Gillett v Amaca

[2002] NSWDDT 10

Reported Decision (2002) 23 NSWCCR 561

Dust Diseases Tribunal

of New South Wales

CITATION:	Gillett v Amaca [2002] NSWDDT 10
PARTIES:	Garry Thomas Gillett Amaca Pty Limited
MATTER NUMBER(S):	246 of 2001
JUDGMENT OF:	Duck J
CATCHWORDS:	Damages :- Offer of Compromise
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	12/06/02
DATE OF JUDGMENT:	06/12/2002
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mark Cahill FOR DEFENDANT Ms Muller, Mr Pelletier, Mr Plummer

JUDGMENT:

1. The tribunal has before it a motion pursuant to which the defendants whose interests have been carried forward today by Mr Pelletier who appears for the second defendant that judgment be entered for the plaintiff in accordance with an offer of compromise which the plaintiff made to the defendants on 13 July 2001.

2. The sequence of events giving rise to the application is, stated shortly, that the plaintiff filed a statement of claim on 5 July 2001 pursuant to which he sought from the defendants damages in relation to asbestos-related injuries, including mesothelioma. On 13 July 2001 the plaintiff served by fax an offer of compromise in which he offered to settle the case for $120,000 plus costs. The offer was expressed to remain open for 28 days. As is required by the rules it was also expressed to be made in accordance with Pt 22 of the Supreme Court rules. No issue arises today as to the form of the offer of compromise.

3. On 16 July 2001 the President of the Tribunal listed the case for hearing at hospital on 18 July. However, on 17 July 2001 the plaintiff died.

4. The plaintiff left a will and apparently it nominated Garry Thomas Gillett as executor of his will and trustee of his estate. On 2 April 2002 Mr Garry Thomas Gillett was, pursuant to order of the tribunal, substituted as plaintiff in the proceedings.

5. On 19 April 2002 there was an issues and listing conference. It did not produce a resolution of the proceedings. An annexure to the affidavit filed in support of today's motion, that affidavit being the affidavit of Bill Ilkovski, solicitor, sworn on 31 May 2002 which annexure is a letter from the plaintiff's solicitors to the defendants' solicitors bearing no date but bearing a fax stamp suggesting it was sent on 20 April 2002, sets out the fact that at the issues and listings conference a further offer in an increased amount had been put by the plaintiff's solicitors to the defendants' solicitors.

6. Thereafter on 24 April 2002 the solicitors for the second defendant wrote to the plaintiff's solicitors purporting to accept the offer which had originally been made on 13 July 2001.

7. It is against the background of that correspondence that the defendants seek now to have judgment entered for the amount referred to in the offer of compromise, that is the offer made on 13 July 2001. In so moving, the defendants submit that the tribunal should look at Pt 8 r 10 of the Supreme Court rules which deals with rearrangement of parties in circumstances including the present. It is submitted that until the legal personal representative was substituted on 2 April 2002 there was no one to whom acceptance of the offer could be communicated and that in effect until that formal step was taken there was a hiatus in the proceedings. That in turn meant the time did not run as it would normally under the rules for the defendants to accept the offer of compromise if they wished to do so. It is submitted that four days of the time had run prior to the plaintiff's death and that after the appointment of the executor there were another 24 days in which the offer was available to be accepted and that the purported acceptance was made with a couple of days to spare. Hence the defendants say they are entitled to judgment in the proceedings.

8. The plaintiff submits firstly, and it is not disputed, that the proceedings did not abate as a result of the death of the plaintiff. It is submitted that upon the death of the plaintiff his estate vested in the Public Trustee pending the grant of probate - see s 61 of the Wills Probate and Administration Act 1898 as amended. Upon the grant of probate the estate of the deceased vested in the executor.

9. The plaintiff then turns to Pt 8 r 10 subrule (2) which provides as follows:

10.2, where the interest or liability of a party passes by assignment, transmission, devolution or otherwise to another person the Court may make consequential orders for the addition, removal or rearrangement of the parties and may make orders for the further conduct of the proceedings.

10. It is submitted that that rule empowers the tribunal to substitute the executor as plaintiff in the proceedings. That submission is not disputed. The plaintiff then points to Pt 8 r 11 and in particular subpar (2) which provides:

Where the Court orders that a party be substituted for another party or a former party, all things done in the proceedings before the making of the order shall, unless the Court otherwise orders, have effect in relation to the new party as those things had effect in relation to the old, but entry of appearance by the old party shall not dispense with entry of appearance by the new.

11. Reference is then made to Pt 8 r 11(3) which is to apply in circumstances where a party is added otherwise than pursuant to an order under r 10 or Pt 22 r 4(3). It is clear, it is submitted that the addition of the executor in this case is made pursuant to Pt 8 r 10 and hence Pt 8 r 11(3) does not apply.

12. The fact of its presence highlights the provision of the preceding subparagraph, that is in a circumstance in which a party is added pursuant to Pt 8 r 10, subsection (2) of Pt 8 r 11 has effect.

13. It is submitted that there is no hiatus such as is contended for by the defendants. Insofar as there are practical difficulties thrown up by this approach to the rules, the plaintiff submits, and I think correctly, that the defendants could have either notified their acceptance of the offer to the executor, as to which see Laybutt v Amaco (Australia) Pty Limited (1974) 132 CLR 57 at 78 (Gibbs J) and at 65 (Menzies and Mason JJ), or alternatively to the Public Trustee.

14. The plaintiff also submits that further support for the approach taken on his behalf may be obtained by recalling that following the judgment in Wenham v General Credits Limited, an unreported judgment of McClelland J given on 16 December 1988, (in particular at page 7), sub par (4) was added to Pt 8 r 11. Sub par (4) provides:

An amendment made pursuant to an order made under rule 10 shall, unless this Court otherwise orders, relate back to the date of filing the originating process. Further reference may be made to the decision of Austin J in Brown v DML Resources Number 5 (2001) NSWSC 973 (31 October 2001) in particular at par 21 to 23.

15. It seems to me that the submissions made on behalf of the plaintiff ought be accepted supported as they are by the authorities and matters to which I have made reference. Further, it may be added that if the contention of the defendants were correct one might expect the rules to make some provision about the matter to give effect to what was submitted. The absence of such provision, it seems to me, is noteworthy.

16. To the extent that the position advocated for by the plaintiff provides practical difficulties for defendants and in particular for the defendants in this case - there is power in the tribunal to make orders for the further conduct of the proceedings at the time when a party is added in the circumstances prevailing in this case, see Pt 8 r 10(2). Further, Pt 8 r 11(2), the terms of which are set out above, also contemplates the Court making orders to deal with the circumstances of a particular case when parties are being substituted.

17. It follows then that the defendants are not entitled to the order that they seek and that the motion should be dismissed.

18. I ought to add that there was another motion foreshadowed by the plaintiff pursuant to which he was to seek leave to withdraw the offer of compromise but in light of the view to which I have come it is not necessary to deal with that matter.

19. As regards costs, in the absence of any special consideration they should follow the event, second defendant to pay plaintiff's costs of motion.

Mr Mark Cahill instructed by Oates & Smith appeared for the plaintiff.

Ms Muller instructed by Holman Webb appeared for the first defendant.

Mr Pelletier instructed by Toomey Pegg & Drevicovs appeared for the second defendant.

Mr Plummer instructed by Allens Arthur & Robinson appeared for the third defendant.