Eraring Energy v Babcock Australia Ltd [2004] NSWDDT 5

Reported Decision (2004) 1 DDCR 435

Dust Diseases Tribunal of New South Wales

CITATION : Eraring Energy v Babcock Australia Ltd [2004] NSWDDT 5 PARTIES : Eraring Energy Babcock Australia Ltd MATTER NUMBER(S) : 58 of 1997/1 JUDGMENT OF: Duck J at 1 CATCHWORDS: :- LEGISLATION CITED: S 15C, Law Reform (Miscellaneous Provisions) Act 1946 CASES CITED: James Hardie & Coy Pty Ltd v Seltsam [1998] HCA DATES OF HEARING: 22/03/2004 EX TEMPORE JUDGMENT DATE : 03/22/2004

FOR CROSS-CLAIMANT: Mr SQUIRES LEGAL REPRESENTATIVES: FOR CROSS-DEFENDANT: Ms Moroney (solicitor)

JUDGMENT: 1. The matter before the Court today concerns the cross-claim brought by Eraring Energy against Babcock Australia Ltd, James Hardie Industries Ltd, Amaca Pty Ltd and Wallaby Grip. The cross-claim was discontinued against the second mentioned cross-defendant James Hardie Industries Ltd. 2. As between Eraring Energy and Amaca the parties have reached a settlement. The terms of the agreement they have reached have been reduced to writing and the agreement of the parties is that that agreement should not be disclosed. 3. It is almost impossible to make sense of this judgment without disclosing the effect of the terms. Without going to the detail of them they have the effect of releasing the third cross-defendant without payment. The first cross-defendant opposes to the entry of judgment to give effect to the terms of settlement. It does so consistently with the suggested mode of behaviour set out in the judgment of Gaudron and Gummow JJ in James Hardie & Coy Pty Ltd v Seltsam 1998 High Court of Australia 78 to which my attention has been directed in submissions. 4. The opposition is based on an apprehension by Babcocks that permitting an order to be made effectively releasing Amaca will somehow prejudice its right to make a claim for contribution against Amaca, which claim it has on foot on a second cross-claim. The problem which arose in James Hardie & Coy Pty Ltd v Seltsam is conveniently and briefly described in paragraphs 13 to 15 of the joint judgment of Gaudron and Gummow JJ. The nub of the problem there was that the plaintiff settled against the third defendant thereby releasing the third defendant, that is the third defendant obtained a verdict against the plaintiff. 5. The Court held that once an order had been made to give effect to that agreement the third defendant was no longer a person who fitted the description in s 51C of the Law Reform (Miscellaneous Provisions) Act 1946, that is that party was no longer a tort feasor who was liable in respect of the same damage nor could the party fit into the description by a person who if sued might have been so liable because in fact he had already been sued. In other words the field of possible contributors pursuant to s 5 had been reduced by one, that is the third defendant. 6. The present settlement is not between the plaintiff and any party, rather it is between possible members of the class, if I may so describe them, referred to in s 5 of the Law Reform (Miscellaneous Provisions) Act. The problem which arose in James Hardie v Seltsam therefore does not arise in this case, the class of contributors in this case would be unaffected by the orders sought to be made today. That being so I see no reason not to make orders effect to the terms of settlement proffered in court. 7. In respect of the cross-claim brought by Eraring Energy I enter verdict and judgment for the third cross-defendant in accordance with term 1 of terms of settlement signed by the solicitors for the parties. I note term 2. I note the agreement as to non disclosure contained in term 3.