Daniel Carl Donebus, Manuel John Donebus and Sandra Maria Weston as Executors for the Estate of the late Carlo Donebus v Comcare

[2017] NSWDDT 3

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:

Daniel Carl Donebus, Manuel John Donebus and Sandra Maria Weston as Executors for the Estate of the late Carlo Donebus v Comcare and Others [2017] NSWDDT 3

Hearing dates:

23 May, 6, 13, 20 June 2017

Date of orders:

20 June 2017

Decision date:

20 June 2017

Before:

Judge AC Scotting

Decision:

1 The consent judgment filed on 6 April 2017 is set aside.
2 The notice of motion is otherwise dismissed.
3 Amaca is to pay Comcare’s costs of the motion relating to order 1 on the ordinary basis.

Catchwords:

DUST DISEASES – plaintiff- claims resolution process – mesothelioma - asbestos
PRCEDURAL – notice of motion – setting aside of consent judgment – costs – cost of mediation – regulation – power of mediator to excuse parties from attendance at mediation – contributions assessment – determination
OTHER – successful party – definition – power to award costs – appropriate order

Legislation Cited:

Civil Procedure Act 2005 s.26
Dust Diseases Tribunal Act 1989
Dust Diseases Tribunal Regulation 2013 Cl 18, 32(4), 34(1), 38(2), 40(1), 40(2), 40(2)(a), 40(4), 50, 56
Dust Diseases Tribunal Regulation 2007 Cl 46(3)

Cases Cited:

Cockatoo Dockyard Pty Limited v Campbell [2001] NSWCA 468
Stewart v QBE Insurance (Australia) Limited [2008] NSWDDT 32
Broers v Australian Co-operative Foods Limited [2008] NSWDDT 38
Woodford v Bluescope Steel [2007] NSWDDT 16

Category:

Procedural and other rulings

Parties:

Comcare (First Defendant/ Applicant)
Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) T/AS Amaca Pty Ltd (Third Defendant/ Respondent)

Representation:

Counsel:

 

GPF Rundle (First Defendant/ applicant)
JC Sheller (Third Defendant/ Respondent)

   

Solicitors:

  Australian Government Solicitor (First Defendant/ applicant)
Mills Oakley Lawyers (Third Defendant/ Respondent)

File Number(s):

43/2015, 43/2015/1

Publication restriction:

None

1. The first defendant (Comcare) seeks orders setting aside the consent judgment entered between the third defendant (Amaca) and the plaintiff, together with orders for costs relating to the motion and to a failed mediation.

Factual background

2. On 16 February 2015 Manuel John Donebus filed a Statement of Claim seeking damages for personal injury relating to his contraction of mesothelioma as a result of his inhalation of asbestos. The defendants named were Comcare, the second defendant (the State of New South Wales) and Amaca. On 16 March 2015 Comcare issued the first cross-claim against Telstra Corporation Limited (Telstra).

3. The matter was removed from the Claims Resolution Process (CRP) on 17 March 2015 because of Mr Donebus’ deteriorating health. The matter was listed to take his evidence at his home in Wagga Wagga on 26 March 2015. Mr Donebus died on 12 April 2015.

4. On 16 February 2016 the Tribunal granted leave to file an amended Statement of Claim to substitute the executors of Mr Donebus’ estate as the plaintiffs. The amended Statement of Claim was filed on 6 April 2016. A resumption proposal was circulated amongst the parties on or about 11 May 2016.

5. On 13 May 2016 a contributions assessor was appointed. A determination was made by the contributions assessor on 20 May 2016 (the CAD). The CAD provided for the following contributions to the plaintiff’s claim for the purposes of clause 56 of the Regulations:

Comcare (D1)             20%;

State of NSW (D2)      25%;

Amaca (D3)                50%;

Telstra (XD1)              5%

6. The contributions assessor appointed Amaca as the single claims manager for the claim.

7. The parties ultimately agreed to mediation before Ms Strathdee (the mediator) on 7 April 2017.

8. At the mediation there was no appearance for Amaca. It became apparent that the plaintiff and Amaca had agreed that there would be a verdict for Amaca with no order as to costs. A consent judgment to that effect had been filed with and entered by the Tribunal, without the other defendants being heard.

9. On hearing of the motion, Amaca conceded that the consent judgment should not have been entered and that it should be set aside: Cockatoo Dockyard Pty Limited v Campbell [2001] NSWCA 468.

10. The remaining question to be dealt with is; what is the appropriate order for the costs of the mediation?

Amaca’s argument

11. Amaca’s position was that it was at liberty to and proper for it to continue to negotiate with the plaintiff in the course of the delay: clause 34(2) Dust Diseases Tribunal Regulations 2013 (the Regulations). The CAD did not alleviate the plaintiff from the necessity to prove its case against Amaca, if the claim could not otherwise be resolved: Stewart v QBE Insurance (Australia) Limited [2008] NSWDDT 32 and Broers v Australian Co-operative Foods Limited [2008] NSWDDT 38. Amaca says that it was entitled to settle with the plaintiff on the basis that it would get a verdict in its favour and that it was excused from attending the mediation by the mediator. Amaca contended that Comcare’s evidence did not go far enough to demonstrate that the mediation failed because of Amaca’s position and or non-attendance.

Comcare’s argument

12. Comcare’s position was that once the matter was referred to mediation that each party had a duty to participate in the mediation, in good faith and that the single claims manager must be present or represented at the mediation: clause 38(2) and 40(2)(a) of the Regulations. Comcare contended that Amaca’s evidence did not support the contention that it was excused from attending the mediation by the mediator.

Consideration

13. This claim has always been the subject of the CRP except for a short period between 17 March 2015 and 26 March 2015, when Divisions 4 and 5 of the CRP were suspended pending further order of the trial judge. On 26 March 2015 Judge Kearns SC made orders consistent with the CRP having further application to it.

14. Mr Donebus then died. The CRP was suspended pursuant to clause 19 of the Regulations. The resumption proposal dated 11 May 2016 referred to in the Affidavit of Mark Kelly sworn 13 April 2017 is not on the Court file. It is clear however that the claim proceeded as if it was included in the CRP, albeit not subject to the usual or expected timeframes.

15. The effect of the claim being the subject of the CRP is that it is not subject to the provisions of the rules of court, any direction or order of the Tribunal under any provision of the Dust Diseases Tribunal Act 1989, or any other Act or rules of court as to any steps to be taken for the referral of the claim to mediation: clause 18 of the Regulations. Significantly, the referral of the claim to mediation is not made pursuant to the power in section 26 Civil Procedure Act 2005, but by operation of clause 34(1) of the Regulations.

16. Accordingly, the only power the Tribunal has is the power to award the costs of mediation in accordance with clause 50 of the Regulations. The power given to the Tribunal is to award costs (or not) to “the party that is successful before the Tribunal”. At the present stage of the proceedings that party is yet to be identified and the Tribunal has no jurisdiction to make an award for costs relating to the unsuccessful mediation. This is consistent with the Tribunal’s interpretation of clause 46(3) the Dust Diseases Tribunal Regulation 2007, which in my view is correct: Woodford v Bluescope Steel [2007] NSWDDT 16.

17. It is premature for me to consider the merits of the arguments on the costs of the mediation. However for the benefit of future mediations, I would not read clause 40(4) of the Regulations as giving the power to the mediator to excuse a party from attending a mediation, especially if to do so would be inconsistent with the other provisions of clauses 40(1) and (2).

18. The orders I make are as follows:

1. The consent judgment filed on 6 April 2017 is set aside.

2. The notice of motion is otherwise dismissed.

3. Amaca is to pay Comcare’s costs of the motion relating to order 1 on the ordinary basis.

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Decision last updated: 20 June 2017