Rowcliff v Telstra Ltd

[2008] NSWDDT 7

Dust Diseases Tribunal

of New South Wales

CITATION:	Rowcliff v Telstra Ltd [2008] NSWDDT 7
PARTIES:	John Graham Rowcliff (As Legal Personal Representative of the Estate of the late David Aldridge) (Plaintiff) Telstra Corporation Ltd (Defendant)
MATTER NUMBER(S):	7290 of 2007
JUDGMENT OF:	O'Meally P
CATCHWORDS:	Dust Diseases Tribunal :- Offer of compromise - Terms not specified - Entry of judgment resisted by offeror - Judgment entered in accordance with offer of compromise
LEGISLATION CITED:	Dust Diseases Tribunal Regulation 2007, Clauses 86 and 90 Uniform Civil Proceedure Rules, Rules 20.26 and 20.27
DATES OF HEARING:	4 March 2007
DATE OF JUDGMENT:	4 March 2008
EX TEMPORE JUDGMENT DATE:	4 March 2008
LEGAL REPRESENTATIVES:	Mr J L Sharpe instructed by Turner Freeman appeared for the Plaintiff Mr P A Lichaa of Sparke Helmore appeared for the Defendant

JUDGMENT:

RULING

O’MEALLY P

1. On 21 September 2007 David Aldridge issued a statement of claim against Telstra Corporation alleging that negligently and in breach of statutory duty he was exposed to asbestos dust and fibre and, as a consequence, developed mesothelioma.

2. On 8 November 2007 while the claim was subject to the Claims Resolution Process (CRP) established under the Dust Diseases Regulation 2007 (the Regulation) Mr Aldridge died. On 18 December 2007 John Graham Rowcliff, the legal personal representative of the estate of the late Mr Aldridge, was substituted as plaintiff.

3. On 19 February 2008 the defendant served an Offer of Compromise on the plaintiff which was in these terms:

Without admission of liability the defendant offers to compromise the plaintiff’s claim in the following manner:

This offer is made in accordance with Rule 20.26 of the Uniform Civil Procedure Rules 2005 (NSW) and clause 86 of the Dust Diseases Tribunal Regulation 2007.

This offer is open for acceptance until 5:00pm on 27 February 2008.

of the Uniform Civil Procedure Rules 2005 (UCPR) relevantly provides:

20.26 Making an offer

(1) In any proceedings, any party may, by notice in writing, make an offer to any other party to compromise any claim in the proceedings, either in whole or in part, on specified terms.

(2) An offer must be exclusive of costs, except where it states that it is a verdict for the defendant and that the parties are to bear their own costs.

(3) A notice of offer:

(a) must bear a statement to the effect that the offer is made in accordance with these rules, and

(b) . . .

(6) An offer may be expressed to be limited as to the time it is open for acceptance.

(7) The following provisions apply if an offer is limited as to the time it is open for acceptance:

(a) the closing date for acceptance of the offer must not be less than 28 days after the date on which the offer is made, in the case of an offer made 2 months or more before the date set down for commencement of the trial,

(b) the offer must be left open for such time as is reasonable in the circumstances, in the case of an offer made less than 2 months before the date set down for commencement of the trial.

5. As noted, the offer was made on 19 February and was expressed to be open until 5pm on 27 February. On 11 February 2008 the case was listed for hearing on 27 and 28 February 2008. In that circumstance, that the offer was open until 5:00pm on 27 February 2008 was reasonable as to time (UCP r 20.26(7)(b)).

of the Regulation in substance repeats the provisions of r 20.26. Relevantly, it provides:

86 Making an offer

(1) In any proceedings, any party may, by notice in writing, make an offer to any other party to compromise any claim in the proceedings, either in whole or in part, on specified terms.

(2) An offer must be exclusive of costs, except where it states that it is a verdict for the defendant and that the parties are to bear their own costs.

7. Further requirements are specified in cl 86, which, for present purposes, are unnecessary to recite.

8. The important words in r 20.26(1) and cl 86(1) are on specified terms.

of the UCPR and cl 90 of the Regulation deal with the acceptance of an offer. The procedural requirements of r 20.27 and cl 90 have been complied with. On 27 February 2008 the plaintiff’s solicitors sent an e-mail to the defendant’s solicitors. Relevantly it said:

We refer to the above matter and to your recent offer of compromise dated 19 February 2008.
We refer to clause 90(1) of the Dust Diseases Tribunal Regulation 2007 and advise we have received instructions from our client to accept your offer of $275,000 plus costs in settlement of this claim.
…
Would you kindly confirm receipt of this email.

10. The defendant now resists the entry of judgment. It seeks to include terms dealing with Health Insurance Commission repayments, and also reserving its position in respect of social security payments which otherwise the defendant might be liable to repay. The plaintiff wants judgment for $275,000 plus costs.

11. Both r 20.26 of the UCPR and cl 86 of the Regulation contemplate that an offer may be made on specified terms. No terms were specified in the Offer of Compromise and, having accepted the offer, the plaintiff is entitled to judgment in accordance with the UCPR and the Regulation.

12. There will be judgment for the plaintiff in the sum of $275,000 plus costs as agreed or assessed.

Mr J L Sharpe instructed by Turner Freeman appeared for the Plaintiff

Mr P A Lichaa of Sparke Helmore appeared for the Defendant