Asbestos Injuries Compensation Fund Limited [2011] NSWSC 97 (2 March 2011)

Last Updated: 14 April 2011

Supreme Court New South Wales

Case Title:	Asbestos Injuries Compensation Fund Limited
Medium Neutral Citation:	[2011] NSWSC 97
Hearing Date(s):	26 November 2010
Decision Date:	02 March 2011
Jurisdiction:
Before:	Gzell J
Decision:	That Trustee justified in refusing to make payment in respect of the claims.
Catchwords:	INTERPRETATION - General Rules of Construction of Instruments - Trust Deed, Final Funding Agreement and James Hardie Former Subsidiaries (Winding up and Administration) Act 2005 establishing fund for payment of victims of James Hardie Asbestos - nervous shock claims in Dust Diseases Tribunal sustained on death of fathers from exposure to asbestos - "personal asbestos claim" defined in Act differently from definition in Trust Deed and Final Funding Agreement - whether definition in Act extended to personal injury arising from another person's exposure to asbestos - advice sought under s 55 of the Act
Legislation Cited:	James Hardie Former Subsidiaries (Winding Up and Administration) Act 2005 Corporations Act 2001 (Cth) Dust Diseases Tribunal Act 1989 Interpretation Act 1987 Workers' Compensation Act 1916 (Qld) Wrongs Act 1958 (Vic) Solicitor-General Act 1969
Cases Cited:	Coyle v John Watson Ltd [1915] AC 1 Boyle v Nominal Defendant [1959] SR (NSW) 413 Mangion v James Hardie & Co Pty Ltd (1990) 20 NSWLR 100 Workers' Compensation Board (Q) v Technical Products Pty Ltd [1988] HCA 49; (1988) 165 CLR 642 Dickinson v Motor Vehicle Insurance Trust [1987] HCA 49; [1987] HCA 49; (1987) 163 CLR 500 Government Insurance Office of New South Wales v RJ Green & Lloyd Pty Ltd [1966] HCA 6; (1966) 114 CLR 437 State Government Insurance Commission v Stevens Brothers Pty Ltd [1984] HCA 32; (1984) 154 CLR 552 Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 Coco v The Queen [1994] HCA 15; (1993-1994) 179 CLR 427
Texts Cited:
Category:	Principal judgment
Parties:	Asbestos Injuries Compensation Fund Limited; Amaca Pty Limited (Plaintiffs) Solicitor-General for New South Wales (Intervenor) James Hardie 117 Pty Limited (Performing Subsidiary) Paraskevi Tamaresis & Jessie Winch (Interested parties)
Representation
- Counsel:	Counsel: A Meagher SC (Plaintiffs) M Izzo (Solicitor-General - NSW) I Jackman SC/ D Klineberg (James Hardie 117 Pty Limited) J Sheahan SC/ A Tokley (Paraskevi Tamaresis & Jessie Winch)
- Solicitors:	Solicitors: DLA Phillips Fox (Plaintiffs) Crown Solicitors (Solicitor-General - NSW) Mallesons Stephen Jaques (James Hardie 117 Pty Limited) Turner Freeman (Paraskevi Tamaresis & Jessie Winch)
File number(s):	2010/293958
Publication Restriction:

Judgment

Introduction

1. Asbestos Injuries Compensation Fund Limited (" SPF trustee "), the first plaintiff, is the trustee under the Asbestos Injuries Compensation Fund Amended and Restated Trust Deed (" Trust Deed "). As such it answers the definition of "SPF trustee" in the James Hardie Former Subsidiaries (Winding up and Administration) Act 2005 (" 2005 Act "), s 4(1).
   
2. Amaca Pty Limited (Under NSW Administered Winding Up) (" Amaca "), the second plaintiff, has been sued in the Dust Diseases Tribunal of New South Wales by Paraskevi Tamaresis and Jessie Winch for damages for nervous shock, or psychiatric illness, they developed as the result of the death of their respective fathers who had been exposed to and inhaled asbestos dust and fibre.
   
3. Amaca is defined as a " liable entity" in s 4(1) of the 2005 Act. Section 55(1) provides that a liable entity or the SPF Trustee may apply for advice or direction by the Supreme Court or the Minister on any matter relating to the scope of their functions under, the exercise of any function under, or any other matter relating to the operation of Part 4 of the 2005 Act, which deals with the winding up of the liable entities.
   
4. The SPF trustee and Amaca seek the advice of the court as to whether Amaca, or the SPF trustee on its behalf, would be justified in refusing to pay the claims of Ms Tamaresis and Ms Winch.
   
5. The issue arises because of a difference in wording between the 2005 Act on the one hand and the Trust Deed and another document, the Amended and Restated Final Funding Agreement (" Final Funding Agreement ") on the other hand. The question is whether liability under Part 4 of 2005 Act is limited to claims for personal injury sustained by persons who had exposure to asbestos or asbestos products (" Asbestos ").
   

The 2005 Act

6. Mr Sheahan SC who with Mr Tokley appeared for Ms Tamaresis and Ms Winch submitted that I should start with the 2005 Act as it was the statute, it was the last in time of the documents and because it has priority over the other documents in the case of any inconsistency.
   
7. The object of the 2005 Act was to set up a scheme for the winding up of the liable entities and to ensure that present and future liabilities of those companies in respect of personal injury or death arising from exposure to Asbestos were dealt with in accordance with the Final Funding Agreement. Section 3 was in the following terms:
   

"(1) The principal objects of this Act are as follows:

(a) to set up a State scheme for the winding up and other external administration over an extended period of certain companies that were formerly within the James Hardie corporate group,

(b) to ensure that not only present, but also future, liabilities of those companies in respect of personal injury or death of persons arising from exposure to any asbestos or asbestos products that were mined, manufactured, sold, distributed or used by those companies are dealt with:

• (i) in accordance with the Final Funding Agreement, and
  
• (ii) so that preference is given to those claims over other claims which are deferred to the future, and
  
• (iii) in a manner that recognises that exposure to such asbestos or asbestos products, or personal injury or death arising from such exposure, may occur for an extended period into the future.
  

(2) To achieve the objects set out in subsection (1), this Act displaces certain provisions of the Corporations Act and includes provisions for the establishment of a trust fund and the administration of the companies concerned during the winding up periods for the companies that are apposite to the unique circumstances of the winding up and administration of the companies."

8. Section 21(1) in Part 4 of the 2005 Act provided that during the winding up period for a liable entity any winding up of it was to be conducted only in accordance with Part 4 and no proceedings could be brought or continued in a court or other tribunal for the winding up of the entity otherwise than in accordance with the provisions in Part 4.
   
9. The winding up period was defined in the 2005 Act, s 20 as the period commencing on the commencement date of the section and ending on a date appointed by the Governor or the date on which the liable entity was deregistered under the Corporations Act 2001 (Cth), whichever should first occur. The expectation was that the winding up period would extend into the future for a considerable time.
   
10. Claims that might be made during the winding up period were defined in s 31 in Part 4 of the 2005 Act as follows:
    

"(1) During the winding up period for a liable entity, claims against the entity may be paid only in the manner permitted by this Part.

(2) During the winding up period for a liable entity, a person cannot begin or continue with civil proceedings against the entity in a court or other tribunal unless the proceedings seek to enforce:

(a) any of the following kinds of claims of the person:

(i) a personal asbestos claim (whether or not a proven personal asbestos claim),

(ii) a personal asbestos contribution claim (whether or not a proven personal asbestos contribution claim), or

(b) a payable liability of the entity that was incurred to the person, or

(c) A right of the person against the liable entity (other than a right to be paid damages or receive other payment)."

11. Subject to exceptions with which I am not concerned, the 2005 Act, s 32(1) set out the type of claim that was payable under Part 4:
    

"During the winding up period for a liable entity, only payable liabilities of the entity (other than a liability to pay a claim that is excluded by subsections (2) and (3)) may be paid (whether by the entity itself or by the SPF trustee on the entity's behalf or for its benefit)."

12. Relevantly for present purposes a " payable liability" is defined in the 2005 Act, s 4(1) to mean a " proven personal asbestos claim" made against the entity. That term is also defined in s 4(1) to mean a " personal asbestos claim" (" 2005 Act Definition ") against the entity in respect of which a final judgment has been entered or a binding settlement has been made. The 2005 Act Definition in s 4(1) was as follows:
    

" personal asbestos claim against a liable entity or concurrent wrongdoer means a claim by any of the following persons for damages (whether arising before, during or after the assent day) in respect of personal injury or death arising from exposure to any asbestos or asbestos products that were mined, manufactured, sold, distributed or used by or on behalf of the liable entity or concurrent wrongdoer (as the case may be):

(a) the person who sustains the personal injury,

(b) the legal personal representative of a deceased person who sustained the injury or died as a result of the injury,

(c) a relative of a deceased person who sustained the injury or died as a result of the injury,

and includes such a claim against a liable entity or concurrent wrongdoer pursuant to the joinder of the liable entity or concurrent wrongdoer as a party to proceedings."

13. Section 34 in Part 4 of the 2005 Act authorised the payment of payable liabilities. It was in the following terms:
    

"If there are sufficient funds to do so, a liable entity (or the SPF trustee on its behalf or for its benefit) is authorised to pay the payable liabilities of the entity as and when they fall due for payment, except as otherwise provided by this Part."

Final Funding Agreement

14. Since one of the principal objects of the 2005 Act is to ensure that liabilities in respect of personal injury or death of persons arising from exposure to Asbestos are dealt with in accordance with the Final Funding Agreement, the question whether a claim for damages for nervous shock is within the 2005 Act Definition must take the provisions of the Final Funding Agreement into account.
    
15. The SPF trustee is a party to the Final Funding Agreement as are James Hardie 117 Pty Limited, defined in cl 1.1 as the " Performing Subsidiary ", the State of New South Wales and James Hardie Industries NV.
    
16. Clause 3.1 of the Final Funding Agreement provided that the parties agreed to the structure set out in the 2005 Act and in the Trust Deed establishing the compensation fund for the purpose of funding the payment of liabilities to claimants in respect of proven claims, and for meeting reasonable operating expenses and claims legal costs and other payable liabilities, and for dealing with such liable entities.
    
17. Clause 8 of the Final Funding Agreement defined the scope of obligations, relevantly, as follows:
    

" 8.1 Application of funds

The Parties acknowledge that it is the intent of this deed and the Transaction Legislation and Trust Deed to ensure that:

(a) the moneys and other assets provided to the Trustee (including the JHINV Contributions) may only be applied in the payment of SPF Funded Liabilities; and

(b) such moneys and other assets are not to be applied to satisfy any other creditors of the Trustee or of the Liable Entities or of the JHINV Group.

8.2 Excluded Claims

Each of the Parties agree and acknowledge that:

(a) this deed and the Transaction Legislation seek to address, within the limits set out in this deed (including but without limitation the limits set out in clause 9 ) the funding for payment of SPF Funded Liabilities and the handling of Payable Liabilities; and

...."

18. " Transaction Legislation" was defined in cl 1.1 of the Final Funding Agreement to mean the bill for the 2005 Act. An " SPF Funded Liability" was defined in terms of the definition of a "Payable Liability" as any proven claim, operating expenses, claims legal costs, any pre-commencement claim and recoveries. Relevantly, a " Proven Claim" was defined to include any "Personal Asbestos Claim" (" Final Funding Agreement Definition "), which was defined as follows:
    

" Personal Asbestos Claim means, subject to clause 13.7 :

(a) any present or future personal injury or death claim by an individual or the legal personal representative of an individual, for damages under common law or under other law (disregarding any law which comes into force in breach of clause 13 and which breach has been Notified to the NSW Government under clause 16.5) which:

(i) arises from exposure to Asbestos occurring in Australia, provided that:

(A) the individual's exposure to Asbestos occurred wholly within Australia; or

(B) where the individual has been exposed to Asbestos both within and outside Australia, damages included in the Personal Asbestos Claim shall be limited to the amount attributable to the proportion of the exposure which caused or contributed to the loss or damage giving rise to the Personal Asbestos Claim which occurred in Australia;

(ii) is made in proceedings in an Australian court or tribunal; and

is made against all or any of the Liable Entities or any member of the JHINV Group from time to time;

(b) any claim made under compensation to relatives legislation by a relative of a deceased individual (or personal representative of such a relative) or (where permitted by law) the legal personal representative of a deceased individual in each case where the individual, but for such individual's death, would have been entitled to bring a claim of the kind described in paragraph (a); or

(c) a Contribution Claim made in relation to a claim described in (a) or (b),

but in each case excludes any Marlew Claim and any other claim to the extent they have been recovered or are recoverable under a Worker's Compensation Scheme or Policy."

19. I am not concerned with cl 13 or cl 16 of the Final Funding Agreement nor with a contribution claim nor with a Marlew claim.
    
20. The Final Funding Agreement contained a provision relating to inconsistency:
    

" 4.5 Inconsistency

In the event, and to the extent, of any inconsistency between the provisions of this deed and the terms of the instrument establishing or governing the Trustee or any Related Agreement, this deed shall prevail except in the event that the relevant instrument is the Transaction Legislation or the Release Legislation."

Trust Deed

21. By cl 2.3(a) of the Trust Deed the SPF trustee declared that it held its funds for the " Charitable Purpose" . That term was defined as follows:
    

" 3 CHARITABLE PURPOSE

The Charitable Fund shall exist and be maintained by the Trustee, and the Charitable Fund Property must be maintained and applied by the Trustee, for:

3.1 the principal purpose of receiving and providing funding for the payment and paying of Payable Liabilities and providing services with respect to the management and resolution of Payable Liabilities; and"

22. Clause 3.2 of the Trust Deed contained additional defined purposes.
    
23. A " Payable Liability" was defined in the Trust Deed in the same terms as in the Final Funding Agreement to include any " Proven Claim" which included any " Personal Asbestos Claim" defined in the same terms as the Final Funding Agreement Definition.
    
24. Clause 5.3(h) of the Trust Deed limited the SPF trustee's powers:
    

"The Charitable Fund Property may only be dealt with and applied by the Trustee in connection with or in furtherance of the Charitable Purpose or for the purpose of deriving Income on the Charitable Fund Property in the manner required or permitted by this deed, the Final Funding Agreement, the Transaction Legislation and the general law."

25. Further restriction was contained in cl 5.8(a) of the Trust Deed:
    

"Notwithstanding any other provision of this Deed, the Trustee has no power to and must not pay or discharge or purport to pay or discharge any liability of a Liable Entity which a Liable Entity is not authorised to pay or discharge by the Final Funding Agreement, a Related Agreement or the Transaction Legislation."

26. Clause 5.10 provided for compliance with the Final Funding Agreement:
    

"(a) The Trustee must at all times comply fully with the obligations imposed on the Trustee by the Final Funding Agreement.

(b) In the event of any inconsistency between the Final Funding Agreement and this Deed, the terms of the Final Funding Agreement prevail to the extent of the inconsistency but otherwise this Deed shall have effect."

Submissions of Ms Tamaresis and Ms Winch

27. The Final Funding Agreement Definition was limited to personal injury or death arising from an individual's exposure to Asbestos or a Lord Campbell's Act type claim by such an individual's dependants.
    
28. The 2005 Act Definition is not so clear. It does not explicitly limit the personal injury to an individual sustaining that injury from exposure to Asbestos. On one construction of the definition all that is required is that the personal injury should arise indirectly from exposure to Asbestos.
    
29. Mr Sheahan SC who with Mr Tokley appeared for Ms Tamaresis and Ms Winch pointed out that it had long been established that "nervous shock" or, more accurately, psychiatric injury was a personal injury ( Coyle v John Watson Ltd [1915] AC 1 at 14; Boyle v Nominal Defendant [1959] SR (NSW) 413; Mangion v James Hardie & Co Pty Ltd (1990) 20 NSWLR 100 at 106).
    
30. Further, in Mangion it was decided that a woman who suffered nervous shock as a result of the death of her husband by reason of a dust disease was a person "claiming through" her husband within the meaning of the Dust Diseases Tribunal Act 1989, s 11(1)(c) and the tribunal had jurisdiction to entertain the matter.
    
31. But the construction of the 2005 Act Definition is not to be determined by authority but by a careful analysis of the text, its context and the purpose or object of the statute in order to favour a construction that promotes that purpose or object in terms of the Interpretation Act 1987, s 33.
    
32. Different contexts will produce different results. Thus in Workers' Compensation Board (Q) v Technical Products Pty Ltd [1988] HCA 49; (1988) 165 CLR 642 the High Court considered a statute that required every employer to insure against all sums for which, in respect of injury to any worker employed by him, he may become legally liable by way of compensation under the Workers' Compensation Act 1916 (Qld) or, in the case of such injury, damages arising under circumstances creating also, independently of the Act, a legal liability in the employer to pay damages in respect of that injury.
    
33. It was held that the object of the Act was to provide benefits to injured workers and their dependants " in respect of " injury suffered by the worker in the course of his employment and the phrase meant damages in respect of injury to the worker and did not extend to damages for nervous shock to a person other than a worker.
    
34. Mr Sheahan put Mangion forward as part of the state of the law at the date of the enactment of the 2005 Act and submitted that the 2005 Act Definition should not be construed so as to exclude nervous shock claims.
    
35. It was submitted that there is nothing in the 2005 Act Definition that required the claim to be made by the person affected by Asbestos. Rather, it was submitted, the connecting factor is simply that the personal injury arises from exposure to Asbestos.
    
36. Nervous shock is a short hand expression for a recognised psychiatric injury or condition suffered by a person. It is a personal injury.
    
37. It was submitted that the expression " arising from" in the 2005 Act Definition operated to identify a connection between the circumstances on which the legislation operated, for example, an injury and some other matter or circumstance.
    
38. It was submitted that the use of such connecting factors is common in laws relating to compensation for injury or insurance in respect of compensation for injury and such language provides for a broader scope of connection than direct causation.
    
39. So in Dickinson v Motor Vehicle Insurance Trust [1987] HCA 49; (1987) 163 CLR 500 it was held that a child injured by a fire in a car caused by another occupant of the car playing with matches had suffered injury arising out of the use of the vehicle and that in such a context, " arising out of " did not require a direct or proximate relationship (see also: Government Insurance Office of New South Wales v RJ Green & Lloyd Pty Ltd [1966] HCA 6; (1966) 114 CLR 437 at 442-443, 445 and 447; State Government Insurance Commission v Stevens Brothers Pty Ltd [1984] HCA 32; (1984) 154 CLR 552 at 555 and 559).
    
40. Again, whether " arising from" in the 2005 Act Definition is sufficient to include injury to a person other than the person in contact with Asbestos or his estate or dependants, will depend upon context.
    
41. The submission was put that a claim for nervous shock fell naturally within paragraph (a) of the 2005 Act Definition as a claim by the person who sustained the personal injury, the psychiatric injury, that injury " arising from" the injury or death of the person actually exposed to Asbestos.
    
42. I will return to this submission in discussing the submissions put in opposition to it because it lies at the heart of the controversy.
    
43. In the alternative, it was submitted that paragraph (c) of the 2005 Act Definition makes it clear that a claim can be brought by a relative of a deceased person. That is so.
    
44. It was submitted that there was no intention to compensate only those directly exposed to Asbestos. If relatives who have dependency based claims arising from the death of a person exposed to Asbestos are to be compensated, it was submitted that the case of a relative who was actually injured by virtue of the exposure to Asbestos, illness and death of that person is a fortiori .
    
45. That is an appeal to sympathy rather than a submission for a construction of the 2005 Act Definition based upon its text and purpose.
    
46. It was submitted that the 2005 Act Definition should be construed to include personal injury arising from exposure to Asbestos by another person. Provided the personal injury was sustained by a relative of the person exposed to the Asbestos, paragraph (c) of the 2005 Act Definition was engaged. It was submitted that Ms Tamaresis and Ms Winch satisfied the definition because their psychiatric injury was caused by the exposure of their fathers to Asbestos.
    
47. But paragraph (c) of the 2005 Act Definition does not create another category of claim by a relative suffering nervous shock on learning of another person's personal injury from exposure to Asbestos. The reference to " the injury" in paragraph (c) refers back to " the injury " in paragraph (a) as paragraph (b) also does. Paragraph (c) naturally applies to dependants' claims. The issue is whether the person in paragraph (a) who sustained the personal injury " arising from " exposure to Asbestos includes a person suffering nervous shock in relation to another's personal injury from exposure to Asbestos.
    
48. Reference was made to the principal objects of the 2005 Act and it was submitted that the reference to " personal injury " must have been intended to encompass psychiatric injury. The use of " arising from " as the language of connection between personal injury and exposure to Asbestos was, it was submitted, a deliberate choice of words with wide import extending to indirect and non-proximate causation.
    
49. Further, it was submitted that the objects of the 2005 Act are to give preference to claims for personal injury arising from exposure to Asbestos and not merely to give effect to the Final Funding Agreement. The object is to ensure that liabilities in respect of personal injury are dealt with by giving such preference. A construction that excluded nervous shock claims by persons not exposed to Asbestos would involve a serious invasion of the rights of Ms Tamaresis and Ms Winch.
    
50. It was submitted that the overall intent of the 2005 Act was to benefit those who had been victims of Asbestos. It is beneficial legislation and should be construed accordingly.
    
51. A construction that limits the personal injury or death to exposure to Asbestos renders nugatory existing common law rights and such an outcome requires a clear expression of intent ( Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 at 18; Coco v The Queen [1994] HCA 15; [1994] HCA 15; (1993-1994) 179 CLR 427 at 437).
    
52. Attention was drawn to cl 4.5 of the Final Funding Agreement and it was submitted that in the case of tension between the 2005 Act, the Final Funding Agreement and the Trust Deed, the 2005 Act must govern. It was submitted that the fact that the Final Funding Agreement was in existence before the 2005 Act was passed supported the construction for which Ms Tamaresis and Ms Winch contended.
    
53. Because the Final Funding Agreement provided expressly for priority for the 2005 Act, the use of different language in the 2005 Act to define the class of privileged claims should be seen as a deliberate legislative choice. Parliament did not merely adopt the definitions of the Final Funding Agreement. It chose different language in the context of the Final Funding Agreement expressly deferring to any different operation of the 2005 Act.
    
54. There was an alternative submission with respect to Ms Tamaresis and her claim under the Wrongs Act 1958 (Vic) but in light of submissions made by Mr Meagher SC, who appeared for the SPF trustee and Amaca, Mr Sheahan did not press the submission in the final address.
    

Other submissions

55. There was a common thread running through the submissions of the other parties to the proceedings. It was submitted that the Trust Deed, the Final Funding Agreement and the 2005 Act should be construed harmoniously and the Final Funding Agreement was the paramount instrument.
    
56. I mention some aspects of their submissions.
    
57. Mr Meagher SC submitted that the 2005 Act Definition should be construed consistently with the limitation to individuals who had been exposed to Asbestos in the Final Funding Agreement Definition. The latter makes clear that the individual by whom the claim is made must have been exposed to Asbestos. Mr Meagher submitted that the same restriction applies to the 2005 Act Definition because the subject of the expression " arising from exposure to any asbestos or asbestos products " is the " personal injury or death " and not the claim for damages.
    
58. That is not a complete answer to Mr Sheahan's submission, however, for he would say that the personal injury includes nervous shock.
    
59. If there is uncertainty, Mr Meagher submitted it should be resolved by reference to the principal objects of the 2005 Act in accordance with s 33 of the Interpretation Act to ensure that future liabilities of the liable entities " in respect of personal injury or death of persons arising from exposure to any asbestos or asbestos products " are dealt with in accordance with the Final Funding Agreement.
    
60. Mr Sheahan did not dispute that the Trust Deed, the Final Funding Agreement and the 2005 Act should be construed harmoniously. The Final Funding Agreement Definition and the same definition in the Trust Deed could, in his submission, be read consistently with the 2005 Act Definition on the basis that the reference to the individual was not necessarily the same person who was exposed to Asbestos.
    
61. That calls for an impermissible re-writing of the Final Funding Agreement Definition. It not only speaks clearly of a personal injury claim by an individual that arises from exposure to Asbestos but also goes on to deal with that individual's exposure to Asbestos within or outside Australia. There is no room for a nervous shock claim because an individual bringing such a claim is not exposed to Asbestos within or outside Australia. There is no room for the substitution of some other person's exposure to Asbestos for that of the individual in the definition.
    
62. If the language of the Final Funding Agreement Definition and that in the Trust Deed was intractable, Mr Sheahan submitted that the 2005 Act Definition prevailed under cl 4.5 of the Final Funding Agreement.
    
63. The Solicitor-General, as delegate of the Attorney-General pursuant to a delegation under the Solicitor-General Act 1969, s 4, intervened. The 2005 Act, s 58 provides that the Minister may intervene and be heard personally or by legal practitioner or agent in any proceedings before the Supreme Court.
    
64. Mr Izzo appeared for the Solicitor-General. He submitted that the Final Funding Agreement, cl 4.5 was not engaged because there was no inconsistency. Rather, there were two potential constructions.
    
65. There is some force in that submission. In any event, cl 4.5 of the Final Funding Agreement does not seem to me to have the effect for which Mr Sheahan contends. The priority afforded to the Final Funding Agreement is subject to the exception of the 2005 Act. The clause does not say that the 2005 Act will prevail over the Final Funding Agreement. It is neutral in that circumstance.
    
66. Mr Izzo submitted that to the extent that the 2005 Act Definition was ambiguous as to whether or not a claimant must have been exposed to Asbestos, the ambiguity should be resolved by reading the definition consistently with the Final Funding Agreement Definition and that in the Trust Deed because one of the objects of 2005 Act was to ensure that liabilities of liable entities were dealt with in accordance with the Final Funding Agreement. The 2005 Act, the Final Funding Agreement and the Trust Deed were intended to operate together and compliment each other.
    
67. The obligation to pay a personal asbestos claim was assumed or imposed in each of the 2005 Act, Final Funding Agreement and the Trust Deed. Mr Izzo submitted that it could not been intended that the content of that obligation would differ from one instrument to the other.
    
68. Mr Jackman SC who with Mr Klineberg appeared for James Hardie 117 Pty Limited (" James Hardie 117 "), the " Performing Subsidiary ", drew attention to the Second Reading Speech of Mr Debus in the Legislative Assembly when the Minister said:
    

"Earlier today the Premier signed an historic 40-year agreement with James Hardie Industries NV to secure $4.5 billion in compensation for the victims of James Hardie's asbestos."

69. And later when he said:
    

"I turn now to the main bill the James Hardie Former Subsidiaries (Winding up and Administration) Bill, which implements and supports some of the important structural elements of the Final Funding Agreement."

70. That accords with the predominance given to the Final Funding Agreement in the harmonious structure created by the Trust Deed, the Final Funding Agreement and the 2005 Act. It also accords with the principal object referred to in s 3(1)(b) of the 2005 Act.
    
71. Mr Debus also said:
    

"The government wants to make sure that the funding James Hardie provides is available for personal injury claimants, their estates and their dependant relatives."

72. Thus claims of individuals who suffered personal injury arising from their exposure to Asbestos as well as claims by their estates and dependant relatives were covered by the funding arrangements.
    
73. Also suggestive of the predominance of the Final Funding Agreement, as Mr Jackman pointed out, is s 23(1)(c) of the 2005 Act. It provides:
    

"Subject to this Part, the powers of each liable entity must be exercised during the winding up period for the entity so as to:

...

(c) apply any funds provided from the SPF only in accordance with the conditions on which the funding is provided."

74. That is a reference to the Final Funding Agreement because it establishes the uses to which money provided to the SPF trustee by James Hardie 117 can be put.
    
75. Mr Jackman pointed out that the obligations upon James Hardie 117 to provide funds to the SPF trustee are contained in the Final Funding Agreement and not in the 2005 Act which does not contain any provision setting out the funding of the SPF trustee.
    

Conclusion

76. It was common ground that the Trust Deed, the Final Funding Agreement and the 2005 Act should be read together harmoniously. They together formed the structure for the payment of compensation to persons suffering personal injury or death in relation to James Hardie Asbestos.
    
77. Read in that context, the object of the 2005 Act is, in my view, that persons suffering injury or death from exposure to Asbestos of James Hardie will be compensated in accordance with the Final Funding Agreement.
    
78. Personal injury or death " arising from " exposure to Asbestos in the 2005 Act Definition must be construed awkwardly if the personal injury is to extend to a person not exposed to those products.
    
79. The reading of the 2005 Act Definition proposed by Mr Sheahan that nervous shock is personal injury arising from exposure to Asbestos because it was a reaction to another person's suffering personal injury or death from exposure to Asbestos is a strained construction of the definition. I reject it.
    
80. Harmony is established if the 2005 Act Definition is construed in accordance with the Final Funding Agreement Definition and that in the Trust Deed.
    
81. As Mr Izzo pointed out, it is not to be concluded that it was intended that a " personal asbestos claim " have a different content from one instrument to the other.
    
82. That the Final Funding Agreement was intended to be the pre-dominant instrument has been made good by the 2005 Act's reference to it in stating one of its main objects; its determination of the use of the moneys from James Hardie 117 aided by the significance the Minister placed upon it in the Second Reading Speech; and the absence of any provision for funding the SPF trustee in the 2005 Act.
    
83. I reject the submission that an harmonious interpretation of the Final Funding Agreement Definition is achieved if the reference to an individual can be someone other than the person exposed to Asbestos.
    
84. Construing the 2005 Act Definition consistently with the Final Funding Agreement and that in the Trust Deed gives rise to no inconsistency upon which cl 4.5 of the Final Funding Agreement can operate but, additionally, I am of the view that when it comes to an inconsistency between it and the 2005 Act, cl 4.5 is silent with respect to any predominance.
    
85. I therefore answer the advice or direction sought in paragraph 55(a) and paragraph 55(c) of the amended statement of facts pursuant to s 55(4) of the 2005 Act in the affirmative. I will hear the parties on costs. I direct the parties to bring in short minutes of order reflecting these reasons.
    

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