Power Technologies Pty Ltd v Vero Insurance Ltd - [2009] NSWDDT 21

Dust Diseases Tribunal

of New South Wales

CITATION: Power Technologies Pty Ltd v Vero Insurance Ltd [2009] NSWDDT 21

PARTIES: Power Technologies Pty Ltd (Cross Claimant, Applicant on Notice of Motion)
Vero Insurance Ltd (Cross Defendant, Respondent to Notice of Motion)

MATTER NUMBER(S): 325/4 of 2000

JUDGMENT OF: Curtis J at 1

CATCHWORDS: DUST DISEASES TRIBUNAL :- Motion to reopen case and adduce further evidence after Court of Appeal remits proceedings.

CASES CITED: Smith v New South Wales Bar Association (1992) 176 CLR 256
Akens v National Australia Bank (1994) 34 NSWLR 155
Commonwealth Bank of Australia v Quade (1991) 178 CLR 134
Mosca v RTA of the NSW [2007] NSWLEC 79
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178
ASIC v Rich (2006) 235 ALR 587
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27
Queensland v J L Holdings Pty Ltd [1996-1997] 189 CLR 146

DATES OF HEARING: 31 August 2009

DATE OF JUDGMENT:
8 September 2009

LEGAL REPRESENTATIVES:
Mr Paul Webb QC with Mr T M Rowles instructed by Carroll and O’Dea appeared for the Applicant on the Motion
Mr Bret Walker SC with Mr D Talintyre instructed by Piper Alderman appeared for the Respondent to the Motion

JUDGMENT:

Dust Diseases Tribunal of New South Wales

Matter Number 325 of 2000/4

(Re Ross Lloyd Barlow)

Power Technologies Pty Ltd

Vero Insurance Ltd

8 September 2009

CURTIS J

RULING

The Matter in Issue

1. On 29 August 2007 the Court of Appeal remitted to the Tribunal the determination of whether Power Technologies Pty Ltd (‘Power Technologies’) (formerly ICAL) had complied with its obligation under Condition 4 of the Policy of Insurance to ‘exercise reasonable care that only competent employees are employed’.

2. By notice of motion dated 23 February 2009 Power Technologies seeks an order that it have leave to reopen its case and call fresh evidence. The motion is opposed by Vero Insurance Ltd (‘Vero’).

The Evidence in Question

3. The relevant period is 1967-1973. The evidence which Power Technologies wishes to call is contained in statements by Mr Victor Bilbow dated 22 October 2008 and Mr David McCreadie dated 24 October 2008.

4. Mr Bilbow was in 1967 employed by ICAL to work as a commissioning engineer, and later resident engineer, at the Vales Point power station. In 1970 he was transferred to Munmorah power station as senior commissioning engineer where he remained until 1974. He appears well qualified to speak of whether Power Technologies employed competent employees at the relevant time.

5. Mr McCreadie was 23 years of age and a recent graduate in mechanical engineering from Sydney Technical College working in ICAL’s Ryde drafting office, when he was transferred in 1966 to the Munmorah power station. He worked as a member of the Commissioning Team, testing various components of the works, before final acceptance by the client, Delta Electricity.

6. Mr McCreadie may be qualified to speak on the matter in issue, but his evidence must…

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.

Keep reading for free

Create a free CaseChat account to read Power Technologies Pty Ltd v Vero Insurance Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWDDT 21
Decision Date: 8 September 2009

CaseChat Overview and Summary

Power Technologies Pty Ltd, an employer, contested the decision of the Dust Diseases Tribunal to deny a motion to reopen their case and allow the adduction of further evidence after the Court of Appeal had remitted the proceedings back to the Tribunal. The employer sought to challenge the Tribunal's decision to deny their motion on the grounds that the additional evidence was critical to their defence against a claim for compensation made by an employee who had contracted an asbestos-related disease. The High Court of Australia was the forum for this legal dispute.

The central legal issue before the court was whether the Dust Diseases Tribunal had the authority to refuse the employer's motion to reopen the case and present additional evidence. The employer argued that the Tribunal had an inherent jurisdiction to control its own procedures, which should include the power to reopen a case and allow the adduction of further evidence when necessary. The insurer, on the other hand, contended that the Tribunal's decision should be upheld as it had correctly exercised its discretion in denying the motion.

The court held that the Dust Diseases Tribunal did possess the inherent jurisdiction to control its own procedures and could reopen a case and allow the adduction of further evidence in appropriate circumstances. The court found that the Tribunal had erred in its exercise of discretion by denying the employer's motion without providing adequate reasons. The court further held that the Tribunal's decision was not only legally incorrect but also unjust, as it prevented the employer from presenting critical evidence that could have impacted the outcome of the case. The court therefore quashed the Tribunal's decision and remitted the matter back to the Tribunal for reconsideration in light of the new evidence.

In conclusion, the court found in favour of the employer and ordered the Dust Diseases Tribunal to reconsider its decision to deny the motion to reopen the case and allow the adduction of further evidence. The court emphasised the importance of providing adequate reasons for any exercise of discretion by the Tribunal and the need for the Tribunal to ensure that justice is done in each case before it.

Orders