Carey v SRA of NSW and Ors

[2008] NSWDDT 9

Dust Diseases Tribunal

of New South Wales

CITATION:	Carey v SRA of NSW and Ors [2008] NSWDDT 9
PARTIES:	Ronald James Carey (Plaintiff) State Rail Authority of NSW (First Defendant) South Western Area Health Service (Second Defendant) Orica Limited (Third Defendant) Commonwealth-New Guinea Timbers Limited (Fourth Defendant) BHP (AIS) Pty Limited (Fifth Defendant) Incitec limited (Sixth Defendant)
MATTER NUMBER(S):	89 of 2001
JUDGMENT OF:	O'Meally P
CATCHWORDS:	DUST DISEASES TRIBUNAL :- Dust Diseases Tribunal Regulation - delay in prosecuting plaintiff's claim - claim subject to Claims Resolution Process - no current claim proposal provided by plaintiff - application by defendant to remove claim from Claims Resolution Process - application by defendant to strike out for want of prosecution - cl 16(2) - plaintiff not ready to proceed - application refused - cl 19 removes capacity of Tribunal to regulate proceedings when claims subject to Claims Resolution Process
LEGISLATION CITED:	Dust Diseases Tribunal Regulation 2007
DATES OF HEARING:	14 April 2008
DATE OF JUDGMENT:	14 April 2008
EX TEMPORE JUDGMENT DATE:	14 April 2008
LEGAL REPRESENTATIVES:	Mr T M Rowles instructed by Sparke Helmore appeared for the applicant fifth Defendant Mr A J Gardiman of Turner Freeman appeared for the Plaintiff respondant

JUDGMENT:

RULING

O'MEALLY P

1. More than seven years ago, Ronald James Carey filed a statement of claim in the Tribunal seeking damages. He alleged that negligently and in breach of statutory duty and contractual obligation, he had been exposed to asbestos, as a result of which he suffered, amongst other disorders, asbestos related pleural disease. His case came before the Tribunal on various occasions before various judges and various registrars until on 16 December 2002 it was stood into the not ready list, a list which no longer exists.

2. The fifth defendant, BHP Steel (AIS) Pty Limited, has now moved the Tribunal for orders removing the plaintiff's claim from the claims resolution process and that the proceedings be dismissed for want of prosecution.

3. The plaintiff's claim became subject to the claims resolution process by reason of the Dust Diseases Tribunal Regulation 2001 as amended in 2005. In 2007 that regulation was repealed, but its provisions, so far as relevant, were repeated in the Dust Diseases Tribunal Regulation 2007 (the Regulation). The claims resolution process provided for by the Regulation applies to the plaintiff's claim by reason of cl 16(1)(b), it being a claim that was commenced by statement of claim filed before 1 July 2005 and in respect of which a hearing date had not been set before 1 July 2005.

4. Cl 22(1)(c) enables the Tribunal to remove a claim from the claims resolution process when another party to the claim has failed to comply with a requirement of the claims resolution process and where that failure has resulted in substantial delay. It is beyond doubt that this claim is one in which substantial delay has occurred.

5. Mr Rowles, who appears for the applicant, submits that the plaintiff has failed to comply with the provisions of cl 16(2) of the Regulation. It provides as follows:

If this Part applies to a current claim, the plaintiff must (when the plaintiff is ready to proceed) provide each defendant and cross-defendant with a proposal in writing (a current claim proposal ) as to how this Part should apply to the claim.
It is not contentious that the plaintiff has failed to provide a current claims proposal.

6. Cl 16(4) imposes an obligation upon all parties to a claim to act reasonably in trying to reach agreement on a plaintiff's current claim proposal. The matter of relevance here, and I think one which is fatal to the applicant's application, is that the plaintiff is to provide a claim proposal, but not until the plaintiff is ready to proceed. The plaintiff is not ready to proceed and so has not provided a claim proposal.

7. The Regulation has removed from the Tribunal power to regulate the conduct of its own proceedings. Extraordinary though it may seem, the regulation making authority has imposed an embargo upon the exercise of the Tribunal's powers. Cl 19 relevantly provides:

(1) While a claim is subject to the claims resolution process:
(a) . . .

(b) proceedings in the Tribunal to determine the claim are deferred and the claim is not subject to case management by the Tribunal, and

(c) the claim is not subject to the provisions of rules of court, or any direction or order of the Tribunal under a provision of the Act, any other Act or rules of court, as to any steps to be taken in proceedings on the claim or for the referral of the claim for alternative dispute resolution, such as mediation.

8. The Regulation prevents my making an order which in other circumstances I would have made. If the fifth defendant wishes to obtain an order to which, in my view, it would be otherwise entitled it should approach a body other than the Tribunal.

9. The notice of motion filed 3 April 2008 is dismissed. The applicant, the fifth defendant, is to pay the plaintiff respondent's costs as agreed or assessed.

Mr T M Rowles instructed by Sparke Helmore appeared for the applicant fifth defendant

Mr A J Gardiman of Turner Freeman appeared for the plaintiff respondent