Stavar v Caltex Refineries (Qld)Pty Ltd No 4

[2008] NSWDDT 28

Dust Diseases Tribunal

of New South Wales

CITATION:	Stavar v Caltex Refineries (Qld)Pty Ltd No 4 [2008] NSWDDT 28
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 - Contributions determination - Offer by one defendant to contribute determined proportion - Whether defendant entitled to costs from other defendants
LEGISLATION CITED:	Dust Diseases Tribunal Regulation 2007 Uniform Civil Proceedure Rules
CASES CITED:	Calderbank v Calderbank 1975 3 All ER 333
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. Mr Sheller on behalf of Amaca Pty Ltd (Amaca) seeks an order that the first defendant Caltex Refineries (Qld) Pty Ltd (Caltex) and the third, fourth and fifth defendants (the Wallaby Grip companies) and CSR Ltd (CSR) one of two cross-defendants in these proceedings (though the only cross-defendant to Mr Sheller’s cross-claim), pay its costs of defending the plaintiff’s proceedings. Earlier, Caltex unsuccessfully applied for an order that the second, third and fourth defendants pay its costs on the issues on which it successfully resisted the plaintiff’s application for costs.

2. In the application of Caltex I referred to the fact that the plaintiff had made a counter offer of $450,000 inclusive of costs to a joint offer by the defendants.

3. On 19 June 2008 the solicitor for the third, fourth and fifth defendants sent an email to the solicitors for the first and second defendants and for CSR. It was in these terms:

In response to our offer of $350,000 less $33,075 Thady offered $450,000 inclusive of costs.

I am making a rash presumption that in light of previous discussions no one has this amount.

Can everyone please advise what they would like to do now. Kind regards,

Christine.

4. Thady, referred to in that email, is the solicitor for the plaintiff. Christine is the solicitor for the third, fourth and fifth defendants.

5. On 20 June 2008 the solicitors for the second defendant wrote to the solicitors for the first defendant, to the solicitors for the third, fourth and fifth defendants and to Leigh Virtue and Associates, the solicitors for CSR. Relevantly, that letter contained the following:

We are instructed to put you on notice that Amaca offers to contribute 6.35%, being its determined apportionment, towards a settlement of the Plaintiff’s claim for $450,000 inclusive of costs.
….
This offer will remain open until 5:00pm on Monday 23 June 2008 and is made pursuant to the principles established in the matter of Calderbank v Calderbank (1975) 3 All ER 33 [sic] .

If this offer is not accepted and, at the conclusion of the hearing of the Plaintiff’s claim, the Tribunal makes an order which is equivalent or more favourable to our client than the terms of this offer, we propose to tender a copy of a [sic] this letter in support of our application that the Defendants and Cross-Defendants pay Amaca’s costs on an indemnity basis from the time the offer contained in this letter expires.

6. It should be noted, as observed yesterday, that in my view cl 84 of the Dust Diseases Tribunal Regulation 2007 ousts the Uniform Civil Procedure Rules relating to offers of compromise. As also mentioned yesterday, it is nevertheless open to a party to make an offer of compromise on common law principles articulated in Calderbank v Calderbank 1975 3 All ER 333 and approved and followed in many cases since.

7. 6.35 per cent was the proportion determined by the contributions assessor to be payable to the plaintiff, not only by Amaca, but 6.35 per cent was the proportion to be paid by each of two cross-defendants, one of whom has not been sued by Amaca. The determination of the assessor included a proportion to be contributed by BI Contracting Pty Ltd (BI), which was not sued by Amaca. It is a stranger to Amaca’s litigation. It is sued by the Wallaby Grip companies. BI was not approached by Amaca.

8. The 6.35 per cent offered by Amaca failed to consider the contribution to be made by a cross-defendant to the cross-claim of the third, fourth and fifth defendants which is not a cross-defendant to its cross-claim. In my view, the letter of 20 June 2008 referring as it did to cross-defendants, plural, one of which is a stranger to Amaca’s claim, was not effective to invoke the consequences of failure to act on the offer of compromise.

9. Accordingly, Amaca’s application for its costs is refused. Amaca should pay the first, third, fourth and fifth defendants’ costs of this application and the costs of the cross-defendant to its cross-claim, 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

W P Y Austron instructed by Leigh Virtue & Associates appeared for CSR Ltd, Cross-Defendant to the cross-claim of Amaca Pty Ltd