Dust Diseases Tribunal of New South Wales CITATION : (Re Zunic) BHP Billiton v Commonwealth of Australia [2007] NSWDDT 34 PARTIES : Bhp Billiton Ltd (Formerly The Broken Holl Proprietary Company Limited t/as The Whyalla Ship Building and Engineering Works) (Cross-Claimant) Commonwealth of Australia (Cross-Defendant) MATTER NUMBER(S) : 90/2001/3 of JUDGMENT OF: O'Meally P CATCHWORDS: Dust Diseases Tribunal :- Application to issue cross-claim out of time - Implied term in contract of employment - Cross-Defendant alleges breach of implied term by Cross-Claimant - Claim for indemnity by reason of breach - Application granted - Delay in bringing application - Cross-Defendant to pay Cross-Claimant's costs. LEGISLATION CITED: Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001, S6, SA Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588; CASES CITED: Astley and Ors v Austrust Ltd (1999) 197 CLR 1; Oxley County Council v McDonald; Brambles Holdings Ltd v McDonald and Ors [1999] NSWCA 126; Redken Laboratories (Aust) Pty Limited v Docker & Anor [2000] NSWCA 100 DATES OF HEARING: 10 December 2007 DATE OF JUDGMENT: 10 December 2007 EX TEMPORE JUDGMENT DATE : 10 December 2007 Mr T G R Parker, SC 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 Cross-Claimant JUDGMENT: RULING O'MEALLY P 1. This is an application by the Commonwealth of Australia (the Commonwealth) to issue a cross-claim out of time. 2. On 18 May 2001 Ivan Zunic (the plaintiff) issued a statement of claim seeking damages from, amongst others, The Broken Hill Proprietary Company Limited (now BHP Billiton Ltd) (BHP). He alleged that in the course of his employment by BHP, negligently and in breach of statutory duty, he was exposed to asbestos dust and fibre and as a result contracted malignant mesothelioma. His exposure to asbestos occurred in the course of the construction of ships for the Commonwealth at the Whyalla shipyards. In due course, that is to say on 24 July 2001, the plaintiff's action was settled with verdict and judgment in his favour. 3. BHP has issued a cross-claim against the Commonwealth seeking contribution to the damages paid to the plaintiff on the basis that the Commonwealth is a person who if sued by the plaintiff would have been liable to him. 4. The cross-claim has had a chequered history, but I think it appropriate to note at this stage that the Commonwealth no longer disputes that at all relevant times it had actual knowledge that the inhalation of asbestos dust and fibre could cause lung disease, in particular, that it could cause mesothelioma. 5. The Commonwealth now wishes to initiate a cross-claim which, if it is found liable to BHP, will, it says, entitle it to indemnity for whatever amount it might otherwise be found liable to contribute. In short, the Commonwealth wishes to allege that there were implied terms and conditions of the ship building contracts between the Commonwealth and BHP that BHP would take reasonable care for the safety of its employees, including the plaintiff, that it would provide its employees, including the plaintiff, with a safe system of work and that it would comply with its contractual duty of care. 6. The Commonwealth points to par 11 of BHP's defence to the plaintiff's action in which it is admitted that there was an implied term in the plaintiff's contract of employment with BHP that it would exercise reasonable care for the plaintiff's safety. The Commonwealth will allege that by exposing the plaintiff to asbestos dust and fibre, BHP was in breach of that implied term and, relying on Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588; Astley and Ors v Austrust Ltd (1999) 197 CLR 1; Oxley County Council v McDonald; Brambles Holdings Ltd v McDonald and Ors [1999] NSWCA 126; Redken Laboratories (Aust) Pty Limited v Docker & Anor [2000] NSWCA 100, it will argue it is entitled to be indemnified. 7. Following the decision of the High Court of Australia in Astley (supra), the Parliament of South Australia enacted the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001. Relevant to this application, s 6 of that Act provides: (1) A person who is liable in damages for harm suffered by another may recover contribution from a third person who is also liable in damages for the same harm. 8. S 4 of the Act relevantly provides as follows: (1) This Act applies to liabilities of the following kinds - (a) ... (b) Liability in damages for breach of a contractual duty of care. (c) … 9. BHP resists the application made by the Commonwealth on two bases. First, that if there be a breach of contractual duty it was a breach of the duty owed to the plaintiff and not to the Commonwealth and does not give rise to a right of indemnity. Secondly, the claim of the Commonwealth is statute barred. 10. I think it inappropriate that these questions should be determined on this application. They are matters of substance and in my view they are better left to be determined at a trial. It is generally inappropriate that questions arising under statutes of limitation be dealt with on interlocutory applications, unless the questions involved are clear-cut. I do not consider that the question is so clear-cut as to render it appropriate that that aspect of the case should be considered now. 11. The terms of the South Australian Act which I have quoted, it seems to me, provide a basis for the argument of the Commonwealth. My view is that it should not be excluded from raising it at a trial. However, the application was made late in the day, it has been before me on a number of occasions and my view is that in the circumstances the Commonwealth should bear the costs of this application. 12. The order therefore is made in accordance with the prayer in par 1 of the notice of motion, that is that the first cross-defendant have leave to file a cross-claim against the first cross-claimant to the third cross-claim in the form annexed to the affidavit of Mark Ferdinand Treffers sworn on 24 October 2007. 13. The Commonwealth should pay BHP's costs of this application as agreed or assessed. 14. The case will be listed for directions on 18 December 2007. Mr T G R Parker, SC 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 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. 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