John William Booth v Amaca Pty Ltd and Anor (No.1) [2010] NSWDDT 4

Dust Diseases Tribunal of New South Wales

CITATION : John William Booth v Amaca Pty Ltd and Anor (No.1) [2010] NSWDDT 4

John William Booth (Plaintiff) PARTIES : Amaca Pty Ltd (First Defendant) Amaba Pty Ltd (Second Defendant)

MATTER NUMBER(S) : 8212 of 2008

JUDGMENT OF: Curtis J at 1

CATCHWORDS: DUST DISEASES TRIBUNAL - Proceedings :- General issues already determined

LEGISLATION CITED: Dust Diseases Tribunal Act (1989) s25B Dust Diseases Tribunal Rules (1990) r9

Eaton v Carrier Air Conditioning and Ors [2004] NSWDDT 18 Stavar v Caltex Refineries (NSW) Pty Ltd [2008] NSWDDT 22 CASES CITED: Blair v Curran (1939) 62 CLR 464 Re Mowbray, Brambles Holdings Ltd and British American Tobacco (Australia) Services (No 6) [2006] NSWDDT 7 British American Tobacco (Australia) Services Limited v Laurie and Ors [2009] NSWCA 414

DATES OF HEARING: 22 February 2010 EX TEMPORE JUDGMENT DATE : 22 February 2010

Mr PCB Semmler QC with Mr S Tzouganatos instructed by Turner Freeman appeared for the plaintiff

LEGAL REPRESENTATIVES: Mr G M Watson SC with Mr J C Sheller instructed by DLA Phillips Fox appeared for the first defendant

Mr G M Watson SC instructed by Holman Webb Brisbane appeared for the second defendant

JUDGMENT:

Dust Diseases Tribunal of New South Wales Matter Number DDT8212 of 2008 John William Booth v Amaca Pty Ltd and Amaba Pty Ltd 22 February 2010 RULING CURTIS J 1. The defendants wish to argue that the exposure of Mr Booth to the asbestos brake linings which they manufactured did not make a material contribution to his disease. 2. To foreclose the issue, the solicitors for the plaintiff on 23 July 2009 filed a notice entitled Further Notice under Section 25B of the Dust Diseases Tribunal Act 1989. That notice was in this form: Take Notice that pursuant to Section 25B of the Dust Diseases Tribunal Act 1989, and the remarks of Beazley JA and Fitzgerald JA in Baldwin v Plane (1998) 17 NSWCCR 434, at 430 [6], 496 [136], the remarks of Mason P and Stein JA in Stevedoring Industry Finance Committee v Gibson & Ors [2000] NSWCA 179 at 158 to 162 the Plaintiff intends to rely in these proceedings on the determination in the following proceedings of the following issues of a general nature: 1. "It is beyond controversy that all asbestos exposure during the course of the latency period, which generally is accepted to be anything between 10 and 60 years, is causative of mesothelioma and makes a material contribution to it." O'Meally P Eaton v Carrier Air Conditioning and Ors [2004] NSWDDT 18, paragraph 11. 2. "It has been frequently held in the Tribunal that all asbestos exposure during an acceptable latency period makes a material contribution to mesothelioma. That has been a subject of determination by Judges of the Tribunal under Section 25B of the Act." O'Meally P Stavar v Caltex Refineries (NSW) Pty Ltd [2008] NSWDDT 22, paragraph 115. 3. "All exposure to asbestos in an acceptable latency period makes a material contribution to the disease[ mesothelioma]. That view is now beyond controversy." O'Meally P Stavar v Caltex Refineries (NSW) Pty Ltd [2008] NSWDDT 22, paragraph 116. 3. S25B provides relevantly as follows: 25B General issues already determined (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. 4. Mr Watson SC for the defendants submits that, because of the width of the language, these statements by O'Meally P cannot constitute determinations upon issues of a general nature in proceedings before the Tribunal. He argues that s25B does not permit the Tribunal to conclusively determine questions of law, and that a statement that all asbestos exposure during acceptable latency periods makes a "material" contribution to the disease of mesothelioma, elevates that statement to a proposition of law. If the determinations stand in their terms, this defendant may not raise a defence that any proven contribution by its products to the plaintiff's mesothelioma is either immaterial or de minimis. 5. Although I do not find it necessary to rule on this submission I note that in Blair v Curran (1939) 62 CLR 464 Dixon J, as he then was, discussing issue estoppel, said that: "A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies". (Emphasis added) 6. By reference to decided cases in other jurisdictions, Mr Watson also submits that the statement of his Honour that the issue was "beyond controversy" was factually incorrect. Whether or not a determination of an issue is beyond controversy is legally irrelevant; it is the determination that stands. Nevertheless this further submission illustrates the real question for present determination. What precisely was the issue of a general nature determined in the earlier proceedings? 7. In Re Mowbray, Brambles Holdings Ltd and British American Tobacco (Australia) Services (No 6) [2006] NSWDDT 7 (31 March 2006). I said this: To my mind that which is necessary to constitute a determination of an issue of a general nature is that the determination be necessary to resolve a contested issue of fact upon which a verdict may turn, that the issue is potentially relevant to this disposition of a whole class of cases and that a factual presumption in accordance with that determination be sufficient to resolve the same issue if it is contested in the subsequent case in which the section is invoked. 8. In this sense s25B extends the principle of issue estoppel beyond the parties to a dispute. The need for precision in identifying the issue of fact determined in the earlier litigation remains. In Blair v Curran at 532 Dixon J. said this: Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those of the facts which form the ingredients in the cause of action… 9. Basten JA observed in British American Tobacco (Australia) Services Limited v Laurie and Ors [2009] NSWCA 414 at [146], that s25B denies to a litigant those rules of procedural fairness which would otherwise entitle the litigant to contest factual assertions pleaded by the opponent. 10. It is in recognition of this potential for procedural unfairness that r9 of the Dust Diseases Tribunal Rules requires that a party relying upon s25B provide full particulars of the precise issue alleged to have been determined in the earlier proceedings. The rule is as follows: 9 General issues already determined (1) A party who intends to rely in any proceedings on the determination in other proceedings of an issue of a general nature, as referred to in section 25B (1) of the Act, must within a reasonable time file and serve on all other parties notice of that intention, including full particulars of the precise issue alleged to have been determined and as to when, where and by whom the issue is alleged to have been determined. (2) Subrule (1) does not prevent the Tribunal from determining on its own motion that an issue is an issue to which section 25B (1) of the Act applies. 11. Where it was unnecessary to make findings upon a particular issue of fact in order to determine a prior dispute, the parties to that dispute may not have addressed that issue in evidence or in submissions. In that circumstance an unnecessary, or too widely expressed, finding of fact may be uninformed by the best evidence available, or lack the assistance of considered submissions and deliberation. 12. It is for this reason that a s25B Notice must identify the essential factual ingredients in the earlier cause of action, and restate the findings upon those ingredients. 13. The test is whether, if the present dispute were between the parties to the earlier litigation, one party would be estopped from contending to the contrary of the proposition advanced in the s25B Notice. 14. The present s25B Notice does not include full particulars of the precise issue necessarily determined in the earlier proceedings. I do not know from the information contained within this s25B Notice whether, in any of the earlier proceedings, any defendant contended that its causal contribution to the plaintiff's disease was de minimis or immaterial. 15. S25B is a powerful provision. It is associated with the strong possibility of potential unfairness. In these circumstances the Tribunal should rigorously adhere to the rules controlling its operation. 16. The current notice does not comply with the Rules. The defendants are not by force of s25B precluded from arguing that that the exposure of Mr Booth to the asbestos brake linings that they manufactured made no material contribution to his disease.