(Re: Murray) Eraring Energy v Babcock International Ltd & Ors [2005] NSWDDT 6

Reported Decision (2005) 2 DDCR 253

Dust Diseases Tribunal of New South Wales

CITATION : (Re: Murray) Eraring Energy v Babcock International Ltd & Ors [2005] NSWDDT 6

Eraring Energy PARTIES : Babcock International Limited Babcock Australia Ltd

MATTER NUMBER(S) : 5 of 91/1

JUDGMENT OF: McIntyre A J at 1

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DATES OF HEARING: 21 & 24/02/2005

EX TEMPORE JUDGMENT DATE : 02/25/2005

JUDGMENT:

JUDGMENT McINTYRE AJ 1. In this matter the cross-claimant, Eraring Energy, seeks contribution pursuant to the provisions of s 5 of the Law Reform Miscellaneous Provisions Act 1946 in relation to a liability incurred by it pursuant to a consent judgment to pay damages to Mr Lindsay Murray arising out of exposure to asbestos at a number of locations in New South Wales at power stations between approximately 1949 and 1980. During those periods the plaintiff, Mr Murray, was employed by the cross-claimant Eraring or its predecessor or predecessors in title. The cross-claimant seeks contribution from other tort feasors who Eraring says would, if sued, have been liable to the plaintiff for the same damage. 2. In the cross-claim proceedings it sues the first cross-defendant Babcock International Ltd, whom I will refer to as BIL in this judgment. Eraring also seeks contribution from the second cross-defendant Babcock Australia Ltd to whom I will refer to as BAL. In the cross-claim Eraring seeks contribution also from two Wallaby Grip companies, the third and fourth cross defendants, they being the current corporate descriptions of what used to be known generally as Bells Asbestos. 3. BIL has filed a defence to the cross-claim denying liability to contribute to the cross-claimant's liability to the plaintiff, Mr Murray. It has made some admissions in its defence but in effect it denies liability to contribute. 4. The cross-claimant has filed a notice pursuant to the Rules of the Tribunal claiming that s 25B of the Dust Diseases Tribunal Act 1989 precludes BIL from relitigating certain issues which Eraring says were issues of a general nature determined in earlier proceedings before the Tribunal or on appeal from the Tribunal. This document I will refer to as the s 25B notice. Eraring claims that BIL cannot relitigate those issues summarised in the 25B notice without the leave of the Tribunal granted pursuant to the provisions of s 25B. Although this matter has not been the subject of submissions it does not appear to me that the s 25B notice is a pleading. In any event no response to the document is required. BIL, however, has indicated that it disputes that the matters listed in the 25B notice are determinations of issues of a general nature as referred to in s 25B of the Act. BIL, however, says that if, despite its contentions, the s 25B notice does refer to determinations of issues which were of a general nature, it will seek the leave of the Tribunal to relitigate such issues as the Tribunal may determine to fall properly within the operation of s 25B. As any such applications by BIL will require the identification of evidence upon which it will rely in seeking such leave to relitigate issues, and as the hearing of the cross-claim is imminent, the parties have consented to the question of whether s 25B can be invoked insofar as the s 25B notice claims that s 25B applies as a separate issue prior to the commencement of hearing of the cross-claim. This course has the advantage of enabling the parties to avoid unnecessary preparation of evidence prior to the hearing of the cross-claim and avoids the need during the trial of the cross-claim for applications to be made for leave to relitigate issues under s 25B if rulings during the trial render such applications necessary. 5. S 25B of the Dust Diseases Tribunal Act 1989 was introduced into the Act in 1998. It is in the following terms: 25B (1) Issues of a general nature determined in proceedings before the tribunal (including proceedings on an appeal from the Tribunal) may not be relitigated or reargued in other proceedings before the Tribunal without the leave of the Tribunal, whether or not the proceedings are between the same parties.