Seltsam Pty Ltd v Energy Australia

[1999] NSWCA 89

CITATION:	Seltsam Pty Ltd & Anor v EnergyAustralia & Ors [1999] NSWCA 89
FILE NUMBER(S):	CA 40607/98
HEARING DATE(S):	25 March 1999
JUDGMENT DATE:	12 April 1999
PARTIES :	Seltsam Pty Ltd & Anor EnergyAustralia & Ors
JUDGMENT OF:	Priestley JA at 1; Giles JA at 2; Fitzgerald JA at 55

LOWER COURT JURISDICTION:	Dust Diseases Tribunal
LOWER COURT FILE NUMBER(S) :	DDT 2/97
LOWER COURT JUDICIAL OFFICER:	O'Meally J

COUNSEL:	Appellant - J D Hislop QC & G P F Rundle First Respondent - M F Holmes QC & D Robinson Third & Fourth Respondents (Submitting) - N E Chen
SOLICITORS:	Appellants - Toomey Pegg Drevikovsky First Respondent - Goldrick Farrell Mullan Third & Fourth Respondents - Phillips Fox
CATCHWORDS:	DUST DISEASES TRIBUNAL - jurisdiction - cross-claim filed by defendant against third parties after judgment for plaintiff - filed pursuant to grant of extension of time under rules - whether "included in" the proceedings within s11(4) of the Dust Disease Tribunal Act.
DECISION:	(1) Grant leave to appeal from the decision of Maguire J given on 16 July 1998; (2)(a)(By majority) Dismiss the appeal; (b) Claimants/appellants pay the costs of the first opponent/respondent.

30

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40607/98
DDT 2/97

PRIESTLEY JA
GILES JA
FITZGERALD JA

Monday 12 April 1999

SELTSAM PTY LTD & ANOR v ENERGYAUSTRALIA & ORS

JUDGMENT

1 PRIESTLEY JA: I agree with Giles JA.

2 GILES JA: The claimants apply for leave to appeal from a decision given by Maguire J, sitting as the Dust Diseases Tribunal (“the Tribunal”), on 16 July 1998, in which his Honour dismissed their applications to strike out a cross-claim against them filed by the first opponent in proceedings in the Tribunal (“the proceedings”). At issue was and is the jurisdiction of the Tribunal to entertain a cross-claim filed by a defendant after judgment in favour of the plaintiff.

3 Full argument was heard on the application for leave to appeal as if it were the appeal, on the agreed basis that the appeal could be disposed of without further argument if leave to appeal were granted. Argument was presented by the claimants and the first opponent. The second to fifth opponents, cross-defendants to the cross-claim in the proceedings together with the claimants, either did not appear or filed a submitting appearance.

Facts

4 Mr Ian Banham worked for the Balmain Electric Light and Power Company as a trimmer, later a fireman, from 1946, and for the Sydney County Council as a linesman from about 1949. He retired in 1982. In 1996 he was diagnosed as suffering from mesothelioma.

5 On 15 January 1997 Mr Banham commenced the proceedings, claiming damages against the first opponent, his former employer or the statutory successor to his former employer. He alleged that he had contracted mesothelioma from use of and exposure to asbestos insulation materials in the course of his employment, and that the use and exposure were the result of negligence and breach of statutory duty on the part of his employer. It was necessary that he obtain an extension of time to commence the proceedings, and the statement of claim by which he did so was accompanied by a notice of motion claiming an extension of time.

6 By this time Mr Banham’s mesothelioma was advanced, and the Tribunal appointed 17 January 1997 for the hearing of the proceedings at the hospital where he was receiving care. On that day discussions between the legal representatives of Mr Banham and the first opponent arrived at a settlement of Mr Banham’s claim.

7 The parties attended before O’Meally J on the night of 17 January 1997. They handed to his Honour terms of settlement, short minutes of orders, and an order for judgment. The terms of settlement were dated 17 January 1997, and provided for a money judgment in favour of Mr Banham, for repayment by him of various amounts to various bodies, and in other respects for payment of the judgment sum and interest. The order for judgment was for judgment for the money sum taking effect on 17 January 1997. The short minutes of orders were dated 17 January 1997, and provided for the admission and marking of an affidavit sworn by Mr Banham, an order extending the time for commencing the proceedings, and -

“3) The Defendant be granted leave to issue and proceed with any cross-claim filed within 28 days from the date hereof.”

8 When these documents were handed to his Honour, the solicitor for the first opponent said, “Before the Court seal is placed on those documents, I seek the Court’s leave to issue cross-claims”. His Honour then stated that he made the orders in the short minutes of order, that there would be a verdict and judgment in accordance with the first paragraph of the terms of settlement, and that he noted the remaining paragraphs of the terms of settlement. His Honour placed the Court seal on each of the three documents.

9 Mr Banham died on 22 January 1997.

10 The first opponent did not file a cross-claim in the proceedings within the 28 days from 17 January 1997.

11 On 25 July 1997 the first opponent filed in the proceedings a notice of motion claiming “leave to extend the time for the issuing of Cross Claims pursuant to Part 3 Rule 3(1) and (2) of the Supreme Court Rules for fourteen (14) days from the date of this Motion”. The motion came before O’Meally J on 28 July 1997. In his reasons Maguire J said that Mr Banham was represented before his Honour by a solicitor; the first opponent was also represented. His Honour made the order extending time.

12 On 11 August 1997 the first opponent filed in the proceedings the cross-claim the subject of the claimants’ application. The claimants and the second to fifth opponents were made cross-defendants. It was alleged, in brief, that as manufacturers and/or suppliers of asbestos products they had been negligent in the provision to the first opponent of the asbestos products used by Mr Banham and to which he had been exposed and in the lack of warning of dangers associated with their use. The first opponent claimed indemnity or contribution from the claimants and their co-cross-defendants pursuant to s 5 (1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (“the LR Act”).

13 On 26 August 1997 and 3 April 1998 respectively the claimants filed notices of motion claiming orders that the cross-claim against them be struck out. The notices of motion were heard by Maguire J on 21 April 1998. On 16 July 1998 his Honour gave judgment dismissing the notices of motion, being the decision from which leave to appeal is sought.

TheTribunal

14 The Tribunal was established as a court of record by s 4 of the Dust Diseases Tribunal Act 1989 (“the Act”). By s 10(1) of the Act, with exceptions of no present significance it has “exclusive jurisdiction to hear and determine proceedings referred to in sections 11 and 12”, and by s 10(4) in any such proceedings it has “the same power to make decisions as the Supreme Court would, but for this section, have had in relation to similar proceedings brought in the Supreme Court”.

15 Section 11 of the Act provides -

”11. (1) If:

(a) a person is suffering, or has suffered, from a dust-related condition or a person who has died was, immediately before death, suffering from a dust-related condition; and
(b) it is alleged that the dust-related condition was attributable or partly attributable to a breach of a duty owed to the person by another person; and
(c) the person who is or was suffering from the dust-related condition or a person claiming through that person would, but for this Act, have been entitled to bring an action for the recovery of damages in respect of that dust-related condition or death,
proceedings for damages in respect of that dust-related condition or death may be brought before the Tribunal and may not be brought or entertained before any other court or tribunal.


(2) In subsection (1), a reference to a duty includes a reference to a duty imposed by statute as well as a duty imposed under the common law.

(3) If the cause of action giving rise to proceedings be brought under subsection (1) also gives rise to a claim in respect of some other matter, the claim may be included in those proceedings even though it does not relate to a dust-related condition from which a person is suffering or has suffered.

(4) Any matter that is ancillary or related to a matter that is the subject of proceedings to be brought under subsection (1) may also be included in those proceedings.

(5) In subsection (1)(c), the reference to a person claiming through a person who is or was suffering from a dust-related condition includes a reference to a relative for whose benefit an action may be brought under the Compensation to Relatives Act 1897.”

16 Section 12 of the Act provides for compulsory transfer to the Tribunal of proceedings pending in the Supreme Court or the District Court “of the kind referred to in section 11(1)”, together with “any ancillary or related matters”.

17 The definitions in s 3 of the Act include that “ancillary or related matter” -
“ … in relation to any proceedings, includes any claim relating to the subject matter of the proceedings that a defendant in the proceedings has against another person, whether that other person is a party to the proceedings or not.”

It was common ground that this definition gave content to the different words “any matter that is ancillary or related to a matter” in s 11(4).

18 The extent of the Tribunal’s jurisdiction was considered in Mangion v James Hardie & Co Pty Ltd (1990) 20 NSWLR 100, in which it was held that the jurisdiction extended to proceedings for damages in respect of death caused by a dust-related condition brought pursuant to the Compensation to Relatives Act 1897 and for nervous shock in relation to a dust-related condition pursuant to s 3 of the Law Reform (Miscellaneous Provisions) Act 1944. (Section 11(5) was added to the Act after the commencement of the proceedings in question, with effect from 21 December 1989, to remove doubt for the future but not affecting the particular proceedings.) In identifying the purpose or object underlying the Act as a matter relevant to its construction, Samuels AP said (at 105) -

“It is manifest from the terms of s 11 and s 12 of the Act that its purpose was to assign to a specified tribunal claims for damages for negligence or breach of statutory duty in respect of injury or death attributable to a dust-related condition. Such proceedings may not be brought before any other court or tribunal, and, if pending in the Supreme Court on the commencement of s 12, the registrar of the relevant division must transfer the proceedings to the Tribunal. Section 11(3) of the Act is not easy to interpret, but it does at least indicate that proceedings for a dust-related condition may carry with them into the Tribunal claims in respect of other matters which are not dust-related. Section 11(4) confers on the Tribunal jurisdiction to deal with matters ancillary or related to the proceedings contemplated by s 11(1), and presumably includes, for example, questions concerning apportionment and the liability of insurers: see the definition in s 3(1).

The object of the Act being to assign to the Tribunal all proceedings in respect of injury or death caused by dust-related conditions, it is necessary to give the words “claiming through” a sufficiently liberal construction to prevent the frustration of the statutory purpose.”

Clarke JA agreed with Samuels AP. Mahoney JA said (at 108-9) -

“The objective sought to be achieved by the Dust Diseases Tribunal Act was, or included, that where a person is liable for damages because of his liability for a dust-related condition, all aspects of his liability should be determined by one Tribunal. The legislature no doubt had in mind that, under the pre-existing law, the person affected by such a condition or his legal personal representative might bring proceedings first in the Compensation Court and then in the Supreme or District Court for damages; and on his death his wife or other relatives might then bring proceedings in the Compensation Court and in the Supreme or District Courts. The experience of multiple litigation in motor vehicle and industrial accident cases was, I think, seen by the legislature as a mischief to be avoided in dust-related condition cases. The objective of avoiding multiple litigation would to that extent be defeated if claims by relatives, and in particular claims by them under the Compensation to Relatives Act , were not to be brought before the Tribunal.

In addition, the legislature no doubt saw as a mischief to be avoided the possibility of inconsistent decisions in different courts or tribunals in respect of claims based upon a dust-related condition. The avoidance
of such inconsistency or at least the not infrequent arguments as to the effect of estoppel was also, I think, before the mind of the legislature.”

19 As Samuels AP was prepared to recognise, a cross-claim by a defendant claiming indemnity or contribution from a co-defendant or a third party pursuant to s 5(1)(c) of the LR Act is an “ancillary or related matter” for the purposes of s 11(4). That is dictated by the definition in s 3(1), and the defined phrase also encompasses a cross-claim by a defendant against a third party other than for indemnity or contribution, such as against an insurer under a contract of insurance, provided that the claim relates to the subject-matter of the proceedings. The provisions of the Act, and the considerations referred to in Mangion v James Hardie & Co Pty Ltd, show that the jurisdiction of the Tribunal was conferred as part of a scheme whereby it should have exclusive jurisdiction, including by compulsory transfer of proceedings in the Supreme Court and the District Court and a wide notion of ancillary or related matters, in relation to claims in respect of dust-related conditions and claims to which such claims give rise. The Tribunal was established as a specialist tribunal (see in particular s 25(3) of the Act), and so far as the provisions of the Act permit all aspects of liability in respect of dust-related conditions are committed to it with a view to avoidance of multiplicity of litigation and enhanced consistency of decision-making.

20 Section 33 of the Act gives a rule-making power in relation to the exercise by the Tribunal of its jurisdiction, including by adopting with adaptions any rules made under the Supreme Court Act 1970. The power was exercised inter alia by the making of rule 2 of the Dust Diseases Tribunal Rules -

“2(1) Except as otherwise provided by these Rules, the rules of court of the Supreme Court apply to proceedings before the Tribunal and to matters in respect of which the Tribunal has jurisdiction in the same way as they apply to proceedings before the Supreme Court and to matters in respect of which that Court has jurisdiction.

(2) The rules of court of the Supreme Court apply with necessary modifications and to the extent that they are not inconsistent with Dust Diseases Tribunal Act 1989.”

21 So far as presently relevant, by force of rule 2 of the Dust Diseases Tribunal Rules there apply to proceedings before the Tribunal and matters in respect of which the Tribunal has jurisdiction, with necessary modifications, the rules of the Supreme Court in relation to filing cross-claims. By Pt 6 r 10(1) of the Supreme Court Rules a claim under s 78 of the Supreme Court Act, which is concerned with the grant to a defendant of relief relating or connected with the subject of proceedings against any other person, is to be made by filing a cross-claim. It was common ground in this application that Pt 6 r 10(1), modified to refer to inclusion of a matter pursuant to s 11(4), is the basis of the procedure for including an ancillary or related matter in proceedings in the Tribunal by filing a cross-claim.

22 By the combined operation of Pt 6 r 10(1), Pt 15 r 3(1), and Pt 7 r 5(1) of the Supreme Court Rules a cross-claimant can file a cross-claim within 28 days after service of a statement of claim upon it. There can be variations to this in particular circumstances, but it was common ground in this application that, subject to the claimants’ submission as to jurisdiction when the cross-claim is filed after judgment in favour of the plaintiff, a defendant in proceedings in the Tribunal has the 28 days within which to file any cross-claim.

23 By Pt 2 r 3 of the Supreme Court Rules -

“3(1) The Court may, on terms, by order, extend or abridge any time fixed by the rules or by any judgment or order.

(2) The Court may extend time under subrule (1) as well after as before the time expires whether or not an application for extension is made before the time expires.

(3) The period within which a person is required by rules or by any order to serve, file or amend any pleading or other document may be extended by consent without an order for extension.”

It was common ground in this application that, subject to the same submission, the defendant in proceedings in the Tribunal can apply for, and if successful have the benefit of, an extension of the 28 days within which to file any cross-claim pursuant to this rule.

Decisions prior to the decision of Maguire J

24 Two decisions had been given on the Tribunal’s jurisdiction in relation to cross-claims, both by Curtis J on 19 September 1997.

25 One was the decision in re Horne, Overall Forge Pty Ltd v Wallaby Grip Ltd (19 September 1997, unreported). The proceedings had been resolved in August 1995 by settlement and entry of judgments disposing of all claims and cross-claims. One of the judgments was in favour of the plaintiff against Overall Forge. In May 1997 Overall Forge applied for what was described as leave to file cross-claims again Wallaby Grip and another company, which had not to that time been parties to the proceedings, claiming contribution pursuant to s 5(1)(c) of the LR Act. His Honour held that a claim for indemnity or contribution was not proceedings for damages within s 11(1), and that, all claims in the proceedings having been disposed of by judgment, there were no proceedings in which the cross-claims could be included within s 11(3) or (4). Leave was refused on the ground that the Tribunal had no jurisdiction to entertain the cross-claims.

26 The other was the decision in re McDonald, Electricity Commission of New South Wales v Transfield Technologies Pty Ltd (19 September 1997, unreported). The plaintiff claimed damages against two defendants, the Electricity Commission (Pacific Power) and GEC. On 21 October 1996 the claims were settled, with judgment for the plaintiff against both defendants. On the same day, and before judgment, Pacific Power filed cross-claims against two cross-defendants, Bradford Insulation and Wallaby Grip, and later it filed a cross-claim against Wallaby Grip BAE, seeking indemnity or contribution pursuant to s 5(1)(c) of the LR Act. On 28 November 1996 GEC filed cross-claims against the same three cross-defendants, also seeking indemnity or contribution pursuant to s 5(1)(c) of the LR Act. Pacific Power’s cross-claims against Wallaby Grip and Wallaby Grip BAE were disposed of by consent. The three cross-defendants to GEC’s cross-claim applied to strike out that cross-claim against them: Bradford Insulation did not apply to strike out Pacific Power’s cross claim against it. The application was dismissed.

27 The argument was to the effect that the judgments on 21 October 1996 had finally disposed of the rights of the plaintiff and the defendants and concluded the proceedings, so that there were no proceedings in which the cross-claims could be included. After setting out the submissions in more detail, his Honour said -

“I do not find these submissions persuasive. The Judgment on 21 October 1996 did not finally dispose of the rights of the defendants conferred pursuant to section 5 of the Law Reform (Miscellaneous Provisions) Act 1946. Nor did the entry of judgment have the effect of concluding ‘all proceedings’.

The central questions are the meaning to be given to the words ‘proceedings’ and ‘included’. Accepting that a proceeding is a ‘method permitted by law for moving a court or judicial officer to some authorised act’, the act authorised by the pleadings on foot before the cross-claims were filed by GEC was a determination, pursuant to section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 of the contributions which Pacific Power may recover from Wallaby Grip and Bradford Insulation. The court was not then authorised to determine the contributions that GEC may recover from those parties if the plaintiff enforced his judgment against GEC. Nor was the court authorised to determine the contribution that GEC may recover from Wallaby Grip (BAE).
The Shorter Oxford English dictionary gives meaning to the word ‘include’ as:
3. Place in a class or category; treat or regard as part of a whole; allow to share to in a right, privilege, or activity.

The proceedings on foot before the issue of the cross-claims by GEC authorised the court to apportion liability between identified tort feasors who ‘would if sued have been liable in respect of the same damage’. GEC is one such tortfeasor. Bradford Insulation and Wallaby Grip were also such tortfeasors although claims as between themselves and GEC were not the subject of a right to obtain orders pursuant to section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 in the extant proceedings. By the cross-claims GEC seeks to ‘share in the right, privilege or activity’ already the subject of proceedings by Pacific Power for contribution or indemnity in respect of the plaintiff’s Judgment. I conclude the tribunal had jurisdiction to grant that right or privilege and entertain the cross-claims of GEC against those cross-defendants against whom Pacific Power had already sought relief.

The circumstances of Wallaby Grip BAE is [sic] slightly different. The claim against the cross-defendant was not on foot when the plaintiff’s action against Pacific Power and GEC was concluded. I do not think that that makes any difference. If the Tribunal is authorised to include by placement in a class or category it is necessary only that there be a class or category of cross-claimants on foot in order to found the jurisdiction. It would be otherwise if there was no concurrent claim before the tribunal. See Horne v Overall Forge (DDT31/96 unreported 19 September 1997).”

The decision of Maguire J

28 As recorded by his Honour, the claimants’ “fundamental point is that there is no jurisdiction in the Tribunal to hear the cross-claim”. The claimants submitted that the cross-claim was not “proceedings for damages” within s 11(1), referring to Unsworth v Commissioner for Railways (1958) 101 CLR 73 at 91, a proposition which it seems the first opponent did not contest (it did not contest it on this application either). The claimants submitted that the only other source of jurisdiction was s 11(4), again a proposition which it seems the first opponent did not contest (and again it did not contest it on this application either). While acknowledging that in general s 11(4) enabled a defendant to file a cross-claim against a third party in proceedings in the Tribunal, the claimants submitted that the first opponent’s cross-claim fell outside s 11(4) because, after the judgment in favour of Mr Banham, there were no longer any proceedings in which the cross-claim could be included. As his Honour noted, the cross-claimants’ position was that the leave to file a cross-claim granted by O’Meally J on 17 January 1997 expired a moment later with the entry of judgment.

29 The argument was in substance the same as the argument which had been put to Curtis J in the two cases he decided on the point, with different outcomes because of the different facts. Maguire J did not accept the argument on the facts in the present case. He referred to the rules which I have described, and said that, under the Supreme Court Rules as applicable with necessary modifications to proceedings in the Tribunal, the time within which the first opponent could file a cross-claim expired on 12, 13, or 14 February 1997, depending on when Mr Banham’s statement of claim was served on it. In his Honour’s view, the grant of leave in relation to the cross-claim on 17 January 1997 had the effect of extending the time for filing a cross-claim until 14 February 1997 if the statement of claim had been served on the first opponent prior to 17 January 1997. His Honour concluded -

“It seems to me that the granting of leave in those circumstances is itself ‘ancillary or related to’ the proceedings for damages initiated by the statement of claim. The subsequent filing of the cross-claim is therefore authorised by the grant of leave (as extended on 28 July 1997) and is in no way caught by any of the three legislative provisions relied on by the cross-defendants.”

The three legislative provisions to which his Honour referred were provisions on which the claimants relied as sources of the power to strike out the cross-claims for want of jurisdiction.

30 While not specifically so stating, his Honour appears to have considered that the facts before him were to be distinguished from those before Curtis J in re Horne, Overall Forge Pty Ltd v Wallaby Grip Ltd, to which he was referred, because the grant of leave in relation to the cross-claim on 17 January 1997 had preceded, or was to be taken to have preceded, the judgment in favour of Mr Banham. It does not seem that his Honour was referred to re McDonald, Electricity Commission of New South Wales v Transfield Technologies Pty Ltd. He might have found comfort in the fact that Bradford Insulation did not seek to strike out Pacific Power’s cross-claim against it: that cross-claim was in a very similar position to the first opponent’s cross-claim. He might have found comfort in the decision in favour of GEC’s cross-claims in that case, although perhaps not the reasoning, because the cross-claimants’ argument would have required that they be struck out.

Discussion

31 The foundation for the first opponent’s cross-claim against the claimants, s 5(1)(c) of the LR Act, confers on the first opponent a statutory cause of action. Although it is customary, and convenient, for the statutory cause of action to be invoked by way of a cross-claim in the proceedings in which the claimant is sued, there is generally no reason why the claimant can not bring separate proceedings to enforce its cause of action. In the present case it was said that the first opponent is now out of time to bring separate proceedings. Although irrelevant to the result, the time bar explains the claimants’ original application and this application.
32 The argument on this application concentrated on s 11(4) as the source of the Tribunal’s jurisdiction. The claimants submitted that the first opponent’s cross-claim had to be “included” in Mr Banham’s proceedings, and that those proceedings had to be “proceedings to be brought”. They said that Mr Banham’s proceedings were at an end after judgment was entered, so that when the cross-claim was filed neither of those conditions was satisfied. So the source of jurisdiction was not available, and the Tribunal did not have jurisdiction to entertain the cross-claim.

33 So far as the argument rested upon the words “proceedings to be brought” in s 11(4), it can not be accepted. The definition of “ancillary or related matter” demonstrates that a claim by a defendant in the proceedings against a third party may be included in the proceedings. Such a claim will necessarily be included in the proceedings after the proceedings have been commenced. The claimants argued that “to be brought” meant “to be heard” or “ to be determined”, so that the condition can not be fulfilled following the entry of judgment. The phrase does not have that meaning on an ordinary reading, and to give it that meaning would not be consistent with the reference to proceedings brought as distinct from transferred in s 10(4) (indeed, on the claimants’ argument the transferred proceedings would also be proceedings to be brought), or with the reference to proceedings brought as distinct from entertained in s 11(1). The phrase must be read as part of the wider phrase in s 11(4), “a matter that is the subject of proceedings to be brought”, with the function of identifying the matter as that which is embodied in the proceedings when brought but not of imposing the impossibility of including an ancillary or related matter in proceedings still to be commenced. The first opponent’s cross-claim is a matter that is ancillary or related to a matter so identified.

34 For the argument resting on the word “included” the claimants referred to the observation of Barwick CJ in Bailey v Marinoff (1971) 125 CLR 529 at 530 -

“Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding, apart from any specific and relevant statutory provision, is at an end in that court and is in its substance, in my opinion, beyond recall by that court.”

They said that it followed that in the present case the first opponent’s cross-claim could not be included in the proceedings brought by Mr Banham, and that this was “consistent with the approach” of Sholl J in Shanks & Co Pty Ltd v Holme (1963) VR 198. Again, I do not think the argument can be accepted, for reasons which include regard to the issue in Bailey v Marinoff and the later consideration of that case.

35 In Bailey v Marinoff a self-executing order was made that an appeal be dismissed unless the appellant filed and served appeal books within a stated time. The order was duly entered. The appeal books were filed but not served within the time. The appellant then obtained an order to the effect that the filing and service of the appeal books should be deemed sufficient compliance with the order, with the effect of reinstating the appeal for hearing. It was held that there was no inherent power to make the second order when the appeal had been finally disposed of by the operation of the first order.

36 The issue was reinstatement of the appeal, and although the proceedings were at an end in that the appeal could not be reinstated it did not follow that the proceedings were at an end for other purposes. For example, taxation of costs of the appeal and execution to obtain payment of the costs would remain as steps in the proceedings, and the proceedings remained alive for the purpose of steps therein permitted by the court’s rules and procedures provided that the substantive dismissal of the appeal was left intact. The claimants’ reliance on Barwick CJ’s observation drew from it more than the issue in the case warranted.

37 Further, the decision was concerned only with the court’s inherent power. Barwick CJ appears to have so recognised in his qualification, “apart from any specific and relevant statutory provision”, and in Gamser v Nominal Defendant (1977) 136 CLR 145 his Honour agreed with the judgment of Aickin J on the aspect in which Bailey v Marinoff was described (at 154) as holding that “when an appeal has been finally disposed of in a court of appeal by an order duly entered it has no inherent power to reopen the case on an application made after the order has been entered”. Gibbs and Stephen JJ also agreed. In FAI General Insurance Company Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 a self-executing order was made that proceedings be dismissed unless certain particulars and security for costs were provided on or before a stated date. On the assumption that there had not been compliance with the order, an order was made extending the time for compliance in reliance on Pt 2 r 3 of the Supreme Court Rules. It was held that there was power under the rule to extend the time, and Bailey v Marinoff was distinguished as dealing only with the court’s inherent power.

38 Although the context was relief from the operation of a self-executing order, the judgments in FAI General Insurance Company Ltd v Southern Cross Exploration NL emphasised the width of the power conferred by Pt 2 r 3 of the
Supreme Court Rules.

39 Wilson J said that the “plain meaning of these words is very wide”. and (at 283-4) -

“It is a remedial provision which confers on a court a broad power to relieve against injustice. The discretion so conferred is not readily to be limited by judicial fiat. The fact that it manifestly is a power to be exercised with caution and, in the case of conditional orders, with due regard to the public policy centred in the finality of litigation does not warrant an arbitrary limitation of the power itself, not expressed in the words of the rule, so as to deny its capacity to apply to circumstances such as those which are to be found in the present case.”

His Honour later said (at 284-5) that the literal meaning of the rule was plain, and that if it is to be read down it must be because the context of the rule or extraneous considerations compelled such a course. Brennan, Deane and Dawson JJ agreed with Wilson J.

40 Gaudron J delivered a separate judgment, including (at 289-90) -

“The substance of the argument made on behalf of the appellants is that a proceeding passes outside the power of a court once the time for fulfilment of a condition specified in a duly entered order for dismissal has passed without the condition being satisfied, that is that the court is then functus officio. See Reg.v Cross (Patrick) [ (1973) QB 937].

Although the rule that a court may not vary a duly entered order which brings proceedings to a conclusion rests, at least in part, on the obvious desirability that litigation should be brought to an end, the converse of that rule viz. that a court of record may vary an order before the order is entered must rest on the notion that a court is not functus officio whilst there remains any judicial function which may be performed in relation to a proceeding, even if it be only that of ensuring that the final order correctly records the meaning of the court. Thus it was put by Coke (Co. Litt. 260a):

‘Of courts of record you may read in my Reports: but yet during the terme wherein any judiciall act is done, the record remaineth in the brest of the judges of the court, and in their remembrance, and therefore the roll is alterable during that terme, as the judges shall direct; but when that terme is past, then the record is in the roll, and admitteth no alteration, averment or proofe to the contrarie.’

Although it has been common to speak of a conditional order for dismissal as self-executing or of a proceeding upon which such an order has operated as ‘dead’, that seems to me to obscure the fact that a conditional order, of its nature, necessitates the exercise of the further judicial function of determining that the condition was not satisfied at the specified time. Where such an issue remains to be determined in relation to a proceeding it cannot be said that the court is functus officio. That being so, there seems to me no relevant distinction between a proceeding in which a conditional order for dismissal has been entered and a proceeding in which an order has been made but not entered, notwithstanding the decisions in Godwin and Bailey . However, it is neither necessary nor appropriate to pursue that issue, the respondents having made their case without direct challenge to the actual decisions in those cases.

Where a power or discretion is conferred upon a court it is inappropriate that such power or discretion be treated as subject to limitations not contained in the grant of that power or discretion. The position was put, in relation to statutory discretion, by Earl Loreburn LC in Hyman v Rose [(1912) AC 623, at 631] in these words: ‘It is one thing to decide what is the true meaning of the language contained in an Act of Parliament. It is quite a different thing to place conditions upon a free discretion entrusted by statute to the Court where the conditions are not based upon statutory enactment at all.’
There may be occasions when it is appropriate to approach the question of the proper meaning of the grant of power on the basis that only the clearest express intention can displace fundamental legal principle or basic policy consideration. However, as a conditional order for dismissal such as that presently under consideration neither renders the Court functus officio nor of itself precludes the bringing of fresh proceedings there is no question of fundamental legal principle or policy brought into issue by the grant of power in Pt 2, r 3. That being so, and the language of the rule being such as to comprehend the power, Pt 2 r 3 must be construed as authorizing the Court to enlarge the time fixed by a duly entered conditional order for dismissal notwithstanding that the time so fixed has expired, unless such authority is expressly excluded by statute or other rule of court.”

41 In my opinion, judgment in favour of the plaintiff in proceedings in the Tribunal does not mean that the proceedings are at an end so that a cross-claim can not be included in the proceedings within the meaning of s 11(4). The proceedings remain on foot so as to enable the defendant to give effect to its entitlement to file a cross-claim within 28 days from the service of the statement of claim upon it, that being an entitlement in accordance with the Tribunal’s rule’s and procedures. That time may be enlarged by an order made pursuant to Pt 2 r 3 of the Supreme Court Rules as applied pursuant to r 2 of the Dust Diseases Tribunal Rules, and if it is enlarged the proceedings remain on foot so as to permit the defendant to exercise its entitlement within the enlarged time. In the language used by Gaudron J in FAI General Insurance Company Ltd v Southern Cross Exploration NL, while it remains for the Tribunal to exercise the further function of receiving and determining a cross-claim filed within the 28 days, and the further function of determining whether an extension of the 28 days should be granted, the Tribunal is not functus officio; addressing s 11(4) of the Act, the proceedings remain on foot for the exercise of those functions and a cross-claim filed within the 28 days or the extended time is included in the proceedings.

42 I do not think the decision of Sholl J in Shanks & Co Pty Ltd v Holme is to the contrary of this.

43 The defendant entered judgment on a counter claim in default of the plaintiff pleading to it. A defence and the counter claim had been delivered outside the time within which the defendant had been ordered to deliver them, and also after the plaintiff had entered judgment against the defendant in default of a defence. It was held that the counter claim and the judgment thereon were nullities, and the judgment on the counter claim was set aside. One reason was that the counter claim had been delivered after the plaintiff had obtained judgment.

44 Sholl J said that he accepted the argument that the counter claim could not be delivered unless and until the default judgment obtained by the plaintiff was set aside, “the action being, for all purposes of pleading, at any rate, terminated”, and that “so far as pleadings were concerned, the plaintiff’s claim having passed into judgment, there was no room for the defendant to proceed by way of counterclaim” (at 199-200). After considering and rejecting a submission that an affidavit prior to the default judgment amounted to setting up a counter claim, his Honour said -

“The result is that by 17 July there had been no counter claim set up within the meaning of the rules, and, therefore the ordinary principle applied, and the defendant was precluded thereafter while the plaintiff’s judgment stood, from doing anything to set up a counter claim in that action. That means that the purported delivery of the defence and counter claim in August, and the purported filing thereof in September were null and void.”

45 There was no question of an extension of time within which to deliver the defence and counter claim, and it may be accepted that in the absence of an extension of time the delivery of the counter claim was of no effect. It does not follow that, if in conformity with the Court’s rules and procedures an extension of time had been obtained, the result would have been the same, or that the proceedings would have been “for all purposes of pleading … terminated”.

46 I should refer for completeness to CSI International Co Ltd v Archway Personnel (Middle East) Ltd (1980) 3 All ER 215, to which the claimants drew our attention. The plaintiff sued the defendant on a dishonoured cheque. The defendant did not serve a defence, and asserted but did not serve a counter claim. The plaintiff obtained judgment, and the defendant satisfied the judgment. The defendant then served a defence and counter claim. The plaintiff contended that there was no power to serve a counter claim and did not serve a defence to the counter claim. The defendants signed judgment against the plaintiff on the counter claim in default of a defence. The question was whether the counter claim had been properly served. It was held that the defendant had not been entitled to serve it.

47 In the view of Roskill LJ, the impediment was not that the plaintiff had obtained judgment against the defendant. His Lordship said that a defendant could make a counter claim where there was a judgment against him which had not been stayed “provided that the counter claim falls within the general purview of s 39 of the 1925 Act and other relevant rules to which I have referred” (at 219-220). Section 39 of the Supreme Court of Judicature (Consolidation) Act 1925 was broadly equivalent to s 78 of the Supreme Court Act, and the rules were concerned with the procedure for making a counter claim. The impediment was rather that the plaintiff’s judgment had been satisfied, so that his Lordship did not think “ … there is still extant any action by the plaintiff in which the defendant could properly counter claim against him. The action has, for all practical purposes, come to an end when satisfaction of the judgment has been obtained” (at 220).
48 Eveleigh LJ simply said that s 39 required a cause or matter in which a counter claim could be pleaded, and that there was “no cause or matter extant that could cover any proceedings in relation to a counterclaim that was not properly pleaded” (at 221). Walton J agreed with both judgments.
49 The decision turned on the particular statute and rules, and the reasoning is, with respect, not entirely clear. Again, there was no question of an extension of time. The case could be seen as providing some support to the first opponent, but was not relied on by it. I do not think it calls for any modification to what I have already said.

50 The claimants submitted that s 11(4) should not be construed so as to give the Tribunal jurisdiction in the circumstances of this case because, in the words of the submission, the Tribunal should not be “cluttered up with claims against insurers and the like to be dealt with at some later stage”. They referred to a remark of O’Meally J in Carnuccio v Cinzano (1990) 6 NSWCCR 70 that “if the initiation of cross-claims would delay the disposition of a plaintiff’s action then they would best be heard other than in the Tribunal” (at 74). The remark was concerned with the due exercise of jurisdiction, not with absence of jurisdiction. No doubt concern for plaintiffs suffering from dust-related conditions would be material in the exercise of some discretions, perhaps in the particular circumstances including a discretion to extend time. To the contrary of the submission, in my opinion the objective that all aspects of liability in respect of dust-related conditions are committed to the Tribunal with a view to avoidance of multiplicity of litigation and enhanced consistency of decision making suggests that the provisions of the Act should be construed in the way I have indicated. Cross-claims such as the first opponent’s cross-claim raise questions of liability in respect of dust-related conditions encompassed by the objective.

The result

51 There was no complaint about the exercise of discretion by O’Meally J in extending the time for filing the first opponent’s cross-claim, either by the extension granted on 17 January 1997 (if there was an extension) or by the extension granted on 28 July 1997. The time for the first opponent to file the cross-claim was duly enlarged, and the cross-claim was filed in conformity with it. In my opinion, the cross-claim was included in Mr Banham’s proceedings within the meaning of s 11(4) of the Act.

52 On the reasoning I have explained, the result in re Horne, Overall Forge Pty Ltd v Wallaby Grip Ltd may or may not have been correct, depending on what was involved in the application for leave to file the cross-claims. If correct, it was not because the Tribunal had no jurisdiction to entertain the cross-claims. The Tribunal had jurisdiction to entertain the cross claims if the jurisdiction was appropriately invoked, but in the absence of an extension of time within which to bring the cross-claims they could not be filed. The result in re McDonald, Electricity Commission of New South Wales v Transfield Technologies Pty Ltd was probably not correct because, although the Tribunal had jurisdiction if properly invoked, it seems that the jurisdiction had not been properly invoked by the filing of the cross-claims outside the time permitted for their filing without any extension of time. Although GEC did seek to share in an apportionment of liability between tort feasors, it could only do so by properly invoking the jurisdiction of the Tribunal. The result arrived at by Maguire J was correct but, with respect, not for the reason his Honour gave. I do not think that the grant of leave, by which his Honour seems to have meant the order made by O’Meally J on 17 January 1997, was an ancillary or related matter within the meaning of s 11(4), and even if it was that would mean only that the application for the order was included in the proceedings - the reason given by his Honour did not meet the claimants’ argument.

53 It is unnecessary to say anything about a question raised in the course of submissions in this application, whether the jurisdiction with respect to ancillary or related matters is exclusive to the Tribunal by virtue of s 10(1) of the Act.

54 The issue in the application is of some importance, in my opinion warranting the grant of leave to appeal and determination of the appeal. I propose the following orders -

(1) Grant leave to appeal from the decision of Maguire J given on 16 July 1998.
(2) Dismiss the appeal.
(3) Claimants/appellants pay the costs of the first opponent/respondent.

55 FITZGERALD JA: The description of the circumstances giving rise to this application for leave to appeal which is set out in the reasons for judgment of Giles JA enables me to express my opinion briefly.

56 For present purposes, it is assumed that the claimants and the second to fifth opponents are tortfeasors which, if they had been sued by Mr Banham, would have been liable to him in respect of the same damage as the first opponent, Cf James Hardie & Coy Pty Ltd v Seltsam Pty Ltd (1998) 159 ALR 268. and that the first opponent is entitled to recover contribution from them pursuant to subsection 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act in an appropriate proceeding. The Court is not presently concerned with possible defences; e.g., under the Limitation Act 1969. It is also not disputed that the Dust Diseases Tribunal would have had jurisdiction to determine the first opponent’s cross-claim against the claimants and the second to fifth opponents if that cross-cross-claim had been instituted prior to Mr Banham obtaining judgment against the first opponent in the Tribunal on 17 January 1997. Indeed, the Tribunal’s jurisdiction would have been exclusive. See ss 4, 10 and 11 of the Dust Diseases Tribunal Act 1989. No party challenged the validity of the statutory provisions giving the Tribunal exclusive jurisdiction. The claimant’s argument is based upon the premise that the first opponent’s cross-claim was filed too late because of the Tribunal’s judgment in favour of Mr Banham against the first opponent.

57 The general principle that a court or tribunal’s jurisdiction and powers are exhausted when a final order determining a proceeding has been entered and perfected is subject to exceptions, See R v Pettigrew (1997) 1 Qd.R. 601. including those created by statute and rules.

58 The other members of the Court consider that the time for filing a cross-claim for indemnity or contribution under subs 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 in accordance with Pt 6 r 10(1), Pt 15 r 3(1) and Pt 7 r 5(1) of the Supreme Court Rules may be altered under Pt 2 r 3 of the Rules, and that , at least when an order fixing the time for filing such a cross-claim has been made prior to judgment being entered in favour of the plaintiff on the original claim, the time for filing the cross-claim may be extended after the time fixed by the order has expired even though a judgment on the original claim has by then been entered and satisfied.

59 Assuming that to be so, if the Dust Diseases Tribunal Act 1989 had not been enacted and Mr Banham’s action had been commenced against the first opponent in the Common Law Division and the subsequent steps had been taken and orders made in that Division, the orders would have been correctly made and the Supreme Court would have jurisdiction to determine the first opponent’s cross-claim against the claimants and the second to fifth opponents. The unstated effect of the claimants’ argument is that the Supreme Court, not the Tribunal, has jurisdiction to determine a cross-claim by the first opponent against the claimants and the second to fifth opponents for contribution under subs 5(1)(c) of the Law reform (Miscellaneous Provisions ) Act. Subject to possible defences, e.g., under the Limitation Act.

60 It is necessary to have regard to the special position of the Dust Diseases Tribunal, and the source, nature and extent of its jurisdiction to determine a cross-claim for indemnity or contribution under subs 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act. Unlike the Supreme Court, the Tribunal has no jurisdiction to adjudicate upon a claim for indemnity or contribution under subs 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act except as “ancillary or related” Dust Diseases Tribunal Act 1989, subs 11(4) and definition of “ancillary or related matter” in s 3. to a proceeding under subs 11(1) of the Dust Diseases Tribunal Act, and, when it has jurisdiction in relation to such a cross-claim, the Tribunal’s jurisdiction is exclusive. Dust Diseases Tribunal Act ss 4, 10(1) and 11.

61 In my opinion, subs 11(4) of the Dust Diseases Tribunal Act only permits the institution of an “ancillary or related matter”, including a cross-claim under subs 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act, when there is an extant proceeding under subs 11(1) of the Dust Diseases Tribunal Act in the Tribunal to which the cross-claim can be “ancillary or related”. Absent such a proceeding under subs 11(1) to which an “ancillary or related matter” may be appended, the legislature has understandably not sought to oust the jurisdiction of the Supreme Court and other courts which can broadly be described as courts of general jurisdiction. There was no reason to do so in order to achieve the primary statutory purpose of ensuring a prompt determination of claims for dust-related injuries by a specialist tribunal. Dust Diseases Tribunal Act subs 25(3).

62 The first opponent consented to judgment in favour of Mr Banham in his proceeding against it in the Tribunal on 17 January 1997, and it is reasonable to infer that that judgment had been satisfied prior to 11 August 1987, when the first opponent’s cross-claim against the claimants and the second to fifth opponents was filed in the Tribunal, and indeed prior to 25 July 1997 when an order was made in the Tribunal extending the time within which the first opponent was permitted to file a cross-claim.

63 Accordingly, in my opinion, there was no proceeding under subs 11(1) of the Dust Diseases Act extant in the Tribunal on 25 July or 11 August 1987. See Jameson v Central Electricity Generating Board (1999) 1 All ER 193. It follows the first opponent was wrongly granted an extension of time to file a cross-claim. That being so, the tribunal then had, and has, no jurisdiction with respect to the first opponent’s cross-claim against the claimants and the second to fifth opponents.

64 I agree that leave to appeal should be granted, but I would allow the appeal with costs, set aside the Tribunal’s decision of 16 July 1998 dismissing the claimants’ application to strike out the first opponent’s cross-claim against them, and order that that application be granted, that that cross-claim be struck out and the first opponent pay the claimants’ costs of the application.

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