Cross-claim Not Subject to Claims Resolution Process in NSW Dust Diseases Tribunal

The Dust Diseases Tribunal ruled that a cross-claim initiated after 1 July 2005 and without a hearing date set before that date is not subject to the Claims Resolution Process established by the Dust Diseases Tribunal Regulation 2007.

Dust Diseases Tribunal of New South Wales

CITATION : (Re [NAME]) [COMPANY] v [COMPANY] [2008] NSWDDT 14

PARTIES : [COMPANY] (Cross Claimant) [COMPANY] (Cross Defendant)

MATTER NUMBER(S) : 90 of 2005/1

JUDGMENT OF: Curtis J at 1

CATCHWORDS: Claims Resolution Process - DUST DISEASES TRIBUNAL :- Cross claims

LEGISLATION CITED: Dust Diseases Tribunal Regulation 2007 Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005

CASES CITED: (Re [NAME]) [NAME] v [COMPANY] and ors [2007] NSWDDT 19 (Re [NAME]) [NAME] and [NAME] v [COMPANY] [2006] NSWDDT 28

DATES OF HEARING: 19 May 2008 EX TEMPORE JUDGMENT DATE : 19 May 2008

[NAME] instructed by [NAME] appeared for the Cross Claimant LEGAL REPRESENTATIVES: [NAME] instructed by [NAME] appeared for the Cross Defendant

JUDGMENT:

Dust Diseases Tribunal of New South Wales Matter Number DDT90 of 2005/1 (Re: [NAME]) [COMPANY]

(Cross Claimant) v [COMPANY] (Cross Defendant) 19 May 2008 CURTIS J

RULING 1. [COMPANY], the defendant to a cross-claim brought by [COMPANY], seeks a declaration that the cross-claim is not subject to the Claims Resolution Process established by Part 4 of the Dust Diseases Tribunal Regulation 2007.

2. A plaintiff, Mr [NAME], by statement of claim filed 18 March 2005 sought damages from [COMPANY]. The action was fixed for hearing on 1 June 2006 on which date judgment was entered for [NAME] against [NAME].

3. The Dust Diseases Tribunal Regulation 2005, enabled by the Dust Diseases Tribunal Amendment (Claims Resolution) Act 2005, commenced on 1 July 2005. Part 4 of this regulation introduced the Claims Resolution Process. Cl 4 of the regulation relevantly provided as follows: 14 Transitional (1) This Part [Part 4 Claims Resolution Process] applies only to the following claims: (a) claims commenced by statement of claim filed on or after 1 July 2005, (b) claims commenced by statement of claim filed before 1 July 2005 ( "current claims") but only if: (i) a hearing date for the claim has not been set before 1 July 2005 (but not if each of the parties to the claim has notified the Registrar in writing that the parties have agreed that this Part is not to apply to the claim), or (ii) all of the parties to the claim have agreed that this Part is to apply to the claim. [emphasis added]

4. It is common ground that the hearing date for [NAME]'s claim was not set before 1 July 2005.

5. On 31 January 2007 [NAME] issued this cross-claim against [NAME].

6. On 1 July 2007 the Dust Diseases Tribunal Regulation governing the claims resolution process was amended. Cl 14 was repeated as Cl 16 in precisely the same terms.

7. That which is in issue is the meaning to be ascribed to the words "the following claims" where they appear in the clause. [NAME] for [NAME] contends that the word "claims" in that phrase is used in a generic sense and includes cross-claims. He says that the present cross-claim was commenced by filing in the Registry after 1 July 2005 and is captured by the provision. [NAME] for [NAME] asserts that, while the word "claims", may otherwise in the Regulation refer to cross-claims, the word is, where used within Regulation 16, qualified by the descriptor "commenced by statement of claim", and the provision cannot apply to cross claims.

8. In (Re [NAME]) [NAME] v [COMPANY] and ors [2007] NSWDDT 19 his Honour Judge Kearns in construing the former cl 14 held that because a cross-claim was not commenced by statement of claim, the Claims Resolution Process did not apply.

9. In (Re [NAME]) [NAME] and [NAME] v [COMPANY] [2006] NSWDDT 28 his Honour the President held that, where used in cl 18 of the Regulation, the word "claim" did include cross claims. Clause 18 is in the following relevant terms: 18 Which claims are subject to the claims resolution process (1) A claim to which this Part applies is subject to the claims resolution process once the claim is filed. (2) A claim remains subject to the claims resolution process: (a) until the claim is settled by mediation or otherwise and the Tribunal makes an order to give effect to the settlement, or (b) if the claim is not settled by the time mediation is concluded-until mediation is concluded and clause 37 (Unsuccessful mediation-agreement as to issues in dispute) has been complied with.

10. The decisions are not inconsistent. Cl 16 clearly apprehends that cross-claims may in some circumstances be governed by the Claims Resolution Process, and subject to cl 18. This might arise for instance, if a hearing date for the primary action had been set before 1 July 2005, or if all of the parties had agreed to invoke the Claims Resolution Process.

11. For reasons most lucidly expressed by His Honour Judge Kearns in [NAME] v [NAME] cl 16 does not apply to the present cross-claim.

12. I declare that the cross-claim brought by [COMPANY] against [COMPANY] in respect of damages paid to [NAME] is not subject to Pt 4 of the Dust Diseases Tribunal Regulation 2007.

13. Costs the defendant's costs in the cause.

14. For directions Monday 26 May 2008. [NAME] instructed by [NAME] appeared for the Cross-Claimant [NAME] instructed by [NAME] appeared for the Cross-Defendant

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