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 give my reasons in relation to costs.

5. After the motion of 2 June 2008 was filed, it and the motion in Apostolopoulos were listed for directions on 10 June 2008. A direction was given that the plaintiff file and serve his evidence by 4 August 2008. The motions in both matters were listed before O’Meally P on 11 August 2008 and stood over to 1 September 2008. On 1 September 2008, O’Meally P directed that the defendant serve a written outline of its argument no later than 30 September and that the plaintiff do likewise by 14 October. This order applied also in Apostolopoulos.

6. On 10 November, O’Meally P ruled in Apostolopoulos that the determination in the s25B notice that the plaintiff relied on was a determination for the purposes of s25B [21]. The motion in the matter now before me, though listed, was not dealt with. The defendant sought an adjournment of the balance of its notice of motion in Apostolopoulosand an ajournment in this matter with a view to pursuing an appeal on the President’s ruling. Both matters were stood over to 24 November. On 24 November, as an appeal was pending, the matters were stood over. On 22 February 2009, the defendant discontinued its application for leave to appeal. On 26 March 2009, O’Meally P refused the defendant’s application to re-argue the findings that were relied upon in the Apostolopoulosmatter. The reason for that has no bearing on this matter. On 9 April 2009, the notice of motion in this matter was fixed for hearing for three days commencing on 22 June 2009.

7. Though the notice of motion in this matter has been dismissed, it has been dismissed because the subject matter of the notice of motion has dissipated by reason of the plaintiff no longer relying on s25B notices. Accordingly, the defendant has achieved its objective in the filing of its notice of motion.

8. I have two competing contentions as to costs. The defendant seeks costs on the basis that it has achieved substantial success on its motion. The plaintiff submits costs should abide the outcome of the proceedings.

9. An order that the plaintiff pay the defendant’s costs of the motion would overlook the history of this matter in the Tribunal where the matter was running along with the Apostolopoulos matter. This matter was prepared for hearing and was ready to be heard in November 2008 when it was adjourned. In light of the ruling by O’Meally P in Apostolopoulosin November 2008, it must be highly likely that if this matter had been dealt with at that time, a similar ruling would have been made and the plaintiff would then have enjoyed success on the application. Presumably, it was either the defendant’s appeal to the Court of Appeal in Apostolopoulosor the lack of time available to the Tribunal in November 2008 that prevented a ruling in the current matter which, at least as to part, would in all likelihood have been in the plaintiff’s favour. In the light of this history, it seems to me it would be inappropriate to make an order requiring the plaintiff to pay the defendant’s costs of the motion.

10. There were some attempts to resolve the issue between the parties before it came before me for hearing. The dialogue that occurred when the matter was before me demonstrates that had the parties applied their minds to it, the matter could have been resolved before the day it was listed. To that extent, neither side came to grips with the problem before the hearing date.

11. In all the circumstances, I think the plaintiff’s contention is the preferable one and costs should abide the outcome of the proceedings. Accordingly, I order that the costs of the motion are to be costs in the proceedings.