(Re Sheppard) Bluescope Steel (AIS) Pty Ltd v Amaca Pty Ltd

[2008] NSWDDT 14

Dust Diseases Tribunal

of New South Wales

CITATION:	(Re Sheppard) Bluescope Steel (AIS) Pty Ltd v Amaca Pty Ltd [2008] NSWDDT 14
PARTIES:	Bluescope Steel (AIS) Pty Ltd (Cross Claimant) Amaca Pty Ltd (Cross Defendant)
MATTER NUMBER(S):	90 of 2005/1
JUDGMENT OF:	Curtis J at 1
CATCHWORDS:	Claims Resolution Process - DUST DISEASES TRIBUNAL :- Cross claims
LEGISLATION CITED:	Dust Diseases Tribunal Regulation 2007 Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005
CASES CITED:	(Re Heath) Delta Electricity v Power Technologies Pty Ltd and ors [2007] NSWDDT 19 (Re Linquist) Burroughs Wellcome and Co and QBE Insurance v Wallaby Grip Ltd and Anor [2006] NSWDDT 28
DATES OF HEARING:	19 May 2008
EX TEMPORE JUDGMENT DATE:	19 May 2008
LEGAL REPRESENTATIVES:	Mr TM Rowles instructed by Sparke Helmore appeared for the Cross Claimant Mr J Sheller instructed by DLA Phillips Fox appeared for the Cross Defendant

JUDGMENT:

Dust Diseases Tribunal of New South Wales

Matter Number DDT90 of 2005/1
(Re: William Sheppard)
Bluescope Steel (AIS) Pty Ltd

(Cross Claimant)

v

Amaca Pty Ltd

(Cross Defendant)

19 May 2008

CURTIS J

RULING

1. Amaca Pty Ltd, the defendant to a cross-claim brought by Bluescope Steel Pty Ltd, seeks a declaration that the cross-claim is not subject to the Claims Resolution Process established by Part 4 of the Dust Diseases Tribunal Regulation 2007.

2. A plaintiff, Mr William Sheppard, by statement of claim filed 18 March 2005 sought damages from Bluescope Steel (AIS) Pty Ltd. The action was fixed for hearing on 1 June 2006 on which date judgment was entered for Mr Sheppard against Bluescope.

3. The Dust Diseases Tribunal Regulation 2005, enabled by the Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005, commenced on 1 July 2005. Part 4 of this regulation introduced the Claims Resolution Process. Cl 4 of the regulation relevantly provided as follows:

14 Transitional

(1) This Part [Part 4 Claims Resolution Process] applies only to the following claims:

(a) claims commenced by statement of claim filed on or after 1 July 2005,

(b) claims commenced by statement of claim filed before 1 July 2005 ( "current claims") but only if:

(i) a hearing date for the claim has not been set before 1 July 2005 (but not if each of the parties to the claim has notified the Registrar in writing that the parties have agreed that this Part is not to apply to the claim), or

(ii) all of the parties to the claim have agreed that this Part is to apply to the claim. [emphasis added]

4. It is common ground that the hearing date for Mr Sheppard's claim was not set before 1 July 2005.

5. On 31 January 2007 Bluescope issued this cross-claim against Amaca.

6. On 1 July 2007 the Dust Diseases Tribunal Regulation governing the claims resolution process was amended. Cl 14 was repeated as Cl 16 in precisely the same terms.

7. That which is in issue is the meaning to be ascribed to the words "the following claims” where they appear in the clause. Mr Rowles for Bluescope contends that the word “claims” in that phrase is used in a generic sense and includes cross-claims. He says that the present cross-claim was commenced by filing in the Registry after 1 July 2005 and is captured by the provision. Mr Sheller for Amaca asserts that, while the word “claims”, may otherwise in the Regulation refer to cross-claims, the word is, where used within Regulation 16, qualified by the descriptor “commenced by statement of claim”, and the provision cannot apply to cross claims.

8. In (Re Heath) Delta Electricity v Power Technologies Pty Ltd and ors [2007] NSWDDT 19 his Honour Judge Kearns in construing the former cl 14 held that because a cross-claim was not commenced by statement of claim, the Claims Resolution Process did not apply.

9. In (Re Linquist) Burroughs Wellcome and Co and QBE Insurance v Wallaby Grip Ltd and Anor [2006] NSWDDT 28 his Honour the President held that, where used in cl 18 of the Regulation, the word "claim" did include cross claims. Clause 18 is in the following relevant terms:

18 Which claims are subject to the claims resolution process
(1) A claim to which this Part applies is subject to the claims resolution process once the claim is filed.

(2) A claim remains subject to the claims resolution process:

(a) until the claim is settled by mediation or otherwise and the Tribunal makes an order to give effect to the settlement, or

(b) if the claim is not settled by the time mediation is concluded-until mediation is concluded and clause 37 (Unsuccessful mediation-agreement as to issues in dispute) has been complied with.

10. The decisions are not inconsistent. Cl 16 clearly apprehends that cross-claims may in some circumstances be governed by the Claims Resolution Process, and subject to cl 18. This might arise for instance, if a hearing date for the primary action had been set before 1 July 2005, or if all of the parties had agreed to invoke the Claims Resolution Process.

11. For reasons most lucidly expressed by His Honour Judge Kearns in Delta Electricity v Power Technologies cl 16 does not apply to the present cross-claim.

12. I declare that the cross-claim brought by Bluescope Steel (AIS) Proprietary Limited against Amaca Proprietary Limited in respect of damages paid to William Sheppard is not subject to Pt 4 of the Dust Diseases Tribunal Regulation 2007.

13. Costs the defendant’s costs in the cause.

14. For directions Monday 26 May 2008.

Mr T Rowles instructed by Sparke Helmore appeared for the Cross-Claimant

Mr J Sheller instructed by DLA Phillips Fox appeared for the Cross-Defendant