(re Stavar) Amaca Pty Ltd v CSR Ltd

[2008] NSWDDT 29

Dust Diseases Tribunal

of New South Wales

CITATION:	(re Stavar) Amaca Pty Ltd v CSR Ltd [2008] NSWDDT 29
PARTIES:	Amaca Pty Ltd (Cross-Claimant) CSR Ltd (Cross-Defendant)
MATTER NUMBER(S):	7349/07/2
JUDGMENT OF:	O'Meally P
CATCHWORDS:	DUST DISEASES TRIBUNAL :- Plaintiff recovers damages - Cross-claim - Contributions determination - Whether cross-claimant entitled to verdict and judgment in accordance with contributions determination
CASES CITED:	QBE Insurance (Australia) Limited v Wallaby Grip Limited and Ors [2007] NSWCA 43
DATES OF HEARING:	1 October 2008
DATE OF JUDGMENT:	1 October 2008
EX TEMPORE JUDGMENT DATE:	1 October 2008
LEGAL REPRESENTATIVES:	J C Sheller instructed by DLA Phillips Fox appeared for the Cross-Claimant W P Y Austron instructed by Leigh Virtue & Associates appeared for the Cross-Defendant

JUDGMENT:

RULING

O’MEALLY P

1. Amaca Pty Limited (Amaca) seeks an order that CSR Limited (CSR) pay to it 6.35 per cent of $339,000. 6.35 per cent is the proportion determined by a contributions assessor as that which CSR should contribute to the plaintiff’s damages. The application is resisted by Mr Austron for CSR solely on the basis that it is premature. He says that in light of the findings made in the plaintiff’s proceedings, it is inevitable that there will be disputes between the defendants on the amounts or percentages each should contribute to the plaintiff’s damages and in due course these disputes will require determination by the Tribunal.

2. That is as well may be, but the Regulation has produced some peculiar consequences, some of which were referred to by Handley A-JA in QBE Insurance (Australia) Limited v Wallaby Grip Limited and Ors [2007] NSWCA 43.

3. It is appropriate first to note that after it has been determined that a plaintiff is entitled to damages, either following a hearing or by agreement, the Tribunal is bound to give effect to a determination by a contributions assessor. In [36] in QBE Handley A-JA said:

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 of 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.

4. The judgment of Handley A-JA binds me to give effect to the determination of the contributions assessor by entering a verdict and judgment for the second defendant against CSR. That, of course, has consequences of the type referred elsewhere in the reasons of Handley AJA but that is not something which presently needs to be addressed.

5. On the cross-claim by Amaca Pty Limited against CSR Limited there will be a verdict for the cross-claimant and judgment in the sum of $21,526.50 together with interest as agreed or assessed.

6. CSR will pay Amaca’s costs of this motion on an indemnity basis.

J C Sheller instructed by DLA Phillips Fox appeared for the Cross-Claimant

W P Y Austron instructed by Leigh Virtue & Associates appeared for Cross-Defendant