Power Technologies Pty Ltd v Energy Australia - [2010] NSWCA 107

New South Wales

Court of Appeal

CITATION: Power Technologies Pty Ltd v Energy Australia [2010] NSWCA 107

HEARING DATE(S): 31 March 2010

JUDGMENT DATE:
14 May 2010

JUDGMENT OF: Allsop P at 1; Beazley JA at 7; Sackville AJA at 8

DECISION: (1) Appeal allowed.
(2) Set aside the orders made by Judge Kearns on 13 February 2009.
(3) Remit the proceedings to the Dust Diseases Tribunal for determination or the making of orders consistent with this judgment.
(4) The respondents pay the appellant’s costs of the appeal, including the application for leave to appeal.
(5) The respondents, if otherwise qualified, have a certificate under the Suitors’ Fund Act 1951.

CATCHWORDS: DUST DISEASES TRIBUNAL–claim for damages in Tribunal – cross-claims by defendants seeking contribution from third party–claims resolution process–apportionment determination by a Contributions Assessor-position of cross-defendant which is forced to contribute under the apportionment determination but denies liability–whether necessary for cross-defendant to institute fresh proceedings–whether cross-defendant bears onus of proof–powers of Tribunal in determining cross-claims.

LEGISLATION CITED: Civil Procedure Act 2005
Dust Diseases Tribunal Act 1989
Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005
Dust Diseases Tribunal Regulation 2001
Dust Diseases Tribunal Regulation 2007
Dust Diseases Tribunal (Standard Presumptions—Apportionment) Order 2005
Dust Diseases Tribunal (Standard Presumptions—Apportionment) Order 2007
Law Reform (Miscellaneous Provisions) Act 1946
Limitation Act 1969
Suitors’ Fund Act 1951

CATEGORY: Principal judgment

CASES CITED: Amaca Pty Ltd v CSR Ltd [2001] NSWSC 263; 51 NSWLR 476
CSR Ltd v Amaca Pty Ltd [2007] NSWCA 107
Electricity Commission of New South Wales v Yates (1991) 30 NSWLR 351
QBE Insurance (Australia) Ltd v Wallaby Grip Ltd [2007] NSWCA 43; 4 DDCR 331
Re Millard; Energy Australia v Power Technologies Pty Ltd [2008] NSWDDT 11
SCI Operations Pty Ltd v Trade Practices Commission [1984] FCA 52; 2 FCR 113
Trade Practices Commission v Manfal Pty Ltd (No 3) [1991] FCA 650; 33 FCR 382

TEXTS CITED: Ritchie’s Uniform Civil Procedure NSW

PARTIES: Power Technologies Pty Ltd (Appellant)
Energy Australia (First Respondent)
Eraring Energy (Second Respondent)

FILE NUMBER(S): CA 2009/00298246

COUNSEL: P Webb QC; T M Rowles (Appellant)
G M Watson SC; J C Sheller (First and Second Respondents)

SOLICITORS: Carroll & O’Dea Lawyers (Appellant)
Goldrick Farrell Mullan Lawyers (First and Second Respondents)

LOWER COURT JURISDICTION: Dust Diseases Tribunal of New South Wales

LOWER COURT FILE NUMBER(S): DDT 6124/2006/CC1
DDT 6124/2006/CC2

LOWER COURT JUDICIAL OFFICER: Kearns J

LOWER COURT DATE OF DECISION: 6 February 2009

LOWER COURT MEDIUM NEUTRAL CITATION: Re Millard; Energy Australia v Power Technologies Pty Limited [2009] NSWDDT 1
Re Millard; Eraring Energy v Power Technologies Pty Limited [2009] NSWDDT 2

CA 2009/40132

ALLSOP P
BEAZLEY JA
SACKVILLE AJA
Friday 14 May 2010

POWER TECHNOLOGIES PTY LTD v ENERGY AUSTRALIA
Headnote
[This headnote is not part of the reasons of the Court.]

This appeal arises out of proceedings in the Dust Diseases Tribunal of NSW. The plaintiff in those proceedings, Mr Millard, sued Energy Australia and Eraring Energy (the respondents), his former employers, for…

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: [2010] NSWCA 107
Decision Date: 14 May 2010

CaseChat Overview and Summary

Power Technologies Pty Ltd (the appellant) sought to appeal a decision of Judge Kearns in the Dust Diseases Tribunal concerning cross-claims for contribution. The dispute arose from claims for damages in the Tribunal, where the defendants sought contribution from the appellant as a third party. A Contributions Assessor had made an apportionment determination, which the appellant was compelled to contribute under, despite denying liability.

The central legal issues before the Court of Appeal were whether the appellant, as a cross-defendant forced to contribute under an apportionment determination but denying liability, was required to institute fresh proceedings to contest its liability. The court also considered whether the onus of proof lay with the appellant in such circumstances and the extent of the Tribunal's powers in determining cross-claims for contribution.

The Court of Appeal held that it was not necessary for the appellant to institute fresh proceedings to challenge its liability for contribution. The court reasoned that the existing proceedings within the Dust Diseases Tribunal were sufficient for the determination of cross-claims. The appellant was not required to bear the onus of proof in the manner suggested by the primary judge, and the Tribunal possessed the necessary powers to resolve these cross-claims. Consequently, the appeal was allowed, the orders of Judge Kearns were set aside, and the proceedings were remitted to the Dust Diseases Tribunal for determination or further orders consistent with the Court of Appeal's judgment. The respondents were ordered to pay the appellant's costs of the appeal.

Orders

Orders of the court

(1) Appeal allowed.

(2) Set aside the orders made by Judge Kearns on 13 February 2009.

(3) Remit the proceedings to the Dust Diseases Tribunal for determination or the making of orders consistent with this judgment.

(4) The respondents pay the appellant’s costs of the appeal, including the application for leave to appeal.

(5) The respondents, if otherwise qualified, have a certificate under the Suitors’ Fund Act 1951.

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.

CITATION:	Power Technologies Pty Ltd v Energy Australia [2010] NSWCA 107
HEARING DATE(S):	31 March 2010
JUDGMENT DATE:	14 May 2010
JUDGMENT OF:	Allsop P at 1; Beazley JA at 7; Sackville AJA at 8
DECISION:	(1) Appeal allowed. (2) Set aside the orders made by Judge Kearns on 13 February 2009. (3) Remit the proceedings to the Dust Diseases Tribunal for determination or the making of orders consistent with this judgment. (4) The respondents pay the appellant’s costs of the appeal, including the application for leave to appeal. (5) The respondents, if otherwise qualified, have a certificate under the Suitors’ Fund Act 1951.
CATCHWORDS:	DUST DISEASES TRIBUNAL–claim for damages in Tribunal – cross-claims by defendants seeking contribution from third party–claims resolution process–apportionment determination by a Contributions Assessor-position of cross-defendant which is forced to contribute under the apportionment determination but denies liability–whether necessary for cross-defendant to institute fresh proceedings–whether cross-defendant bears onus of proof–powers of Tribunal in determining cross-claims.
LEGISLATION CITED:	Civil Procedure Act 2005 Dust Diseases Tribunal Act 1989 Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005 Dust Diseases Tribunal Regulation 2001 Dust Diseases Tribunal Regulation 2007 Dust Diseases Tribunal (Standard Presumptions—Apportionment) Order 2005 Dust Diseases Tribunal (Standard Presumptions—Apportionment) Order 2007 Law Reform (Miscellaneous Provisions) Act 1946 Limitation Act 1969 Suitors’ Fund Act 1951
CATEGORY:	Principal judgment
CASES CITED:	Amaca Pty Ltd v CSR Ltd [2001] NSWSC 263; 51 NSWLR 476 CSR Ltd v Amaca Pty Ltd [2007] NSWCA 107 Electricity Commission of New South Wales v Yates (1991) 30 NSWLR 351 QBE Insurance (Australia) Ltd v Wallaby Grip Ltd [2007] NSWCA 43; 4 DDCR 331 Re Millard; Energy Australia v Power Technologies Pty Ltd [2008] NSWDDT 11 SCI Operations Pty Ltd v Trade Practices Commission [1984] FCA 52; 2 FCR 113 Trade Practices Commission v Manfal Pty Ltd (No 3) [1991] FCA 650; 33 FCR 382
TEXTS CITED:	Ritchie’s Uniform Civil Procedure NSW
PARTIES:	Power Technologies Pty Ltd (Appellant) Energy Australia (First Respondent) Eraring Energy (Second Respondent)
FILE NUMBER(S):	CA 2009/00298246
COUNSEL:	P Webb QC; T M Rowles (Appellant) G M Watson SC; J C Sheller (First and Second Respondents)
SOLICITORS:	Carroll & O’Dea Lawyers (Appellant) Goldrick Farrell Mullan Lawyers (First and Second Respondents)
LOWER COURT JURISDICTION:	Dust Diseases Tribunal of New South Wales
LOWER COURT FILE NUMBER(S):	DDT 6124/2006/CC1 DDT 6124/2006/CC2
LOWER COURT JUDICIAL OFFICER:	Kearns J
LOWER COURT DATE OF DECISION:	6 February 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	Re Millard; Energy Australia v Power Technologies Pty Limited [2009] NSWDDT 1 Re Millard; Eraring Energy v Power Technologies Pty Limited [2009] NSWDDT 2