(Re Olson) Eraring Energy v Babcock Australia Pty Ltd [2006] NSWDDT 8

Dust Diseases Tribunal of New South Wales

CITATION : (Re Olson) Eraring Energy v Babcock Australia Pty Ltd [2006] NSWDDT 8

PARTIES : Eraring Energy (Cross Claiment) Babcock Australia Pty Ltd (Second Cross Defendant)

MATTER NUMBER(S) : 2/05/2

JUDGMENT OF: O'Meally P

CATCHWORDS: Claims Resolution Process :- Dust Diseases Tribunal Regulation Cl 44 - Plaintiff's action and cross claims settled - cross defendant liable to pay costs to cross claiment

LEGISLATION CITED: Dust Diseases Tribunal Regulation

DATES OF HEARING: 5 April 2006 EX TEMPORE JUDGMENT DATE : 04/05/2006

Goldrick Farrell Mullan (Cross Claiment) LEGAL REPRESENTATIVES: Moray & Agnew (Second Cross Defendant)

JUDGMENT:

RULING O'MEALLY P

1 A dispute has arisen concerning the liability of Babcock Australia Pty Ltd (Babcock) to pay costs claimed by Eraring Energy (Eraring) in a cross-claim by Eraring against Babcock and others.

2 On 6 January 2005 one Oscar Olson (the plaintiff) issued a Statement Of Claim seeking damages from Eraring, Cockatoo Dockyard Pty Ltd and Sarkam Pty Ltd in respect of an asbestos disease.

3 On 14 November 2005 Eraring issued a cross-claim seeking from Babcock International Ltd, Babcock, Amaca Pty Ltd and Wallaby Grip Ltd contribution to the damages it might be found liable to pay to the plaintiff. The cross-claim against Babcock International Ltd was discontinued.

4 The plaintiff's claim against the three defendants was settled and agreement was reached between the defendants and cross-defendants on the contribution each should make to the plaintiff's damages.

5 The agreement pursuant to Cl 44 of the Dust Diseases Tribunal Regulation (the Regulation) was filed on 6 February 2006 and relevantly provided that the first defendant, Eraring, should contribute 31.85 per cent of the amount agreed to be accepted by the plaintiff in full satisfaction of his claim, which sum, I am told, was to include costs. The second defendant, Cockatoo Dockyard Pty Ltd, agreed to contribute 5 per cent. The third defendant, Sarkam Pty Ltd agreed to contribute 25 per cent. There was a cross-claim other than that with which I am presently concerned, that being the first cross-claim in which the Commonwealth of Australia was the cross-defendant, but in the cross-claim with which I am presently concerned, namely, the second cross-claim, Babcock agreed to contribute 4.875 per cent of the sum to be awarded to the plaintiff, Amaca agreed to contribute 17.875 per cent and Wallaby Grip Ltd 10.4 per cent.