Keogh v CPB Contractors Pty Ltd (No 4)

[2024] NSWDDT 12

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:

Keogh v CPB Contractors Pty Ltd & Ors (No 4) [2024] NSWDDT 12

Hearing dates:

On the papers

Date of orders:

16 October 2024

Decision date:

16 October 2024

Before:

Russell SC DCJ

Decision:

(1) Dismiss the application made by the fifth defendant for a variation of the existing costs orders, based upon s 151S of the Workers Compensation Act 1987 (NSW).

(2)   Order the fifth defendant to pay the costs of the plaintiff and the third defendant (re the Boggabri Mine) of and incidental to the application.

Catchwords:

COSTS – whether costs awarded should be apportioned pursuant to the Workers Compensation Act 1987 (NSW) s 151S(2) – primary judgment found s 151S did not apply – costs already apportioned according to conventional approach to contribution between tortfeasors – s 151S has no application

Legislation Cited:

Workers Compensation Act 1987 (NSW), ss 151S, 151Z

Workers Compensation (Benefits) Amendment Act 1989 (NSW)

Cases Cited:

James Hardie & Coy Pty Ltd v Wyong Shire Council [2000] NSWCA 107; (2000) 48 NSWLR 679

Keogh v CPB Contractors Pty Ltd & Ors (No 2) [2024] NSWDDT 9

Texts Cited:

Explanatory Note, Workers Compensation (Benefits) Amendment Bill 1989 (NSW)

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 1 August 1989 at 8820-8823

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 2 August 1989 at 9185-9257

Category:

Procedural rulings

Parties:

Craig Andrew Keogh (Plaintiff)
Downer EDI Mining Pty Ltd (Third Defendant)
Downer Mining Regional (NSW) Pty Ltd (Fifth Defendant)

Representation:

Counsel:
S Tzouganatos (Plaintiff)
J Sheller SC (Third Defendant re Boggabri Mine)
T Rowles (Fifth Defendant re Boggabri Mine)

Solicitors:
Shine Lawyers (Plaintiff)
Wotton & Kearney (Third Defendant re Boggabri Mine)
Sparke Helmore (Fifth Defendant re Boggabri Mine)

File Number(s):

DDT 2021/45484

Judgment

1. In these proceedings I delivered judgment in favour of the plaintiff against the defendants on 25 July 2024 (the primary judgment): Keogh v CPB Contractors Pty Ltd & Ors (No 2) [2024] NSWDDT 9.

2. This further judgment concerns whether the costs ordered in favour of the plaintiff against the fifth defendant should be apportioned pursuant to s 151S(2) of the Workers Compensation Act 1987 (NSW) (the WC Act).

3. Order 9 in the primary judgment was the costs order in favour of the plaintiff. Order 9 said:

“Order the first, second, third and fifth defendants to pay the costs of the plaintiff.”

4. Orders 10 and 11 in the primary judgment dealt with the cross claim for contribution brought by the fifth defendant against the third defendant. Those orders were as follows:

“10   Judgment for the fifth defendant against the third defendant on the Amended Fifth Cross Claim in relation to mine dust exposure at the Boggabri Mine for $548,774.42.

11   Order the third defendant to pay the costs of the fifth defendant of and incidental to the Amended Fifth Cross Claim.”

5. On 30 September 2024 the parties returned to court to deal with a number of post-judgment issues. Mr Rowles, on behalf of the fifth defendant, sought a variation of Order 11. Mr Sheller SC, who then appeared for the third defendant in relation to the Boggabri Mine, did not oppose the variation sought by Mr Rowles. Order 1 made on 30 September 2024 was as follows:

“Order that Order 11 made on 25 July 2024 be varied to add the words ‘including 70% of the costs payable by the Fifth Defendant to the Plaintiff under Order 9 made on 24 July 2024.”

6. Thus, the costs order made on the Amended Fifth Cross Claim now reads:

“Order the third defendant to pay the costs of the fifth defendant of and incidental to the Amended Fifth Cross Claim including 70% of the costs payable by the Fifth Defendant to the Plaintiff under Order 9 made on 24 July 2024.”

7. On 30 September 2024 Mr Rowles also indicated that the fifth defendant wished to seek an order under s 151S(2) of the WC Act. Directions were made for the fifth defendant to file and serve a written submission on this issue by 8 October 2024. That submission was received and has been marked as “MFI 36”. A direction was also made for the plaintiff and the third defendant (re the Boggabri Mine) to file and serve written submissions in reply by 15 October 2024. Both parties indicated to the court, on 9 October 2024, that they opposed the order sought by the fifth defendant, but they did not wish to file any written submission. In those circumstances judgment was reserved on the application in relation to s 151S(2) of the WC Act.

The Legislation

8. Section 151S of the WC Act is contained in the modified common law damages provisions of the WC Act. Section 151S is as follows:

“(1) If a judgment is obtained for payment of damages to which this Division applies as well as for other damages, the court is required, as part of the judgment, to declare what portion of the sum awarded by the judgment is damages to which this Division applies.

(2) In any such case the court is required to apportion any costs awarded.”

9. At the trial Mr Rowles sought an order under s 151S(1) of the WC Act for the apportionment of damages. The primary judgment at [598]-[602] dealt with that application as follows:

“Apportionment of Damages and Costs

598 Section 151S of the WCA provides as follows:

‘151S Court to apportion damages etc

(1) If a judgment is obtained for payment of damages to which this Division applies as well as for other damages, the court is required, as part of the judgment, to declare what portion of the sum awarded by the judgment is damages to which this Division applies.

(2) In any such case the court is required to apportion any costs awarded.’

599   Mr Rowles submitted (MFI 24, par 4.4) that ‘time on risk is the only way to determine each defendant’s responsibility’ and that this ‘must be done to undertake the assessment of damages to be awarded under Div 3 Pt 5 of the WCA (as against the fifth defendant)’.

600 Mr Tzouganatos submitted (MFI 8, par 243) that there is nothing in s 151S that prevents the Tribunal from entering judgment for the full amount of damages against each defendant, including the fifth defendant. All that is required is that the Tribunal declare what portion of the sum awarded was damages as against the fifth defendant.

601   I accept the submission of Mr Tzouganatos. It is supported by the decisions of the Court of Appeal in Oxley County Council v McDonald [1999] NSWCA 126 at [51] and Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 at [55]-[57]. In accordance with those decisions, I will find a judgment against Downer Regional for the full amount of damages as calculated below. Those decisions suggest that s 151S is relevant where there are two joint tortfeasors, one of which is an employer, and s 151Z of the WCA comes into play. Section 151S really has no work to do where (as here) there are separate assessments against successive tortfeasors.

602   For more abundant caution, I will declare that the full amount of the judgment against Downer Regional is for damages to which the modified common law damages provisions of the WCA apply.”

10. The written submission of Mr Rowles (MFI 36) acknowledged that there was no decided case upon the meaning of s 151S(2). The section was introduced into the WC Act by the Workers Compensation (Benefits) Amendment Act 1989 (NSW). The Explanatory Note to that Act simply says:

“Section 151S requires a court to apportion damages in certain cases.”

11. Nothing was said in the Second Reading Speeches (Legislative Assembly, 1 August 1989, pp 8820-8823 and 2 August 1989 (pp 9185-9257) concerning the meaning or effect of any part of s 151S.

Consideration

12. I repeat what I said at par 601 of the primary judgment. In my view s 151S of the WC Act is only relevant where there are two joint tortfeasors, one of which is an employer, and s 151Z of the WC Act comes into play. Section 151S has no work to do where, as in this case, there are separate assessments against successive tortfeasors.

13. The order sought by Mr Rowles was as follows (MFI 36, par 1.9):

“The Fifth Defendant submits that the Court should assign costs to be awarded as against the Fifth Defendant to the Plaintiff based on the costs that the Plaintiff has incurred in prosecuting his case against the Fifth Defendant and then apportion 70% of those costs to the Third Defendant and 30% to the Fifth Defendant (in accordance with the Court’s judgment in the claim for contribution of the Fifth Defendant against the Third Defendant).”

14. Mr Rowles has already achieved that aim by the variation of the costs order made on 30 September 2024 which is referred to above. That variation was not based upon s 151S(2), but upon the conventional approach to contribution between tortfeasors, to the effect that both damages and costs should be apportioned between those parties – see James Hardie & Coy Pty Ltd v Wyong Shire Council [2000] NSWCA 107; (2000) 48 NSWLR 679. In that case the Court of Appeal held that the right of a defendant tortfeasor to recover contribution from a concurrent tortfeasor extends to and includes any costs recoverable by the plaintiff.

15. In the primary judgment I found that it was not necessary to apply s 151S(1) of the WC Act, because I found that the diseases suffered by Mr Keogh were divisible, and thus a discrete and separate amount was awarded against the fifth defendant. In those circumstances I see no reason to apportion costs under s 151S(2) of the WC Act.

16. Further, s 151S(2) commences with the words “[i]n any such case”, which must be a reference back to subs (1) which gives the court a power to declare what portion of the sum awarded by the judgment is damages to which the WC Act applies. For the reasons set out at [598]-[602] of the primary judgment, no such apportionment was made as to damages, and thus there is no “such case” requiring the court to apportion any costs awarded.

17. In view of the variation of the costs order against the fifth defendant referred to above, and because in my view s 151S has no application to the present case, I decline to make an order under s 151S(2) of the WC Act. Thus, the further application by the fifth defendant fails. I will order the fifth defendant to pay the costs of the plaintiff and the third defendant of that application.

Orders

18. The orders of the Tribunal are:

1. Dismiss the application based upon s 151S of the Workers Compensation Act 1987 (NSW), made by the fifth defendant, for a variation of the existing costs orders.

2. Order the fifth defendant to pay the costs of the plaintiff and the third defendant (re the Boggabri Mine) of and incidental to the application.

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Decision last updated: 16 October 2024