Sim v Allianz Australia Limited

[2011] NSWDDT 4

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:	Sim v Allianz Australia Limited and ors [2011] NSWDDT 4
Hearing dates:	10 February 2011
Decision date:	22 March 2011
Before:	Curtis J
Decision:	That the defendants pay the plaintiff's costs of the cause, these costs to be on an indemnity basis from 14 May 2010.
Catchwords:	Entry of judgment - Offers to multiple defendants
Legislation Cited:	Uniform Civil Procedure Rules 2005 Dust Diseases Tribunal Regulation 2007 Civil Procedure Act 2005 Dust Diseases Tribunal Act 1989
Cases Cited:	Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133 Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd [2009] HCA 43, Malouf v Prince (No2)[2010] NSWCA 51. CSR Limited v Bouwhuis (1993) 7 NSWCCR 223 Amaca Pty Limited v Ellis [2010] HCA 5
Category:	Costs
Parties:	Lorraine Fay Sim as Legal Personal Representative of the Estate of the late David Sim (plaintiff) Allianz Australia Limited (first defendant) Workcover Authority (NSW) (second defendant) Wallaby Grip (BAE) Pty Limited (in liquidation) (third defendant)
Representation:	Mr PCB Semmler QC with Mr S Tzouganatos appeared for the plaintiff Mr JL Sharpe appeared for the defendants Turner Freeman Lawyers Thompson Cooper Lawyers, Hicksons Lawyers and Ellison Tillyard Callanan
File Number(s):	158/2009

RULING ON COSTS

CURTIS J

Introduction

1. The Plaintiff by Notice of Motion filed on 2 February 2011 seeks an order that the defendants pay the plaintiff's costs of the proceedings on an indemnity basis from 14 May 2010, the date upon which an offer of compromise was served.

1. Although the motion as filed mistakenly identified the plaintiff as the late Mr Sim, rather than Mrs Sim, this error was later corrected by an order pursuant to s64 of the Civil Procedure Act 2005.

1. The defendants resist the costs order on the grounds that:

(a)   Because the motion was lodged out of time, the Tribunal has no power to make the order;

(b)   The plaintiff failed to provide to the defendants such particulars and documents as were necessary to enable them fully to consider the offer of compromise (Part 20, rule 20.26 (4)) ;

(c)   The offer of compromise was not open to acceptance for a reasonable time (Part 20, rule 20.26 (7)(b) );

(d)   The offer of compromise was directed to the defendants generally, and could be accepted by no one defendant.

Was the Motion Filed Out Of Time?

1. UCPR 36.16(1) confers upon the Tribunal power to vary a judgement after it has been entered, but only if the notice of motion seeking that relief is filed within 14 days after entry of judgement (r36.16(3A)).

1. On 24 December 2010 I recited the following orders:

Judgement for the plaintiff against Allianz Australia Ltd in the sum of $14,173.51

Judgement for the plaintiff against WorkCover Authority (NSW) in the sum of $57,706.43

Judgement for the plaintiff against Wallaby Grip (BAE) Ltd in the sum of $29,359.41

Additionally, Judgement for the plaintiff, against Allianz Australia Ltd, WorkCover Authority (NSW), and Wallaby Grip (BAE) Pty Ltd , jointly and severally, in the sum of $317,561.85.

1. Following publication of my reasons I said that I would hear the parties on costs, and asked whether any special costs order should be made. Ms Brett-Bowen, who appeared for the plaintiff said nothing.

1. After some discussion concerning applications for a stay of judgement, I said: "What about costs? Is there any offer?" Ms Brett-Bowen again said nothing.

1. I then said: "The defendants are to pay the plaintiff's costs."

1. The silence of Ms Brett-Bowen was most regrettable. The plaintiff's solicitors, pursuant to cl 86 of the Dust Diseases Tribunal Regulation 2007 , had on 14 May 2010, served upon each defendant, an offer of compromise in these terms:

The defendants pay to the plaintiff the sum of $290,000, plus her costs as agreed or assessed.

This offer shall remain open for acceptance until 5 PM 11 June 2010.

Because the plaintiff obtained as against each defendant a judgement more favourable to her then the terms of that offer, she was prima facie entitled to seek an order for indemnity costs from the date of the offer (cl 87).

1. With commendable alacrity, on the next working day, 29 December 2010, the solicitors for Mrs Sim wrote to each defendant as follows:

We refer to this matter and note that the Plaintiff has been wholly successful in her claim for damages against the Defendants.

On 14 May 2010, the Plaintiff served an Offer of Compromise. The terms of the current judgement exceed the Plaintiffs offer of compromise. The Plaintiff is entitled to indemnity costs as and from 14 May 2010.

We invite the Defendant to concede the Plaintiff's entitlement to indemnity costs so as to avoid the need to make a formal application in relation thereto.

Would you kindly advise of your client's position at your earliest convenience and any event not later than 28 January 2010. If we have not heard from you by that date, we will assume that there is a contest as to the plaintiff's entitlement to indemnity costs and will file the necessary application with an Affidavit in support.

In the event that the plaintiff is successful in her application for indemnity costs, we will rely upon this correspondence in order to obtain an order that the plaintiffs costs of the application be paid on an indemnity basis by your client.

1. Discourteously, no defendant responded to this letter.

1. UCPR r36.11(1) provides any judgement or order of the court is to be entered, and r 36.11(2) that, unless otherwise ordered, entry of judgement is taken to be when the judgement is recorded in the Tribunal's computerised court record system.

1. In the present case, on 24 December 2010, at my direction, my associate made the following entry in the Tribunal computerised record system that is called Amairgen :

Judgement for plaintiff against all defendants. Grant a stay to D2 for 30 days. Grant stay for 30 days to D1 and D3 in relation to damages for lung cancer, but not otherwise. Defs to pay P's costs.

1. Thereafter, no party engrossed and filed a formal judgement, conforming with form 43 of the UCCPR forms, for entry into the computer system.

1. On 9 February 2011 the registry staff scanned the text of my published reasons for judgement, which included the full text of the judgement orders that I had recited, into Amairgen.

When Was This Judgement Entered?

1. Before the promulgation of the Uniform Civil Procedure Rules , the entry of judgement in the Tribunal was governed by Part 41 Rule 13 of the Supreme Court Rules 1970. This rule required that a party to the proceedings take steps to draw up and file a minute of the orders pronounced by the Court, and that the order was entered when that minute was sealed by the registrar.

1. The effects of the changes mandated by Pt 36 r36.11 of the UCPR were described by Basten JA in Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133 at [11] as follows:

This system is no doubt intended to achieve a degree of administrative simplicity and certainty, without imposing unnecessary costs on parties or the Court. Nevertheless, it has its limitations. ...

... orders will be entered without reference to the parties. The opportunity afforded under the old system for parties to check the form of the orders proposed by the Court, which often will not conform precisely to the orders sought in the pleadings or the written submissions filed in the proceedings, is now lost. Further, there is no provision for the parties to be provided automatically with copies of the orders as entered.

1. His Honour then at [15] adverted to the effect of r36.16(3A) in the following passage:

The clear purpose of the rules set out above is to allow a window of 14 days after entry of judgment, in courts where entry takes place automatically and largely contemporaneously with the delivery of judgment. The removal of the power to extend the 14-day period makes it sufficiently clear that the intention is that the period is not variable, but reflects the need for judgments and orders to be final and certain as to their operation. (Emphasis added).

1. The entry in the Tribunal's computerised court record system made by my associate on 24 December 2010 does not record the amount of the judgement debts. It is not a judgement for a sum certain and could not form the basis for enforcement proceedings against any defendant.

1. That defect was cured on 9 February 2011 when the registry staff scanned the text of my orders into the system.

1. I conclude that, in accordance with r 36.11(2) , judgement was entered on 9 February 2011 when the precise terms of my orders were recorded in Amairgen , and the plaintiff is within time.

1. The applicable rule is r 36.16(1) , which permits the court to set aside or vary a judgement if notice of motion for the setting aside or variation is filed before entry of a judgement or order.

Alternative Grounds of Relief

S 14 of the Civil Procedure Act 2005

1. Although r36.16(3C) provides that a court may not extend the time limited by r36.16(3A) , s14 of the Civil Procedure Act 2005 confers power to dispense with the rules.

1. If this power were available I would dispense with the requirements of UCPR 36.16, and entertain this motion. There is however some doubt as to whether s14 extends to a rule imposing limitations on the power of the court to order costs (Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd [2009] HCA 43, Malouf v Prince (No2)[2010] NSWCA 51).

1. In the circumstances I find it unnecessary to decide.

Section 13(6) of the Dust Diseases Tribunal Act 1989

1. S13(6) provides that:

(6) Whenever appropriate, the Tribunal may reconsider any matter that it has previously dealt with, or rescind or amend any decision that the Tribunal has previously made.

1. The ambit of this power was considered by Priestley JA in CSR Ltd v Bouwhuis (1991) 7 NSWCCR 223 where he said at 247:

What in its context subsection (6) seems to me to do is to recognise that there may occasionally be very exceptional cases in which it becomes clear that after judgment something of a fundamental kind and of high importance to the litigation has happened, that it has happened in regard to a case which because of the nature of the Tribunal's jurisdiction needs to be dealt with with the greatest available expedition and that it may be more efficient, rather than leave the supervening and basic matter to be dealt with by the appeal mechanism, to have it dealt with by the Court of first instance.

On this approach it would be very rare for the power under subsection 6 to be properly exercisable by the Tribunal. The power would in my opinion only be one the Tribunal should even consider exercising in the kind of circumstances referred to by Lord Wilberforce in Mulholland, that is, stated shortly, where something basic to the decision had been clearly falsified by subsequent events.

1. S13(6) creates an exception to the otherwise paramount public interest that the entry of judgement provides conclusive finality in litigation. It does this in recognition of the need to remove, as far as possible, procedural impediments in the of plaintiffs with limited life expectancy coming before the Tribunal. In the proper exercise of the power the Tribunal may forestall a lengthy appeal process by itself rectifying obvious errors in fact or law.

1. The provision is not intended to obviate the consequences of a solicitor's oversight, and I reject the submission that it confers authority to amend this judgement.

Was The Plaintiff's Claim Sufficiently Particularised?

1. The defendant's submit that the plaintiff's case was not particularised, and changed fundamentally after the offer of compromise was served. This submission is wholly without merit.

1. UCPR 20.26(5) provides as follows:

(5) If a plaintiff makes an offer, no order may be made in favour of the defendant on the ground that the plaintiff has not supplied particulars or documents, or has not supplied sufficient particulars or documents, unless:

(a) the defendant has informed the plaintiff in writing of that ground within 14 days after receiving the offer, or

(b) the court orders otherwise.

No defendant informed the plaintiff's solicitor that it could not adequately assess the offer because of insufficient particulars or documents.

1. The initial statement of claim, filed for Mr Sim on 19 June 2009, alleged in paragraph 11 that:

The cause of the plaintiff's pain, injury, loss and damage was the negligence of [the defendants] and each of them. (Emphasis added)

1. There can be no doubt that when the offer of compromise was served each defendant was aware of the nature of the allegations made by the plaintiff against its interests.

1. Nor can there be any doubt that the defendants were provided with documents sufficient for them to fully assess the evidence upon which the plaintiff would rely as proof of the allegation.

1. On 24 June 2009 the plaintiff's solicitors had served upon the defendants a report of Prof Douglas Henderson, dated 4 June 2009. In this report, Prof Henderson said:

It is in my opinion at a high order of confidence that Mr Sim's cumulative asbestos exposure, resulting in clinical asbestosis made a substantial causal contribution towards the induction of his probable/presumptive lung cancer.

1. On 3 March 2010 the High Court delivered judgement in the matter of Amaca Pty Ltd v Ellis [2010] HCA 5, which confirmed that, in a case of cumulative exposure to asbestos, a plaintiff must prove that exposure during the course of any particular employment was itself a material cause before judgement may be obtained against that defendant.

1. In consequence, on 22 March 2010 the plaintiff requested a further report from Prof Henderson. On 19 April 2010 Prof Henderson reported that:

Because the likelihood and pathogenesis of lung cancer are governed by a dose response relationship, it also follows on a probabilistic basis that each of Mr Sim's asbestos exposures related to each of his employment with Australian Asbestos, Asbestospray Corporation, and Bell's Asbestos made a significant and substantial causal contribution to the development of his lung cancer. (Emphasis added)

This report was served upon the defendants on 20 April 2010.

1. The matter came on for hearing the following day, 21 April 2010. The defendants then asserted that they were not in a position to meet this report, and the plaintiff sought an adjournment to overcome any prejudice to the defendants. This adjournment was opposed upon the grounds that the report of Prof Henderson was inadmissible in any event. In ruling upon this objection I said:

The issue can be shortly stated. The plaintiff's husband contracted asbestosis and lung cancer after exposure to asbestos between 1964 and possibly as late as 1979. Within that period, Mr Sim was employed by several legal entities, each liable in respect of its own tortious conduct, and are not liable for the tortious conduct of the others. That issue was clearly delineated in the recent decision of the High Court in Amaca Pty Ltd v Ellis.

An earlier report of Prof Henderson was prepared and served in time. In this report Prof Henderson expressed the opinion that the whole of the exposure to asbestos dust from 1964 to 2002 made a material contribution to the development of Mr Sim's carcinoma. That opinion [was] obviously inadequate to the task of discharging the plaintiff's onus in relation to the discrete liability of the several defendants.

The plaintiff's offer of compromise was served on 14 May 2010, more than three weeks after the service of Prof Henderson's supplementary report, and my ruling identifying the principal issue for trial.

1. On 24 May 2010, more than two weeks before the offer of compromise expired, the plaintiff's solicitors also served upon the defendants a supplementary report from Dr Deborah Yates dated 21 May 2010 in which Dr Yates stated that:

In my opinion, on balance of probabilities, each of Mr Sim's employments with the above companies materially contributed to the development of his asbestosis, asbestos related pleural disease, and lung cancer. (Emphasis added)

1. In the course of the trial the defendants called no evidence to refute these opinions. The fact that the plaintiff served further medical opinions to the same effect after the expiry of the offer of compromise is irrelevant.

Was The Offer of Compromise Open for a Reasonable Time?

1. Nearly eight weeks elapsed between the service of Prof Henderson's supplementary report, which spelt out the plaintiff's medical case, and the expiry of the offer of compromise.

1. The defendants to this motion tender an affidavit from Ms Belinda Amos, of Thomson Cooper Lawyers who act for WorkCover Authority (NSW). In this affidavit Ms Amos, dutifully records the dates upon which various reports were served by the plaintiff. She does not reveal any step taken by any defendant to meet the plaintiff's medical case, nor assert that any defendant, within the time limited for acceptance of the offer, was unable to obtain sufficient expert opinion upon that case to meaningfully respond to the offer of compromise.

1. I hold that the offer was open for a reasonable time.

An Offer to Multiple Defendants

1. An offer by a plaintiff sufficient to trigger the operation of the rule may be put to multiple defendants. Their several interests may be protected in terms of offers between themselves ( Henderson v Amadio unreported, Federal Court, Victoria, 22 March 1990, Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179).

Other Discretionary Factors

1. I am entirely unpersuaded by submissions that Mrs Sim will suffer very significant prejudice if an order is not made awarding her indemnity costs. In the event that I am wrong in my construction of r36.11(2) , then the solicitors will have been entirely responsible for that prejudice, and it would be unconscionable for them to claim from her any costs in excess of recoverable party/party costs.

Conclusion

1. The plaintiff is entitled to the relief sought in the motion.

1. She is also entitled to costs of the motion. Had the defendants responded agreeably to the plaintiff's solicitor's letter of 29 December 2010 this motion would not have been necessary.

Orders

1. I order that the defendants pay the plaintiff's costs of the cause, these costs to be on an indemnity basis from 14 May 2010.

I direct that the plaintiff's solicitor prepare a draft judgement, conforming to UCPR Form 43, reflecting the orders made by me on 24 December 2010 and today. That draft is to be endorsed by the defendants' solicitors before filing in the Tribunal.

Decision last updated: 18 May 2011