Seltsam Pty Ltd v Energy Australia

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.