James Hardy and Coy Pty Ltd v. Seltam Pty Ltd
159 ALR 268[1998] HCA 78
(Judgment by: Callinan J) Court:
Judges:
Gaudron and Gummow JJ
McHugh J
Kirby J
Callinan J
Judgment date: 21 December 1998
Judgment by:
Callinan J
[98] This appeal is concerned with the liability of concurrent tortfeasors to one another in circumstances in which one tortfeasor has obtained judgment in its favour by consent of the plaintiff. The question is whether a tortfeasor who has sought indemnity or contribution from another tortfeasor who has had a judgment entered in its favour against the plaintiff is, as a result of that judgment, precluded from obtaining indemnity or contribution. The answer to the question depends upon the proper construction of s 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).
The proceedings
[99] The plaintiff, Mr Gannon, suffered a serious illness by reason of prolonged exposure at work to asbestos dust and fibre. The circumstances of his exposure to the dust and fibre were such that he apparently had an arguable case in negligence against three defendants, James Hardie & Coy Pty Ltd (the appellant), Seltsam Pty Ltd (the respondent) and Elcom.
[100] The plaintiff commenced proceedings in the Dust Diseases Tribunal of New South Wales which has exclusive jurisdiction to hear and to determine proceedings of this kind. [F142]
[101] The matter came on for hearing in the tribunal before Judge Johns who had jurisdiction to determine not only the plaintiff's claim but also cross-claims which had been filed by each defendant seeking indemnity or contribution from the other in the event that one or other of such defendants might be found to be liable to the plaintiff.
[102] After the plaintiff had given evidence, an agreement to settle his claim was made between him and the appellant and Elcom.
[103] Pursuant to the terms of settlement, the plaintiff was to have a judgment in his favour against the appellant in the sum of $340,000, and against Elcom in the sum of $120,000. The terms included a conventional term that the details of the settlement were not to be disclosed, but there was an exception made in respect of "proceedings for contribution". Otherwise, there was no reference to the plaintiff's claim against the respondent or to the cross-claims. The tribunal was provided with a copy of the terms of settlement.
[104] Apparently, contemporaneously with the negotiations leading to the resolution of the plaintiff's claims against the appellant and Elcom, the plaintiff was engaged in separate discussions with the respondent. These discussions resulted in an agreement that the respondent should have judgment against the plaintiff.
[105] His Honour was then invited to make orders as follows which he did:
- 1.
- That the first defendant [the 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 [the respondent] against the plaintiff. No order as to costs.
This judgment takes effect on the 9th day of November 1995.
[106] When his Honour was invited to make the orders, counsel for the appellant stated that the appellant did not consent to judgment in favour of the respondent, explaining, at the same time, that any order in that regard was one in respect of which he had no standing but which could not impair the statutory right which the appellant had to seek contribution from the respondent. His Honour then said that he would hear the cross-claims at a later date.
[107] The appellant satisfied the judgment entered against it in favour of the plaintiff. On 21 May 1997 the respondent sought to have the appellant's cross-claim struck out. That application was granted by another member of the tribunal, Judge Maguire, on 27 June 1997. It is against that order that the appellant appealed to the Court of Appeal of New South Wales.
[108] Before the Court of Appeal the respondent submitted that the appellant's appeal should be dismissed on two bases: that the judgment in its favour against the plaintiff precluded or defeated the claim for contribution; and that the satisfaction of the judgment in the plaintiff's favour against the appellant discharged the liability of the respondent as a concurrent tortfeasor.
[109] In a judgment delivered ex tempore on 26 September 1997, the court dismissed the appeal. [F143]
[110] Mason P (with whom Beazley and Stein JJA agreed) accepted both of the respondent's submissions. First, they held that entry of the judgment in favour of the respondent against the plaintiff was fatal to any cross-claim by the appellant for some or all of the plaintiff's damages. Their Honours relied upon George Wimpey & Co Ltd v British Overseas Airways Corp [F144] and the following passage in Castellan v Electric Power Transmission Pty Ltd : [F145]
"Contribution cannot be successfully claimed by one tortfeasor against another alleged tortfeasor who, having been sued by the injured party, has been found in that action not to be liable to the injured party no matter on what ground."
[111] The appellant had contended that Castellan was wrongly decided, or that, in any event, any principle for which it might stand as authority does not extend to circumstances in which judgment was obtained by consent and without a hearing on the merits. In support of this proposition, counsel for the appellant sought to derive from the following passage in the judgment of Windeyer J in Brambles Constructions Pty Ltd v Helmers , [F146] a proposition that if a case could have been made out against another tortfeasor, no matter what happened in proceedings between the plaintiff and that tortfeasor, a liability to contribute or provide indemnity would always remain available to another tortfeasor liable to satisfy the plaintiff's claim:
"A person from whom contribution can be claimed is, as I read the Act, anyone who would had he been sued have been held liable for the same damage. 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 tortfeasor could have been ascertained in an action."
[112] The Court of Appeal was of the opinion that there was no relevant distinction between a judgment by consent in favour of a tortfeasor and a judgment entered by a judge after a trial, as appears from the following passage from the reasons of Mason P: [F147]
"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 judgment at trial ... [but it] 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."
[113] Their Honours were also of the view that the satisfaction by the appellant in full of the judgment in favour of the plaintiff precluded the court from dealing further with the cross-claims.
The appeal to this court
[114] In this court the appellant renewed the arguments that it had presented in the Court of Appeal, adding that the obscurity of the language of the section admitted of an interpretation in favour of the appellant, and that such an interpretation was to be preferred on policy and remedial grounds.
[115] Section 5(1) of the Act is open to a criticism of want of clarity. It relevantly states:
- (1)
- Where damage is suffered by any person as a result of a tort (whether a crime or not):
- ...
- (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, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought.
[116] The purpose of the legislation was remedial, to redress the injustice of the common law which generally made no provision for contribution between concurrent [F148] or joint tortfeasors. [F149] I need not repeat the history of the application and criticism of the common law rules which are summarised in the reasons for judgment of Kirby J, and which led to the passage of the Law Reform (Married Women and Tortfeasors) Act 1935 (UK). Section 5(1) of the New South Wales legislation which I have set out above is relevantly in the same terms as s 6(1) of the United Kingdom Act of 1935.
[117] In its submissions to this court, the appellant pointed to a passage from the judgment of Barwick CJ in Brambles : [F150]
'In my opinion, there is no need to import into s 5(1)(c) any temporal element in this connection. The effect of s 5(1)(c), in my opinion, is that a tortfeasor who has come under an enforceable obligation to pay money for the damage caused by his tortious act may successfully recover contribution from another tortfeasor who has also come under an obligation to pay money in respect of the same damage and he may also recover contribution from any other tortfeasor who, not having been sued by the injured party, had he been sued, would have been found to have caused or contributed to the same damage by a tortious act. It seems to me that there is no need whatever to specify any point of time as at which the expression "if sued" should be applied. It can be read "if sued at any time" which, of course, does not import any temporal element into the section. It was so held by Donovan J in Morgan v Ashmore, Benson, Pease & Co Ltd [F151] and by McNair J in Harvey v RG O'Dell Ltd ; Galway (Third Party ) [F152] and with their views I respectfully agree.
This conclusion does not depend upon reading the word "liable" where first occurring in the paragraph of the subsection as exclusively denoting liability by judgment, nor does it depend upon adopting a view one way or the other as to whether the word "liable" where secondly occurring, means "liable by judgment". No doubt the use of the words "if sued" does tend towards the view that "liable" where secondly occurring means liable by judgment. That view commended itself to members of the House of Lords in George Wimpey & Co Ltd v British Overseas Airways Corp [F153] but I find no need to resolve that question myself at this time and notwithstanding the observations of their Lordships, with all due respect, the question so far as I am concerned remains an open one.'
[118] Reference was also made to the passage in the judgment of Windeyer J in Brambles [F154] which I have already quoted.
[119] The appellant argued that the view of Walsh JA, who dissented in Castellan , was to be preferred to the opinion of the majority and that this court should adopt his Honour's reasoning here because it had already secured the approval of Brennan J (with whom Deane J agreed) in Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd . [F155]
[120] In Castellan , Walsh JA had said: [F156]
"But in the present case the situation is different. BHP is not in the position of a person who has been sued and has been held by a final verdict and judgment to be not liable. The whole point of the appeal is to say that the decision that BHP was not liable was wrong in law and that, if the trial had proceeded according to law, BHP would have fallen into the class of a person who has been sued and held liable (assuming, of course, that the jury had found a verdict for the plaintiff against BHP)."
[121] In Oceanic Crest Shipping , Brennan J expressed his approval of the opinion of Walsh JA in Castellan in these words: [F157]
'In Castellan v Electric Power Transmission , [F158] a majority of the Court of Appeal held that no new trial could be ordered on the application of one tortfeasor to decide the liability of another alleged tortfeasor to the plaintiff when the first tortfeasor had satisfied the plaintiff's judgment against him and the plaintiff's claim against the other alleged tortfeasor had been dismissed by consent of those parties. The judgment for the alleged tortfeasor standing as a final judgment, he was immune from an order for contribution to the tortfeasor who had satisfied the plaintiff's judgment. Walsh JA dissented. In a passage with which I respectfully agree, his Honour said: [F159]"In order that the rights of all parties should be properly determined in accordance with law, I am of opinion that this court has the power and the duty to set aside any part of the result of the trial, if it was reached through error of law, and if it is such that, while it stands, it impedes the proper resolution of the rights of all parties. It was the automatic consequence of the entry of verdicts for BHP in the plaintiff's action that, in the claims of EPT for contribution against BHP, there must be verdicts for BHP. If this was erroneous and if, so long as it stands, the said claims of EPT can never be duly determined according to law, it is proper for this court to review the correctness of the entry of the verdicts for BHP in the plaintiff's action."'
[122] The appellant was unable to refer the court to any case in which a tortfeasor sued to judgment was held entitled to recover contribution or indemnity from another alleged tortfeasor in the same action, the claim against whom has been dismissed by a final judgment. Hart v Hall & Pickles Ltd [F160] was not such a case. There, the plaintiffs' action against the "target" joint tortfeasor was dismissed for want of prosecution [F161] and accordingly there was not a final judgment in the sense in which that term is generally used and understood.
[123] Lord Denning MR, although he said that there had been no judgment on the merits, added that the joint tortfeasor had "not been 'sued to judgment' ". [F162] His Lordship also referred to the interlocutory and non-substantive nature of a dismissal for want of prosecution which does not bar a further action based on the same facts.
[124] It is necessary to return to the language of the provision to be construed, s 5(1)(c). In George Wimpey , Viscount Simonds [F163] and Lord Tucker [F164] held that the UK legislation there identified two categories of joint tortfeasors from whom another tortfeasor might recover contribution: one who has been sued in respect of, and is liable for that damage; and one who would, if sued, have been liable for that damage.
[125] Contrary to the submission of the appellant, the respondent here does not in my opinion fall into the latter category. The use of the words "if sued" leads to the conclusion that those who fall within that category must be tortfeasors who have not in fact been sued by the plaintiff.
[126] Nor can the respondent fall into the former category for it is not liable for the damage, that is, the damage to the plaintiff to which the subsection makes reference. Indeed it is the final judgment in this case that establishes that the respondent is not liable for the damage suffered by the plaintiff.
[127] The final judgment, which is a judgment of a Court of Record, [F165] is no less a judgment of that kind because it was a judgment entered by consent. [F166]
[128] It is not only in Castellan that the reasoning in the House of Lords in George Wimpey has been followed or applied. In Hood v Commonwealth [F167] the Full Court of the Supreme Court of Victoria construed the Victorian analogue in the Wrongs Act 1958 (Vic) at that time, s 24(1)(c) (since repealed) in the same way as the House of Lords in George Wimpey , in holding that one defendant had no right to contribution from another defendant in circumstances in which the latter was found to be not liable to the plaintiff for damages for personal injuries suffered in an accident, even though in other proceedings arising out of the same event brought by a different plaintiff, the plaintiff was successful against both defendants.
[129] The New South Wales provision which the court has to construe has remained unchanged since its enactment. There was no legislative intervention after the decision in Castellan . In other jurisdictions there have been changes. In the United Kingdom, s 1 of the Civil Liability (Contribution) Act 1978 replaced s 6 of the Act of 1935 which the House of Lords interpreted in George Wimpey . One effect of that replacement was explained by Balcombe LJ in Nottingham Health Authority v Nottingham City Council [F168] that although a limitation Act might bar the remedy it did not extinguish the right of a tortfeasor to recover contribution from another tortfeasor able to avail himself or herself of the benefit of a limitations defence in proceedings by a plaintiff. In Victoria, s 24(1) of the Wrongs Act 1958 was replaced by s 23B of the Wrongs Act 1985 following a report by the Chief Justice's Law Reform Committee in 1979. In moving the legislative change the responsible minister stated that the intention of the amendment was to provide that a result in favour of one person who was sued might only defeat a claim for contribution by another if there was a finding after trial on the merits: [F169]
"... it provides that neither party is entitled to challenge a finding of non-liability made in favour of the other in an action brought by the plaintiff -- provided that the finding was made after a trial "on the merits", that is, the finding of non-liability was not due to such factors as dismissal for want of prosecution, on the grounds that judgment was obtained collusively or that the time period for bringing the action had expired ..."
[130] In South Australia, the phrase "or would have been sued" has been replaced with the phrase "or would at any time have been" [F170] and in Tasmania with the phrase "or would, if sued by the person by whom the damage was suffered at the time when the cause of action arose, have been". [F171] Similarly, in New Zealand, the relevant legislation, the Law Reform Act 1936, was amended [F172] after George Wimpey to include the words "in time" after the words "or would if sued".
[131] The appellant urged before this court that the result on the application of Castellan was an unfair one in that it enabled a tortfeasor to escape liability to a joint tortfeasor because the former has been able, effectively in secret, to conclude an arrangement with the plaintiff having the effect of shutting out the latter from pursuing its claim against the former. It does not seem to me that such disadvantage, if any, as a tortfeasor may suffer in a situation of the kind which existed here, stems from an erroneous construction of the legislation: rather, it is a consequence of the inability or unwillingness of the appellant to impose upon the plaintiff, in its negotiations with him, an obligation requiring the plaintiff to abstain from any step which might prejudice the appellant, such as acceding to judgment in favour of the other tortfeasor.
[132] To allow the issue of contribution or indemnity between the appellant and the respondent to be revisited now could do some injustice to the respondent. It is impossible for this court, indeed any court, to know what factors motivated the parties to act as they did in the making of the separate settlements that they made with the plaintiff. It may be that had the plaintiff been unwilling to consent to judgment against him by the respondent, the latter might have asked the tribunal to refrain from giving the judgment that was given against the other two defendants. The respondent might have held the view that the damages agreed upon were excessive and themselves should have been litigated to finality in the tribunal before the judge at that time if there was any risk that the respondent might have to make a contribution to them. Considerations of cost may have also entered into the decision by the parties to act in the way in which they did. It might well be quite unfair to the respondent to be confronted now with the possibility of a liability which it no doubt believed it had escaped by a judgment in its favour in proceedings in which until judgment, the cross-claims were live. All of the parties there and then were content to have their settlements translated into final judgments, no doubt for good reason on the part of each of them.
[133] All of the parties were before the court and subject to the jurisdiction of the court in proceedings in which all of the respective claims were fully articulated in the pleadings between them. It is desirable in the public interest that in those circumstances all issues between all of the parties be concluded, if possible, without the need for a further hearing, [F173] a need which will only arise if the appellant has been unable, or has not wished, to impose a term of settlement upon the plaintiff of the kind which I have mentioned. It is not as if here the appellant made an application to his Honour Judge Johns to abstain from entering judgment in favour of the respondent. Had the appellant done so, and the judge refused to abstain from entering judgment then the appellant might have been entitled to appeal against that refusal. All that the appellant did was simply to assert that the judgment entered by consent could have no prejudicial effect upon it with respect to the contribution proceedings.
[134] What occurred here brought the respondent outside either of the classes of litigants contemplated by s 5(1)(c) of the Act. There are only two classes. The respondent is in neither of them.
[135] The conclusion that I have reached accords with authority that has now been taken as settled for many years with respect to the form of the New South Wales Act, and with the general understanding of the effect of the Act among insurers and the profession. In those circumstances the court might well be cautious about finding some different meaning in the legislation, or in effect creating a third category of litigants liable to contribute for which the legislation makes no provision. The reservation of Barwick CJ as to the correctness of the reasoning of their Lordships in the majority in George Wimpey was no more than that, a reservation. And what was said by Brennan J and concurred in by Deane J in Oceanic Crest Shipping has not been adopted by any other member of this court since his Honour made the observations that he did. Indeed, in Oceanic Crest Shipping , Brennan J had earlier said: [F174]
'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.' [F175]
[136] It follows that the appellant's attempt to apply to this case the categorical statement in Spencer Bower, Turner and Handley on The Doctrine of Res Judicata [F176] that "[no] consent judgment or order has any operation against any third person or against any party not shown to have consented" should be rejected.
[137] There is only one other matter to which I should refer and that is the proposition of the majority in Castellan that was accepted as correct and applicable by the Court of Appeal here, that the fact of satisfaction of the judgment of itself operates to discharge another defendant from all liability to the plaintiff. [F177] I base my decision upon the fact and record of the final judgment in favour of the respondent and need not consider the correctness or otherwise of the other proposition that was accepted by the Court of Appeal.
[138] It follows that I would dismiss the appeal. The parties asked that they be given an opportunity in writing to make submissions as to costs and I would direct that the respondent, being the successful party, make its submissions within seven days from today and that the appellant make such submissions as it wishes to make within seven days thereafter.
Order
- (1)
- Appeal dismissed.
- (2)
- The respondent has liberty to file, within seven days of the date of this order, written submissions on the making of orders for costs of the appeal to this court.
- (3)
- The appellant has liberty to file, within seven days of the date of the filing of the submissions referred to in para (2) of this order, written submissions in reply on the making of orders for costs of the appeal to this court.
(1955) 92 CLR 200 at 205, 211-12
Cmd 4637
(1871) LR 6 CP 584 ; (1872) LR 7 CP 547
(1966) 114 CLR 213 at 219
See, for example, in the United Kingdom the Civil Liability (Contribution) Act 1978 (UK) (the 1978 Act) and in Victoria Pt IV (ss 23A-24AD) of the Wrongs Act 1958 (Vic)
United Kingdom, The Law Commission (No 79), Law of Contract -- Report on Contribution , Report 181, 15 December 1976
[1955] AC 169 , accepted by this court in Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport (1955) 92 CLR 200 at 211 because it was "highly convenient that [the legislation] should be given the meaning and application which it has received in England"
[1958] 2 QB 78 , followed by this court in Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213
[1969] 1 QB 405
The forum of the litigation was the Dust Diseases Tribunal of New South Wales (the tribunal) which is established as a court of record by s 4 of the Dust Diseases Tribunal Act 1989 (NSW). Section 10 of that statute gave the tribunal exclusive jurisdiction in the proceedings, with the same powers the Supreme Court of New South Wales otherwise would have had. Section 11(3) conferred what was analogous to an accrued jurisdiction with respect to such claims as those for contribution.
Supreme Court Act 1970 (NSW) s 63
James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1997) 15 NSWCCR 247
(1997) 15 NSWCCR 247 at 251
(1997) 15 NSWCCR 247 at 252-3
(1986) 160 CLR 626 at 670; 66 ALR 29 at 58
Walter H Wright Pty Ltd v Commonwealth [1958] VR 318 at 321
See RD Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389 at 392-3 ; 80 ALR 134
Even if the appellant had not had sufficient status on the motion by the plaintiff and the respondent brought for entry of consent judgment in the plaintiff's action, it should have been joined as a respondent to that motion. See Trade Practices Commission v Milreis Pty Ltd (1978) 18 ALR 17 at 22-3; Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 155 ; 37 ALR 66 . See also Hay v Carter [1935] Ch 397 at 407-8, 409-10; News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 523-5 ; 139 ALR 193
Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 ; 141 ALR 1
As happened in similar circumstances in the litigation which reached this court as Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 158 ; 37 ALR 66 ; see, for the intermediate appeal, Thomson Publications (Aust) Pty Ltd v Trade Practices Commission (1979) 27 ALR 551
(1967) 69 SR(NSW) 159
(1986) 160 CLR 626 at 670-1; 66 ALR 29
(1945) 70 CLR 141
(1945) 70 CLR 141 at 165-6
Section 58E of the Commonwealth Conciliation and Arbitration Act 1904 (Cth)
at 249. (The work was published in 1901.)
Sometime Clerk to the House of Commons and Parliamentary Counsel to the Treasury
Ilbert, Legislative Methods and Forms (1901) p 248
Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 at 221
(1966) 114 CLR 213 at 221
(1955) 92 CLR 200 at 212
Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 616-17 ; 141 ALR 1
(1955) 92 CLR 200 at 212-13
Nickels v Parks (1948) 49 SR(NSW) 124. See also Slade & Kempton (Jewellery) Ltd v N Kayman Ltd [1969] 1 WLR 1285 at 1289-90 ; [1969] 3 All ER 786 at 790-1
(1965) 114 CLR 153
[1953] 2 QB 501 at 519
(1955) 92 CLR 200 at 210
(1966) 114 CLR 213 at 218
[1955] AC 169
(1966) 114 CLR 213 at 218-19
Hood v Commonwealth [1968] VR 619 at 622-4; Hart v Hall & Pickles Ltd [1969] 1 QB 405 at 410; County of Parkland No 31 v Stetar [1975] 2 SCR 884 at 897; Quinn v Llesna Rubber Co Pty Ltd [1989] VR 347 at 350
Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport (1955) 92 CLR 200 at 211
(1966) 114 CLR 213 at 222
(1966) 114 CLR 213 at 221
[1969] 1 QB 405 . See also Canberra Formwork Pty Ltd v Civil & Civic Ltd (1982) 41 ACTR 1 at 17 (non-prosecution); Re Securitibank Ltd [1986] 2 NZLR 280 at 283 (leave to discontinue)
Chamberlain v DCT (1988) 164 CLR 502 at 508 ; 78 ALR 271
(1885) 10 App Cas 680
(1980) 25 SASR 468 at 472
Law Reform (Married Women and Tortfeasors) Act 1935 (UK) (25 & 26 Geo 5, c 30). The Act has been followed in Australia, Canada, New Zealand and elsewhere. By s 8(2), the Act did not extend to apply in Scotland or in Northern Ireland.
Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport (1955) 92 CLR 200 at 211
(1955) 92 CLR 200 at 207
(1966) 114 CLR 213 at 219-20
cf Wrongs Act 1958 (Vic) s 23B; Wrongs Act 1936 (SA) s 25; Tortfeasors and Contributory Negligence Act 1954 (Tas) s 3; Law Reform Act 1936 (NZ) s 17(c)
Established by the Dust Diseases Tribunal Act 1989 (NSW) s 4. The tribunal has exclusive jurisdiction to hear and determine such proceedings: s 10
This point was noted by the New South Wales Court of Appeal. See James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1997) 15 NSWCCR 247 at 248
Transcript of Evidence, Dust Diseases Tribunal of New South Wales, 9 November 1995 at 107
Act s 5(1)(c). See Brambles (1966) 114 CLR 213
(1967) 69 SR(NSW) 159 at 187-8 per Asprey JA, 189 per Holmes JA (concurring), 174-5 per Walsh JA (dissenting on this point)
James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1997) 15 NSWCCR 247 (Mason P, Beazley and Stein JJA)
[1955] AC 169
(1997) 15 NSWCCR 247 at 250
(1997) 15 NSWCCR 247 at 250, 252
(1997) 15 NSWCCR 247 at 251
For example by Barwick CJ in Brambles (1966) 114 CLR 213 at 219
(1997) 15 NSWCCR 247 at 252-3
New South Wales, Law Reform Commission, Contribution Between Persons Liable for the Same Damage (Discussion Paper 38), (1997) (hereafter NSWLRC DP 38)
Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Bill 1998 (NSW) (Draft). See Sch 1 para [5] inserting s 12C in the Dust Diseases Tribunal Act 1989 (NSW)
The transcript shows that special leave was granted by majority. See James Hardie & Coy Pty Ltd v Seltsam Pty Ltd , Transcript of Special Leave Proceedings, High Court of Australia, 19 May 1998 at 13
cf Bitumen and Oil Refineries (1955) 92 CLR 200 at 207
Genders v Government Insurance Office of New South Wales (1959) 102 CLR 363 at 376-7 referring to Merryweather v Nixan (1799) 8 TR 186 ; 101 ER 1337 ; cf Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555 at 585-6
Horwell v London General Omnibus Co Ltd (1877) LR 2 Ex D 365 at 377, 379; The Koursk [1924] P 140 at 158
Adamson v Jarvis (1827) 4 Bing 66 at 73 ; 130 ER 693 at 696 per Best CJ cited by Lord Herschell LC in Palmer v Wick and Pulteneytown Steam Shipping Co [1894] AC 318 at 324
(1799) 8 TR 186 ; 101 ER 1337
[1894] AC 318 at 324
[1894] AC 318 at 333
Directors Liability Act 1890 (UK) ss 3, 4, 5 (later Companies (Consolidation) Act 1908 (UK) s 84(4) and Companies Act 1929 (UK) s 37(3)). See Great Britain, Law Revision Committee, Third Interim Report (1934) (Cmd 4637) at para 6 (hereafter "the Report")
Maritime Conventions Act 1911 (UK) s 3; cf Report at para 8; NSWLRC DP 38 at 7
[1915] 3 KB 586 at 592
See, for example, Moxham v Grant [1900] 1 QB 88 at 93 and Burrows v Rhodes [1899] 1 QB 816 at 828. In the latter it was held that the rule was inapplicable where the act was done in honest ignorance of the facts which constituted the unlawfulness. The plaintiff in that case was induced to take part in the Jameson Raid by a representation that the service in question was to be lawful employment.
Report at para 1
(1955) 92 CLR 200 at 212 by reference to Assam Railways and Trading Co Ltd v Commissioners of Inland Revenue [1935] AC 445 at 457-9
(1955) 92 CLR 200 at 212
Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297 at 321 ; 35 ALR 151 ; Bropho v Western Australia (1990) 171 CLR 1 at 20 ; 93 ALR 207 ; Saraswati v R (1991) 172 CLR 1 at 21-3 ; 100 ALR 193
Acts Interpretation Act 1901 (Cth) s 15AA; Interpretation Act 1987 (NSW) s 33; Interpretation of Legislation Act 1984 (Vic) s 35(a); Acts Interpretation Act 1954 (Qld) s 14A; Acts Interpretation Act 1915 (SA) s 22; Interpretation Act 1984 (WA) s 18; Acts Interpretation Act 1931 (Tas) s 8A; Interpretation Act 1967 (ACT) s 11A
Report at para 7
Report at para 7
Report at para 8
Report at para 8
Report at para 11 citing Brinsmead v Harrison (1871) LR 6 CP 584 ; (1872) LR 7 CP 547
Report at para 11
Report at para (II) (Summary of Suggested Recommendations)
s 6(1)(c)
Wimpey [1955] AC 169 at 178 per Viscount Simonds
Wimpey [1955] AC 169 at 194 per Lord Keith of Avonholm
Wimpey [1955] AC 169 at 189-90 per Lord Reid
Wimpey [1955] AC 169 at 183 per Lord Porter, 194 per Lord Keith of Avonholm
As this court held in Brambles (1966) 114 CLR 213 at 220 per Barwick CJ
(1967) 69 SR(NSW) 159 at 163
(1966) 114 CLR 213
See Law Reform Act 1936 (NZ) s 17(c) words inserted by s 35(2) of the Limitation Act 1950 (NZ); cf Re Securitibank Ltd [1986] 2 NZLR 280 at 288
[1969] 1 QB 405
[1969] 1 QB 405 at 410-11
[1955] AC 169
[1969] 1 QB 405 at 411
[1953] 1 WLR 426 at 439; [1953] 1 All ER 583 at 592
[1953] 2 QB 501 at 522-3
(1966) 114 CLR 213 at 221
The rule in Heydon's Case (1584) 3 Co Rep 7a at 7b ; 76 ER 637 at 638; Miller v Commonwealth (1904) 1 CLR 668 at 674; Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398 at 439
Fothergill v Monarch Airlines Ltd [1981] AC 251 at 280 per Lord Diplock
[1946] 1 All ER 637 at 641. See also his Lordship's speech in Magor and St Mellons Rural District Council v Newport Corporation [1952] AC 189 at 190-1. For a similar opinion, see Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 161-2 per Higgins J; cf Mills v Meeking (1990) 169 CLR 214 at 235 ; 91 ALR 16 ; Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297 at 304-5, 336 ; 35 ALR 151
[1980] AC 74 at 105
Fothergill v Monarch Airlines Ltd [1981] AC 251 at 275, 280, 281, 291
Bropho v Western Australia (1990) 171 CLR 1 at 20 ; 93 ALR 207 approving Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421-4 per McHugh JA. See also Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 109-10 ; 149 ALR 623
Diplock, "The Courts as Legislators", in Harvey (ed), The Lawyer and Justice (1978) 263 at 274; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 424 per McHugh JA. It is perhaps worthy of mention that the leading speech for the majority in the House of Lords in Wimpey was given by Viscount Simonds. Counsel for the unsuccessful appellant in that case, the tortfeasor claiming contribution, was Mr Kenneth Diplock QC
Brambles (1966) 114 CLR 213
James Hardie & Coy Pty Ltd v Seltsam Pty Ltd (1998) 159 ALR 268 at 278 per Gaudron and Gummow JJ
[1955] AC 169 at 191 per Lord Reid
Bitumen and Oil Refineries (1955) 92 CLR 200 at 212
Bitumen and Oil Refineries (1955) 92 CLR 200 at 212-13
See Wimpey [1955] AC 169 at 179
Littlewood v George Wimpey & Co Ltd [1953] 2 QB 501 at 510 per Singleton LJ
Inland Revenue Commissioners v Ayrshire Employers Mutual Insurance Association Ltd [1946] 1 All ER 637 at 641 per Lord Simonds
[1969] 1 QB 405
See, for example, Nickels v Parks (1948) 49 SR(NSW) 124 at 129 per Jordan CJ
For example, Workers' Compensation Act 1926 (NSW) s 64(b)
Government Insurance Office of New South Wales v CE McDonald (NSW) Pty Ltd (1991) 25 NSWLR 492 applying Tooth & Co Ltd v Tillyer (1956) 95 CLR 605 at 611-12; cf Watson v Newcastle Corporation (1962) 106 CLR 426 at 441
[1969] 1 QB 405 at 411
(1966) 114 CLR 213 at 221
Brambles (1966) 114 CLR 213 at 221
See Wimpey [1955] AC 169 at 196 per Lord Keith of Avonholm (diss)
[1958] AC 95 at 101. Lord Denning allowed two exceptions but neither applies here. The appellant was not a privy to the judgment in favour of the respondent; nor was the appellant precluded from challenging the judgment, as it did from the start.
Fleming, The Law of Torts , 9th ed (1998) p 293
Walsh JA in Castellan (1967) 69 SR(NSW) 159 at 176 said: "The mere fact that [D2] would have had a good defence against the plaintiff, once the judgment against [D1] had been satisfied, would not bar the claim for contribution of [D1] against [D2]. In the separate action now being assumed, it would be sufficient for [D1] to show that, if sued at any time ... [D2] would have been liable to the plaintiff." Holmes JA at 188 said that he would have agreed with Walsh JA but for what he took to be required by the precedent of Wimpey .
(1986) 66 ALR 29 ; 160 CLR 626 at 671 per Brennan J, 679-80 per Deane J concurring
Giles v Wooldridge (1883) 17 SALR 38 at 40-1; The Bellcairn (1885) 10 PD 161 at 165-6; Scott v Meehan (1899) 1 WALR 179 at 180
(1986) 160 CLR 626 at 670; 66 ALR 29 at 58
3rd ed (1996) at para 41
NSWLRC DP 38
Ontario, Law Reform Commission, Report on Contribution Among Wrongdoers and Contributory Negligence (1988) pp 272-3
The draft bill expressly reserves the operation of s 5(1)(a) of the Act. See Sch 1 para [5] inserting s 12C(2) in the Dust Diseases Tribunal Act 1989 (NSW)
See Law Reform (Miscellaneous Provisions) Ordinance 1955 (ACT) s 11(4); cf Canberra Formwork v Civil & Civic (1982) 41 ACTR 1
Dust Diseases Tribunal Act 1989 (NSW) ss 4, 10
James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1997) 15 NSWCCR 247
[1955] AC 169
(1967) 69 SR(NSW) 159 at 188 per Asprey JA
(1966) 114 CLR 213 at 221
(1997) 15 NSWCCR 247 at 251
The Koursk [1924] P 140 at 158
Genders v Government Insurance Office of New South Wales (1959) 102 CLR 363 at 376-7 referring to Merryweather v Nixan (1799) 8 TR 186 ; 101 ER 1337
(1966) 114 CLR 213 at 219
[1953] 1 WLR 418 ; [1953] 1 All ER 328
[1958] 2 QB 78
[1955] AC 169
(1966) 114 CLR 213 at 221
(1986) 160 CLR 626 ; 66 ALR 29
(1967) 69 SR(NSW) 159 at 177
(1986) 160 CLR 626 at 671; 66 ALR 29 at 58
(1967) 69 SR(NSW) 159
(1967) 69 SR(NSW) 159 at 173
[1969] 1 QB 405
See also Canberra Formwork Pty Ltd v Civil & Civic Ltd (1982) 41 ACTR 1
[1969] 1 QB 405 at 411
[1955] AC 169 at 179
[1955] AC 169 at 191
Dust Diseases Tribunal Act 1989 (NSW) s 4(2)
Chamberlain v DCT (1988) 164 CLR 502 at 508 ; 78 ALR 271 . See also Giles v Wooldridge (1883) 17 SALR 38 at 40-1; The Bellcairn (1885) 10 PD 161 at 165-6; Scott v Meehan (1899) 1 WALR 179 at 180; Hart v Hall & Pickles Ltd [1969] 1 QB 405 at 411, 412
[1968] VR 619
[1988] 1 WLR 903
Victoria, Legislative Assembly, Parliamentary Debates (Hansard ), 19 September 1985 at 223
Wrongs Act 1936 (SA) s 25(1)(c)
Tortfeasors and Contributory Negligence Act 1954 (Tas) s 3(1)(c)
By the Limitation Act 1950 (NZ) s 35(2)
cf the statutory mandate contained in s 63 of the Supreme Court Act 1970 (NSW):
"The Court shall grant, either absolutely or on terms, all such remedies as any party may appear to be entitled to in respect of any legal or equitable claim brought forward in the proceedings so that, as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided."
(1986) 160 CLR 626 at 670; 66 ALR 29 at 58
George Wimpey & Co Ltd v British Overseas Airways Corp [1955] AC 169 ; WH Wright Pty Ltd v Commonwealth [1958] VR 318 at 321; Castellan v Electric Power Transmission Pty Ltd (1967) 69 SR(NSW) 159 at 177, 188, 189
3rd ed (1996), §41
(1967) 69 SR(NSW) 159 at 187-8 per Asprey JA
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