Feetam v Linfoot and Ors [2023] NSWDDT 1

Feetam v Linfoot and Ors [2023] NSWDDT 1

The seventh defendant did not establish exceptional circumstances or demonstrate on the balance of probabilities that a fair trial would not be possible. Although the death of Mr Binns and loss of business records were regrettable, such circumstances are not exceptional in the Tribunal; Paul Binns was available as a potential witness, employment records existed, further investigations had not been undertaken, and the evidence did not show that continuation of the proceedings against the seventh defendant would be manifestly unfair. Granting the stay would risk denying the plaintiff damages and would bring the administration of justice into disrepute amongst right-thinking people.

Jurisdiction
Australia
Judgment Date
28 April 2023
Procedural Posture
Dust Diseases Tribunal Proceedings Concerning Alleged Silica Related Lung Disease; Notice of Motion for Permanent Stay of Proceedings / Procedural Ruling on Seventh Defendant's Notice of Motion Filed 9 March 2023
Outcome
Notice of Motion dismissed with costs.
Legal Topics
['permanent Stay of Proceedings' 'delay' 'fair Trial' 'exceptional Circumstances' 'capacity to Give Instructions' 'loss of Evidence and Business Records']
['dust Diseases Litigation' 'civil Procedure' 'abuse of Process'] ['permanent Stay of Proceedings' 'delay' 'fair Trial' 'exceptional Circumstances' 'capacity to Give Instructions' 'loss of Evidence and Business Records']

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Procedural Posture

Dust Diseases Tribunal Proceedings Concerning Alleged Silica Related Lung Disease; Notice of Motion for Permanent Stay of Proceedings / Procedural Ruling on Seventh Defendant's Notice of Motion Filed 9 March 2023

Legal Issues

  1. 1 ['Whether proceedings against the seventh defendant, S J Binns, should be permanently stayed pursuant to section 67 of the Civil Procedure Act 2005 (NSW).' "Whether delay, the death of Mr Binns, Mrs Binns' dementia and lack of business records made a fair trial impossible or continuation of the proceedings manifestly unfair." 'Whether the continuation of the proceedings would constitute an abuse of process or bring the administration of justice into disrepute.']

Ratio Decidendi

The seventh defendant did not establish exceptional circumstances or demonstrate on the balance of probabilities that a fair trial would not be possible. Although the death of Mr Binns and loss of business records were regrettable, such circumstances are not exceptional in the Tribunal; Paul Binns was available as a potential witness, employment records existed, further investigations had not been undertaken, and the evidence did not show that continuation of the proceedings against the seventh defendant would be manifestly unfair. Granting the stay would risk denying the plaintiff damages and would bring the administration of justice into disrepute amongst right-thinking people.

Court Disposition

Notice of Motion dismissed with costs.

Orders

  • ['The Notice of Motion is dismissed.' "The applicant/seventh defendant is to pay the respondent/plaintiff's costs of the motion as agreed or assessed."]