Stavar v Caltex Refineries (Qld)Pty Ltd No 3

[2008] NSWDDT 27

Dust Diseases Tribunal

of New South Wales

CITATION:	Stavar v Caltex Refineries (Qld)Pty Ltd No 3 [2008] NSWDDT 27
PARTIES:	Beverley Dawn Stavar (Plaintiff) Caltex Refineries (Qld) Pty Ltd (First Defendant) Amaca Pty Limited (Second Defendant) Wallaby Grip Limited (Third Defendant) Wallaby Grip (BAE) Pty Limited (Fourth Defendant) Wallaby Grip (NSW) Pty Limited (Fifth Defendant)
MATTER NUMBER(S):	7349 of 2007
JUDGMENT OF:	O'Meally P
CATCHWORDS:	DUST DISEASES TRIBUNAL :- Costs - Defendant succeeds on one issue - Whether other defendants should pay costs of defendant on that issue - Contributions determination - Offer by defendant to contribute determined proportion - Whether defendant entitled to costs from other defendants
LEGISLATION CITED:	Dust Diseases Tribunal Regulation 2007
DATES OF HEARING:	1 October 2008
DATE OF JUDGMENT:	1 October 2008
EX TEMPORE JUDGMENT DATE:	1 October 2008
LEGAL REPRESENTATIVES:	No appearance for the Plaintiff G J Parker instructed by HWL Ebsworth appeared for the First Defendant J C Sheller instructed by DLA Phillips Fox appeared for the Second Defendant D J Russell SC instructed by Middletons appeared for the Third, Fourth and Fifth Defendants

JUDGMENT:

RULING

O’MEALLY P

1. Yesterday orders were made requiring the first defendant to pay the plaintiff’s costs of litigating the issues determined in her favour. Of those costs, some are to be paid on an ordinary basis and some on an indemnity basis. If not agreed, the costs are to be assessed.

2. This morning I have heard an application by the first defendant for an order that the second, third, fourth and fifth defendants pay its costs on the issues on which it succeeded against the plaintiff. These concerned the plaintiff’s asbestos exposure during the first and second periods referred to in the reasons for judgment, that is for a period of about eighteen months commencing in 1964 and from 1965 to the commencement of the employment of the plaintiff’s husband by the first defendant in January 1974. During neither period was he employed by the first defendant.

3. This application is based upon cl 53 of the Dust Diseases Tribunal Regulation 2007 (the Regulation). Clause 53 provides:

(1) If the reply of a defendant ( the innocent defendant ) to a claim or cross-claim disputes liability on a ground that the innocent defendant’s reply provides evidence of, any other defendant who disputes that ground is liable to pay the innocent defendant’s costs, assessed on an indemnity basis, occasioned by the dispute if:

(a) subsequently that ground is established in the proceedings by the evidence provided in the reply or admitted for the purpose of the proceedings by the disputing defendant, and

(b) the Tribunal determines on that ground that the innocent defendant is not liable on the claim or cross-claim, and

(c) the Tribunal determines that the ground was the principal or only ground on which the innocent defendant disputed liability on the claim.

4. The first defendant says it was innocent in respect of the two periods referred to above. However, cl 51(1)(c) should doom the application to failure. This is because the claim in respect of the two periods recited was not the principal or only ground upon which the first defendant, if indeed it were innocent, disputed liability.

5. It is appropriate to note that on 28 March 2008 at mediation the plaintiff indicated she would accept the sum of $320,000 plus her costs in settlement of her claim. A contributions assessment followed. The contributions assessor determined that the first defendant, Caltex Refineries (Qld) Pty Ltd (Caltex) should contribute 36.6 per cent and Amaca should contribute 6.35 per cent to the plaintiff’s damages. It was determined that the third fourth and fifth defendants, the Wallaby Grip companies, should make varying contributions, but it should be observed that there is a slight mathematical exaggeration in the total of the percentages assessed by the contributions assessor. For present purposes, however, that is irrelevant.

6. On 11 June 2008 Caltex offered to contribute the sum of $128,100 being 36.6 per cent of $350,000, a sum which subsequently was agreed between the defendants as an offer to be put to the plaintiff, which included her costs.

7. The third, fourth and fifth defendants corresponded with the first and second defendants and offered to contribute to a sum of $316,925 in an amount less than their apportioned share. The sum they proposed took into account a dispute with their insurer. The second defendant, Amaca Pty Ltd agreed to contribute its assessed proportion of 6.35 per cent and Caltex maintained and always maintained its offer to contribute $128,100. On 19 June 2008 the plaintiff put a counter offer of $450,000 inclusive of costs. In the events that happened the case did not settle and the plaintiff obtained judgment in the sum of $339,000 plus her costs.

8. Caltex submits that the mediation failed because of the unwillingness of all of parties to comply with the provisions of cl 35(2) of the Regulation which imposes a duty upon each party to a claim to participate in good faith. Exchanges of electronic and written correspondence between the defendants demonstrate the inability to put forward an offer which would be acceptable to the plaintiff and upon which each of them agreed.

9. Clause 53, upon which the application of Caltex is based, requires evidence rather than assertions. I have been taken to the replies of the second, third, fourth and fifth defendants. Those replies do not contain evidence but assertions; neither does the reply of the first defendants contain evidence.

10. The first defendant succeeded in convincing me that it owed no duty of care to the plaintiff during the first and second periods of her husband’s work at the refinery and in doing so succeeded on an issue of law rather than a matter of fact. If the Clause is to have the effect for which Mr Parker contends, it would need amendment to refer to assertions rather than evidence, but defects in the Regulation so far as it affects the conduct of cases in the Tribunal are not confined to cl 53.

11. I am not satisfied that any fact or circumstance exists which warrant the making of an order that the second, third, fourth and fifth defendants pay the first defendant’s costs incurred in respect of litigating the existence of a duty of care in the first and second periods of the work of the plaintiff’s husband at its refinery.

12. The first defendant will pay the second, third, fourth and fifth defendants’ costs of this application as agreed or assessed.

No appearance for the Plaintiff

G J Parker instructed by HWL Ebsworth appeared for the First Defendant

J C Sheller instructed by DLA Phillips Fox appeared for the Second Defendant

D J Russell SC instructed by Middletons appeared for the Third, Fourth and Fifth Defendants