(Re Mauler) Amaca Pty Limited v CSR Limited

[2009] NSWDDT 26

Dust Diseases Tribunal

of New South Wales

CITATION:	(Re Mauler) Amaca Pty Limited v CSR Limited [2009] NSWDDT 26
PARTIES:	Amaca Pty Limited (cross claimant) CSR Limited (cross defendant)
MATTER NUMBER(S):	63/1 of 2009
JUDGMENT OF:	Curtis J at 1
CATCHWORDS:	Claims Resolution Process - DUST DISEASES TRIBUNAL :- Cross claim Whether reg52(1) of the Dust Diseases Tribunal Regulation 2007 enables a cross claimant to obtain judgment against a cross defendant in accordance with a determination as to apportionment.
LEGISLATION CITED:	reg 49 Dust Diseases Tribunal Regulation 2007 reg 52(1) Dust Diseases Tribunal Regulation 2007
CASES CITED:	Antoon Frans Broers v Australian Co Operative Foods Ltd & Ors [2008] NSWDDT 38; (Re Millard) Eraring Energy & Anor v Power Technologies Pty Ltd [2007] NSWDDT 24, (Re Stavar) Amaca Pty Ltd v CSR Ltd [2008] NSWDDT 29.
DATES OF HEARING:	26 October 2009
EX TEMPORE JUDGMENT DATE:	26 October 2009
LEGAL REPRESENTATIVES:	Mr J C Sheller instructed by Holman Webb Lawyers Brisbane appeared for the Cross-Claimant Mr D M Jay instructed by Colin Biggers and Paisley appeared for the 1st Cross-Defendant

JUDGMENT:

Dust Diseases Tribunal of New South Wales

Matter Number 63 of 2009/1

(Re: Nola Kay Mauler)

Amaca Pty Limited

v

CSR Limited

26 October 2009

CURTIS J

JUDGMENT

1. CSR Limited (CSR) is a cross defendant to a claim for contribution brought by Amaca Pty Limited (Amaca) in respect of its liability to a plaintiff, Mrs Nola Kay Mauler.

2. On 14 July 2009, Mr B A Odling, a contributions assessor appointed pursuant to reg49 of the Dust Diseases Tribunal Regulation 2007, assessed the contribution of CSR at 39.5 per cent of the plaintiff's damages.

3. The principal proceedings between Mrs Mauler and Amaca were settled for $580,000 inclusive of costs, and judgment was entered against Amaca on 10 August 2009. Amaca forwarded a cheque in satisfaction of that judgment sum on 2 October 2009.

4. Amaca now moves the Tribunal for orders pursuant to reg52(1) of the Dust Diseases Tribunal Regulation 2007 and cl 4(5) of Schedule 1 to the Dust Diseases Tribunal (Standard Presumptions-Apportionment) Order 2007 for the entry of judgment against CSR, in the sum of $229,100, being 39.5 per cent of the plaintiff’s damages, together with interest calculated pursuant to the Civil Procedure Act. CSR contends that the Dust Diseases Tribunal Regulation 2007 does not authorise the entry of such a judgment.

5. The relevant provisions are as follows:

49 Determination of apportionment failing agreement

(1) If by the end of the period within which the defendants are required to reach agreement as to apportionment an apportionment statement setting out details of the apportionment of liability that the defendants have agreed to has not been filed with the Registrar, the Registrar is to refer the matter to a Contributions Assessor for determination on the next business day following the end of that period.

…

(4) The Contributions Assessor to whom a matter is referred is to determine the contribution that each defendant is liable to make and is to make that determination on the assumption that the defendants are liable and solely on the basis of:

(a) the plaintiff’s statement of particulars and the defendants’ replies on the claim, and

(b) standard presumptions as to apportionment determined by the Minister for the purposes of this clause by order published in the Gazette.

…

(8) A determination of a Contributions Assessor under this Division cannot be challenged, reviewed, quashed or called into question before any court of law or administrative review body in any proceedings. This subclause does not prevent the subsequent taking, or determination by the Tribunal, of a dispute between defendants as to apportionment.

…

52 Effect of agreement or determination as to apportionment

(1) An agreement or determination as to apportionment among defendants for the purposes of this Division is conclusively binding on the defendants for the purposes of the settlement, or determination by the Tribunal, of the plaintiff’s claim and payment of the plaintiff’s damages.

(2) The agreement or determination is not binding for the purposes of the subsequent taking, or determination by the Tribunal, of a dispute between defendants

…

Dust Diseases Tribunal (Standard Presumptions) Order 2007 – Schedule 1

4 Methodology

(1) The following is a brief summary of the procedures which generally apply in relation to apportionment…

…

(5) The apportionment is thereby determined for the claimant’s case by the Contributions Assessor. Where the apportionment is determined by the Contributions Assessor while the claimant’s proceedings are still pending, judgments as to apportionment are to automatically follow the final determination by entry of judgment … in favour of the claimant (see clause 52 (1) of the Dust Diseases Tribunal Regulation 2007)… Any defendant has a right to seek a review of the Contributions Assessor’s apportionment by a formal hearing and determination by the DDT of the question of apportionment, but any such hearing will not proceed until after the conclusion of the claimant’s claim (either by settlement or entry of judgment after hearing) (see clause 52 (2) of the Dust Diseases Tribunal Regulation 2007). (Emphasis added).

6. Amaca's entitlement to such an order is consonant with determinations of this Tribunal in Antoon Frans Broers v Australian Co-Operative Foods Ltd & Ors [2008] NSWDDT 38; (Re Millard) Eraring Energy & Anor v Power Technologies Pty Ltd [2007] NSWDDT 24, and (Re Stavar) Amaca Pty Ltd v CSR Ltd [2008] NSWDDT 29.

7. Mr Jay, for CSR, conscious of these decisions, submits that they are in error. He has prepared an outline of commendable clarity in which he presents his argument. I reproduce his submissions:

CSR submits that once the plaintiff’s claim was settled and paid, regulation 52(1) of the Dust Diseases Tribunal Regulation 2007 ( the Regulation ) is not engaged. Regulation 52(1) applies only in respect of the plaintiff’s claim and its claim for damages – neither reg 52 nor Pt 4 define the plaintiff to include a cross claimant (cf Pt 6). The plaintiff’s claim has been satisfied.

Regulation 52(2) provides:

“(2) The agreement or determination is not binding for the purposes of the subsequent taking, or determination by the Tribunal, of a dispute between defendants as to apportionment”.

That is, once the plaintiff’s claim has been satisfied CSR is entitled to dispute its liability.

That construction is supported by the second reading speech to the Dust Diseases Tribunal (Claims Resolution) Bill which introduced clause 44 of the Dust Diseases Tribunal Regulation 2005 and which is now cl 52 of the Regulations.

The Regulations also provide a scheme for CSR to dispute liability and for that dispute to be determined by the Tribunal: Regulations 52(3). If judgment is entered against CSR on this application, in effect on a summary basis, the only circumstances in which CSR can “dispute” the claim and seek to recover it would be to file a new suit seeking restitution. Justice Handley made that observation in obiter comments in QBE Insurance (Australia) Ltd v Wallaby Grip Ltd [2007] NSWCA 43 at [40]. Justice Handley emphasised that those observations were “tentative because the matter was not fully argued”.

To follow that course raises a number of distinct problems:

Amaca’s cross-claim serves no purpose because none of the allegations in it are judicially considered or tested.

A suit seeking restitution is an equitable remedy. Whether or not the Tribunal has equitable powers has been the subject of differing views in the Tribunal. Judge Curtis held that the Tribunal did have equitable powers in Sarkem Pty Ltd v CSR Ltd [2008] NSWDDT 39 at [17] whereas President O’Meally took a differing view in (Re Jones-Mashman) Amaca Pty Ltd v CSR Ltd (No 2) [2009] NSWDDT 24 at [23]. In coming to that conclusion President O’Meally was guided by the obiter comments of Young CJ in Eq in (Re Doughan) CSR Ltd v Amaca Pty Ltd [2007] NSWCA 107 at [20].

In the event that the Tribunal did have an equitable jurisdiction (which is not admitted) it is possible that it would not seek to exercise that jurisdiction for the reasons given by Judge Curtis in Sarkem.

In the event that the Tribunal did not have an equitable jurisdiction or elected not to exercise that jurisdiction CSR would be required to commence fresh proceedings seeking restitution in the Supreme Court. By being the applicant/plaintiff the onus of proof has shifted to it in circumstances where none of the plaintiff’s evidence or witnesses has been tested and where it had no input into the quantum of settlement or information as to how the settlement sum is comprised. That scenario gives rise to a distinct denial of natural justice.

If the proceedings are pursued in the Supreme Court then regulation 52, and specifically the rights afforded to the cross-defendant under sub-regulations 52(2), 52(3) and 52(4) cannot be exercised by the Supreme Court because they are powers vested specifically in the Tribunal.

It is submitted that Justice Handley’s obiter observations in QBE Insurance regarding the right of a cross-claimant to immediately enter judgment with a right to the cross-defendant to then seek recovery by a claim for restitution are incorrect and should not be followed or applied.

In the circumstances of this case both of the objects of the Regulations identified by Justice Handley have already been achieved, viz:

Early resolution of the plaintiff’s claim; and

Payment of the plaintiff’s claim:

In any event, QBE Insurance is distinguishable from this case because the defendants, including the cross defendants, had the opportunity to cross-examine the plaintiff. Only then was judgment against the defendants entered by consent.

The better construction is, it is submitted, that once the plaintiff’s claim is resolved and paid that Amaca is free to enforce its rights as against the cross-defendants by pursuing its cross claim. On that construction all of the sub-regulations of regulation 52 have work to do. Further, the purpose of the claims resolution process, which is, in part, to facilitate resolution of the plaintiff’s claim is still satisfied: see QBE Insurance at [15].

Dust Diseases Tribunal (Standard Presumptions) Order Clause 4(5)

The construction of this clause is consistent with CSR’s proposed construction of Regulation 52. The clause specifically provides that a defendant has a right to seek a review of the apportionment by a formal hearing and determination by the DDT of the question of apportionment, and the hearing can proceed “after the conclusion of the claimant’s claim (either by settlement or entry of judgment after hearing)”. There has been entry of judgment in favour of the plaintiff and so CSR is now entitled to dispute the apportionment and quantum.

It would be inconsistent with the intention of the Regulations and Apportionment Order to enter judgment against CSR without it being able to exercise those rights.

8. Notwithstanding these arguments, I am not persuaded that the previous rulings of the Tribunal concerning the operation of the Regulation are wrong.

9. There is to be judgment against CSR in the sum of $229,100 together with interest on that sum calculated in accordance with the Civil Procedure Act 2005. The parties should prepare short minutes of order.

10. CSR is to pay the costs of Amaca.

11. Notwithstanding CSR’s statement of intention to appeal, I decline to order a stay of this judgment. To my mind the law is sufficiently clear, and the prospects of a successful appeal are not high. Amaca is entitled immediately to the fruits of its judgment.

Mr J C Sheller instructed by Holman Webb Lawyers Brisbane appeared for the Cross-Claimant

Mr D M Jay instructed by Colin Biggers and Paisley appeared for the 1st Cross-Defendant