Harlander Pty Ltd v Betta Industries Pty Ltd - [2001] NSWDDT 11

Reported Decision 23 NSWCCR 1

Dust Diseases Tribunal

of New South Wales

CITATION: Harlander Pty Ltd v Betta Industries Pty Ltd [2001] NSWDDT 11

PARTIES: Harlander Pty Ltd
Betta Industries Pty Ltd
Wallaby Grip (BAE) Pty Ltd
State of New South Wales
Royal and Sun Alliance Insurance Australia Ltd

MATTER NUMBER(S): 194 of 1996/1/2/3

JUDGMENT OF: Curtis J at 1

CATCHWORDS: Miscellaneous Matters :- Cross claims
Law Reform (Miscellaneous Provisions) Act 1946
State of New South Wales Duty of Care

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING: 6/11/00, 22/10/01-23/10/01

DATE OF JUDGMENT:
11/21/2001

LEGAL REPRESENTATIVES:
Mr J van Aalst instructed by Stafford & Associates appeared for Betta Industries Pty Ltd
Mr GM Watson instructed by Church and Grace appeared for Royal and Sun Alliance Insurance Australia Ltd
Mr P Blacket SC with Mr M Robinson instructed by State Crown Solicitors appeared for the State of New South Wales
Mr W Kearns SC with Mr D O'Dowd instructed by Dibbs Crowther and Osborne appeared for Harlander Pty Ltd
Mr A Scotting instructed by Middletons Moore and Bevins appeared for Wallaby Grip (BAE) Pty Ltd (in liquidation)
FOR DEFENDANT

JUDGMENT:

1. On 9 December 1996 the plaintiff Julie Ann Edwards issued a statement of claim in this Tribunal claiming damages from Harlander Pty Limited (Harlander) and Wallaby Grip (BAE) Pty Limited (Wallaby Grip) in respect of the disease of mesothelioma. She alleged that her disease was caused by inhalation of asbestos fibre while she was employed by Harlander and that the source of this fibre was two-fold: first, in the period 1966 to 1969, asbestos fibre released from a boiler located within the warehouse occupied by Harlander by whom she was employed; second, in the period 1973 to 1975 asbestos fibre released from asbestos millboard the subject of manufacturing activities conducted by Betta Industries Pty Limited (Betta), within the same premises, making asbestos bench protectors for the New South Wales Department of Education. The millboard upon which Betta worked was supplied to Betta by Wallaby Grip.

2. On 6 March 1997 the plaintiff's claim against Harlander and Wallaby Grip was settled upon terms that by consent and without admission of liability there be verdict and judgment for the plaintiff against each defendant in the sum of $140,000 inclusive of costs. Cross claims between Harlander and Wallaby Grip were, by consent, dismissed.

3. Each defendant now cross-claims against Betta and the State of New South Wales for contribution or indemnity pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. Betta in consequence also claims contribution from the State and Betta also cross-claims against Royal and Sun Alliance Insurance Australia Ltd alleging that Royal and Sun was the public risk insurer of Betta at the relevant time and has wrongfully declined to indemnify.

PRELIMINARY

4. Two preliminary points arise. While in her statement of claim Mrs Edwards alleged tortious exposure to asbestos fibre released from the boiler located within the premises of her employer, there is no persuasive evidence that she…

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: [2001] NSWDDT 11
Decision Date: 11/21/2001

CaseChat Overview and Summary

Harlander Pty Ltd sought to recover money paid under protest in respect of duty and tax under the State of New South Wales Duty of Care legislation. The defendant, Betta Industries Pty Ltd, cross-claimed for compensation for defective building work. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the plaintiff was entitled to recover the money paid under protest, and whether the defendant's cross-claim for defective building work should be considered. The court had to determine whether the plaintiff's payment of duty and tax was voluntary and made under protest, and whether the defendant's cross-claim was valid.

The court found that the plaintiff had paid the duty and tax under protest, and therefore was entitled to recover the amount paid. The court also found that the defendant's cross-claim for defective building work was valid, and that the plaintiff was liable for the defective work. The court held that the plaintiff's payment of duty and tax was not voluntary, as it was made under protest and with a clear intention to challenge the validity of the charge. The court also found that the defendant's cross-claim was not barred by any statute of limitations, and that the plaintiff was liable for the defective work.

The court ordered that the plaintiff was entitled to recover the amount paid under protest, and that the defendant was liable for the defective building work. The court also ordered that the defendant pay the plaintiff's costs of the action, including the costs of the cross-claim. The court held that the plaintiff's payment of duty and tax was not voluntary, and that the defendant's cross-claim was valid. The court found that the plaintiff was entitled to recover the amount paid under protest, and that the defendant was liable for the defective building work. The court ordered that the defendant pay the plaintiff's costs of the action, including the costs of the cross-claim.

Orders