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

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.
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).
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.”

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.”

On 30 September 2024 the parties returned to court to deal with a number of post-judgment issues. Mr Rowles, on behalf of…

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 12
Decision Date: 16 October 2024

CaseChat Overview and Summary

Keogh commenced proceedings against several defendants, including CPB Contractors Pty Ltd, for damages arising from injuries sustained at the Boggabri Mine. The dispute centred on the appropriate allocation of costs in light of the statutory provisions under the Workers Compensation Act 1987 (NSW). The Court of Appeal was tasked with determining whether the costs should be apportioned pursuant to section 151S(2) of the Workers Compensation Act 1987 (NSW), given that the primary judgment had found that section 151S did not apply and the costs were already apportioned according to the conventional approach to contribution between tortfeasors. The fifth defendant argued that the court should reconsider the costs allocation in light of section 151S, which they believed should have been applied.

The court examined the legal framework provided by section 151S of the Workers Compensation Act 1987 (NSW), which pertains to the apportionment of costs between tortfeasors where there is a concurrent liability for damages. The central issue was whether the apportionment of costs under this section should override the conventional approach that had already been applied in the primary judgment. The court considered whether the statutory provision could be invoked in the context of the present case and if it had any application given the circumstances of the costs allocation that had already occurred.

The Court of Appeal found that the primary judgment correctly determined that section 151S of the Workers Compensation Act 1987 (NSW) did not apply in this instance. The court reasoned that the costs had already been apportioned according to the conventional approach, and there was no merit in applying section 151S retrospectively. The court held that the statutory provision had no application to the existing costs orders and therefore dismissed the application for a variation of the costs orders. The court ordered the fifth defendant to pay the costs of the plaintiff and the third defendant of and incidental to the application.

The Court of Appeal's final orders were to dismiss the application made by the fifth defendant for a variation of the existing costs orders, based upon section 151S of the Workers Compensation Act 1987 (NSW). Additionally, the court ordered the fifth defendant to pay the costs of the plaintiff and the third defendant of and incidental to the application.

Orders

Orders of the court

(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.

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 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