Placer v Dyno

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

50212/96 - PLACER (PNG) PTY LTD AND & 3 ORS BEING THE MEMBERS OF THE PORGERA JOINT VENTURE v DYNO NOBEL ASIA PACIFIC LIMITED (FORMERLY DYNO WESFARMERS LIMITED) & ANOR

HIS HONOUR: 1 In this matter I delivered reasons for judgment on 24 December 1999 (the principal reasons) and deferred the making of final orders to enable the parties to reach agreement on short minutes of orders to give effect to my findings or, in the absence of agreement, to present competing short minutes and outline submissions in support of their differing contentions. There were some outstanding questions to be resolved, particularly in relation to costs and issues between insurers as to contribution. 2 When the matter was relisted for that purpose on 11 February 2000, it was apparent that the parties were not in a position to present final submissions, and were likely to have recourse to further evidence in support of the outstanding matters. To enable the parties to put on that evidence and present final submissions, the matter was adjourned to 17 February 2000. My findings and reasons therefor in relation to those matters follow. I have adopted the same terminology in these further reasons as that used in the principal reasons.

THE PJV BETTERMENT CLAIM. 3 At the time of publishing the principal reasons, it was my understanding that the quantum of the PJV betterment claim was not in dispute. In the PJV submissions the amount claimed was made up of the cost of construction of the new explosives plant facility, namely US$1,841,230 less the replacement costs for which the PJV had been indemnified by Niugini Insurance, namely US$686,432. 4 In its submissions Niugini Insurance raised no issue in relation to that quantification, although it was exposed to paying the amount claimed in satisfaction of Dyno's sec 11 claim under the endorsed policy. Dyno had appended to its submissions Appendix D entitled "Agreement on Quantum", which contained the following statement:

"The agreed amount in respect of the claim for that part of the cost of reinstatement of the Dyno building at the Dyno site which was paid by (Niugini Insurance) is based on the assumption that the amount of US$808,235 was paid by (Niugini Insurance) to the PJV." 5 Beyond referring to that "assumption", Dyno did not join issue with the calculations and the references to evidence relied on by the PJV for its calculation of the betterment claim. 6 Niugini Insurance, in its most recent submissions, asserts that the correct calculation of the betterment claim requires an allowance of the sum of US$808,235. In support of this contention, Niugini Insurance relies on the evidence of Peter Rink (Rink) who had been employed by GAB Robins as a loss adjuster in relation to the PJV claim. In that role Rink prepared a report to the solicitors for Niugini Insurance of 22 March 1999. In that report he identified the cost of reinstatement of the explosives facility, as claimed by the PJV, as being US$1,920,278. He adjusted that figure by the following item:

"Cost of reinstatement of buildings and plant owned by PJV at the Dyno site… [US$]808,235." 7 The last mentioned sum was further broken down in summary form as follows:

"Building at DWL site; 686,432. Plant and machinery at DWL site; 121,803. Total figure; $808,235."

8 In the body of the report Rink made the following observation: "Schedule 1E - Claim for Reinstatement of Buildings Owned by the PJV at the Dyno Site We note that the adjusted amounts in respect of these structures relate to cash-out values of US$686,432 for buildings and US$121,803 for contents. The amount claimed by the PJV is US$1,920,278. We are not in a position to assist in responding to the amount claimed above the agreed cash-out figures recommended to NIC for payment."

9 Dyno supports Niugini Insurance in its present contention, although it has not presented further submissions on this issue. 10 There has been no attempt by Niugini Insurance, nor by Dyno, to reconcile the amount of the PJV claim of US$1,920,278 with the amount of US$1,841,230 relied upon by the PJV in its calculation of the betterment claim. Nor has it been asserted that the cost of reinstatement of US$1,841,230 included any amount for the "Plant and Machinery" referred to by Rink. 11 The evidence relied upon by the PJV in relation to the betterment claim consisted, principally, of the evidence of Carpenter. In his evidence he detailed the manner in which the sum of US$1,841,230 was expended by the PJV in the construction of the new facility and there is nothing in that material which would enable me to conclude in favour of Niugini Insurance's submissions that the sum of US$1,841,230 included any item of the plant and machinery for which allowance is now claimed by Niugini Insurance. 12 It was Carpenter's evidence in chief in relation to the appropriate amount of the allowance as follows:

"NIC has paid PJV US$686,432 for damage to the infrastructure of the Dyno plant, being the value of the destroyed facility. I was informed by Paul Owens, that under the policy, NIC would not accept a claim by PJV for the cost of the new facility." (Exhibit J paragraph 27).

13 Niugini Insurance did not cross-examine Carpenter on this evidence. The only cross-examination on behalf of Dyno (transcript 184-185) proceeded on the premise that the correct allowance against the cost of constructing the new facility was approximately US$600,000: and that was in the context of a claim by the PJV for the cost of a new facility of approximately US$1,900,000. There was no suggestion in that cross-examination that the correct allowance should be the figure of US$808,235 as now asserted. 14 In those circumstances, I see no justification for reducing the betterment claim by the amount of US$121,803 paid by Niugini Insurance to the PJV for lost plant and machinery, as noted by Rink. 15 Accordingly, I have calculated the betterment claim in the amount of US$1,154,798 as evidenced by Carpenter. 16 There should be judgment in favour of the plaintiff against the first defendant in the sum of US$6,955,943, together with interest thereon as calculated in accordance with the principal reasons to and including 1 March 2000. Interest so calculated amounts to US$2,295,842.

VESTA'S COSTS OF THIRD CROSS CLAIM. 17 There are two main outstanding issues on Vesta's costs, namely, whether those costs should be on an indemnity basis and whether the assessment of costs should be limited to the policy construction question raised by Vesta in its defence to the third cross-claim. 18 The claim for indemnity costs is advanced through the evidence of Mark Camac Sheller in his affidavit sworn 11 February 2000. Briefly that affidavit evidence disclosed the putting together of an offer of settlement by Dyno to the PJV which would have had the effect of settling all claims amongst the several parties. It involved, among other things, the payment of US$4,000,000 to the PJV, indirectly by Vesta and the GAC, the abandonment by Niugini Insurance of its subrogation claim and by Dyno of its claims against Niugini Insurance. 19 The offer took the form of a Calderbank letter of 31 March 1999 to each of the solicitors for the PJV and Niugini Insurance. The offer to Niugini Insurance was expressed to be "subject to and conditional upon the acceptance by" the PJV of a complimentary offer. The response of Niugini Insurance was evidenced in the affidavit of Andrew Thomas Edward Peters sworn 16 February 2000 (the Peters affidavit) which annexed the facsimile of the solicitor for Niugini Insurance to Dyno's solicitor of 1 April 1999, rejecting the offer on the following grounds: "1. As previously advised to you, we have been unable to formulate a joint approach with PJV. To nevertheless proceed with an offer to us which does not deal separately with the claims of PJV and NIC fails in the circumstances to address a resolution of the action as a whole.

The amount of the offer is manifestly inadequate, regardless of what share of the settlement sum is claimed by PJV on its own account.

The offer declines to take up our invitation to discuss the merits of the case in a sensible fashion.

The offer appears not even to attempt to resolve all the issues in dispute between DWL and NIC." 20 The Peters' affidavit also evidenced a conversation which the deponent had with the solicitor for Dyno on 2 April 1999 in the following terms:

"3. Further, on or about 2 April 1999, I had a telephone conversation with Luke Devine, solicitor for Dyno, during which I said words to the following effect:

'I have sent a letter rejecting your client's offer. We cannot consider any offer that is structured in a way that is conditional on acceptance by the PJV. Our previous experience tells us that we cannot negotiate with the PJV.'" 21 Whilst perhaps lamenting the negative attitude of Niugini Insurance reflected in that response, I have difficulty in accepting that the rejection of the offer has exposed Niugini Insurance to a liability to pay Vesta's costs on an indemnity basis. I think there are a number of reasons why that is so, principal amongst which is the fact that it was a conditional offer and there is no evidence to suggest that the PJV was in any way interested in settling on the offered terms. 22 While, in a practical sense, it could be said that Dyno's proposal, in which Vesta joined, opened the door for possible fruitful discussions, I doubt if Niugini Insurance's conduct could be characterised as anything more than shutting that door for reasons which were not entirely unreasonable. 23 In my view there is no sound basis for departing from the usual order as to costs in ordering Niugini Insurance to pay Vesta's costs of the third cross-claim. 24 That raises the question of the extent of costs that should be so assessed. The position of Niugini Insurance is that if any costs are awarded to Vesta they "should not exceed half the costs incidental to the one day's hearing (treating the third and fourth cross-claims as representing half each)." In essence, the contentions of Niugini Insurance are that the interests of Vesta were identical with those of Dyno: the issues raised on the third cross-claim were questions of the construction of the Vesta policy: prior to hearing Niugini Insurance had unsuccessfully sought a separate hearing of the issues raised on the third cross-claim: the evidence adduced in the third cross-claim was limited. 25 I think the order should be that Niugini Insurance pay Vesta's costs of the third cross-claim. In making that order it should be noted that, in my view, Vesta's costs should be assessed on the basis that its costs include the costs of a watching brief in the hearing. 26 The extent of the policy construction issue may be addressed by the costs assessor by reference to the submissions, both written and oral, presented by both insurers and to the fact that the only evidence, apart from the subject policy, that was adduced by either party was the statement of evidence of Hjort in respect of which he was not required to attend the hearing for cross-examination. It should also be noted that Vesta and GAC were represented throughout the proceedings by one set of legal representatives. I think that has relevance to the amount of costs allowed as representing the costs of a watching brief.

NIUGINI INSURANCE'S COSTS OF FOURTH CROSS-CLAIM 27 Niugini Insurance seeks an order that GAC pay Niugini Insurance's costs of the fourth cross-claim. Clearly Niugini Insurance is entitled to that order. In paragraph 4 of its submissions Niugini Insurance made the following submission:

"NIC estimates that the time spent at trial on both the third and fourth crossclaims was approximately one day. To the extent that Vesta seeks costs against NIC, such costs (if awarded) should not exceed half the costs incidental to one day's hearing (treating the third and fourth crossclaims as representing half each)." 28 Although I have not accepted that limit in dealing with Vesta's entitlement to costs as against Niuigini Insurance in relation to the third cross-claim, I think it is an appropriate estimate to adopt in assessing the entitlement of Niugini Insurance to an order for the payment of its costs of the fourth cross-claim as against GAC.

GAC'S CONTRIBUTION AND LIABILITY 29 Consideration of the contribution issue falls into three categories:

(A) Determination of the contribution sum. (B) The currency in which the judgment sum should be expressed. (C) The calculation of any interest payable upon the contribution sum.

30 (A) Niugini Insurance seeks contribution in respect of:

(i) Dyno's loss "as a result of" the explosions, and (ii) "all law costs and all charges and expenses incurred in the settlement or defence of claims or litigation arising therefrom, where such costs charges and expenses are incurred by GAC or by Dyno with the written consent of GAC."

31 In its submission of 16 February 2000 Niugini Insurance seeks the following order against GAC: "GAC pay contribution to the second defendant in the sum of AUS$1,420,755 plus half the second defendant's liability for Dyno's assessed costs of defending its proceedings against PJV."

32 The indemnity provision in GAC's policy was in the following terms: "the liability of (GAC) for all compensation payable as a result of (a) ...explosion... Shall not exceed the Limit of Indemnity but (GAC) will also pay in connection with claims in respect of which (Dyno) is entitled to indemnity under the Policy...all law costs and all charges and expenses incurred in the settlement or defence of claims or litigation arising therefrom where such costs charges and expenses are incurred by (GAC) or by (Dyno) with the written consent of (GAC)..." 33 There being no limit on the indemnity as to costs under the GAC policy, Niugini Insurance seeks contribution of half of its "liability for Dyno's assessed costs of defending its proceedings against PJV." 34 In my view Niugini Insurance is not entitled to such an order. The limit of liability under the GAC policy in respect of property claims was K 2,000,000. Having regard to that limit, in my view, it is inconceivable that GAC would have defended the PJV claim on behalf of Dyno, or consented to Dyno defending the claim, when the magnitude of the claim, the likely length and cost of litigation and the circumstances in which the PJV sustained that loss are taken into account. 35 Independently of that reasoning, I think the real reason for Dyno's defence of the PJV claim lay in Niugini Insurance's rejection of Dyno as an insured under the endorsed policy, its reliance on the due care clause if Dyno was found to be insured under the endorsed policy and in its bringing of the subrogation claim against Dyno. There was a form of due care clause in the GAC policy. There was no suggestion that that clause was invoked by GAC in denial of liability under the GAC policy. I have no doubt that the combination of Niugini Insurance's denial of Dyno as an insured under the endorsed policy: of its bringing of the subrogation claim and of its assertion of breach of the due care clause was the raison d'etre of the defence by Dyno of the PJV claim and of its denial of negligence. 36 In my view, any liability of GAC for costs of defending the PJV claim would be nominal and any attempted quantification arbitrary. For those reasons GAC's liability in contribution should not include a factor for Niugini Insurance's liability in respect of Dyno's costs in defending the PJV claim. 37 The orders sought by Niugini Insurance in the sum of AUS$1,420,755 is at odds with the agreement with Vesta and GAC upon the correct method of calculating contribution reached in submissions presented prior to publishing the principal reasons and as noted in paragraph 495 of those reasons. 38 In its latest submissions delivered on 16 February 2000, Niugini Insurance contended that contribution should be calculated by one of the alternative methods of applying the "Independent Actual Liabilities" test as favoured respectively by the English Court of Appeal in Commercial Union Assurance Company v Hayden [1977] QB 804 at 816 and 822, and by this Court in Government Insurance Office of NSW v Crowley [1975] 2 NSWLR 78 at 84. 39 However, I see no reason, nor do I think one has been offered, why the agreement reached between the parties should not be adhered to; particularly so where that agreement has not been shown to operate unfairly to Niugini Insurance. 40 In its most recent submissions of 16 February 2000 the only reference, an oblique one, to the agreement reached with GAC and Vesta and to a possible departure from it is contained in the following submissions on behalf of Niugini Insurance:

"The damages to which the contribution applies are of diverse types. NIC submits that GAC's contribution should be calculated at 1 September 1994, the same date as the commencement of interest. NIC's primary claim is for the damages to be borne equally up to the limit of GAC's policy, and indemnified costs to be borne equally with no limit. Interest would apply at the same rate as that awarded to PJV. This approach does not accord with the decision of Helsham J in Crowley's case, but has some support in the authorities. Alternatively, NIC seeks a rateable contribution in accordance with Crowley's case. ... The above submissions are based on the application of the "independent actual liabilities" test, as applied by the English Court of Appeal in Commercial Union Assurance Co Ltd v Hayden [1977] QB 804, which found favour with the Australian Law Reform Commission (ALRC, Report No. 20 "Insurance Contracts" (1982), pp 180-181, pars 293-294). This test appears to be accepted by GAC. See also Sutton, Law of Insurance (3rd ed), at pp. 998-9. A different version of the test was adopted by Helsham J in GIO (NSW) v Crowley (supra). This method would lead to a result more favourable to NIC.

After considering the two approaches (at 84), Helsham J rejected the equal apportionment approach and instead adopted a rateable apportionment approach on the ground that it was more equitable in the context of the case. The total of each parties' independent liability to the insured (inclusive of insured's costs) was ascertained, and contribution for damages and costs was then apportioned in the same ratio as the actual liabilities bore to each other." 41 The agreed method of calculating contributions was "to examine the amount for which more than one insurer (was) liable and then apportion that equally, (so that if Niugini Insurance) GAC and Vesta (were) held liable, then up to $2 million Kina, the three insurers should contribute equally." 42 The basis for that agreement was identified as the approach "described in McGillivray (9th edn) at paragraph 23-49 based on Commercial Union Assurance Co v Hayden and as described in paragraph 27-140 of CCH Aust and NZ Insurance Reporter." 43 On the agreed method of calculating contribution, GAC's liability is Kina 1,000,000. 44 As to (B): Niugini Insurance seeks judgment in Australian currency. An alternative claim of judgment in United States dollars has no merit and I do not understand that claim to be pressed. GAC accepts that Niugini Insurance is entitled to judgment in Australian currency, as the domestic currency, but contends that there is no warrant for applying a rate of conversion from Kina to Australian dollars at any other rate than that applying at date of judgment. Niugini Insurance relies on its "traditional right to such judgment in the domestic currency" contending that "judgment calculated in a foreign currency will only be awarded where the plaintiff seeks it". 45 In seeking judgment in the sum of A$1,420,755, Niugini Insurance has applied the conversion rate applicable at 1 September 1994. There is some superficial attraction in that approach since 1 September 1994 is the date from which Niugini Insurance is obliged to pay interest on its liability to Dyno in accordance with paragraph 445 of the principal reasons. However, in my view, the applicable rate is that prevailing on 21 March 1997, the date of demand made upon GAC in the form of the fourth cross-claim. GAC has relied on the absence of evidence of any earlier demand having been made against it under the GAC policy by Dyno or Niugini Insurance. The application of the rate of conversion applicable at the date of Niugini Insurance's demand has the added attraction of avoiding the substance of the deterioration in the value of the Kina against the Australian dollar since 21 March 1997 and will better match the correlative obligation of Niugini Insurance to contribute, I think, in conformity with the principle of contribution as the nature of the doctrine was expressed by Kitto J in Albion Insurance Co Ltd v Government Insurance Office of NSW (1969) 121 CLR 342 at 350-351. 46 The ruling rate of conversion at 21 March 1997 was 1:.920, so that the amount of contribution for which GAC is liable is A$920,000 (see affidavit of Mark Camac Sheller sworn 16 February 2000). 47 As to (C): For the same reasons, I consider 21 March 1997 is the appropriate date from which interest should be calculated at schedule J rates as published under Pt 40, rule 7(2) of the Supreme Court Rules pursuant to section 94 of the Supreme Court Act 1970. 48 Niugini Insurance has submitted that interest should run from 1 September 1994, consistently with its obligation to pay interest in accordance with the principal reasons. In my view, the reasoning behind that finding has little or no application to the consideration of GAC's liability in respect of interest. 49 It does not follow, as GAC contends, that no interest should be allowed under section 94 on the reasoning that Niugini Insurance is not out of pocket in respect of its liability to Dyno under the endorsed policy. I think that submission overlooks the fact that Niugini Insurance has suffered the imposition of interest on the amount of its liability to Dyno by reason of its failure to meet that liability in due time. 50 The interest calculated from 21 March 1997 to and including 1 March 2000 upon the sum of A$920,000 amounts to A$266,623. 51 Accordingly, I give orders and make declarations as follows:

ORDER 1. Judgment for the plaintiffs against the first defendant in the sum of US$9,251,785.

2. Summons against the second defendant be dismissed.

3. Judgment in the second cross-claim for the cross-claimant against the cross-defendant in the sum of US$9,747,755.

4. Judgment in the fourth cross-claim for the cross-claimant against the cross-defendant in the sum of A$1,186,623.

The first, third and fifth cross-claims be dismissed.

The second defendant pay the costs of the plaintiffs and of the first defendant of and incidental to the proceedings on an indemnity basis, including their costs of the first, second and fifth cross-claims.

The cross-claimant in the third cross-claim pay the cross-defendant's costs of the third cross-claim.

The cross-defendant in the fourth cross-claim pay the cross-claimant's costs for the fourth cross-claim.

I make no further orders to costs. The judgment sums in orders 1 and 3, other than the interest component, are calculated in accordance with my reasons for judgment and as agreed by the parties affected by these orders. The order for costs in order 6 is in terms as agreed by the plaintiffs and the first and second defendants. DECLARE that: 9. The cross-claimant to the second cross-claim is an insured under the endorsed policy number 5EA00307 as endorsed at 16 November 1992 and 8 June 1994.

10. The cross-claimant to the second cross-claim is entitled to be indemnified by the cross-defendant to the second cross-claim against any claims made against it arising out of the explosion occurring at the plaintiffs' Porgera site on 2 August 1994 (other than liability for death, illness, disease or bodily injury sustained by any employee of the cross-claimant to the second cross-claim), including in respect of any liability (including costs and expenses on an indemnity basis) it is held to have to Rodney Campbell Dugmore in relation to proceedings commenced in the Queensland Supreme Court, Cairns Registry, being proceedings numbered 52 of 1997.

11. The cross-claimant to the second cross-claim is entitled to be indemnified by the cross-defendant to the second cross-claim in respect of its costs and expenses incurred in connection with the following proceedings on an indemnity basis.

(a) Enquiry by the Deputy Chief Inspector of Mines pursuant to the Mining (Safety) Act Papua New Guinea

(b) Appeal against the findings of the Deputy Chief Inspector of Mines pursuant to section 6(3) of the Mining (Safety) Act Papua New Guinea

(c) Proceedings O.S. 49 of 1995 in the National Court of Justice (Papua New Guinea).

(d) Proceedings O.S. 322 of 1995 in the National Court of Justice (Papua New Guinea).

(e) Proceedings O.S. 1 of 1995 in the National Court of Justice (Papua New Guinea). The terms of these declarations are in accordance with my reasons for judgment or as agreed by the first and second defendants.

Last Modified: 09/25/2000 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.