Perks v Amaca Pty Ltd(1)

[2002] NSWDDT 32

Dust Diseases Tribunal

of New South Wales

CITATION:	Perks v Amaca Pty Ltd(1) [2002] NSWDDT 32
PARTIES:	Donald Perks Amaca Pty Ltd
MATTER NUMBER(S):	149 of 1999
JUDGMENT OF:	Duck J at 1
CATCHWORDS:	:- Conduct
LEGISLATION CITED:
CASES CITED:	Grovit v Doctor (1997) 1 All E R 417; Walton v Gardiner (1992-93) 177 CLR 378; Moeva v The Department of Labour (1980) 1 NZLR 464 at 481
DATES OF HEARING:	23-27/09/2002
DATE OF JUDGMENT:	10/02/2002
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Ms A Katzmann, SC instructed by Turner Freeman FOR FIRST DEFENDANT: Mr M J Joseph, SC instructed by Holman Webb FOR SECOND DEFENDANT: Mr M Stevens instructed by Windeyer Dibbs FOR THIRD DEFENDANT: Mr J Gracie instructed by Vandervords

JUDGMENT:

1. The Tribunal has before it an application to strike out the plaintiff’s proceedings or alternatively to stay them. The application is put forward on the footing that the plaintiff’s conduct in the presentation of his case has been so bad that it amounts to an abuse of the process of the Tribunal. It is submitted on that account that proceedings ought not be permitted to go further.

2. It is convenient, firstly, to recount how the application came about. So far the present hearing is concerned it started last Monday at the Long Jetty Senior Citizens Club. Special arrangements had been made to sit at the club for the convenience of the plaintiff. The Tribunal sat at that club for two days and then moved to a neighbouring club, The Entrance Memorial Club, for hearings on Wednesday and Thursday. The plaintiff’s behaviour was unsatisfactory. By Wednesday there was disquiet being expressed in the courtroom about the way in which the proceedings were going. On Thursday the plaintiff’s conduct was even worse. During the course of the proceedings, and I think commencing on Wednesday the Bench expressed disquiet about what was happening. Mr Gracie, for the third defendant, raised for the first time the possibility of the proceedings being struck out. He was able to mention in support of that notion the House of Lords authority of Grovit v Doctor (1997) 2 All E R 417. No application to strike out was then made.

3. As the matter unfolded further Mr Joseph, learned senior counsel for the first defendant foreshadowed that in the light of what was happening he would be making an application to strike out the proceedings. Once again at that stage no formal application was made. On Thursday of last week, that is 26 September, the plaintiff’s conduct reached a point at which I said that it was no longer to be tolerated. Submissions were sought as to the way in which the Tribunal ought to proceed. Once again the idea of striking out the proceedings was discussed in submissions. I indicated that in the light of what had happened I was minded to proceed in that fashion, whereupon Ms Katzmann, learned senior counsel appearing for the plaintiff, said that she wished to prepare submissions…