Read v Comcare - [2020] NSWDDT 6

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation: Read v Comcare [2020] NSWDDT 6
Hearing dates: 28 April, 19 June 2020
Date of orders: 16 July 2020
Decision date: 16 July 2020
Before: Russell SC DCJ
Decision:
(1) Determine pursuant to Rule 28.2 of the Uniform Civil Procedure Rules 2005 that the second defendant Icon Water Limited is liable to the plaintiff in respect of the breaches of duty of care alleged by the plaintiff in the Second Further Amended Statement of Claim filed on 5 November 2019.
(2) Order the second defendant to pay the costs of the plaintiff and the costs of the first defendant of the determination of the separate question.

Catchwords:
STATUTORY INTERPRETATION – whether there was a liability of the Commonwealth or a Commonwealth authority to the plaintiff when claim made – Asbestos Related Claims (Management of Commonwealth Liabilities) Act 2005 (Cth), ss 3, 5
STATUTORY INTERPRETATION – whether the ACT Electricity Authority was a Commonwealth authority – whether the ACT Electricity & Water Authority was a Commonwealth authority – Asbestos Related Claims (Management of Commonwealth Liabilities) Act 2005 (Cth), s 3
STATUTORY INTERPRETATION – whether potential or contingent liability of the Commonwealth or a Commonwealth authority was transferred – Australian Capital Territory Electricity Supply Act 1962 (Cth), ss 5, 6, 17, 18, 19, 20, 23, 35 – Electricity and Water Ordinance 1988 (ACT) ss 4, 5, 31, 84, 90 – Electricity and Water (Corporatisation) (Consequential Provisions) Act 1995 (ACT) s 4

Legislation Cited:
Acts Interpretation Act 1901 (Cth) s 2H
Acts Interpretation Amendment Act 2011 (Cth) Sch 3 cl 1
Asbestos Related Claims (Management of Commonwealth Liabilities) Act 2005 (Cth), ss 3, 5
Australian Capital Territory Electricity Supply Act 1962 (Cth), ss 5, 6, 17, 18, 19, 20, 23, 35
Electricity and Water (Corporatisation) (Consequential Provisions) Act 1995 (ACT) ss 2,4
Electricity and Water Ordinance 1988 (ACT) ss 4, 5, 31, 84, 90
Safety Rehabilitation and Compensation Act 1988 (Cth), s 4
Seat of Government (Administration) Act 1910 (Cth) s 12
Seat of Government Acceptance Act 1909 (Cth) s 5
Stevedoring Industry Act 1956 (Cth)
Stevedoring Industry Acts (Termination) Act 1977 (Cth), ss 14,15
Stevedoring Industry Finance Committee Act 1977 (Cth)
Uniform Civil Procedure Rules 2005 (NSW), r 28.2

Cases Cited:
Comcare v Heffernan [2011] FCAFC 131; (2011) 196 FCR 494
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1
Walters v Babergh District Council (1983) 82 LGR 235

Texts Cited:
ACT Special Gazette No.S148 dated 28 June 1995
Commonwealth, Parliamentary Debates, House of Representatives, 24 May 2005, Second Reading Speech (Mr Dutton – Minister for Workforce Participation)
Commonwealth, Parliamentary Debates, Senate, 27 November 1962, Second Reading Speech, (Senator Wade – Minister for Health)
Explanatory Memorandum to the Abestos-related Claims (Management of Commonwealth Liabilities) Bill 2005

Category: Procedural and other rulings
Parties: Pauline Edith Read (Plaintiff)
Comcare (First Defendant)
Icon Water Limited (Second Defendant)
Representation:
Counsel:
Mr S. Tzouganatos (Plaintiff)
Mr T. Howe QC (First Defendant)

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Read v Comcare

Details

AGLC: Read v Comcare [2020] NSWDDT 6
Case: [2020] NSWDDT 6
Decision Date: 16 July 2020

CaseChat Overview and Summary

In the case of Read v Comcare, the plaintiff, Read, sought to establish the liability of Comcare, a Commonwealth authority, for claims related to asbestos exposure. The primary dispute centred on whether Comcare or another entity, the ACT Electricity Authority, could be held liable under the Asbestos Related Claims (Management of Commonwealth Liabilities) Act 2005 (Cth). The Federal Court was tasked with interpreting the relevant statutory provisions to determine if the Commonwealth or any of its authorities had incurred liability at the time the claim was made.

The legal issues before the court involved determining whether Comcare or the ACT Electricity Authority was a Commonwealth authority within the meaning of the Act, and if so, whether any potential or contingent liability of the Commonwealth or its authorities had been transferred. The court also needed to consider the statutory provisions of the Australian Capital Territory Electricity Supply Act 1962 (Cth) and related legislation to ascertain the status and liabilities of the ACT Electricity Authority and its successor, Icon Water Limited.

The court ruled that Comcare was not liable for the plaintiff’s claims as it was not a Commonwealth authority at the relevant times. The court found that the ACT Electricity Authority was not a Commonwealth authority and that its successor, Icon Water Limited, was also not a Commonwealth authority. Consequently, the court held that the potential or contingent liability of the Commonwealth or a Commonwealth authority had not been transferred to Icon Water Limited. The court further determined that Icon Water Limited was liable for the breaches of duty of care alleged by the plaintiff.

The court ordered that Icon Water Limited is liable to the plaintiff for the breaches of duty of care, and that Icon Water Limited pay the costs of the plaintiff and the costs of Comcare for the determination of the separate question.

Orders

Orders of the court

(1) Determine pursuant to Rule 28.2 of the Uniform Civil Procedure Rules 2005 that the second defendant Icon Water Limited is liable to the plaintiff in respect of the breaches of duty of care alleged by the plaintiff in the Second Further Amended Statement of Claim filed on 5 November 2019.

(2) Order the second defendant to pay the costs of the plaintiff and the costs of the first defendant of the determination of the separate question.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Read v Comcare [2020] NSWDDT 6
Hearing dates:	28 April, 19 June 2020
Date of orders:	16 July 2020
Decision date:	16 July 2020
Before:	Russell SC DCJ
Decision:	(1) Determine pursuant to Rule 28.2 of the Uniform Civil Procedure Rules 2005 that the second defendant Icon Water Limited is liable to the plaintiff in respect of the breaches of duty of care alleged by the plaintiff in the Second Further Amended Statement of Claim filed on 5 November 2019. (2) Order the second defendant to pay the costs of the plaintiff and the costs of the first defendant of the determination of the separate question.
Catchwords:	STATUTORY INTERPRETATION – whether there was a liability of the Commonwealth or a Commonwealth authority to the plaintiff when claim made – Asbestos Related Claims (Management of Commonwealth Liabilities) Act 2005 (Cth), ss 3, 5 STATUTORY INTERPRETATION – whether the ACT Electricity Authority was a Commonwealth authority – whether the ACT Electricity & Water Authority was a Commonwealth authority – Asbestos Related Claims (Management of Commonwealth Liabilities) Act 2005 (Cth), s 3 STATUTORY INTERPRETATION – whether potential or contingent liability of the Commonwealth or a Commonwealth authority was transferred – Australian Capital Territory Electricity Supply Act 1962 (Cth), ss 5, 6, 17, 18, 19, 20, 23, 35 – Electricity and Water Ordinance 1988 (ACT) ss 4, 5, 31, 84, 90 – Electricity and Water (Corporatisation) (Consequential Provisions) Act 1995 (ACT) s 4
Legislation Cited:	Acts Interpretation Act 1901 (Cth) s 2H Acts Interpretation Amendment Act 2011 (Cth) Sch 3 cl 1 Asbestos Related Claims (Management of Commonwealth Liabilities) Act 2005 (Cth), ss 3, 5 Australian Capital Territory Electricity Supply Act 1962 (Cth), ss 5, 6, 17, 18, 19, 20, 23, 35 Electricity and Water (Corporatisation) (Consequential Provisions) Act 1995 (ACT) ss 2,4 Electricity and Water Ordinance 1988 (ACT) ss 4, 5, 31, 84, 90 Safety Rehabilitation and Compensation Act 1988 (Cth), s 4 Seat of Government (Administration) Act 1910 (Cth) s 12 Seat of Government Acceptance Act 1909 (Cth) s 5 Stevedoring Industry Act 1956 (Cth) Stevedoring Industry Acts (Termination) Act 1977 (Cth), ss 14,15 Stevedoring Industry Finance Committee Act 1977 (Cth) Uniform Civil Procedure Rules 2005 (NSW), r 28.2
Cases Cited:	Comcare v Heffernan [2011] FCAFC 131; (2011) 196 FCR 494 Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1 Walters v Babergh District Council (1983) 82 LGR 235
Texts Cited:	ACT Special Gazette No.S148 dated 28 June 1995 Commonwealth, Parliamentary Debates, House of Representatives, 24 May 2005, Second Reading Speech (Mr Dutton – Minister for Workforce Participation) Commonwealth, Parliamentary Debates, Senate, 27 November 1962, Second Reading Speech, (Senator Wade – Minister for Health) Explanatory Memorandum to the Abestos-related Claims (Management of Commonwealth Liabilities) Bill 2005
Category:	Procedural and other rulings
Parties:	Pauline Edith Read (Plaintiff) Comcare (First Defendant) Icon Water Limited (Second Defendant)
Representation:	Counsel: Mr S. Tzouganatos (Plaintiff) Mr T. Howe QC (First Defendant)