Colombin v TransAdelaide

[2001] NSWDDT 13

Dust Diseases Tribunal

of New South Wales

CITATION:	Colombin v TransAdelaide [2001] NSWDDT 13
PARTIES:	Bruno Colombin TransAdelaid Commonwealth of Australia
MATTER NUMBER(S):	326 of 2000
JUDGMENT OF:	Armitage J at 1
CATCHWORDS:	Miscellaneous Matters :-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	16 February 2001
EX TEMPORE JUDGMENT DATE :	02/16/2001
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr MJ Joseph S.C. instructed by Alex Stuart & Associates FOR DEFENDANT: Mr Grant instructed by Moray & Agnew for the first defendant. Mr C R Hoeben S.C. instructed by Church & Grace fir the second defendant.

JUDGMENT:

1. This is a notice of motion by the first defendant, TransAdelaide, seeking orders relevantly that the Statement of Claim as against the first defendant be dismissed pursuant to Pt 13 r 5 and that the plaintiff or the second defendant be ordered to pay the costs of the first defendant. The matter is not without difficulty as legal questions of some complexity are involved, but all the parties seek that I give an ex tempore judgment on the motion because the plaintiff suffers from mesothelioma, which I gather it is common ground is a life-threatening condition from which the plaintiff may shortly die.

2. It is necessary in order to understand the motion firstly to refer to the Statement of Claim. Although leave has not been given in accordance with the Supreme Court rules to rely on it, the parties have agreed that the Statement of Claim which I should consider is the further amended Statement of Claim filed on 4 January 2001. It alleges firstly that the first defendant, TransAdelaide, is a body corporate pursuant to statute, the successor in title to the Department of Railways (South Australia) and entitled to sue and be sued by its corporate name and style and it goes on to assert that the second defendant is sued pursuant to statute, referring no doubt to the Judiciary Act 1903 (C’wealth).

3. It asserts that between 1956 and 1964 the Department of Railways employed the plaintiff as a fitter pursuant to the South Australian Railways Act 1936 (SA). It then asserts that the plaintiff was exposed to while in the employment of the Department and inhaled asbestos dust and fibre and that in this period the plaintiff worked at premises located at Peterborough, being a non-metropolitan area within the meaning of that term in Sch 1 of the Railways (Transfer Agreement) 1975 (SA) and/or the Railways Agreement (South Australia) Act 1975 (Commonwealth). It then asserts that the plaintiff's work at Peterborough was in connection with the operation of non-metropolitan railways or in association with those railways is defined by Sch 1 of the Railways (Transfer Agreement) Act 1975 (SA) and/or the Railways Agreement (South Australia) Act 1975 (C’Wealth).

4. It goes on to assert that the plaintiff as a result of his exposure and inhalation of asbestos suffered injury, loss and damage and that this was caused by the negligence of the Department of Railways (SA). Further or in the alternative it alleges that liability for such negligence was transferred from the Department of Railways (SA) and accepted by the second defendant pursuant to s 8 of the Railways Agreement (South Australia) Act 1975 (C’Wealth) and/or s 8 of the Railways (Transfer Agreement) Act 1975 (SA).

5. The argument of the first defendant, TransAdelaide, is that the last alternative assertion in the statement of claim in par 9 thereof is as a matter of law the only one available to the plaintiff, so that summary dismissal of the Statement of Claim as against the first defendant, TransAdelaide, is appropriate under Pt 13 r 5 of the Supreme Court Rules, which of course provides relevantly:

(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings -

(a) no reasonable cause of action is disclosed:

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

6. It falls to me therefore to determine whether any reasonable cause of action is disclosed by plaintiff's further amended Statement of Claim insofar as it relates to the first defendant, TransAdelaide. I was not referred to any authorities on Pt 13 r 5, but it is I think uncontroversial that, as Ritchie's Supreme Court Practice notes at page 2325 in par [13.0.1] at the commencement of Pt 13, a party will not be denied a trial unless the absence of a cause of action or defence is clearly demonstrated (General Steel IndustriesInc v Commissioner for Railways (NSW) 112 CLR 125) and that once it is apparent that there is a real question to be determined, the Court will not deal with the matter summarily (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91).

7. It seems to me that I must determine that the plaintiff has no arguable case against the first defendant, assuming for purposes of the strike out motion only that the factual assertions in the Statement of Claim are true, as I am required to by authority, before the strike out motion, insofar as it relies on SCR Pt 13 r 5, may succeed.

8. The motion relies alternatively on Pt 15 r 26 which reads relevantly:

(1) where a pleading -

(a) discloses no reasonable cause of action or defence or any other case appropriate to the nature of the pleading:

the Court may at any stage of the proceedings, on terms, order that the whole or any part of the pleading be struck out.

9. Again I was referred to no authority by counsel as to the proper approach to this provision, but again, as seems to me to be uncontroversial, the notes in Ritchie's Supreme Court Practice are appropriate guidance in par [15.26.1A] on pages 2372-3. General Steel is again referred to along with other authorities in support of the proposition that:

Ordinarily the power to strike out pleadings as disclosing no reasonable cause of action should be exercised only in plain and obvious cases.

10. A number of other authorities, notably Dey, are cited for the further proposition that:

The power to strike out should not be exercised in cases where there is a real issue to be tried, whether it is one of fact or law [emphasis added].

11. These statements, supported as they seem to me to be by authority, seem again to be an indication that I should not accede to the motion if I think that the plaintiff has an arguable case against the first defendant, even if it may not ultimately be likely to succeed.

12. In order to understand Mr Grant's submissions for the first defendant it is necessary to go to the legislative scheme which he kindly outlined for me. First, the South Australian Railways Commissioners Act 1936 provides in s 6 that:

(1) For the purpose of carrying this Act into execution, there shall be a Commissioner by the name of `the South Australian Railways Commissioner'.

(2) The Commissioner shall be a body corporate and shall have perpetual succession and a common seal, and shall be capable in law of suing and being sued, and shall have power to take, purchase, sell, lease and hold lands, tenements and hereditaments, common goods, chattels, and other properly, for any of the purposes of this Act, subject to the restrictions contained in this Act.

13. The second statute is the State Transport Authority Act 1974 (SA) which provides in s 5 relevantly that:

(1) There shall be an authority entitled `The State Transport Authority'.

(2) The authority -

(a) shall be a body corporate with perpetual succession and a common seal;

(b) shall be capable of suing and of being sued;

(c) shall be capable of holding, dealing with, and disposing of real and personal property;

(d) shall be capable of acquiring or incurring any other rights or liabilities;

(e) shall hold all its property for or on behalf of the Crown;

(f) shall have the powers, duties, functions that authorities conferred, imposed or prescribed by or under this Act.

14. The next statute is the South Australian Railways Commissioners Act Amendment Act 1975 (SA) which provides relevantly in s 6:

Sections 6 to 11 (inclusive) of the principal Act [effectively defined in s 1(2) as the South Australian Railways Commissioners Act 1936 - 1974] are repealed and the following section is enacted and inserted in their place:-

6(1) The body corporate known as `The South Australian Railways Commissioner' and in existence under the South Australian Railways Commissioner's Act 1936-1974, immediately before the commencement of the South Australian Railways Commissioner's Act Amendment Act 1975 is hereby dissolved.

(2) All real and personal property, rights, powers, duties and liabilities of the Commissioner are hereby transferred to and vested in the authority [emphasis added].

15. The next statute is the Passenger Transport Act 1994 which provides relevantly in sch 4 cl 1 that:

(1) The following Acts are repealed:

.........

(b) The State Transport Authority Act 1974.

Sch 2 cl 1 provides relevantly:

(1) The State Transport Authority is continues in existence as TransAdelaide

(2) TransAdelaide is a body corporate.

16. Thus far it can be seen that inter alia the liabilities of the South Australian Railways Commissioner were transferred to the State Transport Authority of South Australia which continues in existence under another name as TransAdelaide, the first defendant to the Statement of Claim in this case. As evidenced by the passage of these statutes it would appear that the State of South Australia and the second defendant, the Commonwealth of Australia, entered into an agreement culminating in certain statutory arrangements in relation to the acquisition of that part of the undertaking of the State Transport Authority of South Australia as related to non-metropolitan railways by a Commonwealth authority with separate legal personality, namely the Australian National Railways Commission.

17. This agreement was given statutory effect firstly by the Railways Agreement (South Australia) Act 1975 (C’wealth). It is described in its preamble relevantly as:

An act relating to the acquisition by Australia, with the consent of South Australia, of certain railways of South Australia and as to the construction and extension by Australia, with the consent of South Australia, of railways in South Australia . . .
It provides in s 3 that:

The Railways Agreement (South Australia) 1975 is repealed

and in s 4(1) relevantly that:

In this Act, unless the contrary intention appears -

'Agreement' means the agreement a copy of which is set out in the Schedule


and in subs (2) of the same section that:

Expressions used in this Act that are defined by cl 1 of the agreement have the same respective meanings as those expressions have in the agreement.

18. In subs (5) of that section, it is provided that "The agreement is approved". In s 6, which it is unnecessary to quote, any land in South Australia to which the Australian National Railways Commission would have been entitled on the commencement date under the agreement if the agreement had been in force on that date is vested in that Commission, and similar provision is made in s 7(1), which it is again unnecessary to quote, in respect of the vesting of property other than land. S 8, which is the crucial provision in this case to which counsel have directed their arguments, provides:

The Commission shall, on and after the declared date, be subject to all liabilities and obligations incurred by South Australia or a state authority before that date in connection with the administration, maintenance and operation of the non-metropolitan railways and of any services (including passenger and freight road services) that are principally or mainly incidental or supplementary to, or principally or mainly operated in association with, those railways, to the extent to which those liabilities and obligations are not discharged before that date [emphasis added] .

19. It was agreed by the parties that the "declared date" referred to in the section is 1 March 1978 and, as I understand them, that the South Australian Railways Commission is a "state authority" within the meaning of the section. It was also agreed by the parties that, as indeed is asserted by the plaintiff in his Statement of Claim (which assertion I must assume to be true for the purposes of this motion), the plaintiff was at all times engaged in the non-metropolitan operations of the then South Australian Railways Commissioner.

20. The schedule contains the Agreement referred to in s 4 and s 5, and relevantly the recitals in paras (a), (b) and (c) refer to the constitutional provision in s 51 for the Parliament of Australia to make laws with the consent of a state of any railway of a state, and to the fact that the railways of the state [of South Australia] both metropolitan and non-metropolitan are vested in and operated by the South Australian Railways Commissioner, and to the fact that by agreement the non-metropolitan railways of South Australia are to be acquired on the first day of July 1975 by Australia, and that the State Transport Authority and the South Australian Railways Commissioner are to administer, maintain and operate such non-metropolitan railways in accordance with the agreement until a date to be declared, and that the Australian National Railways Commission is to assume full administration, maintenance and control of such non-metropolitan railways on the declared date.

21. Importantly cl 5(1) reads relevantly:

In consideration of the financial arrangements between the parties contained in this agreement -

. . .

(c) On the commencement date -

. . .

(iii) If there are any contractual or non-contractual rights and interests and things in action, not included in the balance sheet referred to in (i) of this paragraph, the Commission shall be entitled to such of those rights, interests and things in action as relate solely to the non-metropolitan railways and services . . .[emphasis added]

On the face of it, I note in passing, this appears to transmit to the Commonwealth Commission any rights the South Australian commission may have had as a joint tortfeasor to mount cross-actions against other tortfeasors in respect of any wroing to the plaintiff, but as later indicated I make no final decision on that question.

22. Consideration for the agreement is provided by cl 18 which provides that Australia will pay the State of South Australia the sum of $10 million before the commencement date, subject to the agreement coming into force. The First Schedule of the agreement in cl 1 to cl 4 details precisely what is meant in the agreement by “metropolitan railways”, and it is I think common ground between the parties that the premises upon which the plaintiff is alleged by the Statement of Claim to have worked at Peterborough and suffered asbestos exposure are not included in the list in the Schedule.

23. Intercurrently the South Australian Parliament passed the Railways (Transfer Agreement) Act 1975 (SA) which annexes as a schedule the same agreement as was annexed to the last Commonwealth statute mentioned, and provides in s 4 subs (1) that the agreement is approved and in subs (2) that the State consents to the acquisition, provided for by the agreement, of the railways of the State. In s 7 the statute provides that:

On and from the declared date the State and each state authority is, by force of this section, freed and discharged from all liabilities and obligations incurred by it , and not discharged before that date, in connection with the administration, maintenance and operation of the non-metropolitan railways and of any services that are principally or mainly incidental or supplementary to, or are principally or mainly operated in association with, those railways, to the extent to which the Commission becomes subject to those liabilities and obligations on and from that date [emphasis added].
It should be noted in passing that the wording I have emphasised is the same as that in s 8 of the corresponding Commonwealth statute which I have quoted above.

"The Commission" because of the operation of s 3(2) of the Act which provides:


Where an expression used in this Act is defined in cl 1 of the agreement, that expression shall for the purposes of this Act and unless the contrary intention appears bear the meaning assigned to it by that clause.

means the Australian National Railways Commission, because the words " the Commission" are thus defined in cl 1(1) of the Agreement which, as I have said, forms the Schedule to the Act. I again observe in passing that this means that the freeing and discharging from all liabilities and obligations of the State and each state authority provided for by the section takes place only to the extent to which the Australian National Railways Commission succeeds to those liabilities and obligations on and from the date concerned. The corollary is of course that if s 8 of the Railways Agreement (South Australia) Act 1975 (C’wealth) to which the parties have directed their arguments is not effective to transfer the liabilities of the South Australian Commissioner for Railways and his statutory successors to the Commonwealth, s 7 of the Railways (Transfer Agreement) Act 1975 (SA) is not a statutory bar to the action which the plaintiff seeks to bring against the first defendant.

24. This submission was made by Mr Hoeben in support of his argument that therefore an unjust or absurd result does not flow if the plaintiff is unable to succeed against the defendant, and to that extent I agree with him. Passing reference should also be made to the Australian National Railways Commission Act 1983 (C’wealth) which in s 4 subs (1) provides that the Australian National Railways Commission, being established under the Australian National Railways Act 1917, is continued in existence, and in subs (2) that the Commission relevantly is a body corporate with perpetual succession.

25. Finally, the Australian National Railways Commission Sale Act 1997 by Sch 3 repeals in subclause (1) the Australian National Railways Commission Act 1983 and in cl 2 defines "residual liability" as:

Liabilities and duties of the Commissioner, including contingent and prospective ones, immediately before the repeal day.
and in cl 3(2) provides that:

By force of this item, all residual liabilities of the Commission cease to be liabilities of the Commission and become liabilities of the Commonwealth on the repeal day.

26. It is by virtue of these last provisions that the plaintiff sues the Commonwealth of Australia rather than the Australian National Railways Commission.

27. As I have said, s 8 of the Railways Agreement (South Australia) Act 1975 from which I have quoted above is the provision which the interpretation of which the parties disagree in this case, it being agreed that the plaintiff at all material times worked only in the non-metropolitan operations, if I may so call them, of the then South Australian Commissioner for Railways at Peterborough, or at least such is agreed for the purposes of the motion.

28. Mr Grant submits simply that any liability in his client TransAdelaide to the plaintiff, assuming the assertions in the Statement of Claim to be true, was transferred to the Commonwealth of Australia by force of s 8. He takes me to the affidavit of Stephen David Taylor-Jones sworn 15 February 2001 in support of the first defendant's motion, filed in court without objection and relied on by the first defendant, and to annexure B of that affidavit being a reply by the plaintiff's solicitors to a request for particulars by the first defendant's solicitors, and in particular paras 18 and 19 on page 3 of that reply, which is dated 4 January 2001, in which it is asserted firstly that the plaintiff first noticed symptoms, as it is put, in early 1998 and that the diagnosis of mesothelioma was made in February 1998 following a biopsy at the Royal Adelaide Hospital.

29. It has been assumed by all parties for the purposes of this motion that the plaintiff had no cause of action against either defendant until he received a diagnosis of mesothelioma in February 1998. Mr Grant therefore concedes that the liability of the first defendant to the plaintiff, assuming the assertions in the Statement of Claim to be true, was an inchoate or contingent one as at 1 March 1998, the "declared date" for the purposes of s 8 of the Railways Agreement (South Australia) 1975 (C’wealth) because the acts and omissions alleged against the first defendant by the plaintiff as its employee must ex hypothesi, adopting the wording of the Statement of Claim, have occurred between 1956 and 1964, during which time the South Australian Railways Commissioner (wrongly named as the Department of Railways (South Australia) in the Statement of Claim) is said to have employed the plaintiff, it being the statutory predecessor, in the way I have traced, of the first defendant TransAdelaide. Therefore Mr Grant concedes that the acts and omissions relied on by the plaintiff must be assumed to have occurred before the "declared date" of 1 March 1978 for the purposes of s 8, and the plaintiff's damage which completed his cause of action, assuming the assertions in the Statement of Claim to be true, occurred after that date.

30. Mr Grant takes me to Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 where a similar fact situation occurred. Putting it briefly, the appellant Mr Crimmins was employed by the Australian Stevedoring Industry Authority (stating it loosely) and in that employ experienced exposure to asbestos. Much later he experienced the symptoms of and was ultimately diagnosed with the condition of mesothelioma, as was the plaintiff in the present case. Between the dates of the acts and omissions alleged to have occurred on the part of the Australian Stevedoring Industry Authority and the date upon which the plaintiff contracted mesothelioma, the Australian Stevedoring Industry Authority was abolished by the Stevedoring Industry Acts (Termination) Act 1977, which in turn established the Stevedoring Industry Finance Committee. At the expiration of a transitional period s 14 of the Stevedoring Industry Acts (Termination) Act 1977 (C’wealth) provided that:

The committee is, by force of this section, liable to perform all the duties and to discharge all the liabilities and obligations of the authority that existed immediately before the expiration of [the transitional] period [emphasis added].

31. The contention of the plaintiff was that this provision was apt to render the Stevedoring Industry Finance Committee liable for the acts and omissions of the Australian Stevedoring Industry Authority which caused his mesothelioma, notwithstanding that the acts and omissions occurred before the passage of the enactment in 1977 and his contraction of mesothelioma, i.e. his suffering of the damage required to complete his cause of action, occurred after such enactment. Everything therefore turned on the interpretation of the words "all the liabilities and obligations of the authority that existed" in s 14 subparagraph (b).

32. The passage from the judgments which, with respect, I find of most assistance in that case is found in the reasons of Gleeson CJ at 13-14 where his Honour said:

Depending upon the context, the meaning of `liability' can include a contingent or potential liability. (Walters v Babergh District Council (1983) 82 LGR (Eng) 235 (QBD). Where the legislature, in providing for the replacement of the Authority by the respondent, stipulated that the respondent was to perform all the duties, and discharge all the liabilities, of the Authority, which was abolished and which had no further capacity itself to meet any claims upon it, there was no good reason to distinguish between complete and inchoate causes of action in cases where the Authority had committed a breach of a legal duty. Such a distinction is not required by the use of the word `liability', and to give it a narrow construction would defeat the evidence purpose of the legislation, which was to preserve the just entitlements of those who had dealings with the Authority before its abolition.

33. Similar observations occur in the judgment of Gaudron J, in particular at 15 where she observed that:

The word `existed' is not synonymous with `were enforceable'. Nor, in my view, should it be so construed.
and further down the page:

Those words are capable of meaning not only that the liability or obligation should have been enforceable at the expiration of the transitional period, but that its foundation should then have been in existence. In my view, they should be construed to include that latter meaning.

34. Similar remarks occur in the judgment of McHugh J at 51 - 56 under the heading "Succession of Liability" which I shall not quote for reasons of space, although I am respectfully indebted to his Honour for them. Mr Grant simply urges that Crimmins compels the result that the slightly different expression in this case, "all liabilities and obligations incurred" in s 8 of the Railways Agreement (South Australia) Act 1975, should be construed similarly to the enactment construed in Crimmins to include inchoate liabilities of the type which the Australian Stevedoring Industry Authority had to Mr Crimmins, and which for the purposes of the motion in this case it is to be assumed that the South Australian Commissioner for Railways had to the plaintiff. So, he says, by the statutory chain which I have set out above, the liability of the South Australian Commissioner for Railways to the plaintiff assumed for the purposes of this motion to exist is transmitted to the second defendant, the Commonwealth of Australia.

35. Mr Hoeben for the second defendant in his convenient outline of argument which he handed to me, and his in oral submissions, first says that the word "incurred" in s 8 which I am now considering is to be contrasted with the use of the word "existed" in Crimmins, and is to be construed as having a different meaning. In support of that proposition Mr Hoeben takes me to Australian and New Zealand Banking Group Limited v Federal Commissioner of Taxation (1994) 119 ALR 727. There what was being considered was whether, inter alia, s 51(1) of the Income Tax Assessment Act 1936 allowed a taxpayer to claim as a tax deduction liabilities to injured employees in respect of accidents at work for which the taxpayer was liable under the Victorian workers compensation legislation but which had not yet been reported to the taxpayer.

36. Here what was being considered in particular was whether a loss or outgoing had been "incurred" in these circumstances. Apart from the result of the case, which was to an extent in favour of the taxpayer, Mr Hoeben takes me to the reasons of Hill J at 739, where under the heading "Whether the amounts provided were incurred" his Honour said:

Suffice it to say that for a loss or outgoing to be incurred it must be more than 'impending, threatened or expected'.
and further down on the same page that:

The loss or outgoing must represent a present liability, albeit not immediately payable but payable in the future, and whether or not defeasible.

37. For that proposition, among other cases, Nilsen Development Laboratories Pty Limited v Federal Commissioner of Taxation (1981) 141 CLR 616 at 627-8 is given as authority. Further down the same page Hill J said:

As the decision of the High Court in Nilsen makes clear, the primary obligation of an employer in respect of annual holiday pay or long service leave is to give an employee who has served the requisite amount of time paid leave. It is only when the employee enters upon that leave that a liability arises for the first time upon the employer to make a payment of money to that employee. Thus the liability for long service leave or annual holiday pay will be incurred only as and when the employee enters upon the leave and takes it, or as and when the employee leaves the service of his or her employer, thereby creating for the first time a liability in the employer to make payment to that employee. It is only then that there is a presently existing liability in the sense in which those words are used in the cases. As Gibbs J said (at CLR 628; ALR 168) speaking of annual holiday leave or long service leave:

'The present is not a case in which there is an immediate obligation to make payment in the future, a defeasible obligation to pay, or a present obligation which as a matter of law was unenforceable - there is no accrued obligation to make any payment at all. There was no loss outgoing 'incurred' within s 51(1).'

38. Mr Hoeben deploys this case to suggest that the expression 'incurred' in s 8 presently being considered qualifies the words "liabilities and obligations" so as to confine their operation to a liability which was not contingent or inchoate but which had presently arisen. He compares the situation in ANZ Banking Group with the situation facing the South Australian Commissioner for Railways as at the declared date, 1 March 1978, vis a vis the plaintiff, assuming the plaintiff's allegations to be true, and says that because at that date the plaintiff has not contracted mesothelioma, and for that matter had not suffered any damage so the South Australian Commissioner for Railways had no “liability or obligation incurred” to the plaintiff, s 8 was ineffective to transfer the “liability” of the South Australian Commissioner for Railways or his statutory successors to the Commonwealth of Australia.

39. I do not agree with this submission. It seems to me that the statutory context in which the question of the incurring of liability was being considered in ANZ Banking Group was far different from the present. There the court was interested in the question of whether a taxpayer could or could not claim as a tax deduction a workers compensation liability which had not yet crystallised, in the sense that an employee may have suffered an injury which had not yet been reported, provision presumably being made in the annual accounts of the taxpayer as a self insurer for such contingent liabilities and a taxation deduction being claimed in respect of that provision. Here the statutory context is far closer to that being considered in Crimmins because, as in Crimmins, an undertaking, to use a loose expression, of one party was taken over by another along with the assets, rights and liabilities attached to that undertaking, subject of course to the proper interpretation of s 8 presently being considered.

40. As Mr Hoeben points out, the situation in this case is in one respect very different from that in Crimmins because in that case the Australian Stevedoring Industry Authority had been abolished and had gone out of existence, so that if the plaintiff was unable to sue the Stevedoring Industry Finance Committee, he had no defendant available against which to take action in respect to his damage. Here, says Mr Hoeben, by contrast the first defendant still exists, and because of s 7 of the Railways (Transfer Agreement) Act 1975, which I have quoted above, the first defendant by descent, in the way I traced, succeeds to the liabilities of the South Australian Commissioner for Railways, to the extent that the Commonwealth (previously the Australian National Railways Commission) does not become subject to such liabilities and obligations, on and from the declared date (1 March 1978). Hence, says Mr Hoeben, the plaintiff has a defendant available to him, namely the first defendant, in the event of s 8 of the Railways Agreement (South Australia) Act 1975 (C’wealth) being construed in the way he contends so as not to transmit the liability of the South Australian Commissioner for Railways to his client, the Commonwealth of Australia. Hence he says the unjust or absurd results referred to in Crimmins by various of the justices does not occur here.

41. Mr Grant in reply says that that is not so, because he says that it would be odd indeed for the State of South Australia and the Commonwealth to enter into an agreement to transfer completely the undertaking of South Australia's non-metropolitan railways to the Commonwealth, if I may broadly so put it, and for the Commonwealth to provide in s 8 presently being considered for the transfer of liabilities from the one to the other, and yet for some liabilities nevertheless not to be effectively transferred because they are inchoate or not enforceable as at the declared date from which the agreement operates, namely 1 March 1978. Mr Grant points to the valuable consideration for the agreement to which I have already referred, and effectively says that it is a commercial arrangement at arm’s length between governments, and that it would be anomalous to find that a section obviously intended to transfer liabilities completely from one party to the agreement to the other to be yet ineffective in doing so.

42. This is an attractive submission but I must give primary weight, I think, to the ordinary meaning of the actual words of s 8 presently being considered, although in accordance with what was said by the High Court in Crimmins, I must consider them in their statutory context. Having said that, I cannot myself see any difference in principle between the words "all the liabilities and obligations of the authority that existed" being construed in Crimmins and the words "all liabilities and obligations incurred" which I have to construe in the present case.

43. The High Court, particularly McHugh J at 51-52, in Crimmins laid some emphasis on the word "existed" as it occurred in the expression being construed in that case, and held that it nevertheless did not qualify the words "liabilities and obligations" so as to limit their import to liabilities and obligations which were not inchoate or contingent as at the relevant date. It seems to me that one may “incur” a liability or an obligation which is yet inchoate or contingent in the same way as a liability may “exist” which is inchoate or contingent on the authorities collected conveniently in the judgment of McHugh J in Crimmins under the heading "Succession of Liability" at 51-56, and that Crimmins therefore leads to the result that s 8 of the Railways Agreement (South Australia) Act 1975 is to be construed as transmitting the inchoate liability to the plaintiff of the South Australian Commissioner for Railways and his statutory successors to the second defendant, the Commonwealth of Australia, assuming such liability to exist for the purposes of this motion, as I must.

44. It seems to me therefore that not only does the plaintiff have an arguable case in the way in which I must consider that question for purposes of the Supreme Court Rules against the second defendant, but that the second defendant has in truth as a matter of law succeeded to the liability to the plaintiff of the South Australian Commissioner for Railways, assuming such to exist, as I must for the purposes of the motion, and that the first defendant's motion to dismiss the Statement of Claim as against it must thus succeed, and that the motion defensively filed by the second defendant to strike out the Statement of Claim against it must therefore fail.

45. I say that the first defendant's motion must succeed because I have determined as a matter of law that the first defendant cannot be liable to the plaintiff in the action because, assuming the acts and omissions of the South Australian Commissioner for Railways (wrongly named in the Statement of Claim as the South Australian Department of Railways) to have occurred, as I must for the purposes of this motion, the second defendant, the Commonwealth of Australia has succeeded to the liability of the South Australian Commissioner for Railways in respect of such acts and omissions and the damage alleged by the plaintiff to have been caused by them.

46. In passing I observe that it would be odd indeed, as indeed Mr Grant submitted, if the first defendant, TransAdelaide, which has inherited wholly and solely the metropolitan railways undertaking of the South Australian Commissioner for Railways and his statutory successors, to inherit also the liability of the Commissioner and his successors in respect of non-metropolitan railway operations in South Australia clearly intended by the agreement to be transmitted to the Australian National Railways Commission, now the Commonwealth of Australia.

47. The Commonwealth urges in reply that the result contended for by TransAdelaide indeed would be unjust or absurd, in that under the Wrongs Act 1936 (SA), which I am told by counsel is in this respect identical in its provisions to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), the Commonwealth, if liable under s 8 discussed above, could not be a “tortfeasor” under the Wrongs Act and could not therefore join any asbestos suppliers as joint tortfeasors and claim contribution or indemnity. This seems to me incorrect, if (as I think) the Commonwealth by the operation of s 8 and the earlier statutory scheme I have traced stands for all purposes in the statutory shoes of the South Australian Commissioner for Railways, but I express no concluded opinion on that as it does not arise for decision here and any possible cross-defendants are not parties and have made no submissions.

48. I order therefore that the Statement of Claim as against the first defendant be dismissed pursuant to Pt 13 r 5 and Pt 15 r 26 of the Supreme Court Rules and that the second defendant pay the costs of the first defendant on that motion.

49. The notice of motion of the second defendant, that the Statement of Claim as against it be dismissed, is refused. The second defendant must also pay the first defendant's costs of that motion. It is uncontroversial, as I understand it, that the plaintiff is entitled to his costs of both motions as against the unsuccessful party on both motions, the second defendant, the Commonwealth of Australia, and I so order.

50. Mr Joseph sought also to recover the plaintiff's costs in respect of all of the proceedings thus far against the first defendant, TransAdelaide, from the second defendant. That relief is not sought by either of the motions before me and it is not proper that I determine it now, but I give the parties generally liberty to apply on 7 days' notice as to costs should they be so advised.

51. The plaintiff also sought undertakings from both defendants that should either of them on appeal be ultimately dismissed from the proceedings, the other ultimately unsuccessful party would meet the fruits of any verdict which the plaintiff may be awarded against the other party ultimately successful on appeal. It does not seem to me to be a proper exercise of judicial discretion to require either defendant to make such an undertaking on the hearing of a motion of this kind and I shall not do so.

52. However, both defendants sought that I give an ex tempore judgment on their motions, as did the plaintiff, firstly because of the plaintiff's life threatening condition, but secondly so that the incurring of costs in the cause by the successful party on the motions could be brought to an end. Mr Joseph for the plaintiff asserts, and I agree, that the determination of the time at which the orders I have formulated on the motions were to be made and the date from which they should operate involved the exercise of a judicial discretion, and that a term of the exercise of such discretion should be that I require the unsuccessful party on this motion, in the event the second defendant, the Commonwealth of Australia, to seek expedition of the hearing of any Notice of Appeal it may file in the Court of Appeal, and make every effort to have it heard before the hearing date of the main action in this case, which is 13 March next. This seems a reasonable requirement which imposes relatively minimal hardship on the second defendant, and I so order.

Mr M J Joseph, SC instructed by Alex Stuart & Associates appeared for the plaintiff

Mr Grant instructed by Moray & Agnew appeared for the first defendant

Mr C R Hoeben, SC instructed by Church & Grace appeared for the second defendant