(re Heath) Delta Electricity v Power Technologies Pty Limited & Ors
[2007] NSWDDT 19
•27 August 2007
Dust Diseases Tribunal
of New South Wales
CITATION: (re Heath) Delta Electricity v Power Technologies Pty Limited & Ors [2007] NSWDDT 19 PARTIES: Delta Electricity
Power Technologies Pty Limited
Wallaby Grip Limited
Wallaby Grip (NSW) Pty Limited (in liquidation)
Wallaby Grip (BAE) Pty Limited (in liquidation)
Amaca Pty Limited
Bradford Insulation Industries Pty Limited
The English Electric Company Limited
Alstom Australia Limited
AWI Holdings Pty Limited
CSR LimitedMATTER NUMBER(S): 173/2004/CC1 of JUDGMENT OF: Kearns J CATCHWORDS: :- DDT and cross-claim
Claims Resolution Process
Whether retrospective - Transitional provision applying to "claims commenced by statement of claim"
Whether applicable to cross-claims and whether applicable to cross-claims commenced by cross-claimsLEGISLATION CITED: Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005
Dust Diseases Tribunal Regulation 2001
Dust Diseases Tribunal Act 1989
Law Reform (Miscellaneous Provisions) Act 1946CASES CITED: Burroughs Wellcome & Co (Australia) Pty Ltd v Wallaby Grip Limited (2006) 4 DDCR 113;
QBE Insurance (Australia) Ltd v Wallaby Grip Ltd [2007] NSWCA 43DATES OF HEARING: 19/07/2007, 27/08/2007
DATE OF JUDGMENT:
27 August 2007LEGAL REPRESENTATIVES: Mr Squires of Goldrick Farrell Mullan appeared with leave for the Main Cross Claimant
Mr Beal of Carroll & O'Dea appeared for the First Cross Defendant
Mr E Cox, instructed by Makinson d'Apice, appeared for the Sixth and Tenth Cross Defendants
Mr Read of Moray & Agnew appeared for the Seventh Cross Defendant
Ms Evans of Blake Dawson Waldron appeared for the Eighth Cross Defendant
JUDGMENT:
RULING
KEARNS J
Outline
1. The plaintiff sued Delta Electricity (Delta) and Eraring Energy (Eraring) claiming damages for illness caused by exposure to asbestos dust. He filed his statement of claim on 31 May 2004.
2. The plaintiff settled his case on 15 November 2004.
3. The Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005 commenced on 1 July 2005. Relevantly, it amended the Dust Diseases Tribunal Regulation 2001 by adding a new part, Part 4. That part introduced an alternative dispute resolution process for asbestos related conditions. That process was called and is popularly known as the “claims resolution process” (CRP).
4. Delta filed a cross-claim seeking contribution from other tortfeasors on 11 May 2006. There are other cross-claims, but the ruling on Delta’s cross-claim will determine the outcome of those.
5. The question is whether the CRP applies to Delta’s cross-claim. Two of the cross defendants argue that it does not. They are Bradford Insulations Industries Pty Limited (Bradford) and CSR Limited (CSR). Mr Cox appeared for Bradford and CSR.
6. Amaca Pty Limited (Amaca) did not appear on the hearing of this issue. I was informed that proceedings against it had been resolved.
7. Wallaby Grip Limited, Wallaby Grip (NSW) Pty Limited (in liquidation) and Wallaby Grip (BAE) Pty Limited (in liquidation) did not appear on the hearing of the issue. Those companies were aware of the listing of this matter.
8. Three other cross defendants appeared on the hearing of this issue. They neither consented nor opposed the application of Bradford and CSR that the CRP does not apply to Delta’s cross-claim.
The legislation
9. As earlier noted, the Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005 commenced on 1 July 2005. In addition to introducing the CRP, it also amended the Dust Diseases Tribunal Act 1989 (DDT Act) by adding s.11(1A), as follows:
“(1A) Proceedings by any tort-feasor liable in respect of damages referred to in subsection (1) to recover contribution from any other tort-feasor liable in respect of that damage may be brought before the Tribunal. Note. This subsection does not prevent those proceedings being brought in another court.”
10. This gave the Tribunal jurisdiction in respect of claims for contribution by one tortfeasor against another under s.5 of the Law Reform (Miscellaneous Provisions) Act 1946. Previously, the Tribunal had that jurisdiction, but only under its related or ancillary jurisdiction (DDT Act s.11(3) and (4)). There was a view that before the amendment, the jurisdiction covered claims for contribution brought in proceedings by a plaintiff that were still on foot when the cross-claim was filed or where leave had been granted to file a cross-claim before the entry of judgment, but not otherwise. It was considered that the jurisdiction did not extend to cases where, after a plaintiff’s case was disposed of, the tortfeasor then commenced proceedings.
11. Strictly speaking, the distinction referred to in the previous paragraph was or should have been productive of a distinction procedurally. In the former class of case, a tortfeasor could or should commence his claim for contribution by filing a cross-claim in the plaintiff’s proceedings. In the latter class of case, he could or should commence fresh proceedings by filing a statement of claim.
12. This distinction is also recognised in the legislation. Clause 21(8) of the Dust Diseases Tribunal Regulation 2001 is in the following terms:
“A cross-claim that is not filed and served as required by this clause cannot be made in the proceedings (but without affecting any right of a defendant to pursue the claim in separate proceedings commenced by the defendant)”.
A similar provision is continued in the 2007 regulation - clause 25(9).
13. The effect of the CRP was to subject all claims in respect of asbestos related conditions to its process and whilst subject to the CRP, proceedings in the Tribunal are deferred (clause 17(1)(b)). There is provision for removal of claims from the CRP. Claims may be removed from the CRP if they are urgent, raise novel issues, or there is a failure to comply with the provisions of the CRP resulting in prejudice (clause 18). The evident intent of the legislation introducing the CRP is to seek to have matters resolved by a form of alternate dispute resolution, speedily and cheaply. To that end, the CRP provides for the detailed exchange of information between parties. It sets strict timetables with respect to a number of matters including the exchange of information and the arrangement of medical examinations. It provides for compulsory mediation and sets strict timetables in relation to that. It provides for defendants and cross defendants to agree on apportionment and, again, sets strict timetables in relation to that and, if agreement is not reached, it provides for an assessment to be undertaken by a contributions assessor and this is done according to formulae prescribed. Ultimately, if defendants and cross-defendants are not satisfied with the result of the contributions assessed, they may bring the matter before the Tribunal where a cross-claim will be heard and determined in the usual way (clause 42(5)).
14. The legislation introducing the CRP included a transitional provision, clause 14, in the following terms:
“(1) This Part applies only to the following claims :
(a) claims commenced by statement of claim filed on or after 1 July 2005,
(b) claims commenced by statement of claim filed before 1 July 2005 (current claims) but only if:
(i) a hearing date for the claim has not been set before 1 July 2005, and not if each of the parties to the claim has notified the Registrar in writing that the parties have agreed that this Part is not apply to the claim, or
(ii) all of the parties to the claim have agreed that this Part is to apply to the claim.”
The balance of the clause is not relevant.
15. It is the interpretation of this transitional provision and its application to the facts of this case that will determine whether or not the CRP will apply to Delta’s cross-claim. The matter was not argued on the basis that the 2007 Regulation might apply. This makes no difference as the 2007 Regulation has a similar transitional provision (clause 16).
16. In considering the application of the transitional provision, relevant dates are as follows:
31 May 2004 statement of claim filed;
15 November 2004 plaintiff’s case is settled;
1 July 2005 CRP commences;
11 May 2006 Delta files its cross-claim.
17. The argument that proceeded before me raised the following issues:
(a) whether “claims” in the transitional provision covered Delta’s cross-claim;
(b) whether “a hearing date for the claim” had been set before 1 July 2005;
(c) the meaning of the second part of clause 14(1)(b)(i);
(d) whether the general rule against retrospectivity applied.
The argument
18. It was argued by Mr Squires that “claims” in clause 14 included cross-claims as well as claims brought by a plaintiff. In support of that argument, he relied on Burroughs Wellcome & Co (Australia) Pty Ltd v Wallaby Grip Limited (2006) 4 DDCR 113. There, O’Meally P held that “claims” in clauses 11 and 16 of the CRP Regulation included cross-claims brought by one tortfeasor against another. The decision of the President was overruled in the Court of Appeal on other grounds (QBE Insurance (Australia) Ltd v Wallaby Grip Ltd [2007] NSWCA 43). There is an argument that claims in clause 14 does not include cross-claims because, in clause 22, a claim is specifically defined to include a cross-claim in that clause. The argument would be that if the Regulation needed to define “claim” to mean cross-claim in that clause, presumably it did so because otherwise it did not include cross-claim. I see no reason to depart from the President’s view on this point and, accordingly, I accept the submission of Mr Squires that “claim” in clause 11 includes cross-claim. It must, therefore, include cross-claims in clause 14.
19. That brings me to the application of clause 14.
20. Delta’s cross-claim was filed after 1 July 2005, but I do not think it follows that clause 14(1)(a) applies. This is because it applies to claims “commenced by statement of claim”. Delta’s cross-claim was not commenced by statement of claim. It was commenced by a cross-claim. The difference is discussed above in paragraphs 9 to 11. The two terms are recognised as different in legal parlance. Procedurally the difference is recognised. Documents recognising that difference are entitled “statement of claim” or “cross-claim”. The regulation itself uses both terms “statement of claim” and “cross-claim”, for example, clauses 14, 17, 20, 21. Clause 21 exhibits a distinction between cross-claims in the plaintiff’s proceedings and cross-claims separate from such proceedings. In the former case, a defendant seeks his relief by way of cross-claim. In the latter case, he seeks his relief by way of statement of claim.
21. The distinction between statement of claim and cross-claim is well recognised at law. It cannot be said, in my view, that Delta’s cross-claim was one commenced by statement of claim. In my view, therefore, clause 14(1)(a) does not apply. This may or may not be an intended result of the Regulation. I think, however, it is a result compelled by the wording of the transitional provision.
22. For the same reason, clause 14(1)(b) does not apply to Delta’s cross-claim. Sub-clause (b) does not apply for the additional reason that Delta’s cross-claim was not filed before 1 July 2005.
23. On the basis of the reasons I have given, it is not necessary for me to consider other issues I set out in paragraph 17 above. I should indicate, however, views I have formed in relation to the arguments that were presented to me and they are:
(1) the first part of sub-clause (b)(i) is that a hearing date for the claim had not been set before 1 July 2005. It was argued that a hearing date for the claim did not mean a hearing date for the claim for damages, or contribution, but included any date the matter was listed before the Tribunal for any reason and it was listed before the Tribunal for mention and directions on a number of occasions before 1 July 2005. I do not think that this is a correct meaning of the clause. A “hearing date for the claim” (emphasis added) must be a reference back to the claim “commenced by statement of claim”, that is, the plaintiff’s claim for damages or the defendant’s claim for contribution and no hearing date for such had been set. This condition, therefore would be satisfied;
(2) the next part of the sub-clause is somewhat convoluted and confusing with a double-negative and nobody seemed to be able to explain satisfactorily what it meant. I think it means that, other conditions being satisfied, the CRP is to apply unless each of the parties has notified the Registrar in writing that it is not to apply. As each of the parties had not notified the Registrar in writing that the CRP was not to apply, that condition would be satisfied.
(3) The argument against retrospectivity proceeded on the basis that the regulation should not be given a retrospective operation where the meaning of clause 14(b)(i) was ambiguous and where the regulation denied parties a curial process. I do not accept this argument for the following reasons:
(a) there is no ambiguity that would deny the regulation a retrospective effect if it otherwise had that effect;
(b) a curial process is not denied. It is available after the CRP has been undertaken (clause 42(5));
(c) general rules as to retrospectivity need to be subordinate to the specific provision of the transitional clause.
24. For reasons given earlier, I am of the view that the CRP does not apply to Delta’s cross-claim.
Mr Squires, of Goldrick Farrell Mullan, appeared with leave for the Main Cross Claimant.
Mr Beal, of Carroll & O’Dea, appeared for the First Cross Defendant.
Mr E Cox, instructed by Makinson & d’Apice, appeared for the Sixth and Tenth Cross Defendants.
Mr Read, of Moray & Agnew, appeared for the Seventh Cross Defendant.
Ms Evans, of Blake Dawson Waldron, appeared for the Eighth Cross Defendant.
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