(Re Osborne) Eraring Energy v The English Electric Co

[2008] NSWDDT 19

Dust Diseases Tribunal

of New South Wales

CITATION:	(Re Osborne) Eraring Energy v The English Electric Co [2008] NSWDDT 19
PARTIES:	Eraring Energy (Cross-Claimant) The English Electric Company Ltd (Fourth Cross-Defendant)
MATTER NUMBER(S):	7140/07/1
JUDGMENT OF:	O'Meally P
CATCHWORDS:	DUST DISEASES TRIBUNAL :- Dust Diseases Tribunal Regulation 2007 - determination by a Contributions Assessor - whether determination requires cross-defendant to pay money to defendant - whether rule ultra vires - rule held valid
LEGISLATION CITED:	Dust Diseases Tribunal Act 1989 Dust Diseases Tribunal Regulation 2007 Law Reform (Miscellaneous Provisions) Act 1946
CASES CITED:	QBE Insurance (Australia) Ltd v Wallaby Grip and Ors [2007] NSWCA 43 Harrington v Low [1996] HCA 8; (1996) 160 CLR 311 State of New South Wales v Law and Ors (1992) IR 62 Combined State Unions v State Services Co-ordinating Committee [1982] 1 NZLR 745
DATES OF HEARING:	30 June 2008
DATE OF JUDGMENT:	30 June 2008
EX TEMPORE JUDGMENT DATE:	30 June 2008
LEGAL REPRESENTATIVES:	Mr P W Squires appeared with leave for the Cross-Claimant Mr D C Andersen of Piper Alderman appeared for the Cross-Defendant

JUDGMENT:

Dust Diseases Tribunal of New South Wales

DDT7140 of 2007/1
(Denis Arthur Osborne)
C.C.: Eraring Energy
(Cross-Claimant)
v
C.D.: Wallaby Grip Ltd
(First Cross-Defendant)

C.D.: Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd)
(Second Cross-Defendant)

C.D.: Power Technologies Pty Ltd (Formerly International Combustion Australia Ltd)
(Third Cross-Defendant)

C.D.: The English Electric Company Ltd
(Fourth Cross-Defendant)

C.D.: Alstom Australia Ltd (Formerly The English Electric Company of Australia Pty Ltd)
(Fifth Cross-Defendant)

RULING

O’MEALLY P

1. Eraring Energy seeks an order that The English Electric Company Ltd pay to it the sum of $12,384, being the percentage contribution determined by a contribution assessor in respect of its liability to the plaintiff.

2. On 17 May 2007 Denis Arthur Osborne issued a statement of claim seeking provisional damages from Eraring Energy in respect of the conditions of asbestosis and certain other disorders. His claim became subject to the claims resolution process first established by amendments in 2005 to the Dust Diseases Tribunal Regulation of 2001 and continued by the Dust Diseases Tribunal Regulation 2007 (the Regulation). Cl 97 of the 2007 Regulation repealed the Regulation of 2001.

3. After it was sued by the plaintiff, Eraring Energy issued cross-claims against Wallaby Grip Ltd, Amaca Pty Ltd, Power Technologies Pty Ltd, The English Electric Company Limited and Alstom Australia Ltd. On 23 April 2008 the Registrar appointed a contributions assessor pursuant to cl 49(1) of the Regulation. On 28 April 2008 the contributions assessor determined the liability of Eraring Energy to be 48.4 per cent, Wallaby Grip Ltd 5.16 per cent, Amaca Pty Ltd 15.48 per cent, Power Technology Pty Ltd 10.32 per cent, The English Electric Company Ltd 10.32 per cent and Alstom Australia Ltd 10.32 per cent.

4. On 19 June 2008 the plaintiff’s claim was successfully mediated and this morning verdicts and judgment were entered in the plaintiff’s favour. The defendant and cross-defendants, with the exception of the fourth cross-defendant, The English Electric Company Limited (EEC), have accepted the assessment made by the contributions assessor. The fourth cross-defendant submits that the Regulation, to the extent to which it seeks to impose a liability upon it to make a payment to the plaintiff or to the defendant, Eraring Energy, is invalid.

5. The argument of the fourth cross-defendant is that s 32H of the Dust Diseases Tribunal Act 1989 does not authorise a Regulation which requires it to make a payment to the cross-claimant.

of the Act relevantly provides as follows:

32H (1) The Governor may make regulations for or with respect to the following:
(a) the establishment of a claims resolution process for claims, with procedures for identifying the issues in dispute between the parties to a claim and the settlement of claims by alternative dispute resolution processes,
(b) procedures and presumptions for the apportionment of liability between defendants and cross-defendants in connection with a claim,
. . .
(i) The modification of any specified provision of the Civil Procedure Act 2005 or the rules made under that Act in its application to any proceedings or class of proceedings.
. . .
(3) The Regulations under this section prevail to the extent of any inconsistency between a provision of those Regulations and a provision of the Civil Procedure Act 2005, Rules of Court or any direction or order of the Tribunal made under a provision of this or any other Act or Rules of Court.

7. The cross-claim brought by Eraring Energy is based upon s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (the Law Reform Act). It is alleged that EEC is a person who, if sued by the plaintiff, would have been liable to him.

8. Questions concerning the effect of the 2001 Regulation were considered by the Court of Appeal in QBE Insurance (Australia) Ltd v Wallaby Grip and Ors [2007] NSWCA 43. At the time the Court of Appeal delivered its decision the Regulation of 2001 had been repealed and the Regulation of 2007 was in force. Speaking of a determination by a contributions assessor Handley A-JA in a considered judgment said:

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 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 the 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; Bramble 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 a 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.

9. Mr Andersen for EEC says that the Court of Appeal there was not considering the Regulation of 2007, but the Regulation of 2001, the provisions of which were authorised by subsection (4) of s 32H, which provides:

(4) The provisions of the Dust Diseases Tribunal Regulation 2001 inserted in the Regulation by the Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005 are provisions that are authorised by and made under this section.

10. The argument of EEC is that nothing in s 32H permits Regulations to override s 5(1)(c) of the Law Reform Act; it permits only Regulations inconsistent with the Uniform Civil Procedure Act 2005 (the Civil Procedure Act) to be made. Mr Andersen says the Regulation of 2007 was not authorised by S 32H. He points out there is no provision similar to s 32H(4) relating to the Regulation of 2007.

11. Because the defendant’s cross-claim is based upon s 5(1)(c) of the Law Reform Act and not relevantly affected by the Civil Procedure Act it is submitted that the Regulation is ineffective to impose a liability upon it to pay money and, to the extent that it seeks to do so, is ultra vires the Regulation making power in s 32H.

12. In this connection I have been referred to the decision of the High Court of Australia in Harrington v Low (1996) 190 CLR 311; [1996] HCA 8. That was a case in which a rule of the Family Court of Australia prohibiting disclosure of events occurring during mediation was under challenge. At page 342 [27] of his judgment Kirby J said:

…But if the rule goes beyond the provision of the means by which substantive rights are to be enforced or protected, the decision-maker will be entitled to conclude that what has been done, under the guise of a procedural rule, is, in fact, impermissibly to alter substantive rights. By law, that is forbidden to the rule-maker. It is reserved to those with the power to alter substantive rights. This means principally a legislature, the Executive acting under delegated power clearly conferred or judges acting in the time-honoured fashion of the common law. It is not to be done in a quasi-legislative way by rule-making.

13. At page 325 [27] of the joint judgment of Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ it was said:

…As the very decision of the Full Court here, setting aside the findings of fact by the primary judge, illustrates, the sub-rules stultify the operation of s 79A(1) of the Act. They do so by denying to the court to which an application under the section is made the means of effective exercise of its jurisdiction to determine the justiciable controversy by deciding whether there has been a miscarriage of justice by reason of fraud, duress and the other circumstances to which s 79A(1)(a) is addressed. It is to be remembered that the “unique and essential function of the judicial power is the quelling of … controversies by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion”.

14. It is submitted by Mr Andersen that the Regulation here denies jurisdiction to the Tribunal to determine disputes which arise under s 5(1)(c) of the Law Reform Act and that the Regulation may not do.

15. Reference was also be made to the decision of the Court of Appeal in State of New South Wales v Law & Ors (1992) IR 62 at 75. In that case Kirby P adopted the view of the majority of four of a five member Bench of the New Zealand Court of Appeal in Combined State Unions v State Services Co-ordinating Committee [1982] 1 NZLR 742. At 745 their Honours said:

It is an important constitutional principle that subordinate legislation cannot repeal or interfere with the operation of a statute except with the antecedent authority of Parliament itself. It is a constitutional principle because it gives effect to the primacy of Parliament in the whole field of legislation. As a corollary, a rule of construction springs from it that the Courts will not accept that the Parliament has intended its own enactments to be subject to suspension, amendment or repeal by any kind of subordinate legislation at the hand of the Executive unless direct and unambiguous authority has been expressly spelled out to that effect, or is to be found as a matter of necessary intendment, in the parent statute.

16. Mr Andersen submits also that the Regulation has the effect of depriving the Tribunal of the jurisdiction conferred upon it by ss 10 and 11 of the Dust Diseases Tribunal Act. Sections 10 and 11 confer a right to have cross-claims heard and determined by the Tribunal, Mr Andersen submits that the Regulation removes that right as well as the right to have questions arising under s 5(1)(c) of the Law Reform Act heard.

17. Were it not for the opinion expressed, even though on a tentative basis, in the considered judgment of the Court of Appeal in QBE (above) I would be inclined to uphold to Mr Andersen’s argument, but it would be rash not to follow a considered decision of the Court of Appeal given at a time when the Regulation of 2007 was in force and effect. It could not be that Handley A-JA’s opinion was per incuriam and made in ignorance of the fact that the Regulation of 2001 had been replaced by the regulation of 2007.

18. I order EE to pay to Eraring Energy the sum of $12,384. It should pay Eraring Energy’s costs of this application.

19. I reserve the question of costs of the cross-claim.

Mr P W Squires appeared with leave for the Cross-Claimant

Mr D C Andersen of Piper Alderman appeared for the Cross-Defendant