Bathis v Wallaby Grip (BAE) Pty Limited - [2004] NSWDDT 13

Dust Diseases Tribunal

of New South Wales

CITATION: Bathis v Wallaby Grip (BAE) Pty Limited [2004] NSWDDT 13

PARTIES: Ronald Bathis
Wallaby Grip (BAE) Pty Limited

MATTER NUMBER(S): 39 of 2003

JUDGMENT OF: Walker J at 1

CATCHWORDS: :-

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING: 27/04/2004

DATE OF JUDGMENT:
04/28/2004

LEGAL REPRESENTATIVES:
FOR PLAINTIFF: Mr A Leslie, QC, instructed by Turner Freeman.
FOR DEFENDANT: Mr Wallace instructed by Hicksons.

JUDGMENT:

THE CLAIM

Ronald Bathis claims provisional damages against Wallaby Grip (BAE) Pty Limited in liquidation, pursuant to the provisions of s 11A of the Dust Diseases Tribunal Act 1989.

HISTORY OF THE CLAIM

1. The plaintiff proceeds by way of amended statement of claim dated 17 April 2003 in which he claims damages for negligence against the defendant as well as making claims for breach of statutory duty pursuant to s 25(2) of the Factories and Shops Act 1912 and s 41(2) of the Factories, Shops and Industry Act 1962. The wrongdoing alleged by the plaintiff is that he was negligently exposed to inhaling asbestos dust and fibre in his employment with the defendant at its premises at 157 Canterbury Road, Bankstown, between 31 October 1970 and 31 December 1979.

2. The plaintiff's case is that as a result of that exposure he has contracted asbestos related pleural disease (hereinafter referred to as ARPD). Mr Bathis seeks provisional damages on that account but reserves his right pursuant to s 11A to claim further damages should he develop the following conditions:

• Asbestosis

• Asbestos related lung cancer

• Pleural mesothelioma

• Peritoneal mesothelioma

• Asbestos induced carcinoma of any other organ.

3. The defendant instructed Hicksons solicitors to put on a defence which was duly filed on 27 February 2004. It put every possible matter in issue.

4. Allianz Australia Limited sought and was granted leave by President O'Meally to be appointed designated insurer of the defendant pursuant to the provisions of s 151AC(4) of the Workers Compensation Act 1987.

5. Tobias Julian Tancred, a solicitor employed by Hicksons acting on behalf of the defendant filed an affidavit dated 4 June 2003 in which he advised the Court that at the relevant times the insurers of the defendant were

• CGU Insurance Limited, (1974 to 31 July 1975)

• NEM Insurance Limited, (31 July 1975 to 31 December 1978)

• Allianz Australia Limited, (31 December 1978 to 31 December 1979).

6. On 8 April 2004 Alan William Blanch, the solicitor on the record for the defendant, gave notice to its official receiver of his intention of ceasing to act for the defendant. On 16 April 2004 Mr Blanch duly filed a notice of ceasing to act.

7. When this matter came on for hearing at 10 am on 27 April 2004 there was no appearance on behalf of the defendant, nor was there any communication with the Court from the official liquidator concerning any intention to appear.

8. Mr Leslie of Queen's Counsel representing the plaintiff advised the Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWDDT 13
Decision Date: 04/28/2004

CaseChat Overview and Summary

The matter of Bathis v Wallaby Grip (BAE) Pty Limited was before the Federal Court of Australia. The plaintiff, Bathis, brought proceedings against Wallaby Grip (BAE) Pty Limited, the defendant, in relation to an employment dispute. The central issue was whether the plaintiff was owed unpaid wages and superannuation contributions by the defendant.

The court was tasked with determining the nature of the plaintiff's employment relationship with the defendant and whether the plaintiff was entitled to unpaid wages and superannuation contributions. Specifically, the court had to consider whether the plaintiff was an employee, contractor, or a worker under a casual employment arrangement, as each classification would entail different rights and entitlements. The court also needed to assess if the defendant had correctly applied the relevant industrial awards and agreements in calculating the plaintiff's entitlements.

The court concluded that the plaintiff was indeed an employee of the defendant, not a contractor or a casual worker. This determination was based on the nature of the plaintiff's work, the level of control exercised by the defendant over the plaintiff's work, and the fact that the plaintiff was subject to the defendant's policies and procedures. The court found that the plaintiff was owed unpaid wages and superannuation contributions, and the defendant was liable for these amounts. The court ordered the defendant to pay the plaintiff the outstanding wages and superannuation contributions, together with interest. Additionally, the defendant was required to provide a detailed statement of the plaintiff's employment and the calculations used to determine the unpaid amounts.

Orders