CSR Ltd v Wallaby Grip Ltd - [2012] NSWCA 154

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: CSR Ltd v Wallaby Grip Ltd [2012] NSWCA 154
Hearing dates: 16 May 2012
Decision date: 30 May 2012
Before: Beazley JA at 1;
Basten JA at 2;
Whealy JA at 47
Decision:
(1) Grant the applicant leave to appeal from the orders made in the Dust Diseases Tribunal on 2 August 2011.
(2) Direct that the draft notice of appeal be filed within 7 days.
(3) Dismiss the appeal.
(4) Order the applicant to pay the respondents' costs in this Court.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: DUST DISEASES TRIBUNAL - claims resolution process - apportionment between joint tortfeasors - multiple claims and cross-claims between joint tortfeasors - Dust Diseases Tribunal ordered first tortfeasor to pay second tortfeasor although second tortfeasor had not commenced proceedings against first tortfeasor - whether order properly made - discussion of QBE Insurance (Australia) Ltd v Wallaby Grip Ltd [2007] NSWCA 43; 4 DDCR 331; Power Technologies Pty Ltd v Energy Australia [2010] NSWCA 107; Bradford Insulation Industries Pty Ltd v Babcock Australia Pty Ltd [2011] NSWCA 117 - Dust Diseases Tribunal Regulation 2007 (NSW), Pt 4 Div 6
Legislation Cited: Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005 (NSW), Sch 2
Dust Diseases Tribunal Regulation 2001 (NSW), Pt 4, cll 40-44
Dust Diseases Tribunal Regulation 2007 (NSW), Pt 4, Div 5; Div 6, cll 13, 14, 19, 47, 48, 49, 51, 52, 53, 54, 55, 57, 58
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5
Cases Cited: Bradford Insulation Industries Pty Ltd v Babcock Australia Pty Ltd [2011] NSWCA 117
Power Technologies Pty Ltd v Energy Australia [2010] NSWCA 107
QBE Insurance (Australia) Ltd v Wallaby Grip Ltd [2007] NSWCA 43; 4 DDCR 331
Category: Principal judgment
Parties: CSR Ltd (Applicant)
Wallaby Grip Ltd (First Respondent)
Wallaby Grip B.A.E. Pty Ltd (under external administration (Second Respondent)
Representation:
Counsel:

T G R Parker SC (Applicant)
D J Russell SC (Respondents)
Solicitors:
Colin Biggers & Paisley (Applicant)
Middletons (Respondents)

File Number(s): CA 2011/277821
Decision under appeal

Jurisdiction:

9115

Citation:

Wallaby Grip Limited & Anor v Amaca Pty Limited; and Amaca Pty Limited v CSR Limited [2011] NSWDDT 7

Date of Decision:

2011-08-02 00:00:00

Before:

Kearns DCJ

File Number(s):

DDT 164/2009

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Ayres contracted mesothelioma in the course of his employment with the Commonwealth. On 20 May 2008 he commenced proceedings in the Dust Diseases Tribunal for damages against Comcare, representing the Commonwealth. Comcare cross-claimed against Wallaby Grip Ltd and Wallaby Grip (BAE)…

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.

Continue reading CSR Ltd v Wallaby Grip Ltd

Details

AGLC: CSR Ltd v Wallaby Grip Ltd [2012] NSWCA 154
Case: [2012] NSWCA 154
Decision Date: 30 May 2012

CaseChat Overview and Summary

In the New South Wales Court of Appeal, CSR Ltd sought leave to appeal against orders made by the Dust Diseases Tribunal. The dispute concerned the apportionment of liability between joint tortfeasors in the context of multiple claims and cross-claims arising from dust-related diseases. The Tribunal had ordered CSR Ltd, as a first tortfeasor, to pay a sum to Wallaby Grip Ltd, the second tortfeasor, despite Wallaby Grip Ltd not having formally commenced proceedings against CSR Ltd.

The central legal issue before the Court of Appeal was whether the Dust Diseases Tribunal had the power to make such an order for apportionment between joint tortfeasors in circumstances where one party had not initiated a cross-claim against the other. This required the Court to consider the scope of the Tribunal's powers under Part 4 Division 6 of the Dust Diseases Tribunal Regulation 2007 (NSW) and how these powers interacted with the general principles of apportionment between tortfeasors. The Court also had regard to previous decisions concerning similar issues, including *QBE Insurance (Australia) Ltd v Wallaby Grip Ltd*, *Power Technologies Pty Ltd v Energy Australia*, and *Bradford Insulation Industries Pty Ltd v Babcock Australia Pty Ltd*.

The Court of Appeal reasoned that the legislative framework governing the Dust Diseases Tribunal, particularly the provisions relating to claims resolution and apportionment, conferred broad powers on the Tribunal to achieve a just and efficient resolution of claims involving multiple parties. The Court found that the Tribunal was empowered to make orders for contribution or indemnity between tortfeasors, even in the absence of a formal cross-claim, where it was necessary to do so to resolve the overall liability and ensure a fair outcome for all parties involved in the dust diseases litigation. Consequently, the Court concluded that the order made by the Tribunal was within its jurisdiction.

The Court of Appeal granted leave to appeal but ultimately dismissed the appeal, ordering CSR Ltd to pay the respondents' costs.

Orders

Orders of the court

(1) Grant the applicant leave to appeal from the orders made in the Dust Diseases Tribunal on 2 August 2011.

(2) Direct that the draft notice of appeal be filed within 7 days.

(3) Dismiss the appeal.

(4) Order the applicant to pay the respondents' costs in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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

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Medium Neutral Citation:	CSR Ltd v Wallaby Grip Ltd [2012] NSWCA 154
Hearing dates:	16 May 2012
Decision date:	30 May 2012
Before:	Beazley JA at 1; Basten JA at 2; Whealy JA at 47
Decision:	(1) Grant the applicant leave to appeal from the orders made in the Dust Diseases Tribunal on 2 August 2011. (2) Direct that the draft notice of appeal be filed within 7 days. (3) Dismiss the appeal. (4) Order the applicant to pay the respondents' costs in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	DUST DISEASES TRIBUNAL - claims resolution process - apportionment between joint tortfeasors - multiple claims and cross-claims between joint tortfeasors - Dust Diseases Tribunal ordered first tortfeasor to pay second tortfeasor although second tortfeasor had not commenced proceedings against first tortfeasor - whether order properly made - discussion of QBE Insurance (Australia) Ltd v Wallaby Grip Ltd [2007] NSWCA 43; 4 DDCR 331; Power Technologies Pty Ltd v Energy Australia [2010] NSWCA 107; Bradford Insulation Industries Pty Ltd v Babcock Australia Pty Ltd [2011] NSWCA 117 - Dust Diseases Tribunal Regulation 2007 (NSW), Pt 4 Div 6
Legislation Cited:	Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005 (NSW), Sch 2 Dust Diseases Tribunal Regulation 2001 (NSW), Pt 4, cll 40-44 Dust Diseases Tribunal Regulation 2007 (NSW), Pt 4, Div 5; Div 6, cll 13, 14, 19, 47, 48, 49, 51, 52, 53, 54, 55, 57, 58 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5
Cases Cited:	Bradford Insulation Industries Pty Ltd v Babcock Australia Pty Ltd [2011] NSWCA 117 Power Technologies Pty Ltd v Energy Australia [2010] NSWCA 107 QBE Insurance (Australia) Ltd v Wallaby Grip Ltd [2007] NSWCA 43; 4 DDCR 331
Category:	Principal judgment
Parties:	CSR Ltd (Applicant) Wallaby Grip Ltd (First Respondent) Wallaby Grip B.A.E. Pty Ltd (under external administration (Second Respondent)
Representation:	Counsel: T G R Parker SC (Applicant) D J Russell SC (Respondents) Solicitors: Colin Biggers & Paisley (Applicant) Middletons (Respondents)
File Number(s):	CA 2011/277821
Decision under appeal	Jurisdiction: 9115 Citation: Wallaby Grip Limited & Anor v Amaca Pty Limited; and Amaca Pty Limited v CSR Limited [2011] NSWDDT 7 Date of Decision: 2011-08-02 00:00:00 Before: Kearns DCJ File Number(s): DDT 164/2009