(re Lloyd) Amaca Pty Limited v The National Institute of Dramatic Art; (re Lloyd) Amaca Pty Limited v Telstra Corporation Limited
[2012] NSWDDT 1
•29 May 2012
Dust Diseases Tribunal
New South Wales
Medium Neutral Citation: (re Lloyd) Amaca Pty Limited v The National Institute of Dramatic Art; (re Lloyd) Amaca Pty Limited v Telstra Corporation Limited [2012] NSWDDT 1 Hearing dates: 22 May 2012 Decision date: 29 May 2012 Before: Kearns J Decision: Catchwords: Dust Diseases, Claims Resolution Process, urgent case removed from CRP, whether Divisions 4 and 5 of Part 4 should apply, whether statement of claim should be struck out Legislation Cited: Dust Diseases Tribunal Regulation 2007 Cases Cited: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Category: Interlocutory applications Parties: Gao Xiao-Fang (as legal personal representative of the Estate of the Late Andrew Evan Lloyd), Plaintiff
Amaca Pty Limited, Defendant/Cross Claimant CC1 and CC2
The National Institute of Dramatic Art, Cross Defendant CC1
Telstra Corporation Limited, Cross Defendant CC2Representation: Mr S Tzouganatos appeared for the plaintiff
Ms W Strathdee appeared for the defendant/cross claimant
Mr M Vesper appeared for the cross defendant CC1
Mr T Rowles appeared for the cross defendant CC2
File Number(s): DDT105/2011; DDT105/2011/CC1; DDT105/2011/CC2
Judgment
Background
From about the age of 10, until about the age of 23, Mr Lloyd, on occasions, was present when members of his family were constructing residences. He assisted in the construction. He also assisted in the maintenance of the first of the residences. These things occurred from 1962 to 1975. His presence and his assistance during construction and maintenance exposed him to asbestos product of Hardies. As a result, he contracted mesothelioma. He brought proceedings in the Dust Diseases Tribunal against Amaca (responsible for the liabilities of Hardies) seeking damages for his injury. Mr Lloyd died in August 2011 and the proceedings have been continued by his widow.
Amaca has cross-claimed against NIDA and Telstra.
When he was about 22 or 23 years of age, Mr Lloyd did some part time work at NIDA. Amaca alleges that he was there exposed to asbestos and that that exposure caused or contributed to his mesothelioma and it seeks contribution from NIDA accordingly.
When he was about 21 years of age, Mr Lloyd did some work for Overseas Telecommunications Commission (OTC). Amaca alleges he was there exposed to asbestos which caused or contributed to his mesothelioma and it seeks contribution from Telstra accordingly. Telstra is responsible for the liabilities of OTC.
On 5 August 2011, Mr Lloyd applied to have his proceedings removed from the claims resolution process (CRP). The application was on the basis that his claim was urgent by reason of his deteriorating health. O'Meally P made that order.
Another order made was that the plaintiff's evidence be taken on 15 August 2011. Regrettably he died that day and his evidence could not be taken. O'Meally P deferred consideration as to whether Divisions 4 and 5 of Part 4 of the Dust Diseases Tribunal Regulation 2007 (Regulation) should apply. That was deferred until after the plaintiff had given his evidence.
The applications
There are two notices of motion before me. One is Amaca's notice of motion. It seeks an order that Divisions 4 and 5 apply to the proceedings. The other is Telstra's motion. It seeks that the cross-claim against it be struck out.
The strike-out application
Ms Strathdee, who appeared for Amaca, has argued that its motion should be heard and determined before Telstra's motion. Telstra's motion is based on the ground that Amaca's case against it is so hopeless it is doomed to fail. If Telstra's position be correct, then on Amaca's argument, Telstra must nevertheless be dragged through extensive litigation because it is appropriate procedurally for Divisions 4 and 5 to apply. In my view, it cannot be the case that Divisions 4 and 5 would have the effect of subjecting a party to litigation where that party has an unanswerable case for being excluded from the litigation. I reject that and reject the submission that Amaca's motion should be heard before Telstra's motion. I heard the evidence and the submissions in both motions together. It is appropriate that I consider Telstra's motion first because, if it is successful in that motion, there can be no basis for calling in Divisions 4 and 5 or any other provision to aid in the conduct of the litigation against Telstra.
Telstra's application to have the proceedings against it struck out is based on Part 13 rule 13.4(1) and Part 14 rule 14.28(1) of the Uniform Civil Procedure Rules 2005. Rule 13.4(1) provides:
If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
(a)the proceedings are frivolous or vexatious, or
(b)no reasonable cause of action is disclosed, or
(c)the proceedings are an abuse of the process of the court,
the court may order that the proceedings be dismissed generally or in relation to that claim.
Rule 14.28(1) provides:
The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:
(a)discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or
(b)has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
(c)is otherwise an abuse of the process of the court.
There is no doubt that the test to be applied in the application of these rules is the General Steel test - General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. The test is expressed in various ways by Barwick CJ in that case. Essentially, Telstra needs to establish that the claim against it is doomed to fail. That brings me to the case that Amaca makes against Telstra.
In its cross-claim against Telstra, Amaca pleads Mr Lloyd's assertion in his case against Amaca. Amaca relies on a statement in Mr Lloyd's statement of particulars filed in the Tribunal to the effect that he worked at OTC in 1973 as a part time technician. Amaca does not include in its cross-claim Mr Lloyd's statement that in that work he was not exposed to asbestos. Instead, it alleges that in the course of that work, he was exposed to asbestos.
The only evidence that Amaca has in relation to Mr Lloyd's exposure with OTC is contained in Exhibit JH1. I set out the material in that exhibit that Amaca relies on.
A document of 28 April 2010 is a report of an interview with Mr Lloyd by an industrial history officer with the Dust Diseases Board. It includes the following:
Mr Lloyd was interviewed on 22/2/2010 at his residence at Little Bay. His wife Xiao-Fang Gao [sic] was present for the whole meeting.
EMPLOYMENT AND EXPOSURE SUMMARY
Mr Lloyd was a student during the early 1970s and he worked as a part-time electrical technician for two employers during term holidays from 1971 to 1975.
The first employer was the Commonwealth-owned Overseas Telecommunications Commission (OTC) and although Mr Lloyd could not identify the existence of asbestos materials in that workplace, the DDB holds records of workers in similar industry and employment circumstances who indicate they encountered some asbestos materials and had some exposure to dust. It therefore seems possible that Mr Lloyd may have unknowingly handled asbestos materials and been exposed to asbestos dust in this employment.
On the following page of the exhibit, there is a document that includes the following:
Summary of Employment History
Year Start
Year End
Employer
State / Ctry
Occupation
Was a Worker
Exp
Y/N
Dust type / exposure
frequency notes
1971
1973
OTC
NSW
Technician
No
Yes
possible asbestos exposure
Then on the following page is a document that includes the following:
Mr Lloyd stated that he was engaged in full time studies for 2 years at North Sydney TAFE and in the holidays he was employed as a technician by the Overseas Telecommunications Commission (OTC). He recalled that he mainly worked at the OTC building at Martin Place Sydney and occasionally worked at other facilities such as the large phone exchange at Oxford Street Paddington.
Mt [sic] Lloyd recalled that a lot of his work involved pulling cables and general electrical maintenance and repairs. He recalled that a lot of the larger cables for telecommunications were comprised of many cables that were then covered with a type of PVC material.
Mr Lloyd recalled that he did a lot of work in ceilings and he stated that there was a lot of dust in these confined spaces. He stated that he did not specifically recall having handled materials that contained an asbestos component at this time.
...
EXPOSURE NOTES AND VERIFICATION
The DDB holds a number of reports from previous applicants who were employed as electricians and similar trades employed in similar circumstance in the telecommunication industry. Detail contained in these reports indicate that asbestos materials were used in a variety of products and materials during the period in which Mr Upton claims to have been employed by OTC. As such, it seems possible that Mr Lloyd may have unknowingly handled asbestos materials and been exposed to some asbestos dust.
The exhibit also includes several pages of a document entitled "Employment History". In part of it, it is noted that Mr Lloyd had a start date with OTC of 1971 and an end date of 1973. His occupation was described as "TAF [sic] STUDENT/TRAINEE NORTH SYDNEY TAFE". The description of duties was described as "attend TAFE AND WORK IN VARIOUS TEL. EXCHANGES DURING TAFE HOLIDAYS". Dust exposure was described as "MAYBE CABLING WRAPPED IN ASBESTOS?".
Mr Rowles, who appeared for Telstra, made powerful submissions attacking the quality of the evidence of Mr Lloyd's exposure. I shall come to those submissions later. I do not deal with them now because, at this stage, I need to consider whether the General Steel test has been satisfied. I do not consider that the evidence Mr Rowles took me to puts the plaintiff out of court. It certainly provides a sound basis for attacking the evidence the plaintiff relies on, but I do not think it satisfies the General Steel test. The test is whether there is no evidence at all or whether the evidence is such that Amaca could not possibly succeed on it.
It is clear that Mr Lloyd had worked with OTC. There is evidence that he worked as a part time electrical technician. There is evidence that his work involved pulling cables and general electrical maintenance and repairs. There is evidence that he worked in ceilings where he was exposed to a lot of dust. There is then material apparently held by the Dust Diseases Board which apparently shows that persons working in conditions similar to Mr Lloyd had exposure to asbestos.
This evidence may not convince a trial judge, but it is enough to be put before a trial judge. For this reason, Amaca's claim against Telstra should not be struck out.
Amaca's application for Divisions 4 and 5 to apply
This application is opposed by Telstra, NIDA and the plaintiff.
Divisions 4 and 5 are part of the CRP set up by the Regulation. Division 4 applies to mediation. Division 5 applies to apportionment between defendants and cross-defendants. There is no need to set out in detail the provisions of those Divisions. Division 5 sets up a process requiring all defendants and cross-defendants to partake in a contributions assessment whereby, on the papers, a contributions assessor determines the percentage contribution each defendant and cross-defendant should make to the plaintiff's damages. There is no escaping it. Each defendant and cross-defendant is to be taken by the contributions assessor to be liable. The contributions assessor must then apply a percentage of liability to each defendant and cross-defendant. Standard Presumptions prescribe the percentage the contributions assessor is to determine. That percentage depends on matters such as the category a defendant or cross-defendant falls into. There is provision within limits for a variation in the percentage prescribed.
When a matter has been removed from the CRP on the basis that it is urgent, as was this case, the Tribunal is to consider whether to order the application of Divisions 4 and 5 to the matter.
It is agreed by all that the decision as to whether or not Divisions 4 and 5 apply is a discretionary decision. It is agreed also that it would be inappropriate for me to determine the Divisions would apply in respect of one party, but not in respect of another.
It is convenient to look at the case Amaca brings against Telstra to see whether or not it is appropriate to determine whether Division 5 should apply.
Mr Rowles submitted that factors I should take into account in determining whether or not Division 5 should apply include the purposes for which the CRP was established. They include the objects of having a full exchange of information between the parties, the achievement of early settlement of cases and a reduction in legal costs of proceedings. Mr Rowles submitted I should also consider justice and fairness between the parties. I accept Mr Rowles's submissions as to these matters.
Mr Rowles submitted that if I were to order the application of Division 5, it does not achieve those objectives. Indeed, it would be contrary to these objectives. This is because, he submitted, the process would be unfair to Telstra and would only add significantly to the costs. Mr Rowles submitted that it was inevitable that Amaca would have to pursue its cross-claim against Telstra and to require the parties to go through a compulsory contributions assessment process would be a waste of costs.
A submission to the effect that a party would be unwilling to accept the assessment of a contributions assessor should be treated with caution. Not to do so could enable any party quite easily to make the submission simply for the purpose of avoiding the process. In testing the strength and validity of the submission, I think it is appropriate to look at the nature and quality of the case that is made against the party making the submission. In this regard, I turn to matters to which Mr Rowles drew my attention in the course of submissions.
The first thing Mr Rowles took me to was the Amended Reply filed by Amaca in these proceedings. In that document, Amaca made the following assertions in relation to OTC:
Amaca joined Telstra to the proceedings in reliation [sic] to the Deceased's alleged exposure to asbestos dust and fibres when he worked as a technician at the Overseas Telecommunications Commission (OTC). The Deceased recalled that his work involved pulling cables and general electrical maintenance and repairs. The DDB indicated in its report that it holds a number of reports from previous applicants who were employed as electricians and similar trades employed in similar circumstance in the telecommunication industry. The DDB indicate that detailed contained in the reports indicate that asbestos materials were used ina [sic] variety of products and materials. Amaca has requested the DDB reports from previous applicants who were employed as electricians and similar trades in the telecommunication industry.
In testing Amaca's case, Mr Rowles then took me to the following matters:
(1) Mr Lloyd's statement of particulars filed in the Tribunal
In that document, Mr Lloyd, in setting out his summary of work and exposure history, asserted that he worked for OTC in 1973 on a cadetship and was not exposed to asbestos;
(2) Mr Lloyd was examined by Dr Bryant on 27 January 2010. Dr Bryant has recorded "The only asbestos exposure he could recall occurred when he was child when his parents constructed a house containing Asbestolux internal walls ...";
(3) in material contained in Exhibit JH1, Mr Rowles has submitted that there is no specific evidence of exposure to asbestos with OTC;
(4) Mr Lloyd swore an affidavit on 10 August 2011. In that affidavit, in paragraph 12 under a heading of "Personal History", Mr Lloyd stated "... in 1971 I obtained a cadetship with the Overseas Telecommunications Corporation. In 1973, as part of the cadetship, I worked part time at the Paddington telephone exchange ...". Under the heading "Exposure to asbestos dust" are paragraphs 29-80 inclusive. There is no reference in any of those paragraphs to exposure at OTC. In paragraphs 81 and 82, he deals with his time at NIDA, in the end saying he cannot confirm or deny if asbestos washers were used and he did not know if he handled them. Mr Rowles's submission is to the effect that in the affidavit, Mr Lloyd went into some detail about his employment and exposure and specifically dealt with NIDA. The clear inference is that he could not say that he had any exposure at OTC.
It is understandable in the light of this material that Telstra would expect Amaca's case against it to be conducted in the normal way. I make no comment and express no view about the quality and the weight of the evidence, except to say that I think Mr Rowles's submission, that the likelihood is that the application of Division 5 to these proceedings would be a futile exercise, is made good.
Mr Rowles further submits that it would be unfair to Telstra to go through the contributions assessment process. This is because clause 49(4) of the Regulation requires the contributions assessor to assume that each party is liable. This means that the contributions assessor must make an assessment that can or will result in an order that each party in the assessment pay money. In this case, that may be no small thing. This case, I am informed, has a potential for the plaintiff to recover $8-9 million in damages. Subject to some variations that the contributions assessor may apply, Telstra and NIDA combined, could be required to pay 35% of the plaintiff's damages. Ms Strathdee sought to play down those figures, both as to the value of the plaintiff's case and also as to the percentage of contribution the contributions assessor might determine against Telstra and NIDA. Whichever way one looks at it, the result of a contributions assessment is that Telstra is likely to be ordered to pay a substantial sum of money. It is likely to be ordered to do so in a case where the evidence against it, on one view, is weak and where, almost certainly, the cross-claim will have to be pursued in the Tribunal so that Telstra may recover its payment.
Amaca submits that that is no loss to Telstra because, under clause 53, if in the end it is successful, it can then as an "innocent defendant" recover its costs on an indemnity basis. I do not find that argument persuasive. The argument that Telstra loses nothing by going through the contributions assessment process is equally met by the argument that Amaca loses nothing by not going through it and by the matter going straight to the Tribunal for determination. When it comes to a question of balance between those two positions, I think one must favour Telstra's position because of the likelihood that the matter will finish up before the Tribunal in any event.
Amaca argues that the whole of the evidence is not yet in and that it is seeking further evidence from the Dust Diseases Board, from the OTC Veterans' Association, from other people who worked at OTC and that it will also seek discovery. I do not find those matters compelling. Amaca has had a long time to gather these materials and has not done so. This may be justifiably so because the plaintiff had not activated the case for some time. Nevertheless, the fact is that there is no evidence available at the moment, other than that which I have set out. There is no evidence before me as to the likelihood of any relevant material becoming available, nor as to its likely potency.
Further, if the claim is to be under the CRP, there remains an obligation and a continuing obligation on the parties to provide all relevant documents and information. Failure to do so can provide a ground for removing a matter from the CRP. If the matter were to remain in the CRP, Telstra would be required to file a reply by 19 June 2012. There is no evidence from Amaca as to when it is likely, if at all, to obtain further evidence in response to its ongoing enquiries. It seems to me unlikely that it could obtain evidence before 19 June 2012 in sufficient time, if at all, to serve it on Telstra and allow Telstra sufficient time to conduct its enquiries so that it could file a reply by 19 June 2012. The fact that Telstra may file an amended reply by 28 June 2012, in my view, does not advance the matter. As the matter now stands, Telstra is in a position of considerable prejudice should the matter remain in the CRP.
For these reasons, I consider that Division 5 should not apply to the proceedings against Telstra. It follows that it should not apply to the proceedings against NIDA. In the circumstances, it seems to me there is nothing to be gained by requiring the parties to mediate under Division 4 and, accordingly, I do not consider Division 4 should apply to the proceedings. That is not to say that the parties cannot mediate should they wish to mediate, but I do not think in the circumstances of this case, I should order the application of Division 4.
Orders
For these reasons, I dismiss the motion brought by Amaca on 11 May 2012 and the motion brought by Telstra on 16 May 2012.
I rule that Divisions 4 and 5 of Part 4 of the Dust Diseases Regulation 2007 not apply to these proceedings.
I propose the following orders as to costs:
(a) Telstra should pay Amaca's costs of Telstra's motion;
(b) Amaca should pay each party's costs of its motion.
I shall make those orders unless I receive submissions to the contrary. I shall list the matter on 7 June 2012 for the making of orders as to costs. If any party wishes to make submissions as to costs, written submissions should be provided to my Associate by 5 June 2012.
Decision last updated: 08 June 2012
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