(Re: Maher) Eraring Energy v State Rail Authority of New South Wales

[2005] NSWDDT 7

Dust Diseases Tribunal

of New South Wales

CITATION:	(Re: Maher) Eraring Energy v State Rail Authority of New South Wales & Ors [2005] NSWDDT 7
MATTER NUMBER(S):	75 of 97/1
JUDGMENT OF:	McIntyre A J at 1
:-
EX TEMPORE JUDGMENT DATE:	02/25/2005

JUDGMENT:

1. In these proceedings the cross-claimant seeks contribution pursuant to s 5 of the Law Reform Miscellaneous Provisions Act 1946 in relation to a liability incurred by it pursuant to a consent judgment to pay damages to a Mr John Samuel Maher in the sum of $180,000 inclusive of costs, judgment being entered by the Tribunal on 19 November 1997. The defendants in those proceedings were SRA and Pacific Power.

2. The cross-claimant or its predecessors in title was effectively the employer of the plaintiff Mr Maher between 1948 and 1986. The liability of the cross-claimant arose out of exposure of the plaintiff to asbestos dust and fibre at a number of locations in New South Wales during that period. The cross-claimant seeks contribution pursuant to s 5 of the Law Reform Act from Babcock Australia Ltd, Babcock International Ltd, Wallaby Grip Ltd and Wallaby Grip (BAE) Pty Ltd, other cross-claims having been discontinued.

3. As in earlier proceedings in which I have just given a detailed judgment (in the matter where Mr Murray was the plaintiff) the cross-claimant Eraring has filed a notice pursuant to s 25B of the Dust Diseases Tribunal Act asserting that BIL in defending the cross-claim cannot litigate without the leave of the Tribunal certain matters which it maintains were the subject of previous determinations of a general nature in proceedings in the Tribunal or on appeal from the Tribunal. Again, the s 25B notice in these proceedings is in identical terms to the s 25B notice in the Murray proceedings, and the parties have adopted for the purposes of these proceedings the submissions made in those proceedings. Again, this is a determination as a separate issue pursuant to Pt 31 r 2 of the Supreme Court Rules of the question of whether certain disputed parts of the s 25B notice relate to determinations of issues of a general nature in proceedings before the Tribunal or on appeal from the Tribunal.

4. For the reasons previously given in the matter of Murray I find that the following paragraphs in the amended s 25B notice in these proceedings do not raise determinations of issues of a general nature within s 25B of the Dust Diseases Tribunal Act 1989 & :

pars A(2), D(2) and (3) F(1), H(1), I (1) to (24) J(1) and J(2), M(1) and M(2).

5. I make no order as to costs reserving the question of costs for the conclusion of the cross-claim.