Dust Diseases Tribunal of New South Wales CITATION : (Re Zunic) BHP Billiton v Commonwealth of Aust and Ors [2007] NSWDDT 15 (re Ivan Zunic) BHP Billiton Ltd T/as The Whyalla Ship Building and Engineering Works (Cross-Claimant) Commonwealth of Australia (First Cross-Defendant) PARTIES : Newbrook Insulation Company Pty Ltd (In Liquidation) (Second Cross-Defendant) Newton Brooks Insulation Company Pty Ltd (In Liquidation) (Third Cross-Defendant) Newbrook (Whyalla) Pty Ltd (In Liquidation) (Fourth Cross-Defendant) MATTER NUMBER(S) : 90/2001/3 of JUDGMENT OF: O'Meally P CATCHWORDS: Dust Diseases Tribunal :- Notice of Motion to strike out part of defence - triable issue of fact - Notice of Motion dismissed DATES OF HEARING: 1 August 2007 DATE OF JUDGMENT: 1 August 2007 EX TEMPORE JUDGMENT DATE : 1 August 2007 Mr T G R Parker, SC with Mr D C Price instructed by Piper Alderman, appeared for the Cross-Claimant LEGAL REPRESENTATIVES: Mr P J Deakin, QC with Mr M A McDonogh instructed by Minter Ellison, appeared for the First Cross-Defendant JUDGMENT: RULING O'MEALLY P 1 This is a motion brought by BHP Billiton Ltd (BHP) to strike out various parts of the defence to a cross-claim against the Commonwealth of Australia. The cross-claim arises from an action brought by one Ivan Zunic against BHP. 2 The first paragraph of the defence which I am invited to strike out is par 19 which relates to the defence to par 21 of the cross-claim. Paragraph 21 of the cross-claim is in these terms: 21. Between 1962 and 5 March 1974, the Commonwealth knew or ought to have known that: (i) Inhalation of asbestos dust and fibre could cause lung disease; (ii) That workers undertaken the construction of the Commonwealth Ships were inhaling asbestos dust and fibres. To that the Commonwealth has pleaded: 19. As to paragraph 21…the Commonwealth says: a. as to paragraph 21(i) it admits that it had knowledge that lung disease could arise from the inhalation of asbestos dust and fibres, but says that its knowledge, during the relevant period, that is 1962 to 5 March 1974, as to the extent to which and the type of lung disease that may arise accorded with material published by the Australian National Health and Medical Research Council from time to time. b. As to paragraph 21(ii): i. it does not admit that at any material time it knew the matters alleged; ii. it admits that it ought to have known that workers engaged in or in close proximity to the use of materials containing asbestos were at risk of inhaling asbestos dust and fibres. 3 Mr Parker of senior counsel for BHP submits that the words in paragraph 19(a) of the defence beginning with the words "…but says that its knowledge" and ending with "from time to time" should be struck out. Apart from being surprised that the Commonwealth would plead such a matter of fact it does raise a triable issue of fact and I decline to strike out that part of the defence. 4 Paragraph 23 of the cross-claim, so far as it is relevant alleges: 23. In breach of the Commonwealth's duty of care, the Commonwealth failed to: 23.1 warn BHP and the workers at the Whyalla shipyards that the inhalation of asbestos dust and fibres could cause lung disease; 5 Relevantly, the Commonwealth has pleaded in par 21 of its defence: [It] admits that it did not provide directly to BHP and the workers at the Whyalla Shipyards the warning particularised in 23.1 but says that it did warn industry and the public as to the risk of health resulting from exposure to asbestos dust. 6 I am not sure what the Commonwealth intended to convey by those words nor, other than the fact that it concedes that it failed to warn the cross-claimant and its employees directly, what follows from them. I decline to strike out that part of the defence. 7 The notice of motion filed 29 November 2006 is dismissed. In light of the fact that argument covered more than was raised in the notice of motion and related to issues to be litigated and admissions which ought be made, costs will be costs in the cause. Mr T G R Parker, SC with Mr D C Price instructed by Piper Alderman appeared for the Cross-Claimant Mr P J Deakin, QC with Mr M A McDonogh instructed by Minter Ellison appeared for the First Cross-Defendant DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.