O'Connor v D M Plumbing Pty Ltd

[2009] NSWDDT 15

Dust Diseases Tribunal

of New South Wales

CITATION:	O'Connor v D M Plumbing Pty Ltd [2009] NSWDDT 15
PARTIES:	Arthur O'Connor (Plaintiff) D M Plumbing Pty Ltd (Defendant)
MATTER NUMBER(S):	8347 of 2008
JUDGMENT OF:	O'Meally P
CATCHWORDS:	DUST DISEASES TRIBUNAL :- application to remove claim from claims resolution process - failure by defendant to file reply - reply filed three days after application to remove - no substantial prejudice or substantial delay - claim not removed
LEGISLATION CITED:	Dust Diseases Tribunal Regulation 2007
DATES OF HEARING:	1 June 2009
DATE OF JUDGMENT:	1 June 2009
EX TEMPORE JUDGMENT DATE:	1 June 2009
LEGAL REPRESENTATIVES:	A Giurtalis instructed by Rmb Compensation appeared for the Plaintiff J A de Greenlaw instructed by McCulloch & Buggy appeared for the Defendant

JUDGMENT:

RULING

O'MEALLY P

1. This is an application by Arthur O'Connor seeking an order pursuant to cl 22(1)(c) of the Dust Diseases Tribunal Regulation 2007 (the Regulation). So far as relevant cl 22 provides:

22 Removal of certain claims from claims resolution process

(1) A claim is removed from (and is therefore not subject to) the claims resolution process if:

(a) …

(b) …

(c) the Tribunal determines on application by a party (the applicant) that the claim should be removed from the claims resolution process because another party to the claim has failed to comply with a requirement of the claims resolution process and that failure has resulted in substantial prejudice to the applicant or substantial delay.

2. The plaintiff's statement of claim was filed in the registry on 4 December 2008. On 5 March 2009 the plaintiff served Form 1 particulars as required by cl 24 of the Regulation. By reason of cl 26 it then became the defendant's obligation to file its reply on or before 21 April 2009. This application was filed on 19 May 2009, and three days later, on 22 May 2009, the defendant complied with its obligation under cl 26 and filed its reply.

3. It is conceded by counsel for the plaintiff that by reason of cl 22(6) this application will fail. Cl 22(6) provides as follows:

The Tribunal is not to determine that a claim should be removed from the claims resolution process because a party to the claim has failed to comply with a requirement of the claims resolution process unless the Tribunal is satisfied that the failure is continuing and that the party has been notified of and requested to remedy the failure.

4. The affidavit in support of the application sworn by Christopher Gregory Sheppard on 18 May 2009 establishes that there was a number of telephone conversations between the defendant and its insurer, none of which precipitated the filing of a reply by the defendant.

5. I think it should be observed that what constitutes substantial prejudice or substantial delay would vary with the nature of the case. In the instant case, the plaintiff has alleged he suffers from asbestos related pleural disease (ARPD). That is a benign disease unlike mesothelioma or carcinoma. In the case of these diseases, the condition of a sufferer may, and frequently does, change with little or no warning. That is why when the Tribunal was able to regulate its own proceedings, it treated all cases of mesothelioma and carcinoma as urgent.

6. Indeed, since the introduction of the claims resolution process (CRP) many plaintiffs have died during the course of the CRP and many have died after their claims were removed from it on the ground of urgency. Some plaintiffs, whose claims have been removed by reason of imminent death, have been unable to give evidence in any effective fashion or submit themselves to cross-examination. Such plaintiffs, oftentimes are taking opiate medication which affects their capacity to give evidence in any reliable or effective fashion, and both plaintiffs and defendants have been disadvantaged as a consequence.

7. However, as noted, the plaintiff here suffers from ARPD. Because of the nature of that disease, that is a non-malignant disorder which is unlikely to have immediate and unexpected effects, and there being no evidence on the matter, I am unable to conclude that substantial prejudice has been caused to the plaintiff by the defendant’s failure to file its reply in time.

8. In determining whether substantial delay has occurred, one must also consider the nature of the case a plaintiff is making. A delay of a month in a case of ARPD, in ordinary circumstances, would not be regarded as substantial. Because of the absence of evidence of substantial prejudice or of substantial delay, and because of the provisions of cl 22(6), this application must fail.

9. Mr Giurtalis for the plaintiff seeks an order for costs, indeed he seeks an order for indemnity costs.

10. Clause 67 of the Regulation relevantly provides:

(1) In making an order as to the payment of costs in proceedings, the Tribunal must take into account any failure by a party to proceedings to comply with a provision of this Part.

11. Ordinarily, of course, costs follow the event. Mr de Greenlaw, however, acknowledging a failure by his client to comply with a requirement of the Regulation, does not seek an order for costs in its favour. He does, however, submit that the Tribunal is without jurisdiction to make an order for costs because the circumstances in which the Tribunal may intervene in proceedings subject to the CRP are limited to those recited in cl 19(2). With all respect to Mr de Greenlaw's submission, I am unable to agree. Clause 22 gives jurisdiction to the Tribunal to remove claims from the CRP in the circumstances referred to in cl 22(1). Clause 22, or the matters referred to in it are not referred to in cl 19(2). Clause 19 does not contain the limits of the Tribunal’s jurisdiction.

12. Were the Tribunal not constrained by the provisions of cl 22(6), it might have been considered appropriate to make an order for costs, because it was the filing of this application on 19 May 2009 which precipitated the filing of the defendant's reply. In making orders for costs in proceedings, cl 67(1) imposes a mandatory obligation upon the Tribunal to take into account the failure of a party to comply with a provision of Pt 4. The requirement of a defendant to file a reply is a requirement imposed by a provision in Pt 4.

13. In the circumstances of this case, I think it appropriate to express the view that when the costs of the proceedings are assessed, the assessor take into account the circumstances which led to this application being made, that is, that it was occasioned by a failure of the defendant to comply with an obligation imposed upon it and to allow costs of this application to the plaintiff.

14. The order is: The notice of motion filed on 19 May 2009 is dismissed.

A Giurtalis instructed by Rmb Compensation appeared for the plaintiff

J A de Greenlaw instructed by McCulloch & Buggy appeared for the defendant