CSR Limited v Amaca Pty Limited - [2008] NSWCA 329

New South Wales

Court of Appeal

CITATION: CSR Limited v Amaca Pty Limited [2008] NSWCA 329
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 8 September 2008

JUDGMENT DATE:
3 December 2008

JUDGMENT OF: Beazley JA at 1; Giles JA at 83; Young CJ in Eq at 84

DECISION: CA 40832/07: the McDonald matter:
1. Appeal allowed;
2. Judgment and orders of O’Meally P in the Dust Diseases Tribunal made 14 September 2007 set aside;
3. Judgment for the appellant, CSR Limited, against the respondent, Amaca Pty Limited, on the cross-claim;
4. The respondent is to pay the appellant’s costs of the appeal and at first instance.
CA 40664/07: the Jones-Mashman matter:
1. Appeal allowed;
2. Judgment and orders of O’Meally P in the Dust Diseases Tribunal made 30 August 2007 set aside;
3. Remit the matter to the Dust Diseases Tribunal for determination of any outstanding issues between the parties;
4. The respondent is to pay the appellant’s costs of the appeal and to date at first instance.

CATCHWORDS: PARTNERSHIP- construction of partnership agreement – where partner makes a cross-claim for contribution from other partner under indemnity clause – indemnity clause operates in relation to claims that extended beyond the partnership period - PARTNERSHIP – construction of deed of dissolution - release held to protect the parties from any claim, past, present or future that one partner might have had under its right of indemnity - DUST DISEASES – causation – party is liable if its negligence was a cause of, or contributed to the harm suffered - DUST DISEASES – Dust Diseases Tribunal – jurisdiction to hear claims and cross-claims made in respect of allegations of a dust-related condition

LEGISLATION CITED: Dust Diseases Tribunal Act 1989, ss 11, 32
Law Reform (Miscellaneous Provisions) Act 1946, s 5(1)(c)

CATEGORY: Principal judgment

CASES CITED: Amaca Pty Ltd formerly known as James Hardie & Coy Pty Ltd v CSR Ltd [2001] NSWSC 324
Andar Transport Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424
Anderson v Kaufman (1991) 7 NSWCCR 198
Bank of Credit and Commerce International SA (in liquidation) v Ali [2002] 1 AC 251; [2001] 1 All ER 961; [2001] 2 WLR 735
Bonnington Castings Ltd v Wardlaw [1956] AC 613; [1956] 1 All ER 615; [1956] 2 WLR 707
CSR Limited v Amaca Pty Limited [2007] NSWCA 107
Davis v Commissioner for Main Roads [1968] HCA 10; (1967) 117 CLR 529
Erect Safe Scaffolding (Australia) Pty Limited v Sutton [2008] NSWCA 114; 173 IR 412
F & D Normoyle Pty Ltd v Transfield Pty Ltd [2005] NSWCA 193; (2005) 63 NSWLR 502
Goodyear Tyre & Rubber Co (Australia) Limited v James Hardie & Coy Pty Limited (1992) 8 NSWCCR 148
Grant v John Grant & Sons Pty Ltd [1954] HCA 23; (1954) 91 CLR 112
Leighton Contractors Pty Limited v Smith [2000] NSWCA 55
Mangion v James…

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: [2008] NSWCA 329
Decision Date: 3 December 2008

CaseChat Overview and Summary

In the matters of *McDonald* and *Jones-Mashman*, CSR Limited appealed to the Court of Appeal of New South Wales against decisions of the Dust Diseases Tribunal. The dispute concerned cross-claims for contribution made by CSR Limited against Amaca Pty Limited, arising from claims for dust-related diseases.

The primary legal issues before the Court of Appeal were the construction of a partnership agreement and a deed of dissolution, specifically whether an indemnity clause within the partnership agreement, which extended beyond the partnership period, was overridden by the release provisions in the deed of dissolution. The court also considered the principles of causation in dust disease claims and the jurisdiction of the Dust Diseases Tribunal to hear such cross-claims.

The Court of Appeal found that the indemnity clause in the partnership agreement was intended to operate in relation to claims that extended beyond the partnership period. However, it held that the deed of dissolution contained a release that protected the parties from any claim, past, present, or future, that one partner might have had under its right of indemnity. Consequently, the release in the deed of dissolution was effective to prevent Amaca Pty Limited from pursuing its cross-claim for contribution against CSR Limited.

In the *McDonald* matter, the appeal was allowed, the judgment of the Dust Diseases Tribunal was set aside, and judgment was entered for CSR Limited against Amaca Pty Limited on the cross-claim, with costs awarded to CSR Limited. In the *Jones-Mashman* matter, the appeal was also allowed, the judgment of the Dust Diseases Tribunal was set aside, and the matter was remitted to the Tribunal for determination of outstanding issues, with costs awarded to CSR Limited.

Orders

Orders of the court

CA 40832/07: the McDonald matter: 1. Appeal allowed; 2. Judgment and orders of O'Meally P in the Dust Diseases Tribunal made 14 September 2007 set aside; 3. Judgment for the appellant, CSR Limited, against the respondent, Amaca Pty Limited, on the cross-claim; 4. The respondent is to pay the appellant's costs of the appeal and at first instance. CA 40664/07: the Jones-Mashman matter: 1. Appeal allowed; 2. Judgment and orders of O'Meally P in the Dust Diseases Tribunal made 30 August 2007 set aside; 3. Remit the matter to the Dust Diseases Tribunal for determination of any outstanding issues between the parties; 4. The respondent is to pay the appellant's costs of the appeal and to date at first instance.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	CSR Limited v Amaca Pty Limited [2008] NSWCA 329 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	8 September 2008
JUDGMENT DATE:	3 December 2008
JUDGMENT OF:	Beazley JA at 1; Giles JA at 83; Young CJ in Eq at 84
DECISION:	CA 40832/07: the McDonald matter: 1. Appeal allowed; 2. Judgment and orders of O’Meally P in the Dust Diseases Tribunal made 14 September 2007 set aside; 3. Judgment for the appellant, CSR Limited, against the respondent, Amaca Pty Limited, on the cross-claim; 4. The respondent is to pay the appellant’s costs of the appeal and at first instance. CA 40664/07: the Jones-Mashman matter: 1. Appeal allowed; 2. Judgment and orders of O’Meally P in the Dust Diseases Tribunal made 30 August 2007 set aside; 3. Remit the matter to the Dust Diseases Tribunal for determination of any outstanding issues between the parties; 4. The respondent is to pay the appellant’s costs of the appeal and to date at first instance.
CATCHWORDS:	PARTNERSHIP- construction of partnership agreement – where partner makes a cross-claim for contribution from other partner under indemnity clause – indemnity clause operates in relation to claims that extended beyond the partnership period - PARTNERSHIP – construction of deed of dissolution - release held to protect the parties from any claim, past, present or future that one partner might have had under its right of indemnity - DUST DISEASES – causation – party is liable if its negligence was a cause of, or contributed to the harm suffered - DUST DISEASES – Dust Diseases Tribunal – jurisdiction to hear claims and cross-claims made in respect of allegations of a dust-related condition
LEGISLATION CITED:	Dust Diseases Tribunal Act 1989, ss 11, 32 Law Reform (Miscellaneous Provisions) Act 1946, s 5(1)(c)
CATEGORY:	Principal judgment
CASES CITED:	Amaca Pty Ltd formerly known as James Hardie & Coy Pty Ltd v CSR Ltd [2001] NSWSC 324 Andar Transport Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424 Anderson v Kaufman (1991) 7 NSWCCR 198 Bank of Credit and Commerce International SA (in liquidation) v Ali [2002] 1 AC 251; [2001] 1 All ER 961; [2001] 2 WLR 735 Bonnington Castings Ltd v Wardlaw [1956] AC 613; [1956] 1 All ER 615; [1956] 2 WLR 707 CSR Limited v Amaca Pty Limited [2007] NSWCA 107 Davis v Commissioner for Main Roads [1968] HCA 10; (1967) 117 CLR 529 Erect Safe Scaffolding (Australia) Pty Limited v Sutton [2008] NSWCA 114; 173 IR 412 F & D Normoyle Pty Ltd v Transfield Pty Ltd [2005] NSWCA 193; (2005) 63 NSWLR 502 Goodyear Tyre & Rubber Co (Australia) Limited v James Hardie & Coy Pty Limited (1992) 8 NSWCCR 148 Grant v John Grant & Sons Pty Ltd [1954] HCA 23; (1954) 91 CLR 112 Leighton Contractors Pty Limited v Smith [2000] NSWCA 55 Mangion v James…