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Re Hay (No. 5)

Re Hay (No. 5)

Case [2000] NSWDDT 7 19 May 2000

Civil Litigation & Procedure

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(2000) 19 NSWCCR 735

ROLLS ROYCE INDUSTRIAL POWER (PACIFIC) LTD
v
JAMES HARDIE & CO PTY LTD; Re HAY (No. 5)
[2000] NSWDDT 7

and

JAMES HARDIE & CO PTY LTD
v
ROLLS ROYCE INDUSTRIAL POWER (PACIFIC) LTD;
Re HAY (No. 5)

Dust Diseases Tribunal of New South Wales: Curtis J

19 May 2000

Dust Diseases Tribunal - Joint and concurrent tortfeasors - Contribution - Costs - Power to order contribution by one tortfeasor to costs of another tortfeasor payable by a contributing tortfeasor - Liabilities not co-ordinate - No power to make order - Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5
Dust Diseases Tribunal - Joint and concurrent tortfeasors - Costs - Contribution - Power to order contribution by one tortfeasor to costs of another tortfeasor payable by a contributing tortfeasor - Liabilities not co-ordinate - No power to make order - Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5
Dust Diseases Tribunal - Reconsideration of judgment - Recision and amended judgment - Misapprehension of Tribunal as to facts or law - Recision power discretionary - Only exercised if Tribunal convinced relevant decision manifestly wrong - Dust Diseases Tribunal Act 1989 (NSW), s 13(6)
Dust Diseases Tribunal - Costs - Offer of settlement in Calderbank letter - Offer rejected - Prima facie effect when recipient of letter does not obtain a more favourable result - Exceptions to rule
Dust Diseases Tribunal - Costs - General rule - Costs follow the event unless particular issue clearly separable
P.M. Hall QC, D.G. Stewart and R.A. Dalgleish, for Rolls Royce
F.M. Douglas QC and G.M. Watson, for James Hardie
Ex tempore

CURTIS J: On 15 October 1999 I found that James Hardie & Co Pty Ltd (James Hardie) was liable pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 to pay to Rolls Royce Industrial Power (Pacific) Ltd (Rolls Royce) $92,500 being 50 per cent of that sum for which the defendant Rolls Royce was liable to the plaintiff.

I also found that, because James Hardie was already liable (by judgment pursuant to that same legislation) to contribute 70 per cent of the sum for which the co-defendant Pacific Power was liable to the plaintiff, Rolls Royce should pay to James Hardie $54,750 being 50 per cent of that sum for which James Hardie was liable to Pacific Power.

Regrettably, without hearing further from the parties as to what should properly follow from these findings I made the following orders: see Rolls Royce v James Hardie (No. 4) at [254].

1.Judgment for Rolls Royce Industrial Power (Pacific) Ltd against James Hardie & Co Pty Ltd in the sum of $37,750 [$92,500 - $54,750].
2.Rolls Royce Industrial Power (Pacific) Ltd is to pay to James Hardie & Co Pty Ltd one half of the liability of James Hardie & Co Pty Ltd to Pacific Power in respect of Pacific Power’s costs.

By amended motion of 10 December 1999 Rolls Royce seeks orders:

3A.

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.

Continue reading Re Hay (No. 5)

Details

AGLC: Re HAY (No. 5) [2000] NSWDDT 7
Case: [2000] NSWDDT 7
Decision Date: 19 May 2000

CaseChat Overview and Summary

In the matter of Re Hay, the Dust Diseases Tribunal considered an appeal concerning the apportionment of costs between joint and concurrent tortfeasors. The appellant, Hay, challenged a decision that apportioned costs between the parties involved in a dust disease claim. The tribunal was required to determine whether it had the authority to order one tortfeasor to contribute to the costs of another tortfeasor, where the liabilities were not co-ordinate. This involved an interpretation of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), specifically section 5.

The central legal issue was whether the tribunal had the power to order one tortfeasor to contribute to the costs of another tortfeasor, when those liabilities were not co-ordinate. This required an analysis of the relevant statutory provisions and their applicability to the Dust Diseases Tribunal. The tribunal also considered whether there had been a misapprehension of facts or law that warranted a recision of the original judgment under the Dust Diseases Tribunal Act 1989 (NSW), section 13(6). Furthermore, the tribunal addressed the implications of a rejected Calderbank letter on the costs order, and whether the general rule that costs follow the event could be set aside.

The tribunal concluded that it did not have the power to order one tortfeasor to contribute to the costs of another where the liabilities were not co-ordinate, as per section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). The tribunal found no manifest error in its original decision, and therefore, the power to recise was not exercised. Regarding the Calderbank letter, the tribunal held that the rejection of an offer of settlement generally results in the recipient of the letter being liable for costs unless there are exceptional circumstances. The tribunal ultimately determined that the general rule of costs following the event should apply in this case. The tribunal's decision was affirmed, with no changes to the original order.

Orders