Bakulev v Bluescope Steel (AIS) Pty Ltd [2024] NSWDDT 15

Dust Diseases Tribunal New South Wales Medium Neutral Citation: Bakulev v Bluescope Steel (AIS) Pty Ltd [2024] NSWDDT 15 Hearing dates: 20 November 2024 Date of orders: 21 November 2024 Decision date: 21 November 2024 Before: Russell SC DCJ Decision: (1) Dismiss the Notice of Motion filed by the defendant on 7 November 2024. (2) Order each party to pay his or its own costs of the Notice of Motion. Catchwords: DUST DISEASES – notice of motion – claims resolution process – contributions assessment determination – review of Registrar's decision not to refer for a fresh determination of apportionment – Tribunal has no jurisdiction to conduct review as proceedings are in the claims resolution process Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Diseases Tribunal Regulation 2019 (NSW), cll 16, 17, 52(1), 52(4), 52(5), 52(9), 52(10), 52(11) Uniform Civil Procedure Rules 2005 (NSW), r 49.19(1) Cases Cited: QBE Insurance (Australia) Ltd v Wallaby Grip Ltd [2007] NSWCA 43 Category: Procedural rulings Parties: Sasho Bakulev (As Legal Personal Representative of the Late Todor Bakulev) (Plaintiff) Bluescope Steel (AIS) Pty Ltd (First Defendant) Representation: Counsel: S Tzouganatos (Plaintiff) D Andersen (solicitor) (First Defendant)

Solicitors: Koutzoumis Lawyers (Plaintiff) HWL Ebsworth Lawyers (First Defendant) File Number(s): DDT 2023/443945

Judgment

Introduction 1. By a Statement of Claim filed on 7 December 2023 the plaintiff Mr Todor Bakulev sued Bluescope Steel (AIS) Pty Ltd (Bluescope) seeking damages for asbestos-related pleural disease (ARPD) and associated pleural plaques and diffuse pleural thickening. 2. Mr Todor Bakulev died on 24 March 2024. These proceedings have been continued by his son Mr Sasho Bakulev, who is now the plaintiff. 3. By a first cross claim filed on 19 July 2024 Bluescope sought contribution from Amaca Pty Ltd (Amaca). 4. By a second cross claim filed on 22 July 2024 Amaca sought contribution from CSR Ltd (CSR). 5. The matter is still within the Claims Resolution Process (CRP) and there is a mediation scheduled to be held on 26 November 2024.

Bluescope Notice of Motion 1. On 7 November 2024 Bluescope filed a Notice of Motion seeking the following orders: "1. Pursuant to Rules 49.19 and 49.20 of the Uniform Civil Procedure Rules, that the Tribunal review the decision of the Registrar made on 17 October 2024, declining to make a referral to a Contributions Assessor for a Determination of Apportionment in these proceedings under clause 52 of the Dust Diseases Tribunal Regulation 2019 (NSW). 2. Pursuant to Rule 49.15 of the Uniform Civil Procedure Rules, that the Tribunal direct the Registrar to make a referral to a Contributions Assessor for a Determination of Apportionment in these proceedings under clause 52 of the Dust Diseases Tribunal Regulation 2019 (NSW). 3. Such further or other Order as the Tribunal thinks fit." 1. In support of the Motion Bluescope relied upon the affidavit of its solicitor Mr Andersen affirmed on 7 November 2024 (DX 1). That affidavit shows that by a letter dated 24 September 2024 the Acting Registrar of the Dust Diseases Tribunal appointed the Contributions Assessor pursuant to cl 52(1) of the Diseases Tribunal Regulation 2019 (NSW) (the DDTR). 2. The Contributions Assessor provided a document headed "Determination of Apportionment" which was filed on 10 October 2024 (Determination). 3. By a letter dated 15 October 2024 Mr Andersen wrote to the Registrar of the Tribunal referring to the Determination. 4. Mr Andersen said: "1. We refer to the document titled 'Determination of Apportionment' dated 9 October 2024, sealed on 10 October 2024 (Determination). 2. On 24 September 2024 this matter was referred to a Contributions Assessor, to provide a Determination of Apportionment, pursuant to clause 52 of the Dust Diseases Tribunal Regulation 2019 (NSW) (Regulation). 3. It is BlueScope's respectful contention that the required statutory task is yet to be performed. 4. Firstly, the Determination was 'made' under repealed delegated legislation. 5. Secondly, the Determination does not contain any process of evaluation and thus cannot constitute a Determination of Apportionment as that expression is used in the Regulation. In particular: (a) there is nothing in the Determination connecting any of the evidence and submissions with the ultimate decision to assess BlueScope as both a 'Category 1' and 'Category 2' tortfeasor; (b) likewise, there is nothing in the Determination connecting the evidence and submissions with the ultimate decision not to vary the Standard Presumptions as contained in the applicable delegated legislation. 6. In these circumstances, there is a wholesale absence of performance of the statutory task of issuing a Determination of Apportionment. 7. The privative clause contained in clause 52(9) of the Regulation has no application to the present circumstances as there is no Determination of Apportionment. The function in question under cl 52(4) is yet to be performed. 8. We refer to the decision of the High Court of Australia in Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11. It was there said: 'There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all: at [51], per Gaudron and Gummow JJ.' 9. To similar effect are the statements at [152]-[153] per Hayne J and [163]-[165] per Callinan J. 10. We respectfully request that the matter be referred afresh to a different Contributions Assessor." 1. The Registrar replied to Mr Andersen by an email dated 17 October 2024. The response of the Registrar was as follows: "The Dust Diseases Tribunal Regulation 2019 does not give me any powers to 'refer afresh to a different Contributions Assessor'." 1. That view was of course expressed in the context of Bluescope's request for the Registrar to consider the Determination, find that it was defective in the ways put forward by Bluescope, and refer the matter afresh to a different Contributions Assessor. 2. Bluescope then filed the Notice of Motion on 7 November 2024 seeking a review of this decision of the Registrar and an order directing the Registrar to make a referral to a new Contributions Assessor for a fresh Determination of Apportionment. 3. In support of the Motion Bluescope filed Written Submissions on 19 November 2024 (MFI 1). Those written submissions set out large parts of the Replies of Bluescope, Amaca and CSR. The Replies were some of the documents put before the Contributions Assessor.

Review of the Decision of a Registrar 1. Rule 49.19(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides as follows: "49.19 Review of registrar's directions, certificates, orders, decisions and other acts (1) Subject to subrule (2), if in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit."

The Claims Resolution Process 1. Part 3 of the DDTR is headed "Claims resolution process for asbestos-related conditions". 2. Clause 12 of the DDTR sets out the objectives of the CRP as follows: "12 Objectives of claims resolution process The objectives of the claims resolution process are as follows— (a) to foster the early provision of information and particulars concerning claims in respect of asbestos-related conditions, (b) to encourage early settlement of claims, (c) to reduce associated legal and administrative costs." 1. Part 3 Division 2 of the DDTR deals with "Claims subject to the claims resolution process". 2. Clause 16 of the DDTR provides that a claim in respect of an asbestos-related condition is subject to the CRP once the claim is filed. Such a claim remains subject to the CRP until the claim is settled by mediation or otherwise, if the mediation has been completed but is unsuccessful. 3. Clause 17 of the DDTR deals with the "Effect of claim being subject to claims resolution process". Clause 17 provides as follows: "17 Effect of claim being subject to claims resolution process (1) While a claim is subject to the claims resolution process— (a) the parties to the claim must comply with the provisions of this Part, and (b) proceedings in the Tribunal to determine the claim are deferred and the claim is not subject to case management by the Tribunal, and (c) the claim is not subject to the provisions of rules of court, or any direction or order of the Tribunal under a provision of the Act, any other Act or rules of court, as to any steps to be taken in proceedings on the claim or for the referral of the claim for alternative dispute resolution, such as mediation. Note— Clause 20 provides for the removal of certain claims from the claims resolution process. (2) This clause does not affect the application of the practice and procedures of the Tribunal with respect to— (a) the service of the statement of claim or cross-claim, including the service of the statement of claim outside Australia, or (b) the amendment of the statement of claim to join a party before the plaintiff's statement of particulars is served, or (c) the amendment of the statement of claim to join a party to the claim at the request of the plaintiff where the Tribunal is satisfied that it is necessary to do so to preserve the plaintiff's cause of action, or (d) the amendment of the statement of claim to add a compensation to relatives claim after the death of the plaintiff, or (e) the making of cross-claims, except to the extent of any inconsistency with clause 25, or (f) the making of orders to give effect to any agreement or arrangement between the parties, whether resulting from an offer of compromise or otherwise, or (g) the issue and return of subpoenas, or (h) the granting of leave to commence an action under section 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017, or (i) the making of directions or orders to give effect to, or consequent on, an amendment of the statement of claim to institute proceedings against a new party or to substitute a party, or (j) the amendment of the statement of claim to discontinue proceedings against a party. Note— If a claim is not settled through the claims resolution process, proceedings in the Tribunal can proceed or the parties can decide to continue with attempts to settle the claim. (3) Without limiting subclause (1), while a claim is subject to the claims resolution process and before the plaintiff's statement of particulars is served, the plaintiff may, without leave, amend the plaintiff's statement of claim. (4) Subclause (3) does not apply if the plaintiff's statement of claim is filed in conjunction with an application under clause 20 for a determination by the Tribunal that the claim is urgent and that application results in the making of a determination. Note— When a statement of claim is filed in conjunction with an application under clause 20, clause 23(7) provides that a statement of particulars is not required."

Consideration 1. These proceedings have been subject to the CRP ever since they were filed. Until a mediation has been concluded, either successfully or unsuccessfully, the Tribunal has no jurisdiction to determine the claim or make case management orders for the claim – cl 17(1)(b) of the DDTR. Further, the claim is not subject to the provisions of rules of court – cl 17(1)(c) of the DDTR. This of course would include the rules contained in the UCPR. 2. Clause 17(2) preserves the jurisdiction of a judge of the Tribunal in respect of listed matters. A classic example, arising in the present proceedings, is the power of a judge to remove the name of the deceased original plaintiff and substitute as the new plaintiff, the legal personal representative of the original plaintiff – cl 17(2)(c) and (i). 3. Unless a judge of the Tribunal is given power to deal with an interlocutory matter by cl 17(2) of the DDTR, a judge has no power to determine the claim, apply the provisions of any rules, or conduct case management of the proceedings. 4. Nowhere in cl 17(2) of the DDTR is a power given to a judge of the Tribunal, while a claim is subject to the CRP, to review the decision of a registrar. It would have been a simple matter to include such a power in cl 17(2), if it was intended that judges of the Tribunal should exercise power to review a decision of the Registrar.

The Tribunal has No Jurisdiction to Make the Orders Sought 1. Because the jurisdiction of the Tribunal is limited by cl 17 of the DDTR, and in particular because no power is given by cl 17(2) of the DDTR to a judge of the Tribunal (while proceedings are still in the CRP) to review the decision of a registrar, I find that I have no jurisdiction to make the orders sought in the defendant's Notice of Motion. For that reason the Motion will be dismissed.

In the Alternative 1. If on appeal I were found to be incorrect in my conclusion concerning lack of jurisdiction, I indicate my views concerning a theoretical review of the decision of the Registrar. 2. The appointment of a Contributions Assessor to conduct a Contributions Assessment Determination arises from cl 52(1) of the DDTR. Clause 52 applies where the parties have failed to agree upon apportionment. Clause 52(1) of the DDTR provides as follows: "52 Determination of apportionment failing agreement (1) If an apportionment statement setting out details of the apportionment of liability agreed to by the defendants has not been filed with the registrar by the end of the period within which the defendants are required to reach agreement as to apportionment, the registrar is to refer the matter to a Contributions Assessor for determination on the next business day following the end of that period." 1. The matters to be taken into account by a Contributions Assessor are set out within cl 52 as follows: "(4) The Contributions Assessor to whom a matter is referred is to determine the contribution that each defendant is liable to make and is to make that determination on the assumption that the defendants are liable and solely on the basis of— (a) the plaintiff's statement of particulars and the defendants' replies on the claim, and (b) standard presumptions as to apportionment determined by the Minister for the purposes of this clause by order published in the Gazette. Editorial note— For the standard presumptions as to apportionment determined by the Minister see the Dust Diseases Tribunal (Standard Presumptions—Apportionment) Order 2007. (5) In addition to the documents referred to in subclause (4)(a), a Contributions Assessor may (but need not) take into account any of the following— (a) any of the plaintiff's statement of particulars and the defendants' replies that were amended after they were first filed, (b) any of the defendants' replies on the claim that were filed late." 1. By cl 52(10) of the DDTR, the Registrar is to provide the plaintiff and the defendant with a copy of the Contributions Assessment Determination as soon as practicable after the determination is made. The Registrar did this. 2. Clause 52(11) of the DDTR provides as follows: "(11) If there is a clerical mistake, or an error arising from an accidental slip or omission, in a determination of a Contributions Assessor, the Contributions Assessor or another Contributions Assessor may correct the mistake or error— (a) of the Contributions Assessor's own motion within 7 business days after the determination is made, or (b) on the application of any defendant (made to the Contributions Assessor whose determination is in question within 7 business days after the determination is made) as soon as practicable after the application for correction is made." 1. Bluescope has made no application to the Contributions Assessor to correct a clerical mistake or an error arising from an accidental slip or omission. One of the complaints made by Bluescope about the Determination is that it contains a heading indicating that it was made pursuant to a repealed version of the DDTR. I regard this as purely a clerical mistake or an accidental slip or omission, which could have been corrected by the defendant applying to the Contributions Assessor under cl 52(11) of the DDTR. To now say, as Bluescope does, that this clerical mistake means that the Determination has not been validly made, would be a triumph of form over substance. 2. Clause 52(9) of the DDTR provides as follows: "(9) A determination of a Contributions Assessor under this Division cannot be challenged, reviewed, quashed or called into question before any court of law or administrative review body in any proceedings. This subclause— (a) is not binding on the plaintiff, and (b) does not change any law relating to causation as between the plaintiff and the defendants, and (c) does not displace any law relating to the joint and several liability of the defendants, and (d) does not prevent the subsequent taking, or determination by the Tribunal, of a dispute between defendants as to apportionment in a separate proceeding." 1. Since a Contributions Assessment Determination cannot be "challenged, reviewed, quashed or called into question before any court of law or administrative review body in any proceedings", it is hard to imagine that there is any scope left at all for the validity of a Contributions Assessment Determination to be challenged, while proceedings are still within the CRP. 2. In my view the remedy for a party aggrieved by a finding of a Contributions Assessor is to be found in cl 52(9)(d), which preserves the right of any party subject to a Contributions Assessment Determination to bring a dispute about apportionment before the Tribunal in separate proceedings. Such apportionment proceedings would be heard by a judge and determined, not by the artificial constructs imposed by the CRP, but by the law in relation to apportionment between tortfeasors, including the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). 3. The Court of Appeal considered an earlier version of the DDTR in QBE Insurance (Australia) Ltd v Wallaby Grip Ltd [2007] NSWCA 43, where at [15] Handley JA said: "Division 5 establishes a procedure for the summary but provisional determination of contribution claims in order to facilitate settlement of the plaintiff's claim and the satisfaction of any judgment he may obtain by judicial decision or settlement. A defendant or cross-defendant who is dissatisfied with the summary determination can pursue its strict rights and seek a more favourable determination at a trial but will be subject to significant costs sanctions if a substantially better result is not achieved. Meanwhile the summary determination is immediately enforceable. A clear purpose of the scheme is to prevent the final determination of the plaintiff's claim being delayed by contribution disputes." 1. At [42] Handley JA said the following: "…The Division establishes a procedure for the summary determination of such claims, on an avowedly rough and ready basis, which allows disputes as to liability and quantum to be determined judicially in due course when any necessary adjustments can be made."

Theoretical Review of the Registrar's Decision 1. As previously recited, the Registrar indicated by email that in his view he did not have any power under the DDTR to refer the matter afresh to a different Contributions Assessor, based upon the reasons advanced by Bluescope. 2. In my view that statement is undoubtedly correct as a matter of law. While cl 52(1) of the DDTR gives the Registrar a power to refer the matter to a Contributions Assessor for determination, thereafter the power and obligation of the Registrar is limited to providing the plaintiff and each defendant with a copy of the Contributions Assessment Determination (cl 52(10)). 3. It is to be noted that if there is a clerical mistake or an error arising from an accidental slip or omission, a party may approach the Contributions Assessor directly, and the Registrar is not involved in any way. 4. Unless the Registrar is given a specific power to make a value judgment about the worth of a Contributions Assessment Determination, and thereafter refer the matter afresh to a new Contributions Assessor, a registrar cannot do either of those things. There is no power given to the Registrar to do what Bluescope sought, and, even on a theoretical basis, if I had jurisdiction to review the decision of the Registrar, I would have found that his decision was correct in law. 5. I will not embark upon a consideration of the form or merits of the Determination. I have no power to do so. Nor did the Registrar. If the contentions of Bluescope were accepted, then a registrar would be required to scrutinise every Contributions Assessment Determination as if he or she were conducting some form of judicial review of an administrative decision. It goes without saying that if that was the Registrar's obligation, the CRP would grind to a halt, and the objectives of the CRP set out in cl 12 of the DDTR would be utterly defeated. 6. In oral submissions Bluescope urged me to "give guidance" to Contributions Assessors as to whether Bluescope is a Category 1 or a Category 2 defendant, ie whether or not it was in business as a miner, manufacturer, supplier or installer of asbestos. It was submitted that Bluescope had been "long suffering" as the result of many previous Tribunal decisions and Contributions Assessment Determinations. 7. I decline to embark upon that task. A Contributions Assessment Determination is based upon assertions and submissions, not upon evidence. It is not my role and it is not within my power to provide judicial advice to Contributions Assessors generally, particularly in the absence of evidence and in the absence of a contradictor (counsel for the plaintiff expressed some sympathy for Bluescope's argument that it was a Category 2 and not a Category 1 defendant).

Orders 1. The orders of the Tribunal are: 1. Dismiss the Notice of Motion filed by the defendant on 7 November 2024. 2. Order each party to pay his or its own costs of the Notice of Motion.

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