Whether separate contribution proceedings are subject to the DDT claims resolution process

Babcock Australia Pty Limited v Bradford Insulation Industries Pty Limited [2010] NSWDDT 12

Issue

Whether the claims resolution process in the Dust Diseases Tribunal Regulation 2007, applied only to the cross-claim in original proceeding brought by plaintiff, and does not apply to the fresh proceedings brought by statement of claim (by a judgment defendant in the original proceedings).

CURTIS J

1. On 9 May 2009 the Tribunal entered judgment for a plaintiff, Mr Kirkpatrick, against Babcock Australia Pty Limited (Babcock) in the sum of $1,771,640 plus costs. On 30 June 2009 Babcock filed a statement of claim in the Tribunal claiming contribution to this judgment from Amaca Pty Limited, Wallaby Grip Ltd (WGL), Wallaby Grip BAE Pty Limited, (BAE) and Bradford Insulation Industries Pty Limited, (Bradford) pursuant to the Law Reform (Miscellaneous Provisions) Act 1946. Amaca has cross-claimed against CSR Ltd (CSR).

2. By letter of 26 October 2009 Babcock requested the Registrar of the Tribunal to exercise the power conferred by clause 49 of the Dust Diseases Tribunal Regulation 2007 and appoint a Contributions Assessor to determine apportionment between the parties in accordance with the “Claims Resolution Process” established by Part 4 of the Regulation.

3. On 13 November 2009 Mr James Kearney, the assessor duly appointed by the registrar, determined that the contributions of the parties were to be as follows:

Party per cent
Babcock 48.00
Amaca 13.00
WGL 1.69
BAE 11.31
Bradford 13.00
CSR 13.00
TOTAL 100.00

4. Babcock, Amaca, WGL, and BAE are content with this apportionment and have paid appropriate contributions to Babcock. Bradford and CSR are aggrieved, and desire that the claim by Babcock go to trial.

5. By Notice of Motion filed 5 March 2010, Babcock seeks orders pursuant to s90 of the Civil Procedure Act 2005 that Bradford and CSR pay to Babcock sums of money corresponding to the contributions assessed against them, to be held by Babcock pending determination of the claim.

12. The Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005 introduced the Claims Resolution Process into the Dust Diseases Tribunal Regulation 2001 by the creation of Part 4 of that Regulation. Division 5 of Part 4, entitled “Apportionment” applied the process to the resolution of cross-claims brought by and between defendants.

13. Division 5 did not address apportionment between defendants and cross-defendants after settlement or determination of the plaintiff’s claim. Clause 44 of the 2005 amendment merely provided that the effect of an agreement or determination as to apportionment was to conclusively bind the defendants for the purposes of settlement or determination by the Tribunal of the plaintiff’s claim and payment of the plaintiff’s damages.

14. The Dust Diseases Tribunal Regulation 2007, commencing on 2 March 2007, replaced the Dust Diseases Tribunal Regulation 2001. The new Regulation expressly applied the Dispute Resolution Process to the disposition of cross claims after the determination of the plaintiff’s claim.

17. The question for resolution in the present case is whether Division 6 in its terms does apply the Claims Resolution Process to a separate claim for contribution instituted by statement of claim after the determination of the plaintiff’s claim.

18. It is convenient to here remark that although the Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005 inserted s11(1A) in the Dust Diseases Tribunal Act 1989, which conferred jurisdiction to determine claims for contribution independently of the plaintiff’s action, that jurisdiction is not exclusive to the Tribunal.

33. S22 provides relevantly:

22 Defendant’s right to cross-claim

(1) Subject to subsection (2), the court may grant to the defendant in any proceedings (“the first proceedings”) such relief against any person (whether or not a plaintiff in the proceedings) as the court might grant against that person in separate proceedings commenced by the defendant for that purpose.

(2)…

34. Separate proceedings originated by statement of claim seeking damages for breach of duty and/or contribution or indemnity pursuant to s5 of the Law Reform (Miscellaneous Provisions) Act 1946, do not fall within the meaning given to cross claim in s22.

35. If clause 54(1) were to be read with the words in parenthesis, “(the new cross-claim)” and the words “on the new cross-claim” excised, the provision would apply to any claim for contribution made by a defendant or cross-defendant in the original proceedings, whether by way of cross-claim or originating process. But the words are contained within the clause and must be given some meaning.

36. Setting aside for the moment the problem that the claims contemplated by s54 do not include claims for relief independently of s5 of the contributions statute, what work do those words do if they do not signify that the claims in question are cross-claims?

37. A possible interpretation is that the words “new cross-claim” are not terms of art, nor intended to limit the generality of the preceding words, “claim for contribution”, but were chosen to act as a descriptor for the purposes of identifying those contribution claims, however instituted, upon which clauses 55 and 58 impose the Claims Resolution Process. This was the conclusion that I reached in Wallaby Grip Ltd v Klinger Ltd [2009] NSWDDT 13 (22 May 2009).

38. This interpretation is inconsistent with clause 47(2) of Division 5, promulgated concurrently with Clause 54, which provides that the settlement or determination of a plaintiff’s claim does not affect the continued operation of the Claims Resolution Process “in relation to a cross-claim on that original claim.”

39. The original proceedings remain on foot after determination of the plaintiff’s claim in circumstances where, as is most often the case, the Tribunal has ordered that the cross-claims be separately tried pursuant to R28.2 of the Uniform Civil Procedure Rules 2005.

“Statement of Claim for the New Cross-Claim”

40. Babcock contends that the words “statement of claim for the new cross-claim”, where appearing in clauses 56 and 57 are intended to be descriptive of the originating process for those claims upon which the Division is to operate, that is, claims for contribution initiated by statement of claim.

41. Although, ideally, the words “statement of claim” in the description of the originating process to which clauses 56 and 57 apply should be given some meaning, in conjunction with the words for cross-claim they are wholly ambiguous.

42. The phrase “statement of claim for cross-claim” does not appear in the Uniform Civil Procedure Rules 2005. R6.2 provides that, subject to the rules, a person may commence proceedings in the court by filing a statement of claim or a summons. R6.3 provides that proceedings on a claim for relief in relation to a tort or a breach of duty must be commenced by statement of claim.

43. R9.1 provides that, in proceedings commenced by statement of claim, a cross-claim is to be made by a “statement of cross-claim”, and that in any proceedings each cross-claim is to be numbered in the order in which the cross-claims are filed.

44. The phrase “statement of claim for the new cross-claim” is self contradictory. It accurately describes neither a statement of claim upon an independent cause of action, nor a cross-claim as defined by s22 of the Civil Procedure Act 2005.

45. If Babcock’s submission is accepted, it becomes necessary to read into the phrase “statement of claim for the new cross-claim” the word “or” in lieu of the word “for”, in order to include, within the ambit of the Division, cross claims in the original proceedings filed after determination of the plaintiff’s claim.

Conclusion

46. Mr Watson SC for CSR and Bradford has identified the problems addressed above. He also argues that the machinery provisions for apportionment contained within Division 5 are designed to apply to defendants and cross-defendants and cannot, without violence to their language, be sensibly applied to the apportionment of liability between a plaintiff tortfeasor and defendants and cross defendants to his claim.

47. Because the regulation is so vague, I believe that the better course is to continue to follow my previous decision in Wallaby Grip Ltd v Klinger Ltd pending appellant guidance.

48. I hold that Division 6 of Part 4 of the Dust Diseases Tribunal Regulation 2007 applies to a separate claim for contribution instituted by statement of claim after the determination of the plaintiff’s claim.

49. The Court of Appeal in Power Technologies Pty Ltd v Energy Australia accepted that s90 of the Civil Procedure Act 2005, read with s11(1A) of the Dust Diseases Tribunal Act 1989 authorised the Tribunal to make an order for payment of money in consequence of an apportionment determined by a Contributions Assessor.

Orders

50. Bradford Insulation Industries Pty Limited is to pay within 28 days the sum of $247,863.20 to Babcock Australia Pty Ltd being 13 per cent of the judgment and costs totalling $1,906,640 recovered by Mr Kirkpatrick in proceedings against Babcock Australia Pty Ltd in the Tribunal.

CSR Ltd is to pay within 28 days the sum of $247,863.20 to Babcock Australia Pty Ltd being 13 per cent of the judgment and costs totalling $1,906,640 recovered by Mr Kirkpatrick in proceedings against Babcock Australia Pty Ltd in the Tribunal.

Brisbane Barrister – David Cormack

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