Dust Diseases Tribunal of New South Wales CITATION : SIFC v Patrick Operations [2001] NSWDDT 15 Stevedoring Industry Finance Committee Patrick Operations Pty Limited CSR Limited PARTIES : Action Insulation Engineers Pty Limited (in Liquidation) Amaca Pty Limited Bradford Insulation Industries Pty Limited Meggitt Overseas Limited Wallaby Grip (BAE) Pty Limited MATTER NUMBER(S) : 154 of 1993 JUDGMENT OF: Armitage J at 1 CATCHWORDS: Miscellaneous Matters :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 01/03/01 EX TEMPORE JUDGMENT DATE : 03/01/2002 FOR PLAINTIFF: Mr P Menzies QC with Ms W Strathdee instructed by Blake Dawson Waldron for the cross claimants LEGAL REPRESENTATIVES: FOR DEFENDANT: Mr M Maxwell with Ms J Chapman instructed by McCulloch & Buggy for the cross defendants JUDGMENT: 1. By statement of claim filed on 20 August 1993 Roy Joseph Vella as plaintiff sued in this Tribunal the Stevedoring Industry Finance Committee (SIFC) amongst other defendants whose identities are not presently material alleging inter alia that SIFC was liable to discharge the liabilities and obligations of the Australian Stevedoring Industry Authority, and that he was exposed to and inhaled asbestos dust and fibre as a wharf labourer while unloading raw asbestos material from various vessels in the port of Sydney, it being alleged inter alia that this was the result of the negligence of the Australian Stevedoring Industry Authority, for whose negligence it was alleged that the first defendant, SIFC was liable in respect of damage alleged by Mr Vella to result from his exposure to asbestos in the course of his occupation as a wharf labourer at the port of Sydney, it being further alleged that such damage resulted inter alia in his contraction of asbestosis and carcinoma of the lung. 2. On 20 December 2000 a cross-claim was filed by the first defendant to the main action, SIFC, against inter alia Patrick Operations Pty Limited as first cross-defendant. Importantly, that company was not a defendant to the plaintiff's action, so the problems exposed by Castellan v Electric Power Transmissions Pty Limited (1967) 69 SR(NSW) 159 and the cases which have followed it do not arise. A defence was filed by Patrick Operations Pty Limited on 8 February 2001 denying in the familiar fashion certain paragraphs of the cross-claim and that Patrick Operations Pty limited was negligent as alleged in the cross-claim or at all, and claiming that the cross-claimant, SIFC was entitled to indemnity or contribution either for damages recovered by the plaintiff or in respect to costs, and additionally a defence was claimed to the effect that the cross-claimant, SIFC should have claimed a pro tanto defence for payments made by the Workers Compensation (Dust Diseases) Board for or on behalf of the plaintiff, and asserting further that if such payments were not claimed by the cross-claimant, SIFC as a pro tanto defence, then the first cross-defendant, Patrick Operations Pty Limited was entitled to plead such payments as a pro tanto defence against any damages recovered against it by the cross-claimant. 3. It is to be noted at that point that no paragraph in that defence took any point as to the late filing of the cross claim, having regard to the length of time that had elapsed between such filing and the filing of the original statement of claim joining the cross-claimant in 1993 as set out above. 4. Further I should add that no application was subsequently made to strike out the cross-claim on the basis that it was filed late and without any extension of time. Employing the principles enunciated in such authorities as Jones v Sutherland Shire Council (1979) 2 NSWLR 206 and the authorities quoted by Mahoney JA in his judgment in that case, one would have thought that if a potent point such as prejudice were available to a party, in this case the cross-defendant Patrick Operations Pty Limited, it would have been asserted by that party, seeking to have the cross-claim struck out. 5. Be that as it may, what then occurred materially to the problem I now face is that on 27 February last, two days ago, a verdict and judgment was entered by me with consent of all the defendants to the main action in favour of the plaintiff Mr Vella, in a certain sum. Terms of Settlement were of course filed in Court at that time, and it is common ground that these terms do not anywhere reserve to the cross-claimant/first defendant, SIFC leave to file further cross-claims, either within a particular period of time in the familiar fashion, or at all. 6. Yesterday the cross-claimant sought to proceed with its cross-claim against Patrick Operations Pty Limited and in addition sought to file in Court and rely on an amended cross-claim which has been initialled by me and placed with the papers. The material differences between the original cross-claim against inter alia Patrick Operations Pty Limited and other proposed amended cross-claim is that the original cross-claim joins a number of cross defendants and alleges in par 2 that "during the period from about 1947 to 1958 the plaintiff worked as a casual wharf labourer at various waterfront locations in the port of Sydney and during this period the plaintiff was employed by the first cross-defendant .." the paragraph going on to allege for the purposes of the cross-claim exposure to and inhalation of asbestos dust and fibre, whereas the proposed amended cross-claim deletes a number of the cross defendants previously joined in the earlier cross-claim, leaving Patrick Operations Pty Limited as the first cross-defendant, and seeking to add James Patrick and Co Pty Limited (in liquidation) as the second. 7. Par 2 of the proposed amended cross-claim relevantly alleges that "during the period from about 29 September 1948 to 1959 the plaintiff worked as a casual wharf labourer at several waterfront locations in the port of Sydney and during this period the plaintiff was employed by the first and second cross-defendants." The paragraph then goes on to allege exposure to and inhalation of asbestos dust and fibre. 8. Par 3, after reciting, as did the earlier cross-claim in par 3, that the plaintiff had sued the cross-claimant for damages alleging that it was negligent, recited that judgment was entered against the cross-claimant in favour of the plaintiff for $225,000 inclusive of costs. Accordingly, instead of claiming in par 5, as had the original cross-claim, indemnity or contribution from the cross-defendants in relation to any damages, interest or costs which may be awarded against the cross-claimant in favour of the plaintiff, the proposed amended cross-claim claims in the corresponding paragraph indemnity or contribution from the cross-defendants, limited of course to Patrick Operations Pty Limited and James Patrick and Co Pty Limited (in liquidation), in respect of the damages, interest and costs awarded against the cross-claimant in favour of the plaintiff. Indemnity is also claimed in par 6, as it was in the corresponding paragraph in the original cross-claim, in respect of any costs incurred by the cross-claimant in defending proceedings and in maintaining the cross-claim. 9. When I drew the attention of Mr Menzies QC, who appears for the cross-claimant, to what was said in Seltsam Pty Limited and Anor v Energy Australia and Ors (1999) 17 NSWCCR 720, Mr Menzies reformulated his application to file the amended cross-claim as an application for extension of time to file such amended cross-claim. 10. Mr Maxwell who appears for the original first cross-defendant, Patrick Operations Pty Limited was given the opportunity of a short adjournment to obtain instructions as to whether he appeared also for the proposed second cross-defendant James Patrick and Co Pty Limited (in liquidation). He obtained such instructions and said that he was indeed instructed to appear for that entity and to oppose the application for extension of time. At his insistence I required the cross-claimant, SIFC to put on an affidavit in support of its application for extension of time to file its amended cross-claim. Such an affidavit has been prepared and is available for filing in Court now, but Mr Maxwell takes the preliminary point that I have no jurisdiction to entertain the application for extension of time mounted by Mr Menzies QC or indeed to permit the filing of the affidavit in Court or reliance on it by the cross-claimant in support of the application for extension of time. Thus it is necessary for me to give judgment on that jurisdiction point before proceeding with any application for extension of time, should I find that I have jurisdiction to entertain it, rather than disposing of the jurisdictional point after dealing with the application for extension of time, that course being inappropriate unless Mr Maxwell on behalf of his clients consents to it, which he does not. 11. Mr Maxwell's argument is simple and straightforward. He takes me to s 11 of the Dust Diseases Tribunal Act 1989 and observes firstly that the jurisdiction of the Tribunal stems initially from subs (1) of the section which reads: (1) if - (a) a person is suffering from or has suffered from a dust related condition or a person who has died was, immediately before death, suffering from a dust related condition; and (b) it is alleged that the dust related condition was attributable or partly attributable to a breach of a duty owed to the person by another person; and (c) the person who is or was suffering from the dust related condition or a person claiming through that person would, but for this Act, have been entitled to bring an action for the recovery of damages in respect of that dust related condition or death, proceedings for damages in respect of that dust related condition or death may be brought before the Tribunal and may not be brought or entertained before any other court or tribunal." 12. He then takes me to subs (4) of the section which reads: Any matter that is ancillary or related to a matter that is the subject of proceedings to be brought under subsection (1) may also be included in those proceedings. 13. Mr Maxwell simply says that by judgment on 27 February last, the "proceedings" within the meaning of subs (1) of s 11 between the plaintiff and various defendants including the cross-claimant were brought to an end. Consequently he says the proposed amended cross-claim, in so far as it seeks to join James Patrick and Co Pty Limited (in liquidation) which was not previously joined by the original cross-claim, cannot within subs (4) be "included" in the "proceedings" within subs (1) brought by Mr Vella, because those proceedings no longer exist, having been terminated by verdict and judgment as set out above. Hence he says s 11, which is the jurisdiction section of the Dust Diseases Tribunal Act which confers jurisdiction on the Tribunal, which in this respect he says is a creature of statute, does not confer jurisdiction on me to entertain the application for extension of time brought by the cross-claimant, SIFC. 14. In support of that submission he takes me to various authorities mentioned in Seltsam by Giles JA, in particular Bailey v Marinoff (1971) 125 CLR 529 and FAI General Insurance Co Limited v Southern Cross Exploration NL (1988) 165 CLR 268. He says that insofar as the application for extension of time is brought pursuant to Pt 2 r 3(1) of the Supreme Court Rules, which reads: The Court may, on terms, by order, extend or abridge any time fixed by the rules or by any judgment or order the Tribunal would only have jurisdiction in cases where there was a self-executing order, as he put it, validly made in the proceedings which needed rectification in the interests of avoiding injustice. He says that where no such order was made within time in the proceedings, there is simply no jurisdiction to entertain an application for extension of time to mount a cross-claim against a completely different cross-defendant along with the original cross-defendant, as here, where the original "proceedings" within the meaning of s 11(1) between the plaintiff and the various defendants, including the cross-claimant, have been brought to an end by verdict and judgment, as here. 15. Extensive discussion occurred in exchanges between myself and Mr Maxwell in the course of his able argument, but what I have set out is I think the kernel of it and I trust I do him no injustice. Mr Menzies QC on the other hand takes me to the fact situation which existed in Seltsam which he says is sufficiently similar in crucial respects to that prevailing in the present case to determine the result. Briefly, what occurred in Seltsam was that, as here, a plaintiff sued various defendants including Energy Australia, alleging asbestos exposure resulting in damage, in that case contraction of the fatal disease of mesothelioma, which it was alleged was the result of the negligence of the various defendants joined. As here, those "proceedings", to use the word which occurs in s 11(1) of the Dust Diseases Tribunal Act, were brought to an end by verdict and judgment on a particular date. Before that verdict and judgment were entered, something occurred which did not occur in the present case, which was that the Tribunal by consent gave leave to Energy Australia to issue cross-claims within 28 days of the date of judgment. No cross-claims were filed during that time. After that time had elapsed Energy Australia filed a notice of motion to extend the time for issuing cross-claims for 14 days from the date of the motion. The notice of motion came before the Tribunal, the order sought was made and the cross-claims in question were filed within the extended time allowed by the Tribunal's order. No point was taken at the time of the motion as to the jurisdiction of the Tribunal to deal with the motion. Later, the cross-defendants to the cross-claim which had been filed moved the Tribunal to strike them out for want of jurisdiction and that application was dismissed, hence the appeal. By majority Giles JA, Priestley JA agreeing, dismissed the appeal, having first given leave to appeal, as was necessary as the matter was an interlocutory one, from the decision of the Tribunal declining to strike out the cross-claims. 16. What was raised in that case squarely was the question of whether, at the time the Tribunal made its orders extending time to file the cross-claims in question, it had jurisdiction to entertain that application. S 11(4) was relied upon by the appellant to submit that no such jurisdiction existed. It was of course not in point that the jurisdictional point was not raised at the time the orders extending the time for the filing of cross-claims was made, because of course consent of the parties could not confer jurisdiction. 17. After referring to a number of authorities, in particular Bailey and FAI General Insurance, Giles JA at par [41] at 737 said this: In my opinion, judgment in favour of the plaintiff in the proceedings in the Tribunal does not mean that the proceedings are at an end so that a cross-claim cannot be included in the proceedings within the meaning of s 11(4). The proceedings remain on foot so as to enable the defendant to give effect to its entitlement to file a cross-claim within 28 days from the service of the statement of claim upon it, that being an entitlement in accordance with the Tribunal's rules and procedures. That time may be enlarged by an order made pursuant to Pt 2, r 3 of the Supreme Court Rules as applied pursuant to r 2 of the Dust Diseases Tribunal Rules, and if it is enlarged the proceedings remain on foot so as to permit the defendant to exercise its entitlement within the enlarged time. In the language used by Gaudron J in FAI General Insurance Co Limited v Southern Cross Exploration NL (supra), while it remains for the Tribunal to exercise the further function of receiving and determining a cross-claim filed within the 28 days, and the further function of determining whether an extension of the 28 days should be granted, the Tribunal is not functus officio : but addressing s 11(4) of the Act, the proceedings remain on foot for the exercise of those functions and a cross-claim filed within the 28 days or the extended time is included in the proceedings. 18. Mr Maxwell urges that that passage must be read in light of the peculiar facts of Seltsam, which relevantly were that the verdict and judgment, because of the very urgent situation created by the plaintiff's likely imminent death, were entered only a matter of a few days after the filing of the statement of claim, so that at the time of the verdict and judgment the 28 days after service of the statement of claim which Energy Australia had to file a cross-claim against the cross-defendants had not expired at the time of such verdict and judgment. Hence, he says, the proceedings were not brought to an end by the verdict and judgment, as I understand his argument. Be that as it may, because of the chronology to which I have referred, which is set out more particularly at 722-4 in the judgment of Giles JA, it is clear that at the time the orders extending time for filing cross-claims were made by the Tribunal, the 28 days which the cross-claimant Energy Australia had to file the cross-claim from the service upon it of the statement of claim had well and truly expired. 19. Additionally it should be pointed out that what the cross-claimant Energy Australia sought to do at the time it sought extension of time to file the cross-claim in the Tribunal was to have extended the 28 days limited by the Tribunal's order at the time that judgment was entered, rather than the 28 days provided by the Rules from the service upon it of the statement of claim. 20. Thus it can be seen that the cross-defendants in that case took unsuccessfully before the Tribunal the jurisdictional point based on subs (4) of s 11 of the Dust Disease Tribunal Act now sought to be taken by the proposed cross-defendant James Patrick and Co Pty Limited (in liquidation). Mr Maxwell urged in reply to this difficulty, when I suggested it to him in argument, that this case is different because there was no order made by the Tribunal, by consent or otherwise, when judgment was entered extending time for the filing of cross-claims by the cross-claimant, SIFC. He says that for this case to be analogous and on all fours with Seltsam, SIFC as cross-claimant would have to be seeking an extension of a time set by an order of the Tribunal rather than of a time limited by the Rules for filing of a cross-claim. Thus he says the remarks of Giles JA in par [41] of his judgment at 737 which I have quoted about are not wide enough to cover the present case and indeed are limited to the facts of the case before his Honour. 20. I do not think that these words can be so limited. It seems clear to me that Giles JA was expressing himself generally in relation to any case where it is sought to "include" a cross-claim in proceedings within the meaning of s 11(4) where the proceedings may be argued to have been brought to an end by verdict and judgment, as here. In reply to that suggestion Giles JA said in that paragraph: The proceedings remain on foot to enable the defendant to give effect to its entitlement to file the cross-claim within 28 days from the service of a statement of claim upon it, that being an entitlement in accordance with the Tribunal's rules and procedures. 21 His Honour makes clear at par [22] that the entitlement of the cross-claimant to file a cross-claim within 28 days of service of a statement of claim on it is the result of the combined operation of Pt 6 r 10(1), Pt 15, r 3(1) and Pt 17, r 5(1) of the Supreme Court Rules. It is thus abundantly clear, I think, that in par [41] the entitlement to file a cross-claim within 28 days referred to by Giles JA is that conferred by the Tribunal's rules and procedures insofar as they adopt the Supreme Court rules, not any entitlement that may exist as a result of a particular order of the Tribunal, made before a verdict and judgment are entered, to the effect that cross-claims may be filed within 28 days or any other period of time. It is this entitlement which Giles JA makes it clear causes the proceedings to remain on foot so that a defendant may, if necessary, file a cross-claim either within 28 days or within any extended time ordered by the Tribunal, as is made clear by his remark in relation to the 28 day period from service of the statement of claim in par [41] at 737 that: That time may be extended by an order made pursuant to Pt 2 r 3 of the Supreme Court rules as applied pursuant to r 2 of the Dust Diseases Tribunal rules, and if it is enlarged the proceedings remain on foot so as to permit the defendant to exercise its entitlement within the enlarged time. 22. The extension of time referred to there is clearly an extension of the 28 day period provided by the Rules from the service of the statement of claim, not an extension of the time allowed by an order of the Tribunal before verdict and judgment, although such an order would also come within the purview of Pt 2, r 3(1), one would have thought, because of the additional words "or by any judgment or order" occurring in it. 23. As to the breadth of the power in Pt 2 r 3(1), I was taken by both counsel to what was said by Wilson J in FAI General Insurance where in relation to the subrule his Honour said at 283 to 284: The plain meaning of these words is very wide. The court may extend "any time" fixed by "any .... order" and may do as well after as before the time expires and even though the application to extend it is not made until after the time has expired. As Baggallay L.J. said in Carter v Stubbs (1880) 6 QBD at p 120 of the analogous English rule, it gives "very full discretionary power; indeed, I can hardly imagine a more extended discretion". It is a remedial provision which confers on a court a broad power to relieve against injustice. The discretion so conferred is not readily to be limited by judicial fiat. The fact that it manifestly is a power to be exercised with caution and, in the case of conditional orders, with due regard to the public policy centred in the finality of litigation does not warrant an arbitrary limitation of the power itself, not expressed in the words of the rule, so as to deny its capacity to apply to circumstances such as those which are found in the present case. 24. This passage seems to me, with due respect to Mr Maxwell, to tell against the restricted interpretation, as I regard it, which he suggests as being appropriate in the construction of Pt 2 r (1) having regard to s 11 and (4) of the Dust Diseases Tribunal Act. 21. That the Court of Appeal in Seltsam had before it a materially similar situation to that in the present case is made clear by what was said by the dissenting justice, Fitzgerald JA in that case. His Honour would have allowed the appeal for the precise reason that Mr Maxwell advances as being fatal to the application for extension of time made by the cross-claimant today, namely that subs (4) of s 11 of the Dust Diseases Tribunal Act only permits the inclusion of an "ancillary or related matter" where there is an extant proceeding under subs (1) of s 11 of the Dust Diseases Tribunal Act to which the cross-claim can be "ancillary or related"; see par [61] of the judgment of Fitzgerald JA at 742-3. 25. His Honour would have allowed the appeal on the ground that there was no extant "proceeding" under subs (1) of s 11 at the time the application for extension of time to file cross-claims was made before the Tribunal, because at that time that "proceeding", which was that between the plaintiff and the various defendants, had been brought to an end by verdict and judgment. The majority, Giles JA with Priestley JA agreeing with him, did not assent to this proposition, as is made clear by par [41] at 737 of the judgment of Giles JA, which I have quoted above. 26. His Honour's reasons there seem to me to govern the proper result in this case, which is I should consider that although the "proceeding" for the purposes of s 11 (1) of the Dust Diseases Tribunal Act in this case was in one sense brought to an end by verdict and judgment before Mr Menzies' application for extension of time on his client's behalf was mounted, nevertheless those proceedings, consonant with what Giles JA said at [41] at 737 in Seltsam, remain on foot so as to enable the cross-claimant to give effect to its entailment to seek an extension of time to file its cross-claim against James Patrick & Co Pty Limited (in liquidation). The consequence is that I have jurisdiction to entertain the cross-claimant's application for extension of time in that regard. Of course matters such as whether or not I should grant the application and whether I should give leave to the cross-claimant to proceed against the proposed second cross-defendant whilst it is in liquidation remain to be determined, and I shall do so after hearing the application. 27. Counsel indicate that the reasons I have given dispose sufficiently of the jurisdictional question arising between them. Mr P Menzies QC with Ms W Strathdee instructed by Blake Dawson Waldron appeared for the cross-claimant. Mr M Maxwell with Ms J Chapman instructed by McCulloch & Buggy appeared for the cross 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.