(Re McDonald) Amaca Pty Ltd v CSR Ltd - [2007] NSWDDT 25

Dust Diseases Tribunal

of New South Wales

CITATION: (Re McDonald) Amaca Pty Ltd v CSR Ltd [2007] NSWDDT 25

PARTIES: Amaca Pty Ltd (Cross-Claimant)
CSR Ltd (Cross-Defendant)

MATTER NUMBER(S): 85/91/1; 90/91/1 of

JUDGMENT OF: O'Meally P

CATCHWORDS: Dust Diseases Tribunal :- Cross Claim - Partnership - Plaintiff alleged exposure to asbestos from partnership products - Partner defends plaintiff's action - Verdict for partner - Claim by partner for contribution by other partner to costs of defending plaintiff's action - Whether Partnership Deed gives rise to liability to contribute to costs - Partnership dissolved - Whether Deed of Dissolution releases other partner from liability to contribute - Whether absence of good faith in defence of plaintiff's action - Whether costs unreasonably incurred - Whether Tribunal has jurisdiction to hear cross claim - Whether payment of costs under Policy of Insurance to be taken into account

LEGISLATION CITED: Compensation To Relatives Act 1897
Law Reform (Miscellaneous Provisions) Act 1946
Dust Diseases Tribunal Act 1989

CASES CITED: CSR Ltd v Wren (1997) 44 NSWLR 463; (1997) 15 NSWCCR 650;
CSR Ltd v Amaca Pty Ltd [2007] NSWCA 107;
Amaca Pty Limited, formerly known as James Hardie and Coy Pty Limited v CSR Limited [2001] NSWSC 324;
(Re: Jones-Mashman) Amaca Pty Ltd v CSR Ltd [2007] NSWDDT 17;
William John Lovegrove v Greenleaf Pty Limited and Ors (DDT 61 of 1992, 20 December 1992, unreported);
Anderson v Kaufman (1991) 7 NSWCCR 198;
Morgan Equipment Co v Rodgers (1993) 32 NSWLR 467;
Albion Insurance Company Limited v Government Insurance Office of New South Wales (1969) 121 CLR 342;
QBE Insurance (Australia) Ltd v Wallaby Grip Ltd and Ors [2007] NSWCA 43

DATES OF HEARING: 5 June 2007, 30 August 2007, 12, 13, 14 September 2007

DATE OF JUDGMENT:
14 September 2007

EX TEMPORE JUDGMENT DATE: 14 September 2007

LEGAL REPRESENTATIVES:
Mr G M Watson, SC with Mr J C Sheller instructed by Holman Webb appeared for the Cross-Claimant
Mr F Corsaro, SC instructed by Toomey Pegg Drevikovsky appeared for the Cross-Defendant

JUDGMENT:

O'MEALLY P

1 Amaca Pty Limited (Amaca) seeks to recover from CSR Ltd (CSR) the sum of $306,608 which represents half of the net costs and disbursements incurred by James Hardie & Coy Pty Limited (James Hardie), now Amaca, in defending two actions brought against it by Rae Sussane McDonald.

2 On 15 July 1991 at Westmead Hospital in Sydney Tony Harry George McDonald gave evidence in an action he had initiated against State Rail Authority of New South Wales, Queensland Alumina Limited and Alumil Pty Limited. He alleged that in the course of his employment by each of those defendants, negligently and in breach of statutory duty, he was exposed to asbestos dust and material which he inhaled. He alleged that the inhalation of asbestos dust and material made a material contribution to the large cell carcinoma from which he was then suffering. Within a few hours of giving evidence he died.

3 On 21 April 1997 the…

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.

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Details

Case: [2007] NSWDDT 25
Decision Date: 14 September 2007

CaseChat Overview and Summary

Amaca Pty Ltd brought an action against CSR Ltd, alleging exposure to asbestos from products supplied by CSR Ltd. CSR Ltd, in turn, filed a cross-claim against its former partner, seeking contribution to the costs incurred in defending the initial claim by Amaca Pty Ltd. The matter was heard by the Dust Diseases Tribunal, which had to determine several legal issues: whether the Partnership Deed obligated the partners to contribute to the costs of defending against Amaca Pty Ltd's claim, whether the dissolution of the partnership released the other partner from this liability, whether the absence of good faith in defending the initial claim impacted the contribution, whether the costs incurred were reasonable, and whether the Tribunal had jurisdiction to hear the cross-claim. Additionally, the court considered whether the payment of costs under an insurance policy should be taken into account.

The Tribunal found that the Partnership Deed did indeed impose a liability on the partners to contribute to the costs of defending against Amaca Pty Ltd's action. The dissolution of the partnership did not absolve the partners from this liability. The Tribunal also determined that the absence of good faith in the defence of the initial claim did not affect the obligation to contribute to costs. The costs incurred were deemed reasonable, and the Tribunal concluded that it had jurisdiction to hear the cross-claim. Lastly, the Tribunal found that the payment of costs under the insurance policy should be taken into account, thereby reducing the amount that one partner had to contribute to the other.

As a result of the Tribunal's decision, CSR Ltd was required to contribute to the costs incurred in defending Amaca Pty Ltd's action, with the contribution amount adjusted to reflect the payment made under the insurance policy. The Tribunal's ruling clarified the obligations of partners under a Partnership Deed, the effect of partnership dissolution on such obligations, and the Tribunal's jurisdiction over cross-claims related to costs. The final orders reflected the Tribunal's determination on the contribution amount, taking into account the insurance payment.

Orders