(re Millard) Energy Australia and Anor v Power Technologies Pty Ltd

[2008] NSWDDT 11

Dust Diseases Tribunal

of New South Wales

CITATION:	(re Millard) Energy Australia and Anor v Power Technologies Pty Ltd [2008] NSWDDT 11
PARTIES:	Energy Australia (Cross-Claimant to the first Cross-Claim) Eraring Energy (Cross-Claimant to the second Cross-Claim)
MATTER NUMBER(S):	6124/2006/1; 6124/2006/2
JUDGMENT OF:	O'Meally P
CATCHWORDS:	DUST DISEASES TRIBUNAL :- cross claim - application to set down for hearing
LEGISLATION CITED:	Dust Diseases Tribunal Regulation 2007
DATES OF HEARING:	15 April 2008
DATE OF JUDGMENT:	15 April 2008
EX TEMPORE JUDGMENT DATE:	15 April 2008
LEGAL REPRESENTATIVES:	J C Sheller instructed by Goldrick Farrell Mullan appeared for the Cross-Claimants T M Rowles instructed by Carroll & O'Dea appeared for the Cross-Defendant

JUDGMENT:

RULING

O’MEALLY P

1. Yesterday these cross-claims were listed in the usual Monday interlocutory list to deal with a notice of motion filed on 13 March 2008. It is surprising that the matters were brought before the Court by way of notice of motion, but seemingly that was a result of agreement between the cross-claimants and the cross-defendant.

2. The circumstances of the cross-claims were adverted to in the decision in (Re Millard) Eraring Energy and Anor v Power Technologies [2007] NSW DDT 24. That was a notice of motion brought by the cross-claimants seeking orders pursuant to s 90 of the Civil Procedure Act 2005 that Power Technologies Pty Ltd (Power Technologies), the cross-defendant to each of the cross-claims, pay sums of money together with interest to the cross-claimants. The amounts of money were paid. They represented percentages assessed by a contributions assessor as contributions which should be made to a judgment obtained by the plaintiff. When it was indicated yesterday that cross-claims should be listed for hearing, Mr Sheller of counsel who appears for the cross-claimants, asked that reasons for that order be given. I was not in a position to deal with his request yesterday by reason of the state of the list, and the matter was stood over until today.

3. The Dust Diseases Tribunal Regulation 2007 (the Regulation) continues the claims resolution process established by the Dust Diseases Tribunal Regulation of 2001, which has been repealed. The Regulation has been the subject of consideration in the Court of Appeal in only one case, at least so far as I am aware (see QBE Insurance Australia Ltd v Wallaby Grip Ltd and Ors [2007] NSWCA 43). At the time the Court of Appeal heard argument the Regulation of 2001 was in force; at the time it gave judgment it had been repealed and the Regulation of 2007 was in force. Accordingly, references to clauses of the Regulation in the reasons of Handley AJA need to be understood in the light of the fact that the numbering of the clauses to which he referred has changed.

4. On 6 September 2007 the notice of motion by the cross-claimants seeking an order that amounts of money be paid by Power Technologies to it was heard. The cross-claimants were successful and pursuant to s 90 of the Civil Procedure Act Power Technologies was ordered to pay to Eraring Energy the sum of $5,512.50 and to Energy Australia the sum of $12,862.50 with interest in each case from 20 March 2007.

5. In QBE, the effect of a contributions assessment made under the Regulation was discussed. The relevant observations of Handley AJA are quoted in my reasons of 6 September 2007. I think it significant to observe that what the cross-claimants then sought was an order under s 90 of the Civil Procedure Act rather than the entry of judgment. In QBE at [36] Handley AJA said:

In my judgment the Tribunal is entitled and bound to give effect to such a determination by entering appropriate verdicts and judgments. Since the defendants have satisfied the consent judgment in favour of the plaintiff they would be entitled to judgments against each other and the cross-defendants for the contributions determined by the Assessor.

6. No judgment, however, was entered in favour of the cross-claimants and the cross-claimants eschewed the entry of judgment. The anomalous or apparently anomalous and peculiar consequence of some provisions of the Regulation, were referred to both in QBE and in my reasons 6 September last in this case. The cross-defendant, Power Technologies, wishes the cross-claim to be heard. In my view it should be heard and determined. Had the matter been listed before me to seek orders to prepare the case for hearing I would have made them without the necessity of a notice of motion; however, the notice of motion was filed, as noted, by an arrangement agreed between the parties.

7. In my view the cross-claim should now proceed in the ordinary way. Short minutes of order have been prepared and, in my view, it is appropriate that the orders be made.

8. It should also be noted that the form of the proposed orders is not opposed. The notice of motion filed does not accurately recite what is now sought, that is it seeks orders that the cross-claims be listed for hearing forthwith, but I think the appropriate course, subject to what might be said, is to dismiss the notice of motion and make the orders proposed in the draft short minutes which have been handed to me.

9. The notice of motion filed 13 March 2008 is dismissed. The cross-claimants will pay the cross-defendants costs of and incidental thereto as agreed or assessed.

10. I make orders 1 to 6 as in short minutes of order filed in court 15 April 2008.

11. For directions 15 September 2008 and to fix date for hearing.

Mr J C Sheller instructed by Goldrick Farrell Mullan appeared for the Cross-Claimants

Mr T M Rowles instructed by Carroll & O’Dea Appeared for the Third Cross-Defendant