QBE WORKERS COMPENSATION (NSW) LIMITED v BAE SYSTEMS REGIONAL AIRCRAFT LIMITED (FORMERLY BRITISH AEROSPACE COMMERCIAL AIRCRAFT LIMITED) COMPANY [2006] NSWCA 131

QBE WORKERS COMPENSATION (NSW) LIMITED v BAE SYSTEMS REGIONAL AIRCRAFT LIMITED (FORMERLY BRITISH AEROSPACE COMMERCIAL AIRCRAFT LIMITED) COMPANY [2006] NSWCA 131

Because the Claimant conceded that the reference to triorthocresyl phosphate in paragraph [6] of the Statement of Claim was not material to the cause of action it sought to pursue, the appeal should be allowed, the orders below set aside, and the impugned words struck out, leaving any further challenge to a fumes-based case to be brought by notice of motion.

Jurisdiction
Australia
Judgment Date
19 May 2006
Procedural Posture
Practice and Procedure Appeal Concerning Whether a Statement of Claim Was an Abuse of Process / Application for Leave to Appeal From Interlocutory Orders of Howie J Dated 24 March 2005
Outcome
Leave to appeal granted; appeal allowed; orders of Howie J set aside; impugned words in paragraph [6] of the Statement of Claim struck out; Respondent's Notice of Motion dismissed; costs reserved.
Legal Topics
['leave to Appeal' 'abuse of Process' 'statement of Claim' 'indemnity Under Workers Compensation Legislation' 'insufficient Prospects of Success']
['practice and Procedure' 'workers Compensation' 'appeals'] ['leave to Appeal' 'abuse of Process' 'statement of Claim' 'indemnity Under Workers Compensation Legislation' 'insufficient Prospects of Success']

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Procedural Posture

Practice and Procedure Appeal Concerning Whether a Statement of Claim Was an Abuse of Process / Application for Leave to Appeal From Interlocutory Orders of Howie J Dated 24 March 2005

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from the interlocutory order setting aside the Statement of Claim.' 'Whether the Statement of Claim should be treated as relying on the presence of triorthocresyl phosphate as a critical aspect of the claim.' "Whether, after the Claimant's concession that the reference to triorthocresyl phosphate was surplusage, the orders below should be set aside and the impugned words struck out."]

Ratio Decidendi

Because the Claimant conceded that the reference to triorthocresyl phosphate in paragraph [6] of the Statement of Claim was not material to the cause of action it sought to pursue, the appeal should be allowed, the orders below set aside, and the impugned words struck out, leaving any further challenge to a fumes-based case to be brought by notice of motion.

Court Disposition

Leave to appeal granted; appeal allowed; orders of Howie J set aside; impugned words in paragraph [6] of the Statement of Claim struck out; Respondent's Notice of Motion dismissed; costs reserved.

Orders

  • ['Leave to appeal granted. Notice of appeal to be filed within seven days.' 'Appeal allowed.' 'Set aside the orders of Howie J on 24 March 2005.' 'Strike out the words "contained tirorthocresyl phosphate which" in par [6] of the Statement of Claim.' "Dismiss the Respondent's Notice of Motion filed on 20 April 2004."...