CITATION: Seltsam Pty Ltd & Anor v EnergyAustralia & Ors [1999] NSWCA 89 FILE NUMBER(S): CA 40607/98 HEARING DATE(S): 25 March 1999 JUDGMENT DATE:
12 April 1999PARTIES :
Seltsam Pty Ltd & Anor
EnergyAustralia & OrsJUDGMENT OF: Priestley JA at 1; Giles JA at 2; Fitzgerald JA at 55
LOWER COURT JURISDICTION: Dust Diseases Tribunal LOWER COURT FILE NUMBER(S) : DDT 2/97 LOWER COURT JUDICIAL OFFICER: O'Meally J
COUNSEL: Appellant - J D Hislop QC & G P F Rundle
First Respondent - M F Holmes QC
& D Robinson
Third & Fourth Respondents (Submitting) -
N E ChenSOLICITORS: Appellants - Toomey Pegg Drevikovsky
First Respondent - Goldrick Farrell Mullan
Third & Fourth Respondents - Phillips FoxCATCHWORDS: DUST DISEASES TRIBUNAL - jurisdiction - cross-claim filed by defendant against third parties after judgment for plaintiff - filed pursuant to grant of extension of time under rules - whether "included in" the proceedings within s11(4) of the Dust Disease Tribunal Act. DECISION: (1) Grant leave to appeal from the decision of Maguire J given on 16 July 1998; (2)(a)(By majority) Dismiss the appeal; (b) Claimants/appellants pay the costs of the first opponent/respondent.
30
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEALCA 40607/98
DDT 2/97PRIESTLEY JA
GILES JA
FITZGERALD JAMonday 12 April 1999
SELTSAM PTY LTD & ANOR v ENERGYAUSTRALIA & ORS
JUDGMENT
1 PRIESTLEY JA: I agree with Giles JA.
2 GILES JA: The claimants apply for leave to appeal from a decision given by Maguire J, sitting as the Dust Diseases Tribunal (“the Tribunal”), on 16 July 1998, in which his Honour dismissed their applications to strike out a cross-claim against them filed by the first opponent in proceedings in the Tribunal (“the proceedings”). At issue was and is the jurisdiction of the Tribunal to entertain a cross-claim filed by a defendant after judgment in favour of the plaintiff.
3 Full argument was heard on the application for leave to appeal as if it were the appeal, on the agreed basis that the appeal could be disposed of without further argument if leave to appeal were granted. Argument was presented by the claimants and the first opponent. The second to fifth opponents, cross-defendants to the cross-claim in the proceedings together with the claimants, either did not appear or filed a submitting appearance.
Facts
4 Mr Ian Banham worked for the Balmain Electric Light and Power Company as a trimmer, later a fireman, from 1946, and for the Sydney County Council as a linesman from about 1949. He retired in 1982. In 1996 he was diagnosed as suffering from mesothelioma.
5 On 15 January 1997 Mr Banham commenced the proceedings, claiming damages against the first opponent, his former employer or the statutory successor to his former employer. He alleged that he had contracted mesothelioma from use of and exposure to asbestos insulation materials in the course of his employment, and that the use and exposure were the result of negligence and breach of…
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- Case
- [1999] NSWCA 89
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court of Appeal was whether the cross-claim, filed after the primary judgment and pursuant to an extension of time, was "included in" the proceedings within the meaning of s 11(4) of the *Dust Diseases Tribunal Act 1989* (NSW). This provision dictates that the Tribunal has jurisdiction to hear and determine any claim or cross-claim that is "included in" the proceedings before it.
The majority of the Court (Giles and Fitzgerald JJA) reasoned that the phrase "included in" referred to claims that were part of the proceedings at the time the Tribunal's jurisdiction was invoked or at the time of the hearing. They held that a cross-claim filed after judgment, even with an extension of time, was not "included in" the proceedings in a manner that attracted the Tribunal's jurisdiction under s 11(4). Priestley JA dissented, finding that the Tribunal's jurisdiction was broader and could encompass such a cross-claim.
By majority, the Court of Appeal dismissed the appeal, ordering the claimants/appellants to pay the costs of the first opponent/respondent.
Orders
Orders of the court
(1) Grant leave to appeal from the decision of Maguire J given on 16 July 1998; (2)(a)(By majority) Dismiss the appeal; (b) Claimants/appellants pay the costs of the first opponent/respondent.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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