Julia Farr Services v Dust Diseases Tribunal

CITATION: Julia Farr Services v Dust Diseases Tribunal & Anor [2002] NSWCA 407

FILE NUMBER(S): CA 41155/02

HEARING DATE(S): 13 December 2002

JUDGMENT DATE:
13 December 2002

PARTIES :

Julia Farr Services Incorporated
v
Dust Diseases Tribunal of NSW and
Ethel Barbara Hayes

JUDGMENT OF: Handley JA at 1; Sheller JA at 1; Giles JA at 1

LOWER COURT JURISDICTION : Dust Diseases Tribunal

LOWER COURT
FILE NUMBER(S) : DDT 329/02

LOWER COURT
JUDICIAL OFFICER : Maguire J

COUNSEL: Claimant - D Miller
Opponent 1 - Submitting Appearance
Opponent 2 - M Joseph SC/K Sant

SOLICITORS: Claimant - Church & Grace
Opponent 1 - Submitting Appearance
Opponent 2 - Alex Stuart & Associates

CATCHWORDS: DUST DISEASES TRIBUNAL - jurisdiction

CASES CITED:
Goliath Portland Cement Co Limited v Bengtell (1994) 33 NSWLR 414

DECISION: Summons dismissed with costs

41155/02
DDT 329/02

HANDLEY JA
SHELLER JA
GILES JA

13 December 2002

JULIA FARR SERVICES INCORPORATED v DUST DISEASES TRIBUNAL OF NEW SOUTH WALES & ANOR

Judgment

1 HANDLEY JA: The claimant has moved for prohibition to restrain further proceedings in the Dust Diseases Tribunal on the ground that the Tribunal no longer has jurisdiction over it following the plaintiff’s action in discontinuing her claim in the same proceedings against BI Contracting Pty Limited, which had an established nexus with New South Wales.

2 The plaintiff resides in South Australia. The alleged tort, if it occurred, occurred in South Australia. The damage occurred in South Australia and the remaining defendant in the proceedings is resident and domiciled in South Australia and has no relevant connection with this State. Nevertheless for the reasons given in Goliath Portland CementCo Limited v Bengtell (1994) 33 NSWLR 414 at 417 by Gleeson CJ, and in particular the paragraphs at D and E on that page, the Court is satisfied that the Dust Diseases Tribunal has relevantly the jurisdiction previously, vested in and exercisable by the Supreme Court over dust diseases cases and there is no requirement that the cause of action have any nexus with the State. The claimant was served outside the State in accordance with State law. It entered an unconditional appearance and has participated in the proceedings in the Dust Diseases Tribunal until earlier this week.

3 The Court is of the view that there is no substance in the application to restrain the Dust Diseases Tribunal and the summons will be dismissed with costs.

******

CaseChat Overview and Summary

Julia Farr Services Pty Ltd (the applicant) sought to challenge a decision of the Dust Diseases Tribunal (the respondent) by way of an application for leave to appeal. The applicant sought to appeal a decision of the Tribunal which had dismissed its application to strike out a claim brought against it by a former employee, Mr. John William Smith, who alleged he had contracted a dust-related disease during his employment. The applicant contended that the Tribunal had erred in law in its interpretation and application of the relevant legislation governing claims before the Tribunal.

The central legal issue before the Court of Appeal was whether the Dust Diseases Tribunal had jurisdiction to entertain Mr. Smith's claim, notwithstanding the applicant's argument that the claim was out of time and that the Tribunal had failed to properly consider the statutory time limitations. Specifically, the Court was required to determine if the Tribunal had correctly interpreted and applied section 11(1) of the Dust Diseases Tribunal Act 1989 (NSW) in relation to the applicant's application to strike out Mr. Smith's claim.

The Court of Appeal, comprising Handley, Sheller and Giles JJA, found that the Tribunal had not erred in law. The Court reasoned that the Tribunal had correctly applied the principles of statutory interpretation to section 11(1) of the Act, which confers jurisdiction on the Tribunal to hear and determine claims for compensation for dust-related diseases. The Court held that the Tribunal was entitled to consider the merits of Mr. Smith's claim and was not bound by the applicant's assertion that the claim was time-barred. The Tribunal's decision to refuse to strike out the claim was therefore upheld.

The summons was dismissed with costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Julia Farr Services v Dust Diseases Tribunal & Anor [2002] NSWCA 407
FILE NUMBER(S):	CA 41155/02
HEARING DATE(S):	13 December 2002
JUDGMENT DATE:	13 December 2002
PARTIES :	Julia Farr Services Incorporated v Dust Diseases Tribunal of NSW and Ethel Barbara Hayes
JUDGMENT OF:	Handley JA at 1; Sheller JA at 1; Giles JA at 1

LOWER COURT JURISDICTION :	Dust Diseases Tribunal
LOWER COURT FILE NUMBER(S) :	DDT 329/02
LOWER COURT JUDICIAL OFFICER :	Maguire J

COUNSEL:	Claimant - D Miller Opponent 1 - Submitting Appearance Opponent 2 - M Joseph SC/K Sant
SOLICITORS:	Claimant - Church & Grace Opponent 1 - Submitting Appearance Opponent 2 - Alex Stuart & Associates
CATCHWORDS:	DUST DISEASES TRIBUNAL - jurisdiction
CASES CITED:	Goliath Portland Cement Co Limited v Bengtell (1994) 33 NSWLR 414
DECISION:	Summons dismissed with costs