(Re Doran) Eraring Energy v Amaca Pty Ltd and Ors

[2006] NSWDDT 32

Dust Diseases Tribunal

of New South Wales

CITATION:	(Re Doran) Eraring Energy v Amaca Pty Ltd and Ors [2006] NSWDDT 32
PARTIES:	Eraring Energy (Cross Claimant) Babcock International Ltd (Settled 12/09/2006) (First Cross Defendant) Babcock Australia Pty Ltd (Settled 12/09/2006) (Second Cross Defendant) Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) (Third Cross Defendant) Wallaby Grip Ltd (Fourth Cross Defendant) AWI Holdings Pty Ltd (Formerly known as Stewarts & Lloyds (Australia) Pty Ltd) (Settled 12/09/2006) (Fifth Cross Defendant) Power Technologies Pty Ltd (Formerly known as ICAL Ltd) (Sixth Cross Defendant)
MATTER NUMBER(S):	6127/2006/1
JUDGMENT OF:	Duck J
CATCHWORDS:	Dust Diseases Tribunal :-
LEGISLATION CITED:	Dust Diseases Tribunal Regulation 2001
DATES OF HEARING:	13/09/2006
DATE OF JUDGMENT:	09/13/2006
EX TEMPORE JUDGMENT DATE:	09/13/2006
LEGAL REPRESENTATIVES:	Mr P Squires of Goldrick Farrell Mullan appeared with leave for the Cross Claimant Ms N Lapthorn of Phillips Fox appeared for the Third Cross Defendant Ms C Wearne of Middletons appeared for the Fourth Cross Defendant Mr J Beale of Carroll & O'Dea appeared with leave for the Sixth Cross Defendant

JUDGMENT:

RULING

DUCK J

1. This cross-claim has reached a stage at which the cross-claimant has settled with five cross-defendants, but there is a claim which remains outstanding against the fourth cross-defendant, Wallaby Grip Ltd.

2. By order previously made by me the provisions of the Dust Diseases Tribunal Regulation 2001 (the Regulation) relating to apportionment, they being set out in Division 5 of the Regulation, have application to the proceedings. In a circumstance in which there is now only one party left from which contribution is sought by the cross-claimant and the further circumstance in which that party disputes that it is liable to contribute at all, it seems to me that the regulation providing for apportionment to be undertaken by a contributions assessor serves only to delay the matter and add to expense. I say so in part because, whatever the assessor determines, the matter would be liable to appeal from such determination to the Tribunal in any event. In a case in which the cross-defendant, from whom contribution is sought, says that they are not legally liable to contribute, it seems to me preferable to put the matter before the Tribunal for determination as quickly as possible.

3. I therefore revoke the order pursuant to which Division 5 of the Regulation had application.

4. I list the matter for directions on Monday, 25 September 2006.

5. I vacate the directions hearing on 3 October 2006.

Mr P Squires of Goldrick Farrell Mullan appeared with leave for the Cross Claimant

Ms N Lapthorne of Phillips Fox appeared for the Third Cross Defendant

Ms C Wearne of Middletons appeared for the Fourth Cross Defendant

Mr J Beale of Carroll & O’Dea appeared with leave for the Sixth Cross Defendant

I certify that the previous 5 paragraphs

are the reasons for judgment of

His Honour Judge Duck

Associate