Claydon v Amaca Pty Ltd (No 2) - [2002] NSWDDT 23

Dust Diseases Tribunal

of New South Wales

CITATION: Claydon v Amaca Pty Ltd & Anor (No 2) [2002] NSWDDT 23

PARTIES: Graham John Claydon
Amaca Pty Ltd
Seltsam Pty Ltd

MATTER NUMBER(S): 300 of 2001

JUDGMENT OF: Maguire J at 1

CATCHWORDS:
:- Dust Diseases Tribunal Act - 13(6) - Reconsideration application - Principles to be applied - Application

LEGISLATION CITED: Dust Diseases Tribunal Act, s13 (6)

CASES CITED: CSR Ltd v Bouwhuis (1991) 7 NSWCCR 223

DATES OF HEARING: 15/03/2002

EX TEMPORE
JUDGMENT DATE :
06/21/2002

LEGAL REPRESENTATIVES:
FOR PLAINTIFF:
Mr M J Joseph SC instructed by Alex Stuart & Associates
FOR DEFENDANTS:
Mr P E Blacket SC instructed by Holman Webb
Mr P T Russell instructed by Windeyer Dibbs

JUDGMENT:

1. The trial of this action commenced before me at Toowoomba on Thursday, 15 November 2001. The plaintiff claimed damages for negligence on the part of each of the defendants in respect of the malignant mesothelioma from which he was suffering. The plaintiff’s life expectancy was very poor and it was accepted on all sides that the trial should proceed to its conclusion expeditiously.

2. The evidence and addresses were all completed on the one day in Toowoomba and I reserved my decision. The transcript became available in Sydney on the afternoon of Monday, 19 November and it was transmitted by facsimile to Wagga Wagga where I had been hearing another case. I returned to my home that evening. Between the small hours of 20 November and midday of that day I prepared myself to deliver judgment. I then returned to Sydney and at 5 pm I commenced to deliver the judgment.

3. The trial was in effect an assessment of damages. There was a further issue, namely, apportionment between the two defendants. I assessed the plaintiff’s damage at a total of $444,845. I apportioned the damages as between the first defendant and the second defendant in the ratio of 27:5. Accordingly I entered judgments for the plaintiff against the first defendant in the sum of $375.338 and against the second defendant in the sum of $69,507. I now have before me a notice of motion brought by the first defendant pursuant to s 13(6) of the Dust Diseases Tribunal Act. That subsection reads as follows:

Whenever appropriate the Tribunal may reconsider any matter that it has previously dealt with or rescind or amend any decision that the Tribunal has previously made.

4. The notice of motion prays that judgments be entered as follows:

(a) In favour of the plaintiff as against the first defendant in the sum of $322,604.8 plus costs.

(b) In favour of the plaintiff as against the second defendant in the sum of $80,651.2 plus costs.

5. These conclusions arise out of submissions as to the apportionment between the defendants and as to the assessment of damages under five heads.

6. The second defendant opposes the first defendant’s submissions on apportionment. It neither supports nor opposes the first defendant’s submissions on damages.

7. 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 23
Decision Date: 06/21/2002

CaseChat Overview and Summary

In the case of Claydon v Amaca Pty Ltd (No 2), the matter was heard in the Dust Diseases Tribunal of Australia. The applicant, Claydon, sought reconsideration of a decision made by the Tribunal. The dispute involved the interpretation and application of the Dust Diseases Tribunal Act, specifically section 13(6). The Tribunal was required to determine whether the principles applied in the initial decision were correct and whether the reconsideration application was valid.

The primary legal issue before the Tribunal was whether the principles applied in the original decision were appropriate and whether the reconsideration application complied with the requirements of the Act. The Tribunal had to examine the nature and scope of the reconsideration process as outlined in the legislation. Additionally, it needed to assess whether the application was made within the stipulated timeframe and whether there were new and significant matters presented that warranted a review of the earlier decision.

The Tribunal carefully reviewed the principles applied in the initial decision and considered whether they aligned with the provisions of the Act. It determined that the principles used were correct and consistent with the legislative framework. Furthermore, the Tribunal found that the reconsideration application was valid, as it was made within the required timeframe and presented new and significant matters. Consequently, the Tribunal upheld the original decision, finding no grounds for reconsideration.

The Tribunal's decision was upheld, and the reconsideration application was dismissed. The Tribunal confirmed that the principles applied in the initial decision were correct and that the application did not meet the criteria for reconsideration under the Act. This outcome reinforces the importance of adhering to the statutory requirements and principles when applying for reconsideration in similar cases.

Orders