Keogh v CPB Contractors Pty Ltd (No 3) - [2024] NSWDDT 10

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation: Keogh v CPB Contractors Pty Ltd & Ors (No 3) [2024] NSWDDT 10
Hearing dates: 30 September 2024
Date of orders: 9 October 2024
Decision date: 09 October 2024
Before: Russell SC DCJ
Decision:
(1) Dismiss the application made by the second defendant, and the first and third defendants in respect of their liability to the plaintiff as an employer in Queensland (the Applicants), for a variation of the existing costs orders.
(2) Order the Applicants for the variation to pay the plaintiff’s costs of and incidental to the application.

Catchwords:
DUST DISEASES – damages – defendant entitled to reduction of damages to reflect workers compensation benefits paid – issue not raised at trial – damages reduced to reflect totality of payment –amendment unnecessary because of parties’ sensible solution
COSTS – choice of law – whether costs are procedural or substantive law – power to make costs orders circumscribed by Queensland legislation – costs are a tool for courts to manage proceedings – costs are procedural – Queensland legislation fettering discretion over costs ineffective to bind courts in NSW – law of forum applies for costs

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 98, 99
Interpretation Act 1987 (NSW), ss 12, 65
Statute of Gloucester (1278) 6 Edw I c 1
Workers Compensation and Rehabilitation Act 2003 (Qld), ss 39A, 185, 235, 270, 271, 275, 289, 292, 295, 306A, 306H, 316, Ch 5 Pt 5, Ch 5 Pt 6, Ch 5 Pt 8, Ch 5 Pt 12 Div 2
Dust Diseases Tribunal Regulation 2019 (NSW), Pt 5

Cases Cited:
Chubs Constructions Pty Ltd v Chamma [2009] NSWCA 98
Cvilikas v Sunshine Coast Hospital and Health Service [2023] QSC 36
Hamilton v Merck & Co Inc [2006] NSWCA 55; (2006) 66 NSWLR 48
Hudson v Amaca Pty Ltd [2022] NSWDDT 6
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503
Keogh v CPB Contractors Pty Ltd & Ors (No 2) [2024] NSWDDT 9
Labuda v Langford [2001] ACTSC 126
Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164
Peregrine Fixed Income Ltd v JP Morgan Chase Bank [2005] HKCFI 71
Preferential Trade Area Bank v ESCOM [2003] MWHC 74
Somers v Fournier (2002) 60 OR (3d) 225 (Ont CA)
Tickner v Teys Australia Biloela Pty Ltd [2020] QSC 62
Union Discount Co Ltdv Zoller (2002) 1 All ER 693 (CA)
Wimpey Construction (UK) Ltd v Martin Black & Co (Wire Ropes) Ltd [1988] SLT 637

Texts Cited:
William Reynolds, “Legal Process and Choice of Law” (1997) 56 Maryland Law Review 1371
GE Dal Pont, Law of Costs (2003, 1st ed, LexisNexis)
Richard Garnett, Substance and Procedure in Private International Law (2012, 1st ed, Oxford University Press)
Sagi Peari, “Substance and Procedure in Private International Law by Richard Garnett” (2013) 14(1) Melbourne Journal of International Law 304
Richard Oppong, “A decade of Private International Law in African Courts 1997-2007 (Part I)”,…

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: [2024] NSWDDT 10
Decision Date: 09 October 2024

CaseChat Overview and Summary

The case of Keogh v CPB Contractors Pty Ltd (No 3) involved the plaintiff, Mr. Keogh, who was pursuing damages for dust-related diseases he contracted during his employment with the defendants, CPB Contractors Pty Ltd. The dispute reached the court after the original trial, where the defendants sought a variation of the costs orders to reduce the damages to reflect workers compensation benefits already paid to the plaintiff. This issue was not initially raised during the trial. The court had to determine whether the defendants were entitled to a reduction in damages and if the Queensland legislation could bind the New South Wales courts on the choice of law regarding costs.

The legal issues before the court included the reduction of damages to account for the workers compensation benefits already paid and the application of procedural law concerning costs. Specifically, the court had to decide if the Queensland legislation, which restricts the discretion over costs, could be applied in a New South Wales court. The court also needed to determine if costs were substantive or procedural law and whether the NSW courts were bound by the Queensland legislation in this matter.

The court ruled that the defendants were entitled to a reduction in damages to reflect the total payments made to the plaintiff, including workers compensation benefits. The court found that it was unnecessary to amend the existing costs orders because the parties had reached a sensible solution. Regarding the choice of law for costs, the court held that costs are procedural law and that the law of the forum (New South Wales) applies. The court also found that the Queensland legislation was ineffective in fettering the discretion of New South Wales courts over costs.

The court dismissed the application for a variation of the costs orders and ordered the applicants to pay the plaintiff’s costs of and incidental to the application. This decision underscored the importance of the procedural nature of costs and the application of the law of the forum in determining costs in cross-jurisdictional cases.

Orders

Orders of the court

(1) Dismiss the application made by the second defendant, and the first and third defendants in respect of their liability to the plaintiff as an employer in Queensland (the Applicants), for a variation of the existing costs orders.

(2) Order the Applicants for the variation to pay the plaintiff’s costs of and incidental to the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Keogh v CPB Contractors Pty Ltd & Ors (No 3) [2024] NSWDDT 10
Hearing dates:	30 September 2024
Date of orders:	9 October 2024
Decision date:	09 October 2024
Before:	Russell SC DCJ
Decision:	(1) Dismiss the application made by the second defendant, and the first and third defendants in respect of their liability to the plaintiff as an employer in Queensland (the Applicants), for a variation of the existing costs orders. (2) Order the Applicants for the variation to pay the plaintiff’s costs of and incidental to the application.
Catchwords:	DUST DISEASES – damages – defendant entitled to reduction of damages to reflect workers compensation benefits paid – issue not raised at trial – damages reduced to reflect totality of payment –amendment unnecessary because of parties’ sensible solution COSTS – choice of law – whether costs are procedural or substantive law – power to make costs orders circumscribed by Queensland legislation – costs are a tool for courts to manage proceedings – costs are procedural – Queensland legislation fettering discretion over costs ineffective to bind courts in NSW – law of forum applies for costs
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 98, 99 Interpretation Act 1987 (NSW), ss 12, 65 Statute of Gloucester (1278) 6 Edw I c 1 Workers Compensation and Rehabilitation Act 2003 (Qld), ss 39A, 185, 235, 270, 271, 275, 289, 292, 295, 306A, 306H, 316, Ch 5 Pt 5, Ch 5 Pt 6, Ch 5 Pt 8, Ch 5 Pt 12 Div 2 Dust Diseases Tribunal Regulation 2019 (NSW), Pt 5
Cases Cited:	Chubs Constructions Pty Ltd v Chamma [2009] NSWCA 98 Cvilikas v Sunshine Coast Hospital and Health Service [2023] QSC 36 Hamilton v Merck & Co Inc [2006] NSWCA 55; (2006) 66 NSWLR 48 Hudson v Amaca Pty Ltd [2022] NSWDDT 6 John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 Keogh v CPB Contractors Pty Ltd & Ors (No 2) [2024] NSWDDT 9 Labuda v Langford [2001] ACTSC 126 Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 Peregrine Fixed Income Ltd v JP Morgan Chase Bank [2005] HKCFI 71 Preferential Trade Area Bank v ESCOM [2003] MWHC 74 Somers v Fournier (2002) 60 OR (3d) 225 (Ont CA) Tickner v Teys Australia Biloela Pty Ltd [2020] QSC 62 Union Discount Co Ltdv Zoller (2002) 1 All ER 693 (CA) Wimpey Construction (UK) Ltd v Martin Black & Co (Wire Ropes) Ltd [1988] SLT 637
Texts Cited:	William Reynolds, “Legal Process and Choice of Law” (1997) 56 Maryland Law Review 1371 GE Dal Pont, Law of Costs (2003, 1st ed, LexisNexis) Richard Garnett, Substance and Procedure in Private International Law (2012, 1st ed, Oxford University Press) Sagi Peari, “Substance and Procedure in Private International Law by Richard Garnett” (2013) 14(1) Melbourne Journal of International Law 304 Richard Oppong, “A decade of Private International Law in African Courts 1997-2007 (Part I)”,…