(re Millard) Eraring Energy and Anor v Power Technologies

[2007] NSWDDT 24

Dust Diseases Tribunal

of New South Wales

CITATION:	(re Millard) Eraring Energy and Anor v Power Technologies [2007] NSWDDT 24
PARTIES:	Eraring Energy and Energy Australia (Cross-Claimant) Power Technologies Pty Ltd (Cross-Defendant)
MATTER NUMBER(S):	6124/06/2 of
JUDGMENT OF:	O'Meally P
CATCHWORDS:	Dust Diseases Tribunal :- Cross claim by Defendants - Contributions Assessment - One cross defendant disputes liability to contribute to plaintiff's damages - Defendants pay proportion assessed by Contributions Assessor - Application that cross defendant pay proportion assessed to defendants - Cross defendant ordered to pay proprotion assessed
LEGISLATION CITED:	Civil Procedure Act 2005 Law Reform (Miscellaneous Provisions) Act 1946 Dust Diseases Tribunal Regulation 2001 Dust Diseases Tribunal Regulation 2007 Dust Diseases Tribunal Act 1989
CASES CITED:	QBE (Australia) Ltd v Wallaby Grip and Ors [2007] NSWCA
DATES OF HEARING:	6 September 2007
DATE OF JUDGMENT:	6 September 2007
EX TEMPORE JUDGMENT DATE:	6 September 2007
LEGAL REPRESENTATIVES:	Mr J C Sheller instructed by Goldrick Farrell Mullan appeared for the Cross-Claimant Mr T M Rowles instructed by Carroll & O'Dea appeared for the Cross-Defendant

JUDGMENT:

RULING

1 This is a notice of motion brought by Energy Australia (EA) and Eraring Energy (EE) seeking orders pursuant to s 90 of the Civil Procedure Act 2005 (the CP Act) that Power Technologies Pty Ltd (Power Technologies) pay to EA the sum of $5,512.50 and to EE the sum of $12,862.50 together with interest in each case from 20 March 2007.

2 On 26 May 2006 one David Walter Millard issued a statement of claim against EA and EE alleging that in the course of his employment by their predecessors he was exposed to and inhaled asbestos dust and material as a result of which he contracted mesothelioma for which he claimed damages.

3 On 13 October 2006 EE and EA issued cross-claims against Babcock International Ltd, Babcock Australia Pty Ltd, Power Technologies, AWI Holdings Pty Ltd, Wallaby Grip Ltd, Wallaby Grip (BAE) Pty Ltd and Amaca Pty Ltd, seeking contribution under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946. Pursuant to the Dust Diseases Regulation Tribunal 2001, then in force, the Registrar appointed Mr Letcher of Queen's Counsel as Contributions Assessor. On 21 December 2006 Mr Letcher made his assessment, by the terms of which EA was held liable to contribute to the plaintiff's damages as to 9 per cent and EE as to 23.5 per cent. The contributions of the cross-defendants were assessed to be:

Babcock International Ltd 12.5%
Babcock Australia Pty Ltd 9.0%
Power Technologies 7.5%
AWI Holdings Pty Ltd 11.0%
Wallaby Grip Ltd 8.5%
Wallaby Grip (BAE) Pty Ltd 2.5%
Amaca Pty Ltd 16.5%

4 On 12 February 2007 the plaintiff's claim was settled. Also settled were the cross-claims against each cross-defendant save for the third, Power Technologies.

5 EA has paid to the plaintiff the sum of $30,502.50 and EE has paid to the plaintiff the sum of $77,297.50. These amounts represent the percentage of the plaintiff’s judgment which the contributions assessor determined EA and EE should pay, together with the percentage assigned to Power Technologies, that is, 7.5 %. The other cross-defendants have also paid to the plaintiff various sums of money representing the percentage of the contribution found by Mr Letcher, QC. Babcock International Ltd has paid $30,625.00, Babcock Australia Pty Ltd $12,250.00, AWI Holdings Pty Ltd $26,950.00, Wallaby Grip Ltd $20,825.00, Wallaby Grip (BAE) Pty Ltd $6,125.00 and Amaca Pty Ltd $40,425.00. As noted, Power Technologies has paid nothing, and relying on the Dust Diseases Tribunal Regulation 2007, EA and EE now seek orders pursuant to the CP Act, that it pay to them the sums referred to, together with interest. The 2007 Regulation repeats, in all material respects, the provisions of the Dust Diseases Tribunal Regulation 2001.

6 Power Technologies says there is no power in the Regulation to authorise the order sought by EA and EE and therefore no order may be made under s 90 of the CP Act.

7 Div 5 of the Dust Diseases Tribunal Regulation 2007 continues the arbitrary method of apportionment between defendants and cross-defendants established by the Regulation of 2001. The object of the Regulation was to achieve early resolution of plaintiffs’ claims and to prevent plaintiffs’ claims being held up by reason of disputes between defendants and cross-defendants.

8 Cl 49(8) of the Regulation is in these terms:

(8) A determination of the 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.
Cl 52 of the Regulation relevantly provides:
(1) An agreement for 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 as to apportionment.

9 The Regulation was considered in the Court of Appeal Division of the Supreme Court in QBE (Australia) Ltd v Wallaby Grip and Ors [2007] NSWCA 43.

10 Speaking of Div 5 Handley AJA wrote:

[15] Division 5 establishes a procedure for the summary but provisional determination of contribution claims in order to facilitate settlement of the plaintiff's claim and the satisfaction of any judgment he [sic] may obtain by judicial decision or settlement. A defendant or cross-defendant who is dissatisfied with the summary determination can pursue its strict legal rights and seek a more favourable determination at a trial but will be subject to significant cost sanctions if a substantially better result is not achieved. Meanwhile the summary determination is immediately enforceable . A clear purpose of the scheme is to prevent the final determination of the plaintiff's claim being delayed by contribution disputes. (Emphasis added)

11 This expression of opinion in a considered judgment of the Court of Appeal is contrary to the submission of Mr Rowles, who appears for Power Technologies, that there is no power in the Regulation to make an order of the type sought by EE and EA.

12 The manner in which a determination becomes immediately enforceable was referred to by Handley AJA in QBE:

[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.

13 In [42] Handley AJA observed that the procedure for the summary determination of a claim of this nature was on a "rough and ready basis”, but that it allowed disputes concerning liability and quantum to be determined judicially in due course, at which time necessary adjustments could be made.

14 An anomalous situation could arise by reason of the regulation. EA and EE have issued a cross-claim against Power Technologies seeking contribution. In accordance with what Handley AJA said in [36] of QBE they are entitled to judgment. If they obtain judgment, their cross-claim would be otiose. Presumably, even if obtained without a hearing on the merits, the judgment could be enforced as a judgment of the Supreme Court (s 14 Dust Diseases Tribunal Act (DDT Act)).

15 The provisions of cl 52 that the determination (of a Contributions Assessor) is binding for the purposes of the settlement or determination of a plaintiff’s claim, but not binding for the purposes of the “determination by the Tribunal, of a dispute between defendants as to apportionment” indicates that Her Excellency’s advisors had in contemplation that a cross-claim could proceed where defendants or cross-defendants disputed the contributions assessment. If, however, a cross-claimant has obtained a verdict and judgment by reason of the contribution assessment, pursuit of its cross-claim would be a sleeveless errand. It would be pointless to pursue its cross-claim unless it disputed the contribution assessment. The initiative to continue or abandon a cross-claim rests with a cross-claimant. When a cross-claimant accepts an assessment it would be for a cross-defendant to challenge it if the cross-defendant does not accept it. This would move the onus from cross-claimant to cross-defendant, a result which some might think critogenic. If this is the correct situation, then once an order is made requiring Power Technologies to pay money to EA and EE, it must, if it disputes the percentage determined by the Contributions Assessor, bring its own cross-claim.

16 The observations of Handley AJA in [36] of the judgment in QBE, which I have quoted, bind the Tribunal to give effect to the determination of the Contributions Assessor by entering verdicts and judgments. I am thus bound to give effect to the determination. Mr Sheller, however, has sought instead that I make an order under s 90 of the CP Act, rather than enter judgment.

17 S 90 of the CP Act provides as follows:

90 (1) The Court is, at or after trial or otherwise as the nature of the case requires, to give such judgment or to make such order as the nature of the case requires.

(2) If there is a claim by a plaintiff and a cross-claim by a defendant, the Court:

(a) may give judgment for the balance only of the sums of money awarded on the respected claims, or
(b) may give judgment in respect of each claim,
and may give judgment similarly where several claims arise between plaintiffs, defendants and other parties.

18 An order of the Tribunal for the payment of money may be enforced as a judgment of the Supreme Court upon its being registered in the Common Law Division (s 14 DDT Act).

19 I order Power Technologies to pay to EA the sum of $5,512.50 together with interest from 20 March 2007 and to EA the sum of $12,862.50, together with interest from the same date. These calculations have been made and I am informed that the interest payable to EA is $256.70 and to EE $598.40.

20 I should add this is one of a large number of cases in which questions affecting the effect and effectiveness of the Regulation are to be considered. This and other cases involve questions different from those considered in QBE. It would be of assistance not only to the Tribunal but also to practitioners, if Power Technologies were moved to have the question considered in the Court of Appeal and to the extent that I may, with appropriate respect to the Court of Appeal, urge that if sought, it give leave to appeal.

21 Power Technologies should pay the costs of EA and EE as agreed or assessed.

22 Unless an application for leave to appeal is lodged within 28 days those sums are to be paid immediately thereafter.

23 Liberty to apply.

Mr J C Sheller instructed by Goldrick Farrell Mullan appeared for the Cross-Claimant

Mr T M Rowles instructed by Carroll & O’Dea appeared for the Cross-Defendant