May v CSR Ltd

[2008] NSWDDT 35

Dust Diseases Tribunal

of New South Wales

CITATION:	May v CSR Ltd [2008] NSWDDT 35
PARTIES:	Margaret Edith May (As legal personal representative of the estate of the late Kenneth George May) (Plaintiff) CSR Ltd (Discontinued 06/06/2008) (First Defendant) Seltsam Pty Ltd (Second Defendant) Amaca Pty Ltd (Third Defendant)
MATTER NUMBER(S):	5103 of 2005
JUDGMENT OF:	O'Meally P
CATCHWORDS:	DUST DISEASES TRIBUNAL :- whether mediation should occur
LEGISLATION CITED:	Dust Diseases Tribunal Regulation 2001 Dust Diseases Tribunal Regulation 2007 Compensation (Fatal Injuries) Act (NT) Compensation to Relatives Act 1897
DATES OF HEARING:	24 November 2008
DATE OF JUDGMENT:	24 November 2008
EX TEMPORE JUDGMENT DATE:	24 November 2008
LEGAL REPRESENTATIVES:	A J Gardiman of Turner Freeman appeared for the Plaintiff I C Sinnadouari of A R Conolly & Company appeared for the Second Defendant N Lapthorne of DLA Phillips Fox appeared for the Third Defendant

JUDGMENT:

RULING

O'MEALLY P

1. Two sets of proceedings which concern the death of the late Kenneth George May have been filed in the Tribunal.

2. The first commenced by the filing of a statement of claim on 11 November 2005. In these proceedings, Mr May sought damages from CSR Limited alleging that he contracted mesothelioma as a result of inhaling asbestos dust and fibre emanating from its products. Thereafter, the proceedings were amended and he sued also Seltsam Pty Limited and Amaca Pty Limited. The claim against CSR was discontinued.

3. On 15 November 2005 his claim was removed from the claims resolution process established by the Dust Diseases Tribunal Regulation 2001 on the ground of urgency. The Dust Diseases Tribunal Regulation 2007 repealed the Regulation of 2001, but continued the claims resolution process.

4. Evidence was taken from Mr May and his wife on 23 November 2005. On the day following, 24 November 2005, Mr May died. In due course, that is on 14 May 2007, the proceedings were amended to substitute Mr May's wife as his legal personal representative to continue the action on behalf of his estate.

5. The second proceedings are brought by Mrs May under the Compensation (Fatal Injuries) Act (NT), the equivalent of the Compensation to Relatives Act 1897 (NSW). These proceedings are subject to the claims resolution process and are not now before me.

6. Clause 20(1) of the Regulation permits an amendment to be made to an estate action after a plaintiff’s death, to include a claim under the Compensation to Relatives Act 1897 (NSW), but it applies only to the New South Wales Act and does not apply to its Northern Territory equivalent (see cl 12(1)).

7. The point now requiring consideration is whether Div 4 (mediation) of the Regulation of 2007 should apply.

8. If a claim is removed from the claims resolution process on the ground of urgency both the Regulation of 2001 required, and the Regulation of 2007 requires the Tribunal to consider whether mediation and apportionment should occur. Those questions have not yet been considered.

9. In the events that have happened the plaintiff and the named third defendant, Amaca Pty Limited, have agreed that mediation should take place and have agreed upon a particular mediator. The second defendant, Seltsam Pty Limited, has informed me that it objects to the appointment of that person as mediator. It has also said that there are serious issues concerning its liability and mediation will fail. The third defendant, in answer to my question, has not been able to inform me of its approach to the case in the same detail as the second defendant, though I think it fair to conclude that the issues it will litigate will, in substance, be those raised by the second defendant.

10. Clause 22(7) of the Regulation, requires the Tribunal to give reasons for not ordering mediation occur. Those reasons are that the mediation will fail, costs will thereby be increased and mediation would delay completion of the plaintiff’s action.

A J Gardiman of Turner Freeman appeared for the Plaintiff

I C Sinnadurai of A R Conolly & Company appeared for the Second Defendant

N Lapthorne of DLA Phillips Fox appeared for the Third Defendant