Wallaby Grip Limited & Anor v Amaca Pty Limited; and Amaca Pty Limited v CSR Limited [2011] NSWDDT 7

Dust Diseases Tribunal New South Wales Medium Neutral Citation: Wallaby Grip Limited & Anor v Amaca Pty Limited; and Amaca Pty Limited v CSR Limited [2011] NSWDDT 7 Decision date: 02 August 2011 Before: Kearns J Decision: I order CSR Limited to pay to Wallaby Grip Limited and Wallaby Grip (BAE) Pty Limited (in liquidation) the sum of $73,693.18, together with interest in the sum of $16,636.48. CSR to pay the costs of the motion. Catchwords: Dust diseases; mesothelioma; plaintiff settles with defendant, defendant recovers 50% from cross defendant, cross defendant later files statement of claim seeking contribution from Amaca and Amaca then joins CSR; contributions assessment involving cross defendant, Amaca and CSR; cross defendant seeks order for payment from CSR; CSR opposes as no issue joined between cross defendant and CSR; cross defendant entitled to order Legislation Cited: Civil Procedure Act 2005 Cases Cited: Bradford Insulation Industries Pty Ltd & Anor v Babcock Australia Pty Ltd & Ors [2011] NSWCA 117 Category: Procedural and other rulings Parties: Wallaby Grip Limited Wallaby Grip (BAE) Pty Limited Amaca Pty Limited CSR Limited Representation: Mr D J Russell SC, instructed by Middletons, appeared for the applicants/plaintiffs; Mr D Miller of Collins Biggers & Paisley appeared for the respondent/cross defendant File Number(s): DDT 164/2009; 164/2009/CC1

Judgment 1Mr Ayers contracted mesothelioma. It was caused by the negligence of Comcare. He sued Comcare. It was also caused by the negligence of Wallaby Grip Limited and Wallaby Grip (BAE) Pty Limited, in liquidation. Unless it is necessary to do so, I shall refer to the Wallaby Grip companies collectively as WG. 2By way of cross claim, Comcare claimed contribution from WG. The proceedings were subject to a contributions assessment. The Contributions Assessor assessed contributions as to 50% to Comcare and 50% to WG. 3Mr Ayers settled his case against Comcare for $921,164.75, inclusive of costs. On the cross claim, Comcare obtained judgment against WG for 50% of the settlement monies, namely $406,582.38. 4That amount has been paid by WG. 5In separate proceedings filed after the conclusion of Mr Ayers's proceedings, WG brought a claim for contribution against Amaca. Amaca then joined CSR as a cross defendant. 6There was a further contributions assessment which resulted in the Contributions Assessor assessing contributions as follows: WG 30% Amaca 12% CSR 8%. That has the appearance of having 50% missing. This is because the yardstick against which those percentages were applied was the amount of the plaintiff's damages. If instead the percentages were applied to the amount of WG's liability, that would have the effect of doubling the percentages and there is no missing amount. 7WG has obtained a judgment against Amaca in respect of its assessed 12%, namely $118,000. It is a consent judgment and it is expressed to be not in full satisfaction of WG's rights to contribution or indemnity. I need not concern myself with the terms of that judgment. 8WG now seeks an order for payment from CSR in respect of its allocated 8%, namely $73,693.18. CSR answers this by saying this relief is not available because WG has not sued it. WG seeks its order under s90 of the Civil Procedure Act 2005 (CPA). There is no dispute that s90 permits the Tribunal to make such an order. 9WG submits that this application is governed by Bradford Insulation Industries Pty Ltd & Anor v Babcock Australia Pty Ltd & Ors [2011] NSWCA 117. In Bradford , the plaintiff obtained consent judgment against Babcock. Babcock later instituted separate proceedings claiming contribution from a number of companies. Babcock claimed to be entitled to invoke the claims resolution process (CRP) notwithstanding that its claim was in separate proceedings and not brought by cross claim in the plaintiff's proceedings. Bradford and CSR, cross defendants in those proceedings, claimed that the CRP was available only in relation to cross claims in the original proceedings. Curtis J upheld Babcock's contention and that position was upheld in the Court of Appeal. The case stands for the proposition that the CRP applies to proceedings for contribution brought separate to the plaintiff's proceedings. 10Bradford goes further than the proposition just extrapolated. In its cross claim, Bradford sued four defendants. Amaca was one of them. Amaca then joined CSR as an additional cross defendant. Babcock, therefore, had not sued CSR. There was no issue joined between Babcock and CSR. This disposes of one of CSR's arguments in this case. This was that WG had not joined CSR as a cross defendant and, therefore, could not seek relief against it. In Bradford , Babcock obtained relief against CSR. It obtained an order for payment under s90 of the CPA in accordance with the contributions assessment in that case. That is the same relief WG seeks in this case. The distinction sought to be made by CSR does not exist. 11When this point overcoming CSR's submission as to Bradford being distinguishable was pointed out in a written submission from WG, CSR responded with a written submission that Bradford stands for the proposition that the CRP applies in the circumstances of this case and it does not dispute that the CRP does apply to this case. It disputes the mechanics of how it is to apply. It offers suggestions as to how it can apply conformably with the regulation and its intent. The problem with this submission is that it does not meet the point that this case is indistinguishable from Bradford and an order under s90 CPA was upheld in that case in circumstances identical to this. 12It may be that the focus in Bradford was on whether or not the CRP applied and not on how it applied. This is not to the point. The Court of Appeal was certainly aware that CSR had not been joined as a party by the cross claimant in Bradford , yet it still upheld the order under s90. 13I consider myself bound by Bradford . If I were to hold that s90 is not applicable in the circumstances of this case, I would be producing a decision inconsistent with the Court of Appeal in Bradford. 14In the circumstances, it appropriate that WG have the relief claimed, together with interest. 15CSR submitted that interest should not be allowed for the whole period. There was a period of apparent inactivity from 18 March 2010 when WG's solicitors made a demand to 2 June 2011 when they wrote making a further demand. That is a delay. Delay is a matter that may be considered as a matter of discretion in determining whether to allow interest. It is not a determinative matter. 16I do not think it is appropriate to exercise the discretion to reduce interest in this case for the following reasons. (1)This is a case where there is no issue about the amount involved. (2)It is a case involving commercial entities. (3)It was always available to CSR, if it wished, to make payment at any time during the period of delay. (4)I do not think that any discretionary consideration by reason of delay should outweigh the rationale underlying the awarding of interest and that is that the person entitled to the money has been without it and the person obliged to pay has had the benefit of it. 17In the circumstances, I think it is appropriate to allow interest for the whole of the period. 18. I order CSR Limited to pay to Wallaby Grip Limited and Wallaby Grip (BAE) Pty Limited (in liquidation) the sum of $73,693.18, together with interest in the sum of $16,636.48. CSR to pay the costs of the motion. 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. Decision last updated: 06 October 2011