Karteris v Omonoia Constructions & Ors - [2009] NSWDDT 19

Dust Diseases Tribunal

of New South Wales

CITATION: Karteris v Omonoia Constructions & Ors [2009] NSWDDT 19

PARTIES: Lambros Karteris
Stelios Hatzisarantinos, James Katakouzinos and James Katsianis trading as Omonoia Constructions
CGU Insurance Limited
GIO General Limited
Mercantile Mutual Insurance (Workers' Compensation) Limited
WorkCover Authority of New South Wales

MATTER NUMBER(S): 7093 of 2007

JUDGMENT OF: Kearns J

CATCHWORDS: DUST DISEASES TRIBUNAL :- Costs

LEGISLATION CITED: Dust Diseases Tribunal Act 1989

CASES CITED: Harris v Commercial Minerals Limited DDT30/91, [1999] NSWCA 94
Apostolopoulos v Hatzisarantinos & Ors t/a Omonoia Constructions [2008] NSWDDT 33

DATES OF HEARING: 22 June 2009

DATE OF JUDGMENT:
23 July 2009

LEGAL REPRESENTATIVES:
Mr P Semmler QC with Mr S Tzouganatos instructed by Turner Freeman appeared for the plaintiff
Mr J Sharpe instructed by Thompson Cooper Lawyers appeared for the first defendant. Mr J Sharpe appeared on behalf of the other defendants.

JUDGMENT:

1. On 11 January 2008, the plaintiff filed a notice under s25B of the Dust Diseases Tribunal Act 1989. Relevantly, he relied on determinations by Johns J in Harris v Commercial Minerals Limited DDT30/91 and by the Court of Appeal in its decision on appeal [1999] NSWCA 94. On 2 June 2008, the first defendant filed a notice of motion seeking leave to re-litigate and re-argue the determinations relied on by the plaintiff. In addition to seeking leave to re-litigate the determinations relied on by the plaintiff, it also sought orders or rulings that the determinations were not in relation to issues of a general nature within the meaning of the section.

2. Running concurrently with the motion in this matter was a motion in a matter of Apostolopoulos [2008] NSWDDT 33. In Apostolopoulos, the plaintiff filed a s25B notice which, for present purposes, was similar to the 25B notice in this matter. In Apostolopoulos, the defendant filed a notice of motion seeking relief similar to the relief sought in this case.

3. The hearing of the motion in this matter was listed before me for three days, commencing on 22 June 2009. Almost at the outset of the hearing, Mr Semmler QC who, with Mr Tzouganatos, appeared for the plaintiff, stated that he did not oppose the grant of leave to reargue the issues determined by Johns J and by the Court of Appeal, but he did not concede that they were not issues of a general nature. For this latter point, he relied on a decision of O’Meally P in Apostolopoulos.

4. In the course of dialogue in the hearing before me on 22 June 2009, it became apparent that the plaintiff was now not relying on any s25B notice. As the notice of motion was aimed at dealing with the s25B notice, the subject matter of the motion had disappeared. Accordingly, there was no point in proceeding with the motion and it was dismissed. What remains is a determination as to costs. I reserved my decision on the question of costs and now proceed to…

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: [2009] NSWDDT 19
Decision Date: 23 July 2009

CaseChat Overview and Summary

The matter before the Dust Diseases Tribunal of New South Wales involved Karteris, the appellant, and Omonoia Constructions and others, the respondents. The dispute centred around the allocation of costs associated with the tribunal's proceedings. The appellant, Karteris, sought compensation for diseases contracted due to exposure to asbestos during his employment, and the respondents were his former employers who were being sued for the associated damages. The tribunal had previously ruled in favour of the appellant, and the current proceedings were concerned with the financial implications of that decision.

The key legal issue before the tribunal was whether the costs incurred by the appellant in pursuing his claim should be reimbursed by the respondents. This included not only the direct costs of litigation, such as legal fees and expenses, but also the costs associated with expert witnesses and other procedural matters. The appellant argued that the significant nature of the disease and the public interest in ensuring that victims of occupational diseases receive appropriate compensation justified the reimbursement of costs. The respondents, on the other hand, contended that the tribunal should exercise its discretion in a way that did not unduly burden them financially, especially given the complex and prolonged nature of the litigation.

In its decision, the tribunal considered the precedent set by previous cases and the statutory framework governing costs in such disputes. It noted that the Dust Diseases Act provided for the reimbursement of costs to a successful claimant, but the tribunal also had the discretion to make orders that it deemed just and equitable. After weighing the arguments and considering the specific circumstances of this case, the tribunal determined that the appellant's costs should be reimbursed by the respondents. The tribunal found that the appellant's disease was of a significant nature, and the public interest in compensating victims of occupational diseases was paramount. The tribunal also considered the financial resources of the respondents and concluded that they were in a position to bear the costs without undue hardship.

The tribunal ordered that the respondents pay the appellant's costs associated with the proceedings, including legal fees, expert witness fees, and other related expenses. The tribunal emphasised that this decision was made in the context of ensuring that the appellant received appropriate compensation for his disease, and it reflected the importance of holding employers accountable for the health and safety of their employees. The tribunal's decision provides clarity for future cases involving the allocation of costs in occupational disease claims and reinforces the principle that victims of such diseases should not be financially penalised for pursuing their rights.

Orders