Abercrombie v BHP Billiton Ltd (No. 3) [2009] NSWDDT 9

Abercrombie v BHP Billiton Ltd (No. 3) [2009] NSWDDT 9

The Tribunal had power and jurisdiction to remove the claim from the claims resolution process because cl 22(1)(a) and cl 24(7) operate independently and address different subject matters. Nothing in cl 22 requires an urgent application to be filed contemporaneously with the statement of claim or requires prior service of Form 1 particulars. Dr Miles' report satisfied the urgency criteria in cl 22(1)(a) and cl 22(2).

Jurisdiction
Australia
Judgment Date
20 March 2009
Procedural Posture
Application to Remove a Dust Diseases Claim From the Claims Resolution Process on the Ground of Urgency / Ruling After Reconsideration and Rehearing
Outcome
Application granted; the claim was removed from the claims resolution process.
Legal Topics
['claims Resolution Process' 'urgent Claims' 'tribunal Jurisdiction' 'filing in Conjunction With Statement of Claim' 'statement of Particulars' 'costs']
['dust Diseases' 'civil Procedure' 'statutory Interpretation'] ['claims Resolution Process' 'urgent Claims' 'tribunal Jurisdiction' 'filing in Conjunction With Statement of Claim' 'statement of Particulars' 'costs']

Case Brief

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Procedural Posture

Application to Remove a Dust Diseases Claim From the Claims Resolution Process on the Ground of Urgency / Ruling After Reconsideration and Rehearing

Legal Issues

  1. 1 ["Whether the plaintiff's application to remove the claim from the claims resolution process was filed in conjunction with the statement of claim within cl 24(7) of the Dust Diseases Tribunal Regulation 2007." 'Whether the Tribunal had jurisdiction under cl 22(1)(a) of the Dust Diseases Tribunal Regulation 2007 to remove the claim from the claims resolution process notwithstanding that the application was filed after the statement of claim.' 'Whether cl 22(1)(a) operates independently of cl 24(7).' 'Whether the medical evidence established that the claim was urgent.']

Ratio Decidendi

The Tribunal had power and jurisdiction to remove the claim from the claims resolution process because cl 22(1)(a) and cl 24(7) operate independently and address different subject matters. Nothing in cl 22 requires an urgent application to be filed contemporaneously with the statement of claim or requires prior service of Form 1 particulars. Dr Miles' report satisfied the urgency criteria in cl 22(1)(a) and cl 22(2).

Court Disposition

Application granted; the claim was removed from the claims resolution process.

Orders

  • ['Pursuant to cl 22(1)(a) of the Dust Diseases Tribunal Regulation this claim is removed from the claims resolution process.' 'The defendant will pay the costs of this application as agreed or assessed save for the costs of 16 March 2009.' 'By consent, consideration of the application of Div 4 of the Regulation is...