Feetam v Linfoot - [2023] NSWDDT 1

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation: Feetam v Linfoot and Ors [2023] NSWDDT 1
Hearing dates: 17 April 2023
Date of orders: 28 April 2023
Decision date: 28 April 2023
Before: Strathdee, J
Decision:
(1) The Notice of Motion is dismissed.
(2) The applicant/seventh defendant is to pay the respondent/plaintiff’s costs of the motion as agreed or assessed.

Catchwords:
DUST DISEASES TRIBUNAL – permanent stay of proceedings – exceptional circumstances
ABUSE OF PROCESS – delay – factors to be considered in determining whether the delay precludes the conduct of a fair trial – sufficiency of evidence – capacity of defendant to give instructions

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Service and Execution of Process Act 1992 (Cth)
Supreme Court Rules 1970 (NSW)

Cases Cited:
ASIC v Australian Investors Forum Pty Ltd [2003] NSWSC 618
Hewish v Wahsgab 1990 Ltd (formerly known as Horwood Bagshaw Ltd) (2003) 25 NSWCCR 437
Jago v District Court of New South Wales (1989) 168 CLR 23
Moubarak by his tutor Coorey v Holt [2019] NSWCA 102
Newcastle City Council v Batistatos; Roads and Traffic Authority of New South Wales v Batistatos [2005] NSWCA 20
Oceanic Sun Line Special Shipping Company Ltd v Fay (1988) 165 CLR 197
Perks v Amaca Pty Ltd [2002] NSWDDT 32
R v Presser [1958] VR 45
The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78
Walton v Gardiner (1993) 177 CLR 378
Williams v South Australia (2004) 1 DDCR 237
Williams v Spautz (1992) 174 CLR 509

Category: Procedural rulings
Parties: Bradford Mark Feetam (Plaintiff)
Clive and Patricia Linfoot t/as C & P Linfoot
(First Defendant)
Western NSW Local Health District
(Second Defendant)
Abigroup Ltd (formerly Abignano Ltd) (Third Defendant)
Electricity Assets Ministerial Holding Corporation (Fourth Defendant)
Central Coast Council (Fifth Defendant)
Bricon Construction Pty Ltd (Sixth Defendant)
G.R Binns & S.J. Binns t/as Garsan (Seventh Defendant)
Upper Hunter Shire Council (Eighth Defendant)
Representation:
Counsel:
Mr S Tzouganatos appeared for the Plaintiff
Solicitors:
Mr N Prentice, Rankin Ellison, Lawyers appeared in person for the First & Seventh defendants
Ms L Chami, Turks Lawyers (Second Defendant)
Mr D Greenhalgh, Bartier Perry (Eighth Defendant - mentioned by Mr Prentice)

File Number(s): 2022/167510-002

Judgment

By Notice of Motion filed in the Dust Diseases Tribunal of New South Wales (‘the DDT’) on 9 March 2023, the seventh defendant, G.R. Binns & S.J. Binns t/as Garsan seeks the following orders:

‘(1) Proceedings against the Seventh Defendant, S J Binns, be permanently stayed pursuant to section 67 of the Civil Procedure Act 2005 (NSW) on the grounds appearing in the Affidavit of Nichols Prentice sworn 9 March 2023.
(2) The Plaintiff pay the seventh Defendants costs of this motion.
(3) Such other orders as the Court sees fit.’

In support of the Motion, the seventh defendant reads the affidavit of Mr Nick Prentice, solicitor, sworn 5 October 2022 which became exhibit A on the Notice of Motion (‘the Prentice Affidavit’).

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.

Continue reading Feetam v Linfoot

Details

AGLC: Feetam v Linfoot [2023] NSWDDT 1
Case: [2023] NSWDDT 1
Decision Date: 28 April 2023

CaseChat Overview and Summary

Feetam v Linfoot involves a claim by the plaintiff for compensation for injuries sustained from exposure to asbestos. The defendant sought a permanent stay of proceedings on the grounds of abuse of process, citing significant delays in bringing the claim. The matter was heard in the Dust Diseases Tribunal of New South Wales. The primary legal issues revolved around whether the delay in filing the claim constituted an abuse of process and if it precluded the fair conduct of the trial. The court also had to consider the sufficiency of evidence and the defendant's capacity to give instructions.

The tribunal examined the principles established in previous cases to determine whether the delay in filing the claim constituted an abuse of process. The court noted the importance of considering factors such as the length and explanation of the delay, the extent of prejudice to the defendant, and the capacity of the defendant to give instructions. It was held that the delay was significant but not necessarily precluding a fair trial. The court found that the defendant had not demonstrated that the delay would prevent a fair trial or that they were prejudiced in any way that would affect their ability to give instructions or mount a defence.

Consequently, the tribunal dismissed the application for a permanent stay of proceedings. It was determined that while the delay was significant, it did not meet the threshold for constituting an abuse of process. The tribunal emphasised that the defendant had not shown sufficient evidence of prejudice or incapacity to give instructions that would prevent a fair trial. The court also directed that the applicant was to pay the plaintiff’s costs of the motion as agreed or assessed.

Orders

Orders of the court

(1) The Notice of Motion is dismissed.

(2) The applicant/seventh defendant is to pay the respondent/plaintiff’s costs of the motion as agreed or assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Feetam v Linfoot and Ors [2023] NSWDDT 1
Hearing dates:	17 April 2023
Date of orders:	28 April 2023
Decision date:	28 April 2023
Before:	Strathdee, J
Decision:	(1) The Notice of Motion is dismissed. (2) The applicant/seventh defendant is to pay the respondent/plaintiff’s costs of the motion as agreed or assessed.
Catchwords:	DUST DISEASES TRIBUNAL – permanent stay of proceedings – exceptional circumstances ABUSE OF PROCESS – delay – factors to be considered in determining whether the delay precludes the conduct of a fair trial – sufficiency of evidence – capacity of defendant to give instructions
Legislation Cited:	Civil Procedure Act 2005 (NSW) Service and Execution of Process Act 1992 (Cth) Supreme Court Rules 1970 (NSW)
Cases Cited:	ASIC v Australian Investors Forum Pty Ltd [2003] NSWSC 618 Hewish v Wahsgab 1990 Ltd (formerly known as Horwood Bagshaw Ltd) (2003) 25 NSWCCR 437 Jago v District Court of New South Wales (1989) 168 CLR 23 Moubarak by his tutor Coorey v Holt [2019] NSWCA 102 Newcastle City Council v Batistatos; Roads and Traffic Authority of New South Wales v Batistatos [2005] NSWCA 20 Oceanic Sun Line Special Shipping Company Ltd v Fay (1988) 165 CLR 197 Perks v Amaca Pty Ltd [2002] NSWDDT 32 R v Presser [1958] VR 45 The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78 Walton v Gardiner (1993) 177 CLR 378 Williams v South Australia (2004) 1 DDCR 237 Williams v Spautz (1992) 174 CLR 509
Category:	Procedural rulings
Parties:	Bradford Mark Feetam (Plaintiff) Clive and Patricia Linfoot t/as C & P Linfoot (First Defendant) Western NSW Local Health District (Second Defendant) Abigroup Ltd (formerly Abignano Ltd) (Third Defendant) Electricity Assets Ministerial Holding Corporation (Fourth Defendant) Central Coast Council (Fifth Defendant) Bricon Construction Pty Ltd (Sixth Defendant) G.R Binns & S.J. Binns t/as Garsan (Seventh Defendant) Upper Hunter Shire Council (Eighth Defendant)
Representation:	Counsel: Mr S Tzouganatos appeared for the Plaintiff Solicitors: Mr N Prentice, Rankin Ellison, Lawyers appeared in person for the First & Seventh defendants Ms L Chami, Turks Lawyers (Second Defendant) Mr D Greenhalgh, Bartier Perry (Eighth Defendant - mentioned by Mr Prentice)
File Number(s):	2022/167510-002