Abercrombie v BHP Billiton Ltd

[2009] NSWDDT 8

Dust Diseases Tribunal

of New South Wales

CITATION:	Abercrombie v BHP Billiton Ltd [2009] NSWDDT 8
PARTIES:	Joseph Abercrombie (Plaintiff) BHP Billiton Limited (Defendant)
MATTER NUMBER(S):	36 of 2009
JUDGMENT OF:	O'Meally P
CATCHWORDS:	DUST DISEASES TRIBUNAL :- application to remove claim from claims resolution process - whether application to remove filed in conjunction with statement of claim
LEGISLATION CITED:	Dust Diseases Tribunal Regulation 2001 Dust Diseases Tribunal Regulation 2007 Dust Diseases Tribunal Act 1989
CASES CITED:	Expate Davis (1857) 5 WR 522 Hills v London Gaslight Co (1857) 27 LJ Ex 60
DATES OF HEARING:	10 March 2009
DATE OF JUDGMENT:	10 March 2009
EX TEMPORE JUDGMENT DATE:	10 March 2009
LEGAL REPRESENTATIVES:	R Sandhu of Slater & Gordon appeared for the Plaintiff D C Andersen of Piper Alderman appeared for the Defendant

JUDGMENT:

RULING

O'MEALLY P

1. This is an application by Joseph Abercrombie to remove his case from the Claims Resolution Process (CRP) established by the Dust Diseases Tribunal Regulation 2001 and continued by the Dust Diseases Regulation 2007 (the Regulation). Mr Abercrombie commenced proceedings by filing a Statement of Claim in the Tribunal on 20 February 2009.

2. He alleges that between 1950 and 1955 and between 1955 and 1961 he was employed by the defendant as an apprentice refractory bricklayer and as a refractory bricklayer. He alleges that in the course of his employment, he was required to handle asbestos and asbestos products, as a result of which he inhaled asbestos dust and fibre, and contracted asbestosis.

3. He seeks provisional damages for asbestosis, and an order pursuant to s 11A of the Dust Diseases Tribunal Act 1989 that, in the event that he later suffers any of the diseases recited in par 2 of the Statement of Claim, he may claim further damages.

4. The application to remove his case from the CRP is made pursuant to a Notice of Motion filed on 5 March 2009, something less than a fortnight after his Statement of Claim was filed. It is based upon the report of Dr Suzanne Miles who is a physician working at the Calvary Hospice in Newcastle. Relevantly, Dr Miles recites that he suffers mild chronic obstructive pulmonary disease, interstitial lung disease which she thinks related to asbestos, pulmonary hypertension, and a cardiac condition the nature of which I am unable to decipher in her handwritten report. She adds that he is severely hypoxic. She recites that he is acutely unwell and it seems, if her writing is deciphered correctly, that he was due to have a cardiac catheterisation the day after the report was provided. Her report contains the words Mr Abercrombie has a poor prognosis, which may not exceed three months.

5. Mr Andersen, who appears for the defendant, has submitted that in the circumstances of this case I have no jurisdiction to remove the claim from the CRP.

6. By reason of cl 18(1), the plaintiff's claim is subject to the CRP. By reason of cl 19(1), the parties must comply with the provision of pt 4 of the Regulation. Clause 22(1)(a) permits a claim to be removed from the CRP on the grounds of urgency.

7. Mr Andersen's opposition to the application is based substantially on the provisions of cl 24 of the Regulation.

8. Clause 24(1)

requires a plaintiff to file and serve with the Statement of Claim a Statement of Particulars. Subclause 4 provides that a Statement of Claim is not properly served until the Statement of Particulars has also been served. Subclause 7 provides that cl 24 does not apply if a plaintiff's Statement of Claim is filed in conjunction with an application by the claimant under cl 22, to remove the claim from the CRP on the grounds of urgency.

9. It is because of the delay between the filing of the Statement of Claim and the filing of the Notice of Motion that Mr Andersen submits that the former was not filed in conjunction with the latter and so cl 24 continues to apply. As a result, he says it is not competent for the Tribunal to remove the claim from the CRP. In the time available, he has located and provided me with copies of two decisions of the Land and Environment Court in which the phrase "in conjunction with" has been judicially considered.

10. There is English authority for the proposition that judges are philologists of the highest order (see Exparte Davis (1857) WR 522 at 523) and are bound to know the meaning of all words in the language (see Hills v London Gaslight Co (1857) 27 LJ Ex 60 at 63). Be that as it may, the meaning to be ascribed to a word or phrase must be considered in light of the context in which it is used. In my view, it is not necessary for the non-application of cl 24(7), that there be a simultaneous filing of a Statement of Claim and a Statement of Particulars.

11. "In conjunction with" in subcl 7, in my view, means related to, or combined with, or in connection with. The application to remove the claim from the CRP is related to the Statement of Claim. It is combined with it. It was filed in connection with it.

12. A reading of Dr Miles' report confirms there is no doubt that the claim is urgent and I am of the view that it would be inappropriate to give a construction to subcl (7) which had the result of delaying the hearing of the plaintiff's action.

13. It is a matter of considerable concern, not only to myself but to other members of the Tribunal and those who practice here, that the incidence of death of plaintiffs during the course of the CRP is continuing in a manner which is alarming. In my view, the orders sought should be made.

14. Lest there be any doubt, I should add that no criticism should be levelled at the defendant for mounting the argument it has. It is a frequent litigant here and it and those who act for it act honourably. The argument was one available, but, having considered it, I am not disposed to uphold it.

MR ANDERSEN

I make an application for reconsideration of your Honour’s ruling under section 13(6) of the Dust Diseases Tribunal Act. As I understand your Honour’s reasons your Honour interpreted the words “in conjunction with” to mean related to or combined with and then your Honour indicated as I understand your Honour’s ruling that the phrase was satisified because the Statement of Claim was related to or combined with this application.

DISCUSSION

HIS HONOUR

Yes subject to your concurrence, I will have the reasons taken out and I will give you the opportunity further to address me. So I revoke the order that I have made. I intend to remove the claim but I can see there is a flaw in what I have said. Mr Sandhu, I would have thought it appropriate in the circumstances that you get the material to Mr Andersen I will list this again.

15. Notice of Motion for hearing 16 March 2009

R Sandhu of Slater & Gordon appeared for the Plaintiff

D C Andersen of Piper Alderman appeared for the Defendant