(Re: Mowbray) Brambles Holdings Ltd v British American Tobacco Services Ltd [2002] NSWDDT 16

(Re: Mowbray) Brambles Holdings Ltd v British American Tobacco Services Ltd [2002] NSWDDT 16

The Tribunal refused to rescind or set aside the order granting Brambles leave to issue the cross-claim because s 13(6) was not appropriately invoked and would not authorise the orders sought, the cross-claim was conceded to be an ancillary matter within the Tribunal's jurisdiction, and BAT had not shown on the material or arguments presented any discretionary ground warranting the relief sought. The absence of notice to BAT and the plaintiff's death did not establish that Brambles deliberately excluded BAT or that irremediable prejudice justified revocation of the leave order.

Jurisdiction
Australia
Judgment Date
17 September 2002
Procedural Posture
Motion in Dust Diseases Tribunal Proceedings Seeking Reconsideration, Rescission, Setting Aside or Discharge of Leave to Issue a Cross Claim / Application by Cross Defendant After Cross Claim Was Filed Following the Plaintiff's Death
Outcome
BAT's notice of motion was dismissed.
Legal Topics
['leave to Issue Cross Claim' "cross Claim After Plaintiff's Death" 'tribunal Jurisdiction Over Ancillary or Related Matters' 'reconsideration or Rescission of Tribunal Decision' 'setting Aside or Varying Orders' 'contribution or Indemnity']
['dust Diseases' 'civil Procedure'] ['leave to Issue Cross Claim' "cross Claim After Plaintiff's Death" 'tribunal Jurisdiction Over Ancillary or Related Matters' 'reconsideration or Rescission of Tribunal Decision' 'setting Aside or Varying Orders' 'contribution or Indemnity']

Case Brief

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Procedural Posture

Motion in Dust Diseases Tribunal Proceedings Seeking Reconsideration, Rescission, Setting Aside or Discharge of Leave to Issue a Cross Claim / Application by Cross Defendant After Cross Claim Was Filed Following the Plaintiff's Death

Legal Issues

  1. 1 ['Whether the Tribunal should reconsider or rescind under s 13(6) of the Dust Diseases Tribunal Act its decision granting Brambles leave to issue a cross-claim against BAT.' 'Whether the Tribunal should set aside or discharge the order granting leave to issue the cross-claim under Pt 40 r 1 or Pt 40 r 9 of the Supreme Court Rules.' "Whether BAT's asserted prejudice from being unable to cross-examine the deceased plaintiff justified discretionary relief." "Whether Brambles' cross-claim was an ancillary matter within the Tribunal's jurisdiction."]

Ratio Decidendi

The Tribunal refused to rescind or set aside the order granting Brambles leave to issue the cross-claim because s 13(6) was not appropriately invoked and would not authorise the orders sought, the cross-claim was conceded to be an ancillary matter within the Tribunal's jurisdiction, and BAT had not shown on the material or arguments presented any discretionary ground warranting the relief sought. The absence of notice to BAT and the plaintiff's death did not establish that Brambles deliberately excluded BAT or that irremediable prejudice justified revocation of the leave order.

Court Disposition

BAT's notice of motion was dismissed.

Orders

  • ['The notice of motion is dismissed.' "BAT should pay Brambles' costs of and incidental to the notice of motion as agreed or assessed, including costs incurred on the issue of the Tribunal's jurisdiction to hear the cross-claim only until Brambles was informed that BAT no longer sought the cross-claim be struck out...