Seltsam Pty Ltd v Energy Australia - [1999] NSWCA 89

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 1999

PARTIES :

Seltsam Pty Ltd & Anor
EnergyAustralia & Ors

JUDGMENT 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 Chen

SOLICITORS: Appellants - Toomey Pegg Drevikovsky
First Respondent - Goldrick Farrell Mullan
Third & Fourth Respondents - Phillips Fox

CATCHWORDS: 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 APPEAL

CA 40607/98
DDT 2/97

PRIESTLEY JA
GILES JA
FITZGERALD JA

Monday 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…

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.

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Details

Case: [1999] NSWCA 89
Decision Date: 12 April 1999

CaseChat Overview and Summary

Seltsam Pty Ltd (the applicant) sought leave to appeal to the Court of Appeal of New South Wales against a decision of Maguire J in the Dust Diseases Tribunal. The dispute concerned the jurisdiction of the Tribunal to entertain a cross-claim filed by Energy Australia (the respondent) against third parties after judgment had been entered in favour of the plaintiff. The respondent had been granted an extension of time to file this cross-claim.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 1999
PARTIES :	Seltsam Pty Ltd & Anor EnergyAustralia & Ors
JUDGMENT 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 Chen
SOLICITORS:	Appellants - Toomey Pegg Drevikovsky First Respondent - Goldrick Farrell Mullan Third & Fourth Respondents - Phillips Fox
CATCHWORDS:	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.