Spinnato v PGH Enfield Bricks Pty Ltd

[2008] NSWDDT 23

Dust Diseases Tribunal

of New South Wales

CITATION:	Spinnato v PGH Enfield Bricks Pty Ltd [2008] NSWDDT 23
PARTIES:	Salvatore Spinnato (Plaintiff) PGH Enfield Bricks Pty Ltd (First Defendant) Acmil Industries Pty Ltd t/as PGH Enfield Bricks (Second Defendant)
MATTER NUMBER(S):	8218 of 2008
JUDGMENT OF:	O'Meally P
CATCHWORDS:	DUST DISEASES TRIBUNAL :- Dust Diseases Tribunal Regulation - claim removed from Claims Resolution Process - whether compulsory mediation and contributions assessment should be ordered - question whether first defendant entitled to indemnify - second defendant de-registered - mediation and contributions assessment not ordered
LEGISLATION CITED:	Dust Diseases Tribunal Regulation 2007
DATES OF HEARING:	1 September 2008
DATE OF JUDGMENT:	1 September 2008
EX TEMPORE JUDGMENT DATE:	1 September 2008
LEGAL REPRESENTATIVES:	A J Gardiman of Turner Freeman appeared for the Plaintiff C D Anderson of Ellison Tillyard Callanan appeared for the Second Defendant

JUDGMENT:

RULING

O’MEALLY P

1. Salvatore Spinnato has issued a statement of claim naming PGH Enfield Bricks Pty Limited and Acmil Industries Pty Limited trading as PGH Enfield Bricks as defendants. He alleges that in employment by each he was exposed to asbestos and as a consequence has contracted malignant mesothelioma. Based upon the report of Professor Steven Clarke bearing date 17 July 2008 his claim was, pursuant to cl 22(1)(a) of the Dust Diseases Tribunal Regulation 2007 (the Regulation), removed from the Claims Resolution Process. This is because his case is urgent and he has a limited life expectancy. He is expected to die before the time provided for mediation by the Regulation will expire.

2. I am informed by Mr Gardiman, who acts for Mr Spinnato, that the first defendant has been deregistered. The second defendant also was deregistered but it has been restored. The second defendant has not appeared though Mr Anderson, on the instructions of an insurer, has appeared. On the material he has he thinks it doubtful that the insurer whom he represents will be liable to indemnify the second defendant.

3. Having removed the claim from the Claims Resolution Process I am required to consider whether Divs 4 and 5 of the Regulations should apply. Div 4 relates to mediation; Div 5 relates to contribution between defendants. If I order that Divs 4 and 5 are not to apply I am required by cl 22(7)(b) to give reasons for “not so ordering”. The reasons for “not so ordering” are that the first defendant will not be a party to the proceedings because it does not exist and the prospects of its being restored to the Registrar are non-existent. This is because, despite searches, it has been impossible to determine that at any relevant time it was insured. The second defendant does exist and was insured during relevant periods. There may be a question whether it was insured at the date of the plaintiff’s last exposure, that is when the plaintiff was last employed in an employment in the nature of which his disease is due. That, as it appears to me, is a question which will need to be resolved before the plaintiff’s case is heard but it is also, as it appears to me, reason for “not so ordering”. I order that Divs 4 and 5 of the Regulation not apply.

Mr A J Gardiman of Turner Freeman appeared for the Plaintiff

Mr C D Anderson of Ellison Tillyard Callanan appeared for the Second Defendant