Queensland Rail v Amaca and Ors [2011] QSC 289  

As noted below, the issue of statutory recovery in circumstances involving asbestos manufacturers was considered at first instance in a Case Stated application.  In that matter the determination of contribution was resolved in WorkCover’s favour and did form part of the appeal which was heard by the High Court. On that basis the Plaintiff in this matter brought an application for summary judgment in response to the defendant manufacturers’ formulation of a contribution claim.

His Honour Boddice J was not satisfied the same question had been decided in WorkCover Qld v AMACA P/L & Anor [2009] QCA 72 as was being formulated by the defendants afresh:


[21] It is convenient to deal first with the plaintiff’s application for summary judgment and/or striking out as if its contentions are correct, there would be no utility in granting leave to file the third further amended defences. As the plaintiff is, in respect of any counterclaim, a defendant, it is appropriate to determine its application for summary judgment under r 293.

[22] Whilst the plaintiff submits that Amaca determined that a claim for contribution is not open in a proceeding based on recovery of a statutory indemnity, the plaintiff concedes that the issue of the availability of a claim for contribution in such proceedings was not considered by the Court of Appeal in Amaca. That this was so is clear from the following observation in the reasons of the Chief Justice:[16]

“Mr Sofronoff referred to the right of contribution between tortfeasors under s 7 of the Law Reform Act 1995 (Qld). That is not this situation …”

[23] Once it is understood that the availability of a claim for contribution in a proceeding seeking recovery of a statutory indemnity was not considered in Amaca, it cannot be said Amaca conclusively decided such a claim was not available. It is therefore necessary to consider whether the defendants’ contention that they are entitled to claim contribution is so fanciful as to not constitute a proceeding which has “real” prospects of success.

[24] The defendants contend there are a number of legal bases for contribution in the present case. These legal bases include a consideration of the terms of the applicable Act under which the plaintiff’s entitlement to statutory indemnity is to be determined, and a consideration of the proper interpretation of s 6(c) of the Law Reform Act 1995 (Qld).

[25] Whilst the plaintiff submits that the legislative provisions are clear and unequivocal, I am not satisfied that the matters raised by the defendants are so unarguable as to place the defendants’ prospects of success on a claim for contribution in the category of “no real prospects”. The range and complexity of the issues to be considered in any determination of the availability of a claim for contribution in a proceeding seeking recovery of a statutory indemnity are such that I cannot be satisfied the defendants have no real prospect of succeeding, and that there is no need for trial of the counterclaim. The granting of summary judgment, in such circumstances, would be “overly bold”. In that respect, the observations of Muir JA in Neumann Contractors[17] are apposite.

[26] This conclusion renders the plaintiff’s alternative relief, namely striking out pursuant to r 171 UCPR, equally inappropriate. For the reasons identified above, I am not satisfied the defendants’ counterclaim and/or equitable set-off can properly be described as giving rise to no reasonable cause of action, or that it would have a tendency to delay a fair determination of the proceedings.

[27] The plaintiff submits that in those circumstances it is appropriate that I decide the questions of law on the assumption that the facts will be as alleged by the defendants. Whilst that submission had an initial attraction, the application before me is for summary judgment and/or striking out of a pleading. To finally determine questions of law is an entirely different concept. It is not a course consented to by the defendants. In those circumstances, it is not appropriate to determine those questions in this application.

[28] Having regard to my findings in relation to the plaintiff’s application, it is necessary to consider whether the defendants ought properly to be granted leave to deliver the third further amended defences. The plaintiff opposes leave being granted on the basis that the proposed counterclaim has been brought too late in the proceeding, will result in an unnecessary and unfair delay in the determination of the proceedings, and will otherwise prejudice the plaintiff.

[29] Whilst the counterclaim has only recently been foreshadowed by the defendants, a plea by way of equitable set-off has existed in the pleading since 2008. The counterclaim is essentially based on the same facts. The plaintiff has therefore been on notice in respect of the issues sought to be relied upon as part of the counterclaim. There can be no claim of prejudice based on the introduction, for the first time, of issues years after the proceeding was instituted.

[30] The counterclaims are claims that ought appropriately to be determined between the parties, in this proceeding. Whilst the counterclaim raises complex legal issues, these issues can be determined within a reasonable time, and are unlikely to result in the need for significantly increased disclosure. I am satisfied they will not unduly delay any trial. I am also satisfied they can be determined fairly between the parties, notwithstanding the stage of the proceedings.

[31] The plaintiff contended leave should only be granted on condition that the amount of the claim, together with interest thereon, be paid into court or that payment of that sum be otherwise secured. The basis for that submission was:

“The history of litigation is littered with the wreckage of plaintiffs who have been defeated, not by the flaws in their own case, by the ravages of time on the finances of defendants who have managed to plead defences which whilst not able to be substantiated, have delayed payment of the plaintiff’s rightful entitlements until there were no funds. The Court ought to ameliorate the prospect of that in this case given the history of the matter.

… It would be most unjust if the plaintiff, having endured the delay to the present time, are now facing years of greater delay and prejudice, were to be defeated by the respondents having empty pockets at the end of the exercise. That should not be allowed to happen.”[18]

[32] Whilst the fourth defendant is in liquidation, there is no evidence before me to establish any basis for finding that the third defendant is at risk of likewise being placed in liquidation. I am not satisfied there is a basis to conclude that the pursuit of arguable counterclaims and defences will result in a real likelihood the plaintiff will ultimately not recover its claim should it succeed.

[33] There is otherwise no reason why the defendants, as parties to litigation brought by the plaintiff, should be denied the opportunity to pursue arguable counterclaims and defences except on conditions not usually imposed on a defendant to a proceeding. I decline to impose the conditions sought on the grant of any leave.

[34] I am satisfied, in the exercise of my discretion, that the defendants ought to be granted leave to file and serve the third further amended defence.

Brisbane Barrister – David Cormack

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