(re Millard) Energy Australia v Power Technologies Pty Limited
[2009] NSWDDT 1
•6 February 2009
Dust Diseases Tribunal
of New South Wales
CITATION: (re Millard) Energy Australia v Power Technologies Pty Limited [2009] NSWDDT 1 PARTIES: Energy Australia
Power Technologies Pty LimitedMATTER NUMBER(S): 6124/2006/CC1 JUDGMENT OF: Kearns J CATCHWORDS: Claims Resolution Process - DUST DISEASES TRIBUNAL :- CRP
contributions assessment
whether defendants and cross defendants entitled to judgment in accordance with contributions assessment
nature of such judgment
whether in this case parties debarred from obtaining judgment by their conduct including waiver and estoppelLEGISLATION CITED: Dust Diseases Tribunal Regulation 2001
Dust Diseases Tribunal Regulation 2007
Law Reform (Miscellaneous Provisions) Act 1946
Civil Procedure Act 2006
Building & Construction Industry Security of Payment Act 1999CASES CITED: QBE Insurance (Australia) Ltd v Wallaby Grip Ltd & Ors [2007] NSWCA 43, (2006) 4 DDCR 331
Antoon Frans Broers v Australian Co-Operative Foods Limited & Ors [2008] NSWDDT 38
(re Millard) Eraring Energy v Power Technologies [2007] NSWDDT 24 [11] and [16]
Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850, 882-3DATES OF HEARING: 12 December 2008
DATE OF JUDGMENT:
6 February 2009LEGAL REPRESENTATIVES: Mr Squires, with leave, of Goldrick Farrell Mullan, appeared for the first and second cross claimants
Mr P Webb QC with Mr T Rowles, instructed by Carroll & O'Dea, appeared for the third cross defendant
JUDGMENT:
Background
1. The Dust Diseases Tribunal Regulation 2001 (the Regulation) was amended in 2005. The amendment with which this case is concerned was the introduction of the claims resolution process (CRP) to the processes of the Tribunal. There are essentially two aspects of the CRP, being contributions assessment and mediation. This case is concerned with the contributions assessment aspect of the CRP.
2. In 2007, the Regulation was repealed and replaced by the Dust Diseases Tribunal Regulation 2007. Argument proceeded on the basis that the earlier Regulation applies to this case. This is odd because the same parties agreed before O’Meally P on 6 September 2007 that the 2007 Regulation applied (T4.14-40). In the result it will not matter, but because the matter proceeded on the basis that the earlier Regulation applies, I shall base my decision on that. In practically all relevant respects, the 2007 Regulation has adopted the earlier Regulation and so, in these reasons, I have footnoted references to the clauses of the 2007 Regulation following references to clauses in the earlier Regulation.
3. Briefly, the CRP provides a system for determining disputes between defendants and cross defendants. A contributions assessor (CA) is appointed by the Registrar. It is the task of the CA to determine the contributions to be made by each of the defendants and cross defendants. It is an arbitrary process and the determination of the CA is binding for certain purposes. One of the purposes of the process is to rid the litigation of disputes between defendants and cross defendants so as to enable a plaintiff’s claim to be heard and determined more speedily and, hopefully, more cheaply. Whilst for certain purposes the determination of the CA is binding, it is not binding if a defendant or cross defendant disputes the assessment of the CA and wishes to have the matter determined judicially.
4. In this case, there has been a contributions assessment and Power Technologies Pty Limited (PT) disputes the assessment of the CA. Energy Australia (EA) and Eraring Energy (EE) seek that judgments be entered in accordance with the determination of the CA.
The facts
5. On 26 May 2006, the plaintiff commenced proceedings against EA and EE. The proceedings and consequent cross claims comprise claims in respect of an asbestos related condition within the meaning of clause 12 2007 cl 14 of the Regulation. The plaintiff sought damages for tortiously caused injury resulting from exposure to asbestos.
6. On 13 October 2006, EA and EE commenced cross claims. They were separate cross claims, but they sought relief against the same cross defendants. Those cross defendants were:
Babcock International Limited (BI);
Babcock Australia Pty Limited (BA);
PT;
AWI Holdings Pty Limited (AWI);
Wallaby Grip Limited (WG);
Wallaby Grip (BAE) Pty Limited (in liquidation) (WGBAE); and
Amaca Pty Limited (Amaca).
Relief was sought against each cross defendant under s5(1)(a) of the Law Reform (Miscellaneous Provisions) Act 1946 (LR(MP) Act) on the basis that each cross defendant was a tortfeasor which would, if sued, have been found liable to the plaintiff.
7. On 27 November 2006, the Registrar appointed Mr Dean Letcher QC as CA pursuant to clause 42(1) 2007 cl 49(1) of the Regulation. Mr Letcher QC assessed contributions as follows:
EA 9%;
EE 23.5%;
BI 12.5%;
BA 9%;
PT 7.5%;
AWI 11%;
WG 8.5%;
WGBAE 2.5%; and
Amaca 16.5%.
8. On 12 February 2007, there was an Agreement as to Judgment signed on behalf of all parties with the exception of PT. Judgment was entered against EA and EE. Judgments were entered against each of the cross defendants, except PT, in amounts representing the percentage contribution that had been assessed by Mr Letcher QC. The result was that the plaintiff received his judgment sum in full, receiving appropriate portions from each of the parties except PT. EA and EE, in making their payments to the plaintiff, included an amount to represent the percentage contribution of PT as assessed by Mr Letcher QC.
9. On 26 February 2007, EA and EE filed a notice of motion seeking an order that PT pay to them the sum of $18,375, being the amount represented by a 7.5% contribution to the plaintiff’s judgment sum.
10. On 5 September 2007, EA and EE filed an amended notice of motion. They sought orders pursuant to s 90 of the Civil Procedure Act 2006 (CP Act) that PT pay to EA the sum of $5,512.50 and to EE the sum of $12,862.50. They also sought orders in respect of interest and other consequential orders.
11. When the motion came before the Tribunal for determination on 6 September 2007, EA and EE did not seek the entry of judgment. They sought an order for payment pursuant to s90 of the CP Act. O’Meally P made orders accordingly. He ordered PT to pay EA the sum of $5,512.50 plus interest and to pay EE the sum of $12,862.50 plus interest. Those amounts have been paid.
12. On 13 March 2008, PT filed a notice of motion seeking orders that the cross claims of EA and EE against it be listed for hearing and determination.
13. On 15 April 2008, O’Meally P dismissed PT’s notice of motion, but he indicated that EA’s and EE’s cross claims should proceed in the ordinary way and he made orders in respect of the prosecution of the cross claims.
14. On 21 April 2008, PT filed defences to EA’s and EE’s cross claims against it. Essentially, PT denied that it had any liability to EA or EE or would have had any liability to the plaintiff if sued by him.
15. On 28 July 2008, PT administered interrogatories. They were answered by EA and EE in late September / early October 2008.
16. On 7 November 2008, EA and EE filed notices of motion. It is those notices of motion that are the subject of the present dispute. By those notices of motion, EA and EE seek orders that judgments be entered in their favour against PT. Alternatively they seek leave to discontinue their cross claims.
17. The position of EA and EE is fairly clear. As a result of the order of O’Meally P on 6 September 2007, they have obtained payment from PT. That satisfies their respective positions and they have no interest in prosecuting litigation to establish their entitlement to something they have already obtained. Hence, they seek judgments representing what has occurred or, alternatively, leave to discontinue.
The legislation
18. Where defendants (and as the Regulation does, I use that term to include cross defendants) have not agreed on apportionment, the Registrar is to refer the matter to a CA for determination as to apportionment (clause 42(1) 2007 cl 49(1)). The CA is to determine the matter on certain bases, including:
- that each defendant is liable;
- the plaintiff’s documented particulars and the defendant’s documented replies;
- standard presumptions as to apportionment (clause 42(3) 2007 cl 49(4)).
The standard presumptions consist of a percentage band within which the assessment is to be made and which band applies is determined by how a defendant is categorised and by the time frame during which the plaintiff was exposed to asbestos.
19. Clause 42(5) 2007 cl 49(8) provides:
“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.”
This clause envisages that, despite the finality of the CA’s determination, the Tribunal may determine a dispute between defendants as to apportionment. How that dispute gets before the Tribunal is not spelt out and is the cause of the ongoing saga between the parties to this dispute.
20. Clause 44(1) 2007 cl 52(1) provides:
“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.”
This clause, again, envisages that there is a limit to the conclusiveness of the CA’s determination. The conclusiveness is for certain expressed purposes, namely “for the purposes of settlement, or determination by the Tribunal, of the plaintiff’s claim and payment of the plaintiff’s damages”.
21. The limits of the conclusiveness of the CA’s determination are again shown by the following sub-clause of the Regulation, Clause 44(2) 2007 cl 53(2), which provides:
“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.”
Up to this point, in my view, it is clear that the Tribunal may determine a dispute as to apportionment or contribution in the usual way and without regard for what the CA has determined. That still leaves the question as to how the dispute gets before the Tribunal. It is not necessary to consider the remaining sub-clauses of clause 44 2007 cl 52(3), (6), (7), but they confirm the view I have thus far expressed.
Analysis
22. The question that arises here is whether EA and EE are entitled to judgment in accordance with the determination of the CA. The Regulation does not deal with the machinery of how a CA’s determination might be enforced. No case has had to face the issue definitively. There have been pronouncements which provide guidance and to those I turn.
23. The matter was dealt with by Handley AJA in QBE Insurance (Australia) Ltd v Wallaby Grip Ltd & Ors [2007] NSWCA 43, (2006) 4 DDCR 331. That case called for appellate correction because the Court of Appeal took the view that in exercising a discretion, O’Meally P had taken irrelevant material into account and had not taken relevant material into account. The ratio decidendi was limited to that issue.
24. In the course of his reasons, Handley AJA made observations about the process of enforcement of a CA’s determination. He wrote at [36-42]:
36 In my judgment the Tribunal is entitled and bound to give effect to such a determination by entering appropriate verdicts and judgments. Since the defendants have satisfied the consent judgment in favour of the plaintiff they would be entitled to judgments against each other and the cross-defendants for the contributions determined by the Assessor.
37 If the opponents, having satisfied any such judgment sought to have their liability determined judicially they could find themselves in an unusual position. If the defendants were content with the determination they would have no interest, and perhaps no standing, to pursue cross claims against the opponents.
38 The opponents although nominally in the position of defendants would in reality be plaintiffs seeking a refund of contribution they had overpaid.
39 They would not be within s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946. The word "liable" where it first appears in that provision means liable by judgment: Bitumen & Oil Refineries (1955) 92 CLR 200, 208, 212; or settlement: ibid at 212; Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213, 219. The opponents have not been held liable to the plaintiff by judicial decision or consent and would have no standing to seek a judicial determination of their liability under s 5(1)(c).
40 Their remedy may be a claim or cross claim in the Tribunal (cl 42(5)) for restitution for having discharged, by compulsion of law, an obligation for which the defendants on the record were liable. They would have the onus of proving that the defendants should bear a greater share of responsibility than that determined by the Assessor. If they succeeded the defendants would be ordered to refund the difference between the amounts paid by the opponents and their contributions as judicially determined. These views are tentative because the matter was not fully argued.
…
42 … The Division establishes a procedure for the summary determination of such claims, on an avowedly rough and ready basis, which allows disputes as to liability and quantum to be determined judicially in due course when any necessary adjustments can be made…
25. Mr Webb QC, who appeared with Mr Rowles for PT, submitted that what Handley AJA wrote was not even obiter. Whether it was obiter, or not even obiter, does not matter. It was certainly not part of the ratio decidendi and is not binding. Mr Webb QC submitted that what his Honour wrote was wrong. I was initially of that view, but having had time to reflect further since reserving, I have come to a different view. I think what Handley AJA wrote is correct.
26. The Regulation provides for the binding effect and conclusiveness of the CA’s determination for certain purposes. That cannot be given effect unless there is some provision for enforcement. Unfortunately, the Regulation itself in setting up this regime has not expressed the mechanism for enforcement. That it has not done so surely cannot mean that there is no method of enforcement such that the whole exercise of a contributions assessment may be rendered useless because defendants decide they do not like the result and will not abide by it. It may be taken, therefore, in my view, that the intent of this Regulation is that determination by a CA may be enforced and, consequently, it may also be taken, in my view, that if enforcement was intended, it would be through the process of judgment of the Tribunal. There is nothing to prevent that process and, in the interests of making the system work, everything to support it.
27. The view I have taken is consistent with and supported by what Curtis J wrote in Antoon Frans Broers v Australian Co-Operative Foods Limited and Ors [2008] NSWDDT 38. His reference to the Building & Construction Industry Security of Payment Act 1999 (the Building Act) is apposite. There is a difference in that the Building Act in Part 3 spells out in a more detailed manner than does the Regulation the method and process for securing the interim judgment. In my view, however, that is not a distinction that denies the availability of a judgment in accordance with a contributions assessment. The Building Act provides a statutory construct to enable a sub-contractor to recover payment pending a final hearing of the merits. Likewise, in my view, the Regulation here provides a regulatory construct to facilitate early determination, on an interim basis, of disputes between defendants. It removes an obstacle to the speedy determination of a plaintiff’s claim, and later the ultimate liability of defendants may be determined following a hearing on the merits.
28. The view I have taken also obtains support from O’Meally P in (re Millard) Eraring Energy v Power Technologies [2007] NSWDDT 24 [11] and [16] where his Honour thought he was bound by the observations of Handley AJA, those observations being an expression of opinion in a considered judgment of the Court of Appeal.
29. On this process of reasoning, EA and EE would be entitled to judgment in accordance with the CA’s determination. It is but an interim judgment or a judgment for a limited purpose and a final judgment would await a hearing on the merits. The effect of this might be to throw an onus on PT to prove the case rather than, as might be expected, EA and EE having the onus. I do not consider that to be any reason to doubt the views I have expressed. This is for a number of reasons:
- it would be unusual that the result of a claim under s5(1)(a) of the LR(MP) Act in the Tribunal hinged on who carried the onus;
- the structure and language of the Regulation makes it fairly clear that the one who wants to dispute the determination of the CA should carry the onus, for example, clause 44(1) 2007 cl 52(1) provides that the determination is binding on the defendants for certain purposes and clause 44(3) 2007 cl 52(3) puts a costs penalty on a defendant who does not materially improve his position. It is the one who disputes who wants to materially improve his position and there is no incongruity in requiring him to carry the onus to do so;
- if a determination has been made by a CA and carried in to effect on an interim basis by the defendants and one or more of the defendants wants to improve its position, it would be incongruous to require a defendant, who is prepared to accept the assessment or has no interest in undertaking litigation, to pursue litigation to satisfy somebody else’s interest. Indeed, as Handley AJA tentatively suggested in [37] of QBE, he may have no standing to do so.
30. Mr Webb QC argued that EA and EE were not entitled to judgments because they had not been given permission to seek that relief. At first, this argument seemed to be put in support of a submission that I should not hear this application. I understood it to go further and in support of the submission that EA and EE were not entitled to judgment. I am against that argument. In my view, EA and EE do not need leave to bring the application before the Tribunal and have it argued and, if they did, I would grant it. This would not be contrary to any ruling earlier made by O’Meally P. If the matter can be brought and argued, it can then be determined on its merits.
31. It was also argued that the application for judgment had been eschewed in earlier proceedings by EA and EE. The argument is based on the application by EA and EE before O’Meally P when EA and EE sought relief under s90 of the CP Act. The section entitled the Tribunal “to give such judgment or make such order” as the nature of the case required. It was thought sufficient for the purposes of EA and EE that they obtain an order for payment and they did not see it as necessary to obtain judgment. EA and EE simply pursued one course that was available to them (T5-6). I do not think this means they eschewed any right that they had to judgment in the sense of abandoning for all time any such right. I note that the Notice of Motion simply sought orders for payment.
32. It was also argued that EA and EE were not entitled to judgment absent of some determination of the cross claims on the evidence. This argument does not deal with the two concepts of judgment in the context of this case. There is judgment that determines rights as between these parties pursuant to s5(1)(a) of the LR(MP) Act. This might be called a final judgment. That judgment requires determination of the cross claims on the evidence. However, there is also judgment determining rights as between these parties pursuant to the contributions assessment. That might be called an interim judgment. It is that judgment that Handley AJA is referring to in [36] of QBE. That judgment does not require any determination of the cross claims on the merits.
33. It was submitted that EA and EE were not entitled to relief because of waiver and estoppel. I do not accept that this is so.
34. Waiver requires an election between rights inconsistent with one another - Kammins Ballrooms Co Ltd v Zenith Investments (Torquay)Ltd [1971] AC 850, 882-3. EA and EE have not made any such election in this case. Their decision to seek an order for payment under s90 of the CP Act was not an election between rights that were inconsistent with one another. Their answering of interrogatories, likewise, was not a waiver. The interrogatories were the subject of an order of the Tribunal on PT’s motion that the cross claims of EA and EE be listed for hearing. That motion was dismissed, but orders were made for the conduct of the cross claims. The orders were not consented to. That is evident from the Short Minutes of Order where the words “BY CONSENT” have been deleted. O’Meally P noted that the form of the proposed orders was not opposed. That does not mean that the orders were consented to. It merely indicates that counsel took the sensible position that if the cross claims were to proceed, they were appropriate orders. EA’s and EE’s answers to interrogatories were done not by choice, but by court order.
35. For much the same reason, I do not think there is an estoppel. The conduct of EA and EE in seeking judgment now is not inconsistent with its earlier conduct in not seeking judgment. The right to an order for payment and the right to judgment were not inconsistent rights. EA and EE could choose one without abandoning the other. Likewise the choosing of one did not, in my view, amount to conduct or a representation that they would not choose the other later if they had to. Further, there is no indication that PT has altered its position by reason of any conduct or representation of EA and EE. On the contrary, PT has maintained its position all along and that it is that it is not liable to EA and EE and is not required to pay it anything. That it has made payments to EA and EE is not because it relied on any conduct or representation of EA and EE, but because there was an order for it to do so. Again, the answering of the interrogatories is not an act or representation that amounts to an estoppel.
36. For reasons I have expressed, I consider EA and EE are entitled to relief they seek and are entitled to judgments accordingly.
Orders37. Because of the decision I have come to, it is not necessary to consider the applications for discontinuance by EA and EE.
38. I order the parties to bring in short minutes of order to reflect the decision I have made and for that purpose, I list the matter for mention on Friday, 13 February 2009.
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