Bluescope Steel Limited v Allianz Australia Insurance Limited

Matters which are common ground 27There is no dispute about the following matters: - (1)although the cross-claim before the Dust Diseases Tribunal is not a matter arising in its exclusive jurisdiction, the Dust Diseases Tribunal has jurisdiction to hear the cross-claim by reason of s 11(4) of the Dust Diseases Tribunal Act. That is because the cross-claim is an "ancillary or related" matter to a matter within jurisdiction: see Beazley JA in Allianz Australia Insurance Ltd v Bluescope Steel Ltd at [56-57] and Barrett JA at [78]. (2)this Court has no power to transfer the Dust Diseases Tribunal proceedings to this Court. Part 9 (s 139 to s 153) of the Civil Procedure Act 2005 does not apply to the Dust Diseases Tribunal. Section 8 of the Jurisdiction of Courts (Cross-vesting) Act 1987 only gives this Court power to cross-vest a matter from the Dust Diseases Tribunal to this Court with a view to transferring those proceedings to another court. 28Further, there is no application before the Court to stay the proceedings before the Dust Diseases Tribunal. There is no power of the Court, as such, to stay proceedings in that Tribunal. If steps were to be taken to restrain proceedings in that Tribunal, they would have to be under s 69 of the Supreme Court Act 1970, whether in the nature of an order of writ of prohibition or otherwise.

Should the Court grant the plaintiff leave to discontinue? 29Allianz accepts that the usual approach under UCPR r 12.2 is to grant leave to a plaintiff who wishes to discontinue proceedings. 30The relevant principles were summarised in a decision of Graham J in Covell Matthews & Partners v French Wools Ltd [1977] 1 WLR 876 at page 879, cited with approval by Sweeney J in SCI Operations Pty Ltd v Trade Practice Commission (1984) 53 ALR 283 at page 311 as follows: - "The principles to be culled from these cases are, in my judgment, that the court will, normally, at any rate, allow a plaintiff to discontinue if he wants to, provided no injustice will be caused to the defendant. It is not desirable that a plaintiff should be compelled to litigate against his will. The court should therefore grant leave, if it can, without injustice to the defendant, but in doing so should be careful to see that the defendant is not deprived of some advantage which he has already gained in the litigation and should be ready to grant him adequate protection to ensure that any advantage he has gained is preserved." (See also cases gathered at Ritchie's Uniform Civil Procedure NSW, [12.1.50]) 31Two themes emerge. 32First, a plaintiff should not normally be compelled to litigate against its will. Here, Bluescope wishes to discontinue the proceedings. In that sense refusing leave would compel it to prosecute this litigation against its will. It is true, as Allianz submits, that the issues Bluescope agitates in these proceedings are the same as those in the Dust Diseases Tribunal. Refusing leave would not compel Bluescope to pursue a cause of action against its will. Nonetheless, were I to refuse to grant leave, Bluescope would remain involved in proceedings that it wishes now to eschew. 33Second, the Court should be careful not to deprive a defendant "some advantage which he has already gained in the litigation". 34In that regard Allianz submits that it (and indeed Bluescope) has achieved a significant advantage as a result of Bluescope commencing proceedings in this Court, in that it (and Bluescope) has an unfettered right of appeal, as opposed to the limited right of appeal available under s 32 of the Dust Diseases Tribunal Act (which is only "in point of law"). 35Allianz submits that this advantage may be of particular value in this case. This is because of an issue that has arisen in the proceedings (both here and in the Dust Diseases Tribunal) concerning an alleged conflict of interest on the part of Bluescope's solicitors when acting both for Bluescope and BHP at the bedside hearing on 12 July 2006. 36Allianz alleges that Bluescope, by not notifying it of that hearing, and allowing one counsel to represent both it and BHP, acted in breach of its duty of good faith to Allianz. 37I express no view about the merits of those contentions. 38Allianz submits, however, that there is a sensible possibility that contested issues of fact will arise in the exploration of that issue which, if decided adversely to Allianz (and indeed Bluescope), would not be amenable to appeal unless able to be characterised as being "in point of law" (for example, under the principles in House v R [1936] HCA 40; (1936) 55 CLR 499). 39Allianz also submits that it (and Bluescope) would have, if the dispute remained in this Court, the advantage of having the matter heard in the specialised list by a judge who, it might be supposed, had more experience in dealing with the insurance issues that will arise. 40A date has already been fixed in the Dust Diseases Tribunal for hearing; 10 December 2012. It is unlikely a date can be allocated in this Court before 2013. 41On the other hand, Bluescope submits that the limited appeal rights under s 32 is an inherent ingredient of the litigation before the Dust Diseases Tribunal and that it is beside the point to compare those limited rights to those available in this Court. 42Bluescope referred to the remarks of Santow JA in Julia Farr Services Inc v Hayes [2003] NSWCA 142, particularly at [14]. 43I have not found his Honour's observations in that case of great assistance to the particular circumstance before me. Unlike this case, the case Santow JA was considering involved matters lying within the exclusive jurisdiction of the Dust Diseases Tribunal. Further, that case did not involve a situation where, as here, the party that had initiated proceedings in the Dust Diseases Tribunal also initiated mirror proceedings in this Court. The question of "deprivation of advantage" did not arise in the Julia Farr decision. 44Bluescope also submits that: - (a)the legislature has given the Dust Diseases Tribunal jurisdiction to hear the controversy currently before it; (b)the Dust Diseases Tribunal has commenced to exercise that jurisdiction; (c)the proceedings are modest in quantum; (d)the original claim by Mr Jackson against Bluescope engaged the Tribunal's exclusive jurisdiction; and (e)the Tribunal has particular knowledge of the factual context in which Mr Jackson's claim arose. In that regard I refer to the comments of Kearns J, which I have set out above at [16]. 45The "advantage" for which Allianz contends has only arisen because of Bluescope's decision to commence these proceedings, notwithstanding that the proceedings in the Dust Diseases Tribunal are still pending. That decision was made in the face of Allianz's refusal to offer an undertaking not to rely on the Limitation Act 1969. Had Allianz given that undertaking, the opportunity or "advantage" to which it points would not have arisen. Thus, to that extent, the advantage that it complains will be lost has only arisen because of its own conduct. Whether that conduct was reasonable or not is a matter I address below.

Practical consequence of granting or refusing leave to discontinue 46If leave to discontinue is granted, Bluescope's claim in these proceedings will come to an end. It must follow, in my opinion, that I would refuse leave to Allianz to file a cross-claim. There would be no utility in doing so. 47In that event, Allianz has foreshadowed that it would commence, immediately, fresh proceedings in this Court seeking relief to the same effect as that in the proposed cross-claim. 48Bluescope has foreshadowed that, if that occurred, it would seek a stay of those proceedings on the grounds of abuse of process and it would rely upon principles of the kind set out in Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 per Gleeson CJ, Gummow, Hayne and Crennan JJ at [9]. 49On the other hand, if leave to discontinue is not granted Allianz would seek to have these proceedings prosecuted. The proceedings in the Dust Diseases Tribunal will remain pending, set to be heard on 10 December 2012. 50Allianz has stated that, in that event it will approach Kearns J and ask his Honour to refrain from proceeding on 10 December 2012. 51It seems likely that his Honour would wish to proceed with the matter, unless restrained from doing so. 52I say this because on 31 August 2012, when setting the 10 December 2012 date, Kearns J said that the date was "far enough away for you to get relief to prevent my hearing". 53If leave to discontinue were not granted, and this proceeding continued, and Kearns J refused to defer consideration of the matter, Allianz has foreshadowed making an application under s 69 of the Supreme Court Act for relief in the nature of a writ of prohibition to restrain Kearns J from hearing the case pending the decision in this case. 54However, it is hard to see how a remedy by writ of prohibition could lie unless it could be established that the Dust Diseases Tribunal does not have jurisdiction to hear the matter. 55In Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th ed (2009), it was said at page 804: - "...unlike certiorari, prohibition lies only for actual threatened excess of power. Almost no-one has suggested that prohibition also lies for patent non-jurisdictional error of law, and there is substantial authority against the idea". 56The authors cite, amongst other authorities, Sydney Water Corp Ltd v Industrial Relations Commission of NSW [2004] NSWCA 436; (2004) 61 NSWLR 661 at 675 [62]: - "Nevertheless, the Court should not make an order in the nature of prohibition unless satisfied of a threatened jurisdictional error". (citation omitted, emphasis in original) 57As set out above, the Court of Appeal in Allianz Australia Insurance Ltd v Bluescope Steel Ltd proceeded on the basis that the Dust Diseases Tribunal does have jurisdiction. 58Allianz has foreshadowed that it may also seek to test a refusal by Kearns J to cease hearing the matter by application for leave to appeal to the Court of Appeal under s 32 of the Dust Diseases Tribunal Act "on a point of law". However, if, as seems clear, the Dust Diseases Tribunal does have jurisdiction, it is hard to see what error of law will arise. 59There thus looms the most unattractive prospect that if leave to discontinue these proceedings is not granted, two sets of proceedings, in this Court and in the Dust Diseases Tribunal, will proceed in parallel and that both the Dust Diseases Tribunal and this Court will be asked to decide the same issue between the same parties. To merely state that proposition is to reveal its unacceptability. 60I am not able to say how likely that prospect is. That depends on whether Allianz could get relief in the nature of prohibition, or leave to appeal, as it foreshadows. I am satisfied there is, at the very least, real doubt it could get such relief and thus a sensible prospect of a "two decisions" scenario. 61Whatever decision I make, more litigation is likely. In those circumstances it is hard to make any decision about this matter that will promote the "just, quick and cheap resolution of the real issues in the dispute": s 56 of the Civil Procedure Act. 62Thus, there are a number of competing matters I must take into account. 63I think there is weight in Allianz's submission that to allow leave to discontinue would deprive Allianz of an advantage, perhaps a significant advantage, it has as a result of Bluescope's decision to commence these proceedings. However, as I have said, that advantage has only arisen because of Allianz's decision not to proffer the undertaking sought. 64In any event, my opinion is that the force of Allianz's submission is outweighed by the prospect that refusal to grant leave to discontinue may result in both the Dust Diseases Tribunal and this Court deciding the same issue between the same parties. That prospect must be avoided at all costs. 65Accordingly, I propose to grant Bluescope leave to discontinue.

Costs 66In Re Minister for Immigration and Ethnic Affairs (Cth) v Lai Qin [1997] HCA 6; (1997) 186 CLR 622, McHugh J said at 625, in a well known passage: - "If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continue to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the Court will make no order as to the costs of the proceedings. This approach has been adopted in a large number of cases." 67Bluescope submits that Allianz has behaved unreasonably by not giving the undertaking sought. 68I do not accept this submission. Allianz certainly made a hard-nosed decision. But this is litigation between experienced parties that Bluescope has itself described as "habitual litigants in the Dust Diseases Tribunal". 69Further, I am not in a position to make an assessment of whether, in the context of the delays that have occurred in the litigation before the Dust Diseases Tribunal, it was "unreasonable" for Allianz to refuse to give the undertaking.

Orders 70I make the following orders: - (1)Pursuant to Uniform Civil Procedure Rule 12.1 I grant the plaintiff leave to discontinue these proceedings. (2)I dismiss the defendant's Notice of Motion of 15 September 2012. (3)I make no order as to the costs of the applications before me today or of these proceedings. 71Since pronouncing those orders, Mr Parker, who appears for Bluescope, has tendered a letter from his instructing solicitors to Allianz's solicitors dated 6 September 2012. I am not persuaded that anything in that letter warrants me making an order for costs than that I have pronounced.

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