A case summary of Portrange Pty Ltd v Xstrata Nickel
Australasia Operations Pty Ltd  WADC 118
The case of Portrange v Xstrata involved a dispute between the
employer and its principal relating to the payment of apportioned
common law damages and recovery of workers' compensation
payments in circumstances where the employer had a contractual
obligation to indemnify the principal and was in breach of its
contractual obligation to maintain an insurance policy indemnifying
A Mr Bradley Rollings, who was employed by Portrange suffered a
workplace injury in July 2005 whilst an employee of the plaintiff
(Portrange). Xstrata had engaged Portrange to perform electrical
work at the Cosmos mine of which Xstrata was the owner and
Rollings issued proceedings for personal injuries against
Portrange and Xstrata in negligence and/or breach of statutory
On 13 June 2012, judgment by consent was entered in which:
"Negligence" as between Portrange and Xstrata was
apportioned 80% against Xstrata and 20% against Portrange;
damages exclusive of workers' compensation were to be paid
to Rollings in the sum of $650,000, plus costs of $60,000;
the defendants were each to pay 50% of the damages and costs to
satisfy the judgment; and
the final apportionment of liability as between the defendants
was to be subsequently determined in the contribution
In the contribution proceedings Xstrata claimed both the benefit
of a contractual indemnity from Portrange and damages on the
grounds of breach of contract whereby Portrange had agreed to
extend its insurance for the benefit of Xstrata.
Portrange counterclaimed on the basis that whereas it had paid
some $661,238 (including workers' compensation) towards the
settlement, pursuant to the agreement on negligence, it should have
only paid 20% of that total of $1,016,238, i.e. the sum of
Following a hearing in relation to the contribution proceedings,
in a decision published on 24 April 2014, Scott DCJ upheld the
claims for indemnity and breach of contract by Xstrata against
Portrange and dismissed Portrange's claim for contribution.
Xstrata elected to enter judgment for relief by way of indemnity
rather than for damages for breach of contract.
In a fresh action, Portrange claimed pursuant to s93 to be
indemnified by Xstrata to the full extent of Portrange's
liability to pay compensation under the Act, reduced by the 20%
contribution previously agreed.
Portrange's claim was opposed by Xstrata on grounds, amongst
others of res judicata and issue estoppel and that the claim for
indemnity merged with the common law judgment for damages in the
first action, now determined.
Counsel for Portrange submitted at trial, that the claim
pursuant to s93 did no arise until Xstrata elected relief by way of
indemnity and conceded that if Xstrata had elected for judgment by
way of damages, Portrange's claim for indemnity could
(probably) not be maintained.
His Honour found against Xstrata in relation to the arguments
raised that the causes of action merged under s92, res judicata and
issue estoppel, but found that Portrange was estopped from claiming
contribution on the basis of Anshun estoppel. The essence of this
estoppel was that given the nature of the relief now sought by
Portrange, which was so intrinsically connected with the subject
matter of the contribution claim in the first action, it was
unreasonable for Portrange not to have raised it at that time.
In coming to this view, His Honour rejected the argument from
counsel for Portrange that the s93 claim did not arise until
Xstrata had made its election.
In overview, this action involved consideration of a number of
legal principles of some complexity that arise frequently in
employment related personal injury claims where there are
additional parties. The Anshun estoppel, which was the basis for
the decision is perhaps the least technical, and certainly the less
often to be seen in these actions. Its application is a useful
reminder of the risks that arise where there is a partial
resolution of claims in an action.
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.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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