Comcare v Amaca Pty Ltd (Re Webber)
[2019] NSWDDT 2
•08 March 2019
Dust Diseases Tribunal
New South Wales
Medium Neutral Citation: Comcare v Amaca Pty Ltd (Re Webber) [2019] NSWDDT 2 Hearing dates: 3, 5, 7, 11 December 2018, 5 March 2019 Date of orders: 08 March 2019 Decision date: 08 March 2019 Before: Russell SC DCJ Decision: (1) Judgment for the cross-claimant against the cross-defendant for $647,044.
(2) Order that the cross-defendant pay 59% of the costs which the cross-claimant (defendant) has been ordered to pay to the plaintiff.
(3) Order the cross-defendant to pay the cross-claimant’s costs of the cross-claim.
(4) Grant leave to approach my Associate within 7 days if different costs orders are sought.Catchwords: CONTRIBUTION – cross-defendant wishes to challenge assessment of damages in primary proceedings Category: Principal judgment Parties: Comcare (Cross-Claimant)
Amaca Pty Limited (Cross-Defendant)Representation: Counsel:
Solicitors:
G Watson SC and D Tang (Cross-Claimant)
J Sheller (Cross-Defendant)
Australian Government Solicitor (Cross-Claimant)
Holman Webb (Cross-Defendant)
File Number(s): DDT 164/2018/1
Judgment
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On 11 December 2018 I gave judgment for the plaintiff Mr Webber against the defendant Comcare for $1,101,065. The cross-claim for contribution brought by Comcare against Amaca Pty Limited (Amaca) was heard at the same time as the plaintiff’s claim. Because of the urgency of the plaintiff’s case, I delivered judgment on the primary action and gave the cross-claimant and the cross-defendant the opportunity to consider my judgment.
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The parties appeared before me again on 5 March 2018 when counsel for the cross-defendant Amaca indicated the following:
Amaca required a formal judgment to be given on the cross-claim, based upon the conclusions on law and damages expressed in my primary judgment at paras [168]-[177];
There was no further evidence on the cross-claim;
Amaca was a tortfeasor, which if sued in respect of the plaintiff’s exposure in New South Wales, would have been liable to the plaintiff;
Amaca was a tortfeasor, which if sued in respect of the plaintiff’s exposure in the Northern Territory, would have been liable to the plaintiff;
Comcare and Amaca agreed (subject to what appears below) that Amaca was liable to bear 59% of $1,096,685, being a figure of $647,044.
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When I enquired of counsel for Amaca why a formal judgment on the cross-claim was required, it was indicated that Amaca is considering appealing to the Court of Appeal against that part of my judgment in which I found that, while damages assessed under Northern Territory law amounted to $616,000 and damages assessed under New South Wales law amounted to $1,101,685, “since the defendant is responsible for all of the damages caused by the breach of duty of care in New South Wales, the plaintiff is entitled to one judgment, being against the defendant for $1,101,685” – at [176].
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As I understand it, Amaca, if it appeals, will argue that it should be liable only for 59% of the damages assessed under Northern Territory law. Thus, Amaca does not dispute that it is liable to pay 59% of the damages, but will say that damages should have been much less than I ordered.
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I was informed on an earlier occasion by senior counsel for Comcare that it had decided not to appeal from my judgment, and that it had already paid all of the damages to the plaintiff.
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No submissions were made regarding costs. I propose to make the usual costs orders in a case such as this, and grant leave to apply if different costs orders are sought.
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On the basis of the matters put before me by agreement between the cross-claimant and the cross-defendant, and consistent with my original judgment, I make the following orders:
Judgment for the cross-claimant against the cross-defendant for $647,044.
Order that the cross-defendant pay 59% of the costs which the cross-claimant (defendant) has been ordered to pay to the plaintiff.
Order the cross-defendant to pay the cross-claimant’s costs of the cross-claim.
Grant leave to approach my Associate within 7 days if different costs orders are sought.
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Decision last updated: 08 March 2019
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