Rooney v Babcock Australia Pty Ltd

[2004] NSWDDT 53

Dust Diseases Tribunal

of New South Wales

CITATION:	Rooney v Babcock Australia Pty Ltd [2004] NSWDDT 53
PARTIES:	Anna Rooney Babcock Australia Pty Ltd Eraring Energy Babcock International Ltd
MATTER NUMBER(S):	457 of 2003
JUDGMENT OF:	McIntyre A J at 1
CATCHWORDS:	:-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:
DATE OF JUDGMENT:	12/20/2005
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Ms A J Katzmann, SC instructed by Turner Freeman. FOR FIRST DEFENDANT: Mr Swan (Solicitor) instructed by Moray & Agnew. FOR SECOND DEFENDANT: Mr J L Sharpe instructed by Mallesons Stephen Jaques.

JUDGMENT:

D

1. The third defendant in the course of submissions on a motion brought by the plaintiff for orders striking out part of the amended second statement of claim has sought the leave of the Tribunal to make three amendments to the defence filed by it to that second amended statement of claim. The third defendant seeks leave to omit the following sub par of its defence, that is 34(b), 35(a) and 62(b) and to insert in lieu of each of those sub paragraphs the following:

The third defendant does not admit that BAL was a wholly owned subsidiary of BIL

2. It appears from evidence tendered when this matter was last before me on 14 December 2004 and from documents tendered today that the shareholding of the first defendant was spread amongst the third defendant BIL and some directors of BIL and, as senior counsel for the plaintiff has pointed out, this may be due to the then applicable legislation governing companies in New South Wales which required that a director of a company be the holder of at least one share in the company. It seems to me that leave should be granted to the third defendant to amend its defence in the manner sought. The significance in law of the actual shareholding of BAL at relevant times will no doubt be a matter for the attention of the trial judge.

3. The substantive matter before the Tribunal today is a motion by the plaintiff filed on 2 December 2004 seeking certain interlocutory relief. The relief sought in pars 1 and 2 has been disposed of by consent orders made on 14 December. The only matter remaining for determination by me is the order sought or the orders sought in pars 3 and 4 of the notice of motion.

4. The plaintiff seeks an order that certain nominated paragraphs of the defence filed by the third defendant be struck out. Briefly, the plaintiff alleges that she has contracted mesothelioma as a result of inhaling asbestos dust and fibre given off from the clothing of her father, who it is alleged was employed as a boilermaker at the construction site of the Wangi Power Station, the plaintiff's father, it being said, having been employed at that location from 1954 to 1961. She alleges that the her father was employed by the first defendant (“BAL”) in the construction of the power station, that power station being constructed, it is alleged, pursuant to contractual arrangements with the predecessor in title of the second defendant.

5. It is alleged in the statement of claim that the third defendant, for whom Mr Sharpe of counsel appears, was the holding company of the first defendant, and that in reality the first defendant operated under the direction and control of the third defendant and that, to all intents and purposes, the first defendant during relevant periods was acting as the agent of the third defendant.

6. The plaintiff argues that the relevant paragraphs of the statement of claim should be struck out pursuant to Pt 15 r 26 of the Supreme Court Rules upon two bases. The first basis upon which it is alleged that the relief should be granted is the submission that answers by the third defendant, whom I shall for the purposes of this judgment refer to as BIL, are inconsistent with admissions made by it in these proceedings or alternatively that the relevant parts of the defence are inconsistent with relevant documents discovered by parties in the litigation.

7. The second basis for the relief sought relies upon s 25B of the Dust Diseases Tribunal Act which requires the leave of a party to relitigate or reargue issues of a general nature determined in prior proceedings before the Tribunal, including proceedings on appeal from the Tribunal. I will deal with the first of those two bases, that is, the alleged inconsistency between the defence and admissions in documents, before dealing with that part of the application which concerns the application of s 25B of the Dust Diseases Tribunal Act (NSW) 1989.

8. Pt 15 r 26 of the Supreme Court Rules provides that where a pleading discloses no reasonable defence or has a tendency to cause prejudice, embarrassment or delay or is otherwise an abuse of process of the Court the Court may at any stage of the proceedings order that the whole or any part of the pleading be struck out. The plaintiff seeks to strike out the paragraphs of the defence of the third defendant listed in par 3 of the motion. The relevant authorities that govern the application of Pt 15 r 26 provide generally that the power to strike out all or part of a pleading should only be exercised in plain and obvious cases and that the Court should be precluded from any interim inquiry about the real merits of the case. Those decisions, however, do not prevent the tender of evidence in support of the motion for consideration by the Court.

9. In dealing with the first of the two bases upon which the plaintiff argues that the relevant parts of the defence should be struck out, that is the alleged inconsistency with admissions and documents, I am concerned with most but not all of the parts of the defence referred to in par 3 of the motion. I will deal with each of those paragraphs that are concerned with this aspect of the application separately.

10. The first paragraph of the defence which is sought to be struck out is the defence to par 34 of the statement of claim. That paragraph alleges that in or about September or October 1948 BIL effected a corporate rearrangement and that BIL in Australia became BAL . There are appended to that allegation a number of particulars. As counsel for the third defendant points out, and counsel for the plaintiff concedes, strictly the third defendant is only required to plead in its defence to the allegations in par 34 and not the particulars in support of that allegation. Par 34 generally alleges a corporate rearrangement, with the previous operations of BIL in Australia becoming those of BAL.

11. The defence to that allegation, as it has now been amended, is specific. Whilst part of the unamended defence may have been, at first glance, inconsistent with earlier admissions by it, the earlier admissions are said now to have been in error and the third defendant has given notice that it will, at an appropriate stage, be seeking leave to withdraw prior admissions relating to this part of the defence. As I have indicated already I have granted leave to the third defendant to amend other aspects of the defence that repeat some of the assertions made by it in the defence to par 34. It is not clear to me what the ultimate factual determination may be in relation to the assertion by the plaintiff that BIL in Australia became BAL. It appears clear from the defence filed by the third defendant that there is no issue that there was in fact a corporate rearrangement. In the circumstances, given the fact that the third defendant is not required to plead to the particulars set out in par 34 I do not believe that the corporate arrangements in Australia between BIL and BAL and their operations in Australia at the relevant period are sufficiently clear for me to make any interlocutory order striking out par 34 of the defence of the third defendant as requested. The motion seeks orders striking out the third defendant's defence to pars 34(c) and (d) of the second amended statement of claim. As I have indicated already, as those paragraphs relate to particulars and not to allegations in the pleading, I see no need to make any order striking out that which the third defendant has chosen to file, that is its response to the allegations set out in pars 34(c) and (d) of the second amended statement of claim.

12. Par 35 of the statement of claim contains assertions of fact and no particulars. The statement of claim alleges that at all material times BAL was subject to control by BIL, that is subparagraph (c), and in subparagraph (d) that BAL was BIL’s agent in Australia.

13. The defence that will be filed by the third defendant pursuant to leave granted by me today does not admit that BAL was a wholly owned subsidiary of BAL and denies specifically the assertions by the plaintiff that BAL was subject to control by BIL and that BAL was BIL’s agent in Australia. In support of the plaintiff's application to strike out the defence to paragraph 35 my attention has been drawn to annexures to the affidavit of Tanya Segelov, which is PX1 in these interlocutory proceedings. In relation to the assertion that BAL was subject to control by BIL I have been taken to annexure K to PX1 which is a letter from, it would seem, BIL to the Commissioner for Railways dated 8 September 1948. In dealing with the question of control, the letter when referring to BAL as, The new company, states as follows:

The new company is to be incorporated almost entirely for administrative reasons, and the whole of its issued capital will be held by Babcock and Wilcox Ltd under whose control the new company will carry on all existing contracts in the same manner as at present.

14. That letter is dated some six or seven years prior to the plaintiff's father's work at the Wangi Power Station site. Whilst it may be reasonable to infer in the absence of any other evidence that the stated intention in that letter became an eventuality, that is that BAL would carry out existing contracts under the control of the third defendant, a statement of intention is not necessarily inconsistent with the assertion which the third defendant now makes that at the relevant time no control existed in the sense that is alleged in par 35(c) of the second amended statement of claim. To my mind the evidence adduced does not establish as a matter of certainty that there is no factual dispute in relation to the allegation made in par 35(c) of the second amended statement of claim, and I decline to strike out par 35 (c) of the defence.

15. A similar submission is made by the plaintiff in seeking to strike out par 35(e) of the defence to the statement of claim, which as I have said alleges that BAL was BIL's agent in Australia. This is denied in the defence filed by the third defendant. In addition to annexure Q to PX1 I have been taken to a document marked annexure R to PX1, being minutes of the third defendant dated 29 September 1948. At p 89 of that document the following appears:

It was resolved to authorise Babcock and Wilcox of Australia Pty Ltd to act as agents for the company in Australia for such purposes as may be agreed upon between the respective boards.

16. There is nothing before me to indicate what purposes were agreed upon between the respective boards as representing the extent of the agency. The statement of claim in par 35 asserts that BAL was “ BIL's agent in Australia ” without qualification. It seems to me again that these early documents, whilst clearly evidencing an intention in 1948 that BAL would operate in Australia subject to the control of BIL and that BAL would for agreed purposes be BIL's agent in Australia, the statements of intention are not necessarily inconsistent with the defence of denial by the third defendant of the specific assertions made in relation to control by BIL and agency during the periods when it is alleged that the plaintiff's father was exposed to asbestos during the construction of the Wangi Power Station. I decline to strike out par 35 (e) of the defence.

17. The next paragraph that is sought to be struck out is the defence to par 62 of the second amended statement of claim. That paragraph alleges that:

In or about September 1948 BIL caused BAL to be incorporated in Australia as a wholly owned subsidiary for the purpose of carrying out BIL's work in Australia.

The defence of the third defendant in its current amended form admits the incorporation of the first defendant but does not admit that the first defendant, BAL, was a wholly owned subsidiary of BIL. It otherwise denies the assertions in par 62 of the second amended statement of claim. The third defendant's answer is said to be inconsistent with an admission made by the third defendant in these proceedings. The third defendant has indicated that it will at an appropriate stage seek leave to withdraw that admission and to make admissions consistent with the defence which it has now been granted leave to file. In view of that stated intention and in view of the amendment which I have today permitted the third defendant to make I do not think it appropriate to strike out the defence to par 62 on the basis of inconsistencies to which my attention has been drawn.

18. The next paragraph of the statement of claim which it is sought to be struck out on the basis of inconsistency, is par 64. That asserts that at all material times BAL was BIL's agent for the purpose of constructing boilers at the Wangi Power Station acting within the scope of its, that is I assume BAL's authority. This assertion is similar to the assertion contained in par 35(e) of the statement of claim that I have referred to and for the reasons given by me when dealing with the third defendant's defence to par 35(e) I do not think it appropriate to exercise the Court's discretion to strike out that defence.

19. Par 65 of the amended statement of claim alleges that in the alternative BIL directed and supervised and controlled BAL in performing its obligations under the Wangi Power Station contract. The third defendant denies this assertion. It is said that that denial is inconsistent with annex Q to PX1 and that the defence is inconsistent with admissions made by the third defendant set out in annexures J and N to PX1, those being the answers to admissions number 28, 46(e) and 50 in those annexures.

20. The admissions referred to in submissions in annexure N to PX1 are confined to training of staff in the United Kingdom and Australia and do not, it seems to me, cover the broad allegation in the second amended statement of claim that at all material times BIL directed, supervised and controlled BAL at Wangi. The particularity of the admissions and the general nature of the assertion or assertions contained in paragraph 65 of the second amended statement of claim lead me to the view that there is no sufficient inconsistency to establish with a sufficient degree of clarity a basis to strike out the defence. In this respect I have taken note of the fact that annexure Q to PX1, that is the letter dated 8 September 1948, is relevant, but I repeat the comments earlier made by me that this in reality is a statement of intention rather than an admission of subsequent fact.

21. The plaintiff seeks to strike out the third defendant's answer or answers to the allegations set out in par 67(a), (b) and (c) of the second amended statement of claim.

22. Par 67 alleges that the third defendant BAL designed the boilers for the power station, prepared the plans and specifications for the construction of the boilers and that it invented and patented the Bailey wall. This defence filed by the third defendant is said to be inconsistent with the admission numbered 27 set out in annex J to PX.1. That admission by the third defendant was in the following terms:

By letter dated 7 October 1948 the Commissioner for Railways accept BIL's tender based upon the design and technical specifications and manufacturing schedules submitted by BIL.

Again this admission is much narrower in its scope than the broader allegations set out in par 67(a) and (b) and I do not think that there is, on the evidence, a case made out that the admission renders the defence filed so clearly wrong that the defence should be struck out in that respect.

23. When the matter was last before me the application to strike out the answer to par 67(c) was simply based upon the findings of Curtis J in the Royal case, to which I will refer in due course. It is now said that the answer or the defence filed by the third defendant to par 67(c) of the amended statement of claim is inconsistent with the content of exhibit PX4 tendered today, which is a publication in June 1929 by the third defendant under the heading, “The Bailey Furnace Wall”. In that document the following appears at the base of the page which is numbered 094:

This design is the property of Babcock and Wilcox Ltd and is only allowed to be used by express permission and licence from Babcock and Wilcox Ltd.

That statement appears again at the bottom of p 96.

24. The third defendant has tendered as part of 3DX.1 a document entitled “ United States Patent Office ” which suggests that a wall such as the bailey wall or more specifically its design was patented in the United States in 1933. Document PX4, whilst it certainly shows that the third defendant in 1929 was asserting intellectual property to the design does not, it seems to me, particularly in view of the contents of tab 7 to 3DX.1, establish that the denial by the third defendant that it invented or patented the bailey wall is necessarily or was necessarily incorrect. For that reason I do not propose to strike out that part of the defence to paragraph 67 which relates to the inventing or patenting of the bailey wall.

25. Paragraph 71 of the second amended statement of claim alleges that BIL trained supervisors to be employed by BAL to supervise the construction of the boilers at Wangi Power Station. That assertion is denied in par 71 of the defence. The plaintiff points out that this denial is inconsistent with answers made by the third defendant in response to the notice to admit facts annexed as annexure J to exhibit PX.1. In response to that notice the third defendnat admitted that throughout the period 1954 to 1961 BIL lent or transferred specialised staff to BAL and that BIL trained BAL staff in the United Kingdom. The admission also extends to the notice by the plaintiff to admit that from 1954 to 1961 for the purposes of the Wangi Power Station work BIL trained BAL staff in the United Kingdom and in Australia.

26. Whilst those admissions do to some extent appear at odds with the defence filed by the third defendant it must be borne in mind that the assertion in the second amended statement of claim in par 71 is much wider than the specific admissions to which I have referred. In my view the admissions do not contradict the breadth or the scope of the general assertion made in par 71. For that reason I also decline to strike that part of the defence.

27. Before turning to the question of the operation of s 25B I must observe that in many respects it would seem probable that the action taken by the plaintiff to seek interlocutory relief may have been influenced by the specific admissions made by the third defendant before the plaintiff was aware that leave would be sought to withdraw in whole or part those admissions. Further, of course, the action taken by the plaintiff to move to strike out parts of the statement of claim was made before any application was foreshadowed by the third defendant to make any amendments to specific parts of its defence in the light of the motion brought by the plaintiff. These are matters to which no doubt submissions will be made when the question of costs is addressed.

28. I now turn to the second part of the application, that is the plaintiff's claim that the third defendant is precluded by s 25B of the Dust Diseases Tribunal Act from denying, as it has done, certain allegations made by the plaintiff in the statement of claim. S 25B(1) of the Dust Diseases Tribunal Act is in the following terms:

Issues of a general nature determined in proceedings before the Tribunal (including proceedings on 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.

29. The plaintiff has filed a s 25B notice which is annexure K to exhibit PX1. Relevantly that notice relies upon determinations by His Honour Judge Curtis in Babcock Australia Ltd v Eraring Energy (No 2) and in Eraring Energy v Babcock Australia Ltd (2001) 22 NSWCCR 141. The plaintiff sets out in the s 25B notice the relevant parts of the judgment, which the plaintiff says prevents the defendant from relitigating those alleged determinations without the leave of the Tribunal. In this respect the following pars of the s 25B are said to be relevant:

1. The construction of the Wangi Power Station was undertaken by the Commissioner for Railways’ predecessors in title, successively the Electricity Commission (ELCOM), Pacific Power (PP) and Eraring Energy. The Commissioner contracted the boiler construction to Babcock Australia Limited (BAL) at the request of its parent company Babcock International Limited (BIL). BIL had designed the boilers intended for their construction. This tender was accepted by the Commissioner who then consented to the novation of the contract to BAL.

Babcock Australia Limited - v - Eraring Energy & Ors [2001] NSW, DDT 5 (19 July 2001) Curtis J at paragraph 1.

3. On 10 September 1948 BIL caused BAL to be incorporated in Australia as a wholly owned subsidiary to commence trading on 1 October 1948. BAL issued to BIL 670,001 shares and upon payment for this allotment applied the proceeds on account of the purchase price of the whole of BIL’s Australian asset of land, plant and equipment.

Babcock Australia - v - Eraring Energy & Ors [2001] NSW, DDT 5 (19 July 2001), Curtis J at paragraph 16.

4. It is beyond dispute that BAL operated as the creature of BIL, which exercised almost total control over its subsidiary. I have before me volumes of material evidencing the control of BAL by BIL however one instance is sufficient to illustrate that domination. On 12 April 1954 BIL and BAL entered a formal “Consultancy” agreement governing the use by BAL of BIL’s expertise and products.

Babcock Australia - v - Eraring Energy & Ors [2001] NSW, DDT 5 (19 July 2001), Curtis J at paragraph 17.

9. The evidence has established the following facts and circumstances:

(a) Mr Critchley, the general works manager of BIL with “control over all of the company’s works in Great Britain” learned in 1931 that the manipulation of asbestos in the process of insulating boilers with that substance was dangerous to the health of workers engaged upon the work and that even occasional exposure should not exceed 8 hours in any one week.

(b) Mr Critchley knew that workers employed to insulate boilers to BIL’s designs and specifications were exposed to those dangers.

(c) Prior to the incorporation of BAL in 1948 engineers employed by BIL devised, instituted and trained BAL personnel in the system of work to be followed in the erection of Bailey furnaces and knew that pursuant to that system men worked in the presence of significant concentrations of airborne dusts without respirators.

(d) Pursuant to the terms of a consulting agreement between BIL and BAL, BIL’s engineers in 1954 trained in the UK Mr Henry Voss, an employee of BAL in his duties as supervising engineer for the Wangi site, which duties included, in the judgment of BIL engineers the planned sequence of the works. BIL’s engineers demonstrated to Mr Voss a system of work for the erection and insulation of boilers identical to that effected by BIL engineers in Australia before 1948 and to that effected by BAL engineers at Wangi, pursuant to which men without protection of respirators, were exposed to heavy concentrations of asbestos dust for periods in excess of 8 hours in any one week while laggers worked overhead.

(e) BIL supplied asbestos rope for use together with instructions for that use. BIL’s engineers and designers knew that compliance with those instructions would generate heavy concentrations of airborne asbestos dust. The engineers and designers ought to have known that such concentrations were dangerous to health if a worker were not equipped with a respirator. The engineers knew that consistently with the practices in which BAL engineers had been trained, that BAL employees would be neither advised nor required to wear a respirator.

(f) The burden upon BIL of discharging any duty to BAL employees would have been minimal. BIL already provided instructions upon labels and plans and in printed erected manuals. These instructions could easily have included warnings. Similarly BIL circulated memos to engineers and managers. One such memo could easily have alerted the engineers and managers to the dangers created by BIL’s work practices.

Babcock Australia - v - Eraring Energy & Ors [2001] NSW, DDT 5 (19 July 2001), Curtis J at paragraph 102.

10. A responsible servant of BIL learned over 20 years prior to the commencement of the work at Wangi that persons working upon or near the insulation boilers built to BIL’s design and specifications faced risks of death or serious injury because of the manipulation of asbestos as required by those designs and specifications. BIL’s engineers thereafter devised and instituted the system and sequence by which the boilers at Wangi would be erected. The engineers specified the manner in which asbestos was to be applied to the structure. The engineers and managers knew that the workers were unskilled and probably ignorant of the unusual dangers. The engineers had cause to know that reasonably available precautions such as the provisions of masks would obviate the danger. The engineers knew that workers engaged upon BIL’s works both in Australia before 1948 and the United Kingdom as late as 1954 were exposed without respirators to the inhalation of injurious asbestos dust in the course of their work. BIL trained supervisors to be employed by BAL at Wangi both before and after the incorporation of BAL. BIL had cause to believe that BAL would adopt the same system of work as BIL.

Babcock Australia - v - Eraring Energy & Ors [2001] NSW, DDT 5 (19 July 2001), Curtis J at paragraph 111.

12. BIL supplied to BAL a product, asbestos rope, known by BIL to be dangerous if precautions as to its use were not observed. BIL also, for reward, supplied to BAL the design and specifications and instructions for the insulation of the boilers at Wangi, knowing that construction pursuant to that design and those specifications and instructions created dangers to the health of persons engaged upon the works if precautions were not observed.

Babcock Australia – v - Eraring Energy & Ors [2001] NSW, DDT 5 (19 July 2001), Curtis J at paragraph 113.

It should be noted that in submissions made by counsel for the plaintiff when dealing with par 9 of the notice under s 25B which in turn concerned a lengthy paragraph numbered 102 in the judgment of Judge Curtis the only specific submissions were made in relation to par 102.7 and 102.8 of Judge Curtis' judgment.

30. For ease of reference I have refered and will refer to the decision by His Honour Judge Curtis as the Royal decision, Royal being the name of the plaintiff in those proceedings. The reported decision to which I have referred, of course, was a determination of issues in a later cross-claim between Babcock Australia Ltd and Eraring Energy.

31. The plaintiff says that the issues listed and summarised in the s 25B notice, if relitigated, would cause undue delay, embarrassment and expense. The plaintiff says that unless the third defendant indicates an intention to seek leave under s 25B, the third defendant will be precluded from relitigating the issue. The third defendant has indicated that it proposes to make no such application, arguing that the relevant extracts relied upon from the judgment of Curtis J in Royal were not within the proper application of s 25B . The plaintiff's argument would appear to be quite consistent with the approach adopted by Hunt J in the Supreme Court of New South Wales Haines v Australian Broadcasting Commission (1995) 43 NSWLR 404. S 25B of the Dust Diseases Tribunal Act is a section specific to this Tribunal but it would seem to me that it would necessarily follow that if a party was prevented by s 25B from relitigating or rearguing an issue of a general nature then it would be appropriate to strike out those parts of its defence which appear or appeared to deny or not admit assertions in a statement of claim which had been the subject of prior general determinations in proceedings before the Tribunal.

32. The fundamental question is, what is an issue of "a general nature" determined in proceedings before the Tribunal or in appellate proceedings from the Tribunal. Under s 34 of the Interpretation Act 1987 the Tribunal is entitled to have regard to the relevant second reading speech in the Parliament to either confirm that the relevant meaning of the words in s 25B is the ordinary meaning conveyed by the section or to determine the meaning of the words in the section if that meaning is obscure. I do not regard the words " of a general nature " as being obscure but it does appear to me that the natural meaning of those words is consistent with the examples given in the second reading speech given by the then Attorney General in the Legislative Council on 29 October 1998. The relevant Hansard for that date records the following:

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 presents, 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 afresh 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.

33. No authority exists on the correct interpretation of the words “ Issues of a general nature”. I have had the benefit of reading a draft judgment published by his Honour Judge Walker in the matter of the State Rail Authority of New South Wales v Amaca dated 17 November 2004. That of course is not a judgment and is not therefore authority, but I accept that the draft judgment contains the argument advanced by the plaintiff in support of her application for relief based upon the application of s 25B.

34. The other reference in reported decisions of the Tribunal is contained in a ruling of the President, His Honour Judge O'Meally, in a matter of Eaton v Carrier Air Conditioning 23 September 2004. In that judgment his Honour said in response to submissions from counsel that:

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.

35. The reported decision does not appear to really concern the natural meaning or the correct meaning of the words in the section, “ issues of a general nature”. The two examples given in the second reading speech of the operation of the amendment, that is applying to cases involving, for example, a determination of the carcinogenic nature of certain types of asbestos or the availability of means to reduce or minimise risk would seem to me, with respect, to be clear examples of issues of a general nature determined in proceedings by the Tribunal. The two examples referred to in the second reading speech reflect the “ general ” nature of the relevant issue, that is the relevance of the particualr determination in all cases where the relevant carcinogenicity of particular asbestos fibres is involved or the availability of means generally to minimise the risk of exposure. Those examples contain examples of issues where the determinations were not limited in any material respect by the parameters of the case.

36. The determinations by His Honour Judge Curtis referred to in the s 25B notice relate to and in my view are limited to firstly, in respect of par 1 of the judgment, the contractual relations between the first second and third defendants in relation to the Wangi Power Station construction.

37. Secondly, the findings in par 16 of the judgment appear to be limited to the incorporation details of BAL and its share alotment and share payment arrangements.

38. Thirdly, the determinations in par 17 of the judgment, when read in conjunction with par 18 and 19, in my view relate to and involve the extent to which BIL, the UK parent, controlled the operations of its Australian subsidiary in Australia at the Wangi Power Station site.

39. Fourthly, in relation to the findings in par 102.7 and 102.8 the findings of Judge Curtis relate to the training of an employee of BAL, Mr Voss, his engineering supervision duties at the Wangi site and the consequences on that site of his training in terms of exposure of workers at the site to asbestos. Further, his findings relate to the supply of materials containing asbestos to the Wangi site and the risks to persons on the site of exposure to those products containing asbestos.

40. Fifthly, His Honour's determinations in par 11 of his judgment relate to and would seem to me to be confined to the particular risks associated with the use of products containing asbestos at the Wangi Power Station site and the response or lack of it by the employees of BIL to those risks, and to the hazards generated at the Wangi site as a consequence.

41. Finally the determinations by Judge Curtis in par 112 of his judgment would appear to be related to the particular finding that BIL owed the plaintiff in that case a duty of care, and the scope and extent of that duty.

42. Although the language of Judge Curtis was of necessity in some respects of a general nature it would seem to me that each of the findings or determinations by Judge Curtis upon which the plaintiff here relies, and which I have summarised above, were specific to the parties in that litigation and the particular issues of fact involved in that case. His Honour's findings were not, in my view, determinations of issues of a general nature within the natural and everyday meaning of those words in s 25B of the Dust Diseases Tribunal Act 1989 . Certainly in my view it is not sufficiently clear for the purposes of Pt 15 r 26 of the Supreme Court Rules that a plain and obvious case has been made out that the determinations of His Honour Judge Curtis were of a general nature as contemplated by s 25B to justify these discretionary relief sought. For these reasons I dismiss the motion brought by the plaintiff.

43. I direct that the third defendant is to file and serve any written submissions for costs by 31 December this year.

44. The plaintiff and the first and second defendants to file any response on or before Monday, 31 January 2005.

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