(Re Mourikis) Comcare v Patrick Operations Pty Ltd [2010] NSWDDT 6

(Re Mourikis) Comcare v Patrick Operations Pty Ltd [2010] NSWDDT 6

The requested modification that Patrick Operations Pty Ltd not be assumed liable was refused because it would be inimical to the effective operation of the Claims Resolution Process; the contribution regime requires the determination to proceed as if the cross-defendant is liable, while preserving avenues to dispute apportionment, obtain evidence, and contend for variation of the standard presumption.

Jurisdiction
Australia
Judgment Date
30 March 2010
Procedural Posture
Dust Diseases Tribunal Claim and Cross Claim for Contribution or Indemnity / Ruling After Plaintiff's Claim Was Removed From the Claims Resolution Process and Mediation; Application Concerning Appointment of a Contributions Assessor and Modification of the Contribution Process
Outcome
The application by Patrick Operations Pty Ltd for modification of the contribution determination was declined; a Contributions Assessor was to be appointed and procedural directions were made.
Legal Topics
['claims Resolution Process' 'contribution and Indemnity' 'apportionment' 'appointment of Contributions Assessor' 'standard Presumptions']
['dust Diseases' 'civil Procedure'] ['claims Resolution Process' 'contribution and Indemnity' 'apportionment' 'appointment of Contributions Assessor' 'standard Presumptions']

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Procedural Posture

Dust Diseases Tribunal Claim and Cross Claim for Contribution or Indemnity / Ruling After Plaintiff's Claim Was Removed From the Claims Resolution Process and Mediation; Application Concerning Appointment of a Contributions Assessor and Modification of the Contribution Process

Legal Issues

  1. 1 ["Whether the Registrar should appoint a Contributions Assessor to determine the liability Comcare and Patrick Operations Pty Ltd should bear to pay the plaintiff's damages." 'Whether the reference to the Contributions Assessor should be modified under cl 22(7)(a)(ii) so that Patrick Operations Pty Ltd should not be assumed to be liable.']

Ratio Decidendi

The requested modification that Patrick Operations Pty Ltd not be assumed liable was refused because it would be inimical to the effective operation of the Claims Resolution Process; the contribution regime requires the determination to proceed as if the cross-defendant is liable, while preserving avenues to dispute apportionment, obtain evidence, and contend for variation of the standard presumption.

Court Disposition

The application by Patrick Operations Pty Ltd for modification of the contribution determination was declined; a Contributions Assessor was to be appointed and procedural directions were made.

Orders

  • ["In the plaintiff's action there will be verdict and judgment in accordance with par 1 of the Order. The President noted pars 2, 3, 4 and 5." 'The Registrar is to appoint a Contributions Assessor within 21 days.' 'The cross-defendant to file a reply within 14 days.' 'The apportionment is to be completed within 28...