Salvatore Mesiti v ACN 000 3430 19 Pty Ltd

[2001] NSWDDT 1

Reported Decision (2001) 21 NSWCCR 506

Dust Diseases Tribunal

of New South Wales

CITATION:	Salvatore Mesiti v ACN 000 3430 19 Pty Ltd [2001] NSWDDT 1
PARTIES:	Salvatore Mesiti ACN 000 3430 19 Pty Ltd (formerly known as Fire Control Pty Ltd)
MATTER NUMBER(S):	125 of 2000
JUDGMENT OF:	Curtis J at 1
CATCHWORDS:	Jurisdiction :-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	19/3/01
DATE OF JUDGMENT:	03/23/2001
LEGAL REPRESENTATIVES:	FOR PLAINTIFF:Mr K Tapsell instructed by Watkins Tapsell FOR DEFENDANT Mr T Rowles instructed by Leitch Hasson Dent

JUDGMENT:

1. The defendant moves that the plaintiff's statement of claim filed in this Tribunal on 1 June 2000 be struck out. The defendant's motion does not identify the legal basis for the order sought, however, I assume that relief is sought pursuant to Supreme Court Rules Pt 13 r 5 or Pt 15 r 26 which would entitle the defendant to the order if the plaintiff's case is hopeless.

THE FACTS

2. The parties have agreed upon the following facts:

1. In 1968 Mesiti started employment with the defendant and was thereafter exposed to asbestos.

2. Mesiti was diagnosed with a dust disease in 1976 and the Dust Diseases Board determined he was 10 per cent disabled.

3. In 1976 the defendant transferred Mr Mesiti from a process worker in the factory to a cleaner, Mesiti was then being paid less.

4. In 1978 the Dust Diseases Board determined that Mesiti had asbestosis and increased the percentage of disablement to 20 per cent. Mesiti then received a Dust Diseases Board pension to supplement his wages.

5. In 1980 and 1984 the Dust Diseases Board determined that Mr Mesiti remained 20 per cent disabled.

6. The defendant terminated Mesiti's employment on 3 February 1984.

7. On 21 December 1984 Mesiti filed a summons to extend the time limit and a statement of claim in the Supreme Court of New South Wales No 16885 of 1984.

8. The summons was heard on 11 February 1985 and a judgment was given on 17 May 1985 by Master Sharpe.

9. Master Sharpe determined that between 1976 and 1982 Mesiti had been in possession of all material facts of a decisive character to acquaint him with the fact that he had a reasonable prospect of success resulting in an award of damages sufficient to justify the bringing of an action. Mesiti therefore had not brought himself within the provisions of s 58(2)(a) of the Limitation Act.

10. The summons was dismissed with costs.

11. The allegations made and the relief sought in the present proceedings are identical to that sought in the statement of claim issued in the Supreme Court matter Number 16885 of 1984.

3. At my request a search of the records of the Supreme Court was conducted by the parties. It appears that after the summons to extend time was dismissed no action was taken by the defendant to secure judgment on the statement of claim nor to have the matter struck out for want of prosecution. The action has remained on foot to this day.

4. Limitation Act 1969

s 14(1) An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims-

. . .

(b) a cause of action founded on tort . . .

. . .

s 58(2)Where on application to a court by a person claiming to have a cause of action to which this section applies, it appears to the Court that -

(a) Any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until a date after the commencement of the year preceding the expiration of the limitation period for the cause of action; and

(b) There is evidence to establish the cause of action apart from any defence founded on the expiration of the limitation period,

The court may order that the limitation period for the cause of action be extended so that it expires at the end of one year after that date ...

5. Dust Diseases Tribunal Act 1989

S 12A(1) The purpose of this section is to enable proceedings to be brought before the tribunal in relation to dust related conditions at any time.

(2) Nothing in the Limitation Act 1969 or any other statute of limitations operates to prevent the bringing or maintenance of proceedings before the tribunal in relation to dust related conditions.

Sch 3Cl 7
(1) Section 12A which was inserted by the amending Act applies in relation to causes of action arising before or after the commencement of that section and extends to proceedings pending at that commencement.

(2) However, s 12A does not apply in relation to a cause of action to the extent the proceedings on the cause of action have been determined before the commencement of that section.

6. The defendant's contentions were advanced by Mr Rowles with his usual clear, concise and forceful style. The defendant contends that:

1. The plaintiff's cause of action was extinguished by s 14(1)(d) of the Limitation Act before the enactment of s 12A of the Dust Diseases Tribunal Act.

2. The ruling of Master Sharpe adverse to the plaintiff was in the context a substantive ruling finally disposing of the plaintiff's action.

In John Pfeiffer v Rogerson (74 ALJR 1109 at 1127) the High Court (per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said:

... the application of any limitation period, whether barring the remedy or extinguishing the right, would be taken to be a question of substance not procedure.

3. Cl 7 of sch 3 precludes s 12A reviving the action. The extent to which the master's ruling finally disposed of that action constituted a substantive determination before the commencement of the section.

4. Conceding that the master's ruling was upon an interlocutory application only Mr Rowles contends that it is just such an application as was intended by the draftsman to be the subject of the proviso in cl 7(2). It is Mr Rowles submission that had any action proceeded to judgment against a plaintiff the section would have no work to do because even in the face of s 12A a defendant could successfully plead res judicata.

Mr Rowles relies upon that authority reflected most recently in Capral Aluminium v WorkCover Authority (2000) 49 NSWLR 610 at 631 where the Full Bench of the Industrial Relations Commission said this:

Furthermore a court construing a statutory provision must strive to give meaning to every word of the provision (Commonwealth v Baume 1905 2 CLR 405 at 414, per Griffith CJ; (at 419), per O'Connor J; Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs 1992 176 CLR 1 at 12-13 per Mason CJ.) In Commonwealth v Baume at 414 Griffith CJ cited R v Berchet 1688 1 Show KB 106: 89 ER 480 to support the proposition that it was “a known rule in the interpretation of statutes that such a sense is to be made upon the whole as that no clause, sentence orword shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent.”

7. In the submissions of Mr Tapsell for the plaintiff, the plaintiff came to Master Sharpe in the words of s 58(2) of the Limitation Act "... claiming to have a cause of action". He did not. His action was not then maintainable being out of time. Master Sharpe determined only that the plaintiff was not entitled to relief from the operation of s 14 of the Limitation Act by reason of s 58 of that Act. To that extent only, has there been a determination in relation to the plaintiff's action. S 12A has offered to the plaintiff alternative means of relief from s 14 and he is entitled to rely upon it. The proviso in Sch 3 cl 7 has no operation.

8. Further Mr Tapsell submits that the construction of Sch 3 cl 7 offered by Mr Rowles is not tenable. I would do less than justice to Mr Tapsell's detailed submissions were I to attempt a summary and I repeat his submissions in their terms:

9. In order to understand the parliamentary intentions it is necessary to look at the drafting style of this particular draftsman. Throughout sch 3 there are numerous examples of surplusage to emphasise the effect of the parliamentary intention. Parliament wanted to make it quite clear that there was no entitlement to make further claims once there had been a determination on the merits. In other words, it was emphasising that the retrospectivity of the Act (which itself was unusual) cannot be raised as an argument to give plaintiff's a second bite of the cherry once their cases have been heard on the merits, or, where there has been a settlement.

10. This construction of s 12A to the effect that cl 7(2) is mere surplusage is supported by other amendments which use the same terminology in circumstances where it must be surplusage.

11. S 12B repeals the effect of s 44 of the Law Reform (Miscellaneous Provisions) Act 1944 so far as it affects dust diseases so the estate can claim general damages for pain and suffering and loss of expectation of life. The transitional provisions in sch 3 then provide:

cl 8:

(1) Section 12B, which was inserted by the amending Act extends so that it applies in relation to the following proceedings:.

(a) proceedings commenced before the commencement of that section and pending at that commencement,

(b) proceedings commenced before the commencement of that section, where the person died on or after 7 May 1998 and the proceedings:

(i) were pending at the date of death, and

(ii) were still pending on 7 May 1998,

(c) proceedings commenced before the commencement of that section, where the person died on or after 7 May 1998 and the proceedings were pending at the date of death.

. . .

(3) However, section 12B does not apply in relation to a cause of action to the extent that proceedings on the cause of action have been determined before the commencement of that section

12. Proceedings which are pending have not been determined, there may be arguments about whether particular proceedings are pending or determined but logically proceedings which have been determined cannot be pending and vice versa. The Act clearly says that the amendments will apply to pending proceedings He need not have said that if it does not apply to proceedings which have been determined because they are logically exclusive, but it does say that. This is another example of where this language is strictly speaking surplusage but it is meant to make it clear that claimants whose cases have been dealt with on the merits by Court or settlement do not have the benefit of the retrospectivity of the Act.

13. S 12C deals with settlements and relative positions of joint tortfeasors. S 12C provides:

(1) For the avoidance of doubt, settlement with one or more joint tortfeasors in or in relation to proceedings before the tribunal and who are liable in respect of damages as a result of a dust related condition is not a bar to recovery against one or more other joint tortfeasors ( whether or not they are defendants in the proceedings) unless the terms of the settlement otherwise provide.

(2) A tortfeasor who settles proceedings before the tribunal that are brought against the tortfeasor by a plaintiff in respect of damage as a result of a dust related condition is not precluded from recovering contribution in respect of that same damage under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 from any other tortfeasor (whether a joint tortfeasor or otherwise) who is not a party to the settlement only because a judgment giving effect to that settlement has been entered in favour of the plaintiff without the tribunal having considered the merits of the case.

(3) This section does not affect the operation or interpretation of s 5(1)(a) of the Law Reform (Miscellaneous Provisions) Act 1946.

14. This particular provision was unnecessary. Thompson v Australian Capital Television Pty Ltd ((1996) 186 CLR 574) had held that a release of one tortfeasor did not effect the release of another. Nevertheless cl 9 of Sch 3 provides:

S 12C(2) extends to proceedings pending at that commencement but does not apply to proceedings that have been settled before that commencement.
There was no need for cl 9(2). Thompson's case already applied to pending proceedings by force of the High Court's decision. It was irrelevant to proceedings which had been settled because the plaintiff could not sue the same defendant again by reason of the release. Despite this the draftsman included this provision to make doubly sure that people understood the limits of the retrospectivity which was being introduced.

15. S 12D deals with the treatment of non economic loss. The problem arose out of the decision in James Hardie v Newton (NSW Court of Appeal 22 December 1997) which provided that the amount of weekly compensation already received by the worker must be deducted from damages even where the common law claim related only to damages for pain and suffering. The second reading speech at p 9436 specifically says that the legislation is intended to overrule the effect of that decision.

16. The section applies to both matters before the tribunal and appeals from the tribunal. It had no need to say anything about matters which had previously been determined. A matter which had been determined on the merits by court judgment or settlement is not a matter before the tribunal or an appeal from it but sch 3 cl 10(2) provides:

However s 12D does not apply in relation to a cause of action to the extent the proceedings on the cause of action have been determined before the commencement of that section.

17. A person who brought proceedings before the commencement of the Amendment Act and had those proceedings determined by judgment or by settlement would be unable to bring the same proceedings against the same defendants by reason of res judicata or because the contractual effect of the release. All the draftsman was doing in sch 3 r 7(2) was restating this - as he also restated other settled principles in other sections of the Act.

18. The intention of the statute is clear, even those persons who knew all the facts relating to the disease, its causes and their rights to sue their employers can now take proceedings for common law damages. Upon the defendant’ construction of s 12A and cl 7, the legislation benefits only those who have not made an application to extend the limitation period The clear intention of the legislation is to benefit those who had not had a claim for common law damages arising out of a dust disease determined on the merits whether by determination either by a judgment of the court or by a settlement.

19. This is remedial legislation. So much is clear from the second reading speech. A canon of construction is that it should be given a liberal construction.”

RESOLUTION

20. I accept the plaintiff's submissions in their entirety and hold that the plaintiff's cause of action is maintainable in this Tribunal. However, the plaintiff's statement of claim issued in the Supreme Court remains on foot.

21. I am informed by Mr Rowles that the defendant does not consent to the discontinuance of the Supreme Court proceedings and in that circumstance the current proceedings are duplicitous and in that respect vexatious. I have no alternative but to order that the proceedings be struck out.

22. The proper course for the plaintiff is to move the Registrar of the Supreme Court to transfer the Supreme Court proceedings to this Tribunal pursuant to s 12 of the Dust Diseases Tribunal Act 1989.

23. The proceedings are dismissed. I make no order for costs.

Mr K Tapsell instructed by Watkins Tapsell appeared for the plaintiff

Mr T Rowles instructed by Leitch Hasson Dent appeared for the defendant