Bestcare Foods v Origin Energy; Origin Energy v Bestcare Foods [2007] NSWSC 354

Bestcare Foods v Origin Energy; Origin Energy v Bestcare Foods [2007] NSWSC 354

The Regulation was validly made under s 3B(3) of the Civil Liability Act 2002 (NSW). Section 3B(3) expressly contemplates exclusion by regulation of a specified class or classes of civil liability from the operation of the Act. Pt 4 apportionable claims are a class or classes of civil liability defined by a general or collective formula, and adding a temporal limitation for liability arising before 26 July 2004 does not prevent that category from being a class of civil liability. Although the Regulation could not be sustained under s 4(2) alone or under par 1(1) of Schedule 1 as an independent power, it was within the express power in s 3B(3).

Jurisdiction
Australia
Judgment Date
19 April 2007
Procedural Posture
Administrative Law Proceeding Concerning Validity of Regulation / Separate Question and Summons for Declaration in the Supreme Court of New South Wales, Equity Division, Commercial List
Outcome
Regulation valid; separate question answered No; summons dismissed with costs.
Legal Topics
['validity of Subordinate Legislation' 'regulation Making Power' 'proportionate Liability' 'civil Liability Act 2002 (nsw)' 'classes of Civil Liability']
['administrative Law' 'statutory Interpretation' 'civil Liability'] ['validity of Subordinate Legislation' 'regulation Making Power' 'proportionate Liability' 'civil Liability Act 2002 (nsw)' 'classes of Civil Liability']

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Procedural Posture

Administrative Law Proceeding Concerning Validity of Regulation / Separate Question and Summons for Declaration in the Supreme Court of New South Wales, Equity Division, Commercial List

Legal Issues

  1. 1 ['Whether cl 3 of the Civil Liability Amendment (Proportionate Liability) Regulation 2004 (NSW), inserting regulation 3 into the Civil Liability Regulation 2003 (NSW), was beyond power and invalid.' 'Whether the Regulation was invalid because inconsistent with the Civil Liability Act 2002 (NSW).' 'Whether apportionable claims falling within Pt 4 of the Act and limited by a period of time constitute a specified class or classes of civil liability under s 3B(3) of the Act.']

Ratio Decidendi

The Regulation was validly made under s 3B(3) of the Civil Liability Act 2002 (NSW). Section 3B(3) expressly contemplates exclusion by regulation of a specified class or classes of civil liability from the operation of the Act. Pt 4 apportionable claims are a class or classes of civil liability defined by a general or collective formula, and adding a temporal limitation for liability arising before 26 July 2004 does not prevent that category from being a class of civil liability. Although the Regulation could not be sustained under s 4(2) alone or under par 1(1) of Schedule 1 as an independent power, it was within the express power in s 3B(3).

Court Disposition

Regulation valid; separate question answered No; summons dismissed with costs.

Orders

  • ['The answer to the separate question Is regulation 3 of the Civil Liability Regulation 2003 (NSW) invalid? is No.' 'The summons is dismissed with costs.' 'Origin is to pay the costs of the motion and the determination of the separate question.']