Hoyle v JV and LD Anderson Pty Limited (formerly Victor Dole Pty Limited) ACN 004 822 815

[2018] NSWDDT 8

Dust Diseases Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	Hoyle v JV & LD Anderson Pty Limited (formerly Victor Dole Pty Limited) ACN 004 822 815 [2018] NSWDDT 8
Hearing dates:	5 and 19 June 2018
Date of orders:	30 July 2018
Decision date:	30 July 2018
Before:	Scotting J
Decision:	1. The first defendant pay the second defendant the sum of $276,500.00, pursuant to section 90 of the Civil Procedure Act 2005 (NSW).
Catchwords:	DUST DISEASES – asbestos CIVIL PROCEDURE – cross-claims – against third party – for contribution or indemnity OTHER – apportionment – guarantor of loan – cross-claim triggering default – whether discretion to make order under Civil Procedure Act 2005 s 90
Legislation Cited:	Civil Procedure Act 2005 Dust Diseases Regulation 2013
Category:	Principal judgment
Parties:	David John Hoyle v JV & LD Anderson Pty Limited (formerly Victor Dole Pty Limited) ACN 004 822 815
Representation:	Ms V Boutas of counsel (Plaintiff) Ms J Sheller of counsel (First Defendant) Mr D Anderson (Second Defendant)     Solicitors:   Hennessey Dowd Lawyers (Plaintiff)       Macpherson Kelley (First Defendant)       HWL Ebsworth (Second Defendant)
File Number(s):	358 of 2017
Publication restriction:	None

Judgment

1. The plaintiff brought proceedings against Comcare and JV and LD Anderson Pty Limited (Anderson) (formerly Victor Dole Pty Ltd (Victor Dole)).

2. The plaintiff alleged in the Statement of Claim that Victor Dole was his employer and that during the course of this employment he was exposed to asbestos. Anderson later bought Victor Dole as a shelf company. Anderson is now the corporate vehicle of an accounting practice.

3. A Contributions Assessment apportioned the liability of the defendants. The defendants settled the plaintiff’s claim. Comcare has paid the plaintiff the judgment sum and now seeks an order under clause 56 Dust Diseases Regulation 2013 for payment of Anderson’s apportionment of the judgment sum (clause 56 order).

4. The power to make a clause 56 order is contained in section 90 Civil Procedure Act 2005, which provides:

(1) The court is, at or after trial or otherwise as the nature of the case requires, to give such judgment or make such order as the nature of the case requires.

(2)    If there is a claim by a plaintiff and a cross-claim by a defendant, the court:

(a) may give judgment for the balance only of the sums of money awarded on the respective claims, or

(b) may give judgment in respect of each claim,

and may give judgment similarly where several claims arise between plaintiffs, defendants and other parties.

5. Anderson’s position is that it is the guarantor of a loan secured by a mortgage in favour of the Commonwealth Bank of Australia (the Bank) over the premises from which the accountancy practice is operated. The entry of the clause 56 order may trigger a default of Anderson’s arrangements with the Bank. At the very least, Anderson will be required to notify the Bank of the change in circumstances.

6. Anderson contends that the court has a discretion not to make the clause 56 order, because to do so would disadvantage it when there is no final order of the Tribunal to make it liable to the plaintiff or Comcare. Anderson says that Comcare is now required to institute and prosecute a cross-claim to recover Anderson’s contribution to the judgment sum.

7. Anderson’s arguments should be rejected for the reasons that follow.

8. First, clause 56 Dust Diseases Regulation 2013 provides that the Contributions Assessment is conclusively binding between the defendants for the purposes of the settlement of a plaintiff’s claim. In other words, it is clause 56, rather than a final order of the Tribunal, which provides for the liability of Anderson in this context.

9. Second, the prosecution of a cross-claim in these proceedings would be futile. Victor Dole (now Anderson) is alleged to be the employer of the plaintiff at the time of his exposure to asbestos. If this is established, it is unlikely that Anderson would avoid liability or significantly decrease its apportionment of liability. The prosecution of the cross-claim could incur significant costs, which Comcare may not be able to recover from Anderson, based on its present financial state. If I did not make a clause 56 order, I would order the payment into the Tribunal of the amount sought by Comcare.

10. Third, I do not interpret section 90 Civil Procedure Act 2005 as involving much, if any, discretion. The language used suggests that the Court is required to make the necessary order. The present order sought is one that gives effect to clause 56 Dust Diseases Regulation 2013 and I am satisfied that it is the necessary order.

11. Fourth, there are considerable policy reasons for making clause 56 orders in the present circumstances. The Claims Resolutions Process (CRP) is dependent on the payment of compensation to plaintiffs by defendants who may not be liable to the plaintiff or may not be liable to the extent determined by a Contributions Assessment. The CRP is designed to provide an expedited resolution of apportionment that can be challenged later. The effect of delaying the clause 56 order sought would make the CRP difficult to implement.

12. I will make the orders sought in the document entitled “Order” signed by me and dated today.

13. Anderson is to pay Comcare’s costs relating to the making of the orders.

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Amendments

20 November 2019 - Catchwords added

Decision last updated: 20 November 2019