(Re: Murray) Eraring Energy v Babcock International Ltd
[2005] NSWDDT 6
•02/25/2005
Reported Decision (2005) 2 DDCR 253
Dust Diseases Tribunal
of New South Wales
CITATION: (Re: Murray) Eraring Energy v Babcock International Ltd & Ors [2005] NSWDDT 6
PARTIES: Eraring Energy
Babcock International Limited
Babcock Australia LtdMATTER NUMBER(S): 5 of 91/1
JUDGMENT OF: McIntyre A J at 1
:-
DATES OF HEARING: 21 & 24/02/2005 EX TEMPORE JUDGMENT DATE: 02/25/2005
JUDGMENT:
JUDGMENT
McINTYRE AJ
1. In this matter the cross-claimant, Eraring Energy, seeks contribution pursuant to the provisions of s 5 of the Law Reform Miscellaneous Provisions Act 1946 in relation to a liability incurred by it pursuant to a consent judgment to pay damages to Mr Lindsay Murray arising out of exposure to asbestos at a number of locations in New South Wales at power stations between approximately 1949 and 1980. During those periods the plaintiff, Mr Murray, was employed by the cross-claimant Eraring or its predecessor or predecessors in title. The cross-claimant seeks contribution from other tort feasors who Eraring says would, if sued, have been liable to the plaintiff for the same damage.
2. In the cross-claim proceedings it sues the first cross-defendant Babcock International Ltd, whom I will refer to as BIL in this judgment. Eraring also seeks contribution from the second cross-defendant Babcock Australia Ltd to whom I will refer to as BAL. In the cross-claim Eraring seeks contribution also from two Wallaby Grip companies, the third and fourth cross defendants, they being the current corporate descriptions of what used to be known generally as Bells Asbestos.
3. BIL has filed a defence to the cross-claim denying liability to contribute to the cross-claimant’s liability to the plaintiff, Mr Murray. It has made some admissions in its defence but in effect it denies liability to contribute.
4. The cross-claimant has filed a notice pursuant to the Rules of the Tribunal claiming that s 25B of the Dust Diseases Tribunal Act 1989 precludes BIL from relitigating certain issues which Eraring says were issues of a general nature determined in earlier proceedings before the Tribunal or on appeal from the Tribunal. This document I will refer to as the s 25B notice. Eraring claims that BIL cannot relitigate those issues summarised in the 25B notice without the leave of the Tribunal granted pursuant to the provisions of s 25B. Although this matter has not been the subject of submissions it does not appear to me that the s 25B notice is a pleading. In any event no response to the document is required. BIL, however, has indicated that it disputes that the matters listed in the 25B notice are determinations of issues of a general nature as referred to in s 25B of the Act. BIL, however, says that if, despite its contentions, the s 25B notice does refer to determinations of issues which were of a general nature, it will seek the leave of the Tribunal to relitigate such issues as the Tribunal may determine to fall properly within the operation of s 25B. As any such applications by BIL will require the identification of evidence upon which it will rely in seeking such leave to relitigate issues, and as the hearing of the cross-claim is imminent, the parties have consented to the question of whether s 25B can be invoked insofar as the s 25B notice claims that s 25B applies as a separate issue prior to the commencement of hearing of the cross-claim. This course has the advantage of enabling the parties to avoid unnecessary preparation of evidence prior to the hearing of the cross-claim and avoids the need during the trial of the cross-claim for applications to be made for leave to relitigate issues under s 25B if rulings during the trial render such applications necessary.
5. S 25B of the Dust Diseases Tribunal Act 1989 was introduced into the Act in 1998. It is in the following terms:
(1) Issues of a general nature determined in proceedings before the tribunal (including proceedings on an appeal from the Tribunal) may not be relitigated or reargued in other proceedings before the Tribunal without the leave of the Tribunal, whether or not the proceedings are between the same parties.
(2) In deciding whether to grant leave for the purposes of subsection (1), the
Tribunal is to have regard to:
(3 ) The rules may provide that subsection (1) does not apply in specified kinds of proceedings or in specified circumstances or (without limitation) in relation to specified kinds of issues.
(4)This section does not affect any other law relating to matters of which judicial notice can be taken or about which proof is not required.
6. The section has been the subject of some judicial reference since its insertion in the Act. The section was considered by the Court of Appeal in James Hardie & Coy Pty Ltd v Barry 50 NSWLR at p 357 when considering an appeal from a decision of a single judge declining to order the cross vesting of litigation commenced in the Tribunal outside the state. In that case it was argued that s 25B of the Act was of relevance in addressing the matters which were required to be addressed when considering the cross vesting application. The Chief Justice said in relation to s 25B at p 363 par 16 :
- In substance, the application of s 25B, subject to a grant of leave, constitutes a presumption of fact with respect to, relevantly, the general issue of causation applicable to these proceedings.
7. His Honour then proceeded to consider whether or not the section should be characterised as substantive or procedural. It would seem that the relevant determination that was said to be relevant in the proceedings was a general determination by the Tribunal in the matter of McDonald relating to whether it could be said that lung cancer had been caused by asbestos inhalation absent the condition of asbestosis. In Barry it would seem that it was common ground amongst the parties that s 25B would have had application in the determination of the plaintiff's case and the reference to s 25B by the Chief Justice does not seem to me to consider the correct meaning of the words "Issues of a general nature" where they appear in s 25B.
8. His Honour Judge O'Meally had occasion to refer to s 25B in a recent decision in the matter of Eaton v Carrier Air Conditioning, a ruling given on 23 September 2004. In that judgment his Honour said in relation to s 25B:
- Such an issue it is said must relate to the determination of a disputed question of fact and because foreseeability is a question of mixed fact and law it cannot be an issue of a general nature. I agree that s 25B applies in respect of and only in respect of disputed questions of fact of a general nature which were litigated and determined in proceedings.
9. His Honour did not attempt to and was not required to consider the meaning of the words "Issues of a general nature" as they appear in s 25B of the Act. I recently considered the scope of operation of s 25B in a ruling given in the matter of Anna Rooney v Babcock Australia Pty Ltd and Ors on 20 December 2004. In that ruling I expressed the view that the words "Issues of a general nature" did not on their face appear to be ambiguous or obscure. I still hold that view. In these proceedings I have been referred to second reading speeches in the New South Wales Legislative Council. In the matter of Rooney I was only referred to one such speech. The Hansard of the second reading speech given by the Attorney General on 17 November 1998 says in relation to the proposed s 25B –
- “ An additional change will prevent the relitigation without leave of the Tribunal of issues of a general nature that have been determined in prior proceedings. Possible examples of such issues may be the carcinogenic nature of certain types of asbestos fibres or the availability of safety precautions at a particular time. At present, the same general applicable issues having been determined by exhaustive and costly examination of evidence in one set of proceedings may not have to be heard and determined a fresh in later cases. If issues fall into the proposed general category where relitigation will be restricted the Tribunal will have a discretion to grant leave for the re-opening of such issues in appropriate cases.”
10. In addition counsel for the cross-claimant in these proceedings has drawn my attention to and has relied upon a further speech from the Honourable Attorney General in the Legislative Council on 18 November 1998 when dealing with a motion in the House to amend the legislation to delete reference to s 25B. In that speech the Honourable the Attorney General said:
- I do not accept that there is any conflict between the observations of the Chief Justice of New South Wales and this particular provision. This provision does not negate the idea of adversarial litigation. It does not introduce in New South Wales a regime of inquisitorial justice; it reflects notions that are well known in the law. There have been authoritatively determined: for example, the need to obtain leave to argue before an appeal court an issue that has been the subject of an authoritative decision. So there is nothing as radical in this provision as it portrayed by the Leader of the Opposition. It is in conformity with legal principles.
The amendment seeks to remove from the bill entirely a proposed provision that prevents general issues- I emphasise the word “general”- which the Dust Diseases Tribunal has determined from being relitigated or reargued. New section 25B is one which streamlines procedures and recognises that certain general issues arise again and again in the tribunal; and that, once determined, there is no need for the parties to revisit the issue. The proposed provision as it stands contains necessary safeguards. It relates only to general issues.
When new evidence comes to light the tribunal can give a party leave to relitigate the issue. That is the safeguard. If a party can persuade the tribunal that there is some rational basis upon which the matter can be relitigated – if for example there is new evidence of a scientific or other character- no doubt the tribunal will, in the exercise of its judicial functions, give leave for the relitigaion of the issue. But, absent some rational ground, and absent some particular argument why a general issue ought to be re-agitated, it would simply be a waste of the resources of the tribunal to allow relitigaion to occur. The Government’s position is entirely defensible, and I oppose the Opposition amendment to delete the provision.
11. I am conscious of the limitations required when having reference to extrinsic material such as second reading speeches and in particular I am conscious of the comments of his Honour the President in Brear v James Hardie & Coy Pty Ltd and Anor 50 NSWLR 388 at p 397 par 39. Whilst it would seem to me that the examples quoted by the Honourable the Attorney General in his first second reading speech would clearly be cases which fell within what I would take to be the ordinary and natural meaning of the words "Issues of a general nature" referred to in s 25B, neither second reading speech really assists me in determining whether other determinations other than those referred to in the examples might be properly regarded as falling within the ambit of the operation of s 25B.
12. S 25B contemplates determination of issues in litigation before the Tribunal or on appeal from the Tribunal. That litigation must, of course, necessarily involve the presence of parties. In a sense, all determinations of issues will be limited to the parties to the litigation. If those determinations, however, involve general questions they may attract the operation of s 25B of the Act in later proceedings despite the fact that different parties may be involved. For a determination of an issue to attract the operation of s 25B the issue itself must be of a general nature and cannot, in my view, be an issue which only involved one or more of the parties in the litigation which gave rise to the determination. It must have, it would seem to me, or potentially have, a more general application.
13. BIL does not dispute that many of the determinations set out in the s 25B notice are determinations in proceedings before the Tribunal or on appeal of issues of a general nature. For example, it does not challenge par C1 of the s 25B notice which sets out the following determination of an issue of a general nature:
- By 1950 it was known that asbestos was toxic, that it was dangerous, that it was carcinogenic, and that it was capable of causing fibrosis leading to death
14. The s 25B notice is lengthy. During the course of submissions counsel for the cross-claimant indicated that he would withdraw some of the subparagraphs and to the extent of those concessions some paragraphs of the s 25B notice have by consent been struck out. The remaining paragraphs in the s 25B notice must each be considered individually to determine, firstly, whether they refer to actual determinations in proceedings before the Tribunal or secondly if determinations in fact did occur whether those determinations were of issues of a general nature.
15. Since commencing this judgment the parties have handed to me an amended s 25B notice which I have included within exhibit 1. The document contains in bold type the paragraphs which BIL contends do not fall within the proper operation of s 25B. There are in addition to the bold type some ink amendments which are now included within the amended document. As a result of the cross-claimant during submissions deleting some parts of the s 25B notice the subparagraph numbering in paragraph I has been changed. In this judgment I will refer to the new paragraph numbering but I will endeavour to relate this to the old numbering which appeared in the earlier document as this was the numbering which was referred to in oral submissions.
16. I now turn to the particular paragraphs in the s 25B notice which BIL asserts do not contain determinations within s 25B and form the subject of this separate determination under Pt 31 r 2 of the Supreme Court Rules.
17. The first paragraph is numbered A(2). It is an extract from the decision of the Court of Appeal in Seltsam Pty Ltd v McGuinness. The par is taken from par 143 of the judgment of the Chief Justice in that case and reads:
- The commonsense approach to causation at common law is quite different from a scientist's approach to causation.
18. This is clearly a statement of law. This is not disputed by counsel for the cross-claimant. The cross-claimant, however, argues that s 25B does apply to what he describes as issues of law the subject of a general determination. I do not agree with this submission. In my view s 25B could not apply to any statement of the law. The Tribunal does not "determine" an "issue" of law. Whether s 25B applies to mixed questions of fact or law or not it cannot in my view apply to a question of law alone. I find that the determination set out in par 2 of the 25B notice, if it is a determination, does not raise a determination of a general nature within the meaning of s 25B of the Act.
19. The second relevant paragraph is that which appears in par D(3) of the amended section 25B notice. It is an extract from a decision of the Court of Appeal in CSR v Wren. Part of the appeal judgment has been reported in 44 NSWLR p 463. The part of the judgment upon which the cross-claimant relies is not reported in the New South Wales Law Reports but has been reported in the Australian Torts Reporter at p 64,808. The determination or what is alleged to be the determination is in the following terms:
- It does not follow that every employee (of a potential purchaser) who sustains injury from the use of the product is entitled to recover against the manufacturer of it damages for any injury ... as a result of its use. That result will flow only if it can be said, in the particular circumstances that, as a result or the manufacturers failure to warn potential purchases of the product, those purchases have failed to take proper steps to protect their employees against injury in consequence of which failure the employee in question has sustained injury.
This is extracted from the judgment of Powell JA in the Court of Appeal judgment. Again this appears to me to be a statement of law. This is not disputed by the cross-claiamnt. For the same reasons as I did with the previous paragraph A(2) I find that this does not raise a determination or does not contain a determination of a general nature within the meaning of s 25B of the Act.
20. The next paragraph in the 25B notice is par F(1). This is an extract from the decision of the Court of Appeal in Seltsam Ltd v Minahan & Anor13 NSWCCR 410. The extract appears again to be a statement of law. This is conceded by Eraring. For the same reasons I find that this paragraph does not contain a determination of a general nature within the meaning of s 25B of the Act.
21. The next paragraph in the 25B notice is H(1). The matters set out there are taken from the decision of the Tribunal in Browne v Cockatoo Dockyard Pty Ltd DDT80/7/99. The determination is said to be:
- Those who undertake a dangerous activity or use a dangerous substance must use a commensurate degree of care.
22. BIL argues that this extract to the extent that it may be correct is a statement of law. I agree with this submission and for the reasons previously given this extract does not in my view contain a determination within the meaning of s 25B of the Act and I so find.
23. The next paragraph is a lengthy paragraph, par I. The many subparagraphs in this paragraph, now totalling 24 subparagraphs, have been taken from the decision of his Honour Judge Curtis in Babcock Australia Ltd v Eraring Energy & Anor re Royal (known as the Royal proceedings) 22 NSWCCR at p 141. That was a decision in proceedings which also involved a cross-claim brought by Eraring Energy claiming contribution and it would seem from the judgment that similar issues of fact arose in that case which may arise in this case from the brief outline of the nature of Erarings cross-claim that was given to me at the commencement of this hearing.
24. I will deal with the subparagraphs in paragraph I of the s 25B notice in groups to avoid repetition. The groups I will choose substantially follow the groupings adopted by counsel for Eraring in his oral submissions.
25. The first group of subparagraphs in par I comprises subparagraphs (1) to (19) inclusive. It should be noted that in oral submissions before the s 25B notice was amended these subparagraphs were numbered 1 to 20. Again, for clarity, I will refer to the amended s 25B which has numbered those subparagraphs 1 to 19. Those subparagraphs read as follows:
- Determination of issues of a general nature in the matter of Babcock Australia Ltd. V Eraring Energy and Babcock International Ltd. Re: Robert W Royal DDT 17 of 1992 , Curtis J, 19 July 2001:
26. Eraring submits that these subparagraphs all refer to determinations made by Judge Curtis at the hearing of the cross-claim in the matter of Royal and that those determinations were determinations of a general nature in the proceedings. I am informed that there exist currently in excess of 30, possibly as many as 40, unresolved cross-claims where Eraring seeks contribution from BIL in association with other tort feasors. Eraring submits that the determinations by his Honour Judge Curtis in Royal have a direct relevance beyond that case and that they will have a direct relevance to issues that will be required to be determined in all or most of the unresolved cross-claims to which I have referred. Eraring submits that the existence of these numerous unresolved cross-claims in cases where the factual basis of the exposure to asbestos was in many respects similar to the exposure of Mr Royal in the case before Judge Curtis elevates the determinations made by Judge Curtis in the matter of Royal beyond determinations in the specific case to the extent that they became determinations of issues of a general nature within the s 25B(I) of the Act. It is important to note that in this respect the cross-claimant is not now arguing in this separate determination that BIL is estopped from relitigating those issues. The sole question for me to determine is whether or not the determinations by Judge Curtis, if they were determinations within the meaning of the Act, were determinations of a general nature.
27. BIL disputes this claim by Eraring. I do not agree with the submissions by Eraring. Firstly, it does not appear clear to me that any of the extracts numbered 1 to 19 in par (I) of the amended s 25B notice involve "determinations", that is resolution of specific issues litigated in the proceedings as opposed to commentaries by his Honour on the evidence or summaries of the effect of relevant evidence by his Honour in the course of him making clear his reasoning process leading to his ultimate findings. Secondly, even if any of the matters summarised in pars 1 to 19 of par (I) did involve determinations within the meaning of s 25B(1) I do not believe that the issues determined were of a "general nature." Whilst they may be relevant to other cross-claims issued by Eraring in the sense that similar issues may be raised and that similar issues may be required to be determined when those cross-claims are heard, the existence of those cross-claims does not in my view elevate any determination or any determinations of the issues by Judge Curtis to be determinations of a "general nature." Those determinations could not in my view be said to affect any litigation where BIL was not a party and the determinations were not in my view such as to attract the operation of s 25B of the Act. They were determinations relevant to BIL in the circumstances of that litigation and they could not in my view be viewed as having any further or general application.
28. I find that subparagraphs (1) to (19) in par I of the s 25B notice do not raise any determinations of a general nature in proceedings before the Tribunal.
29. The next subparagraph in paragraph I is subparagraph (20). That paragraph or subparagraph reads as follows:
The knowledge of the Crown residing in the Minister for Health up to 22 March 1957 is not to be imputed to Elcom and that any culpability on the part of the minister in failing to communicate his knowledge to Elcom is irrelevant to the assessment of the culpability which is personal to Elcom.
30. This is extracted from par 147 in the judgment of Judge Curtis in the Royal proceedings. BIL submits that this is a statement of law or at the very least a statement of the result of the application of relevant law to the facts as found by his Honour in the Royal proceedings. I agree with this submission and I find that subparagraph (20) of paragraph I of the s 25B notice does not raise a determination of a general nature within the meaning of s 25B of the Act.
31. The next subparagraph in par I is par 21. That reads:
- An airborne concentration of dust which is visible exceeds the Dreesen standard of prudent exposure.
32. This statement is said to comprise the effect of what Judge Curtis said in pars 41 and 125 of his judgment in the matter of Royal. If what his Honour recorded in his judgment was a determination within the meaning of s 25B of the Act it would seem on its face to be a determination of a general nature as contemplated by s 25B. I am not satisfied, however, that what his Honour did was to make such a determination. Par 41 commences with the words "It is generally acknowledged" that an airborne concentration of asbestos dust if visible exceeds the Dreesen standard. These words do not suggest to me that any determination of that fact was made but that all his Honour was doing was acknowledging that which was generally accepted amongst experts as being correct. The first sentence in par 125 in his Honour's judgment does not of itself suggest that any "determination" was made of that which appears in the first sentence. Counsel for Eraring has conceded as much, that is that the subject of the first sentence in par 125 in the Royal judgment was not debated in the proceedings before his Honour Judge Curtis. In those circumstances I find that that which appears in subparagraph 21 of paragraph I of the s 25B notice was not a determination of a general nature within s 25B of the Act.
33. The remaining subparagraphs in paragraph I are pars 22, 23 and 24. There were previously numbered, as the document indicates, 23, 24 and 25.
- 22.“ A….. [large company involved in the design and manufacture of boilers] owed a duty to persons engaged in the insulation of boilers could and should have been discharged by including a warning on the insulating product.
23.A….[large company involved in the design and manufacture of boilers] owed a duty of care to persons engaged in the insulation of boilers to protect then from the injurious consequence of inhaling asbestos thrown off by other laggers. A duty of ….a large company involved in the design and manufacturer of boilers] is to exercise reasonable care and skill so that persons required to construct the furnaces to the design could do so safe from injury and risk to health.
24. They duty of a large company involved in the design and manufacturer of boilers] is extended to the inclusion in designs, plans, specifications, drawing and instructions of printed warning as to the dangers of asbestos dust and to the institution of an erection sequence in which lagging work would not be carried out while men were engaged in other task slower levels.”
These paragraphs again are taken from the judgment of his Honour Judge Curtis in the matter of Royal. These paragraphs refer to the duty which his Honour found was owed by BIL to Mr Royal in the cross-claim proceedings. BIL disputes that the paragraphs accurately summarise his Honour's findings. In my view even if the contents of pars 22 to 24 accurately set out his Honour's findings in relation to the nature and extent of the duty which his Honour found BIL owed in the circumstances, those findings were and must have been specifically related to the duty owed by BIL at the relevant power station at the particular times concerned to persons such as the plaintiff in those proceedings, Mr Royal. The findings or determinations made by his Honour and said to be summarised in par 22 to 24 do not in my view have the general effect that counsel for Eraring submitted they have in view of the terms of s 25B. I find that subparagraphs 22 to 24 of par I do not raise determinations of a general nature within the meaning of s 25B of the Act.
35. The next paragraphs of relevance in the s 25B notice are paragraphs J(1) and as altered in ink in the document (2) (it used to be (3). They read as follows:
- J1 : “ ..on 1 June 1931 the Asbestos Industry ( Asbestos Scheme 1931) came into force……The scheme itself reflects the general knowledge in the United Kingdom of the dangers of asbestosis”
2. “From all these matters, a strong inference arises that the knowledge of the dangers of exposure to asbestos would have been known generally within BIL from the 1930’s onwards”.
36. These words have been extracted from the judgment of the Court of Appeal in the matter of Babcock International Ltd v Babcock Australia Ltd and Eraring Energy NSWCCA (5 February 2003.) This was the appeal to the Court of Appeal from the decision of Judge Curtis in the Royal matter. At the time that appeal was determined the right of appeal from the Tribunal to the Court of Appeal was limited by s 32 of the Act to questions of law or a question as to the admission or rejection of evidence. Counsel for BIL submits that the words extracted from the judgment in the Court of Appeal, being in fact par 129 of the judgment of his Honour Mr Justice Ipp, could not therefore be taken to be determinations of fact. Looking at the judgment of Mr Justice Ipp and in particular the conclusions expressed in par 133 of his Honour's judgment it would seem to me clear that what his Honour was doing was to find, after reviewing the evidence before Judge Curtis, that there was evidentiary material available to Judge Curtis upon which Judge Curtis could make his findings, particularly in relation to knowledge of dangers, and that for that reason no error of law had been demonstrated which gave a right to appeal. It seems to me that the words extracted from the judgment and set out in pars J(1) and (2) of the amended s 25B notice could not on any view be regarded as being determinations of issues of a general nature in proceedings on appeal from the Tribunal. The extracted words in my view are merely part of his Honour's summary of the relevant evidence before Judge Curtis which he read in determining whether or not an error of law had occurred in the court below. I find that the matters wet out in pars J(1) and (2) of the amended s 25 B notice do not raise determinations of a general nature within the meaning of s 25B of the Act.
37. The next paragraph in the amended s 25B notice is par M(1). That paragraph or that extract is in the following terms:
- Pacific Power is to be regarded as a distinct and separate statutory corporation ...
38. The words appearing in par M(1) are taken from the headnote in the reported decision of the Court of Appeal in Amaca Pty Ltd v The State of New South Wales & Anor reported in 132 LGERA 309. The headnote at p 311 contains the following:
- Pacific Power was to be regarded as a distinct and separate statutory corporation, so that its knowledge was not to be attributed to the State itself.
In my view the statement in the headnote merely represents the consequence of the application of the relevant law to the facts of that case. The headnote in my view does not reflect a determination of an issue of a general nature within the meaning of s 25B of the Act and I so find.
39. The last paragraph in the amended s 25B notice which BIL contends does not disclose a 25B determination is par N(1). That paragraph is in the following terms:
- Between 1938 and 1950 the SRA did not have actual knowledge of dangers to health posed by visible clouds of asbestos dust.
These words are taken from the judgment of his Honour Judge Curtis in State Rail Authority (NSW) v Wallaby Grip & Anor re Raynor (1999) 18 NSWCCR 193. The words in par N1 of the s 25B notice may suggest that the determination was a positive determination that the SRA did not have actual knowledge of dangers of health in the stated period. ( I should add at this stage that counsel for Eraring conceded that Eraring in these proceedings may now hold responsibility for the SRA at that time. ) Be that as it may the extracted words in par J1 contain a positive assertion. The paragraph in Judge Curtis' judgment in the proceedings reads as follows:
- There is no evidence that between 1938 and 1950 the SRA had actual knowledge of the dangers to health posed by visible clouds of asbestos dust.
40. Whilst his Honour may well have treated for the purposes of apportionment the SRA as not having actual knowledge I do not read his judgment as containing any positive determination to that effect. In any event the determination, if that is what it was, was a determination specifically made in relation to one party in that litigation and that determination was not in my view of an issue of a general nature within the meaning of s 25B of the Act and I so find.
41. In summary, I find that the following paragraphs of the amended s 25B notice, which is now part of exhibit 1, do not raise determinations of a general nature within the meaning of s 25B of the Dust Diseases Tribunal Act 1999:
- Pars A(2), D(2) and (3), F(1), H(1), I to 24, J(1) and (2), M)1) and N(1).
42. These findings would appear to determine the issue in this case to be separately tried by me in accordance with the order made to that effect earlier in the proceedings. I will reserve the question of costs of this hearing at the conclusion of the cross-claim.
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