Daniel Carl Donebus, Manuel John Donebus and Sandra Maria Weston as Executors for the Estate of the late Carlo Donebus v Comcare and Others [2017] NSWDDT 3

Daniel Carl Donebus, Manuel John Donebus and Sandra Maria Weston as Executors for the Estate of the late Carlo Donebus v Comcare and Others [2017] NSWDDT 3

Because the claim was subject to the Claims Resolution Process, the mediation was governed by the Dust Diseases Tribunal Regulation 2013 rather than a referral under section 26 of the Civil Procedure Act 2005. The Tribunal's only power to award costs of mediation was under clause 50, which permits an award to the party successful before the Tribunal. No such successful party had yet been identified, so the Tribunal had no jurisdiction to award costs of the unsuccessful mediation. The consent judgment was set aside, Amaca having conceded that it should not have been entered.

Jurisdiction
Australia
Judgment Date
20 June 2017
Procedural Posture
Dust Diseases Personal Injury Claim Relating to Mesothelioma From Inhalation of Asbestos / Notice of Motion by the First Defendant Seeking to Set Aside a Consent Judgment and for Costs Relating to the Motion and a Failed Mediation
Outcome
The consent judgment was set aside; the notice of motion was otherwise dismissed; Amaca was ordered to pay Comcare's costs of the motion relating to the setting aside order on the ordinary basis.
Legal Topics
['claims Resolution Process' 'mesothelioma' 'asbestos' 'consent Judgment' 'mediation' 'contributions Assessment' 'costs of Mediation']
['dust Diseases' 'civil Procedure' 'costs'] ['claims Resolution Process' 'mesothelioma' 'asbestos' 'consent Judgment' 'mediation' 'contributions Assessment' 'costs of Mediation']

Case Brief

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Procedural Posture

Dust Diseases Personal Injury Claim Relating to Mesothelioma From Inhalation of Asbestos / Notice of Motion by the First Defendant Seeking to Set Aside a Consent Judgment and for Costs Relating to the Motion and a Failed Mediation

Legal Issues

  1. 1 ['Whether the consent judgment entered between Amaca and the plaintiff should be set aside.' 'Whether the Tribunal had power at this stage to award costs relating to the unsuccessful mediation.' 'Whether a mediator has power under clause 40(4) of the Dust Diseases Tribunal Regulation 2013 to excuse a party from attending mediation.']

Ratio Decidendi

Because the claim was subject to the Claims Resolution Process, the mediation was governed by the Dust Diseases Tribunal Regulation 2013 rather than a referral under section 26 of the Civil Procedure Act 2005. The Tribunal's only power to award costs of mediation was under clause 50, which permits an award to the party successful before the Tribunal. No such successful party had yet been identified, so the Tribunal had no jurisdiction to award costs of the unsuccessful mediation. The consent judgment was set aside, Amaca having conceded that it should not have been entered.

Court Disposition

The consent judgment was set aside; the notice of motion was otherwise dismissed; Amaca was ordered to pay Comcare's costs of the motion relating to the setting aside order on the ordinary basis.

Orders

  • ['The consent judgment filed on 6 April 2017 is set aside.' 'The notice of motion is otherwise dismissed.' "Amaca is to pay Comcare's costs of the motion relating to order 1 on the ordinary basis."]