Jackson v Bluescope Steel Limited

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:

Jackson v Bluescope Steel Limited & Anor [2011] NSWDDT 2

Hearing dates:

8 March 2011

Decision date:

22 March 2011

Before:

Kearns J

Decision:

Pursuant to Part 1 Rule 1.12 of the UCPR 2005 (NSW), the time within which Bluescope is to file a cross-claim against Allianz is extended to Friday, 25 March 2011.

Bluescope is granted leave to file and serve a statement of cross-claim in the form annexed to its notice of motion filed in Court on 8 March 2011.

Catchwords:

Dust diseases; cross claim on insurance policy; application for extension of time to file cross claim made after plaintiff's case proceeded to judgment; wither power in Tribunal to extend time; whether Tribunal ought to extend time

Legislation Cited:

Dust Diseases Tribunal Act 1989
Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Seltsam Pty Limited v Energy Australia [1999] NSWCA 89;
Re Home, Overall Forge Pty Ltd v Wallaby Grip Ltd (19 September 1997, unreported);
Sarkem Pty Ltd v CSR Ltd, re Weismantel [2008] NSWDDT 39

Category:

Procedural and other rulings

Parties:

Margaret Jackson as legal representative of Youden Richard Jackson (Deceased)
Bluescope Steel Limited
BHP Billiton Limited

Representation:

Mr T G R Parker SC, instructed by Piper Alderman, appeared for Bluescope Steel Limited.
Mr G F Little SC with Mr D C Morgan, instructed by Ellison Tillyard Callanan, appeared as amicus curiae.

File Number(s):

DDT 6166/2006

Judgment

1. Mr Jackson sued Bluescope and BHP for damages for the contraction of mesothelioma from exposure to asbestos. He died before his case could be concluded though that matter is not relevant for present purposes. I shall refer to his proceedings and the substituted proceedings on his death as the "Jackson proceedings".

1. The Jackson proceedings resulted in a verdict and judgment for the plaintiff against Bluescope for $225,000 plus costs. Costs were later agreed at $80,000. Both the judgment and the costs have been paid by Bluescope.

1. There have been some changes of corporate identities or names over time, but it is convenient to ignore them and continue to refer to Bluescope which was formerly John Lysaght (Australia) Limited and also refer to Allianz Australia Insurance Limited (Allianz) as Bluescope's insurer.

1. Bluescope seeks indemnity from Allianz. To describe Bluescope's forensic efforts to obtain that indemnity as having run off the rails would be mistaken. Bluescope has never put its proceedings on the rails.

1. Bluescope commenced its efforts to obtain indemnity by issuing a statement of claim in the Tribunal on 16 June 2009 (the 2009 proceedings). Neither Bluescope nor Allianz appreciated that in doing this in the way it did Bluescope was seeking to invoke a jurisdiction the Tribunal did not have. Nevertheless, the matter proceeded with several interlocutory steps, the filing of several amended pleadings and the filing of affidavits until the issue of jurisdiction was raised before me in September 2010. Both parties eventually realised that I had no jurisdiction to hear the 2009 proceedings.