Abercrombie v BHP Billiton Ltd (No. 3)
[2009] NSWDDT 9
•20 March 2009
Dust Diseases Tribunal
of New South Wales
CITATION: Abercrombie v BHP Billiton Ltd (No. 3) [2009] NSWDDT 9 PARTIES: Joseph Abercrombie (Plaintiff)
BHP Billiton Ltd (Defendant)MATTER NUMBER(S): 36 of 2009 JUDGMENT OF: O'Meally P CATCHWORDS: DUST DISEASES TRIBUNAL :- words and phrases - "filed in conjunction with"
application to remove claim from claims resolution process on ground of urgency - whether application to remove filed in conjunction with statement of claim - whether Tribunal has jurisdiction to order removal - whether clause 22(1)(a) of the Dust Diseases Tribunal regulation operates independently of clause 24(7)LEGISLATION CITED: Dust Diseases Tribunal Act 1989
Dust Diseases Tribunal Regulation 2001
Dust Diseases Tribunal Regulation 2007CASES CITED: Stansfield and Stansfield (trading as Rambler Caravans) v Commissioner of Stamps (1978) 18 SASR 139
Simpson v Australian Telecommunications Commission (1978) 22 ALR 434
Franklin v Moore (1980) 26 SASR 176
Ex Parte Davis (1857) 5 WR 522
Hills v London Gaslight Company (1857) 27 LJ Ex 60DATES OF HEARING: 20 March 2009
DATE OF JUDGMENT:
20 March 2009EX TEMPORE JUDGMENT DATE: 20 March 2009 LEGAL REPRESENTATIVES: S Tzouganatos instructed by Slater & Gordon appeared for the Plaintiff
D C Andersen of Piper Alderman appeared for the Defendant
JUDGMENT:
O'MEALLY P
RULING
1. On Tuesday 10 March 2009 I heard an application by Joseph Abercrombie to remove his claim against BHP Billiton Limited from the claims resolution process (the CRP). An order was made removing it. However, after delivering my reasons, Mr Andersen successfully applied under s 13(6) of the Dust Diseases Tribunal Act 1989 (the Act) for reconsideration of my ruling. Then, having acceded to his application and revoked the order, I adjourned the application for hearing until 16 March 2009. On that date, for reasons which are unnecessary now to recite, the hearing of the application was adjourned until today, and I have heard argument from Mr Andersen for the defendant, and from Mr Tzouganatos who appears for the plaintiff.
2. So that these reasons can be considered independently of those of 10 March 2009, I think it appropriate to recite these matters. The plaintiff commenced proceedings in the Tribunal by filing a statement of claim on 20 February 2009. On 5 March 2009, something less than a fortnight later, he filed an application to remove his claim from the CRP.
3. The CRP was established in 2005 by amendment to the Dust Diseases Tribunal Regulation 2001. This regulation was repealed by the Dust Diseases Tribunal Regulation 2007 (the Regulation) but the CRP was continued by it. So far as is relevant the Regulation is as follows:
22 (1) A claim is removed from (and is therefore is not subject to) the claims resolution process if:
(2) A claim is urgent only if the Tribunal is satisfied that, as a result of the seriousness of the claimant's condition, the claimant's life expectancy is so short as to leave insufficient time for the requirements that the claims resolution process to be completed and the claim finally determined by the Tribunal, if required, on an expedited basis.
. . .
4. Attached to the affidavit in support of the application to remove the plaintiff's claim from the CRP is a handwritten report of Dr Suzanne Miles, which bears numerals indicating it was written on 2 March 2009. Dr Miles is a physician at the Calvary Hospice in Newcastle. As noted in my reasons of 10 March 2009, Dr Miles recited that the plaintiff suffered mild chronic obstructive pulmonary disease, interstitial lung disease, which she thought related to asbestos, pulmonary hypertension and a cardiac condition, the nature of which I was unable to decipher in her handwritten report. She added that he was severely hypoxic. She recited that the plaintiff was acutely unwell, and if my interpretation of her handwriting is correct, that he was due to have a cardiac catheterisation the day after the report was provided. Dr Miles' view was that Mr Abercrombie had a poor prognosis which might not exceed three months. Her report satisfies the criteria required by cl 22(1)(a) and (2).
5. The application to remove the claim from the CRP is resisted by the defendant substantially on the basis that the Tribunal was, at relevant times, without jurisdiction to do so. As noted in my reasons of 10 March last, the plaintiff's claim became subject to the CRP by reason of cl 18(1) of the Regulation. Clause 19(1) imposed an obligation to comply with the provisions of Pt 4 of the Regulation. Part 4 requires the provision of particulars in accordance with Form 1 and the exchange of certain information. It is unnecessary on this application to consider the nature of the information required to be given and exchanged.
6. The argument of Mr Andersen is based upon what he says is the effect of cl 24(7) of the Regulation. Clause 24(1) imposes an obligation upon a plaintiff to file and serve with the statement of claim, a statement of particulars of the claim. Subclause (4) provides that a statement of claim is not properly served until the statement of particulars, that is particulars in accordance with Form 1, has also been served on the defendant. Subclause (7) is in these terms:
(7) This clause does not apply if the plaintiff's statement of claim is filed in conjunction with an application by the claimant under clause 22 (Removal of certain claims from claims resolution process) for a determination by the Tribunal that the claim is urgent and that application results in the making of such a determination by the Tribunal.
Note. When subclause (7) applies, the statement of claim will be regarded as having been served when it was actually served and a statement of particulars is not required.
7. The chronology of the filing of documents, that is the statement of claim on 20 February 2009 and the application to remove the claim from the CRP on 5 March 2009, in Mr Andersen's submission, demonstrates that the statement of claim was not filed "in conjunction with" the application by the plaintiff under cl 22. He says that the failure to file the application in conjunction with the statement of claim is fatal to the plaintiff's application to remove the claim from the CRP. As earlier remarked, a statement of claim is not properly served until a statement of particulars has also been served on a defendant. The statement of claim was filed, and the reason that solicitors generally file statements of claim without a contemporaneous filing of statements of particulars is, no doubt, to protect a plaintiff's right to general damages granted by s 12A of the Act.
8. With all respect to the able arguments of Mr Andersen, I am unable to agree that the Tribunal lacks jurisdiction to make the order, but in deference to his arguments I should refer to his submissions.
9. The essence of his argument is that to invest the Tribunal with jurisdiction to remove a claim from the CRP, where an application for removal has not been filed together with a statement of claim, there must be some indication of urgency conveyed to a defendant either by conduct or letter. There must, he says, be a temporal connection, lacking in this case, between the filing of a statement of claim and the filing of an application to remove a claim from the CRP.
10. He has referred me to a number of cases in which the phrase "in conjunction with" has been judicially considered. In Stansfield and Stansfield (trading as Rambler Caravans) v Commissioner of Stamps (1978) 18 SASR 139 Zelling J said:
I think the words 'in conjunction with' simply mean together with, or along with: see Roget's Thesaurus (Pelican edition), page 15, par. 37.
11. In Simpson v Australian Telecommunications Commission, a decision of the Federal Court of Australia in its Industrial Division ((1978) 22 ALR 434 at 436; BC 7800 138, 6 November 1978) St John J said:
In its ordinary meaning, in the Shorter Oxford Dictionary, 3rd ed, “conjunction” is defined as:-
“1. the action of conjoining; the fact or condition of being joined; union, connection, combination.”
The remaining definitions relate to special matters. “Conjoin”, is “to join together; to connect, unite” according to the same lexicon.
12. And in Franklin v Moore and Moore (1980) 26 SASR 176 Wells J expressed the view that "in conjunction with" meant "in combination with".
13. On 10 March last I noted that there was English authority for the proposition that judges are philologists of the highest order (see ex parte Davis (1857) 5 WR 522 at 523). I also remarked that judges were bound to know the meaning of all words in the language. Authority for that proposition may be found in Hills v London Gaslight Company (1857) 27 LJ Ex 60 at 63. It would seem, therefore, that the obligation upon a judge is not to consult a dictionary to ascertain the meaning of the word, but if, in compliance with the authority referred to, it is appropriate, the judge should approve, or even disapprove the meaning given in a dictionary. That, however, is not necessary because according to the ordinary tenets of statutory construction, the meaning to be given to a word or phrase must be ascertained according to the context in which it is used.
14. In my reasons of 10 March 2009, the phrase "in conjunction with" in cl 24(7) was said to mean “related to”, or “combined with”, or “in connection” with. I then expressed the view that the application to remove the claim from the CRP was related to the statement of claim because it was combined with it and filed in connection with it. It related to it. The statement of claim initiated the proceedings. The application to remove the claim from the CRP is related to the claim initiated by the statement of claim.
15. However, having given the matter further consideration, and aided by the submissions of Mr Tzouganatos, I think it unnecessary to base my decision on the meaning of the phrase "in conjunction with".
16. In my view cl 22(1)(a) and cl 24(7) operate independently of one another. It was pointed out in submissions by Mr Tzouganatos, and indeed it is well known, that the condition of those who suffer asbestos diseases, in particular the condition of those who suffer mesothelioma or carcinoma, can deteriorate at any time with little or no warning. This is why statements of claim are filed without statements of particulars or without having exchanged the required information. We know that those who suffer mesothelioma usually die within a year of diagnosis following symptoms, but many die soon after diagnosis. Some live longer than one year post diagnosis, most do not. Some who suffer asbestosis will later develop mesothelioma.
17. When a person suffering an asbestos disease files a statement of claim, by reason of cl 18 of the Regulation, that claim is subject to the CRP and an obligation is imposed to file and serve Form 1 particulars and exchange the information required. It is only when a claim is removed from the CRP on the grounds of urgency that the obligation to provide Form 1 particulars and exchange information is excused.
18. Clause 24(7) permits an application to remove a claim which is already urgent by reason of a poor prognosis to be made by filing such an application “in conjunction with” filing the statement of claim. If the claim is removed because of urgency, the obligation to file and serve Form 1 particulars and to exchange information is excused.
19. Clause 22(1)(a) gives power to the Tribunal to determine that a claim is urgent and, if so satisfied, to remove it from the CRP. Clause 24(7) anticipates an application under cl 22(1)(a).
20. In my view, the submission of Mr Tzouganatos that there is nothing in the words of cl 22(1)(a) which provides a basis for concluding that the Tribunal's power is subject to the operation of cl 24(7), or any other clause in the Regulation, is correct. There is nothing in cl 22 which requires a plaintiff in an urgent case contemporaneously to file a statement of claim with an application to remove the claim from the CRP, or which requires a plaintiff to have served a Form 1 statement of particulars within the time prescribed after the filing of the statement of claim.
21. As noted earlier, I am of the view that cl 22(1)(a) and cl 24(7) are independent of one another. This is because they are directed to different subject matters. Clause 22 is in Div 2 of the Regulation: "Claims subject to the claims resolution process" and appears under the heading "Removal of certain claims from the claims resolution process". Clause 24 is in Div 3 which relates to “Required information exchange” and appears under the heading "Claimant to Provide Statement of Particulars". I believe, also, that there is nothing in cl 24(7) which inhibits the Tribunal's power or function under cl 22 relating to urgent claims.
22. For those reasons, I am of the view that the Tribunal does have power and jurisdiction to remove the plaintiff's claim from the CRP.
23. I think it is accepted that Dr Miles' report establishes that the plaintiff's claim is urgent.
24. Before making the final order I will hear counsel on costs.
25. Mr Andersen has submitted that in the events that have happened the plaintiff should have the costs of the motion until 10 March 2009, but not otherwise. His submissions are these. He made successful application for reconsideration of the ruling which was set aside, but fixed for rehearing on 16 March 2009. On 16 March 2009, the plaintiff was not ready to proceed and the matter was stood over until today. In the meantime Form 1 particulars were filed which were affirmed by the plaintiff on 11 March 2009. My view is that the plaintiff should have the costs of and incidental to the application to remove the claim from the CRP, save and except costs of 16 March 2009. The reason is that the claim was removed without regard to the filing of the Form 1 particulars which were irrelevant to the application to remove the claim pursuant to cl 22(1)(a).
26. The orders I make are these. Pursuant to cl 22(1)(a) of the Dust Diseases Tribunal Regulation this claim is removed from the claims resolution process. The defendant will pay the costs of this application as agreed or assessed save for the costs of 16 March 2009.
27. I am required to consider whether mediation should take place, but by consent I defer consideration of the application of Div 4 of the Regulation until requested to do so by the parties.
28. For directions 23 March 2009.
S Tzouganatos instructed by Slater & Gordon appeared for the plaintiff
D C Andersen of Piper Alderman appeared for the defendant
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