunal may make such order as the nature of the case requires.
7. Babcock seeks an order for interim payment only, because it is not entitled to a judgment against the respondents (Power Technologies Pty Limited v Energy Australia [2010] NSWCA 107).
8. Bradford and CSR resist any order, contending that pursuant to clause 14 of the Dust Diseases Tribunal Regulation 2007, the Claims Resolution Process only applies to cross-claims in original proceedings brought by plaintiffs. It does not apply to fresh proceedings brought by statement of claim (Amaca Pty Ltd v Orlit Pty Ltd [2008] NSWDDT 34).
9. Clause 14 appears in Part 4 of the Dust Diseases Tribunal Regulation 2007, entitled Claims Resolution Process for Asbestos-Related Conditions, and provides as follows:
- 14 Part applies only to asbestos-related claims
This Part applies to a claim in respect of an asbestos-related condition that is made by the person who is or was suffering from the asbestos-related condition (or by a person claiming through that person, including a compensation to relatives claim) or that is a cross-claim by a defendant on such a claim.
(Emphasis added)
10. Mr Miller for Babcock contends that the provisions of Division 6 of Part 4 of the Regulation offer alternative access to the Claims Resolution Process.
11. In order to understand this contention it is useful to set out some historical matters.
The Origins of Division 6
12. The Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005 introduced the Claims Resolution Process into the Dust Diseases Tribunal Regulation 2001 by the creation of Part 4 of that Regulation. Division 5 of Part 4, entitled "Apportionment" applied the process to the resolution of cross-claims brought by and between defendants.
13. Division 5 did not address apportionment between defendants and cross-defendants after settlement or determination of the plaintiff’s claim. Clause 44 of the 2005 amendment merely provided that the effect of an agreement or determination as to apportionment was to conclusively bind the defendants for the purposes of settlement or determination by the Tribunal of the plaintiff's claim and payment of the plaintiff's damages.
14. The Dust Diseases Tribunal Regulation 2007, commencing on 2 March 2007, replaced the Dust Diseases Tribunal Regulation 2001. The new Regulation expressly applied the Dispute Resolution Process to the disposition of cross claims after the determination of the plaintiff’s claim.
15. It did this first by the insertion of clause 47(2) in Division 5 in these terms:
- 47 Application to Cross-Defendants
(1) . . .
(2) The settlement or determination of a plaintiff’s claim ( "the original claim") does not affect the continued operation of this Division in relation to a cross-claim on that original claim and the apportionment of liability among cross-defendants on the cross-claim. For that purpose (and despite clause 18) the cross-claim remains subject to the claims resolution process.
(3) …
(4) …
Secondly, by promulgating a new division, Division 6, with the title: Special Provision for Apportionment Claims Commenced after Plaintiff’s Claim Finalised.
16. These new provisions may be seen as a response to the Report on the Review of the Dust Diseases Claims Resolution Process published by the Attorney General's Department. The report recommended that:
- Modified contributions assessment provisions should apply where a separate claim for contribution is brought in separate proceedings after the conclusion of the plaintiff’s claim
17. The question for resolution in the present case is whether Division 6 in its terms does apply the Claims Resolution Process to a separate claim for contribution instituted by statement of claim after the determination of the plaintiff’s claim.
18. It is convenient to here remark that although the Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005 inserted s11(1A) in the Dust Diseases Tribunal Act 1989, which conferred jurisdiction to determine claims for contribution independently of the plaintiff's action, that jurisdiction is not exclusive to the Tribunal.
The Regulation
19. The relevant provisions of Division 6 are as follows:
- 54 Application and interpretation
(1) This Division applies to a claim for contribution (the "new cross-claim") made by a defendant (including a cross-defendant) to a claim (the "original claim") when proceedings on the new cross-claim are commenced after the original claim has been settled or determined, but only if the original claim was commenced by statement of claim filed on or after 1 July 2005.
(2) The plaintiff on the new cross-claim is referred to in this Division as the "initiating defendant" and a defendant on the new cross-claim is referred to as a "new defendant". The defendants (including any cross-defendants) on the original claim are referred to as the "original claim defendants".
(3) This Division applies to a new cross-claim made before the commencement of this Division only in the following cases:
(emphasis added)
20. Clause 55 provides that the "new cross-claim" remains subject to the claims resolution process until the parties have agreed on contributions, or a Contributions Assessor has determined pursuant to Division 5 the contribution that each defendant is liable to make. While a claim remains subject to the claims resolution process it is not subject to any direction or order of the Tribunal (clause 19).
21. Clause 56 requires that the initiating defendant serve copies of the original claim particulars and replies with the "statement of claim for the new cross-claim".
22. Clause 57 requires that the initiating defendant serve on each of the defendants to the original claim, the "statement of claim for the new cross-claim".
23. Clause 58 provides that, if the parties cannot agree on apportionment, the provisions of Division 5 are to be applied again, with a new apportionment to be made in respect of the defendants to the original claim and the "new defendants". This is to occur no later than 70 business days after service of the "statement of claim for the new cross-claim" on the new defendants.
Babcock’s Contention
24. It is Babcock's contention that the effect of these provisions is to apply Division 6 to all claims for contribution made after the plaintiff’s claim has been determined, whether those claims for contribution be made by further cross-claims in the original proceedings, or by originating statement of claim.
The Problems With This Approach
25. Difficulties in interpretation are created by the draughtsman's use of the word "defendant", and the phrases "claim for contribution" and "proceedings on the new cross-claim" in clause 54 to describe those claims for contribution to which Division 6 applies; as well as his use of the phrase "statement of claim for the new cross-claim" in clauses 56, 57 and 58 to describe the relevant pleading.
"Defendant"
26. Pursuant to s3 of the Civil Procedure Act 2005:
- "Plaintiff" means a person by whom proceedings are commenced, or on whose behalf proceedings are commenced by a tutor, and includes a person by whom a cross-claim is made or on whose behalf a cross-claim is made by a tutor; and
"Defendant" means a person against whom proceedings are commenced, and includes a person against whom a cross-claim is made.
27. In the present proceedings Babcock is a plaintiff not a defendant.
28. Within the rubric of Part 39 "Enforcement of Judgments" in the Uniform Civil Procedure Rules 2005, upon entry of judgment in favour of the plaintiff in the original proceedings, Babcock became identified, not as a defendant, but as a judgment debtor. Upon satisfaction of the plaintiff's judgment, no cross claims against it being on foot, Babcock was neither a defendant nor a judgment debtor.
29. Although Clause 54 imports a temporal element, it is ambiguous. Does the clause require that the claimant be a defendant to the original claim at the time when proceedings on the new cross-claim are commenced, or a party who was once, but no longer is, a defendant to the original claim?
"Claim for Contribution"
30. The Division is expressed to apply to "a claim for contribution". This is apt to describe a claim for contribution made pursuant to s5 of the Law Reform (Miscellaneous Provisions) Act 1946. Independent actions against other parties by persons suffering judgment at the hands of a plaintiff are not limited to claims for contribution. The initial statement of claim filed by Babcock claimed both contribution pursuant to the statute and in damages in negligence. Although the statement of claim was, on 30 November 2009, amended to delete the negligence claim, this was after the determination by the Contributions Assessor on 13 November 2009.
31. It is illogical that the Claims Resolution Process, which pursuant to clause 19 fetters the hand of the Tribunal, should apply to part only of a plaintiff's claim for relief, ignoring claims for contractual indemnity or claims for damages in negligence, when the concurrent jurisdiction of the District Court or the Supreme Court upon the whole of the claim is unrestricted.
"Proceedings on the New Cross Claim"
32. S3 of the Civil Procedure Act 2005, defines "cross-claim" as "a claim by a defendant for the grant of relief under section 22".
33. S22 provides relevantly:
- 22 Defendant’s right to cross-claim
(1) Subject to subsection (2), the court may grant to the defendant in any proceedings ("the first proceedings") such relief against any person (whether or not a plaintiff in the proceedings) as the court might grant against that person in separate proceedings commenced by the defendant for that purpose.
(2)…
34. Separate proceedings originated by statement of claim seeking damages for breach of duty and/or contribution or indemnity pursuant to s5 of the Law Reform (Miscellaneous Provisions) Act 1946, do not fall within the meaning given to cross claim in s22.
35. If clause 54(1) were to be read with the words in parenthesis, "(the new cross-claim)" and the words "on the new cross-claim" excised, the provision would apply to any claim for contribution made by a defendant or cross-defendant in the original proceedings, whether by way of cross-claim or originating process. But the words are contained within the clause and must be given some meaning.
36. Setting aside for the moment the problem that the claims contemplated by s54 do not include claims for relief independently of s5 of the contributions statute, what work do those words do if they do not signify that the claims in question are cross-claims?
37. A possible interpretation is that the words "new cross-claim" are not terms of art, nor intended to limit the generality of the preceding words, "claim for contribution", but were chosen to act as a descriptor for the purposes of identifying those contribution claims, however instituted, upon which clauses 55 and 58 impose the Claims Resolution Process. This was the conclusion that I reached in Wallaby Grip Ltd v Klinger Ltd [2009] NSWDDT 13 (22 May 2009).
38. This interpretation is inconsistent with clause 47(2) of Division 5, promulgated concurrently with Clause 54, which provides that the settlement or determination of a plaintiff’s claim does not affect the continued operation of the Claims Resolution Process "in relation to a cross-claim on that original claim."
39. The original proceedings remain on foot after determination of the plaintiff’s claim in circumstances where, as is most often the case, the Tribunal has ordered that the cross-claims be separately tried pursuant to R28.2 of the Uniform Civil Procedure Rules 2005.
"Statement of Claim for the New Cross-Claim"
40. Babcock contends that the words "statement of claim for the new cross-claim", where appearing in clauses 56 and 57 are intended to be descriptive of the originating process for those claims upon which the Division is to operate, that is, claims for contribution initiated by statement of claim.
41. Although, ideally, the words "statement of claim" in the description of the originating process to which clauses 56 and 57 apply should be given some meaning, in conjunction with the words for cross-claim they are wholly ambiguous.
42. The phrase "statement of claim for cross-claim" does not appear in the Uniform Civil Procedure Rules 2005. R6.2 provides that, subject to the rules, a person may commence proceedings in the court by filing a statement of claim or a summons. R6.3 provides that proceedings on a claim for relief in relation to a tort or a breach of duty must be commenced by statement of claim.
43. R9.1 provides that, in proceedings commenced by statement of claim, a cross-claim is to be made by a "statement of cross-claim", and that in any proceedings each cross-claim is to be numbered in the order in which the cross-claims are filed.
44. The phrase "statement of claim for the new cross-claim" is self contradictory. It accurately describes neither a statement of claim upon an independent cause of action, nor a cross-claim as defined by s22 of the Civil Procedure Act 2005.
45. If Babcock's submission is accepted, it becomes necessary to read into the phrase "statement of claim for the new cross-claim" the word "or" in lieu of the word "for", in order to include, within the ambit of the Division, cross claims in the original proceedings filed after determination of the plaintiff’s claim.
Conclusion
46. Mr Watson SC for CSR and Bradford has identified the problems addressed above. He also argues that the machinery provisions for apportionment contained within Division 5 are designed to apply to defendants and cross-defendants and cannot, without violence to their language, be sensibly applied to the apportionment of liability between a plaintiff tortfeasor and defendants and cross defendants to his claim.
47. Because the regulation is so vague, I believe that the better course is to continue to follow my previous decision in Wallaby Grip Ltd v Klinger Ltd pending appellant guidance.
48. I hold that Division 6 of Part 4 of the Dust Diseases Tribunal Regulation 2007 applies to a separate claim for contribution instituted by statement of claim after the determination of the plaintiff’s claim.
49. The Court of Appeal in Power Technologies Pty Ltd v Energy Australia accepted that s90 of the Civil Procedure Act 2005, read with s11(1A) of the Dust Diseases Tribunal Act 1989 authorised the Tribunal to make an order for payment of money in consequence of an apportionment determined by a Contributions Assessor.
Orders
50. Bradford Insulation Industries Pty Limited is to pay within 28 days the sum of $247,863.20 to Babcock Australia Pty Ltd being 13 per cent of the judgment and costs totalling $1,906,640 recovered by Mr Kirkpatrick in proceedings against Babcock Australia Pty Ltd in the Tribunal.
- CSR Ltd is to pay within 28 days the sum of $247,863.20 to Babcock Australia Pty Ltd being 13 per cent of the judgment and costs totalling $1,906,640 recovered by Mr Kirkpatrick in proceedings against Babcock Australia Pty Ltd in the Tribunal.
Bradford Insulation Industries Pty Limited and CSR Ltd to jointly pay the costs of Babcock Australia Pty Ltd on this motion.
Mr D Miller instructed by Moray and Agnew appeared for Babcock Australia Pty Limited
Mr G M Watson SC instructed by Colin Biggers and Paisley appeared for CSR Ltd and Bradford Insulation Industries Pty Limited
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