In L & A Fazzini Pty Ltd v Amaca Pty Ltd [2021] NSWCA 313, James Sheller SC and Winnie Liu instructed by Mills Oakley appeared for the respondent, Amaca Pty Ltd (Amaca). James also appeared for Amaca at first instance. The appeal against Amaca was dismissed with costs.
The appellant, L & A Fazzini Pty Ltd (Fazzini), and Amaca were defendants to a claim brought in the Dust Diseases Tribunal by the plaintiff, Mr Anton Muskardin, who had contracted mesothelioma as a result of being exposed to asbestos. Both Fazzini and Amaca denied liability.
In the interest of facilitating settlement of the plaintiff’s claim, both defendants consented to judgment in favour of Mr Muskardin without admission of liability. A Contribution Assessor assessed Fazzini’s liability at 60% and Amaca’s liability at 40%. Each defendant paid its respective share of the judgment.
Fazzini then commenced proceedings against Amaca claiming contribution or indemnity pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (LRMPA). However, at no point did Fazzini admit that it was a tortfeasor liable to which s 5 of LRMPA is directed. Amaca denied liability primarily on the basis that absent an admission by Fazzini that it was a tortfeasor liable, there would be no cause of action for contribution or indemnity available against Amaca: James Hardie v Seltsam (1998) 196 CLR 53.
Fazzini later filed a second cross-claim against Amaca seeking restitution for the portion of the judgment sum that it had paid to Mr Muskardin. Fazzini did not seek to prove nor disprove its liability to Mr Muskardin. Instead, Fazzini contended that in order for Amaca to retain the benefit of the moneys paid by Fazzini in accordance with the contribution assessment determination, it was necessary for Amaca to pursue its own claim for contribution against it. Amaca disputed this requirement.
The second cross-claim was heard before Scotting DCJ who dismissed it with costs on the basis that Fazzini had failed to show that it had suffered any injustice so as to establish an entitlement to restitution: L & A Fazzini Pty Ltd v Amaca Pty Ltd [2020] NSWDDT 12.
On appeal, the Court of Appeal (White JA; Payne and McCallum JJA agreeing) upheld Amaca’s notice of contention and identified that the essential issue between the defendants was who bore the onus of proof in any claim for contribution: at [56]. The Court identified the real question as being whether Fazzini could claim restitution from Amaca without asserting that it was a tortfeasor liable in circumstances where Amaca had admitted liability on appeal but did not bring a cross-claim against Fazzini: at [61], [66]. Such a scenario was not contemplated by the Court of Appeal in Power Technologies Pty Ltd v Energy Australia [2010] NSWCA 107 on which Fazzini relied.
The Court observed that to the extent Power Technologies applied to the present facts, this decision affirms the principle that he who asserts must prove: at [71]. White JA observed that in order for Fazzini to succeed in its cross-claim, it either had to prove that it was not a tortfeasor liable to Mr Muskardin or successfully establish that Amaca bore the onus of proving that it was so liable: at [70]. Finding that Fazzini had not sought to establish the former and failed to establish the latter, White JA dismissed the appeal: at [72].
Payne JA further observed that to uphold Fazzini’s contention would affect the coherence of the scheme comprising the Dust Diseases Tribunal Act 1989 (NSW) and the Dust Diseases Tribunal Regulation 2013 (NSW): at [10].
McCallum JA further observed that Fazzini’s concession that it would have been open to it to put Mr Muskardin to proof of his claim against Fazzini reflected an acceptance of the decision of the Dust Diseases Tribunal in Broers v Australian Co-Operative Food Limited [2008] NSWDDT 38, which concerned the Dust Diseases Tribunal Regulation 2007 (NSW): at [75]. Further, the inclusion in cl 56(2) of the 2013 Regulation of the additional words “in a separate proceeding” tends to reinforce the conclusion that the onus of proof in cases where apportionment is disputed is on the person making the assertion: at [76].
