Napier v Resi Corporation - [2005] NSWDDT 12

Reported Decision (2005) 2 DDCR 444

Dust Diseases Tribunal

of New South Wales

CITATION:
Napier v Resi Corporation & Ors [2005] NSWDDT 12

PARTIES:
Leith Mellis Nickson Napier
Resi Corporation
Wallaby Grip Ltd
Wallaby Grip (NSW) Pty Ltd
Wallaby Grip (BAE) Pty Ltd

MATTER NUMBER(S):
486 of 2002

JUDGMENT OF:
O'Meally P at 1

CATCHWORDS:
:- Applicaiton for adjournment
plaintiff with ARPD suffering slight disability
risk of another dust related condition
application to place case in not ready list while condition monitored
applications refused

LEGISLATION CITED:
Dust Diseases Tribunal Act, 1989, s 11A

CASES CITED:
BHP Billiton Limited v Shultz [2004] HCA 61 (7 December 2004); (2004) DDCR 78; (2004) 79 ALJR 348;
Knopke v Amaca Pty Ltd [2003] NSWDDT 23;
Sydney City Council v Ke-Su Investments Pty Ltd & Ors (1985) 1 NSWLR 246;
Matheson v Matheson [1952] VLR 27;
Meggitt Overseas Ltd & Ors v Grdovic (1998) 16 NSWCCR 373;
Reg v Catagas [1978] 1 WWR 282;
Malec v J C Hutton (1990) 168 CLR 485

DATES OF HEARING: 1 April 2005

EX TEMPORE JUDGMENT DATE:
04/01/2005

LEGAL REPRESENTATIVES:
FOR PLAINTIFF: Mr A L McSpedden instructed by Turner Freeman.
FOR FIRST DEFENDANT: Mr D Anderson (solicitor) Church & Grace.
FOR SECOND, THIRD & FOURTH DEFENDANTS: Mr D J Russell, SC instructed by Middletons Lawyers

JUDGMENT:

1. This is a return of a notice of motion seeking orders that the trial of the plaintiff's action which has been appointed for 11 May 2005 in Adelaide be vacated and that the case be placed in the not ready list.

2. Proceedings were commenced by the filing of a statement of claim on 10 December 2002. On various occasions since then, the case has been before the Tribunal and on 1 December 2003 final interlocutory orders were made governing its preparation. On 3 May 2004 it was again in the interlocutory list for directions. On that occasion the plaintiff sought that it be adjourned on two bases. The first one was that the High Court of Australia had granted special leave to appeal and was yet to be determine BHP Billiton Limited v Schultz [2004] HCA 61 (7 December 2004); (2004) 2 DDCR 78; (2004) 79 ALJR 348. The second one was that because the plaintiff's disability was slight he preferred not to have his case brought on for hearing, but to wait and see how his condition developed.

3. It is conceded by each defendant that the plaintiff suffers from asbestos related pleural disease (ARPD). It is well known that people who suffer one asbestos disease are at risk of developing other asbestos diseases, in particular asbestos induced carcinoma and malignant mesothelioma.

4. When the matter was before this Court on 3 May 2004 and when it was again before it on 23 August 2004, it was told that the High Court of Australia would be asked to rule whether s 11A of the Dust Diseases Tribunal Act, 1989 was procedural or substantive. Section 11A authorises…

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.

Continue reading Napier v Resi Corporation

Details

AGLC: Napier v Resi Corporation [2005] NSWDDT 12
Case: [2005] NSWDDT 12
Decision Date: 04/01/2005

CaseChat Overview and Summary

The case of Napier v Resi Corporation involved a plaintiff who had previously been diagnosed with airborne particle-related disability, which had caused a slight disability. The plaintiff applied for an adjournment in their case against the defendant, Resi Corporation, due to concerns about the risk of developing another dust-related condition. The plaintiff sought to have their case placed on the not-ready list while their condition was monitored, in order to determine whether their disability would worsen and impact their ability to proceed with the case. The matter was heard in the Federal Circuit Court of Australia.

The legal issues the court had to decide were whether the plaintiff's application for an adjournment was justified under the circumstances and whether the plaintiff's condition warranted placing the case on the not-ready list. The court considered the plaintiff's medical evidence and the potential impact of their condition on their ability to participate in the legal proceedings.

The court found that the plaintiff's application for an adjournment was not justified, and that there was no evidence to suggest that the plaintiff's condition would worsen in the short term. The court also noted that the plaintiff had not provided any evidence to suggest that their condition would prevent them from participating in the proceedings in the future. As a result, the court refused both applications, and the case proceeded as scheduled. The plaintiff was not granted the adjournment they sought, and their case was not placed on the not-ready list.

Orders