Position of a Cross-Defendant
96 What, then, is the position of a cross-defendant who denies liability but is forced, in consequence of an apportionment determination, to pay the sum assessed and seeks a refund of the contribution overpaid? Division 5 does not directly address this question. However, in Wallaby Grip, Handley AJA considered (at 338-339 [40]) that the cross-defendant would have a remedy in restitution for having discharged, by compulsion of law, an obligation for which the defendants on the record were liable. His Honour thought that the remedy could be pursued by a claim or cross-claim in the Tribunal, but that the cross-defendant would bear the onus of proving that the defendants should bear a greater share of responsibility than that determined by the Contributions Assessor.
97 I respectfully agree that the cross-defendant has a remedy, but not that it can pursue the remedy only on the basis that it bears the onus of proving that the defendants' share should be greater than that assessed by the Contributions Assessor. If I have construed cll 42 and 44 correctly, Div 5 of Part 4 of the DDT Regulation 2001 is not intended to alter the principles governing contributions among defendants and cross-defendants in asbestos-related claims. Division 5 is intended only to establish a rough and ready procedure for determining contributions solely for the purposes identified in cl 44(1): that is, the settlement or determination of the plaintiff's claim. The object is to ensure that the resolution of the claim of a plaintiff, who is often gravely ill, is not delayed by contribution disputes.
98 The entitlement of the defendant/cross-claimant to recover the contribution assessed by the apportionment determination, even after settlement or determination of the plaintiff's claim (as Wallaby Grip decides), is intended to achieve the same purposes. A defendant can contribute to the plaintiff's settlement in the knowledge that it is entitled to obtain an order for payment of the cross-defendant's assessed share of the settlement. However, this is an interim or provisional resolution of the apportionment issue, which will become lasting only if the parties accept it as such.
99 In my opinion, Div 5 is not intended to give the defendant/cross-claimant a forensic advantage by allowing it to obtain an order on the basis of the apportionment determination, discontinue the cross-claim and force the cross-defendant to bear the burden of displacing the Contribution Assessor's determination. If the defendant/cross-claimant pursues the cross-claim to finality, but fails to establish that the cross-defendant is liable to contribute to the plaintiff's damages, the basis of the defendant/cross-claimant's entitlement to retain the moneys paid by the cross-defendant on a provisional basis is removed. The foundation of the defendant/cross-claimant's entitlement to retain those moneys beyond the limited purpose specified in cl 44(2) rests on the merits of its cross-claim against the cross-defendant. If that cross-claim is dismissed, the Tribunal has determined that the cross-claim is without merit and that the defendant/cross-claimant is not entitled to any contribution from the cross-defendant.
100 In these circumstances, the Tribunal, having disposed of the cross-claim on the merits, can give effect to the cross-defendant's entitlement to be repaid the moneys paid by it under compulsion of law. Sections 10(1), (2) and 11(1A) of the DDT Act confer jurisdiction on the Tribunal to hear and determine proceedings by a tortfeasor liable in respect of damages to a person suffering from a dust related condition, seeking contribution from another tortfeasor. In addition, the Tribunal has jurisdiction under s 11(4) to determine any matter that is ancillary or related to a matter that is the subject of proceedings brought under s 11(1A). This jurisdiction includes claims founded on restitution and certain non-statutory claims for contribution: see Wallaby Grip, at 338 [40]; CSR Ltd v Amaca Pty Ltd [2007] NSWCA 107, at [19]-[20], per Young CJ in Eq (with whom Hodgson JA agreed), cf Mason P, at [1]. The jurisdiction of the Tribunal in matters within s 11(4) of the DDT Act appears not to be exclusive (Amaca Pty Ltd v CSR Ltd [2001] NSWSC 263; 51 NSWLR 476 (Bergin J)), but nothing turns on this for present purposes. Section 22(1) of the CP Act provides that the court (including the Tribunal) may grant to a defendant (including a cross-defendant) such relief against another person (including the cross-claimant) as the Tribunal can grant in separate proceedings. Section 90(1) of the CP Act, as I have noted, permits the Tribunal to make such order as the nature of the case requires.
101 If a defendant/cross-claimant, having obtained an order for payment of money in reliance on an apportionment determination, seeks to discontinue or otherwise terminate the cross-claim without any intention to pursue it further, the position is essentially the same. A defendant/cross-claimant who seeks to discontinue the cross-claim or does not wish to proceed to a hearing on the merits, does not intend to establish its entitlement to retain the moneys paid to it under compulsion of law. In such circumstances, the Tribunal has the power to ensure that the defendant/cross-claimant does not retain the moneys previously paid to it by the cross-defendant. Thus there is ample authority for the proposition that the Tribunal's broad discretion to grant (or withhold) leave to a cross-claimant to discontinue the proceedings (UCPR, Pt 12 r 12.1) can be exercised in a manner that avoids injustice to the cross-defendant: SCI Operations Pty Ltd v Trade Practices Commission [1984] FCA 52; 2 FCR 113, at 142-143, per Sweeney J; at 161-162, per Lockhart J; at 184-185, per Sheppard J; Trade Practices Commission v Manfal Pty Ltd (No 3) [1991] FCA 650; 33 FCR 382 (Lee J). That power can be exercised so as to grant leave to the defendant to discontinue its cross-claim, but on condition that it repays the moneys to the cross-defendant. In the present case, had the respondents sought leave to discontinue their claims (as they foreshadowed in their motions of 7 November 2008), the Tribunal may well have decided to grant leave, but on condition that the respondents refund to the cross-defendant the amount paid by it pursuant to the Determination.
102 If a defendant/cross-claimant, having obtained an order against the cross-defendant enforcing the apportionment determination, shows no inclination to proceed with its cross-claim, there may be a question as to whether the Tribunal can force the defendant, against its will, to pursue its cross-claim to a hearing on the merits. But the Tribunal has ample powers under the CP Act to ensure that the cross-claim is finalised one way or another. Moreover, this can be done without undue delay and without prejudicing the position of a cross-defendant who denies the entitlement of the defendant/cross-claimant to retain the moneys paid to it: see CP Act, ss 56(1), (2), (3), 57(1), (2), 59, 61; UCPR Pt 2 r 2.1 (power to give directions), Pt 12, r 12.7 (want of prosecution).
103 It must be remembered that the respondents were only able to utilise the CRP provided for in the DDT Regulation 2001 because they filed cross-claims against the appellant. There is in my opinion nothing surprising in the Tribunal being able to resolve all claims between the respondents and the appellant in the course of determining the cross-claim.