Dust Diseases Tribunal of New South Wales CITATION : The Public Trustee of South Australia (as Legal Personal Representative of the Estate of the late John Alfred Richardson) v Clifton Financial Services Pty Ltd & Ors (No.4) [2004] NSWDDT 41 The Public Trustee of South Australia PARTIES : Clifton Financial Services Pty Ltd BI Contracting Pty Limited CSR Limited MATTER NUMBER(S) : 400 of 2002; 221 of 2003 JUDGMENT OF: Duck J at 1 CATCHWORDS: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 07/09/04 DATE OF JUDGMENT: 09/07/2004 FOR PLAINTIFF: Mr D G Letcher QC instructed by Turner Freeman LEGAL REPRESENTATIVES: FOR FISRT DEFENDANT: Mr G P F Rundle instructed by Hicksons FOR SECOND DEFENDANT: Mr M T Vesper instructed by Makinson & D'Apice. JUDGMENT: 1. The matter is listed today because the plaintiff, who has succeeded in the proceedings, seeks indemnity costs orders in respect of part of the costs. Firstly, on 24 October 2003 the plaintiff sent an offer of compromise in both the estate claim and in the Wrongs Act claim. The offer was sent to each of the defendants. As it turns out the plaintiff did better in the estate proceedings than the offer but not as well in the Wrongs Act proceedings. The attitude of the second and third defendants was to say that as far as they were concerned the order sought in the estate proceedings was not opposed, that is that there be indemnity costs awarded from the date of the offer, 24 October 2003. 2. Learned counsel for the first defendant submitted that there were deficiencies in the way in which the offer had been expressed which resulted in the offer not complying with Pt 22 r 1A(b) of the Supreme Court Rules. The deficiency pointed to is apparent as soon as one looks at the document. The offer of comprise is expressed to be pursuant to Pt 22 of the Supreme Court Rules 1936 (SA), that is instead of referring to the Supreme Court Rules in New South Wales it wrongly added the words "1936 (SA)". It is submitted that this means that the offer does not comply with par 22 of the Supreme Court Rules in this state and hence the plaintiff is deprived of the benefit he would otherwise have had as a result of making the offer. It seems to me to be reasonably plain that the form contains a typographical error. It seems to me that it is a matter to which s 81 of the Supreme Court Act applies. What has been typed ought to be treated as an irregularity and the document should not be deprived of the effect it would otherwise have had but for the irregularity. 3. That being so it seems to me that the plaintiff is entitled to indemnity costs from the date of the offer, that is from 24 October 2003. That is so against all defendants. 4. A further indemnity costs order is sought in respect of one aspect of the plaintiff's case, that is proving that he was in fact employed by the first defendant at relevant times. It had been the attitude of the first defendant, broadly speaking, that its records had gone and that it was not able to admit the fact of employment as the plaintiff pleaded. The order sought is that indemnity costs in respect of that issue be allowed from 13 October 2003 to date. Having regard to the order that has just been made that is about indemnity costs otherwise being payable from 24 October 2003, it seems to me to require no further order in respect of that issue. I say so because by the time the statement of Mrs Tamlin, upon which the plaintiff relied and which annexed to her group certificates demonstrating her employment by the first defendant and her assertion that the plaintiff worked there too, by the time that was assessed by the first defendant effectively the indemnity costs order previously made would take effect anyway. I do not see that any further order needs to be made on that account. 5. The plaintiff further seeks indemnity costs in respect of the period 18 December 2002 so far as the estate proceedings are concerned and from 4 February 2004 insofar as the Wrongs Act proceedings are concerned in respect of matters to which he was put to proof by the third defendant. 6. The order sought in respect of the Wrongs Act is for indemnity costs from 4 February 2004. The issues in both proceedings upon which the plaintiff relies for this order relate to proving that the third defendant was liable for the acts and omissions of Australian Blue Asbestos Pty Ltd later Midalco Pty Ltd, that it supplied crocidolite asbestos fibre from Wittenoom, that it breached its duty of care to the deceased and that the deceased was exposed to a foreseeable risk of injury as a result of those matters. In respect of all but the last it may be fairly said that those areas had been formally proved in proceedings before this one not least in CSR v Wren (1998) 44 NSW LR 463 and further in CSR v Young (1998) 16 NSW CCR 56, so that one might wonder why it was that we had to go through the same territory yet again. More especially is this so when at the end of the case it was clear that the third defendant was adducing no evidence itself in respect of the matters. 7. The one area in this case which was different was that the deceased man, formerly the plaintiff, was not an employee of the third defendant, he was rather, as was found, in a class of persons whom it should readily have been foreseen was exposed to risk, that is he was a man who had to work in a confined space where tradesmen might be expected to work between the false ceiling and the first floor slab, which had been sprayed with the asbestos product. The difference really was simply in the fact of the plaintiff being employed by the first defendant rather than by the third defendant. 8. So far as the costs of trial are concerned it seems to me that the issue of CSR Ltd and its relationship to Australian Blue Asbestos Pty Ltd, and, further, the supply by CSR of crocidolite asbestos fibre from Wittenoom, are matters which had been previously proved and there was no useful purpose in requiring formal proof of those matters again. In this regard I note the provisions of Pt 15A of the Supreme Court Rules and in particular Rule 1 which prohibits putting in issue an allegation of fact when it is not reasonable to do so. The allegations relied on in this application that the deceased was exposed to foreseeable risk of injury and that the conduct of the third defendant, amounted to a breach of duty of care of the deceased, are legal conclusions to be drawn from proven facts. 9. It seems to me that the proof of the relationship between the third defendant and Australian Blue Asbestos Pty Ltd and the supply of crocidolite asbestos fibre from Wittenoom by the third defendant are matters in respect of which the plaintiff should have indemnity costs for the reasons I have mentioned. 10. Indemnity costs are also sought in respect of cross-claims. On 26 August 2004, shortly before the hearing, the first defendant made a proposition to the second and third defendants offering in effect that the first defendant would bear 50 per cent of any liability to the plaintiff. The offer was said to be made in accordance with the principles set out in Calderbank v Calderbank. As it turned out the first defendant has done better than that. It was submitted that if the offer had been accepted that the hearing would have been shortened by several days. I think that that submission involves a measure of artistic licence but I do think that the hearing was prolonged by at least half a day in the following way. The evidence of Mr Jones was taken on the issue, plans were tendered which bore on the cross-claims and submissions were made at length about the moral culpability of each of the defendants. I conclude that the costs on the cross-claims ought to follow the event in respect of each of them with this proviso, that the first defendant should have half a day's costs paid by the second and third defendants on an indemnity basis because the failure to accept the Calderbank offer prolonged the proceedings by half a day. 11. Finally, between the plaintiff and the third defendant submissions were made about the sufficiency of interrogatories and the answers to them. As things have turned out I do not see that it is necessary to deal with those submissions in terms of appropriate costs orders but I do wish to note and have recorded that on the face of it the answers to interrogatories supplied by the third defendant did not disclose any serious effort to deal with the questions which it had been asked, consistently with the duty that it had. I say so, for example, after directing attention to the answer provided to interrogatory 1, which was about an invoice which was later tendered in evidence in the proceedings. It may be accepted that it was relevant and hence its admission. A series of questions was asked about it from A to Q. The third defendant answered none of them and I think it should have. Interrogatory 2 asked questions about the position of Mr C H Broadhurst. Once again with the exception of a period of 12 months in 1964 the third defendant refused to answer the interrogatory. Question 6 asked questions about the relationship between CSR Ltd and Australian Blue Asbestos Ltd as to which evidence was later adduced in the proceedings. The answers given to this interrogatory seem to me to be false. It is important to record these facts because argument had been addressed about them. The Tribunal cannot function if people do not carry out their professional duty in respect of court procedures. 12. The intention of these orders is that the plaintiff will receive his full costs. They will be on an indemnity basis from 24 October 2003 in respect of the estate action. In respect of the Wrongs Act proceedings they will be on an indemnity basis from 4 February 2004. Otherwise they will be on a party-party basis. It is intended that the costs be borne by the defendants in the same proportion as the verdict, that is that the first defendant should pay 25 per cent thereof and that the second and third defendant should pay 75 per cent thereof. 13. Finally it might be noted that insofar as assessment of costs is concerned the proceedings went forward on the basis that evidence in one case was evidence in another so that there would not need to be an allowance for two sets of costs for proving the same thing. 14. To the extent that the costs of the estate action need to be separated from the costs in the Wrongs Act proceedings, the costs might be divided between the sets of proceedings in the same proportions as the verdicts. 15. The defendants are to pay plaintiff's costs of the costs application, to be borne in the same proportion as the verdicts. 16. The second and third defendants move the Tribunal for a stay of proceedings. They do so wishing to consider an appeal. They point to two areas about which they are concerned in respect of an appeal: the first on the question of foreseeability and the second in the question causation. As regards foreseeability it seems to me that having regard to what the Court of Appeal has said in CSR v Young (supra), CSR v Wren (supra) and cases such as those that that is flogging a dead horse. It was conceded in addresses that the plaintiff was in a class of persons who might be expected to be affected by exposure to asbestos in the circumstances. No concession is made about the effect a warning might have for such people or their employer. 17. The right of appeal from the Tribunal is provided for in s 32 of the Dust Diseases Tribunal Act. It is limited to points of law or the wrongful admission or rejection of evidence. The general rule as described in the practice p 3068.31 is in these terms: that the judgment below should be presumed to correct and liable to be enforced. (Authorities quoted). The existence of arguable grounds of appeal is not itself a sufficient basis for the exercise of the discretion. At this stage I propose to refuse the application for a stay. 18. I grant leave to the first defendant to issue such further cross-claims as may be advised on or before 1 December 2004. By Way of Summary: 19. In the estate proceedings 400/02. I order the first, second and third defendants to pay the plaintiff's costs of the proceedings. 20. From 24 October 2003 those costs should be on an indemnity basis. 21. As regards the third defendant I order that it pay in respect of the estate claim indemnity costs from 18 December 2002 in respect of proof of the relationship between the third defendant and Australian Blue Asbestos Pty Ltd and that the third defendant supplied crocidolite asbestos fibre from Wittenoom. 22. In respect of the Wrongs Act proceedings I order the first, second and third defendants to pay the plaintiff's costs of the proceedings. 23. I order the third defendant in the Wrongs Act proceedings to pay the plaintiff's costs of proving the relationship between the plaintiff and Australian Blue Asbestos Pty Ltd and that the third defendant supplied crocidolite asbestos fibre from Wittenoom on an indemnity basis from 4 February 2004. 24. It is to be noted that on the hearing evidence in one case was evidence in the other. 25. The costs with the exception of the indemnity costs ordered against the third defendant are to be borne as to 25 per cent by the first defendant and 75 per cent by the second and third defendants. 26. The costs in respect of the Estate Act action on the one hand and the Wrongs Act action on the other are to be allocated proportionally to the amounts of the verdicts in the actions. Mr D G Letcher, QC instructed by Turner Freeman appeared for the plaintiff Mr G P F Rundle instructed by Hicksons appeared for the first defendant Mr M Vesper instructed by Makinson & D'Apice appeared for the second and third defendants 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. 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