O'Connor v D M Plumbing Pty Ltd [2009] NSWDDT 15

O'Connor v D M Plumbing Pty Ltd [2009] NSWDDT 15

The application failed because the defendant had filed its reply before the determination of the application, so the failure was not continuing for the purposes of cl 22(6), and because there was no evidence that the late reply caused substantial prejudice or substantial delay in a claim involving asbestos related pleural disease, a non-malignant disorder unlikely to have immediate and unexpected effects.

Jurisdiction
Australia
Judgment Date
01 June 2009
Procedural Posture
Application to Remove Claim From the Claims Resolution Process Under Cl 22(1)(c) of the Dust Diseases Tribunal Regulation 2007 / Ruling on Notice of Motion Filed on 19 May 2009
Outcome
The notice of motion was dismissed.
Legal Topics
['claims Resolution Process' 'failure to File Reply' 'substantial Prejudice' 'substantial Delay' 'costs of Application']
['dust Diseases' 'civil Procedure' 'costs'] ['claims Resolution Process' 'failure to File Reply' 'substantial Prejudice' 'substantial Delay' 'costs of Application']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application to Remove Claim From the Claims Resolution Process Under Cl 22(1)(c) of the Dust Diseases Tribunal Regulation 2007 / Ruling on Notice of Motion Filed on 19 May 2009

Legal Issues

  1. 1 ['Whether the claim should be removed from the claims resolution process because the defendant failed to file its reply in time.' "Whether the defendant's failure resulted in substantial prejudice to the plaintiff or substantial delay." 'Whether cl 22(6) precluded removal because the failure was not continuing.' 'Whether the Tribunal had jurisdiction to make an order for costs in relation to the application.']

Ratio Decidendi

The application failed because the defendant had filed its reply before the determination of the application, so the failure was not continuing for the purposes of cl 22(6), and because there was no evidence that the late reply caused substantial prejudice or substantial delay in a claim involving asbestos related pleural disease, a non-malignant disorder unlikely to have immediate and unexpected effects.

Court Disposition

The notice of motion was dismissed.

Orders

  • ['The notice of motion filed on 19 May 2009 is dismissed.']