Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Allianz Australia Insurance Ltd v Bluescope Steel Limited [2012] NSWCA 240
• Hearing dates: 7 May 2012
• Decision date: 08 August 2012
• Before: Beazley JA at [1]; Macfarlan JA at [62]; Barrett JA at [63]

Decision

1. Grant leave to appeal;

2. Appeal dismissed with costs including the costs of the summons for leave to appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: PRACTICE AND PROCEDURE - Jurisdiction - Leave sought to extend time to file cross-claim against co-defendant in Dust Diseases Tribunal after judgment for plaintiff- Leave granted by trial judge - Whether the trial judge had jurisdiction to make orders extending the time in which to file a cross-claim - Dust Diseases Tribunal Act 1989, s 11.
• Legislation Cited: Civil Procedure Act 2005; Dust Diseases Tribunal Act 1989; Uniform Civil Procedure Rules 2005
• Cases Cited: Bailey v Marinoff [1971] HCA 49; 125 CLR 529; Crayford Freight Services Ltd v Coral Seatel Navigation (1998) 82 FCR 328; CSI International Co Ltd v Archway Personnel (Middle East) Limited [1978] 1 WLR 1069; DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226; Dorrough v Bank of Melbourne [1996] FCA 816; FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; 165 CLR 268; Jackson v Bluescope Steel Limited & Anor [2011] NSWDDT 2; Mangion v James Hardie & Co Pty Ltd (1990) 20 NSWLR 100; Samuels v Linzi Dresses Ltd [1981] QB 115; Seltsam v Energy Australia; Re Banham [1999] NSWCA 89; 17 NSWCCR 720; The Salybia [1910] P 25; Wallaby Grip (BAE) Pty Ltd v Eraring Energy [2004] NSWCA 269; 60 NSWLR 701
• Category: Principal judgment
• Parties: Allianz Australia Insurance Limited (Appellant); Bluescope Steel Limited (formerly known as John Lysaght (Australia) Limited) (Respondent)
• Representation: Counsel: G F Little SC; D C Morgan (Appellant); T G R Parker SC; G Parker (Respondent); Solicitors: Ellison Tillyard Callanan (Appellant); Piper Alderman (Respondent)
• File Number(s): 2011/189844
• Publication restriction: No

Decision under appeal

• Citation: Margaret Jackson as legal representative of Youden Richard Jackson (deceased) v Bluescope Steel Limited (formerly known as John Lysaght (Australia) Limited) & Anor 27 May 2011
• Date of Decision: 2011-05-27 00:00:00
• Before: Kearns J
• File Number(s): DDT 6166/06; DDT 6166/06

Judgment

1 BEAZLEY JA: Allianz Australia Insurance Limited (Allianz) seeks leave to appeal from an order of Kearns J in the Dust Diseases Tribunal made on 27 May 2011 by which his Honour dismissed Allianz' notice of motion in which it sought an order that the cross-claim filed by Bluescope Steel Limited (Bluescope) against it be set aside. The matter has proceeded before the Court on the basis of a concurrent hearing of the summons for leave to appeal and the appeal.

The procedural background

2 By statement of claim filed on 5 July 2006 in the Dust Diseases Tribunal, Mr Youden Jackson claimed damages from Bluescope and BHP Billiton Limited (BHP) for mesothelioma which he alleged he contracted as a result of exposure to asbestos whilst he was in the employ, at different times, of Bluescope and BHP (the principal proceedings). Mr Jackson died on 17 July 2006 and the proceedings were continued by his estate.

3 On 21 August 2007, judgment was entered in favour of the estate against Bluescope. The judgment monies were paid to the estate on 2 October 2007. Bluescope also complied with a costs order made in favour of the estate. The proceedings against BHP failed. The information before the Court does not establish the precise outcome of those proceedings, but it appears they were dismissed.

4 In September 2009, Bluescope commenced proceedings in the Dust Diseases Tribunal against Allianz, by way of statement of claim purportedly pursuant to the Dust Diseases Tribunal Act 1989, s 11(1A), seeking indemnity for the judgment monies and costs it had paid to Mr Jackson's estate pursuant to orders in the principal proceedings. Upon a belated realisation that the indemnity proceedings brought against Allianz did not fall within s 11(1A), Bluescope filed a notice of motion in the principal proceedings, seeking leave to extend the time in which to file a cross-claim against Allianz. The proposed cross-claim sought indemnity for the judgment monies and costs paid to Mr Jackson's estate in essentially the same terms as it had claimed in the statement of claim filed in September 2009.

5 After a contested hearing: see Jackson v Bluescope Steel Limited & Anor [2011] NSWDDT 2, Kearns J granted the relief sought by Bluescope in its notice of motion and made the following orders:

"Pursuant to Part 1 Rule 1.12 of the UCPR 2005 (NSW), the time within which Bluescope is to file a cross-claim against Allianz is extended to Friday, 25 March 2011.

Bluescope is granted leave to file and serve a statement of cross-claim in the form annexed to its notice of motion filed in Court on 8 March 2011."

6 Bluescope's September 2009 statement of claim was subsequently dismissed.

7 On 11 April 2011, Allianz by notice of motion sought orders that the cross-claim be set aside, inter alia, on the basis that it was issued pursuant to leave granted without jurisdiction.

8 On 27 May 2011, Kearns J dismissed Allianz' notice of motion, both in the exercise of his discretion and because he considered that he had already dealt with the question of jurisdiction in his judgment: [2011] NSWDDT 2, in which he had granted the extension of time to file the cross-claim.

Issue on the appeal

9 The argument on the appeal was confined to the question whether Kearns J had jurisdiction to make the orders extending the time in which to file a cross-claim and granting leave to file and serve the cross-claim. Allianz abandoned its challenge to the exercise of his Honour's discretion.

10 Bluescope contended that it was entitled to bring its cross-claim pursuant to the Dust Diseases Tribunal Act, s 11(4). As the time for filing the cross-claim prescribed in the Uniform Civil Procedure Rules 2005 (UCPR) had expired, it required an extension of time in which to do so.

11 There was no dispute that a claim for indemnity such as sought by Bluescope fell within s 11(4): see Mangion v James Hardie & Co Pty Ltd (1990) 20 NSWLR 100; Seltsam v Energy Australia; Re Banham [1999] NSWCA 89; 17 NSWCCR 720. Rather, Allianz' opposition to Bluescope's entitlement to bring a cross-claim was premised on its contention that as the principal proceedings had been concluded and there were no other cross-claims on foot, there were no extant proceedings in the present case. Allianz submitted that the Tribunal only had jurisdiction to entertain the cross-claim if there were extant proceedings before the Tribunal at the time that the cross-claim was brought. Allianz contended that as this was a jurisdictional precondition to the bringing of the cross-claim, the procedural provisions of the UCPR permitting an extension of time were unavailable to Bluescope.

12 Bluescope's entitlement to bring the cross-claim thus depends upon the proper construction of the statutory provisions of the Dust Diseases Tribunal Act, ss 11(1) and 11(4), the Civil Procedure Act 2005 and the UCPR.

Statutory regime

The Dust Diseases Tribunal Act

13 The Dust Diseases Tribunal Act, Pt 3, deals with the jurisdiction of, and proceedings before, the Dust Diseases Tribunal.

14 Section 11 deals with claims for damages for dust diseases. Section 11(1) provides, relevantly, that a person suffering from a dust-related condition allegedly attributable, or partly attributable, to a breach of duty owed to that person by another person, may bring proceedings for damages in respect of that dust-related condition before the Tribunal. Such proceedings may not be brought or entertained before any other court or tribunal. Mesothelioma is a recognised dust-related condition.

15 There was no issue in this case that the proceedings brought by Mr Jackson fell within s 11(1).

16 Section 11(4), upon which Bluescope relied as the source of its entitlement to bring the cross-claim, provides:

"Any matter that is ancillary or related to a matter that is the subject of proceedings to be brought under subsection (1) or (1A) may also be included in those proceedings."

17 The phrase "ancillary or related matter" is defined in s 3 as including

"... any claim relating to the subject-matter of the proceedings that a defendant in the proceedings has against another person, whether that other person is a party to the proceedings or not."

The Civil Procedure Act and the UCPR

18 Subject to specified exclusions, none of which are relevant to the issue before the Court, the Civil Procedure Act and the UCPR apply to proceedings in the Dust Diseases Tribunal: see Civil Procedure Act, s 4 and UCPR, r 1.5.

19 The Civil Procedure Act, s 22, provides for the bringing of a cross-claim by a defendant against, inter alia, a third party in the proceedings in which a claim has been made against the defendant (the principal proceedings). The court may grant the same relief on the cross-claim as could be granted in separate proceedings brought by the defendant against the third party, provided that the relief "relates to, or is connected with" the principal proceedings.

20 The procedural rules relating to cross-claims are contained in UCPR, Pt 9. Other procedural rules that are relevant to the question before the Court are contained in UCPR, Pts 1 and 14.

21 Rule 9.1(1) provides that in proceedings commenced by a statement of claim, a party may make a cross-claim "within the time limited for the party to file a defence" or "within such further time as the court may allow". UCPR, r 9.1(3) provides that subject to Pt 9, the UCPR applies to a cross-claim in the same way that the rules apply to a statement of claim. A defence to a statement of claim is to be filed within 28 days after service on the defendant of the statement of claim, or such other time as the court directs: UCPR, r 14.3.

22 UCPR, r 9.10 provides, relevantly:

"9.10 Cross-claim may be separately prosecuted

(1) A cross-claim may proceed even if:

(a) judgment has been entered on the originating process in the proceedings from which the cross-claim arises or any other cross-claim in the proceedings, or

(b) the proceedings on the originating process or any other cross-claim have been stayed, dismissed, withdrawn or discontinued."

23 UCPR, r 9.11 provides:

"9.11 Contribution or indemnity

(1) If a defendant makes a cross-claim for contribution or indemnity in respect of a claim made against the defendant in the proceedings, judgment on the cross-claim:

(a) is not to be entered except by leave of the court, and

(b) is not to be enforced until any judgment in the proceedings against the defendant has been satisfied."

24 UCPR, r 1.12 provides:

"1.12 Extension and abridgment of time

(1) Subject to these rules, the court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the court.

(2) The court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires."

Allianz' argument on the appeal

25 Kearns J, in granting leave to Bluescope to bring its cross-claim, considered that he was bound by the decision of Giles JA in Seltsam Pty Ltd v Energy Australia. Kearns J understood that judgment to be authority for the proposition that:

"... the absence of a request, before judgment in a plaintiff's proceeding, for leave to issue a cross-claim or for an extension of time to do so, does not put an end to those proceedings to the extent that the Tribunal may not entertain an application by an defendant to those proceedings to extend time to file a cross-claim."

26 Allianz contended that his Honour erred in holding that he was bound by Seltsam v Energy Australia. Allianz argued that there were two critical differences in the factual circumstances in the two cases. First, in Seltsam v Energy Australia, Seltsam had settled with the plaintiff before the time in which it could bring a cross-claim had elapsed. Secondly, Seltsam had indicated it proposed to bring the cross-claim before judgment was entered on the plaintiff's claim. By contrast, in this case, the principal proceedings had concluded and judgment satisfied before Bluescope sought to bring its cross-claim.

27 Allianz relied upon the decisions of Dorrough v Bank of Melbourne [1996] FCA 816 and Crayford Freight Services Ltd v Coral Seatel Navigation (1998) 82 FCR 328 in support of its argument that the comments made by Giles JA in Seltsam v Energy Australia did not govern the present matter. Before turning to those authorities and to Seltsam v Energy Australia it is convenient, first, to examine Bailey v Marinoff [1971] HCA 49; 125 CLR 529; and FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; 165 CLR 268 in which the power of a court to make orders after proceedings have been concluded was considered.

Bailey v Marinoff

28 In Bailey v Marinoff the High Court was concerned with the consequences of a self-executing order. The Court of Appeal had made an order that the appellant file and serve appeal books by a specified date and if the appellant failed to comply, the appeal would "stand to be dismissed for want of prosecution". There was partial compliance with the order in that the appellant filed the appeal books but served them outside the time specified. On the appellant's application, the Court of Appeal ordered that the filing and service of the appeal books should be deemed sufficient compliance with the original order.

29 The respondent appealed on the basis that the Court of Appeal had no power to make the order, as the proceedings had been concluded upon the entry of the original order. The High Court held (Barwick CJ, Menzies, Owen and Walsh JJ, Gibbs J dissenting) that the Court of Appeal did not have the power to vary an order after the order had been formally drawn up. Relevant for present purposes were the remarks of Barwick CJ, at 530:

"Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed." (emphasis added)

FAI General Insurance v Southern Cross Exploration

30 FAI General Insurance v Southern Cross Exploration also involved a self-executing order and the question in issue involved the powers conferred by the rules of court. The trial judge had refused to extend the time for compliance with a self-executing order on the basis that it had no power to do so as the proceedings had been terminated. The Court of Appeal upheld an appeal on the basis that the Supreme Court Rules 1970, Pt 2, r 3 empowered the court to extend the time for compliance after the period for compliance had expired, whether or not the proceedings were pending. Part 2, r 3 is in the same terms as UCPR, Pt 1, r 1.12.

31 The High Court upheld the Court of Appeal's decision. Wilson J (Deane, Dawson and Brennan JJ agreeing) construed Supreme Court Rules, Pt 2, r 3 as a remedial provision that conferred broad powers on the court to relieve against injustice. As his Honour observed, at 283-284, the discretion conferred by the rule:

"... is not readily to be limited by judicial fiat. The fact that it manifestly is a power to be exercised with caution and, in the case of conditional orders, with due regard to the public policy centred in the finality of litigation does not warrant an arbitrary limitation of the power itself, not expressed in the words of the rule, so as to deny its capacity to apply to circumstances such as those which are to be found in the present case."

32 Wilson J reached this conclusion having considered English and Canadian authority on the point, concluding, at 280, that in England there was power under the rules of court to extend time where there had been non-compliance with a conditional order, but that such power was to be exercised cautiously: see Samuels v Linzi Dresses Ltd [1981] QB 115 at 125, 127. His Honour noted that there was English authority to the contrary, which had been given some endorsement in Bailey v Marinoff. However, his Honour distinguished Bailey v Marinoff on the basis that the Court was there concerned with the exercise of the inherent powers of an appellate court and not with the powers of a judge at first instance.

33 His Honour also made reference to the fact that in Bailey v Marinoff the order of the appellate court had been duly entered. It is not apparent why his Honour made reference to the entry of the order and what relevance it had to his determination, as it would appear that the order of the trial judge in FAI General Insurance v Southern Cross Exploration had also been entered. Gaudron J's judgment proceeded upon the basis that there was an entered order and the rules of court would have required the entry of the order for the purposes of bringing an appeal. If there was any point in that distinction, it may have assisted Allianz, as the orders in this case were entered by operation of law. However, I can see no point in the distinction, given that orders in FAI General Insurance v Southern Cross Exploration appeared to have been entered.

34 In the judgment of Gaudron J, the question for determination was whether a proceeding passed beyond the power of the court, so that the court was functus officio, once the time for fulfilment of a condition specified in a duly entered order for dismissal had passed without the condition being satisfied. This question was analogous to the argument advanced by Allianz that there was no power in the Tribunal to entertain a cross-claim when there were no proceedings in the Tribunal to which the cross-claim could attach.

35 Her Honour stated, at 289:

"Although the rule that a court may not vary a duly entered order which brings proceedings to a conclusion rests, at least in part, on the obvious desirability that litigation should be brought to an end, the converse of that rule viz. that a court of record may vary an order before the order is entered must rest on the notion that a court is not functus officio whilst there remains any judicial function which may be performed in relation to a proceeding, even if it be only that of ensuring that the final order correctly records the meaning of the court ..." (emphasis added)

36 Her Honour, at 290, concluded that the court had power to extend the time for compliance with the conditional order that had been made:

"... as a conditional order for dismissal such as that presently under consideration neither renders the Court functus officio nor of itself precludes the bringing of fresh proceedings there is no question of fundamental legal principle or policy brought into issue by the grant of power in Pt 2, r 3. That being so, and the language of the rule being such as to comprehend the power, Pt 2, r 3 must be construed as authorising the Court to enlarge the time fixed by a duly entered conditional order for dismissal notwithstanding that the time so fixed has expired, unless such authority is expressly excluded by statute or other rule of court."

As there was no legislative provision or rule of court that excluded the authority of the court to extend time, her Honour held that an extension of time was permissible.

37 That brings me to the decisions upon which Allianz relied, namely, Dorrough v Bank of Melbourne and Crayford Freight Services Ltd v Coral Seatel Navigation.

Dorrough v Bank of Melbourne

38 In Dorrough v Bank of Melbourne, the claim in the principal proceeding and all but one cross-claim were settled. The remaining cross-claimant (National Mutual) sought leave to discontinue its cross-claim against FAI General Insurance Company Limited (FAI). FAI opposed the discontinuance of National Mutual's cross-claim and also sought leave to bring its own cross-claim against National Mutual and other additional parties.

39 Cooper J considered that the Federal Court Rules governing the bringing of a cross-claim required that there be a proceeding in existence at the time a cross-claim was brought or leave was granted to bring a cross-claim: see The Salybia [1910] P 25 at 27. Accordingly, the jurisdictional fact that enabled FAI to seek leave to file a cross-claim was the existence of National Mutual's cross-claim. Cooper J considered that absent that claim, there was no power under the rules to grant leave to FAI to bring its cross-claim. His Honour granted National Mutual leave to discontinue with the consequence that, on his construction of the rules of court, there was no jurisdictional basis for the bringing of FAI's cross-claim.

Crayford Freight Services Ltd v Coral Seatel Navigation

40 In Crayford Freight Services Ltd v Coral Seatel Navigation, a question arose as to whether a cross-claim, filed without the leave of the court when such leave was required, became spent once the substantive proceedings were discontinued or whether leave could be granted retrospectively.

41 Crayford had filed a cross-claim after the expiry of the time prescribed by the rules, but had not sought an extension of time in which to do so. The principal proceedings then settled. The cross-defendants applied to have the cross-claim struck out on the basis that the court had no jurisdiction to entertain it. They argued that Crayford needed leave to file its cross-claim and leave could not be granted retrospectively after the principal proceedings had been discontinued.

42 The application was rejected. The Full Court of the Federal Court (Burchett, Ryan and Marshall JJ) held that in circumstances where the cross-claim had been filed, albeit irregularly, whilst the principal action was still on foot, the court had jurisdiction to determine the matter. The failure to obtain the leave of the court before filing the cross-claim was treated as a formal defect or irregularity that did not go to jurisdiction, which could be remedied by an order that leave be given retrospectively to file the cross-claim. The Court distinguished Dorrough v Bank of Melbourne on the basis that in Dorrough, once National Mutual's cross-claim was discontinued, there was no proceeding on foot to which FAI's cross-claim could attach.

English authority

43 As is apparent from the extensive review of the law undertaken by Wilson J in FAI General Insurance v Southern Cross Exploration, there is English authority that both supports Allianz' contention and is against it. The authorities in support of Allianz' contention include The Salybia, upon which Cooper J relied in Dorrough v Bank of Melbourne, and CSI International Co Ltd v Archway Personnel (Middle East) Limited [1978] 1 WLR 1069, that had been relied upon in Seltsam v Energy Australia.

44 However, having regard to the approach taken by the High Court in FAI General Insurance v Southern Cross Exploration the authorities that support Allianz' contention would appear not to be relevant to the determination of the proper construction of the statutory and procedural provisions under consideration in this case. The Salybia does not sit conformably with the approach taken in FAI General Insurance v Southern Cross Exploration and Giles JA in Seltsam v Energy Australia rejected CSI International Co Ltd v Archway Personnel (Middle East) Limited as being of any assistance.

Seltsam v Energy Australia

45 The question in issue in Seltsam v Energy Australia was the jurisdiction of the Dust Diseases Tribunal to entertain a cross-claim filed by a defendant after judgment had been given in favour of the plaintiff. At the time of the decision in Seltsam v Energy Australia, ss 11(1) and (4), were in the same terms as the current legislation. Subsection 11(1A) was introduced into the Act at a later point in time, but that does not affect the present argument.

46 The plaintiff's claim settled on 17 January 1997. At a hearing before the court on that date the trial judge was handed three documents. The first was terms of settlement providing for judgment in the plaintiff's favour in a money sum. The second was short minutes of order providing, inter alia, for an order that the defendant be "granted leave to issue and proceed with any cross-claim filed within 28 days from the date hereof". The third was an order for judgment.

47 When the documents were handed to the court, counsel made an oral application in the following term:

"Before the court seal is placed on those documents, I seek the court's leave to issue cross-claims."

48 The trial judge stated that he made the orders in the short minutes of order and that there would be a verdict and judgment in accordance with the first paragraph of the terms of settlement. His Honour noted the remaining paragraphs of the terms of settlement. His Honour then placed the court seal on each of the three documents.

49 The defendant failed to file a cross-claim in the proceedings within the 28 days from 17 January 1997 as was provided for in the short minutes of order. Subsequently, on 25 July 1997, the defendant filed a notice of motion seeking an extension of time to issue the cross-claim. An order was made granting an extension and the cross-claim was filed in accordance with that order. The cross-claim sought indemnity, pursuant to the Law Reform (Miscellaneous Provisions) Act 1946, s 5(1)(c), against the cross-defendants.

50 On the appeal, the cross-defendants, relying principally upon the High Court's decision in Bailey v Marinoff, argued that there was no power to order an extension of time after judgment had been given in favour of the plaintiff on the principal claim. They advanced two submissions in support of this argument: first, that the cross-claim had to be "included" in the principal proceedings; and secondly, that those proceedings had to be "proceedings to be brought". As the principal proceedings had been brought to an end after judgment was entered, it was contended that neither of those conditions was satisfied.

51 In dealing with the second of those arguments, Giles JA held, at [33]:

"So far as the argument rested upon the words 'proceedings to be brought' in s 11(4), it can not be accepted. The definition of 'ancillary or related matter' demonstrates that a claim by a defendant in the proceedings against a third party may be included in the proceedings. Such a claim will necessarily be included in the proceedings after the proceedings have been commenced. The claimants argued that 'to be brought' meant 'to be heard' or 'to be determined', so that the condition can not be fulfilled following the entry of judgment. The phrase does not have that meaning on an ordinary reading, and to give it that meaning would not be consistent with the reference to proceedings brought as distinct from transferred in s 10(4) (indeed, on the claimants' argument the transferred proceedings would also be proceedings to be brought), or with the reference to proceedings brought as distinct from entertained in s 11(1). The phrase must be read as part of the wider phrase in s 11(4), 'a matter that is the subject of proceedings to be brought', with the function of identifying the matter as that which is embodied in the proceedings when brought but not of imposing the impossibility of including an ancillary or related matter in proceedings still to be commenced. The first opponent's cross-claim is a matter that is ancillary or related to a matter so identified."

52 His Honour then dealt with the question which is the matter in issue in this case, namely whether there had to be extant proceedings for a claim to be "included" in the principal proceedings for the purpose of s 11(4). His Honour, at [33]-[36], rejected that argument. His Honour noted that the claimant's argument was based upon the observations of Barwick CJ in Bailey v Marinoff, at 530, set out above. Giles JA accepted that the inherent power of the court did not permit the reinstatement of an appeal. However, that did not put an end to the proceedings in their entirety. The proceedings remained on foot for ancillary purposes, such as the assessment of costs and the enforcement of orders.

53 Giles JA then dealt with the Supreme Court Rules, Pt 2, r 3 and the High Court's consideration of those rules in FAI General Insurance v Southern Cross Exploration to which I have referred. His Honour concluded, at [41], that the court had jurisdiction to entertain the cross-claims:

"In my opinion, judgment in favour of the plaintiff in proceedings in the Tribunal does not mean that the proceedings are at an end so that a cross-claim cannot be included in the proceedings within the meaning of s 11(4). The proceedings remain on foot so as to enable the defendant to give effect to its entitlement to file a cross-claim within 28 days from the service of the statement of claim upon it, that being an entitlement in accordance with the Tribunal's rules and procedures. That time may be enlarged by an order made pursuant to Pt 2 r 3 of the Supreme Court Rules as applied pursuant to r 2 of the Dust Diseases Tribunal Rules, and if it is enlarged the proceedings remain on foot so as to permit the defendant to exercise its entitlement within the enlarged time. In the language used by Gaudron J in FAI General Insurance Company Ltd v Southern Cross Exploration NL, while it remains for the Tribunal to exercise the further function of receiving and determining a cross-claim filed within the 28 days, and the further function of determining whether an extension of the 28 days should be granted, the Tribunal is not functus officio; addressing s 11(4) of the Act, the proceedings remain on foot for the exercise of those functions and a cross-claim filed within the 28 days or the extended time is included in the proceedings."

For the reasons I give below, I consider that this reasoning is correct.

Wallaby Grip (BAE) Pty Ltd (In Liq) v Eraring Energy

54 Allianz also referred to Wallaby Grip (BAE) Pty Ltd v Eraring Energy [2004] NSWCA 269; 60 NSWLR 701. In that case, the Court was concerned with the question whether the limitation provisions of the Dust Diseases Tribunal Act applied to a cross-claim. However, in the course of his reasons, Mason P (Sheller and Ipp JJA agreeing), noted that a claim for statutory contribution fell within s 11(4). His Honour also noted, at [14], that a cross-claim was to be filed within the time specified by the rules of court for filing a defence, but that time could be extended. To the same effect were his Honour's further comments, at [32], where he referred to the duty of the Tribunal to avoid unfairness in the exercise of its discretion to permit the late filing of a cross-claim. Whilst these comments were obiter, they support the approach taken in Seltsam v Energy Australia.

Consideration

55 The case law referred to above indicates that courts have reached different conclusions as to whether a cross-claim may be brought when there are no other proceedings before the court. However, FAI General Insurance v Southern Cross Exploration in the High Court and Seltsam v Energy Australia in this Court, both of which concerned the court's powers under rules of court in terms that are in the same terms as UCPR, r 1.12, support the proposition that a rule in those terms confers power on the court to grant an extension of time in which to file a cross-claim, even where there are no proceedings on foot. There was an express recognition of this in the judgment of Wilson J in Bailey v Marinoff, his Honour commenting that his decision was subject to the existence of any statutory rule that may govern the position. Crayford also supports this interpretation of the rules.

56 There was no dispute that s 11(4) is a substantive provision conferring non-exclusive jurisdiction on the Dust Diseases Tribunal to hear a matter that is ancillary or related to a proceeding to be brought under subss (1) or (1A). Giles JA's construction of the phrase "proceedings to be brought" in s 11(4) must be correct. Section 11(4) applies distributively to a claim brought under subs (1) and a claim brought under subs (1A). A cross-claim with a relevant subs (4) connection must be brought after the principal proceedings referred to in subs (1) have been commenced. Were it otherwise, the cross-claim would not be a cross-claim but an original proceeding. Likewise, a matter could not be said to be ancillary to or related to a proceeding referred to in subs (1A) if it was brought prior to the bringing of a cross-claim under the subsection. This is because it is the nature of the claim as defined by the pleading, that determines whether it "is ancillary to or related to".

57 The phrase "any matter that is ancillary or related to a matter" in s 11(4) identifies the matter which may be embodied in proceedings brought under subss (1) or (1A). The conferral of jurisdiction in respect of such a matter is then found in the phrase, "may also be included in those proceedings". There is nothing in the express words of s 11(4) that requires that the subs (1) (or (1A)) proceedings be on foot. What must exist is the relevant connection with proceedings referred to in subs (1) or (1A).

58 The court has power to extend time in relation to a cross-claim that has the relevant connection. The cross-claim may be heard, notwithstanding that such proceedings may have been concluded, including by way of discontinuance. As Wilson J explained in FAI General Insurance v Southern Cross Exploration the rules of court are not to be constrained by judicial fiat when there is no relevant restriction contained in their express terms. If one takes the approach indicated by Gaudron J in the same case, where there is still something to be done in a proceeding, the court may exercise such powers as are conferred by the rules in respect of that cross-claim. In my opinion, that includes entertaining a cross-claim in respect of which there is jurisdiction in the sense explained, and if necessary, extending the time for bringing that cross-claim.

59 One of the arguments raised by Allianz in opposition to this construction of s 11(4) and the rules was that if the court had jurisdiction to entertain a cross-claim filed in circumstances where there were no extant proceedings in the court, cross-claims could be brought many years after the principal proceedings or other cross-claims had concluded. The point made is correct. However, that is an argument that may be relevant to the exercise of discretion in a particular case. It is not an argument that is properly directed to jurisdiction.

60 Upon the proper construction of the Dust Diseases Tribunal Act, the Civil Procedure Act and the UCPR, I am of the opinion that the Court has jurisdiction to entertain Bluescope's cross-claim.

61 Accordingly, I propose the following orders:

1. Grant leave to appeal;

2. Appeal dismissed with costs including the costs of the summons for leave to appeal.

62 MACFARLAN JA: I agree with Beazley JA.

63 BARRETT JA: I agree with Beazley JA that leave to appeal should be granted and that the appeal should be dismissed with costs (including costs of the summons for leave to appeal). My reasons follow.

64 The question for decision goes wholly to the limits of the powers of the Dust Diseases Tribunal established by the Dust Diseases Tribunal Act 1989 (the "DDT Act"). Relevant provisions of that and other enactments are set out in the reasons of Beazley JA and will not be repeated except where emphasis is needed.

65 The statement of claim in the proceedings initiated in the Tribunal by Mr Jackson was filed on 5 July 2006. Mr Jackson sued Bluescope and BHP Billiton for relief that the Tribunal was unquestionably empowered to grant. The proceedings were of the kind referred to in s 11(1) of the DDT Act.

66 Mr Jackson died before the matter came to trial. The proceedings were continued by his legal personal representative. On 21 August 2007, a money judgment was ordered against Bluescope and in favour of the Jackson estate. Bluescope was ordered to pay the estate's costs as agreed or assessed.

67 The judgment was satisfied by a payment made by Bluescope on 2 October 2007. The quantum of costs was agreed. Payment of the agreed costs sum was made by Bluescope on 28 February 2009.

68 In 2009, Bluescope initiated certain steps in an attempt to bring before the Tribunal for determination a claim it considered itself to have against Allianz in respect of its established liability to the Jackson estate. Bluescope's contention was (and is) that Allianz is liable to indemnify it under a contract of insurance. Allianz does not accept that it is so liable.

69 After pursuing those steps for some time, Bluescope realised that they were flawed and futile. It then filed in the Tribunal a notice of motion ostensibly in the Jackson proceedings seeking an order extending the time for the filing of a cross-claim in those proceedings. That filing occurred on 16 March 2011.

70 On 22 March 2011, the Tribunal made an order extending to 25 March 2011 the time for filing of a cross-claim by Bluescope in the Jackson proceedings. The Tribunal made a further order granting Bluescope leave to file a cross-claim against Allianz in the Jackson proceedings. A cross-claim was filed pursuant to that leave within the extended period.

71 The question for decision is whether the Tribunal had power to make the orders it purported to make on 22 March 2011, that is, more than three years after the money judgment of 21 August 2007 against Bluescope was satisfied by payment on 2 October 2007 and more than two years after the costs awarded against Bluescope on 21 August 2007 were paid on 28 February 2009.

72 The Tribunal is established by s 4 of the DDT Act as a court of record. By virtue of s 10(1), its jurisdiction in relation to certain dust diseases proceedings is exclusive and such proceedings may not be entertained or determined by other courts. Because the Tribunal is a statutory court, it is inaccurate to refer to its having "inherent jurisdiction", although it does possess powers incidental and necessary to the performance of its statutory functions and the exercise of its statutory powers: DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 at [25].

73 It follows that any power of the Tribunal to entertain and determine the subject matter of Bluescope's claim against Allianz (as insurer) in respect of the liability of Bluescope arising from the Jackson proceedings must derive expressly or as a matter of necessary implication from a statute or statutory rule applying to the Tribunal.

74 Bluescope contends that the relevant power comes from s 11(4) of the DDT Act. Section 11(4) is in these terms:

"Any matter that is ancillary or related to a matter that is the subject of proceedings to be brought under subsection (1) or (1A) may also be included in those proceedings."

75 As I have said, the proceedings brought by Mr Jackson were brought under s 11(1).

76 Relevant to the construction of s 11(4) is the following definition in s 3:

"ancillary or related matter", in relation to any proceedings, includes any claim relating to the subject-matter of the proceedings that a defendant in the proceedings has against another person, whether that other person is a party to the proceedings or not."

77 Section 3 thus indicates, in a non-exhaustive way, what an "ancillary or related matter" is "in relation to any proceedings". Section 11(4) refers, in terms, to a matter that is "ancillary or related to" a "matter that is the subject of proceedings", as distinct from "proceedings" themselves. But I think it must be accepted that, if a particular claim bears to particular "proceedings" brought under s 11(1) or s 11(1A) the relationship described in the s 3 definition (that is, it is a claim relating to the "subject-matter of the proceedings" that a defendant in the proceedings has against another person), that claim constitutes a "matter" that is "ancillary or related to" a "matter that is the subject of the proceedings", being the "subject-matter of the proceedings".

78 Had the claim by Bluescope against Allianz been initiated before the delivery of judgment in the Jackson proceedings (being proceedings brought under s 11(1) of the DDT Act), there could have been no doubt that the claim could be pursued in the Tribunal as an "ancillary or related matter" under s 11(4) of the DDT Act and that a cross-claim under Part 9 of the UCPR was the appropriate procedural vehicle for the bringing of the claim. This was recognised by this Court in both Mangion v James Hardie & Coy Pty Ltd (1990) 20 NSWLR 100 and Seltsam Pty Ltd v Energy Australia [1999] NSWCA 89; (1999) 17 NSWCCR 720 ("Seltsam").

79 Did that position change once all claims by Jackson against Bluescope had been determined and the liabilities created by the determination had been satisfied by payment, so that the proceedings brought under s 11(1) were not capable of producing any further outcome as between the parties to those proceedings?

80 General notions of where the boundaries of "proceedings" lie and attempts to pinpoint the time at which proceedings are exhausted or spent or the relevant tribunal becomes functus officio are, I think, of limited use when the matter at hand concerns the construction and effect of statutory provisions. An inquiry into whether some spark of the litigated controversy lingers in the ashes that remain after it has been quelled - because, say, a costs order has not been satisfied - is not, to my mind, productive as an abstract matter. The question is whether the relevant legislation allows the particular claim to be brought and maintained in the way chosen by the person bringing it.

81 The question at the centre of the present case arose in Seltsam but by reference to provisions some of which have been replaced by provisions to substantially the same effect. Giles JA (with the concurrence of Priestley JA) said in that case, at [41]:

"In my opinion, judgment in favour of the plaintiff in proceedings in the Tribunal does not mean that the proceedings are at an end so that a cross-claim can not be included in the proceedings within the meaning of s 11(4). The proceedings remain on foot so as to enable the defendant to give effect to its entitlement to file a cross-claim within 28 days from the service of the statement of claim upon it, that being an entitlement in accordance with the Tribunal's rules and procedures. That time may be enlarged by an order made pursuant to Pt 2 r 3 of the Supreme Court Rules as applied pursuant to r 2 of the Dust Diseases Tribunal Rules, and if it is enlarged the proceedings remain on foot so as to permit the defendant to exercise its entitlement within the enlarged time. In the language used by Gaudron J in FAI General Insurance Company Ltd v Southern Cross Exploration NL, while it remains for the Tribunal to exercise the further function of receiving and determining a cross-claim filed within the 28 days, and the further function of determining whether an extension of the 28 days should be granted, the Tribunal is not functus officio; addressing s 11(4) of the Act, the proceedings remain on foot for the exercise of those functions and a cross-claim filed within the 28 days or the extended time is included in the proceedings."

82 The nature of the claim sought to be agitated by cross-claim in Seltsam was such that, had the claim been brought while the statement of claim remained undetermined, there would have been no doubt that it was cognisable by the Tribunal under s 11(4). Giles JA dealt with the question whether the effective conclusion of principal controversy meant that the subject matter of the cross-claim was no longer of the s 11(4) character. The question was, of course, a question of statutory construction. Particular attention was given to two aspects of s 11(4): "proceedings to be brought" and "included in those proceedings".

83 Giles JA concluded that the words "proceedings to be brought" did not mean that s 11(4) could be used only when the principal subject matter remained unresolved - much less when the bringing of the principal claim lay in the future. The words "included in those proceedings" were, his Honour said, to be construed according to the notion of the duration of proceedings that he explained in the passage quoted above.

84 Allianz did not seek to argue that this Court should not follow its own decision in Seltsam. It is therefore appropriate to proceed on the basis that the conclusion and reasoning of Giles JA (in which Priestley JA concurred) should be accepted unless some change in a relevant legislative provision dictates otherwise.

85 At the time relevant to Seltsam, rules of the Tribunal caused provisions of the Supreme Court Rules 1970 to apply to Tribunal proceedings. At the time relevant to the present matter, the Supreme Court Rules had been superseded by the Uniform Civil Procedure Rules 2005 ("UCPR"); and the UCPR applied of their own force to the Tribunal. Under Part 9 of the UCPR, a party served with a statement of claim may make a cross-claim "within the time limited for the party to file a defence" (that is, according to UCPR rule 14.3, 28 days after service of the statement of claim) or "within such further time as the court may allow". Under UCPR rule 1.12(1), the court may, by order, extend any time fixed by rules; and under rule 1.12(2), this power to extend time may be exercised even if the time in question has already expired and the application for extension is made after the expiration. The effect of the provisions now in force is therefore the same as the effect of the provisions to which Giles JA referred.

86 The essence of the view taken by Giles JA on the matter of construction is that, once a proceeding is commenced in the Tribunal under s 11(1) of the DDT Act and a statement of claim is served, the right of a defendant to institute a cross-claim is unfettered and unconditional for a period of 28 days; and that the right thereafter continues without limitation as to time, albeit contingently, in that it is available only if the Tribunal has made an order allowing a period greater than 28 days. As a matter of power, the Tribunal may make such an order after the 28 days have elapsed and regardless of what has happened in the meantime to the principal case advanced through the statement of claim. The progress and fate of that principal case (and, if it has been disposed of, the passage of time since its conclusion) will, however, necessarily be taken into account by the Tribunal in deciding whether to exercise the power to extend time thus available to be exercised by it as a matter of discretion.

87 Counsel for Allianz pointed out that the circumstances of Seltsam differed from those of the present case in that, in Seltsam, a step towards the initiation of the cross-claim had been taken before the entry of judgment on the s 11(1) claim. That was put forward as a relevant point of distinction. In reality, however, that factual matter was irrelevant to the question of construction with which Giles JA dealt in the way I have described.

88 A particular point should be made in conclusion. The availability of a cross-claim in circumstances of the present kind depends wholly on the exercise by the Tribunal of its discretion to extend time. In exercising that discretion, the Tribunal must have regard to its own role as a specialist court and, where the subject matter of the cross-claim is not within its own exclusive jurisdiction, to the existence of relevant jurisdiction in another court or other courts. The Tribunal will be alive to the question whether the matter sought to be agitated before it is in truth one suitable for its attention rather than that of another competent court.

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Decision last updated: 08 August 2012