Wallaby Grip Ltd v Klinger Ltd

[2009] NSWDDT 13

Dust Diseases Tribunal

of New South Wales

CITATION:	Wallaby Grip Ltd v Klinger Ltd [2009] NSWDDT 13
PARTIES:	Wallaby Grip Ltd (Cross Claimant) Klinger Ltd (Cross Defendant)
MATTER NUMBER(S):	15 of 2009
JUDGMENT OF:	Curtis J at 1
CATCHWORDS:	Claims Resolution Process - DUST DISEASES TRIBUNAL :-
LEGISLATION CITED:	Law Reform (Miscellaneous Provisions) Act 1946 Dust Diseases Tribunal Regulation 2007 Interpretation Act 1987
DATES OF HEARING:	18 May 2009
DATE OF JUDGMENT:	22 May 2009
LEGAL REPRESENTATIVES:	Mr J A McIntyre SC with Mr A Giurtalis instructed by Baker and McKenzie appeared for the Applicant on the Motion. Mr D J Russell SC instructed by Middletons appeared for the Respondent to the Motion.

JUDGMENT:

Dust Diseases Tribunal of New South Wales

Matter Number 15 of 2009

Wallaby Grip Ltd

(Cross Claimant)

v

Klinger Ltd

(Cross Defendant)

22 May 2009

CURTIS J

RULING

1. By statement of claim in DDT proceedings 7364 of 2007, filed on the 11 December 2007, Robert Maxwell Newton sued the State of New South Wales for damages in respect of his disease of mesothelioma.

2. On 10 March 2008 the proceedings were settled in the sum of $280,000 inclusive of costs.

3. By statement of claim filed 4 February 2009, the State of New South Wales claimed indemnity or contribution from Amaca Pty Limited and Wallaby Grip Ltd pursuant to the Law Reform (Miscellaneous Provisions) Act 1946.

4. By cross-claim in that action Wallaby Grip Ltd claimed contribution from Klinger Limited.

5. Klinger Limited, by notice of motion filed 8 May 2009, seeks an order that Part 4 of the Dust Diseases Tribunal Regulation 2007 does not apply to the proceedings.

Klinger's submissions

6. Part 4 of the Dust Diseases Tribunal Regulation 2007 establishes the Claims Resolution Process. Divisions 5 and 6 of Part 4 extend that process to cross claims.

7. Within Part 4, reg 14 applies the Claims Resolution Process to claims for contribution in these terms:

14 Part applies only to asbestos-related claims

This Part applies to a claim in respect of an asbestos-related condition that is made by the person who is or was suffering from the asbestos-related condition (or by a person claiming through that person, including a compensation to relatives claim) or that is a cross-claim by a defendant on such a claim. (Emphasis added)

8. Mr McIntyre SC, for Klinger, argues that the claim by Wallaby Grip upon Klinger is not a claim made by a defendant to the plaintiff’s claim, nor is it a cross-claim in the plaintiff's proceedings. It is a cross-claim made by a defendant to a fresh suit instituted by statement of claim pursuant to a statutory cause of action. Prima facie, Part 4 has no application to the proceedings

9. He further argues that the statutory language of Division 6, entitled "Special Provision for Apportionment Claims Commenced after the Plaintiff’s Claim Finalised" is not sufficiently wide to comprehend the present claim.

10. The relevant provisions are as follows:

54 Application and interpretation

(1) This Division applies to a claim for contribution (the "new cross-claim") made by a defendant (including a cross-defendant) to a claim (the "original claim") when proceedings on the new cross-claim are commenced after the original claim has been settled or determined, but only if the original claim was commenced by statement of claim filed on or after 1 July 2005.

(2) The plaintiff on the new cross-claim is referred to in this Division as the "initiating defendant" and a defendant on the new cross-claim is referred to as a "new defendant". The defendants (including any cross-defendants) on the original claim are referred to as the "original claim defendants".

(3)

(Emphasis added)

11. Mr McIntyre submits that the terms of reg 54 apply only to a claim for contribution made in a cross-claim by a defendant or cross-defendant to the original claim. The present proceedings were not instituted in a cross-claim, but in a statement of claim.

12. He further argues that the cross-claim by Wallaby Grip upon Klinger is not made by a defendant or cross-defendant "to the original claim", and in consequence, even if the dispute between the State of New South Wales and Wallaby Grip is subject to the Claims Resolution Process, the claim by Wallaby Grip against Klinger is not.

Wallaby Grip's Submissions

13. Mr Russell SC for Wallaby Grip does not address reg 14. He submits that, with sufficient clarity, reg 54(1) directs itself to the claim by Wallaby Grip against Klinger.

14. Mr Russell says that the words "claim for contribution" describe a generic concept in which a party seeks to exercise a right conferred by s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946. The words that follow in parenthesis (the new cross-claim) are not intended to limit the generality of the preceding words, but to act as a descriptor for the purposes of reg 55, which applies the Claims Resolution Process to a claim there described as a "new cross-claim", and regs 56 and 57, which impose procedural obligations upon a defendant who initiates a "new cross-claim".

15. This submission is sufficiently illustrated by reproducing reg 55:

55 New cross-claim subject to claims resolution process

(1) Despite clause 18, a new cross-claim to which this Division applies is subject to the claims resolution process once the claim is filed and until:

(a) the defendants to the claim agree as required by Division 5 to the contribution that each is liable to make to damages recovered by the plaintiff on the original claim, or

(b) failing agreement, a Contributions Assessor has determined under Division 5 the contribution that each defendant is liable to make.

(2) …

16. In Mr Russell's submission, the words of reg 54 also reflect the statutory intention that the Division is to apply not only to the resolution of the statutory claim brought by the State of New South Wales against Wallaby Grip, but also to further claims for contribution brought in those proceedings, because reg 54 applies to "proceedings on the new cross-claim".

17. Mr Russell further contends that if, contrary to his submissions, the words of the regulation are ambiguous or obscure, or if their ordinary meaning leads to a result that is manifestly unreasonable, then recourse may be had to extrinsic material as an aid to interpretation pursuant to s34 of the Interpretation Act 1987.

18. Division 6 was promulgated in response to the Report on the Review of the Dust Diseases Claims Resolution Process published by the Attorney General's Department. The report recommended that:

"Modified contributions assessment provisions should apply where a separate claim for contribution is brought in separate proceedings after the conclusion of the plaintiff’s claim"

19. I accept Mr Russell’s submissions. The present proceedings, including the cross-claim against Klinger, are by force of reg 54 and reg 55 subject to the claims resolution process.

Orders

20. The notice of motion is dismissed.

Klinger Ltd is to pay the costs of Wallaby Grip Ltd.

Mr J A McIntyre SC with Mr A Giurtalis instructed by Baker and McKenzie appeared for the Applicant on the Motion

Mr D J Russell SC instructed by Middletons appeared for the Respondent to the Motion