Amaca Pty Limited v State Rail Authority of New South Wales; Re Zaluga [2006] NSWDDT 41

Dust Diseases Tribunal of New South Wales

CITATION : Amaca Pty Limited v State Rail Authority of New South Wales; Re Zaluga [2006] NSWDDT 41

PARTIES : Amaca Pty Limited (formerly known as James Hardie & Coy Pty Ltd) State Rail Authority of New South Wales

MATTER NUMBER(S) : 124/2002/1

JUDGMENT OF: Kearns J

Dust Diseases Tribunal :- 25B Notice CATCHWORDS: Issues of a general nature re-litigated frequent litigant

LEGISLATION CITED: Dust Diseases Tribunal Act 1989

State Rail Authority of New South Wales v Amaca Pty Limited & Anor; Re Woelfl (Walker, J, 29 May 2006, unreported); CASES CITED: Eraring Energy v Babcock International Ltd (2005) 2 DDCR 253; State Rail Authority v Wallaby Grip Limited (1999) 18 NSWCCR 193

DATES OF HEARING: 04/09/2006, 05/09/2006, 13/11/2006, 20/02/2007 EX TEMPORE JUDGMENT DATE : 09/04/2006

Mr T Ower (cross claimant) LEGAL REPRESENTATIVES: Mr T Rowles (cross defendant)

JUDGMENT: 4 Dust Diseases Tribunal of New South Wales Matter Number DDT124 of 2002/1 (Re: Wolodymir Zaluga)(Settled 10/07/2002) C.C. Amaca Pty Ltd (Formerly known as James Hardie & Coy Pty Ltd) v C.D.: State Rail Authority of New South Wales C.D.: Sydney Water Corporation (Settled 10/05/2004) Monday, 4 September 2006 RULING KEARNS J 1. When these proceedings commenced this morning the parties informed me that what was likely to take most of the time in the conduct of this litigation was the resolution of some issues arising under s 25B of the Dust Diseases Tribunal Act, and that has already proved to be the case. In some ways it is unfortunate that the 25B issues were not determined as separate issues before the commencement of the substantive hearing on this cross-claim because rulings I make may possibly have some bearing on how the parties then wish to further conduct the litigation. 2. The first matter under section 25B that falls for determination is a ruling in relation to paras 1 and 2 of a notice issued by the cross-claimant to the cross-defendant pursuant to that section on 9 August 2006, and which I was informed was served on 10 August 2006. Paras 1 and 2 of the notice read as follows: 1. The SRA had actual knowledge that inhaling asbestos dust and fibres was dangerous to the health of workers, in that they were likely to contract asbestos related lung diseases such as asbestosis and cancer by March 1950. 3. There follows a reference to a decision of Woelfl of Judge Walker of 29 May 2006 at para 51. 2. The SRA made no attempt to warn its employees working in that poisonous environment that they faced the danger of contracting fatal asbestos related diseases by inhaling that dust. Not only did the SRA have knowledge of those dangers but by 1950 it had attained knowledge of the safety measures that might be taken to provide if not a completely safe system a relatively safe system of work that would have substantially reduced the risk of contracting mesothelioma. 4. There is then a reference again to Woelfl at para 76. 5. S 25B provides in effect that issues of a general nature determined by the Tribunal may not be re-litigated in other proceedings before the Tribunal without the Tribunal's leave. Mr Ower, counsel for the cross-claimant, contends that these are issues of a general nature because although they are findings in relation to a specific litigant, the SRA, that litigant is a frequent litigant in this Tribunal and findings of this nature in relation to that litigant will have an effect, if s 25B applies, in the conduct of further litigation involving those issues. If s 25B did not apply, he argues, the issues would have to be relitigated time and again in all cases in which the SRA was involved and in which these issues arose. 6. Mr Rowles, counsel for the cross-defendant, the SRA, argues that these are not issues of a general nature. 7. Acting Judge McIntyre dealt with issues arising under s 25B in Eraring Energy v Babcock International Ltd (2005) 2 DDCR 253 and, as I read His Honour's reasons in that case, they cover, in relation to the s 25B notice in that case, at least in part of it, the very issue that arises in this case. At para 12 of his judgment he wrote: For a determination of an issue to attract the operation of s 25B the issue itself must be of a general nature and cannot, in my view, be an issue which only involved one or more of the parties in the litigation which gave rise to the determination. It must have, it would seem to me, or potentially have, a more general application. 8. As I understand Mr Ower's argument it would draw on the latter part of what Judge McIntyre there wrote. The matters covered by items 1 and 2 of the s 25B notice in this case potentially would have a more general application by reason of the fact that they would apply to numerous other cases in which the SRA was involved. However, when one goes on to other parts of his judgment he deals with what seemed to me to be matters that arise directly here. This is particularly at paras 27, 39 and 40 of his judgment. At para 27 he dealt with specific matters in the 25B notice before him. I take just one of those items from that notice, that is the item numbered 15 on p 263 of the judgment. It reads: In 1932 responsible officers of Babcock International Ltd should reasonably have known the dangers to health created by the application of asbestos insulation to its boilers and factories, power stations and ship yards. 9. Other examples from that notice could be taken. In para 27 of his judgment his Honour then dealt with whether the 25B notice in that case in fact involved determinations, and that point has not been argued before me in relation to items 1 and 2 of the 25B notice in this case, but in any event, in light of the ruling I propose to make, it does not matter. He went on to say: Secondly, even if any of the matters … did involve determinations within the meaning of s 25B(1) I do not believe that the issues determined were of a general nature. Whilst they may be relevant to other cross-claims issued by Eraring in the sense that similar issues may be raised and that similar issues may be required to be determined when those cross-claims are heard, the existence of those cross-claims does not, in my view, elevate any determination or any determinations of the issues by Judge Curtis to be determinations of a general nature. 10. That was said in the context of information provided to him that there existed currently in excess of 30, possibly as many as 40, unresolved cross-claims where Eraring sought contribution from BIL in association with other tortfeasors. 11. At para 39 Judge McIntyre dealt with another item in the s 25B notice in that case as follows: Between 1938 and 1950 the SRA did not have actual knowledge of dangers to health posed by visible clouds of asbestos dust. 12. He went on to analyse the statement of Judge Curtis in State Rail Authority v Wallaby Grip which founded that item in the 25B notice and when he did that found that it was not a determination, but then went on to add in para 40: In any event the determination, if that is what it was, was a determination specifically made in relation to one party in that litigation, and that determination was not in my view of an issue of a general nature, and I so find. 13. It seems to me that the issues and matters raised by items 1 and 2 of the 25B notice in this case are covered by the issues and matters that fell for determination before Acting Judge McIntyre and I consider that I should follow the approach that he took in that case and accordingly I would rule that items 1 and 2 of the s 25B notice in this case are not issues of a general nature within the meaning of s 25B. **********