Wearne v Allied Mills Pty Ltd

[2007] NSWDDT 32

Dust Diseases Tribunal

of New South Wales

CITATION:	Wearne v Allied Mills Pty Ltd [2007] NSWDDT 32
PARTIES:	Carlene Wearne (As Legal Personal Representative of the Estate of the late Gregory John Wearne) (Plaintiff) Allied Mills Pty Ltd (Defendant)
MATTER NUMBER(S):	7238 of 2007
JUDGMENT OF:	O'Meally P
CATCHWORDS:	Dust Diseases Tribunal :-
LEGISLATION CITED:	Dust Diseases Tribunal Regulation 2007 Compensation to Relatives Act 1897
DATES OF HEARING:	18 December 2007
DATE OF JUDGMENT:	18 December 2007
EX TEMPORE JUDGMENT DATE:	18 December 2007
LEGAL REPRESENTATIVES:	Mr A J Gardiman of Turner Freeman appeared for the Plaintiff Mr M R Cash of Mallesons Stephen Jaques appeared for the Defendant Miss C M Wearne of Middletons Lawyers appeared for the Cross-Defendant

JUDGMENT:

RULING

O'MEALLY P

1. On 30 August 2007 this claim was removed from the Claims Resolution Process pursuant to cl 22(1)(a) of the Dust Diseases Tribunal Regulation 2007. An order was made then that the plaintiff’s evidence be taken at 9.30 am on 31 August 2007. Mr Wearne died on 31 August 2007 before his evidence was taken.

2. At the time the application was made on 30 August 2007, Miss Strathdee appeared amicus curiae for the defendant. As a consequence of the restricted nature of her appearance I ordered that a copy of the order removing the claim from the Claims Resolution Process be served upon the defendant by facsimile transmission. On 3 September 2007 the defendant filed an appearance. On 22 October 2007 orders were made giving leave to file an amended statement of claim substituting Mr Wearne’s legal personal representative as plaintiff. Certain other orders were made on the same date. On neither 30 August 2007 nor 22 October 2007 did I make orders, nor consider whether it was appropriate to make orders, under cl 22(7) of the Regulation. Such orders could not have been made on 30 August 2007 because there was no defendant before me.

3. On 6 November 2007 the defendant issued a cross-claim against Wallaby Grip (BAE) Pty Ltd. Wallaby Grip (BAE) Pty Ltd is now represented by Miss Wearne of Middletons Lawyers. The plaintiff and defendant have invited me to make orders pursuant to cl 22(7) of the regulation appointing a mediator and contribution’s assessor. Miss Wearne opposes the making of those orders, substantially on the basis that by reason of the arbitrary nature of contribution assessment the likelihood is that her client will be fixed with an apportionment greater than she would care it to bear. She has also objected on the basis that the cross-claim was served a day later than the order of 22 October 2007 allowed.

4. I have been informed that the registrar has declined to appoint a mediator on the basis that the Claims Resolution Process does not apply to these proceedings. Even though the claim has been removed from the Claims Resolution Process, the Tribunal is required by the terms of cl 22(7) to consider whether mediation and contributions assessment should take place. Because it could not have been done earlier, and it can be done now, because I am obliged by the Regulation to consider whether mediation and contribution assessment should occur, and because the plaintiff and the defendant wish each to occur, I propose to make orders in accordance with the short minutes which have been handed to me. They require the filing of a reply and the appointment of a mediator and a contributions assessor and provide for dates by which the processes of mediation and contributions assessment are to be completed.

5. Par 2(e) of the short minutes requires that mediation in the instant claim and a claim pursuant to the Compensation to Relatives Act 1897 be completed by 29 February 2008. No proceedings under the Compensation to Relatives Act have been filed. It is thus impossible to order that mediation of such proceedings be completed by 29 February 2008. If, however, the statement of claim is amended, as the Regulation seems to require, or if it be because the plaintiff or plaintiffs may be different if a Compensation to Relatives claim is made, I would urge the parties to approach the matter cooperatively and endeavour to settle their differences or otherwise to mediate the claims.

6. I make orders 1 to 3 as in Short Minutes of Order filed in court 18 December 2007. The case will be listed for directions 3 March 2008 to fix a date for hearing.

Mr A J Gardiman of Turner Freeman appeared for the Plaintiff

Miss C M Wearne of Middletons Lawyers appeared for the Cross-Defendant

Mr M R Cash of Mallesons Stephen Jaques appeared for the Defendant