(Re: Keith A Stephen) Cockatoo Dockyard Pty Ltd v Commonwealth of Australia

[2006] NSWDDT 10

Dust Diseases Tribunal

of New South Wales

CITATION:	(Re Keith A Stephen) Cockatoo Dockyard Pty Ltd v Commonwealth of Australia [2006] NSWDDT 10
PARTIES:	(Re: Keith A Stephen) Cockatoo Dockyard Pty Ltd Commonwealth of Australia
MATTER NUMBER(S):	DDT200 of 1993/2
JUDGMENT OF:	Duck J
CATCHWORDS:	Miscellaneous Matters :- Stay application - application to try separately one defence raised by the cross defendant's defence. Circularity of llitigation.
DATES OF HEARING:	28 April 2006
DATE OF JUDGMENT:	04/28/2006
LEGAL REPRESENTATIVES:	Mr R J Ellicott, QC instructed by Allens Arthur Robinson appeared for the Cross Claimant. Mr P T Taylor, SC instructed by Australian Government Solicitor appeared for the Cross Defendant.

JUDGMENT:

4

Dust Diseases Tribunal of New South Wales

Matter Number DDT200 of 1993/2

(Re: Keith A Stephen) C.C.: Cockatoo Dockyard Pty Ltd

v

C.D. Commonwealth of Australia

28 April 2006

RULING

DUCK J

1. The Tribunal has before it competing applications by the Commonwealth and Cockatoo Dockyard Pty Ltd hereinafter referred to as Codock. Codock by a motion filed on 4 April 2006 seeks in effect a stay of proceedings in respect of cross-claims outstanding between the parties. The application is drawn more particularly than that but that is the thrust of it. The Commonwealth seeks in its motion filed on 24 April 2006 to have the matters raised in par 8 of its defence to a cross-claim made by Codock against it in the matter of Stephen determined separately and in advance of other matters raised by the pleadings. To understand what that means it is necessary to go to the defence to see what par 8 says. It is pleaded in these terms:

In further answer to the whole of the cross-claim the Commonwealth says:

(a) On or about 29 March 1999 the Commonwealth and Codock executed terms of settlement in these proceedings which provided inter alia:

(i) Verdict and judgment for the plaintiff as against Codock in the sum of $28,380 inclusive of his costs;

(ii) Verdict and judgment for the plaintiff as against the Commonwealth in the sum of $33,333 inclusive of his costs.

(b) On or about 29 March 1999 judgment was entered in these proceedings in terms inter alia:

(i) Codock to pay the plaintiff the sum of $28,380 inclusive of costs.

(ii) The Commonwealth to pay the plaintiff the sum of $33,333 inclusive of costs.

(c) The Commonwealth is therefore not liable in respect of the same damage for which Codock has been held liable, within the meaning of s 5 (1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 ('the provision').

(d) Codock is therefore not entitled to contribution from the Commonwealth pursuant to the provision.

2. Dealing with that matter firstly, it is submitted by Mr Taylor, learned senior counsel for the Commonwealth, that the defence raises a discrete issue which may be simply determined in the course of a couple of hours, and its determination will affect the outcome in 17 or 18 of the cross-claims on foot between the parties.

3. Mr Ellicott, learned senior counsel for Codock, replies to that submission by saying that his client will need to plead further but that there is no quick fix available in respect of the point which the Commonwealth wishes to litigate. He says that it will be necessary to protect his client's interests to plead in respect of that defence a reply, raising matters the subject of the reimbursement dispute in the Supreme Court between the parties, so that it may not be said against them later that they have failed to raise in proceedings a point which they should have raised and which was available to them, [Anshun estoppel].

4. Further, there is a point as to whether an estoppel arises as a result of the footing upon which the solicitors for the parties conducted their negotiations in these claims. Mr Taylor says, well, that is all very well but no pleading has now been put on, and the time for pleadings has closed. Nonetheless, if learned senior counsel of immense experience says to the Court that his client wishes to raise these matters then that assertion must be taken seriously. It throws up the outcome, I think, that it is far from certain that a quick early determination of the point arising from par 8 of the defence will in fact transpire.

5. The submissions have been dealt with in the way that they have in a sense as though they stood alone but in fact the parties have been litigating and arbitrating about matters such as these for years.

6. It may be fairly observed that Codock's cross-claim in the matter of Stephen was filed on 12 July 1996. The Commonwealth filed a cross-claim, not against Codock but rather against Sydney Electricity, on 22 February 1999. I am told that there have been arbitration proceedings about the parties’ contractual arrangements which lasted for 170 plus days. Now presently on foot are proceedings in the Court of Appeal consequent upon a judgment of McDougall J in the Supreme Court relating to the contractual affairs of the parties. It is thought that the Court of Appeal hearing will take place during June of this year. Mr Taylor submits that it cannot be hoped that the Court of Appeal judgment will provide a simple answer to the contractual problems which have been thrown up and the likelihood is that the matter will go back to a trial judge for further disposition. Nonetheless the Court will have spoken on where the parties stand in relation to one another contractually. That has at least this significance for the proceedings in the Tribunal, namely, it is submitted by Mr Ellicott that the position may well be reached in which whatever the Tribunal decides will become irrelevant in that moneys ordered to be paid will simply be adjusted pursuant to the contractual arrangements between the parties as ruled on by the Supreme Court and the Court of Appeal. I must say that one would think that there is a substantial likelihood that that is so.

7. By way of summary the following points were advanced as to why there is no point in forcing on proceedings in the Tribunal at this stage having regard to the other litigation on foot. Firstly, the reimbursement proceedings are close to final determination.

8. Secondly, if Codock succeeds the cross-claims will no longer be necessary.

9. Thirdly, if Codock fails or substantially fails the Tribunal can then direct how these matters should proceed, including consolidating the cases if that is thought to be desirable.

10. The fourth point I mention, although I am not clear as to the proper way to regard what has been said. For Codock it is submitted that the parties always had an intention that the Tribunal proceedings would await the outcome of what happened in the Supreme Court. Mr Taylor does not concede that that is the correct, or the fully correct, picture and points out that since Judge O'Meally in the discharge of his duties stirred up the parties by asking what was happening in respect of the proceedings the Commonwealth has sought to be active and pursue its rights in them. Nonetheless it is clear that at least from Codock's point of view they have understood the Tribunal proceedings could await the determination of the Supreme Court about the contractual issues, and that what it now seeks, that is a stay order, is really only confirming in formal terms what they understood to be the position in any event. There is room to think that both sides are right as far as it goes.

11. Fifthly, it is submitted, and I think accepted, that the contractual matters are better determined not here but in the Commercial Division of the Supreme Court.

12. Sixthly, if in fact it is necessary to deal with estoppel issues then this Court is not the preferred Court but the Supreme Court is.

13. There was a further general point raised which emerges from the matters about which I have attempted to speak, and that is that it is submitted, and I accept, that determining the matters raised by the cross-claims to completion here in light of the other litigation that is pending is likely to produce a circularity of litigation which is wasteful and against the public interest.

14. It would be childlike to think that the pronouncement of the Court of Appeal is going to provide a simple outcome for the parties but balancing the interests of the parties as best I can, I think it preferable to wait to see what the Court of Appeal says before attempting to dispose of matters in the Tribunal.

15. That being so I think it proper to make the orders sought in the notice of motion filed by Codock on 4 April 2006 at par 2(a)(2), that is that the cross-claims listed in the schedule marked C be stayed pending the determination of proceedings in the New South Wales Supreme Court in proceedings number 50165 of 2001. To so order implies no criticism of the Commonwealth. Indeed, the parties have expressly approached today's hearing eschewing any chance to strike at the opponent and criticise their conduct, for which I am grateful.

16. The orders sought by the Commonwealth in its motion filed on 24 April 2006 ought not be made. I dismiss that motion.

17. I order the Commonwealth to pay Codock's costs. It will be for others to assess the costs.

Mr R J Ellicott QC instructed by Allens Arthur Robinson appeared for the Cross-Claimant

Mr P T Taylor SC instructed by Australian Government Solicitor appeared for the Cross-Defendant