Bluescope Steel Limited v Allianz Australia Insurance Limited [2015] NSWDDT 2

Dust Diseases Tribunal New South Wales Medium Neutral Citation: Bluescope Steel Limited v Allianz Australia Insurance Limited [2015] NSWDDT 2 Hearing dates: 20 July 2015 Date of orders: 20 July 2015 Decision date: 20 July 2015 Before: Kearns J Decision: I make an order in accordance with prayers 1 and 2 of the notice of motion filed by Allianz on 3 June 2015. Category: Costs Parties: Bluescope Steel Limited (Plaintiff/respondent) Allianz Australia Insurance Limited (Defendant/applicant) Representation: Counsel: Mr M Neil RFD QC, instructed by KJK Legal, appeared for the plaintiff Mr D Toomey, instructed by Rankin Ellison Lawyers, appeared for the defendant File Number(s): DDT156/2009

RULING 1. Allianz seeks costs of these proceedings, the 2009 proceedings. 2. The proceedings were commenced by BlueScope by a statement of claim in the Tribunal on 16 June 2009. It is undoubted they were filed without jurisdiction. It was a long time before anybody woke up to that fact. Meanwhile the proceedings continued with the relatively long history. 3. Extensive detail in relation to the history is contained in the affidavit of Tracey Ann Kerrigan sworn in July 2015. Though extensive, it is not comprehensive of all that has happened in the 2009 proceedings, or indeed in the 2006 proceedings. 4. These proceedings, the 2009 proceedings, are a "spin‑off" from the 2006 proceedings commenced by Mr Jackson in 2006. In the 2006 proceedings, Mr Jackson sued BlueScope and another defendant and settled the proceedings against BlueScope for a monetary figure in his favour. The 2009 proceedings were BlueScope's attempt to obtain indemnity from its insurer Allianz. 5. In one of the interlocutory processes in the 2009 proceedings, I did comment to the effect that to describe what had happened with BlueScope's forensic attempts to obtain indemnity as running off the rails would be a misnomer. This was because, despite every effort that was made by BlueScope to obtain its indemnity, it never really got its case on the rails. 6. In the end, BlueScope was forced to seek an extension of time in which to bring a cross‑claim against Allianz in the 2006 proceedings. I granted that extension. The litigation on that cross‑claim was conducted before Judge Finnane over a period, but not consecutive days, commencing in December 2012 and finishing in February 2013. 7. There was an appeal from that decision. The appeal resulted in the matter being remitted to Judge Finnane for a second hearing. A second hearing was conducted before Judge Finnane. The result of the 2006 proceedings was that Allianz won. 8. There were two substantial issues in the 2006 proceedings. Allianz won on one of those points, but it did not on the other. Judge Finnane dealt with that in the costs orders that he made. The Judgment (Exhibit A) relevantly provides as follows: 4. The Cross‑Claimant to pay fifty per cent (50%) of the Cross‑Defendant's party/party costs of the hearing before Finnane DCJ conducted in the period (albeit not on consecutive days) between 10 December 2012 and 7 February 2013. 5. Cross‑claimant to otherwise pay the Cross‑Defendant's party/party costs of the proceedings (excluding its costs on appeal CA No. 2013/107578‑002 between the parties) on a party / party basis with such costs to be agreed or assessed. 6. The Cross‑Claimant to pay the Cross‑Defendant's party/party costs of the second hearing before Finnane DCJ of the matters remitted by the Court of Appeal. 1. It will be apparent from those terms that the hearing days of the first hearing are covered by item 4 and the hearing days of the second hearing are covered by item 6. Item 5 deals with costs in relation to those proceedings that are not costs of hearing days. It seems to me the intent plainly was that Allianz should have its costs of the 2006 proceedings, but in respect of the hearing days of the first hearing, its entitlement to those costs should be 50% thereof. 2. The question now before me is what order for costs should be made in respect of the 2009 proceedings. 3. Mr Toomey, who appears for Allianz, assures me that if I do not make an order of the kind that his client seeks, the matter will be left in a state of some confusion. Mr M Neil of Queen's Counsel, who appears for BlueScope, has assured me that if I do not make an order of the kind that his client seeks, the matter will be left in some state of some confusion. The order I make on those assurances means that somebody is going to be confused. 4. The proceedings were started and continued by BlueScope without jurisdiction for a considerable period of time. A considerable amount of work was undertaken in the proceedings. This included numerous interlocutory applications and matters relating to discovery and particulars were undertaken. When the penny dropped for BlueScope that it was conducting litigation in respect of which there was no jurisdiction, there was then consideration of the jurisdiction question. BlueScope's response to the problem when it realised there was a problem was, oddly, to seek in the 2009 proceedings an extension of time to cross‑claim in the 2006 proceedings. That statement itself suggests an oddity. It was even odder that BlueScope, having realised there was no jurisdiction in the 2009 proceedings, then proceeded to seek an extension in those proceedings. 5. The real area for confusion here seems to be what will be the effect of the order I make, particularly in relation to work that was undertaken in the 2009 proceedings that was later utilised in the 2006 proceedings. 6. I initially had a view on reading the papers which I expressed to the parties at the commencement of this hearing this morning. I have since had cause to change that view on hearing the parties. 7. I propose to make an order that Allianz have its costs of the 2009 proceedings. The mischief that may arise from that is said to be that the costs assessing officer may be left in a state of some confusion about what is covered by the costs order in the 2006 proceedings and how the order I make here will impact on that. I do not see that practical difficulty as likely to arise. One way around it would be if the parties took what, for this litigation, might be an unusual step of agreeing one matter, that being that instead of having two costs assessors for the separate proceedings, there be the one costs assessor. 8. In all events, UCPR pt 42 r 1 provides, in effect, that the Court is to make an order that costs follow the event unless it appears that some other order should be made as to the whole or a part of the costs. I do not think there is a need to make another order. If the result of the order I make means that Allianz has two costs orders in its favour in respect of an amount of work involved in both sets of proceedings, then, in my view, that is neither here nor there. Two costs orders in its favour, if that be the result, will not enable Allianz to double‑dip. It would only be able to be compensated in respect of its work once. It will not be enabled to profit from two orders in its favour if that be the result. 9. I make an order in accordance with prayers 1 and 2 of the notice of motion filed by Allianz on 3 June 2015.