WALLABY GRIP (BAE) PTY LTD (IN LIQ) v ERARING ENERGY

HELD: per Mason P (Sheller and Ipp JJA agreeing) upholding the appeal:

1. Section12A of the DDT Act applies only to victims, ie persons entitled to commence proceedings that may be brought before the Tribunal.

2. Section 26 of the Limitation Act applies to cross-claims for statutory contribution in the Tribunal or elsewhere.

ORDERS:

1. Grant leave to appeal
2. Appeal Upheld
3. Set aside orders made by Judge Walker on 18 March 2004. In lieu thereof, order that the cross-claim filed by Eraring Energy against Wallaby Grip (BAE) Pty Ltd on 22 December 2003 be dismissed with costs.
4. Respondent to pay appellant's costs in the Court of Appeal and to have a certificate under the Suitors' Fund Act 1951 if qualified.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40285/04

MASON P SHELLER JA IPP JA

Thursday 12 August 2004 WALLABY GRIP (BAE) PTY LTD (In liquidation) v ERARING ENERGY (formerly sued as PACIFIC POWER) JUDGMENT

1 MASON P: This application raises a matter of general importance that has arisen in the Dust Diseases Tribunal. The Court heard full argument as on an appeal. Leave to appeal should be granted. 2 In May 2000 Mr James (the plaintiff) sued his former employer Eraring Energy (previously known as Pacific Power). He claimed damages for asbestosis and asbestos-related pleural disease. These proceedings were within the exclusive jurisdiction of the Tribunal (see Dust Diseases Tribunal Act 1989 (the DDT Act), s11(1)). 3 The plaintiff's claim was settled by a consent judgment for $102,500 inclusive of costs entered on 6 November 2000. 4 On 4 December 2000 the employer filed a cross-claim in the Tribunal against four cross-defendants, Babcock International Ltd, Babcock Australia Ltd, Amaca Pty Limited (formerly James Hardie & Coy Pty Ltd) and Wallaby Grip Ltd. Leave to file this cross-claim had been granted on 6 November 2000. 5 On 22 December 2003 the employer (by further leave granted on 22 September 2003) filed an amended cross-claim joining the appellant, Wallaby Grip (BAE) Pty Ltd (In liq) as a fifth cross-defendant. 6 The respondent sought contribution pursuant to s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (hereafter "statutory contribution") against the named cross-defendants. 7 The appellant filed a motion in the Tribunal to strike out the cross-claim against it, upon the ground that the amended cross-claim was statute-barred by operation of s26 of the Limitation Act 1969. That section provides:

26 Contribution between tort-feasors (1) An action on a cause of action for contribution under subsection (1) of section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 is not maintainable if brought after the first to expire of: (a) a limitation period of two years running from the date on which the cause of action for contribution first accrues to the plaintiff or to a person through whom the plaintiff claims, and (b) a limitation period of four years running from the date of the expiration of the limitation period for the principal cause of action.

(2) For the purposes of paragraph (a) of subsection (1), the date on which a cause of action for contribution first accrues is: (a) if the plaintiff in the action for contribution or a person through whom the plaintiff claims is liable in respect of the damage for which contribution is claimed by judgment in a civil action or by arbitral award - the date on which the judgment is given or the award is made, whether or not, in the case of a judgment, the judgment is afterwards varied as to quantum of damages, or (b) if, in a case to which paragraph (a) does not apply, the plaintiff in the action for contribution or a person through whom the plaintiff claims makes an agreement with a person having a cause of action for the damage for which the cause of action for contribution arises, which agreement fixes, as between the parties to the agreement, the amount of the liability in respect of that damage of the plaintiff in the action for contribution or a person through whom the plaintiff claims - the date on which the agreement is made. (3) In paragraph (b) of subsection (1), the expression the limitation period for the principal cause of action means the limitation period fixed by or under this Act or by or under any other enactment (including an enactment repealed or omitted by this Act) for the cause of action for the liability in respect of which contribution is sought. (4) Nothing in this section affects the construction of section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 . 8 If applicable, s26(1)(a) of the Limitation Act barred the amended cross-claim, because it was filed more than two years after the date on which the respondent's cause of action for contribution first accrued, ie when judgment was entered against it (see Limitation Act, s26(2)(a)). 9 The employer did not seek to justify amendment to its cross-claim by reference to Pt 20 r4 of the Supreme Court Rules (which rule applies in the Tribunal: see Dust Diseases Tribunal Rules, r2). (I am not implying that this option was open - the question was not explored.) Rather, the employer contended that s12A of the DDT Act had displaced s26 of the Limitation Act. 10 Section 12A of the DDT Act provides: 12A No limitation period (1) The purpose of this section is to enable proceedings to be brought before the Tribunal in relation to dust-related conditions at any time. (2) Nothing in the Limitation Act 1969 or any other statute of limitations operates to prevent the bringing or maintenance of proceedings before the Tribunal in relation to dust-related conditions. (3) Without limiting subsection (2): (a) sections 14, 18A, 60C and 60G of, Division 6 of Part 2 of, and Schedule 5 to, the Limitation Act 1969 do not prevent the bringing or maintenance of any such proceedings before the Tribunal, and (b) any such proceedings may be brought or maintained before the Tribunal even though a limitation period has already expired under that Act, and (c) any such proceedings may be brought or maintained before the Tribunal as if Division 1 of Part 4 of that Act had never been in force. 11 Schedule 3 to the DDT Act contains the savings and transitional provisions referable to the enactment that introduced s12A. Clause 7 of that Schedule provides: No limitation period (1) Section 12A, which was inserted by the amending Act, applies in relation to causes of action arising before or after the commencement of that section, and extends to proceedings pending at that commencement. (2) However, section 12A does not apply in relation to a cause of action to the extent that proceedings on the cause of action have been determined before the commencement of that section. 12 Judge Walker dismissed the appellant's motion on the basis that: … s12A(2) of the Dust Diseases Tribunal Act overrides the provisions of s26 of the Limitation Act and there is no limitation period applicable to the issue of cross claims other than that imposed by the Supreme Court Rules. 13 His Honour's reference to "the Supreme Court Rules" was explained earlier in the judgment: I take the view that unfairness is not, in itself, sufficient reason to justify a court rejecting the ordinary sense of the words in s12A; a section enacted to give special treatment to a class of litigants. In any event I see no unfairness because the Supreme Court rules apply a time limit after judgement for a cross-claim to issue subject only to the court's discretion to allow cross claims to be filed out of time. That judicial discretion protects the cross defendant from unfairness. 14 Any cross-claim was required to be filed by the respondent within the time limit for filing its defence (Supreme Court Rules Pt 6 r10). But this time could be extended when appropriate to avoid injustice (Supreme Court Rules Pt 2 r3, Seltsam Pty Ltd & Anor v Energy Australia & Ors: Re Banham (1999) 17 NSWCCR 720).

Matters of common ground 15 The Tribunal had exclusive jurisdiction to hear and determine the plaintiff's claim for damages by reason of ss10(1) and 11 of the DDT Act which provide: 10. Jurisdiction and functions of the Tribunal (1) The Tribunal has, except as provided by sections 29 and 32, exclusive jurisdiction to hear and determine proceedings referred to in sections 11 and 12.

11 Claims for damages for dust diseases etc to be brought under this Act

(1) If: (a) a person is suffering, or has suffered, from a dust-related condition or a person who has died was, immediately before death, suffering from a dust-related condition, and (b) it is alleged that the dust-related condition was attributable or partly attributable to a breach of a duty owed to the person by another person, and (c) the person who is or was suffering from the dust-related condition or a person claiming through that person would, but for this Act, have been entitled to bring an action for the recovery of damages in respect of that dust-related condition or death, proceedings for damages in respect of that dust-related condition or death may be brought before the Tribunal and may not be brought or entertained before any other court or tribunal. (2) In subsection (1), a reference to a duty includes reference to a duty imposed by statute as well as a duty imposed under the common law. (3) If the cause of action giving rise to proceedings to be brought under subsection (1) also gives rise to a claim in respect of some other matter, the claim may be included in those proceedings even though it does not relate to a dust-related condition from which a person is suffering or has suffered. (4) Any matter that is ancillary or related to a matter that is the subject of proceedings to be brought under subsection (1) may also be included in those proceedings. (5) In subsection (1) (c), the reference to a person claiming through a person who is or was suffering from a dust-related condition includes a reference to a relative for whose benefit an action may be brought under the Compensation to Relatives Act 1897 .

Claims within s11(1) by persons afflicted with a dust-related condition or (in case of death) by their dependents are hereafter referred to as claims by victims. 16 The jurisdiction of the Tribunal to grant the respondent leave to bring a statutory contribution cross-claim was not put in dispute. A defendant's claim for statutory contribution falls squarely within the concept of an ancillary or related matter that "may also be included in" the victim's proceedings for damages that lie within the exclusive jurisdiction of the Tribunal (see DDT Act s11(4). See also s10(2), Seltsam at 726-7 and Amaca Pty Ltd (formerly known as James Hardie & Coy Pty Ltd) v CSR Ltd (2001) 51 NSWLR 476)). 17 No point was taken in the instant proceedings as to the jurisdiction or power of the Tribunal to give leave to file a cross-claim against a person such as the appellant that was not a party or intended party on the date on which judgment was entered in the victim's favour (contrast the facts in Seltsam at 723[7], 741-2[58]. Cf Crayford Freight Services Ltd v Coral Seatel Navigation Co (1998) 82 FCR 328 at 335D-E). 18 It is common ground that s12A of the DDT Act removed any limitation problem from the plaintiff's shoulders. 19 As regards the respondent's contribution claims in the Tribunal, s12A also took s26(1)(b) of the Limitation Act out of the equation, because s12A meant that there was no longer any "date of the expiration of the limitation period" for the principal cause of action that the plaintiff had against the respondent (see also Workers' Compensation Board of Queensland v Seltsam Pty Ltd [1999] 2 Qd R 679).

The competing arguments 20 The appellant submits that s26 of the Limitation Act barred the cross-claim for statutory contribution first brought against it in December 2003. It invokes s26(1)(a) according to its terms. It further contends that s12A of the DDT Act has no application to the respondent's cause of action for contribution under s5(1) of the Law Reform (Miscellaneous Provisions) Act 1946 because:

(a) a reading of ss10, 11 and 12 of the DDT Act , together with s12A, makes it plain that the abolition of the limitation period in the Tribunal only applied in relation to proceedings brought by a person falling within s11(1) of the DDT Act (ie a victim);

(b) the absence of reference to s26 of the Limitation Act in s12A(3)(a) is further indication that the abolition of the limitation period only operated in relation to primary proceedings for damages brought by victims of a dust-related condition;

(c) the Minister's second reading speech further indicates that s12A was concerned only with the position of victims whose claims for damages in the Tribunal might otherwise be statute-barred. 21 The respondent supports the reasoning of the primary judge. In its submission, a cross-claim for statutory contribution is itself "proceedings … in relation to dust-related conditions" within s12A(2) of the DDT Act. The respondent points to the generality of the language of s12A(2) and the opening words of s12A(3). Section 12A(2) refers to the bringing or maintenance of "proceedings". This word is used throughout the Act in circumstances that clearly include ancillary or related matters such as a cross-claim for statutory contribution (see eg ss13 ("proceedings in open court"), 15 (pre-trial interest may be awarded "in any proceedings before the Tribunal"), 20 (subpoenas may issue at the request of "a party to proceedings before the Tribunal"). See also the references to "proceedings before the Tribunal" in ss15, 19, 20, 23, 25, 25A, 25B, 29, 30 and 31. The respondent contrasts the language of s12A(2) and these general sections with the reference in s12 to "proceedings of the kind referred to in section 11(1)".

Analysis 22 Sections 12A, 12B, 12C and 12D were inserted into the DDT Act by the Workers Compensation Legislation Amendment (Dust Diseases and other matters) Act 1998. 23 The mischief to which the provision is addressed was identified in the second reading speech of the Attorney General, the Hon JW Shaw QC as follows (NSW Legislative Council, Hansard 17 November 1998, p9974): Another important proposal in the bill relates to the time allowed for bringing of common law claims for dust diseases. The existing provisions of the Limitation Act, which lay down a basic three-year limit for claims that runs from time of injury, do not easily fit the reality of gradual-onset dust diseases. Cases of dust disease may have a latency period of 30 years or more. The current Act allows discretion to extend the three-year and related time limit provisions based on factors such as the claimants having been unaware of the disease or its cause or extent. However, application of such provisions takes time and involves additional expense for claimants who may have a short life expectancy. In recognition of the particular circumstances applicable to dust diseases, it is proposed to minimise such technical legal hurdles by providing that those current provisions do not apply in these cases. In consultation some organisations have raised a concern that changes, such as that proposed to limitation provisions, could increase the case load of the Dust Diseases Tribunal by encouraging forum shopping from interstate or overseas. That concern is proposed to be addressed more widely in other legislation taking account of comments by the Chief Justice and the President of the Court of Appeal in the recent judgment in James Hardie v Grigor [(1998) 45 NSWLR 20] .

24 The entire focus of this and all other parts of the second reading speech was concern for the victim and avoidance of the toils and delays associated with contested proceedings to extend limitation provisions applicable to plaintiffs suing for damages. In making this observation, I do not overlook the respondent's submission about the need for caution against construing a Minister's speech as a direct aid to construction as distinct from indicating the mischief to which the legislation was directed (cf Brear v James Hardie & Coy Pty Ltd (2000) 50 NSWLR 388 at 397[39]). 25 This mischief and the narrower scope of s12A are signalled by s12A(1) which states: (1) The purpose of this section is to enable proceedings to be brought before the Tribunal in relation to dust-related conditions at any time. In my opinion, the only persons capable of bringing proceedings before the Tribunal in relation to dust-related conditions are persons elsewhere identified in the Act as entitled to institute proceedings "before the Tribunal" . This is a reference to persons entitled to commence proceedings that "may be brought before the Tribunal" pursuant to s11(1) or whose proceedings pending in the Supreme Court or the District Court at the commencement of s12 of the DDT Act were required to be transferred to the Tribunal pursuant to that section. These persons are "victims", as I have identified them. 26 Section 11(4) of the DDT Act provides: Any matter that is ancillary or related to a matter that is the subject of proceedings to be brought under subsection (1) may also be included in those proceedings.

This provision recognises that "ancillary or related matters" are part of proceedings falling within the jurisdiction of the Tribunal and subject to the powers and procedures of the Tribunal according to the general sections upon which the respondent relies. But, significantly for present purposes, s11(4) speaks of matters that are "ancillary or related to a matter that is the subject of proceedings to be brought under subsection (1)" . The subsection permits such ancillary or related matters to be "included in those proceedings" , but it does not treat them as the proceedings themselves or the basis for commencing the same in the Tribunal. 27 In Amaca Bergin J said (at 484-5): 30 Section 10(1) of the Act provides that the Tribunal has exclusive jurisdiction to hear and determine "proceedings referred to in sections 11 and 12". The only "proceedings referred to" in s11 are "proceedings for damages" in s11(1). The reference to "proceedings" in s11(3) and s11(4) are specifically references back to s11(1) proceedings. 31 "Matters" may be included in s 11(1) proceedings pursuant to ss11(3) & (4) however those matters are not labelled "proceedings" in s11. It seems to me that the legislature has carefully labelled them as a "claim in respect of some other matter" in s11(3) and a "matter that is ancillary or related" in s11(4). If it had been intended to include such "matters" in the exclusive jurisdiction of the Tribunal the legislative pen need only have inserted the word "proceedings" instead of "claim" in s11(3) and instead of "matter that" where first appearing in s11(4) of the Act. 32 The only "proceedings referred to" in s12 of the Act are " proceedings of the kind referred to in section 11(1)". The Registrar is required to transfer those "proceedings" to the Tribunal "together with any ancillary or related matters". It seems to me that the legislature was careful to separate these matters from the "proceedings" in this context. They are not referred to as "proceedings" even though it may well have been that such "matters" were already the subject of a cross claim in the Supreme Court. 33 Mr Taylor submitted that once the s11(4) matters are "included" in the s11(1) proceedings they become part of those proceedings over which the Tribunal has exclusive jurisdiction and thus the Tribunal has exclusive jurisdiction over these matters once included. Certainly Fitzgerald JA's observations in Seltsam [(1999) 17 NSWCCR 720 at 742] support this view however, although it may be concluded that reasonable minds might differ in respect of this matter, his Honour was not required in that case to focus upon the language of each of ss10,11 and 12 of the Act. 34 I am of the view that the reservation of ancillary and related matters from the label "proceedings" in ss11 and 12 is indicative of an intention that the exclusive jurisdiction of the Tribunal is limited to the proceedings for damages referred to in s11(1) of the Act. I am also of the view that exclusivity is not intended to be triggered by the inclusion of ancillary and related matters.

I agree. One corollary is that a cross-claim for statutory contribution could never be the trigger for "bringing before the Tribunal" proceedings of such nature as to attract its core exclusive jurisdiction under ss11(1) and 12. 28 The opening words of s12A(3) preclude the use of that subsection to limit the scope of subs(2). However, the entire subject matter of subs(3) (in each of its paragraphs) confirms s12A's focus upon the situation of victims concerned to invoke the jurisdiction of the Tribunal by bringing before the Tribunal claims for damages justiciable in accordance with ss11(1) or 12 of the DDT Act. Each of the provisions mentioned in s12A(3) apply and apply only to plaintiffs suing for damages (cf s14(2)(a)). 29 It follows that the "proceedings before the Tribunal" to which s12A(2) is addressed are the proceedings capable of being brought by victims. Subsection (2) does not address claims raising ancillary or related matters that are capable of being included in such proceedings in the Tribunal, but which cannot be made the trigger or basis for commencing such proceedings. 30 The respondent points to the generality of the language used in s12A(2). The Court was referred to authoritative dicta as to the broad scope of the words "in relation to" (Perlman v Perlman (1984) 155 CLR 474 at 484, O'Grady v Northern Queensland Co Ltd (1989) 169 CLR 356 at 365, 367, 374, 376). The respondent employer's cause of action for statutory contribution is undoubtedly one that relates to dust-related conditions in certain respects, but the passages cited emphasise the need to consider the issue in context. See also PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313-4, 330-1. 31 The textual and contextual material already discussed show why the words "proceedings…in relation to dust-related conditions" do not have the scope contended for by the respondent. 32 The difficult question of statutory interpretation thrown up by this case is not, in my view, assisted by reference to the duty of the Tribunal to avoid unfairness in the exercise of its discretion to permit the late filing of a cross-claim. That duty is an undoubted aspect of the judicial discretion conferred upon the Tribunal by the combined operation of s2 of the Dust Diseases Tribunal Rules and Pt 2 r3 of the Supreme Court Rules in its application to Pt 6 r10 thereof. But the matter at issue is the continued application of s26 of the Limitation Act. The rules of court relied upon would not have affected the application of s26 in the Tribunal before 1998, when s12A was inserted into the DDT Act. If s12A has the effect contended for by the respondent, then the Tribunal's sense of fairness will determine whether or not a stale cross-claim will be permitted (subject to the jurisdictional point adverted to in par 17 above). But it strikes me as highly unlikely that Parliament enacting s12A intended that this judicial discretion would become the control device that would apply in such circumstances. It would be most unlikely that generally expressed pre-existent rules of court would serve the function of winding back the possible excesses of s12A in its (unheralded) putative application to late cross-claims in the Tribunal. 33 It follows that the focus for guidance in resolving the present issue must remain the text and context of the provisions of the Limitation Act and the DDT Act. 34 In this context, it bears observation that the respondent's submission has the anomalous consequence that the availability or otherwise of a limitation defence in a claim for statutory contribution depends on the fortuity of the cross-claim being filed in the Tribunal. 35 One manner of looking at the respondent's submission is to view it as contending that s26 has been impliedly repealed as regards claims for statutory contribution brought in the Tribunal. On this basis, the respondent's case must address the principle that clearly apparent direct contrariety must be demonstrated before an implied repeal will be established (see Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 375 [67], Shergold v Tanner (2002) 209 CLR 126 at 136-7 [34]-[35], Brear at 396[31]). In my opinion, the language of s12A(2) of the DDT Act does not satisfy this mandate as regards s26. 36 Section 12A does not purport to repeal any provisions in the Limitation Act. Its central provision stipulates that "Nothing in the Limitation Act … operates to prevent the bringing or maintenance of proceedings" of a certain kind. This is the language used by Parliament to avoid implied repeal (cf Australian Oil Refining Pty Ltd v Cooper (1987) 11 NSWLR 277 at 279-80, Western Australia v The Commonwealth (1995) 183 CLR 373 at 453 fn (301). 37 Section 8(2) of that Limitation Act (which was inserted by the enactment that added s12A itself) stipulates that: This Act has effect subject to section 12A of the Dust Diseases Tribunal Act 1989 and clause 7 of Schedule 3 to that Act.

The language of this subsection does not support the respondent's case, because it suggests some continuing operation for the Limitation Act in relation to dust diseases. 38 I propose the following orders: 1. Grant leave to appeal.

3. Set aside orders made by Judge Walker on 18 March 2004. In lieu thereof, order that the cross-claim filed by Eraring Energy against Wallaby Grip (BAE) Pty Ltd on 22 December 2003 be dismissed with costs.

4. Respondent to pay appellant's costs in the Court of Appeal and to have a certificate under the Suitors' Fund Act 1951 if qualified. 39 SHELLER JA: I agree. 40 IPP JA: I agree. **********

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