(re: William Roy Callister) Amaca Pty Limited v CSR Limited [2005] NSWDDT 37

Dust Diseases Tribunal of New South Wales

CITATION : (re: William Roy Callister) Amaca Pty Limited v CSR Limited [2005] NSWDDT 37

(re: William Roy Callister) Amaca Pty Limited (cross claimant) PARTIES : CSR Limited (cross defendant)

MATTER NUMBER(S) : 333/00/4

JUDGMENT OF: Duck J at 1

CATCHWORDS: Miscellaneous Matters :- Extension of time

Law Reform (Miscellaneous Provisions) Act 1946 LEGISLATION CITED: The Partnership Act 1892 Civil Procedure Act

CASES CITED: Seltsam Pty Limited and Anor v Energy Australia and Ors (12 April 1999)

DATES OF HEARING: 20 July 2005

EX TEMPORE JUDGMENT DATE : 07/20/2005

FOR CROSS CLAIMANT: Mr W Fitzsimmons instructed by Allens Arthur Robinson LEGAL REPRESENTATIVES: FOR CROSS DEFENDANT Mr R Pelletier instructed by Toomey Pegg Drevikovsky

JUDGMENT:

Dust Diseases Tribunal of New South Wales Matter No DDT333 of 2000/4 (Re: William Roy Callister) C.C.: Amaca Pty Limited v C.D.: CSR Limited 20 July 2005 JUDGMENT DUCK J 1. The Tribunal has before it an application by the cross-claimant, Amaca Pty Limited, in the fourth cross-claim for an extension of time within which the cross-claim might be filed, the extension being sought to 17 December 2003, that being the date on which, in fact, a document was filed. The application is expressed to be pursuant to s 2 r 3 of the Supreme Court rules which, I take it, is a reference to Pt 2 r 3 of those rules. In the alternative the order is sought pursuant to the provisions of the Civil Procedure Act when in force. As far as I am aware that Act has not yet commenced in operation. 2. The events in the proceedings which form the background against which the application is made may be stated shortly as follows. The plaintiff's proceedings were brought against Sydney Water Corporation and Eraring Energy. They were settled on 22 April 2002. The first cross-claim was brought by Sydney Water Corporation against Amaca Pty Limited, that was settled on 16 February 2004. The second cross-claim was brought by Eraring Energy against Babcock International Limited, Babcock (Australia) Pty Limited and Amaca Pty Limited. That cross-claim was settled on 12 March 2003. The third cross-claim was made by Babcock (Australia) Pty Limited against Babcock International Limited. Reference has not been made to that cross-claim in the course of the proceedings and it appears not to have a bearing on the present matter. 3. The fourth cross-claim is by Amaca Pty Limited against CSR Limited. The issues raised for determination in the pleading of the cross-claim relate to, firstly, a partnership agreement between Amaca Pty Limited, CSR Limited and Bradford Insulation Industries Pty Limited and rights said to arise therefrom. Secondly, the cross-claim relies on the Partnership Act 1892 and makes claims pursuant to it. Thirdly, the cross-claimant seeks contribution from a tort feasor who, if sued, would have been liable in respect of the same damage, pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. 4. Mr Pelletier, who appeared for CSR Limited opposes the extension of time. He submits that the filing of the fourth cross-claim without leave having been obtained was a nullity. In making the submission he points for support to the decision of the Court of Appeal in Seltsam Pty Limited and Another v Energy Australia and Others , a matter in which judgment was given in the Court of Appeal on 12 April 1999. It may be accepted, I think, that so far as it goes that submission is correct but there are some other matters which are reasonably clear. 5. Firstly, it may be accepted that the cross-claim is ancillary or related to the principal proceedings. Authority for that may be obtained from the case abovementioned. Secondly, I think it is important to have regard to the terms of the rule pursuant to which the order is sought, that is Pt 2 r 3 and in particular subrule (2) . The rule provides as follows: 3(1) The court may, on terms, by order extend or abridge any time +fixed by the rules or by any judgment or order. (2) The court may extend time under subrule (1) as well after as before the time expires, whether or not an application for an extension is made before the time expires. 6. Subparagraph (3) has no present application. It seems to me that the court retains the ability to exercise its powers pursuant to that rule. The Supreme Court rules have been incorporated into the Tribunal pursuant to r 2 of the Dust Diseases rules, that is it may be accepted that the Tribunal is entitled to hear this application. Having regard to the application on foot no matters have been advanced as to why, having regard to the merits of the matter, an order should not be made. On the face of the pleading the matters sought to be raised give rise to questions which require determination and which may reasonably be regarded as significant. 7. The opposition to the orders being made is simply on the ground that the Tribunal does not have power to make the necessary order. In furtherance of that submission it is pointed out that jurisdiction cannot be conferred by consent. So much may be accepted. The proposition advanced for the cross-defendant CSR Limited to the effect that the attempt to file the cross-claim without leave was a nullity may be accepted as true as far as it goes but that consideration, it seems to me, does not deprive the Tribunal of the power to consider this application pursuant to the rules. 8. It is submitted that a consideration in respect of the exercise of discretion is that so much time has passed that there will be a limitation issue to be addressed if the fourth cross-claim is permitted to proceed. That is a matter, it seems to me, to be addressed by the pleadings in relation to the fourth cross-claim. If the Limitation Act is raised as a defence then the cross-claimant will have to consider its position and make whatever application is available to it to overcome such a matter. That consideration, it seems to me, does not prevent the Tribunal from making an order extending the time if it is otherwise proper to do so. 9. Arguments about prejudice have not been advanced in connection with this application. It may be noted as was pointed out in submissions that the fourth cross-claim was purported to be commenced on 17 December 2003 and on 12 January 2004 the cross-defendant, the party resisting the present application filed an appearance. The rule relied upon in its terms provides the source of power to make the order sought. The substance of the cross-claim raises justiciable issues. Arguments about prejudice have not been aired. In all the circumstances it seems to be proper to make the order sought. I propose to do so in just a minute. 10. Another issue arose during the argument and that was whether or not s 81 of the Supreme Court Act might provide the applicant and the Tribunal with a further source of power to do what is sought in this motion. It is the section which empowers the court to make orders correcting irregularity. The cross-defendant submits that the rules of the Supreme Court Act may have been imported into the Tribunal but that the powers of the Supreme Court Act itself have not. The argument was left in that state. I wonder, however, whether it may properly be said that s 10(4) of the Tribunal Act imports a power such as that contained in s 81 of the Supreme Court Act s 10(4) provides: In any proceedings brought under s 11 or transferred under s 12 the Tribunal has the same power to make decisions as the Supreme Court would, but for this section, have had in relation to similar proceedings brought in the Supreme Court. 11. I come to no conclusion in respect of that matter because I do not think it is necessary to do so, but that is a matter that might be considered in some future application if it is thought to be of assistance. 12. By virtue of the power conferred by Pt 2 r 3 of the Supreme Court rules I extend the time within which the fourth cross-claim might be commenced to 17 December 2003. 13. Respondent to pay applicant's costs. Mr W Fitzsimmons instructed by Allens Arthur Robinson appeared for the cross-claimant Mr R Pelletier instructed by Toomey Pegg Drevikovsky appeared for the cross-defendant