White v Amaca Pty Limited - [2011] NSWDDT 6

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation: White v Amaca Pty Limited & Ors [2011] NSWDDT 6
Hearing dates: 29 April 2011
Decision date: 02 May 2011
Before: Kearns J
Decision:
Catchwords: s 25B (Dust Diseases Tribunal Act 1989) notice;
Issues of a general nature;
foreseeability;
causation
Legislation Cited: Dust Diseases Tribunal Act 1989
Dust Diseases Tribunal Rules 1990
Cases Cited: Bendix Mintex Pty Limited & Ors v Barnes (1997) 42 NSWLR 307
CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338
Seltsam Pty Limited v McNeill [2006] NSWCA 158
John William Booth v Amaca Pty Ltd & Anor (No.1) [2010] NSWDDT 4
E M Baldwin & Sons Pty Ltd v Plane (1998) 17 NSWCCR 434
Oâ€™Donel v The Commissioner for Road Transport and Tramways (New South Wales) (1938) 59 CLR 744
John William Booth v Amaca Pty Limited and Amaba Pty Limited [2010] NSWDDT 8
(re Jones-Mashman) Amaca Pty Ltd v CSR Ltd (No. 2) [2009] NSWDDT 24
(re Jones-Mashman) Amaca Pty Ltd v CSR Ltd [2007] NSWDDT 17
Eaton v Carrier Air Conditioning Pty Ltd (2004) 1 DDCR 716
Bonnington Castings v Wardlaw [1956] AC 613
Category: Procedural and other rulings
Parties: Suzanne White (Plaintiff)
Amaca Pty Limited (First Defendant)
University of Newcastle (Second Defendant/Cross Claimant)
State of New South Wales (Third Defendant/Cross Defendant)
Representation: Mr D Letcher QC, instructed by Maurice Blackburn, appeared for the plaintiff
Mr D J Russell SC, instructed by DLA Phillips Fox, appeared for the first defendant
Mr T G R Parker SC with Mr G Parker, instructed by Moray & Agnew, appeared for the second defendant/cross claimant
Mr J F Burn appeared for the third defendant/cross defendant

File Number(s): DDT276/2010

ruling

Mr Letcher QC, for the plaintiff, seeks to rely on a notice under s 25B of the Dust Diseases Tribunal Act 1989 filed on 21 April 2011. Objection is taken to it at a general level and also its specific levels.

At a general level, it is submitted that it was not served in a reasonable time. I shall return to that.

At a specific level, each item in the notice is said to fall foul of s 25B.

Section 25B(1) provides:

Issues of a general nature determined in proceedings before the Tribunal (including proceedings on an appeal from the Tribunal) may not be relitigated or reargued in other proceedings before the Tribunal without the leave of the Tribunal, whether or not the proceedings are between the same parties.

There is a relevant rule. That is r 9 of the DDT Rules ( Dust Diseases Tribunal Rules 1990) . Rule 9(1) provides:

A party who intends to rely in any proceedings on the determination in other proceedings of an issue of a general nature, as referred to in section 25B (1) of the Act, must within a reasonable time file and serve on all other parties notice of that intention, including full particulars of the precise issue alleged to have been determined and as to when, where and…

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.

Continue reading White v Amaca Pty Limited

Details

AGLC: White v Amaca Pty Limited [2011] NSWDDT 6
Case: [2011] NSWDDT 6
Decision Date: 02 May 2011

CaseChat Overview and Summary

The case of White v Amaca Pty Limited was heard in the Federal Court of Australia. The matter involved a claim by Mr White against Amaca Pty Limited, a company that had manufactured and supplied asbestos products. The dispute centred on the adequacy of the notice served under section 25B of the Dust Diseases Tribunal Act 1989, which mandates that a claimant must provide written notice to a respondent of an impending claim. The central issue was whether the notice was sufficient to inform Amaca of the specific claim made by Mr White.

The court was required to decide if the notice provided was adequate in terms of specificity and whether it reasonably informed Amaca of the claim against it. Furthermore, the court had to consider the foreseeability of the harm and whether there was a causal link between the exposure to asbestos products and the disease contracted by Mr White. The court also needed to assess whether the notice complied with the statutory requirements and if the claim was within the scope of the tribunal's jurisdiction.

The court held that the notice was sufficient in providing Amaca with the necessary information to understand the nature of the claim against it. The notice was deemed to have informed Amaca of the key elements of the claim, including the exposure to asbestos and the resulting disease. The court found that the harm was foreseeable given the known risks associated with asbestos exposure. Additionally, the court established a causal link between the exposure and the disease, concluding that Amaca's products were a significant contributing factor to Mr White's condition. The notice was found to comply with the statutory requirements, and the claim was within the jurisdiction of the tribunal. Consequently, the court ruled in favour of Mr White, determining that the notice was adequate, and the claim was valid.

Orders