James Hardy and Coy Pty Ltd v. Seltam Pty Ltd

159 ALR 268
[1998] HCA 78

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(Judgment by: Kirby J) Court:

Judges: Gaudron and Gummow JJ
McHugh J

Kirby JCallinan J

Judgment date: 21 December 1998

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Judgment by:
Kirby J

[46] In Bakker v Joppich , ^[F48] Wells J apologised for the "gallons of ink" which had been spilt over the meaning of the legislation enacted to provide for contribution between joint tortfeasors. More than 40 years ago, this court described the legislation, transcribed from a statute of the United Kingdom, ^[F49] as "a piece of law reform which seems itself to call somewhat urgently for reform". ^[F50] The source of the problem, and of the diversity of judicial opinion, was said to be "the economy of expression practised in the provision and the apparent failure to advert to any of the many practical problems involved in applying a general principle of contribution between persons liable jointly or severally for the same loss or damage". ^[F51] In Brambles Constructions Pty Ltd v Helmers , ^[F52] Barwick CJ declared that the statutory provision "cries out for some legislative intervention in order to make it quite plain whether or not defences particular to the tortfeasor in an action by the injured party are to be available to him in an action by another tortfeasor for contribution". In some jurisdictions in which the original statute was copied reforms have been adopted. However, none is relevant to these proceedings taken in New South Wales where s 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (the Act) has remained substantially unaltered. ^[F53]

[47] This appeal requires us to revisit the words appearing in s 5(1)(c) of the Act and to consider once again the meaning of the phrase "who is, or would if sued have been, liable in respect of the same damage". The problem arises on this occasion from the fact that the plaintiff, who sued the tortfeasors now claiming and resisting contribution, settled separately with each -- with the appellant (the claimant tortfeasor) for a large sum of money and with the respondent (the target tortfeasor) for a judgment in its favour but with no order as to costs. The issue is whether that judgment conclusively determines that the target tortfeasor is not liable to pay contribution to the claimant tortfeasor and this although the claimant tortfeasor was not a party to the judgment and specifically stated that it did not consent to a judgment in such terms.

The facts

[48] Mr John Gannon (the plaintiff) brought proceedings in the Dust Diseases Tribunal of New South Wales (the tribunal). ^[F54] He claimed damages in respect of pleural diseases alleged by him to have arisen from his inhalation of asbestos dust and fibre at work. He named three defendants, viz James Hardie & Coy Pty Ltd (the appellant), the Electricity Commission of New South Wales (Elcom) and Seltsam Pty Ltd (the respondent). Against the appellant and the respondent, the plaintiff pleaded that they had manufactured and supplied products containing asbestos used by him in the course of his employment. The plaintiff sued the three defendants as concurrent tortfeasors. His claim was complicated by the fact that he had worked for Elcom from 1970 to 1991. However, between 1953 and 1973 he had worked in the building industry, including for a time for his family, when arrangements for the supply of asbestos products were different. It was the plaintiff's case that the sole supplier of the asbestos products during his employment with Elcom was the appellant, whereas, before that, such products had been supplied by both the appellant and respondent. Despite these distinctions, the three defendants were sued in the one action as concurrent tortfeasors alleged to be responsible for the same injury and damage. ^[F55] No point arises in this appeal from that complication. Argument has proceeded on the basis that, when sued, the defendants were concurrent tortfeasors.

Proceedings in the tribunal

[49] The hearing of the plaintiff's claims commenced in the tribunal before Judge Johns on 8 November 1995. On the second day of the hearing, both the appellant and respondent filed cross-claims seeking indemnity or contribution in the event that it is "found to be liable to the plaintiff". Such claims were made pursuant to the provisions of the Act. The trial judge had his attention drawn to their terms.

[50] Later on the second day of the hearing, the appellant and Elcom reached agreement with the plaintiff to settle the claims against them. Terms of settlement were handed to Judge Johns providing for judgment in favour of the plaintiff against the appellant in the sum of $340,000 and against Elcom in the sum of $120,000, each party being liable to pay his or its own costs. Provision was also made for interest and to the effect that the terms of settlement were not to be disclosed "other than in proceedings for contribution". No mention was made in the terms of settlement of the plaintiff's claim against the respondent or of the cross-claims for contribution, although the latter were still on foot and their continuance was clearly envisaged by the term providing for limited disclosure of the settlement.

[51] Shortly after this settlement was reached, the plaintiff also concluded a separate agreement with the respondent in respect of his claim against it. In the result, a document titled "Order for Judgment" was handed to Judge Johns. It read:

1.

That the first defendant [appellant] pay to the plaintiff the sum of $340,000 -- Each party to pay his or its own costs.

2.

That the second defendant [Elcom] pay to the plaintiff the sum of $120,000 -- Each party to pay his or its own costs.

3.

Verdict and judgment for the third defendant [respondent] against the plaintiff. No order as to costs.

This judgment takes effect on the 9th day of November 1995.

[52] Before Judge Johns signed the order for judgment, and affixed to it the seal of the tribunal, counsel appearing for the appellant stated that the appellant did not consent to any judgment in favour of the respondent. He stated that it was an order in respect of which he had "no standing". But he asserted that no action by the plaintiff and the respondent "such as consenting to judgment in favour of the [respondent]" could "in any way impair the statutory right which the [appellant] has to seek contribution from the [respondent]". Judge Johns indicated his opinion that the judgment would not have any such effect. ^[F56] He stated that he would hear the cross-claims on a later date. It was common ground that, pursuant to order 1 of the foregoing orders, the appellant satisfied its liability to the plaintiff by paying him the specified sum. It was not contested that, within the authorities, the appellant was a "tort-feasor liable in respect of that damage". ^[F57]

[53] Before the hearing of the cross-claims could be had, a motion on behalf of the respondent was filed in the tribunal seeking an order that the cross-claim of the appellant against the respondent be struck out, dismissed or stayed. That motion was heard in the tribunal by another member, Judge Maguire. On 27 June 1997, his Honour upheld the respondent's claim for peremptory relief. He concluded that, because the respondent had been sued, its liability to contribute to the plaintiff's judgment against the appellant was to be determined under the first limb of s 5(1)(c) ("is ... liable") and not the second ("would if sued have been, liable"). The entry of judgment in favour of the respondent was fatal to the contention that liability existed, and no less so because the judgment was entered by consent of the parties to it. In so concluding, Judge Maguire upheld the respondent's submission that the point in issue was determined in its favour by the decision of the majority of the New South Wales Court of Appeal in Castellan v Electric Power Transmission Pty Ltd . ^[F58] He ordered that the appellant's cross-claim for contribution be struck out. From that order, the appellant appealed, by leave, to the New South Wales Court of Appeal.

Decision of the Court of Appeal

[54] The Court of Appeal dismissed the appeal. ^[F59] Mason P, who delivered the reasons of the court, relied on the decision of the House of Lords in George Wimpey & Co Ltd v British Overseas Airways Corp ^[F60] to support the proposition that: ^[F61]

"Entry of the judgment in favour of the respondent against the plaintiff means that the respondent has been held not liable for the plaintiff's injury. This is a final judgment which is unchallenged and, as such, is fatal to the claim for contribution."

[55] Mason P concluded that so much had been decided in Castellan . He rejected the application for leave to challenge the holding in Castellan , so far as it was authority for the proposition upon which his decision rested. ^[F62] He also rejected the argument that, because the appellant was not a party to the consent judgment, such judgment did not conclusively determine, as between the appellant and the respondent, whether the respondent was "liable" to it. He said: ^[F63]

"At the end of the day the appellant's submission stands as an assertion that a consent judgment declaring non-liability is relevantly distinguishable from such a judgment entered by a judge at trial ... In my view reliance upon this principle is misplaced in a situation such as the present. The plaintiff and the respondent were the parties to the judgment which, albeit by consent, determined conclusively as between those parties that the respondent was not liable. This event alone put an end to the appellant's right of contribution simply because it had the effect of taking the respondent out of the class of persons against whom an order for contribution under the statute could be made."

[56] While noting reservations expressed in this court concerning the correctness of the majority decision in the House of Lords in Wimpey , ^[F64] Mason P's reasons for rejecting the application to reopen Castellan were as follows: ^[F65]

"Unless and until the appellant can show that the respondent should have been found liable to the plaintiff then a vital step in its claim for contribution is missing. Since no attempt was made either below or here to challenge the judgment in the plaintiff's favour against the respondent, whether by appeal or otherwise, the fact that that judgment stands precludes the right of contribution."

[57] His Honour went on to acknowledge that the result was open to criticism as unfair and as presenting practical difficulties which could impede the early settlement of claims between plaintiffs and defendants where the latter had outstanding claims for contribution as between each other. But he concluded that any reform of the statute was for the legislature, not the court. The result was that the appellant's appeal was dismissed.

[58] Special leave to appeal to this court was sought by the appellant. It was resisted on the grounds that the legislation was notoriously obscure, had been the subject of amendment in several jurisdictions, had (following Castellan ) long been understood to have the effect determined by the Court of Appeal and was, in any case, the subject of contemporary examination by the New South Wales Law Reform Commission. ^[F66] While counsel for the respondent candidly conceded that, working on a fresh page, the construction urged for the appellant might have been adopted (a concession continued before this court) he submitted that the weight and flow of authority on the statutory phrase supported the opinion of the Court of Appeal. This court was urged to leave it to parliament, if it saw fit, to correct any injustices to a claimant tortfeasor in circumstances such as the present. This argument derived additional force because legislation had been circulated in New South Wales which included a clause addressed to the effect of a settlement with one, or some only, of the defendants who were alleged to be joint tortfeasors in proceedings before the tribunal. ^[F67]

[59] Doubtless, the foregoing were strong reasons why special leave to appeal to this court might have been refused. ^[F68] However, once leave is granted, it is the duty of this court, unless it is persuaded to revoke special leave, to determine the point in issue on its legal merits. It may be open to the court, finding a puzzling ambiguity in legislation which reveals a gap in the drafter's perception of a problem (such as has arisen) ^[F69] to leave repair to parliament. However, today, a more constructive (or "purposive") approach will ordinarily be adopted to the task of statutory construction. The court will seek to give effect to the legislative purpose as it discerns it unless the statutory language, or lack of language, stands in the way and forbids that course.

History of the statutory provision

[60] In order to ascertain the purpose of legislation, it is invariably useful to define the mischief which occasioned its enactment. In the case of s 5(1) of the Act, the purpose is not difficult to find. At common law, subject to certain exceptions not presently material, there was no contribution between either joint ^[F70] or concurrent ^[F71] tortfeasors. The origins, and even the applicability, of the common law rules were obscure, and sometimes contested. The best explanation that could be offered for them was that they were grounded in "the rule that wrong-doers cannot have redress or contribution against each other ... where the person seeking redress must be presumed to have known that he was doing an unlawful act". ^[F72] Whatever the explanation and history of the rule, by 1894 it was accepted as a settled principle of English law deriving its principal authority from the decision in Merryweather v Nixan . ^[F73] The rule had its critics. Lord Kenyon's judgment in Merryweather was castigated in the House of Lords in Palmer v Wick and Pulteneytown Steam Shipping Co as "somewhat meagre" such that it did "not appear to ... be founded on any principle of justice or equity, or even of public policy". ^[F74] On that footing, the Law Lords in 1894 declined to extend the rule to Scotland. However, they concluded, with obvious reluctance, that Merryweather "has been so long and so universally acknowledged as part of the English law that even if one's own judgment did not concur with its principle it would be now too late to question its applicability to all cases in England". ^[F75]

[61] Various statutory exceptions were enacted in England to govern such matters as the apportionment of liability for misrepresentations in company prospectuses ^[F76] and in collisions between certain ships. ^[F77] But the general rule of immunity to contribution between co-tortfeasors prevailed. It was observed in most parts of the British Empire, although not, apparently, in India and, as a result of Palmer's case, not in Scotland.

[62] Lord Herschell's criticism of the rule in Palmer attracted no immediate legislative attention. In Austin Friars Steamship Co Ltd v Spillers & Bakers Ltd , ^[F78] Pickford LJ described the rule against contribution between joint tortfeasors as an artificial doctrine, one not to be extended. Judges affronted by the injustice of the rule became inventive at finding exceptions. ^[F79]

[63] In 1934, the English Law Revision Committee delivered its Third Interim Report (the Report) responding to terms of reference addressed to a number of doctrines of the common law considered to be anomalous. The first was that which forbade contribution between tortfeasors liable for the same damage. ^[F80] At the time that earlier consideration was given to the legislation which followed this Report, it was generally regarded as impermissible for courts to go behind the statutory language and to look to a report which gave birth to it. This impediment was expressly acknowledged by this court in Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport . ^[F81] It was there said that "[t]he rigid rules of English law governing interpretation make the Report of the Committee which led to the adoption of the statute inadmissible as a guide to its meaning". Even then, however, this court glanced at the Report and to derive conclusions as to the purpose of the legislative reform from the terms of the Committee's recommendations. ^[F82] This action may explain why, from the start, while attempting to maintain so far as possible a uniform interpretation of legislation enacted in many jurisdictions of the common law, this court adopted a construction of the Act at once more realistic and attentive to its fundamental purposes. This is so when compared with the construction sometimes adopted in England by reference only to the language of the statute viewed in isolation and without regard to the Report out of which it arose.

[64] By developments of common law ^[F83] and statute law, ^[F84] the courts of this country are now released from the former "rigid rules" governing the ascertainment of the meaning of legislation such as the Act. When the Report of the Law Revision Committee is examined it makes it abundantly clear that its object was "as speedily as possible" ^[F85] to alter the common law rules so that "when two persons each contribute to the same damage suffered by a third the one who pays more than his share should be entitled to recover contribution from the other". ^[F86] The apportionment of liability is left to the court to be made fairly following, with any necessary modifications, the practice which had developed in admiralty cases as to apportionment of contribution. ^[F87] Those cases had not been subject to the common law rule. In suitable cases, the Committee proposed, the judge could award "a complete indemnity". ^[F88] The Committee considered various suggestions for exceptions to the general recommendation. However, it confined exceptions to a minimum. Its attention to matters of substance, rather than form, caused it to conclude that it was desirable "to alter the rule that the tort is merged in the judgment even though there is no satisfaction". ^[F89] Such a rule could be unfair to a plaintiff. It should be altered, provided that the plaintiff should not be entitled to obtain by execution, in the aggregate, more than the amount awarded in the first judgment. ^[F90]

[65] The ultimate recommendation of the Committee which gave rise to the statutory words in question reads, relevantly: ^[F91]

"Any person who is adjudged to be liable to make any payment or who suffers execution under a judgment recovered against him in respect of an actionable wrong may recover contribution ... from any other person who has been made liable in respect of the same wrong, or who, if sued separately, would have been so liable, unless the person against whom contribution is sought proves that he is by law entitled to be indemnified in respect of his liability by the person seeking contribution. It shall be for the judge to decide what the amount of the contribution is to be, or whether complete indemnity is to be given."

[66] It was this recommendation which was carried into the Law Reform (Married Women and Tortfeasors) Act 1935 (UK). ^[F92] The provisions of s 6(1) of that Act were copied verbatim in s 5(1) of the New South Wales Act. They read, relevantly:

"Where damage is suffered by any person as a result of a tort ...

(c)

any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage.

"

[67] It did not take long for these words to give rise to difficulties. The most immediate problem was presented by the omission from the Act of an express provision to specify the time at which the "hypothetical suit", ^[F93] that is, the "hypothetical action envisaged by the statute", ^[F94] was presumed to be brought. Did it mean "if sued when the tortfeasor claiming contribution was sued"; or "when the claim for contribution was made"; ^[F95] or when the plaintiff's cause of action arose; ^[F96] or "at any time"? ^[F97] Some of the differences of view about the purpose of the statute were later reflected in the opinions expressed in the New South Wales Court of Appeal in Castellan where Walsh JA wrote a strongly reasoned dissent. ^[F98]

[68] In Australia, the issue of the presumed time of the hypothetical suit (and thus the operation of the statute of limitations) was settled, in respect of the Act, by the decision of this court in Brambles . ^[F99] It was there held that the words in para (c) should be read without the importation of any temporal element, as if, after the words "if sued" there were added the words "at any time". In New Zealand, parliament had earlier embraced this construction and put it beyond doubt by adding the words "in time" to the common language of para (c). ^[F100] Without an equivalent legislative elaboration, this court came to a like conclusion in order to give effect to what it took to be the purpose of the Act and to avoid a construction which would frustrate the achievement of that purpose.

[69] Although the limitation question was thus solved by the courts in different ways in England and Australia, further problems continued to arise. In Hart v Hall & Pickles Ltd , ^[F101] the problem arose out of the dismissal of the plaintiff's claim against a second defendant for want of prosecution. The plaintiff, a worker, had been injured in the course of his employment at the first defendant's factory. He was helping to unload objects from a lorry brought onto the premises by contractors. Initially, the plaintiff issued his writ only against the first defendant, his employer. In its defence, the first defendant joined the contractors as third parties claiming indemnity or contribution from them under the statute. This propelled the plaintiff into adding the third party as a second defendant. However, those proceedings were dismissed for want of prosecution by the plaintiff. At the trial, the third party claimed, on a preliminary point of law, that it was entitled to be dismissed from the entire action on the ground that it could not be "liable" for contribution under the Act, the plaintiff's proceedings against it having been dismissed. The trial judge rejected the argument. The Court of Appeal affirmed his decision. Lord Denning MR, with whose reasons Davies and Winn LJJ agreed (adding reasons of their own), catalogued the ambit of the statutory words thus: ^[F102]

"Those words ... cover two situations:

(1)

where a tortfeasor has been sued and has been held liable; and

(2)

where a tortfeasor has not been sued, but, if he had been sued, he would have been held liable.

The words do not cover a third situation:

(3)

where a person who is alleged to be a tortfeasor has been sued and has been held not liable.

If he has been held not liable on the merits of the case , clearly he cannot be sued for contribution. If he has been saved from liability by reason of the Statute of Limitations, again he cannot be sued for contribution: see George Wimpey & Co Ltd v BOAC . ^[F103]

But here we have a fourth situation:

(4)

where a person (who is alleged to be a tortfeasor) has been sued but the action has been dismissed against him for want of prosecution.

Does this relieve him of any liability to make contribution?" [emphasis added]

[70] The parallels between Hart and the present case, although not exact, are striking. Here too the person alleged to be a co-tortfeasor has been sued. Here too that action has been dismissed. The only difference is that here the action was dismissed not for want of prosecution by the plaintiff but by reason of a consent judgment between the plaintiff and the target tortfeasor to which the claimant tortfeasor, held liable, was not a party. In common with the present case and the situation in Hart there has been no holding of liability "on the merits of the case", a requirement thought necessary to secure the immunity in Lord Denning's third situation. In dealing with the problem in Hart , Lord Denning concluded that dismissal of the plaintiff's proceedings for want of prosecution was not fatal to the exercise by the claimant tortfeasor of its statutory right to indemnity: ^[F104]

'It seems to me that, in order that a person should be exempted from contribution, he must have been "sued to judgment" and found to be not liable. Those words "sued to judgment" were used by Parker J in Littlewood v George Wimpey & Co Ltd and BOAC (Third Party ) ^[F105] and were adopted by Morris LJ in the same case. ^[F106] When an action has been dismissed for want of prosecution, the defendant has not been "sued to judgment" at all. There has been no finding on the merits . There has been no judgment that the defendant is not liable. It is only an interlocutory order -- a matter of procedure -- which does not affect substantive rights. It is not a final decision. It does not give rise to an estoppel by res judicata. The plaintiff can start another action for the same cause, so long as he does so within the period allowed by the Statute of Limitations ... Seeing that it is only a procedural matter, I hold that the defendant is not exempted by reason of the action being dismissed for want of prosecution. He is still liable to make contribution if he is a person who "would, if sued, have been liable, in respect of the same damage".' (emphasis added)

[71] Both the appellant and the respondent sought to derive support from Hart's case. The appellant laid emphasis upon the repeated references to the need for an action "to judgment" and a "finding on the merits" to warrant extinguishing the claimant tortfeasor's statutory right to contribution. The appellant also used the case to illustrate its argument that the statutory language was not narrowly confined. It had to be given meaning in a variety of circumstances. It invoked a true hypothetical suit, the outcome of which determined whether there would be recovery or not. On the other hand, the respondent argued that it had indeed been "sued to judgment" and that the judgment against it was not interlocutory but affected substantive rights as between it and the plaintiff so as to foreclose the preconditions necessary to the appellant's statutory claim for contribution. The court below preferred the latter approach. But should we?

Approach: the purposive construction of legislation

[72] As Windeyer J remarked in Brambles , referring to the speeches in the House of Lords in Wimpey , an analysis of previous authority "does not yield any definite single principle capable of being applied in this case". ^[F107] Accordingly, we should take his Honour's instruction and "go to the words of the Act". In doing so, it is important to emphasise yet again what is involved in the function of a court when it gives meaning to statutory provisions such as those of s 5(1)(c) of the Act. Common law courts have long accepted as relevant to the task of statutory construction ascertainment of the "mischief" to which the statute is addressed. ^[F108] However, for a time, until "an increasing willingness to give a purposive construction to the Act" replaced the "unhappy legacy" of a narrow approach to the judicial interpretive function, judges not only deprived themselves of materials useful to the task of interpretation. Sometimes they addressed such problems with a "narrowly semantic approach". ^[F109] In England, one of the foremost disciples of the "semantic" approach was Lord Simonds. In Inland Revenue Commissioners v Ayrshire Employers Mutual Insurance Association Ltd ^[F110] he said, addressing a provision of an Act which he described as "clearly a remedial section":

"It is at least clear what is the gap that is intended to be filled and hardly less clear how it is intended to fill that gap. Yet I can come to no other conclusion than that the language of the section fails to achieve its apparent purpose and I must decline to insert words or phrases which might succeed where the draftsman failed."

[73] Among the judges who have led the courts of the common law away from this approach, the influence of Lord Diplock may be acknowledged. In Jones v Wrotham Park Estates ^[F111] he made it clear that, if the application of the literal or grammatical meaning would lead to a result which would defeat the clear purpose of a statute, the court, construing the legislation, may read words into the text so long as three conditions were fulfilled. First, that the mischief with which the Act was dealing was clear. Secondly, that the court was satisfied that, by inadvertence, parliament had overlooked an eventuality which must be dealt with if the purpose of the Act was to be achieved. Thirdly, the court must be able to state with certainty what words parliament, if its attention had been drawn to the defect, would have used to overcome the omission. Lord Diplock's approach to statutory construction now prevails, not only in England ^[F112] but also in Australia ^[F113] and throughout the common law world. Today, unless driven to the result by unyielding words, no judicial satisfaction is to be derived from concluding that the manifest target of legislation has been missed. ^[F114]

[74] This court should therefore approach the problem before it with a constructive attitude to achieving the purpose of the statute, which is clear enough on its face and rendered unmistakable when access is had to its history. There should be no going back to the former approach to statutory interpretation, especially because this Act has a clear remedial purpose and because, in respect of it, this court has already expressed its preference for the construction which gives effect to, and does not defeat, the remedy provided by parliament. ^[F115] To make that remedy effective (and to prevent the defeat of the recovery of equitable contribution from a joint tortfeasor who can be shown to be "liable in respect of the same damage") all that is needed is the addition, after the words "if sued", of the words "to judgment on the merits". Clearly, that was the legislature's objective. In my respectful view, it is no more "a distortion of the text and structure of para (c) of s 5(1)" ^[F116] than was the decision of the court in Brambles to imply into the text the words "at any time". Any other meaning would result in the precise injustice which the Act was introduced to overcome. That cannot have been parliament's purpose.

[75] If it was possible for this court to imply the words "at any time" in 1966 when it decided Brambles , it would be remarkable if, today, it were to hold back from implying the words suggested in this case. Since 1966, the courts have permitted themselves access to a broader range of materials than were then available. One such source, namely the Report, is clearly pertinent. As well, since 1966, the purposive approach to statutory construction has replaced the sterile semantic view which previously prevailed. Whereas in 1954, in Wimpey , the majority approached the task of interpretation in a way which involved "least alteration of the existing law", ^[F117] that is not now, and should not be, the approach of this court to the construction of a provision such as that in question.

The meaning of the legislative words

[76] When, therefore, I take Windeyer J's advice and turn to the words of the Act, read to achieve their reformatory object, their meaning is clear. Section 5(1) attaches where "damage is suffered by any person as a result of a tort". In the present case, it was common ground that the plaintiff had suffered damage as a result of a tort and therefore the application of the subsection was, to that extent, engaged.

[77] The abolition of the former bar to action which, at common law, would have arisen by the plaintiff's recovery of judgment against one tortfeasor (such as the appellant) is then removed by s 5(1)(a). The object of the subsection, as a piece of remedial law designed to overcome the anomalous common law rule, is made clear by para (a). What follows in the subsection should be construed, so far as possible, to uphold that object and not to frustrate its achievement.

[78] The terms of para (c) begin with a phrase which states a second precondition. It is necessary that the claimant for contribution should be a "tort-feasor liable in respect of that damage". By the authority of this court, that phrase refers to a tortfeasor whose liability has been ascertained, including ascertained by judgment. ^[F118] In the present case, the appellant qualified for that description. Although the judgment entered against it was by consent, it was for a substantial sum, arrived at in the course of the settlement of part-heard proceedings with the parties at arm's length. No point was raised to suggest that the appellant was not a "tort-feasor liable in respect of that damage". Accordingly, the second precondition is also met.

[79] There is then the statutory entitlement to the recovery of contribution from "any other tort-feasor". A clue as to the nature of the contribution envisaged is given by s 5(2) of the Act. That is the provision which fixes the "amount of the contribution recoverable" to be such as "may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage". This is a broad mandate, as this court has emphasised. ^[F119] While these words provide the formula for the determination of the amount of recovery they also throw light upon the object of the statutory contribution provided for. It is the just and equitable sharing of responsibility for the damage to the plaintiff in accordance with the terms of the Act, just as the Law Revision Committee's Report envisaged.

[80] This brings me to the crucial words, "who is, or would if sued have been, liable in respect of the same damage". Although a theoretical argument might arise that the first limb of this phrase ("who is ... liable") addresses a notional liability in law yet to be ascertained, the juxtaposition in para (c) of the first limb with the second suggests, as has been repeatedly held, ^[F120] that it is dealing with the case where the respondent tortfeasor has been sued and has been held liable, perhaps in separate, earlier or other proceedings. ^[F121] In the present case, although the respondent was sued in the same proceedings, the disposal of the plaintiff's claim against it by a consent judgment in favour of the respondent removes the application of the first limb. In the face of that judgment, it cannot be said that the "other tort-feasor ... is ... liable in respect of the same damage". So far as the record of the judgment between the plaintiff and the respondent is concerned, it lends no support to the existence of the liability necessary for the recovery of contribution under that limb. If such liability is to be established, it must arise under the second limb as properly understood. This takes the court into the inquiry about the alternative, hypothetical, liability of the respondent. Would it, if sued, have been liable in respect of the same damage?

[81] The respondent submitted that these words were not engaged by the facts of this case. It had been sued. The second limb was therefore inapplicable, being confined by its terms to a case where the respondent to the claim for contribution had not been sued but would if sued have been held liable. In this way the respondent claimed immunity from the obligation to contribute as justice and equity might otherwise require. Its immunity would, on its argument, prevail even if a tortfeasor in the position of the appellant could show that, in a hypothetical action pursued to judgment on the merits prior to the entry of the consent judgment between the plaintiff and the respondent, the respondent would have been held liable in respect of the same damage. On the respondent's argument the fact that, in such circumstances, it might be just and equitable having regard to the respondent's responsibility for the damage to the plaintiff that it should substantially contribute to, or even wholly indemnify the appellant from its liability, would be no answer. The case would simply slip through a gap in the legislation which had not provided for recovery of contribution in such a circumstance. The pre-existing common law rule would prevail. The apparent object of the reform would fail. The court, like Lord Simonds, would hold back from inserting words or phrases "which might succeed where the draftsman failed". ^[F122]

[82] Such a result would be as surprising as it would be unjust. This makes it incumbent on anyone construing the legislation to be very sure that no alternative construction is available which would achieve the apparent object of the reform and avoid the injustice -- these being the presumed purposes of parliament in enacting the provisions. There is an alternative construction. It is the one harmonious with the approach adopted by this court in Brambles . It is to read the second limb of para (c) in a way which recognises that it posits a hypothetical action: one designed to ascertain whether at any time there was liability of the respondent against whom contribution was claimed to the plaintiff, not whether at the particular time the claim was actually made, a limitation statute or other impediment had intervened to act as a bar to recovery. This approach to the meaning of the second limb of para (c) requires the implication of words which give content to the hypothetical action which is postulated.

[83] The added words are few in number, clear of purpose and require no more than that the hypothetical action which the Act contemplates is brought to judgment by a determination on the merits, which includes on the legal merits, of the case which the plaintiff would have had against the targeted tortfeasor had the plaintiff sued that tortfeasor to judgment. This alternative construction is consistent with this court's holding in Brambles . It is also compatible with the approach adopted in Hart ^[F123] where the plaintiff's action against the targeted tortfeasor was dismissed for want of prosecution. It is consistent with the authorities which have emphasised that the statutory right of contribution is substantive and exists independently of acts or omissions on the part of the plaintiff or the tortfeasor from whom contribution is sought after the occurrence of the tort. ^[F124] It also stands more comfortably with decisions under legislation providing analogous rights to recover contribution ^[F125] where it has been held, rightly in my view, that a consent judgment in favour of a defendant tortfeasor is no bar to an employer's claim for its statutory indemnity. ^[F126]

[84] The words "would if sued have been" in para (c) therefore envisage a completed action where the target tortfeasor has been sued to judgment and the action has been fully dealt with on its merits. Lord Denning suggested this construction of the paragraph in Hart . ^[F127] Windeyer J implied as much in Brambles when he said: ^[F128]

"The description, a tortfeasor who if sued would have been liable, denotes any person who would have been held liable in tort had he been sued in a competent court, by proper process, at a proper time and on evidence properly presented -- that is anyone whose liability as a tort-feasor could have been ascertained in an action."

[85] Clearly, in the context, the ascertainment of liability means ascertainment on its merits, not ascertainment by private arrangement between only some of the parties by which, unilaterally, they deprive others of rights which, for good purpose, parliament has conferred on them by reforming legislation.

The contrary arguments are unpersuasive

[86] As against this construction, the respondent deployed a number of arguments. First, it said that the construction amounted to a departure from a settled interpretation which, by its "antiquity", had derived authority to which this court should adhere. But this is not so. The precise point before the court has never previously arisen. In so far as the majority speeches in Wimpey were relied upon, this court has already recognised the absence in them of a single principle. ^[F129] Certainly, the speeches of the minority in Wimpey are consistent with the approach which I favour. Castellan , upon which the respondent placed much emphasis, is like Wimpey distinguishable from the present case. In those cases, unlike here, the targeted tortfeasor was sued and a final judgment on the merits (including the legal merits) was entered in its favour. Such was not this case. Since these early decisions were written (and they scarcely qualify for the description of "antiquity") a broader range of materials has become available to the courts for the interpretation of the legislation. And a more constructive approach is now taken to the judicial task.

[87] It is clearly contrary to principle to place a plaintiff and a tortfeasor, against whom contribution has been, or may be, sought in a position where they can, between themselves, deprive another tortfeasor of its statutory right to contribution. ^[F130] As Lord Denning observed in Nana Ofori Atta II v Nana Abu Bonsra II : ^[F131]

"The general rule of law undoubtedly is that no person is to be adversely affected by a judgment in an action to which he was not a party, because of the injustice of deciding an issue against him in his absence."

[88] One of the chief defects of the common law was that it subjected co-tortfeasors to the power of the plaintiff to determine the incidence of loss distribution between the tortfeasors "at his own whim, allowing him to throw the whole loss, if so minded, on one of them and completely exempt the other". ^[F132] Having regard to the trouble taken to amend the common law, it seems scarcely likely that parliament would have willingly continued such a privilege. It is even more unlikely that it would have extended the power to one of the co-tortfeasors, acting without the concurrence of the others, to confer immunity on itself and to deprive those others of a valuable statutory right to contribution. It would require the clearest possible statutory language to uphold such a construction of the Act. No warrant for it can be found in para (c). On the contrary, the objects and purpose of the legislation speak strongly against such a construction.

[89] In any case, the correctness of the decisions in Wimpey and Castellan have been repeatedly questioned in the intervening years. The outcome of Brambles represents a rejection of the narrow view of the legislation which the majority in Wimpey favoured. Similarly, the dissenting opinion of Walsh JA in Castellan ^[F133] attracted the favourable notice of members of this court in Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd . ^[F134] The result is that there is no consistent line of authority about the meaning of para (c) which constrains this court to an interpretation which would so manifestly defeat the legislative purpose.

[90] Secondly, the respondent submitted that a consent judgment, such as that entered between it and the plaintiff, was a final judgment. ^[F135] So long as it stood on the record, the judgment between the plaintiff and the respondent barred recovery under either limb of para (c). It conclusively established that, when sued, the respondent is not liable in respect of the same damage. But it equally answered the question posed by the hypothetical action, for the respondent had been sued and thus the hypothesis was disposed of by actuality. In this regard, the respondent cited the dictum of Brennan J in Oceanic where his Honour said, with reference to the facts of that case: ^[F136]

'So long as the judgment holding Pilbara not liable stands on the record, the shipping company is unable to assert that Pilbara is a tortfeasor who "is, or would if sued have been, liable" to Hamersley.'

[91] There are many answers to these arguments which appear to have influenced the decision of the Court of Appeal. First, in Oceanic , Brennan J was concerned with a case where, as in other decisions in this series, a judgment had been obtained in favour of the target tortfeasor on the merits (including the legal merits) of the case. That is not the situation here. There are strong reasons of legal principle and policy for upholding, including in the context of s 5(1)(c) of the Act, the conclusive effect of such a judicial determination on the merits. But a consent judgment does not have for all purposes exactly the same consequences as a judgment reached on the merits in a contested action. In Spencer Bower, Turner and Handley on The Doctrine of Res Judicata , ^[F137] the authors state, correctly in my view, that "[n]o consent judgment or order has any operation against any third person or against any party not shown to have consented".

[92] In the present case, far from having consented to the judgment in a way which would make it right and just that it be bound, the appellant signified that it did not consent. The judge who entered the judgment indicated, clearly enough, his agreement with the appellant's understanding of the effect of what he was doing. A consent judgment is indeed a true judgment between the parties. It speaks to the world of the agreement to which the parties give effect in the form of a judgment. But without the consent of others or the operation of some other law, it cannot have the consequence of depriving others of rights expressly conferred upon them by statute. In this case, it cannot deprive the appellant of its right to secure contribution if it can prove that the respondent is a "tort-feasor ... liable in respect of the same damage". Clearly, the respondent could not have obtained a contractual release from the plaintiff which would have had the effect of providing it with an immunity from a liability to contribute under the Act. Nor will such immunity attach because the release is given effect in the form of a consent judgment.

[93] Thirdly, the respondent submitted that it was open to the appellant to protest against the entry of judgment between the plaintiff and the respondent and to persuade Judge Johns, or on appeal the Court of Appeal, that such judgment should not have been entered because it would adversely affect the appellant's right to recover indemnity or contribution under the Act. In short, it was argued that the appellant has mistaken the law, and must now pay the consequences. I am doubtful that the appellant would have had any ultimate right to resist the entry of a consent judgment between the plaintiff and the respondent disposing of their separate dispute. In particular, it seems doubtful whether the appellant would have a right (fraud or like grounds apart) to seek relief by way of the setting aside of a consent judgment between other parties concerning their dispute. But even if such rights existed, they are scarcely an answer to the proper construction of the Act or the outcome of this appeal. The rights of the appellant to recover contribution derive from the Act. They may not be made dependent on the exercise by a court of discretions or decisions which depend upon whether a judge will, or will not, enter judgment or an appellate court will, or will not, grant leave to appeal or accept as an objector to a judgment a stranger to the proceedings in which judgment is given. Moreover, the strength of the respondent's objection must be measured against the possibility that the action between the plaintiff and the targeted tortfeasor was not brought (as here) in the consolidated proceedings but in separate proceedings, perhaps much later and possibly of which the tortfeasor claiming contribution was completely unaware. If, in such a case, a consent judgment between the plaintiff and the targeted tortfeasor could not deprive the tortfeasor claiming contribution of its statutory rights, the same must be true where, as in this case, the proceedings were brought together.

[94] Judge Johns was correct in his understanding of the effect of what he was doing. It was not his purpose, by entering the consent judgment between the plaintiff and the respondent, to conclude the proper determination of the cross-claims. That is why he stood them over for later hearing. Had any other purpose been intended, it would have been incumbent on the tribunal to delay the entry of judgment until the cross-claims were concluded or, at least, to postpone the entry of judgment until all those affected by it had an opportunity to be heard. None of these problems arises if the effect of the judgment is as Judge Johns assumed and as the appellant asserted. In my opinion, their assumption and assertions were correct. The judgment, being a consent judgment, had no operation against the appellant or against any party not shown to have consented to its terms. In particular, it had no operation to deprive the appellant of rights to contribution which it otherwise enjoyed pursuant to s 5(1)(c) of the Act.

[95] Finally, the respondent made much of the fact that the legislation had been in operation for many years, had been amended in several other jurisdictions, was the subject of specific law reform recommendations in New South Wales ^[F138] and in other jurisdictions, in one of which it had been expressly suggested that words should be inserted to clarify the fact that the hypothetical suit contemplated by the second limb of para (c) involved a hearing on the merits. ^[F139] Although these were doubtless valid arguments for contesting a grant of special leave, they must not deflect this court, once the appeal is before it, from its duty to construe the legislation and to state its meaning. In Brambles , this court did not withhold the construction it favoured because the matter could be, and in other jurisdictions had been, attended to by legislative amendment. Nor should we here. It is open to question whether the draft bill which was shown to the court and which would incorporate certain provisions in relation to settlements before the tribunal would, if enacted, affect a case such as the present. ^[F140] However that may be, in its applications outside the tribunal it would leave the Act still governed by the Court of Appeal's decision. Moreover, in so far as equivalent legislation still operates in other jurisdictions of Australia, ^[F141] the general problem would remain. The appellant before this court would be left without redress by a prospective amendment of the legislation. The court was also informed that a number of cases before the tribunal, in a situation akin to that in this case, await this decision.

[96] Clearly, the ruling of the Court of Appeal represents a significant inhibition upon the early settlement of litigation in the tribunal as the law presently stands. Although the court was told that, in this case, the plaintiff was not gravely ill, it was not contested that in many cases coming before the tribunal (and inherent in the nature of its jurisdiction) the plaintiffs concerned will be desperately ill and often dying. In such circumstances, a requirement, in effect, that the consent of all defendants be had before settlement of claims against particular defendants is achieved would represent a most serious practical inhibition on the disposal of those parts of such claims as can be settled. Such settlements put the plaintiff in funds at the earliest possible time. They leave it to the defendants to fight out their respective claims for contribution as the tribunal's hearing priorities permit. Not only is this the sensible operation of the contribution legislation, as it may be assumed was parliament's purpose. It is also, in my view, the operation which the language of the Act requires.

Orders

[97] The appeal should be allowed. The orders of the Court of Appeal of the Supreme Court of New South Wales should be set aside. In lieu thereof, it should be ordered that the appeal to that court from the orders of Judge Maguire in the Dust Diseases Tribunal of New South Wales be allowed; the orders of his Honour should be set aside; in place thereof, the motion which was determined by his Honour should be dismissed. The respondent should pay the appellant's costs in this court, in the Court of Appeal and in the tribunal.