Consent Judgment Set Aside in Dust Disease Case

In a dust disease claim involving mesothelioma and asbestos exposure, a consent judgment was set aside due to procedural issues. The court found that the judgment was improperly entered without all parties being heard, as per the Civil Procedure Act 2005 and Dust Diseases Tribunal regulations.

Dust Diseases Tribunal New South Wales Medium Neutral Citation: [NAME] and [NAME] as Executors for the Estate of the late [NAME] v [NAME] [2017] NSWDDT 3 Hearing dates: 23 May, 6, 13, 20 June 2017 Date of orders: 20 June 2017 Decision date: 20 June 2017 Before: Judge AC Scotting Decision: 1 The consent judgment filed on 6 April 2017 is set aside. 2 The notice of motion is otherwise dismissed. 3 [NAME] is to pay [NAME]'s costs of the motion relating to order 1 on the ordinary basis. Catchwords: DUST DISEASES – plaintiff- [NAME] resolution process – mesothelioma - asbestos PRCEDURAL – notice of motion – setting aside of consent judgment – costs – cost of mediation – regulation – power of mediator to excuse parties from attendance at mediation – contributions assessment – determination OTHER – successful party – definition – power to award costs – appropriate order Legislation Cited: Civil Procedure Act 2005 s.26 Dust Diseases Tribunal Act 1989 Dust Diseases Tribunal Regulation 2013 Cl 18, 32(4), 34(1), 38(2), 40(1), 40(2), 40(2)(a), 40(4), 50, 56 Dust Diseases Tribunal Regulation 2007 Cl 46(3) Cases Cited: Cockatoo Dockyard Pty Limited v Campbell [2001] NSWCA 468 Stewart v QBE Insurance (Australia) Limited [2008] NSWDDT 32 Broers v Australian Co-operative Foods Limited [2008] NSWDDT 38 Woodford v Bluescope Steel [2007] NSWDDT 16 Category: Procedural and other rulings Parties: [NAME] (First Defendant/ Applicant) [COMPANY] ([COMPANY]) T/[COMPANY] (Third Defendant/ Respondent) Representation: Counsel:

[redacted] [NAME] (Third Defendant/ Respondent)

Solicitors:

[redacted] [NAME] (Third Defendant/ Respondent) File Number(s): 43/2015, 43/2015/1 Publication restriction: None

1. The first defendant ([NAME]) seeks orders setting aside the consent judgment entered between the third defendant ([NAME]) and the plaintiff, together with orders for costs relating to the motion and to a failed mediation.

Factual background 1. On 16 February 2015 [NAME] filed a Statement of Claim seeking damages for personal injury relating to his contraction of mesothelioma as a result of his inhalation of asbestos. The defendants named were [NAME], the second defendant (the State of New South Wales) and [NAME]. On 16 March 2015 [NAME] issued the first cross-claim against [COMPANY] ([NAME]).

2. The matter was removed from the [NAME] ([NAME]) on 17 March 2015 because of [NAME]' deteriorating health. The matter was listed to take his evidence at his home in Wagga Wagga on 26 March 2015. [NAME] died on 12 April 2015.

3. On 16 February 2016 the Tribunal granted leave to file an amended Statement of Claim to substitute the executors of [NAME]' estate as the plaintiffs. The amended Statement of Claim was filed on 6 April 2016. A resumption proposal was circulated amongst the parties on or about 11 May 2016.

4. On 13 May 2016 a contributions assessor was appointed. A determination was made by the contributions assessor on 20 May 2016 (the CAD). The CAD provided for the following contributions to the plaintiff's claim for the purposes of clause 56 of the Regulations: [NAME] (D1) 20%; State of NSW (D2) 25%; [NAME] (D3) 50%; [NAME] (XD1) 5% 1. The contributions assessor appointed [NAME] as the [NAME] manager for the claim.

2. The parties ultimately agreed to mediation before [NAME] (the mediator) on 7 April 2017.

3. At the mediation there was no appearance for [NAME]. It became apparent that the plaintiff and [NAME] had agreed that there would be a verdict for [NAME] with no order as to costs. A consent judgment to that effect had been filed with and entered by the Tribunal, without the other defendants being heard.

4. On hearing of the motion, [NAME] conceded that the consent judgment should not have been entered and that it should be set aside: Cockatoo Dockyard Pty Limited v Campbell [2001] NSWCA 468.

5. The remaining question to be dealt with is; what is the appropriate order for the costs of the mediation?

[NAME]'s argument 1. [NAME]'s position was that it was at liberty to and proper for it to continue to negotiate with the plaintiff in the course of the delay: clause 34(2) Dust Diseases Tribunal Regulations 2013 (the Regulations). The CAD did not alleviate the plaintiff from the necessity to prove its case against [NAME], if the claim could not otherwise be resolved: Stewart v QBE Insurance (Australia) Limited [2008] NSWDDT 32 and Broers v Australian Co-operative Foods Limited [2008] NSWDDT 38. [NAME] says that it was entitled to settle with the plaintiff on the basis that it would get a verdict in its favour and that it was excused from attending the mediation by the mediator. [NAME] contended that [NAME]'s evidence did not go far enough to demonstrate that the mediation failed because of [NAME]'s position and or non-attendance.

[NAME]'s argument 1. [NAME]'s position was that once the matter was referred to mediation that each party had a duty to participate in the mediation, in good faith and that the [NAME] manager must be present or represented at the mediation: clause 38(2) and 40(2)(a) of the Regulations. [NAME] contended that [NAME]'s evidence did not support the contention that it was excused from attending the mediation by the mediator.

Consideration 1. This claim has always been the subject of the [NAME] except for a short period between 17 March 2015 and 26 March 2015, when Divisions 4 and 5 of the [NAME] were suspended pending further order of the trial judge. On 26 March 2015 Judge Kearns SC made orders consistent with the [NAME] having further application to it. 2. [NAME] then died. The [NAME] was suspended pursuant to clause 19 of the Regulations. The resumption proposal dated 11 May 2016 referred to in the Affidavit of [NAME] sworn 13 April 2017 is not on the Court file. It is clear however that the claim proceeded as if it was included in the [NAME], albeit not subject to the usual or expected timeframes.

3. The effect of the claim being the subject of the [NAME] is that it is not subject to the provisions of the rules of court, any direction or order of the Tribunal under any provision of the Dust Diseases Tribunal Act 1989, or any other Act or rules of court as to any steps to be taken for the referral of the claim to mediation: clause 18 of the Regulations. Significantly, the referral of the claim to mediation is not made pursuant to the power in section 26 Civil Procedure Act 2005, but by operation of clause 34(1) of the Regulations.

4.

Accordingly, the only power the Tribunal has is the power to award the costs of mediation in accordance with clause 50 of the Regulations. The power given to the Tribunal is to award costs (or not) to "the party that is successful before the Tribunal". At the present stage of the proceedings that party is yet to be identified and the Tribunal has no jurisdiction to make an award for costs relating to the unsuccessful mediation. This is consistent with the Tribunal's interpretation of clause 46(3) the Dust Diseases Tribunal Regulation 2007, which in my view is correct: Woodford v Bluescope Steel [2007] NSWDDT 16.

5. It is premature for me to consider the merits of the arguments on the costs of the mediation. However for the benefit of future mediations, I would not read clause 40(4) of the Regulations as giving the power to the mediator to excuse a party from attending a mediation, especially if to do so would be inconsistent with the other provisions of clauses 40(1) and (2).

6. The orders I make are as follows:

1. The consent judgment filed on 6 April 2017 is set aside.

2. The notice of motion is otherwise dismissed. 3. [NAME] is to pay [NAME]'s costs of the motion relating to order 1 on the ordinary basis.

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 June 2017