Mundy v Resi Corp

[2008] NSWDDT 17

Dust Diseases Tribunal

of New South Wales

CITATION:	Mundy v Resi Corp [2008] NSWDDT 17
PARTIES:	Mervyn John Mundy (Plaintiff) Resi Corporation (First Defendant) Amaca Pty Ltd (Second Defendant)
MATTER NUMBER(S):	164 of 2004
JUDGMENT OF:	O'Meally P
CATCHWORDS:	DUST DISEASES TRIBUNAL :- application to file Notice of Motion in court - application refused
LEGISLATION CITED:	Dust Diseases Tribunal Regulation 2007 Service and Execution of Process Act 1992
DATES OF HEARING:	2 June 2008
DATE OF JUDGMENT:	2 June 2008
EX TEMPORE JUDGMENT DATE:	2 June 2008
LEGAL REPRESENTATIVES:	A J Gardiman of Turner Freeman appeared for the Plaintiff G P F Rundle instructed by Thompson Cooper Lawyers appeared for the First Defendant N B Prentice of Ellison Tillyard Callanan appeared for the Second Defendant

JUDGMENT:

RULING

O'MEALLY P

1. These proceedings were commenced by statement of claim filed on 25 May 2004.

2. On 4 March 2008, an amended statement of claim was filed. The first defendant filed an amended defence on 8 May 2008 and the second defendant filed an amended defence on 14 May 2008. On 5 May 2008, the hearing was appointed for 17, 18, 19 and 20 June 2008 in Adelaide.

3. In accordance with the provisions of the Dust Diseases Tribunal Regulation 2005, the claim became subject to the Claims Resolution Process, established by the Regulation and continued by the Dust Diseases Tribunal Regulation 2007.

4. On 5 February 2008, the claim was removed from the Claims Resolution Process, pursuant to cl 22(1)(b) of the Regulation of 2007, which permits a claim to be removed if all the parties agree that it should not be the subject of the Claims Resolution Process, and all the required information has been exchanged.

5. Mr Prentice, who acts for the second defendant, has sought leave to file a motion in court seeking a stay under the Service and Execution of Process Act 1992, and, as I am informed, an order that the claim be transferred to the District Court of South Australia. I have no power to make the second order sought. His remedy in that regard is to apply to the Supreme Court of New South Wales for an order that the proceedings be transferred to the Supreme Court of South Australia. The first defendant has declined to express an attitude to Mr Prentice’s application.

6. The decision whether the case is to be heard by a South Australian court is not one that is open to me to make. If I permitted Mr Prentice’s application to be listed for hearing this week, that is, an application seeking stay under the Service and Execution of Process Act, the hearing of the proceedings could be delayed indefinitely. In my view, the appropriate course for Mr Prentice to pursue is to apply to the Supreme Court of New South Wales for the transfer of the case under the cross-vesting legislation.

7. I make no order.

Mr A J Gardiman of Turner Freeman appeared for the Plaintiff

Mr G P F Rundle instructed by of Thompson Cooper Lawyers appeared for the First Defendant

Mr N B Prentice of Ellison Tillyard Callanan appeared for the Second Defendant