New South Wales Court of Appeal CITATION: Comcare v Patrick Operations Pty Ltd & Anor [2006] NSWCA 151 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 25 May 2006 JUDGMENT DATE: 6 September 2006 JUDGMENT OF: Giles JA at 1; Ipp JA at 13; Tobias JA at 14 DECISION: Notice of motion filed on 19 May 2006 dismissed with costs. CATCHWORDS: Costs - discontinuance of appeal - appellant to pay costs unless order otherwise - application for order otherwise - no reason shown for order otherwise - no question of principle. CASES CITED: Patrick Operations Pty Ltd v Comcare [2006] NSWCA 142. Comcare - Appellant PARTIES: Patrick Operations Pty Ltd - First Respondent Anshun Pty Ltd (formerly Patrick Stevedoring Co (Victoria) Pty Ltd) - Second Respondent FILE NUMBER(S): CA 40668/05 COUNSEL: A J Sullivan QC & A C Scotting - Appellant I G Harrison SC & J A de Greenlaw - Respondents SOLICITORS: Blake Dawson Waldron - Appellant McCulloch & Buggy - Respondents LOWER COURT JURISDICTION: Dust Diseases Tribunal LOWER COURT FILE NUMBER(S): DDT 102/03 LOWER COURT JUDICIAL OFFICER: Walker J LOWER COURT DATE OF DECISION: 20 August 2004 LOWER COURT MEDIUM NEUTRAL CITATION: (DDT, 20 August 2004, unreported) IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40668/05 DDT 102/2003/1 GILES JA IPP JA TOBIAS JA Wednesday 6 September 2006 COMCARE v PATRICK OPERATIONS PTY LTD & ANOR Judgment 1 GILES JA: This appeal was discontinued shortly before the appointed hearing. Under the UCP Rules r 42.19(2), the appellant had to pay the respondents' costs unless the Court ordered otherwise. The appellant applied by notice of motion for an order that it and the respondents pay their respective own costs. 2 Mr Jack Singh brought proceedings in the Dust Diseases Tribunal ("the Tribunal") against the Stevedoring Industry Finance Committee ("SIFC"), the successor to the liabilities of the Australian Stevedoring Industry Authority which had had responsibility for the regulation and control of the performance of stevedoring operations. He alleged negligence causing lung disease from inhalation of asbestos dust and fibre. The appellant is now the successor to the liabilities of SIFC. 3 SIFC cross-claimed against the respondents, which had been Mr Singh's employers for most but not all of the time of his exposure to asbestos, claiming indemnity or contribution pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. 4 Mr Singh's claim against SIFC was settled, and consent judgment against SIFC was entered for $200,000. Walker J heard the cross-claim. He found that the settlement was reasonable, and that the respondents should contribute 75 per cent of the judgment sum. 5 The respondents appealed on the grounds - "1. That Judge Walker erred by failing to apportion damage between the respondents and the appellant for the relevant exposure periods in respect of the plaintiff's condition of asbestosis which was divisible. 2. That Judge Walker erred by relying on expert opinion, which was not in evidence, to equate the aetiology of asbestos related pleural disease and asbestosis, and thereby find that the plaintiff's earlier exposure to asbestos was more causative of his condition." 6 No evidence was put before us explaining why the appeal was discontinued. Counsel for the appellant put what he correctly described as "a very brief argument in that respect", namely - "Walker J in Singh decided the case in our respectful submission on the basis which according to the authorities available weren't open to him. There was therefore a legitimate right of us to institute an appeal. As soon as we were apprised of the cases which reversed if you like the situation that existed before Walker J, we applied for a discontinuance and sought that. In our respectful submission that is a relevant factor to take into account on a question of costs, … ". 7 The reference to "the cases which reversed if you like the situation that existed before Walker J" took its content from the submissions in Patrick Operations Pty Ltd v Comcare [2006] NSWCA 142, an appeal with which the discontinued appeal was originally to be heard concurrently and with which the appellant's application was heard. Judgment in the other appeal is given contemporaneously with this judgment. 8 Walker J relevantly concluded his reasons on the cross-claim - "(48) While I adopt the approach of Judge Curtis in Gibsons Case [ Gibson v Stevedoring Industry Finance Committee DDT 89 of 1996] each case must be decided on its particular facts. I accept that the culpability of Patricks as greatly exceeding that of the statutory labour hire body SIFC. The question of the relevant causal potency of the negligence of each party is a more difficult assessment given the counterbalancing factors to which I have just referred. (49) Taking all the evidence into consideration I think it is appropriate that liability be apportioned between the cross claimant and the two cross defendants in to ratio: 25:75 or $55,000: $165,000." 9 As explained in the reasons in Patrick Operations Pty Ltd v Comcare, in Bowie's case and Cassar's case there referred to Curtis J corrected the approach he had earlier taken in Gibson's case. His Honour held that where the plaintiff's damage was divisible the damage to which the party in the position of the respondents contributed was part only of the total damage, ascertained on a time basis according to the plaintiff's exposure to asbestos while employed by that party. 10 From the judgment of Walker J, it had been submitted that Mr Singh had worked for the respondents for about 92 per cent of the total time of his exposure to asbestos. But his Honour does not appear to have proceeded on the basis that Mr Singh's damage was divisible and therefore the contribution by the respondents should only be to something like 92 per cent of his total damage. 11 While Walker J may have been in error in this respect, it is difficult to see that any "reversal" of the situation brought discontinuance of the appeal. Taking the approach later espoused by Curtis J would have disadvantaged the appellant, because less of Mr Singh's damage would have been subject to contribution. Awareness of Bowie's case and Cassar's case would have confirmed to the appellant that it had a ground of appeal for error in point of law, not caused it to doubt that it had a ground of appeal. The appeal must have been a means of obtaining a fresh assessment of the contribution, in which the appellant hoped to better the 75 per cent contribution at which his Honour arrived. Further, the grounds of appeal included a second ground to which the question of divisible damage was not material. 12 A more likely reason for discontinuance is the obvious one, that the appellant came to the view that it was unlikely to better the 75 per cent contribution. Whether or not that be correct, I am not persuaded of a reason warranting an order otherwise. The costs of the appeal will be governed by the Rules. The appellant's notice of motion filed on 19 May 2006 should be dismissed with costs. 13 IPP JA: I agree with Giles JA. 14 TOBIAS JA: I agree with Giles JA. ********** 06/09/2006 - incorrect rule number - Paragraph(s) 1 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.