Dust Diseases Tribunal of New South Wales CITATION : (Re Verschuren) Amaca Pty Ltd v M & S Whelan Investments Pty Ltd [2010] NSWDDT 5 PARTIES : Amaca Pty Ltd (Respondent Cross-Claimant) M & S Whelan Investments Pty Ltd (Applicant Cross-Defendant) MATTER NUMBER(S) : 107/09/1 JUDGMENT OF: O'Meally P CATCHWORDS: DUST DISEASES TRIBUNAL :- PROCEDURE - judgments and orders - amending, varying and setting aside - cross-claim - contribution determination made - judgment entered in accordance with determination - whether contribution determination should be varied - whether judgment in cross-claim should be set aside LEGISLATION CITED: Dust Diseases Tribunal Regulation 2007 DATES OF HEARING: 23 March 2010, 24 March 2010, 26 March 2010 DATE OF JUDGMENT: 26 March 2010 EX TEMPORE JUDGMENT DATE : 26 March 2010 G D Bloch instructed by Goldhirsch & Shnider appeared for the Applicant Cross-Defendant LEGAL REPRESENTATIVES: W S Strathdee instructed by Holman Webb Lawyers - Brisbane appeared for the Respondent Cross-Claimant JUDGMENT: RULING O'MEALLY P 1. On 16 February last I dealt with that part of an application by M & S Whelan Investments Pty Ltd (Whelan), brought by way of notice of motion filed on 22 December 2009, seeking an order that proceedings on a judgment entered against it on 14 December 2009 be stayed. In the result, I ordered that proceedings on that judgment be stayed until further order of the Court upon terms. Those terms were subsequently vacated. 2. I am now dealing with two notices of motion brought by Whelan. They are the notice of motion of 22 December 2009 which sought also an order that the judgment of 14 December 2009 be set aside, and an application by notice of motion filed on 16 February 2010 seeking an order that the Tribunal determine the dispute between the Cross-Defendant and the Cross-Claimant as to apportionment of liability (the dispute being that the Cross-Defendant asserts its liability to the Cross-Claimant should be reduced to nil). 3. The relevant circumstances are recited in my ruling of 16 February 2010, but, so that these reasons may be understood independently of that ruling, it is appropriate to recite that the plaintiff, Patricia Verschuren, brought proceedings against Amaca Pty Ltd (Amaca) alleging that in the course of her employment by Whelan at The Man Lodge (the Man) at Falls Creek in Victoria, she was exposed to asbestos dust and fibre which originated from products manufactured by James Hardie and Coy Pty Ltd, in whose shoes Amaca now stands. She alleged that as a result of that exposure she contracted malignant mesothelioma. 4. After the statement of claim was served upon Amaca and the plaintiff's statement of particulars was filed and served, Amaca issued a cross-claim against Whelan seeking contribution alleging that, in exposing her to asbestos, Whelan had failed in its duty of care to its employee and was in breach of statutory duty. Both the plaintiff's claim and Amaca's cross-claim were subject to the requirements of the Dust Diseases Tribunal Regulation 2007 (the Regulation). 5. On 13 October 2009, in compliance with the Regulation, a contribution determination was made. The Contributions Assessor determined that Amaca was to bear liability to pay 60 per cent of the plaintiff's damages and Whelan 40 per cent. After the cross-claim was served, and before the contribution determination was made, Amaca was in repeated contact with Whelan informing it of its obligations under the Regulation. Whelan, believing that it was not liable to the plaintiff, neglected to participate in the proceedings and ignored repeated recommendations of Amaca's solicitors that it obtain its own advice. In due course, the plaintiff's proceedings were settled by Amaca and subsequently Amaca obtained judgment against Whelan for 40 per cent of the sum which it had paid to the plaintiff. 6. Clause 52 of the Regulation relevantly provides: (1) A(n)… determination as to apportionment among defendants for the purposes of this Division is conclusively binding on the defendants for the purposes of the settlement, or determination by the Tribunal, of the plaintiff's claim and payment of the plaintiff's damages. (2) The… determination is not binding for the purposes of the subsequent taking, or determination by the Tribunal, of a dispute between defendants as to apportionment. 7. By cl 47(1) defendant includes a cross-defendant. Despite the infelicitous language used in subcl (2) of cl 52 of the Regulation, it authorises the Tribunal to consider whether a determination of a Contributions Assessor should be maintained. It was, of course, always open to Whelan to make representations to the Contributions Assessor, as it was to participate in subsequent mediation proceedings, but it failed to do so. 8. On this application I have heard the evidence of Shane Peter Michael Whelan, Kevin Bayliss Murphy and Simon Robert Rice. Mr Whelan was, at all relevant times, a director of Whelan and between 1982 and 1987 a director of another company, Haita Pty Ltd (Haita). Mr Murphy was a director of Whelan between April 1973 and September 1987 and of Haita between April 1982 and December 1987. Mr Rice worked at both the Darva Hotel at Mount Martha and the Man when the plaintiff also worked at each place. Mr Rice was called by Ms Strathdee who appears for Amaca. At issue is whether Whelan or Haita employed the plaintiff at the Man. It is not disputed that Whelan owned and operated the Darva Hotel, nor that it employed the plaintiff at those premises. 9. Ms Strathdee also tendered the plaintiff's statement of particulars to which reference was earlier made, that is, particulars filed in the Registry on 10 August 2009 and amended particulars filed in the Registry on 2 November 2009. She has tendered a copy of an affidavit of the plaintiff sworn 20 October 2009. 10. The bases upon which Whelan disputes its liability to Amaca are two. First, it says it did not employ the plaintiff at the Man at Falls Creek and, secondly, the plaintiff was not and could not have been exposed to asbestos in the course of her employment at the Man. The plaintiff did not give evidence in the principal proceedings and they were settled following mediation without evidence having been taken. As a consequence, the plaintiff was not cross-examined. Had Whelan participated in the mediation, subject to the Regulation, it could have made an application to the mediator to require the plaintiff to give evidence on matters relevant to Whelan's liability to contribute (see cl 39). 11. It should be noted that whilst the plaintiff, in each set of particulars and in her affidavit, alleged employment by Whelan, Whelan disputes it was her employer whilst she worked at the Man. It was Mr Rice's belief that he, also, was employed by Whelan. Mr Whelan emphatically asserts that neither the plaintiff nor Mr Rice was employed by Whelan at the Man, but both were employed by Haita. He said only Haita employed staff at the Man. 12. It is put by counsel for Amaca that Mr Whelan was being untruthful in that assertion, that he had much to lose if Whelan were found to be the plaintiff's employer. 13. In assessing the weight to be attached to Mr Whelan's evidence it is important to bear in mind that the events with which we are concerned here happened during a period beginning more than 30 years ago and to recognise that memory fades with time. It is appropriate, also, to consider the manner in which Mr Whelan gave his evidence. As to that, I was impressed by Mr Whelan as a witness of truth. He made concessions when it was appropriate to make them, he acknowledged his own difficulties in recollection, and he described the efforts that he had made to locate documents which would corroborate his belief as to various events and circumstances relevant to the determination of issues in this application. 14. Mr Whelan's evidence was that he had searched for wage records and other material capable of putting the identity of the plaintiff's employer beyond doubt, but he was unable to locate any. Approaches to local government authorities for records were unsuccessful. Those records were unavailable, seemingly because they had been destroyed. All he was able to obtain was a copy of the order transferring the liquor licence to Haita, granted on 20 August 1982 some time after Haita took possession of the premises and began to trade. The records of Whelan and Haita also had disappeared with the effluxion of time. 15. It is appropriate that Mr Whelan's evidence be looked at with scrutiny. It should, as Ms Strathdee submits, be carefully examined because records would prove or disprove assertions made by him. In assessing the weight to be attached to Mr Whelan's evidence it is appropriate to consider the efforts that he made and his response to questions. 16. In the balance it should also be borne in mind that neither the plaintiff nor Mr Rice had anything to lose or gain by the assertion that they were employed by Whelan, but their evidence on the identity of their employer is no more than evidence of belief and is not, by itself, something which would finally determine the question. 17. The plaintiff and Mr Rice were employed by Whelan at the Darva Hotel at Mount Martha on the Mornington Peninsula. Her place of employment was transferred to Falls Creek following her engagement to one Richard Walding. Mr Walding also had been employed to work at Darva Hotel when his employment was transferred to the Man at Falls Creek. In due course the plaintiff went with him and worked at the Man. 18. In evidence-in-chief and in cross-examination Mr Whelan, on at least five occasions, asserted forcefully and I believe truthfully, that the plaintiff was not employed by Whelan at the Man. That hotel was operated by Haita, not by Whelan. The only connection Whelan had with the Man was that it leased it from its owner, the State Electricity Commission and, in turn, subleased it to Haita. The liquor licence was granted to Haita. Plans for alterations of the Man premisis were prepared for Haita. It is unlikely that hotel staff would be employed other than by the licensee or the owner of the hotel business. These factors support the conclusion that staff at the Man were employed by Haita. 19. There were other issues raised by the parties. They are unnecessary now to determine and, as counsel have agreed, I think it appropriate to leave them because there may be further litigation. That would require further investigation into whether there was exposure to asbestos in building work carried out at the Man. In the light of the conclusion to which I have come it is unnecessary now to deal with those matters. 20. I am persuaded to the view that when the plaintiff worked at the Man in Falls Creek her employer was not Whelan. Accordingly, the contributions determination should be varied by reducing the proportion from 40 per cent to nil and the judgment entered on 14 December 2009 should be set aside. 21. The orders are: The contribution assessment of 13 October 2009 is varied by reducing the contribution of the cross-defendant to nil. Judgment entered against the cross-defendant on 14 December 2009 is set aside. The cross-claimant and the cross-defendant will bear their own costs of this application. In the cross-claim by Amaca against Whelan there will be verdict and judgment for Whelan. No order as to costs. Mr G D Bloch instructed by Goldhirsch & Shnider for the Applicant Cross-Defendant Ms W S Strathdee instructed by Holman Webb Lawyers - Brisbane appeared for the Respondent Cross-Claimant 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.