Dust Diseases Tribunal New South Wales Medium Neutral Citation: Country Energy v Amaca Pty Limited & Ors [2012] NSWDDT 2 Hearing dates: 17 September 2012 Decision date: 30 October 2012 Before: Judge MJ Finnane QC Decision: See paragraph [20] Catchwords: Interest - part payment - contribution - indemnity - costs - assessment - interim payment of interest - discretion as to payment - no dispute as to calculation Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1946 Dust Diseases Tribunal Act 1989 Civil Liability Act 2005 Cases Cited: Power Technologies Pty Ltd v Energy Australia [2010] NSWCA 107 CSR v Wallaby Grip Limited [2012] NSWCA 154 Category: Procedural and other rulings Parties: Country Energy (Plaintiff) Amaca Pty Limited (First Defendant, Cross-Claimant) Wallaby Grip Limited (Second Defendant) Wallaby Grip (BAE) Pty Ltd (Under External Administration) (Third Defendant) Power Technologies Pty Ltd (Fourth Defendant) AWI Holdings Pty Ltd (Fifth Defendant) CSR Limited (Cross-Defendant) Representation: DT Miller SC (Plaintiff) TM Rowles (Fifth Defendant) Moray & Agnew (Plaintiff) DLA Piper Australia (First Defendant, Cross-Claimant) Middletons (Second and Third Defendants) Firth's - The Compensation Lawyers (Fourth Defendant) Spark Helmore (Fifth Defendant) Colin Biggers & Paisley (Cross-Defendant) File Number(s): 167/2011/1 Judgment 1The plaintiff moved by notice of motion for orders against the defendants, the cross claimant and the cross defendant. 2On 13 March 2009, Harold Crossingham commenced proceedings against the plaintiff alleging that he had suffered mesothelioma caused by inhaling asbestos dust and fibre while employed by the plaintiff. That claim was resolved on 27 June 2009 when a judgment was entered in his favour against country energy in the sum of $360,000, inclusive of costs. That verdict was paid out on 14 July 2009. 3On 28 June 2011 Country Energy began proceedings against the defendants, the current cross claimant and the current cross defendant seeking from each of them contribution and/or indemnity pursuant to section 5 of the Law Reform (Miscellaneous Provisions) Act 1946. It also sought interest on the payment made to Mr Crossingham. 4There was a contributions assessment and the determinations made by the contributions assessor were as follows: (i)Country Energy-54.895% (ii)Amaca- 11.675% (iii)CSR- 6.125% (iv)Wallaby Grip Ltd - 7% (v)Wallaby Grip (BAE) Ltd- 10.5% (vi)Power Technologies- 2.5% (vii)AWI - 7.305%. 5The notice of motion sought from each of the defendants payment of the assessed contributions and the payment of interest. In each case, an interest calculation has been made by the plaintiff and the calculation itself is not disputed as to the amount claimed. The defendant's, other than AWI and CSR, have agreed to pay to the plaintiff's amounts equalling the contribution assessed in each case by the contributions assessor. AWI at the hearing indicated that it had no opposition to the making of an order that it contributes in accordance with the contributions assessment, but it did not consent to that order. It opposed an order that it pay interest on an interim basis, but it advanced no arguments in support of that opposition, other than to rely upon the arguments advanced by CSR in its opposition to the payment of interim interest. 6The plaintiff moved by notice of motion for orders against the defendants, the cross claimant and the cross defendant. 7Since AWI did not object to the making of an order, I ordered that it pay the plaintiff in accordance with the contributions assessment. 8The formal order that I make is that the first defendant, AWI, pay to the plaintiff the sum of $26,809.35. 9The remaining issues in the case at this point are concerned with whether I should order that the fifth defendant, AWI should pay interest on the sum that I have ordered it should pay the plaintiff and whether the cross defendant, CSR should pay interest on the interim payment it has in fact made. 10Provision for the payment of interim amounts as assessed by a contribution assessor are provided for under the regulation to the Dust Diseases Tribunal Act 1989. The scheme is the subject of considerable analysis in the Court of Appeal decision of Power Technologies Pty Ltd v Energy Australia [2010] NSWCA 107 and I do not need to repeat that analysis. 11I have made an order that AWI should pay its contribution. 12CSR does not dispute that it is liable under the scheme to make an interim payment in the amount assessed and it has done so, but it disputes any liability to pay interest on the amount assessed on an interim basis. 13In my opinion, sections 90 and 100 of the Civil Liability Act 2005 permit me to order a payment of interest which because it is interest on an amount that has been assessed on an interim basis, is also an interim payment. Decisions to the same effect have been made by his Honour Judge Kearns and his Honour Judge Curtis. I annex copies of those decisions to this judgment. The judgment of Judge Kearns was affirmed on appeal (see: CSR Ltd v Wallaby Grip Limited [2012] NSWCA 154). 14CSR in the current case is basically repeating the same submission it put in the case before Judge Kearns. CSR has conceded that Country Energy is entitled to the interim payment assessed by the contributions assessor, but objects to paying interest on an interim basis. It points to the fact that there has been no merits judgment in the case and of course that that is so, but in my opinion, that argument is of no substance because what is being sought is an interim interest payment. 15If in the long run CSR succeeds in establishing that it has no liability, then Country Energy will have to repay any amount already paid by CSR, any interest paid and will have to pay interest on the total amount paid to it. 16The payment of interest is not sought as a penalty and in the normal course, in my opinion; a successful plaintiff in circumstances such as this is entitled to an order for interest. 17Clearly there is a discretion to refuse to order interest or to reduce the interest claimed where there has been some form of delay in the commencement of proceedings. However, in this case there is no dispute about the liability of CSR to pay the contribution, nor is there any dispute about the calculation of interest, the parties involved are commercial and it was always available to CSR to make payment at any time during the period of delay. That would have avoided any liability for interest. 18In my opinion there are no discretionary reasons that would weigh in favour of a refusal to order interim interest and I order CSR to pay interim interest as claimed. I also order the fifth defendant to pay interim interest as claimed. 19Costs have been sought by the plaintiff on an indemnity basis. In my opinion, the plaintiff is entitled to those costs on that basis because each of the defendants could have agreed to the order sought before the notice of motion was brought and chose to litigate the matter instead. 20I order CSR and AWI to pay costs of the plaintiff on an indemnity basis. I order that CSR and AWI make the payments sought by the plaintiff in the notice of 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: 21 January 2013