James v Eraring Energy

[2004] NSWDDT 3

Dust Diseases Tribunal

of New South Wales

CITATION:	James v Eraring Energy and Ors [2004] NSWDDT 3
PARTIES:	John Thomas James Eraring Energy Babcock International Ltd Babcock Australia Ltd Amaca Pty Ltd Wallaby Grip Ltd Wallaby Grip (BAE) Pty Ltd
MATTER NUMBER(S):	109 of 2000/1
JUDGMENT OF:	Walker J at 1
CATCHWORDS:	:-
LEGISLATION CITED:	Limitation Act 1969, ss 26(1) & 19 Law Reform (Miscellaneous Provisions) Act 1946, ss 5(1)(c) & 26(1) Dust Diseases Tribunal Act 1989, ss 12A Supreme Court Rules, Pt 2 R3 & Pt 6 R 10(3) Act Interpretation Act 1997, S 33
CASES CITED:	McFarlane v Boral Ltd (2002) 23 NSWCCR 404; Seltsam Pty Ltd & Anor v Energy Australia & Others Re Banham (1999) 17 NSWCCR 720; Borowy v ACI Operations Pty Ltd (2002) 23 NSWCCR 447
DATES OF HEARING:	08/03/2004
DATE OF JUDGMENT:	03/18/2004
LEGAL REPRESENTATIVES:	APPLICANT: Mr Russell instructed by Acuitit Legal RESPONDENT: Mr Kettle instructed by Goldrick Farrell Mullan

JUDGMENT:

1

IN THE DUST DISEASES TRIBUNAL

OF NEW SOUTH WALES.

DDT No. 109 OF 2000/1

JOHN THOMAS JAMES

Plaintiff

ERARING ENERGY (formerly sued as PACIFIC POWER)

Defendant/Cross claimant.

BABCOCK INTERNATIONAL LTD

First Cross defendant.

BABCOCK AUSTRALIA LTD

Second Cross defendant.

AMACA PROPRIETARY LIMITED (formerly JAMES HARDIE & COMPANY PTY LTD).

Third Cross defendant.

WALLABY GRIP LTD.

Fourth Cross defendant.

WALLABY GRIP (BAE) PTY LIMITED (in liquidation).

Fifth Cross defendant.

JUDGMENT.

WALKER J.

The Application.

1. By notice of motion the applicant (who is the fifth cross defendant in the cross-claim) moves to strike out the respondents amended cross-claim dated 22nd of December 2003 upon the ground that the cross-claim has been filed out of time pursuant to section 26 (1.) of the Limitation Act 1969.

Background

2. In the primary proceedings John Thomas James sued Pacific Power (which corporation, pursuant to the Energy Services Corporations Act 1995 was taken over by the applicant corporation) for damages for negligence.

3. The action arose, inter alia, in consequence of the plaintiff being exposed to and inhaling asbestos dusts and fibre at the Zarra Street and Wangi power stations which were owned and operated by the applicant causing the plaintiff to develop various lung diseases notably asbestosis.

4. These primary proceedings were settled on 6 Nov 2000 an order for judgement being made on the same day requiring the respondent to pay $102,500 inclusive of costs.

5. On the 31st of December 2003 President O'Meally gave leave for a cross-claim to be issued by the respondent against the applicant. The amended cross-claim was served on the applicant on 22 Dec 2003 alleging:

1. The applicant was a major supplier of asbestos products.

2. The applicant was aware or ought to have been aware of risks to persons associated with the use of asbestos.

3. The applicant was under a duty of care to warn persons to whom they supplied asbestos products and persons who might be exposed to such products of the risks of injury with such exposure.

4. That the applicant:-

*failed to warn the respondent of the dangers,

*failed to withdraw its asbestos products from the market,

*manufactured and supplied such products knowing they would be used in a way that exposed workers to asbestos dust and fibre.

*failed to implement a safe system of work,

*failed to isolate asbestos fibres within their product.

5 . That the applicant was negligent thereby causing injury to the plaintiff and any person, who, if sued by the plaintiff would be liable in respect of such damage.

6. The respondent claimed against the applicant:

(a) indemnity/contribution pursuant to S 5 (1) (c) of the Law Reform (Miscellaneous Provisions) Act 1946

(b) damages equal to the amount that the applicant was ordered to pay the plaintiff.

(c) damages to an amount equal to an indemnity of claims made against it by the plaintiff .

The Submissions.

7. Mr Russell, for the applicant, makes the following submissions to support his contention that the respondents claim is statute barred:

1.S 26 (1) of the Law Reform Miscellaneous Provisions Act 1946 provides:

"(1) An action or a cause of action for contribution under subsection (1) of section 5 of the Law Redorm ( Miscellaneous Provisions) Act 1946 is not maintainable if brought after the first of:

(a) a limitation period of two years running from the date on which the cause of action for contribution first accrues to the plaintiff or to a person through whom the plaintiff claims, and

(b) a limitation period of four years running from the date of the expiration of the limitation period for the principal cause of action.

8. Mr Russell concedes that subclause (b) cannot apply because that limitation period never expires by virtue of the provisions of s 12A of the Dust Diseases Tribunal Act 1989.

9. He argues that means S 5 (1) (a) is the first period to expire and the date on which the cause of action for contribution first accrued to the plaintiff was the date of the order for judgement against the respondent namely 6 Nov 2000. Accordingly he calculates that the limitation period on the cross-claim expired on sixth of November 2002 which is more than 12 months before the amended cross-claim was served on 22 Dec 2003.

10. Mr Russell submits that is not open for the cross claimant to seek leave of the court to extend time for filing a cross claim under the Limitation Act 1969. He concedes, however that the Court does have a discretion pursuant to Pt 2 R3 of the Supreme Court rules to extend the 28 day limit on the filing of cross claims imposed by Pt 6 R 10 (3).

S 12A Dust Diseases Tribunal Act 1989

S12A provides:

No limitation period

"The purpose of this section is to enable proceedings to be brought before the Tribunal in relation to dust related conditions at any time.

(2) Nothing in the Limitation Act 1969 or any other statute of limitations operates to prevent the bringing or maintenance of proceedings before the Tribunal in relation to dust related conditions.

(3) Without limiting subsection (2) :

(a) sections 14, 18A, 60C and 60G of, Division 6 Of Part 2 of, and schedule 5 to the Limitation Act 1969 do not prevent the bringing or maintenance of any such proceedings before the Tribunal, and

(b) any such proceedings may be brought or maintained before the Tribunal even though a limitation period has already expired under that Act, and

(c) any such proceedings may be brought or maintained before the Tribunal as if Division 1 of Part 4 of that Act had never been in force."

Applicants submission on the proper construction of 12A

13. Mr Russell makes the following points that go to the proper construction of section 12A based on its plain language:-

1. There is no reference to cross-claims or actions between tortfeasors in S 12A.

2. In S 12A (3) (a), which recites various sections of the Limitation Act 1969, S 26 is a notable omission. That section is the only remaining section within the Limitation Act that could refer to a dust disease suit. The fact that it was not included in subsection 3 (a) is a strong indication that it was not the intention of the Parliament for S 12A to apply to contribution claims .

3. The proper approach to the construction of S 12A requires the statute be read as a whole including the provisions of section 11 which deals with the exclusive jurisdiction of the Tribunal. There is no mention in S 11 (1) of cross claimant's . Further S 11 (4) which concerns ancillary or related proceedings makes no mention of cross-claims limiting the section to claims "by persons suffering from dust related conditions". The only conclusion that one can reach is that when the Parliament refers in S 12A (1) to proceedings "in relation to dust related conditions" it means proceedings by plaintiff's not cross claimants.

4. Mr Russell submits that s 33 of the Interpretation Act 1997 requires construers of statutes to prefer a construction that would promote the purpose or object of the Act. He then asserts that the purpose and objectives of the Dust Diseases legislation is to protect plaintiffs not cross claimants because it is beneficial legislation designed to favour workers suffering from dust related conditions.

Purposive interpretation.

14. Mr Russell also asked the court to take a purposive approach to the interpretation of S 12A and to that end tendered the speech of the then Attorney, the Hon Jeff Shaw QC, made to Parliament on the introduction of the Bill. Mr Russell asked the court to draw the inference from the fact that the Attorney made no reference to cross-claims that it was not the Parliament's intention to include them within the purview of the section.

The respondent’s submissions on the application and proper construction of S 12A.

1. Damages claim.

15. Mr Kettle firstly made the point that his client does not solely rely on the action for contribution under S 5 (1) (c) of the Law Reform (Miscellaneous Provisions) Act 1946. He asserts that the amended statement of claim also pleads an action in tort for damages for negligence alleging the applicant's breach of a duty of care to the respondent. That claim is not subject to s 26 and accordingly entitles the respondent to proceed with its claim even if the claim for contribution is struck out.

16. Mr Kettle refutes the applicants submission that the exclusive jurisdiction of the Dust Diseases Tribunal as defined by s 11 is limited to claims by plaintiff's. He referred the court to the decision of His Honour Judge Curtis in McFarlane v Boral Ltd (2002) 23 NSW CCR 404 which held that the jurisdiction of the Tribunal was equivalent to that of the Supreme Court of New South Wales and that the Supreme Court rules enabled the joinder of additional defendants and cross claimants.

17. Mr Kettle submits that on its plain language S 12A clearly includes cross actions because:

*S 12A (2) excludes the provisions of the Limitation Act when it uses the general words in subsection (2) "nothing in the Limitation Act 1969….. operates to prevent the bringing or maintenance of proceedings before the Tribunal

in relation to dust related conditions."

He points out that McFarlane's case widely interpreted the expression "in relation to dust related conditions" allowing the joinder of an action for brain damage arising out of a motor vehicle accident because its outcome was relevant to the dust disease claim.

*The decision of the Court of Appeal in Seltsam Pty Limited & another v Energy Australia & others Re Banham (1999) 17 NSW CCR 720 makes it clear that s 11 (4) of the Dust Diseases Tribunal Act 1989 permits an unsuccessful defendant to file a cross-claim after judgement in favour of the plaintiff. Mr Kettle relies on that decision to refute the applicant's argument that section 11 does not contemplate cross-claims and accordingly submits there is no limitation of the nature of proceedings that are protected under S 12A.

*S 12A (3) commences with the words "without limiting subsection (2)" thereby making it perfectly clear that the following sections of the Limitations Act are not to attract the application of the ejusdem generis rule and that all relevant sections of the Limitation Act can fall within S 12A.

Resolving The Application

18. Counsel were not able to refer me to any authority concerning the proper construction of s 12A of the Dust Diseases Tribunal Act.

19. However His Honour Judge Johns in Borowy v ACI Operation Pty Ltd (2002) 23 NSWCCR 447 held that the operation of s 12A extends to all proceedings for damages brought before the Dust Diseases Tribunal under s 11 of the Act including estate claims under the Compensation to Relative Act 1987. I mention that decision because s 19 of the Limitation Act which deals with limitation on compensation to relatives like s 26 is not mentioned in s 12 A (3) (a).

20. The first difficulty with Mr Russell’s restricted interpretation of s 12A is that it is inconsistent with the strong language used in the section that asserts “Nothing in the Limitation Act 1969 operates to prevent the bringing or maintenance of proceedings before the Tribunal in relation to dust related conditions.” This is followed by the introductory words to subsection (3) which state: “without limiting subsection (2). The language is plain and would strongly suggest that s 26 of the Limitation Act 1969 is caught by its provisions.

21. The second difficulty is that Mr Russell seeks to argue that the Parliament did not intend cross claims to be so caught not by interpreting the language of the section but by relying on the fact that the words “cross claim” do not appear in s 11 or s 12 A or the Ministers introductory speech.

22. I was trained to the view that statutes mean what they say and do not mean what they do not say. S 12 A (2) seems clear enough to me and that is that nothing in the Limitation Act 1969 ( including s 26) operates to prevent the bringing of proceedings before this Tribunal in relation to dust related conditions. It is not submitted that the plaintiffs condition in this case was not dust related or that the cross claim is not a proceeding in relation to it.

23. This Tribunal has been entertaining cross claims since its inception and it is not seriously argued by Mr Russell that this court has no jurisdiction over such proceedings.

24. I see little merit in Mr Russell’s s 33 of the Act Interpretation Act 1997 point because I cannot understand the logic of his proposition that the provision of an unlimited time for cross claimants to sue would not promote the purpose or object of an act beneficial to workers suffering from work related dust diseases. Given the insurance questions currently being raised by the Orica decision and the current inquiry into the adequacy of the Amaca fund it could well be that having no restrictions on the issue of cross claims would be very much in some workers interests.

25. Mr Russells submission that the Court should take a purposive approach to the interpretation of the section was on the basis that the clear purpose of the statute is to provide beneficent assistance to workers suffering dust diseases not cross claimants. It is a general rule of statutory interpretation that the grammatical and ordinary sense of words in a statute should be applied unless there is some absurdity, repugnance or inconsistency in the language employed by the Parliament. I see no such absurdity, repugnance or inconsistency nor did the applicant so submit.

26. Mr Russell in his submissions sees not so much an inconsistency but a silence about cross claims and an unfairness to cross defendants if there is no limitation on the time for cross claimants to sue.

27. I take the view that unfairness is not, in itself, sufficient reason to justify a court rejecting the ordinary sense of the words in s 12 A; a section enacted to give special treatment to a class of litigants. In any event I see no unfairness because the Supreme Court rules apply a time limit after judgement for a cross claim to issue subject only to the courts discretion to allow cross claims to be filed out of time. That judicial discretion protects the cross defendant from unfairness.

28. For these reasons I take the view that on its proper construction s 12A (2) of the Dust Diseases Tribunal Act overrides the provisions of s 26 of the Limitation Act and there is no limitation period applicable to the issue of cross claims other than that imposed by the Supreme Court rules.

29. This leaves for determination only Mr Kettles submission that in addition to the statutory claims for contribution under s 5 (1) ( c) of the Law Reform ( Miscellaneous Provisions) Act 1946 his client has before the Court a claim for damages in tort.

30. Mr Russell says that claim is improperly pleaded in that it makes no allegation that the cross defendant has breached a specific duty of care owed to the cross claimant as opposed to the plaintiff. Mr Kettle denies that allegation. In determining s 12A applies I take the view that it is superfluous for the court to resolve this technical dispute about pleadings.

Orders

31. Having concluded that s 26 of the Limitation Act 1969 does not apply to cross claims before this Tribunal I make the following orders: -

1. The application is dismissed.

2. The applicant pay the respondents costs of the motion.

Mr Russell of Counsel instructed by Acviti Legal appeared for the applicant.

Mr Kettle of Counsel instructed by Goldrick Farrell Mullan Solicitors appeared for the Respondent.