State of New South Wales v Amaca Pty Limited; Amaca Pty Limited v CSR Limited [2016] NSWDDT 2

Dust Diseases Tribunal New South Wales Medium Neutral Citation: State of New South Wales v Amaca Pty Limited; Amaca Pty Limited v CSR Limited [2016] NSWDDT 2 Hearing dates: 9/2/2015; 10/2/2015; 11/2/2015; 12/2/2015; 2/11/2015; 3/11/2015; 4/11/2015; 5/11/2015; 6/11/2015; 5/2/2016; 8/2/2016; 9/2/2016; 10/2/2016; 11/2/2016; 12/2/2016; 15/2/2016; 16/2/2016; 17/2/2016; 18/2/2016 Date of orders: 20 May 2016 Decision date: 20 May 2016 Before: Kearns J Decision: In the State's claims against Amaca, I rule that the liability those parties are to bear is to be borne between them as follows: in the case of Mr Derepas, the State 75%, Amaca 25%; in the case of Mr Lewis, the State 60%, Amaca 40%; in the case of Mr Pajkovic, the State 65%, Amaca 35%; in the case of Mr Daly, the State 70%, Amaca 30%; in the case of Mr Allars, the State 65%, Amaca 35%; in the case of Mr Bennett, the State 70%, Amaca 30%; in the case of Mr Smith, the State 90%, Amaca 10%; in the case of Mr Payne, the State 65%, Amaca 35%.

In Amaca's claims against CSR, I rule that the amount Amaca is entitled to recover from CSR is represented by the total of the following: in the case of Mr Lewis, 50% of two thirds of the amount Amaca is required to pay to the State; in the case of Mr Pajkovic, 45% of the amount Amaca is required to pay to the State; in the case of Mr Daly, 40% of the amount Amaca is required to pay to the State; in the case of Mr Allars, 50% of the amount Amaca is required to pay to the State; in the case of Mr Bennett, 50% of the amount Amaca is required to pay to the State; in the case of Mr Smith, 50% of the amount Amaca is required to pay to the State; in the case of Mr Payne, 40% of the amount Amaca is required to pay to the State. Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1946 Cases Cited: Amaca Pty Ltd (under NSW External Administration) v A B & P Constructions Pty Ltd [2007] NSWCA 220 Browne v Dunn (1893) 6 R 67 CSR Limited v Wren (1998) Aust Torts Reports 81-461 Evans v Amaca Pty Limited & Ors 26 February 2009 Jones v Dunkel (1959) 101 CLR 298 McPherson's Ltd v Eaton & Ors [2005] NSWCA 435 Norton Australia Pty Limited v Streets Ice Cream Pty Limited (1968) 120 CLR 635 Podrebersek v Australian Iron & Steel Pty Ltd 1985 ALR 529 Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd re Hay (No 4) (1999) 18 NSW CCR 653 (re McCullagh) Seltsam Pty Ltd v The State of Queensland [2003] NSWDDT 3 The Council of the Shire of Wyong v Shirt & Ors (1980) 146 CLR 40 Zwiersen v Field & Hall Ltd & Ors [2016] VSC 16 Texts Cited: M R Becklake, 'Asbestos-Related Diseases for the Lung and Other Organs: Their Epidemiology and Implications for Clinical Practice' (1976) 114(1) American Review of Respiratory Diseases 187 J C Wagner, C A Sleggs, and P Marchand, 'Diffuse Pleural Mesothelioma and Asbestos Exposure in the North Western Cape Province' (1960) 17(4) British Journal of Industrial Medicine 260 Category: Principal judgment Parties: State of New South Wales, plaintiff/cross claimant Amaca Pty Limited, first defendant/cross claimant/first cross defendant Wallaby Grip Limited, second defendant/second cross defendant Wallaby Grip (BAE) Pty Limited, defendant/second defendant/third defendant/second cross defendant/third cross defendant CSR Limited, cross-defendant Representation: Counsel: Mr J L Maconachie QC with Mr J L Sharpe, instructed by Thompson Cooper Lawyers Pty Ltd, appeared for the plaintiff Mr T G R Parker SC instructed by Mills Oakley appeared for the first defendant/cross claimant Mr D J Russell SC with Ms T Moisidis, instructed by Zambra Legal, appeared for the second and third defendants Mr D Miller of Colin Biggers & Paisley appeared for the cross defendant File Number(s): 64/2013; 64/2013/1; 65/2013; 65/2013/1; 89/2013; 89/2013/1; 89/2013/3; 126/2013/1; 126/2013/2; 272/2013; 272/2013/1; 419/2013/1; 419/2013/2; 246/2014/1; 334/2014/1; 334/2014/2