Cockatoo Dockyard Pty Limited v The Commonwealth of Australia

[2001] NSWCA 468

CITATION:	Cockatoo Dockyard Pty Limited v The Commonwealth of Australia & anor [2001] NSWCA 468
FILE NUMBER(S):	CA 40048/01
HEARING DATE(S):	4 December 2001
JUDGMENT DATE:	12 December 2001
PARTIES :	Cockatoo Dockyard Pty Limited v The Commonwealth of Australia and John William Campbell
JUDGMENT OF:	Meagher JA at 1; Ipp AJA at 2; Grove J at 3

LOWER COURT JURISDICTION :	Dust Diseases Tribunal of NSW
LOWER COURT FILE NUMBER(S) :	323/00
LOWER COURT JUDICIAL OFFICER :	Maguire CCJ

COUNSEL:	T.G.R. Parker (Appellant) J.A. McIntyre SC (First Respondent) Submitting Appearance (Second Respondent)
SOLICITORS:	Allens Arthur Robinson (Appellant) Australian Government Solicitor (First Respondent) Watkins Tapsell (Second Respondent)
CATCHWORDS:	DUST DISEASES TRIBUNAL - CROSS CLAIM BETWEEN DEFENDANTS - CONSENT TO JUDGMENT IN FAVOUR OF INTENDED CROSS DEFENDANT AGAINST PLAINTIFF - OBJECTION BY CROSS CLAIMANT - PEREMPTORY ORDER - PROCEDURAL FAIRNESS
LEGISLATION CITED:	Law Reform (Miscellaneous Provisions) Act 1946 Dust Diseases Tribunal Act
CASES CITED:	James Hardie & Coy v Seltsam Pty Limited 1998 196 CLR 53
DECISION:	APPEAL ALLOWED

40048/01

MEAGHER JA
IPP AJA
GROVE J

Wednesday 12 December 2001

COCKATOO DOCKYARD PTY LIMITED v THE COMMONWEALTH OF AUSTRALIA and JOHN WILLIAM CAMPBELL

JUDGMENT

1 MEAGHER JA: I agree with Grove J.

2 IPP AJA; I agree with Grove J.

3 GROVE J: This is an appeal from the Dust Diseases Tribunal a court of record established under the Dust Diseases Tribunal Act 1989 and which was constituted by Maguire CCJ.

4 The issue in the appeal can conveniently be identified by chronicling some details. The contest has been carried forward between Cockatoo Dockyard Pty Limited (the Appellant) and the Commonwealth of Australia (the Respondent) which were respectively first and second defendants to a claim brought in the Tribunal by John William Campbell now deceased (the Plaintiff). A representative of his estate is also respondent to this appeal and has filed a submitting appearance.

5 Over a working life between about 1945 and 1987 the plaintiff claimed to have been negligently exposed by various employers to asbestos dust and fibres. Diagnosis of a related terminal illness led to the issue of a statement of claim against seven former employers (including the Appellant) and the Respondent. The liability of the latter was alleged to arise out of work performed by him at the Cockatoo Island Dockyard in particular upon two named naval vessels, HMAS Quiberon and HMAS Queenborough in about 1945 to 1946.

6 The statement of claim was issued on 20 December 2000. A directions hearing took place following which the Tribunal and legal representatives of the parties assembled at the home of the plaintiff on 11 January 2001 to take evidence from him.

7 Some supplementary evidence to his affidavit was advanced in chief. Cross examined on behalf of the Appellant, he confirmed a memory that he worked at Cockatoo Island on about twelve ships in addition to the two named vessels which had “come to his mind”. They were the only two naval vessels he remembered. He added that he was not sure about HMAS Queenborough and, cross examined by counsel for the Respondent, he reaffirmed his doubt about this but reaffirmed positively his further memory that HMAS Quiberon was a clean ship, that is to say, that he had no exposure to asbestos whilst on board it.

8 The transcript shows that the Tribunal adjourned that day between 1.30pm and 2.30pm.

9 Upon resumption, the following took place (Mr Lalich appearing for the Appellant and Mr Rundle for the Respondent):

“Mr Rundle: Would your Honour just look at this – between the plaintiff and the second defendant it has been agreed that the second defendant –


Mr Lalich: Do you ask that the judgment be entered in that effect today or not?

Mr Rundle: Yes.

Mr Lalich: I would object to that, your Honour.

His Honour: What is the problem about that, Mr Lalich?

Mr Lalich: Your Honour, the way the matter has proceeded today it has been listed only for the taking of the plaintiff’s evidence and if judgment was entered as proposed by my friend that would prejudice any cross-claim that our client may bring which on my instructions there is an intention to bring a cross-claim against the Commonwealth, should judgment be entered our rights in that regard would be prejudiced.

His Honour: Where are you going to get the evidence to support a cross-claim against Mr Rundle?

Mr Lalich: Your Honour, I mean at this stage there is still much investigative work to be done, despite what has been said this morning in terms of the plaintiff, there is at least from the plaintiff’s evidence one statement that the Commonwealth had control in terms of what happened on one of the ships that the plaintiff can recall working on that was a Naval ship that was docked at Codock. Perhaps the course which I understand was adopted by Judge Curtis in the – I think it was a matter of DAVIS that the parties can discontinue if they wish and make arrangements of that nature but I would object to judgment being entered in that it could prejudice any claim I might bring.

Mr Rundle: The directions of the court for the filing of defences were made to be filed by yesterday, I believe, under the Supreme Court rules, cross-claims have to be filed at the same time as the defence. No leave is being sought to file a cross-claim. Plaintiff and the defendant have agreed that there should be an agreement.

His Honour: Mr Rundle, I would have thought in view of the speed that has attached to this matter so far that leave to file cross claims after yesterday would be fairly easily obtained.

Mr Rundle: With respect, your Honour, they would have to show some evidence upon which they have a prospect of success and an extent of time, that would be one of the requisites and at the moment there is just nothing before you, it is very clear.
His Honour: It is worse than that, from the plaintiff’s point of view there is evidence to the contrary.

Mr Rundle: Yes. He says that he was not exposed to asbestos on any Naval ship.

His Honour: Do you want to say any more, Mr Lalich?

Mr Lalich: No, your Honour. I think I have said everything I need to.

His Honour: I think in view of the overwhelming nature of what Mr Campbell had to say on this issue, that any claim by anybody against the Commonwealth is dead in the water. By consent, judgment for the second defendant against the plaintiff, each party to bear own costs.”

10 It might be noted that at the beginning of proceedings counsel for the Plaintiff had commented “we are only here, as I understand it, to take the Plaintiff’s evidence. I think there is nothing we need really to do other than take his evidence”. His Honour was informed that there was no agreement about “a timetable beyond today”.

11 On 26 April 2001 the Appellant filed a notice of appeal seeking as principal relief the setting aside of the judgment entered in favour of the Respondent. A formal minute of judgment is with the papers and it records entry of judgment on 5 June 2001. In the meantime, on 29 May 2001 the Appellant filed a cross claim against the Respondent asserting that it was or would if sued, have been liable for the damage to the Plaintiff and sought contribution pursuant to s5 of the Law Reform (Miscellaneous Provisions) Act 1946. Assertions were made therein concerning work on other than naval vessels and the cross claim comprehended what were termed naval work exposure and commercial work exposure.

12 On 8 August 2001 the Respondent filed a defence to the cross claim including the following:

“9.. Further, and alternatively, the proceedings by way of Cross Claim are barred or estopped by reason of the Verdict and Judgment of the Dust Diseases Tribunal in favour of the Cross Defendant as against the Plaintiff, such Verdict and Judgment ordered by His Honour Judge Maguire on 11 January 2001 and entered on 5 June 2001. 10. Further, and alternatively, the Cross Claimant is not entitled to the relief sought in paragraph 15 of the Cross Claim. The Cross Defendant denies that it is a party which is or would be if sued liable for the alleged damage (not admitted) to the Plaintiff by reason of the Verdict and Judgment referred to in the foregoing paragraph. 11. Further, and alternatively, section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (‘the Act’) does not apply to the Cross Defendant by reason of the Verdict and Judgment referred to in paragraph 9 above and consequently the Cross Claim discloses no cause of action against the Cross Defendant, which further is not a joint tortfeasor within the Act.”

13 However on 25 June 2001 a consent judgment was filed in the Tribunal notifying verdicts and judgments for the Plaintiff against each of the respective Defendants to the action (with the exception of the Respondent) for specified individual amounts. Included was a judgment against the Appellant for $25,000.

14 Against that background, the short point advanced by the Appellant is that the precipitate entry of judgment for the Respondent against the Plaintiff over the protest of the Appellant should be set aside on the ground of procedural unfairness.

15 The consent judgment in favour of the Respondent against the Plaintiff was no less effective to absolve it from liability in contribution proceedings by the Appellant than if judgment had been given following trial: James Hardie & Coy v Seltsam Pty Limited 1998 196 CLR 53.

16 When the situation of potential bar arose it was incumbent upon the Appellant to take steps to oppose the entry of the judgment and put itself in a position to appeal should it occur. This is what the Appellant did. In so doing the Appellant obviously implemented the guidance available from the judgment of Gaudron and Gummow JJ in Hardie v Seltsam when their Honours observed (@ pp62-63):

“17………The Tribunal, as a court of record, had an overriding power to control its own proceedings and was not obliged to act upon the request by some of the parties before it that consent orders be entered. The appellant had the right to be heard before the Tribunal entered the consent judgment in favour of the respondent against the plaintiff in the plaintiff’s action.

…………………………

19. The appellant might have sought deferral of the entry of judgment in favour of the respondent until determination of the issue of liability of the appellant to the plaintiff for the purposes of the appellant’s contribution claim against the respondent. In the process of negotiation between the parties, various options might have been available. A release agreed between the plaintiff and one tortfeasor would not necessarily have released the others. Further the respondent concedes that, if the plaintiff had released the respondent without a judgment, then the appellant could have maintained its action for contribution.

20. Against any decision by the Tribunal to enter consent judgment as sought by the respondent and the plaintiff but against the wishes of the appellant, the appellant would have had standing to appeal. By that means, the appellant would have kept in play the question whether it was entitled to recover contribution from the respondent………………..”

17 It was somewhat faintly suggested that the Appellant did not specifically ask his Honour to adjourn the matter but the Appellant’s protest was unambiguous and emphasized that (three weeks after the filing of originating process by the Plaintiff) there was still much investigative work to be done.

18 This Court was informed that it was the common practice of the Tribunal to determine a claim by a plaintiff against defendants and sever the hearing of any cross claims for later determination. The Appellant seeks to be put in that position as a cross claimant against the Respondent.

19 In my opinion, his Honour’s decision to enter judgment in favour of the Respondent in the circumstances was erroneous. His brief observation above set out unmistakably shows that he assumed that there could be no evidence other than the Plaintiff’s testimony upon the issue of exposure. That assumption cannot be justified. As pointed out on behalf of the Appellant, it was open to it to seek other evidence possibly available from other employees, docking or slipping records. Further, no attention had been paid to the possibility of commercial work exposure of the Plaintiff as distinct from naval work exposure. Of course the Appellant’s claims had not at that stage been formulated but the scant evidence from the Plaintiff, ill and casting his mind back more than fifty years, was not a sound basis for effectively and finally excluding the making of those claims.

20 Senior counsel for the Respondent observed that no such further evidence had been identified but the occasion for this would be if the matter is returned to the Tribunal. The present issue is not the merit of cross claim but whether the appellant should have been peremptorily shut out from advancing it at all.

21 As it can now be gauged that the Appellant seeks contribution to a judgment for $25,000 in favour of the Plaintiff against it, the question of need for leave was mentioned. S32(4) of the Dust Diseases Tribunal Act provides in relation to appeals:

“The following appeals under the section may be made only by leave of the Supreme Court

(a) an appeal from an interlocutory decision,

(b) an appeal from a decision as to costs only,

(c) an appeal from a final decision, other than an appeal that involves (directly or indirectly) a claim for, or a question relating to, an amount of $20,000 or more.”

22 However Mr McIntyre SC for the Respondent fairly acknowledged the contention by Mr Parker of counsel for the Appellant that a matter of principle (or at least of appropriate practice) was involved and he has confirmed that no point is taken in regard to leave. If it be necessary, it should be granted. By the same token extension of time for filing the cross claim which his Honour forecast would be “fairly easily obtained” should also be granted.

23 As Gaudron and Gummow JJ in Hardie v Seltsam made express, it is appropriate in circumstances such as these for the Tribunal to exercise its overriding power over its own proceedings to refrain from entering judgment even where parties desire this by consent. It is the entry of judgment by the Tribunal which can extinguish a cross claimant’s successful pursuit of any remedy. The refraining from entry of judgment by the Tribunal would not effect the efficacy of an agreement to terminate proceedings between a Plaintiff and a Defendant.

24 Nor in the present case will be setting aside of the order for entry of judgment affect the announced agreement between the Plaintiff and the Respondent. Save the extension of time abovementioned, the Appellant seeks only an order that the judgment be set aside and has foreshadowed, if such an order were to be made it will move in the Tribunal for directions as to the hearing of the cross claim. No doubt recognizing what had been said in Hardie v Seltsam in part of the passages above cited, it was not contended that the Appellant did not have standing to bring this appeal.

25 I would order that the appeal be allowed, the time for filing of cross claim by the Appellant against the Respondent extended to 29 May 2001, the judgment entered in favour of the Respondent against the Plaintiff set aside and the Respondent ordered to pay the Appellant’s costs of the appeal.

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