Antoon Frans Broers v Australian Co-Operative Foods Limited and ors [2008] NSWDDT 38

Antoon Frans Broers v Australian Co-Operative Foods Limited and ors [2008] NSWDDT 38

Clause 52(1) of the Dust Diseases Tribunal Regulation 2007 is procedural only, binds defendants as to apportionment for cross-claim purposes, and does not operate to preclude a defendant from contesting liability to the plaintiff in the primary proceedings; defenses cannot be struck out solely due to a contributions assessment.

Jurisdiction
Australia
Judgment Date
15 December 2008
Procedural Posture
Civil / Ruling on Notice of Motion
Outcome
Motion dismissed
Legal Topics
['apportionment' 'notice of Motion' 'striking Out Defences' 'dust Diseases']
['civil Procedure'] ['apportionment' 'notice of Motion' 'striking Out Defences' 'dust Diseases']

Case Brief

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Procedural Posture

Civil / Ruling on Notice of Motion

Legal Issues

  1. 1 ['Whether paragraphs in defence denying liability should be struck out under Uniform Civil Procedure Rules r14.28(1) given the contribution assessment under Dust Diseases Tribunal Regulation 2007, clause 52(1)']

Ratio Decidendi

Clause 52(1) of the Dust Diseases Tribunal Regulation 2007 is procedural only, binds defendants as to apportionment for cross-claim purposes, and does not operate to preclude a defendant from contesting liability to the plaintiff in the primary proceedings; defenses cannot be struck out solely due to a contributions assessment.

Court Disposition

Motion dismissed

Orders

  • ["Plaintiff's motion of 24 November 2008 is dismissed." 'Plaintiff to pay the costs of Wallaby Grip Ltd, Wallaby Grip (BAE) Pty Ltd (in liquidation) and Amaca Pty Ltd.' 'Liberty to the other defendants to apply in respect of costs.']