Amaca Pty Ltd v Wallaby Grip Ltd

[2025] NSWDDT 3

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:

Amaca Pty Ltd v Wallaby Grip Ltd & Anor [2025] NSWDDT 3

Hearing dates:

2 June 2025

Date of orders:

11 July 2025

Decision date:

11 July 2025

Before:

Strathdee DCJ

Decision:

(1) Pursuant to reg 20(1)(c) of the Dust Diseases Tribunal Regulation 2019 (NSW), the matter is removed from the CRP.

(2) The matter is struck out pursuant to UCPR r 6.2.

(3)   Amaca is to pay the costs of the defendants.

Catchwords:

WANT OF DUE DISPATCH – lack of steps appropriately taken in accordance with the Dust Diseases Tribunal Regulation 2019 and UCPR 6.2

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 100

Civil Proceedings Act 2011 (Qld), s 58

Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5

Uniform Civil Procedure Rules 2005 (NSW), rr 6.2, 12.7

Dust Diseases Tribunal Regulation 2019 (NSW), regs 20(1), 59

Category:

Procedural rulings

Parties:

Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd) (Plaintiff)
Wallaby Grip Limited (First Defendant)
Wallaby Grip (BAE) Pty Ltd (In Liquidation) (Second Defendant)

Representation:

Counsel:
I Griscti (Plaintiff)
S McKenzie (First Defendant)
S McKenzie (Second Defendant)

Solicitors:
Holman Webb Lawyers Brisbane (Plaintiff)
Zambra Legal (First Defendant)
Zambra Legal (Second Defendant)

File Number(s):

DDT 2021/149136

JUDGMENT

1. By Notice of Motion (NOM) filed 27 May 2025, Wallaby Grip Limited (WGL) and Wallaby Grip (BAE) Limited (In Liquidation) (the defendants) seek the following orders against Amaca Pty Limited (formerly James Hardie & Coy Pty Ltd) (Amaca):

1. Pursuant to reg 20(1) of the Dust Diseases Tribunal Regulation 2019 (NSW), that this matter be removed from the Claims Resolution Process (CRP).

2. That the matter be struck out pursuant to UCPR r 6.2.

3. In the alternative, that the matter be dismissed pursuant to UCPR r 12.7.

4. Such further or other orders as the Tribunal deems fit.

5. Costs in favour of the Defendants.

2. Amaca opposed the orders sought.

3. The defendants tendered an affidavit of Stuart James Newell affirmed on 27 May 2025 which became exhibit A on the NOM. Amaca tendered an affidavit of Mark Vincent Victorsen sworn 30 May 2025 which became exhibit 1, and a NSW Online Registry entry dated 17 June 2022 which became exhibit 2.

Background

4. By Statement of Claim filed 26 May 2021, Amaca seeks from the defendants the following orders:

1. Contribution and or indemnity pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).

2. Interest upon any sum which the defendants are ordered to pay to Amaca pursuant to s 100 of the Civil Procedure Act 2005 (NSW) or alternative interest pursuant to s 58 of the Civil Proceedings Act 2011 (Qld).

3. The defendants pay Amaca’s Costs of the Statement of Claim (the Cross Claim).

4. Any such orders as the Tribunal sees fit.

5. On 2 June 2025 the matter came before me in the Dust Diseases Tribunal (DDT) General List. Whilst there had a been flurry of activity in the week preceding of the listing of the NOM, Mr Griscti sought an adjournment to put on evidence as to the NOM, which was refused given the delay of some four years in the conduct of the proceedings.

6. The original claim by the plaintiff (Mr Porter) against the defendants was settled in July 2021. Amaca’s Division 6 claim which arises out of a Queensland dockyards exposure was served on the defendants in May 2021. As is evidenced in Mr Newell’s affidavit, shortly thereafter there was written correspondence from the defendants to Amaca asking for compliance with reg 59 of the Dust Diseases Tribunal Regulation 2019 (NSW), and most importantly the Part 8 Reply which lays out the basis of the case against the defendants.

7. As I understand the Part 8 Reply was only recently served to comply with reg 59.

Legislation

8. Regulation 20(1)(c) of the Dust Diseases Tribunal Regulation 2019 (NSW) provides as follows:

“20  Removal of certain claims from claims resolution process

(1)  A claim is removed from (and is therefore not subject to) the claims resolution process if—

(a) the Tribunal determines, on application by the claimant and on the basis of medical evidence presented for the claimant, that the claim is urgent, or

(b) all the parties to the claim agree, following the required information exchange, that the claim should not be the subject of the claims resolution process and notify the registrar accordingly, or

Note. For example, the parties may consider that the claim raises novel issues (in the nature of a “test case”) that are unlikely to be resolved by the claims resolution process.

(c) the Tribunal determines on application by a party (the applicant) that the claim should be removed from the claims resolution process because another party to the claim has failed to comply with a requirement of the claims resolution process and that failure has resulted in substantial prejudice to the applicant or substantial delay, or

(d) the Tribunal determines, of its own motion, that the claim should be removed from the claims resolution process because no documents have been filed, and the claim has not otherwise progressed in the claims resolution process, within the previous 12 months.”

9. Regulation 59 of the Dust Diseases Tribunal Regulation 2019 (NSW) states:

“59 Copies of original claim particulars and replies to accompany new cross-claim statement of claim

(1) The initiating defendant must serve with the statement of claim for the new cross-claim copies of each of the following—

(a) the statement of particulars of the plaintiff on the original claim, and

(b) the replies of each of the original claim defendants to the original claim, and

(c) an appropriately revised version of Part 8 of Form 2 of the initiating defendant’s reply to the original claim against the defendant, and

(d) any agreement among the original claim defendants as to the contribution that each is liable to make to damages recovered on the original claim, and

(e) any determination by a Contributions Assessor as to the contribution that the original claim defendants are liable to make to damages recovered on the original claim.

(2) If the plaintiff on the original claim did not file and serve a statement of particulars of the plaintiff’s claim, the initiating defendant must (instead of serving a copy of the plaintiff’s statement of particulars with the statement of claim for the new cross-claim) provide and serve with the statement of claim for the new cross-claim a statement that provides sufficient particulars of the original claim, based on information provided by the plaintiff in the plaintiff’s statement of claim on the original claim and any other information provided by the plaintiff.

(3) If the Tribunal determines that the initiating defendant failed to provide sufficient particulars of the original claim as required by subclause (2) and that as a result an issue was left in dispute between the initiating defendant and a new defendant in proceedings on the new cross-claim (being an issue subsequently determined in favour of the new defendant), the initiating defendant is liable to pay the new defendant’s costs, assessed on an indemnity basis, occasioned by the dispute.”

10. Rule 6.2 of the UCPR provides as follows:

“6.2   How proceedings commenced

(1)  Subject to these rules, the practice notes and any other rules of court, a person may commence proceedings in the court by filing a statement of claim or a summons.

(2)  Subject to these rules, the practice notes and any other Act or law, the plaintiff may choose whether to commence proceedings by statement of claim or by summons.

(3)  Originating process must be served on each defendant.

(3A)  An originating process served in accordance with subrule (3) must include the following—

(a)  the seal of the court on the first page (whether an original sealed copy or a photocopy of a sealed copy),

(b)  the case number or unique identifier,

(c)  the listing date (if allocated by the court registry).

(4)  Subject to subrule (5), originating process is valid for service—

(a)  in the case of proceedings in the Supreme Court, the Land and Environment Court, the Dust Diseases Tribunal or the Local Court, for 6 months after the date on which it is filed, or

(b)  in the case of proceedings in the District Court—

(i)  for 6 months after the date on which it is filed—

(A) if it is a statement of claim seeking relief in relation only to a debt or other liquidated claim, or

(B)  if the defendant (or at least one of the defendants) is to be served outside New South Wales, or

(ii)  for one month after the date on which it is filed, in any other case.

(5)  Failure to serve originating process within the time limited by these rules does not prevent the plaintiff from commencing fresh proceedings by filing another originating process.”

Discussion

11. On 17 June 2022, the Registrar of the DDT made the following order (exhibit 2)

“Pursuant to r 6.2(4)(a) if the Uniform Civil Procedure Act, the Statement of Claim filed on 26.5.21 (Amaca Pty Ltd v Wallaby Grip Ltd & Anor case no. 21/149136) has not been served within 6 months after the date which it was filed and is now expired and not valid for service.”

12. It appears to me that Amaca did nothing to prosecute its cross claim from 26 May 2021, until 13 March 2025 when an Amended Revised Original Party 8 Reply was filed. Since then, there has been correspondence between the parties, but to no avail having regard to the proposed the resolution of the cross-claim. Despite correspondence between the defendants and Amaca, as at 5 May 2025, Amaca had not provided any real response to the questions asked.

13. The affidavit of Mr Victorsen does not really address the period between which the Division 6 claim was made until 27 May 2025. More importantly there is no explanation for the four-year delay.

14. I accept that it is appropriate to remove the matter from the CRP as Amaca has not complied with Reg 20(c) of the Dust Diseases Tribunal Regulation 2019 (NSW) by failing to serve the Reply within the time frames provided in the Regulation.

15. Further, in my view, Amaca needed to establish under UCPR r 6.2 that the service of the cross-claim is void or invalid. The defendants submit that Amaca asserts that service did take place in 2021, but there was an irregularity, which they tried to correct in March 2025. I note however that there has been no explanation for the inordinate delay occasioned during that period of time.

16. Thus, as the defendants submit that the claim ought be dismissed for want of due dispatch, I accept that submission. I accept that the Statement of Claim had not been served in accordance with reg 59 of the Dust Diseases Tribunal Regulation 2019 (NSW), and as such is an irregularity that cannot be cured.

17. I accept that the claim ought to be dismissed for want of due dispatch.

18. I propose to remove the cross-claim from the CRP and strike it out under UCPR 6.2.

Orders

19. I make the following orders:

1. Pursuant to reg 20(1)(c) of the Dust Diseases Tribunal Regulation 2019 (NSW), the matter is removed from the CRP.

2. The matter is struck out pursuant to UCPR r 6.2.

3. Amaca is to pay the costs of the defendants.

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Decision last updated: 11 July 2025