Harradine v Cockatoo Dockyard - [2008] NSWDDT 8

Dust Diseases Tribunal

of New South Wales

CITATION: Harradine v Cockatoo Dockyard and Ors [2008] NSWDDT 8
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
Alfred Edward Harradine (Plaintiff)
Wallaby Grip (BAE) Pty Ltd (in liquidation) (Eighth Defendant)
Amaca Pty Ltd (Cross-Defendant in the first cross-claim)
BOC Limited (Cross-Defendant in the second cross-claim)

MATTER NUMBER(S): 6185/2006; 6185/2006/1; 6185/2006/2

JUDGMENT OF: O'Meally P

CATCHWORDS: :- Dust Diseases Tribunal Regulation 2007 - Cross-claim - Cross-defendant not sued by plaintiff - Contributions Assessment - Whether Regulation entitles plaintiff to judgment against cross-defendant - Regulation does not entitle plaintiff to judgment against cross-defendant - Dust Diseases Tribunal Act - section 32H authorises regulations with respect to apportionment of liability between defendants and cross-defendants - does not authorise regulations imposing liability on person not sued by plaintiff

LEGISLATION CITED: Dust Diseases Tribunal Regulation 2007 (cl 18(1); cl 48; cl 49; cl 52)
Dust Diseases Tribunal Act 1989 (s 32H)
Uniform Civil Proceedure Rules (r 22.2)
Law Reform (Miscellaneous Provisions) Act 1946 (s 5(1)(c))

CASES CITED: QBE Insurance (Australia) Limited v Wallaby Grip Limited and Ors [2007] NSWCA 43

DATES OF HEARING: 5 March 2008

DATE OF JUDGMENT:
5 March 2008

EX TEMPORE JUDGMENT DATE: 5 March 2008

LEGAL REPRESENTATIVES:
Mr G F Little SC instructed by Turner Freeman, appeared for the Plaintiff
Mr D J Russell SC instructed by Middletons, appeared for the Eighth Defendant
Ms N Lapthorne of DLA Phillips Fox appeared for the Cross-Defendant in the first cross-claim
Mr T G R Parker SC instructed by Piper Alderman, appeared for the Cross-Defendant in the second cross-claim

JUDGMENT:

Alfred Edward Harradine

(Plaintiff)

v
Cockatoo Dockyard
(First Defendant)
Comcare
(Second Defendant)
Gin Gin Co-operative Sugar Mill Association Limited
(Third Defendant)
Fluor Australia Pty Limited
(Fourth Defendant)
A Sargeant and Co Pty Limited
(Fifth Defendant)
WorkCover Queensland
(Sixth Defendant)
Wallaby Grip Limited
(Seventh Defendant)
Wallaby Grip (BAE) Pty Limited (in liquidation)
(Eighth Defendant)

Wednesday 5 March 2008

RULING

O'MEALLY P

1. By notice of motion pursuant to r 28.2 of the Uniform Civil Procedure Rules (UCPR), Wallaby Grip (BAE) Pty Limited (in liquidation) seeks the determination of separate questions. The notice of motion was filed on 29 February last, but amended today. The questions upon which separate determination is sought are:

Does Clause 52 of the Dust Diseases Tribunal regulation 2007 and the decision herein of the Contributions Assessor dated 6 July 2007 entitle the plaintiff

1. to a judgment against BOC Limited, as if the Plaintiff had sued BOC Limited directly as a Defendant;

2. for an amount which represents 21.125 % of the Plaintiff's total damages?

2. On 1 August 2006, Alfred Edward Harradine issued a statement of claim seeking damages in respect of the diseases of asbestosis and asbestos related pleural disease (ARPD). Certain consequential injuries or disabilities are recited in the statement of claim, but they do not bear on the present question. It should, however, be observed that asbestosis and…

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] NSWDDT 8
Decision Date: 5 March 2008

CaseChat Overview and Summary

In the matter of Harradine v Cockatoo Dockyard, the Dust Diseases Tribunal was tasked with resolving a dispute involving a claim for compensation under the Dust Diseases Tribunal Act. The plaintiff, Harradine, sought damages from the defendant, Cockatoo Dockyard, for injuries sustained due to exposure to hazardous substances. During the proceedings, the defendant filed a cross-claim against a cross-defendant, who had not been sued by the plaintiff. The central issue before the Tribunal was whether the Dust Diseases Tribunal Regulation 2007 allowed the plaintiff to obtain a judgment against the cross-defendant, who was not a party to the plaintiff's initial claim.

The Tribunal considered whether the regulation permitted the plaintiff to hold the cross-defendant liable for contributions despite not being directly sued. The court examined the relevant statutory provisions, specifically section 32H of the Dust Diseases Tribunal Act, which authorised regulations concerning the apportionment of liability among defendants and cross-defendants. However, the Tribunal found that the regulation did not provide the plaintiff with the right to seek a judgment against the cross-defendant who had not been part of the original proceedings. The court held that such a right was not conferred by the Act or the regulation.

The Tribunal ruled that the plaintiff could not obtain a judgment against the cross-defendant based on the regulation. The court concluded that the regulation did not impose liability on a person not directly sued by the plaintiff. The Tribunal's decision hinged on the interpretation of the statutory provisions and the scope of the regulation, ultimately limiting the plaintiff's claims to those defendants who had been formally served.

Orders