Borowy v ACI Operations Pty Ltd (No. 1) - [2002] NSWDDT 22

Dust Diseases Tribunal

of New South Wales

CITATION: Borowy v ACI Operations Pty Ltd (No. 1) [2002] NSWDDT 22

PARTIES: Margaret Irene Borowy as Executrix of the late Johann Heinz Jorchim Borowy (Plaintiff)
ACI Operations Pty Ltd (Originally Australian Glass Manufacturers Company) (First Defendant)
Rowley Miller Pty Ltd (Second Defendant)
Waterside Services Pty Ltd (Third Defendant)
Conaust Ltd (Formerly Irvine & McAtee Pty Ltd) (Fourth Defendant)
Sun Alliance and Royal Insurance Australia Ltd (Fifth Defendant)
Wallaby Grip Ltd (Formerly Meggitt Overseas Ltd) (Sixth Defendant)
Wallaby Grip (BAE) Pty Ltd (In Liquidation) (Seventh Defendant)
Blue Star Line (Australia) Pty Ltd (Eighth Defendant)

MATTER NUMBER(S): 36 of 1990; 251 of 2000

JUDGMENT OF: Johns J at 1

CATCHWORDS: Proceedings :- Limitation of actions
No limitation period for proceedings "in relation to" dust-related conditions
including estate and "Compensation to Relatives" claims
Dust Diseases Tribunal Act 1989 s 11 s 12A

LEGISLATION CITED: Dust Diseases Tribunal Act 1989, ss 3, 11, 12A
Limitation Act 1969

CASES CITED: Brear v James Hardie & Coy Pty Ltd (2000) 50 NSWLR 388; 21 NSWCCR 133;
Griffiths v Kerkemeyer (1977) 139 CLR 161;
Mangion v James Hardie & Co Pty Ltd (1990) 20 NSWLR 100; 6 NSWCCR 208

DATES OF HEARING: 30 April 2002, 1 May 2002

EX TEMPORE
JUDGMENT DATE :
05/01/2002

LEGAL REPRESENTATIVES:
FOR PLAINTIFF:
Mr J L Sharpe instructed by Turner Freeman
FOR DEFENDANTS:
Mr N E Chen instructed by Moray and Agnew for 3rd and 5th Defendants
Mr G M Watson instructed by Ebsworth & Ebsworth for 4th Defendant
Mr A C Scotting instructed by Acuiti Legal for 6th and 7th Defendants

JUDGMENT:

1. The fourth defendant in this matter seeks leave to amend its defence in order to raise a defence pursuant to the provisions of the Limitation Act 1969. The fourth defendant raises this defence in respect of the Estate claim which relates to pecuniary sums sought by the estate in respect to earnings loss, Griffiths v Kerkemeyer (1977) 139 CLR 161 expenses and medical expenses of the deceased between the periods of April 1982 and 23 April 1984.

2. The fifth, sixth and seventh defendants press the defence of the Limitation Act 1969 in respect of both the Estate claim and the claim in respect of the Compensation to Relatives Act. There is significance in the statement by the sixth and seventh defendants, at the beginning of the case, as indicated at page 8 of the transcript of 30 April 2002, that the real issues would be exposure and supply and that the sixth and seventh defendants would not be making any submissions in relation to any other matters. So much was affirmed on page 9 of the transcript that as far as the sixth and seventh defendants were concerned, the real issue was exposure and supply.

3. The issue was not raised by the fourth defendant, until the beginning of the hearing today. Mr Watson did not conceive the nature of the argument, and the…

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: [2002] NSWDDT 22
Decision Date: 05/01/2002

CaseChat Overview and Summary

The case of Borowy v ACI Operations Pty Ltd (No. 1) was brought before the court with the plaintiff, Borowy, seeking compensation for dust-related health conditions, including claims under the Compensation to Relatives provisions. The defendant, ACI Operations Pty Ltd, argued that the plaintiff's claims were time-barred under the Limitation of Actions Act. The central legal issue was whether there is a limitation period for proceedings in relation to dust-related conditions, including claims by the estate and relatives of deceased claimants. This matter was considered under the Dust Diseases Tribunal Act 1989, specifically sections 11 and 12A.

The court examined whether the statutory provisions imposed a limitation period for claims related to dust diseases. The Dust Diseases Tribunal Act 1989 was interpreted to determine if the claims by Borowy and his estate fell within a specified limitation period. The court found that the Act did not explicitly provide a limitation period for these types of claims. Therefore, the court held that there is no statutory limitation period for proceedings in relation to dust-related conditions, including those brought by the estate and relatives of deceased claimants. This interpretation aligned with the statutory intent to ensure that individuals and their families could seek redress without being unduly constrained by time limits.

In conclusion, the court ruled in favour of the plaintiff, Borowy, finding that there is no limitation period for proceedings in relation to dust-related conditions. This decision ensures that the claims by the estate and relatives of deceased claimants are not time-barred under the Limitation of Actions Act. The court's reasoning was grounded in the interpretation of the Dust Diseases Tribunal Act 1989 and its provisions concerning claims related to dust diseases.

Orders