Apostolopoulos v Hatzisarantinos and Ors trading as Omonia Constructions (No. 2) [2008] NSWDDT 33

Apostolopoulos v Hatzisarantinos and Ors trading as Omonia Constructions (No. 2) [2008] NSWDDT 33

The finding in Harris that Progressive Massive Fibrosis is 'one and indivisible' was a determination of an issue of a general nature for the purposes of s 25B of the Dust Diseases Tribunal Act 1989, supported by both the trial and appeal decisions, and may thus operate as a presumption in subsequent proceedings. The plaintiff’s notice relying on that determination is correct both in form and substance.

Jurisdiction
Australia
Judgment Date
10 November 2008
Procedural Posture
Notice of Motion (tribunal Proceeding) / Interlocutory Ruling on Application to Relitigate an Alleged 'issue of a General Nature' Under S 25 B of the Dust Diseases Tribunal Act 1989
Outcome
Ruling that the Harris finding constituted an 'issue of a general nature' for s 25B; application to relitigate adjourned; costs reserved.
Legal Topics
['issue of General Nature Under S 25 B' 'relitigation of General Determinations' 'progressive Massive Fibrosis as Indivisible Injury']
['dust Diseases Compensation Law'] ['issue of General Nature Under S 25 B' 'relitigation of General Determinations' 'progressive Massive Fibrosis as Indivisible Injury']

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Procedural Posture

Notice of Motion (tribunal Proceeding) / Interlocutory Ruling on Application to Relitigate an Alleged 'issue of a General Nature' Under S 25 B of the Dust Diseases Tribunal Act 1989

Legal Issues

  1. 1 ["Whether the determination in Harris v Commercial Minerals regarding progressive massive fibrosis (PMF) as 'one and indivisible' constitutes an 'issue of a general nature' under s 25B of the Dust Diseases Tribunal Act 1989" 'Whether leave should be granted for the first defendant to relitigate that issue']

Ratio Decidendi

The finding in Harris that Progressive Massive Fibrosis is 'one and indivisible' was a determination of an issue of a general nature for the purposes of s 25B of the Dust Diseases Tribunal Act 1989, supported by both the trial and appeal decisions, and may thus operate as a presumption in subsequent proceedings. The plaintiff’s notice relying on that determination is correct both in form and substance.

Court Disposition

Ruling that the Harris finding constituted an 'issue of a general nature' for s 25B; application to relitigate adjourned; costs reserved.

Orders

  • ["First defendant's application to relitigate the PMF indivisibility issue is listed for further directions." 'Application in this and the Karteris case listed for directions on 24 November 2008.' 'Costs reserved.']