Babcock International Ltd v Eraring Energy and Babcock Australia Ltd [2001] NSWDDT 4

Reported Decision (2001) 21 NSWCCR 684

Dust Diseases Tribunal of New South Wales

CITATION : Babcock International Ltd v Eraring Energy and Babcock Australia Ltd [2001] NSWDDT 4 Eraring Energy PARTIES : Babcock Australia Ltd Babcock International Ltd MATTER NUMBER(S) : 17 of 1992/1 and 1992/2 JUDGMENT OF: Curtis J at 1 CATCHWORDS: :- Cross claims LEGISLATION CITED: CASES CITED: DATES OF HEARING: 9th May 2001 and 10th May 2001 DATE OF JUDGMENT: 05/14/2001

Mr G Inatey SC with Mr D T Miller instructed by Moray & Agnew appeared for Babcock Australia Ltd (first cross claimant and first cross defendant to the second cross claim) LEGAL REPRESENTATIVES: Mr B M Toomey QC with Mr J A Gracie and Mrs T Moisidis instructed by Goldrick Farrell Mullan appeared for Eraring Energy (second cross claimant and first cross defendant to the first cross claim) Mr R J Burbidge QC with Mr S Kettle instructed by Mallesons Stephen Jacques appeared for Babcock International Ltd (second cross defendant to the first and second cross claims).

JUDGMENT: 1. Babcock International Ltd (BIL) moves the court, pursuant to Pt 13 r 5(1)(a) of the Supreme Court Rules, for orders that the cross-claims by Eraring Energy( formerly Pacific Power) (PP), and Babcock Australia Ltd (BAL) claiming contribution from Babcock International Ltd pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 be dismissed upon the ground that no reasonable cause of action is disclosed. 2. BIL relies upon the pleadings and tenders in addition the terms of a settlement agreed between PP and James Hardie & Coy Pty Ltd (JH), the judgment upon that cross-claim, and a copy of a deed between BAL and JH pursuant to which JH satisfied the claim of BAL against JH. It is not contended otherwise than that the moneys due to PP and BAL pursuant to the judgment and the deed respectively have been paid. 3. BIL asserts that in consequence of these arrangements : (a) the claims by both PP and BAL against BIL have each been satisfied and the double satisfaction rule precludes either PP or BAL proceeding further. (b) That PP had a single action conferred by s 5 against all concurrent tort feasors including BIL and that this action has merged in the judgment against JH (c) That both PP and BAL, the first by entry of judgment against JH, and the latter by consent thereto, are estopped from further claiming against BIL (i) because the court is in consequence of that judgment precluded from entering a judgment inconsistent with its terms (issue estoppel) and (ii) because that conduct by PP and BAL has caused irremedial prejudice to BIL in that it is in consequence of the judgment prevented from re-agitating the contribution which JH may be called upon to make to the plaintiff's judgment in corresponding reduction of its own contribution (estoppel by conduct). 4. I turn to these arguments: SATISFACTION 5. It is beyond dispute that a plaintiff suffering injury at the hands of multiple tort feasors and recouping his loss against any one tort feasor may not proceed further against the others. As Lord Atkin said in Clark v Urquhart [1930] AC 28 at 66: Damage is an essential part of the cause of action and if it is already satisfied by one of the alleged tort feasors the cause of action is destroyed. 6. Payment to a plaintiff by a tort feasor in respect of the plaintiff's loss of an amount less than the actual loss may amount to satisfaction (Carrigan v Duncan (1971) SH CT 33, Jameson v CEGB (1999) 2 WLR 141). 7. In Jameson v CEGB Lord Hope said: The question .. is .. not whether the plaintiff has received the true value of his claim but whether the sum which he received in settlement of it was intended to be in satisfaction of the tort. 8. In the absence of evidence that the plaintiff, receiving money from one tortfeasor did not receive satisfaction of his claim, a presumption of full satisfaction operates to deny the plaintiff an entitlement to further claim against others concurrently liable (Boyle v SRA (1997) 14 NSWCCR 374). The parties to the dispute before me disagree as to the manner in which the relevant contrary intention may be determined. 9. Any assertions by a claimant after receiving a payment that he did not intend satisfaction must be unreliable. In Balfour v Baird & Sons (1959) SC 64 Lord Patrick at 75 said: The pursuer does not quarrel with .. the law but he says that he alone is the judge of whether he obtained an award which .. repairs the damage. This is to make him judge in his own cause, an intolerable position. 10. In Carrigan v Duncan (supra) the court after citing this passage considered the pleadings and terms of settlement leading to compromise of a suit by payment. It held that a plaintiff should not be accepted when he disclaimed payment in satisfaction of a suit in which by his pleadings he held the first defendant solely to blame for his injuries and accepted a tender "in full satisfaction of the conclusion of the action". 11. In Jameson, Lord Hope, after referring to Balfour and Duncan amongst other authorities said that although intention was the subject of the proper inquiry: I think that these cases demonstrate the limits of the inquiry which the judge may undertake in the event of a subsequent action being raised against another alleged concurrent tort feasor. He may examine the statement of claim in the first action and the terms of settlement in order to identify the subject matter of the claim and the extent to which the causes of action which were comprised in it have been included within the settlement. The purpose of doing so will be to see that all the plaintiff's claims were included in the settlement and that nothing was excluded from it which could properly form the basis for a further claim for damages against the other tortfeasors. The intention of the parties is to be found in the words of the settlement. The question is one as to the objective meaning of the words used by them in the context of what has been claimed. 12. Mr Burbidge, in reliance on this passage, seeks to confine the inquiry into contrary intention to the pleadings and the terms of settlement and the judgment in the cross-claim by PP and the pleadings and the deed in the cross claim by BAL. He faintly suggested that in the PP claim I may only consider the pleadings and judgment. I am against him on this. Satisfaction And Pacific Power 13. The cross claim by PP recites at par 45: Pacific Power says, for the purpose of this claim, that the injury and damage suffered by the plaintiff was caused and/or contributed to by the acts or omissions of one or more of Babcock and Wilcox UK, Babcock Australia, James Hardie Industries and James Hardie & Coy whose acts or omissions are set out in the paragraphs below and which resulted in the asbestos dust and fibre being present at the Wangi power station while the plaintiff was present. The pleading then proceeded as follows: And Pacific Power claims: (a) Indemnity and/or contribution pursuant to s 5(1(c) of the Law Reform (Miscellaneous Provisions) Act 1946. (b) Damages equal to the amount of any that it is ordered to pay to the plaintiff and to any other party if in respect of the injury suffered by the plaintiff. (c) Damages in an amount equal to an indemnity of claims made against it by the plaintiff. (d) Interest pursuant to s 94 of the Supreme Court Act. (e) Costs. 14. The terms of settlement recite in as follows: 1. James Hardie & Coy Pty Ltd acknowledge and agree, for the purpose of these terms of settlement that it is liable pursuant to the Law Reform (Miscellaneous Provisions) Act 1946 to contribute in the proportion of 15 per cent to the full extent of the plaintiff's damages crystallised in the judgment in the sum of $145,000. 2. In respect of the liability and proportion agreed to in term 1 hereof James Hardie & Coy Pty Ltd agree to pay to Eraring Energy on Eraring Energy's claim for contribution pursuant to Law Reform (Miscellaneous Provisions) Act 1946 the sum of $21,750. 15. The judgment was entered in these terms: 1. That the fourth cross-defendant James Hardie & Coy Pty Ltd pay to the second cross-claimant Eraring Energy the sum of $90,000 inclusive of costs. 16. On the face of the record PP was liable in judgment to the plaintiff in the sum of $145,000. In the one proceeding it sought contribution to this sum, or indemnity, from three tort feasors allegedly liable to the plaintiff. The terms of settlement recite that JH is to "contribute" in the proportion of 15 per cent. On the pleadings and terms JH was only one of the parties against whom PP claimed. The terms of settlement are expressed in terms of percentage by which the claim of PP is to be abated, not extinguished 17. The learned sheriff in Carrigan v Duncan regarded as significant that the plaintiff sued and settled with one tort feasor only, and did not amend although that tort feasor had pleaded the injuries resulted from the acts of another. The plaintiff, he said: Perilled his case upon establishing that the motor cyclist was entirely to blame. 18. A claim for contribution is premised upon the fact that no one party is wholly to blame and that the burden of the plaintiff's judgment should be apportioned. More than that, the present terms of settlement express the sum to be paid by JH as a percentage "contribution". In Jameson Lord Hope said: There may be cases where the terms of settlement or the extent of the claim made against the tort feasor with whom the plaintiff had entered into the settlement will show that the parties have not treated the settlement as satisfaction for the full amount of the claim of damages. Given that PP claimed indemnity to the full extent of $145,000 from the cross-defendants jointly and accepted 15 per cent from JH and entered judgment for a sum so calculated and did not discontinue against the other cross-defendants I believe it to be quite patent that PP did not intend to accept that payment in the satisfaction of the whole of its cross claim. 19. In any event the restriction proposed by Lord Hope upon the inquiry is not consistent with other authority. In Baxter v Obacelo Pty Ltd (2000) 48 NSWLR 522 at 540 Giles JA said: Still in principle only if it is found as a fact that the settlement amount was received as full compensation for the plaintiff's loss should the rule against double satisfaction operate to bar the plaintiff from proceeding against another tort feasor or other tort feasors. In Heaton & Ors v Hill Samuel Life Assurance Ltd (1988) EWHC 311 Laddie J adopted the test of Steyn LJ formulated in Watts v Aldington , (The Times 16 December 1990), and held that the relevant contrary intention may be determined upon the assumptions of a reasonable bystander with knowledge of the surrounding circumstances. To do otherwise he said, may offend commonsense. 20. In the present case the settlement between PP and JH was announced in open court on 6 December 2000 upon a directions hearing in which representatives of BIL, BAL, and PP all participated with a view to bringing the remaining cross claims to trial. The present suggestion that PP in entering the agreement and judgment with JH and accepting payment was accepting satisfaction of a claim against BIL offends commonsense. Satisfaction And Babcock Australia Ltd 21. The cross-claim by BAL against PP, BIL and JH asserted that each if sued would have been liable to the plaintiff and claimed a contribution and/or indemnity pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946, (b) damages; and/or (c) an indemnity and/or (d) interest and/or (e) costs. 22. The deed of release and indemnity entered between BAL and JH recited that: It has been agreed between Babcock and James Hardie that James Hardie would pay to Babcock the sum of $72,500 in full and final settlement of any claim Babcock has or had against James Hardie arising out of the injury sustained by Mr Royal and thereafter witnessed for Babcock hereby remises, releases and forever quits claim upon James Hardie in all manner of actions, suits, causes of action, arbitrations, claims, debts, duties and demands whatsoever both at law and in equity which Babcock now has or but for this deed would or might have had at any time or times hereinafter against James Hardie arising from any injury sustained by Mr Royal. 23. I am of the opinion that the terms of this deed releasing only JH from proceedings which involve two other cross-defendants are such as to evidence an intention that the moneys paid pursuant to it were not received in satisfaction of the whole or the balance of the claims, the subject of the proceedings. At no time did BIL believe that BAL's intention was to receive the moneys as satisfaction. BIL participated in subsequent preparations to bring the claims by BAL against BIL to trial. 24. There has been no satisfaction of the claims against BIL made by PP or BAL. MERGER 25. The doctrine of merger is one expression of that which may otherwise be termed "res judicata" or "cause of action estoppel". Res judicata may be pleaded in defence: .. where the very right or cause of action claimed or put in suit as in the former proceedings passed into judgment so that it has merged and has no longer an independent existence. ( Per Dixon J in Blair v Curran (1939) 62 CLR 464 at 532.) 26. The present question is whether the causes of action claimed by PP and BAL against BIL have each passed into the judgment entered between PP and JH so as to lose their independent existence. The principle of res judicata applies to admissions made or implicit in the proceedings. The same principle applies not only to an erroneous admission of a fundamental fact but to an erroneous assumption as to the legal quality of that fact. (Per Lord Shaw Hoysted v Federal Commissioner of Taxation (PC) (1925) 137 CLR 290 at 299) 27. Further, The fact that a judgment is entered by consent may .. make it hard to say what was necessarily decided by the judgment .. but the principle of res judicata holds good in such a case (Per Deane, Toohey, Gaudron JJ, Chamberlain v Deputy Commissioner of Taxation (1987-1988) 164 CLR 502 at 508. 28. In those cases to which the doctrine applies a party who upon the same facts is entitled to different remedies against the same defendant cannot improve his position by bringing separate actions. Accordingly, inconsistency between judgments against the same defendant is avoided by the merger in the judgment first recovered and the right of the remedy thereby given and of other rights which arise on the same facts. (Per Brennan J Port of Melbourne Authority v Anshun (1981) 147 CLR 589 at 612.) 29. The principle was stated succinctly by Dixon J in Blair v Curran (supra) at 531 as follows: A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue so that it cannot afterwards be raised between the same parties or their privies. 30. The problem confronting BIL in its attempt to rely upon this line of authority is that it was not a party nor privy to the judgment between PP and JH. Nevertheless, as I understand the submission, BIL asserts that in legal theory if that judgment was entered upon the same cause of action presently advanced by PP and BAL, merger operates to bar the present claims, notwithstanding that the parties are not identical. 31. Mr Burbidge points out that the merger rule operated in Brinsmead v Harrison ((1871) LR 7CP 547) to bar litigation of the same issue of fact between a plaintiff and a defendant who, though a joint tort feasor was not a party to the plaintiff's first action which had proceeded to judgment. 32. It may be accepted, he says, that the rule in Brinsmead v Harrison was abrogated in its entirety by s 5(1)(a) of the Law Reform (Miscellaneous Provisions) Act 1946 in its application to plaintiffs who suffer damage " as a result of a tort" (Thompson v ACTV (1996) 141 ALR 1). Nevertheless the merger rule operates upon the single statutory right of action conferred by s 5(1)(c) because the claim made by the tortfeasor seeking contribution is not "as a result of a tort" but as a result of the words of s 5(1)(c) conferring a statutory right of action. 33. Mr Burbidge argues that the doctrine of merger is a doctrine of the common law which in its terms may be applied to any action in which a plaintiff at his option may sue several defendants who are jointly liable to him in respect of the same damage. In consequence such actions as formerly existed against the remaining cross-defendants have merged in the judgment between PP against JH, barring further action. 34. Such bar, in his submission, also applies to prevent the cross claim by BAL against BIL. Although not a party to the judgment between PP and JH, BAL as a party "directly interested in the question" did not object to the entry of judgment and cannot now re-agitate the issue. (James Hardie & Coy Pty Ltd v Seltsam Pty Ltd (1998) 164 CLR 502 at 528.) 35. I cannot accept these submissions. 36. In my opinion s 5(1)(c) confers not one but several causes of action. In Port of Melbourne Authority v Anshun (supra) Brennan J said at 610 to 611: There is an imprecision in the meaning of the term `cause of action ' which is sometimes used to mean the facts which support a right to judgment; sometimes to mean a right which has been infringed, and sometimes to mean the substance of an action as distinct from its form. Imprecision in the meaning of the cause of action tends to uncertainty in defining the ambit of the rule that a judgment bars subsequent proceedings between the same parties on a cause of action. Because successful completion of an action for contribution upon multiple claims for contribution results in multiple judgments in different amounts, I am of the opinion that the section confers more than one cause of action. 37. If I were wrong in that I am of the opinion that either the merger rule ought not as a matter of policy extend to operate upon claims between joint tortfeasors, or that the rule has been abrogated in respect of any action to which s 5 gives rise, including both those by plaintiffs (pursuant to s 5(1)(a)) and joint tortfeasors (pursuant to s 5(1)(c)), other than in its operation to bind parties or their privies. 38. The application of the merger rule to release joint wrongdoers of liability in Brinsmead v Harrison (supra) was a legal anomaly unjustified by the policy underlying the rule. The merger rule was described by Fullagar J in Jackson v Goldsmith (1950) 81 CLR 446 at 466 as: .. a broad rule of public policy based on the principle expressed in the maxims interest reipublicae ut sit finis litium and nemo debet bis vexari pro una et eadem causa. 39. This doctrine of merger, useful in preventing the same parties continuing to litigate the same facts under different guises was described by Professor Fleming as "preposterous" in its operation of releasing joint tort feasors from liability to a plaintiff where there existed an unsatisfied judgment or release given to another tort feasor. For good reason the rule in Brinsmead v Harrison was held to be abrogated in its entirety in its application to plaintiffs by s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. (Thompson v ACTV (1996) 141 ALR at 1). 40. Application of the merger rule in the present circumstances will not further those sound reasons of public policy upon which the rule is based. It was the intention of parliament in the enactment of s 5 of the Law Reform (Miscellaneous Provisions) Act to abolish two anachronistic and unjust rules. S 5(1)(a) abolished the rule in Brinsmead v Harrison, s 5(1)(c) abolished the equally unjust rule in Merryweather v Nixan and gave joint and several tort feasors rights of contribution between themselves. 41. It is improbable that Parliament, while burying one discredited and inappropriate application of the merger rule in respect of plaintiffs seeking recovery from multiple tort feasors, intended to resurrect the same rule in application to the new remedy to the disadvantage of defendants given relief by the same statute. 42. The relief to both plaintiffs and defendants provided by s 5 of the statute was to be afforded in the prefatory words of s 5(1) "where damage is suffered by a person as a result of a tort". 43. I am of the opinion that the cause of action has not merged in the judgment obtained between PP and JH. ISSUE ESTOPPEL 44. Where a party asserting a cause of action proceeds to judgment by adjudication he may be estopped from proceeding further upon claims for relief which are founded upon assertions which should properly have been made in those proceedings the subject of the judgment. The principle was expressed by Sir James Wigram, Vice Chancellor, in Henderson v Henderson in the following terms: Where a given matter becomes a subject of litigation in another adjudication by a court of competent jurisdiction the court requires the parties to that litigation to bring forward their whole case and will not except under special circumstances permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest but which was not brought forward only because they have from negligence, inadvertence or even accident omitted part of their case. The plea of res judicata applies except in special cases not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment but to every point which properly belonged to the subject litigation in which the parties exercising reasonable diligence might have brought forward at that time. 45. In Chamberlain v Deputy Commissioner of Taxation ((1987-1988) 164 CLR 502 at 509) Deane, Toohey and Gaudron JJ observed that: In truth Henderson v Henderson was not concerned with res judicata in its strict sense but rather with its implications when an issue is sought to be raised `which could and should have been litigated in the earlier proceedings'. 46. In Anshun, Gibbs CJ Mason and Aickin JJ said at 603 that: It had generally been accepted that a party will be estopped from bringing an action which if it succeeds will result in a judgment which conflicts with an earlier judgment. They went on to say at 604 to 605: By conflicting `judgments' we include judgments which are contradictory although they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect to the same cause action. 47. It is the contention of BIL that PP is bound by its acceptance of a judgment holding that JH is 15 per cent responsible for the plaintiff's damage and is unable to bring an action in which the court may be asked to enter a judgment in favour of PP premised upon the contribution of JH to the plaintiff's damage being different from 15 per cent. Because in the proceedings between PP, BIL and BAL the court must apportion 100 per cent of responsibility between those parties (Maxfield v Llewellyn (1961) 3 All ER 95) any judgment must conflict with an earlier judgment that another party is responsible for 15 per cent in addition to that 100 per cent. 48. In all cases to which I was referred by BIL the principle that a court may not enter inconsistent judgments has been applied to prevent inconsistent judgments being entered between the same parties. There are, however, statements of principle expressed in wider terms. The estoppel may apply where one party only is bound by a judgment. In Anshun, Brennan J said at 609 citing as authority Williams J in Cabassi v Vila (1940) 64 CLR 130 at 148: No civil proceedings which impugn a judgment can be brought by parties to that judgment except proceedings to have it reversed or set aside. 49. In Cabassi v Vila the plaintiff's broken jaw was suffered either as the result of her jumping out of a window or an assault by one Ferrando. She sued Ferrando for damages for assault and the magistrate, accepting evidence of Aracil and Vila, found the plaintiff jumped from the window, and gave judgment for Ferrando. The plaintiff then sued Aracil and Vila for conspiracy to cheat and defraud the plaintiff by giving false evidence. Her statement of claim was struck out on a demurrer. In dismissing an appeal from that order Williams J said: When the statement of claim was filed there was in existence a binding judgment against the appellant in favour of Ferrando . Until rescinded the appellant could not have taken any civil proceedings against Ferrando which impugned the judgment except to challenge its validity. The appellant claims to have suffered damage because the judgment was procured by the false evidence of the defendant and his witnesses but it is a maxim that actus legis nemini facit injuriam. While the judgment stood no averment could be permitted against it otherwise the judgment would be `blown off by a side wind'. The decision of the Court of Appeal in Bynoe v Bank of England (1902) 1 King's Bench 467 shows that third parties such as the other two defendants could not be in a worse position that Ferrando. The principle laid down in Bynoe's case is in my opinion of general application and not confined to judgments in Rem. 50. In Wildes v Russell (1866) LR 1 Common Pleas 722, one of a number of English authorities upon which Williams J relied Byles J stated at 746: It is an essential attribute in the constitution of all courts of record that their judgments are conclusive as to the facts upon which they profess to proceed, and cannot be traversed. 51. Upon one reading of this authority PP may not seek apportionment of 100 per cent responsibility for the plaintiff's damage between the present parties in the face of a judgment binding upon it that 15 per cent responsibility falls upon JH. I think it improbable that that is the true position. 52. I am conscious of the observations of Fullagar J in Brewer v Brewer (1953) 88 CLR 1 at 15: Issue estoppel applies only as to issues, there is no estoppel as to evidentiary facts found in the course of determining the affirmative or negative of an issue. There is nothing to prevent a party from tendering in a later proceedings in relation to a particular issue facts negatived in an earlier proceeding when they were attended in relation to a different issue. 53. In declining to apply the principle of res judicata to the facts in Anshun, preferring a discretionary test, the majority of the court, Gibbs CJ, Mason and Aickin JJ said at 602 to 603: In this respect we need to recall that there are a variety of circumstances why a party may justifiably refrain from litigating an issue in one proceedings yet wish to litigate the issue in other proceedings. 54. If cross claims proceed serially rather than concurrently there will necessarily be conflicting judgment in relation to the findings of contribution between the parties to claims which underlie judgment in a sum of money. If judgments on one cross-claim apportioning contribution between the parties to that cross claim extinguishes all subsequent cross claims then all cross claims pursuant to s 5 must be decided concurrently and be the subject of one judgment apportioning liability between those before the court. No later claim is permissible, 100 per cent of the "responsibility for the damage" has been assigned. 55. This may work an injustice. Two defendants to a plaintiff's action may learn of the existence of a third tort feasor who would be liable if sued in the course of the plaintiff's trial. They may then come to terms with the plaintiff and agree to contribute fifty-fifty to the judgment and each resolve to seek contribution from the absent tort feasor. Whether this sensible arrangement is effective to preserve their rights to contribution from the absent tort feasor may, if Mr Burbidge's submissions are correct, depend upon whether the arrangements between the two tort feasors as to their respective liability to the plaintiff are affected by judgment and the cross claim against each other or by some deed or contract. 56. That a matter of substance should turn upon form would be unfortunate. Such a consequence would operate as a positive disincentive to those intent upon bona fide and reasonable compromises between themselves. 57. The question is to be examined by the Court of Appeal in Hay and in that circumstance it would be presumptuous of me to express a concluded opinion upon an interlocutory application such as this. I content myself with observing that I am not persuaded that the present claim is hopeless. 58. The position is further clouded by the circumstance that BAL was not a party to the judgment between PP and JH. Nevertheless it is apparent from the authority of Seltsam Pty Ltd v James Hardie & Coy Pty Ltd ((1998) 164 CLR 502) that in the operation of this vexed statute third parties may find themselves prejudiced by judgments between others. ESTOPPEL BY CONDUCT 59. The principles are contained in Verwayen. I have not been addressed upon them by Mr Burbidge. I do not accept that either PP or BAL has acted unconscionably in pressing the present claims after settling with JH. 60. I presently decline the motion. 61. Reserve liberty to further agitate the question after the decision in Hay. Mr G Inatey SC with Mr D T Miller instructed by Moray & Agnew appeared for Babcock Australia Ltd (the first cross-claimant and first cross-defendant to the second cross claim) Mr B M Toomey QC with Mr J A Gracie and Ms T Moisidis instructed by Goldrick Farrell Mullan appeared for Eraring Energy (the second cross-claimant and first cross-defendant to the first cross claim). Mr R J Burbidge QC with Mr S Kettle instructed by Mallesons Stephen Jacques appeared for Babcock International Ltd (the second cross-defendant to the first and second cross claims).