Australia: DDT CRP – Division 6 new cross claims remain Valid

Legal Directions – June 2011
Last Updated: 21 June 2011
Article by Andrew Toogood

Bradford Insulation Industries Pty Limited & Anor v Babcock Australia Pty Limited & Ors [2011] NSWCA 117

The validity and scope of Division 6 'new cross claims' under the Claims Resolution Procedure in the Dust Diseases Tribunal of NSW ('DDT') were upheld in this recent NSW Court of Appeal judgment. Moray & Agnew acted for the successful respondent.


Claims for asbestos related injuries brought in the DDT must proceed through the Claims Resolution Procedure ('CRP') under Part 4 Dust Diseases Tribunal Regulation 2007 ('the Regulation').

The CRP involves information exchange between the parties, mediation, and a 'rough and ready' non binding determination of apportionment of liability amongst the defendants and cross-defendants. That determination of apportionment is undertaken by a Contribution Assessor based upon certain presumptions about the parties' responsibility and culpability for a plaintiff's asbestos exposure.

The defendants and cross-defendants are required to pay the plaintiff's settlement or judgment in accordance with their apportioned shares and a defendant is entitled to seek orders requiring a cross defendant to pay its interim apportionment pursuant to clause 52 of the Regulation. The defendants / cross-defendants remain entitled to dispute the apportionment of liability under the CRP by continuing to litigate the issue in the DDT after the plaintiff's claim has been settled or determined, subject to potential cost penalties.

Following the Review of the Dust Diseases Claims Resolution Process (January 2007), the CRP was amended by the introduction of Division 6 to Part 4 of the Regulation to permit a defendant / cross-defendant to issue a separate proceeding (referred to as a 'new cross claim') seeking contribution from other parties after settlement or determination of the plaintiff's claim. That new cross claim was then subject to a further apportionment determination under the CRP involving the existing defendants / cross-defendants and any parties joined by the new cross claim.


Following judgment being entered against it in favour of a plaintiff in the DDT, Babcock Australia issued a statement of claim seeking contribution from other parties, including Bradford Insulation Pty Limited and CSR Limited. That statement of claim was subject to the CRP as a new cross claim under Division 6.

Under the CRP, the parties to Babcock Australia's claim had liability apportioned amongst them in accordance with a Contribution Assessor's determination. CSR and Bradford Insulation refused to pay their apportioned shares to Babcock Australia under clause 52 on the grounds that the Regulation did not require payment, that Babcock Australia's statement of claim was not properly a Division 6 new cross claim, and / or the Regulation was not valid. At first instance, Curtis J (consistent with the decision in Re Millard) determined that CSR and Bradford Insulation were each liable to Babcock Australia under clause 52. CSR and Bradford Insulation appealed.


Sackville AJA delivered the lead judgment (with Hodgson JA and MacFarlan JA agreeing) dismissing CSR and Bradford Insulation's appeal.

On a review of the DDT Regulation, Sackville AJA considered it clear that Division 6 was intended to allow a modified form of the CRP when an original defendant brought a claim for contribution in separate proceedings. Further, clause 58 made it clear that Division 6 cross claims for contribution were properly brought by way of a 'statement of claim' rather than a cross claim. He stated: 'It is difficult to see how the recommendation could have been expressed more clearly. If there were any ambiguity in the language of Division 6, the fact that Division 6 is intended to give effect to the Review's recommendations would suggest that the ambiguity would be resolved against the appellants' construction.'

Sackville AJA nonetheless considered CSR / Bradford Insulation's submissions that Division 6 should be limited to applying to a cross claim brought in the original plaintiff proceeding as:

  • It was doubtful whether s32H(1)(b) Dust Diseases Tribunal Act authorised regulations applying the CRP to separate contribution proceedings
  • Clause 24 of the Regulation suggested that Part 4 (which Division 6 is within) should only to apply to a cross claim made in the original proceeding
  • Reference to 'new cross claims' in Clause 54 indicated that Division 6 was only intended to apply to cross claims, rather than separate proceedings.

Sackville AJA was not persuaded by the first argument as he considered the power under s32H broad enough to apply to either the original proceeding or the separate proceeding for contribution and there was no justification for reading it as being limited to the original proceeding.

In relation to the second argument, Sackville AJA observed that clause 14 did not state that Part 4 applied only to a cross claim on the original claim. Further, as the Regulation must be read as a whole, and given the clear intent of Division 6, clause 14 must yield to that intent.

In relation to the third argument, Sackville AJA considered the references in the Regulation to 'new cross claim' to merely be a shorthand expression for separate proceedings for contribution and should not limit the intended extension of the CRP to separate proceedings for contribution.

Whilst Hodgson JA agreed with Sackville AJA, he also considered whether there was any force to CSR / Bradford Insulation's submission that the absence of an express limitation period for issuing a Division 6 cross claim suggested that it was necessary to issue that claim as a cross claim in the original proceeding.

Given the 'rough and ready' procedure of the CRP, Hodgson JA considered it arguable that the entitlement to issue a Division 6 cross claim may not be available for as long as the two year limitation period for contribution under s26 Limitation Act 1969. Whilst that argument did not displace the considerations of Sackville AJA, Hodgson JA did comment that 'In order that a person seeking contribution in separate proceedings be able to rely on the determination as binding ... it would appear that the person has to show that the determination has such a connection with the settlement or determination of the plaintiff's claim that it can be founded to be "for the purposes of" that settlement or determination, and it may be very difficult for this to be shown unless the new proceedings are commenced very promptly'.


The NSW Court of Appeal has maintained the clear intent of the 2007 Review to allow separate proceedings for contribution to be subject to a modified form of the CRP. Had the Court of Appeal decided otherwise, it would have rendered Division 6 essentially ineffective and probably resulted in legislative intervention. Following this judgment, defendants in the DDT can continue to issue Division 6 cross claims at the conclusion of a plaintiff's claim, although Hodgson's J comments suggest they should do so promptly and not simply rely upon the two year limitation period to seek contribution. For further 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions