Apostolopoulos v Hatzisarantinos and Ors trading as Omonia Constructions (No. 3) [2009] NSWDDT 6

Apostolopoulos v Hatzisarantinos and Ors trading as Omonia Constructions (No. 3) [2009] NSWDDT 6

Although the reports relied on by the first defendant constituted new evidence because they had not previously been given, the earlier proceedings had fairly raised, examined and determined the nature of PMF at first instance and on appeal. The first defendant delayed more than three years after the plaintiff's s 25B notice, did not give timely notice before the Tribunal and lawyers left for Greece, and its application would require restructuring of the plaintiff's case and cause additional costs, delay and prejudice. Those matters did not justify granting leave to relitigate the existing determination that PMF is one and indivisible.

Jurisdiction
Australia
Judgment Date
26 March 2009
Procedural Posture
Dust Diseases Damages Proceedings; Notice of Motion Under S 25 B(1) of the Dust Diseases Tribunal Act 1989 Seeking Leave to Relitigate an Issue of a General Nature / Ruling on First Defendant's Application for Leave to Relitigate Whether Progressive Massive Fibrosis Develops From Silicosis and Is One and Indivisible
Outcome
Leave to relitigate refused; notice of motion dismissed.
Legal Topics
['dust Diseases Tribunal Act 1989 S 25 B' 'relitigation of Issues of a General Nature' 'progressive Massive Fibrosis' 'silicosis' 'divisible and Indivisible Injury' 'delay and Prejudice' 'costs']
['dust Diseases Litigation' 'civil Procedure' 'tort Damages'] ['dust Diseases Tribunal Act 1989 S 25 B' 'relitigation of Issues of a General Nature' 'progressive Massive Fibrosis' 'silicosis' 'divisible and Indivisible Injury' 'delay and Prejudice' 'costs']

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Procedural Posture

Dust Diseases Damages Proceedings; Notice of Motion Under S 25 B(1) of the Dust Diseases Tribunal Act 1989 Seeking Leave to Relitigate an Issue of a General Nature / Ruling on First Defendant's Application for Leave to Relitigate Whether Progressive Massive Fibrosis Develops From Silicosis and Is One and Indivisible

Legal Issues

  1. 1 ['Whether new evidence was available for the purposes of s 25B(2)(a) concerning whether progressive massive fibrosis is divisible or indivisible.' 'Whether the manner in which the earlier Hollins proceedings before Johns J and on appeal were conducted warranted leave to relitigate the issue.' "Whether other relevant matters, including delay, prejudice, restructuring of the plaintiff's case, additional costs and delay, and rejected settlement offers, warranted refusal of leave." 'Whether the first defendant should be granted leave under s 25B(1) of the Dust Diseases Tribunal Act 1989 to relitigate or reargue the determination that progressive massive fibrosis is one and indivisible.']

Ratio Decidendi

Although the reports relied on by the first defendant constituted new evidence because they had not previously been given, the earlier proceedings had fairly raised, examined and determined the nature of PMF at first instance and on appeal. The first defendant delayed more than three years after the plaintiff's s 25B notice, did not give timely notice before the Tribunal and lawyers left for Greece, and its application would require restructuring of the plaintiff's case and cause additional costs, delay and prejudice. Those matters did not justify granting leave to relitigate the existing determination that PMF is one and indivisible.

Court Disposition

Leave to relitigate refused; notice of motion dismissed.

Orders

  • ['The notice of motion filed by the first defendant on 2 June 2008 is dismissed.' "The first defendant will pay the plaintiff's costs of this application as agreed or assessed." 'For directions 9 April 2009.']