Harper v Sydney Local Health District [2020] NSWDDT 9

Harper v Sydney Local Health District [2020] NSWDDT 9

The mediation required by the Claims Resolution Process had not been completed by 10 August 2020 and there was no prospect of it being held in the near future. That continuing failure to comply with the Claims Resolution Process had resulted in substantial delay and substantial prejudice to the plaintiff, who had a terminal illness and risked losing his future loss of earning capacity claim if the proceedings were not concluded in his lifetime. The defendant had been notified of and requested to remedy the failure. The proceedings should therefore be removed from the Claims Resolution Process under cl 20(1)(c).

Jurisdiction
Australia
Judgment Date
19 November 2020
Procedural Posture
Dust Diseases Tribunal Proceedings Involving Asbestos Related Disease Claim / Plaintiff's Motion to Remove Proceedings From the Claims Resolution Process
Outcome
Plaintiff's motion granted; proceedings removed from the Claims Resolution Process and listed for directions; costs reserved.
Legal Topics
['claims Resolution Process' 'removal From Claims Resolution Process' 'mediation Delay' 'case Management' 'malignant Pleural Mesothelioma' 'malignant Peritoneal Mesothelioma']
['procedure' 'dust Diseases' 'asbestos Related Disease Claims'] ['claims Resolution Process' 'removal From Claims Resolution Process' 'mediation Delay' 'case Management' 'malignant Pleural Mesothelioma' 'malignant Peritoneal Mesothelioma']

Case Brief

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Procedural Posture

Dust Diseases Tribunal Proceedings Involving Asbestos Related Disease Claim / Plaintiff's Motion to Remove Proceedings From the Claims Resolution Process

Legal Issues

  1. 1 ['Whether the proceedings should be removed from the Claims Resolution Process pursuant to cl 20(1)(c) of the Dust Diseases Tribunal Regulation 2019 (NSW).' 'Whether a failure to conclude mediation within the Claims Resolution Process resulted in substantial prejudice to the plaintiff or substantial delay.' 'Whether the Tribunal was satisfied under cl 20(6) that the failure was continuing and that the defendant had been notified of and requested to remedy the failure.']

Ratio Decidendi

The mediation required by the Claims Resolution Process had not been completed by 10 August 2020 and there was no prospect of it being held in the near future. That continuing failure to comply with the Claims Resolution Process had resulted in substantial delay and substantial prejudice to the plaintiff, who had a terminal illness and risked losing his future loss of earning capacity claim if the proceedings were not concluded in his lifetime. The defendant had been notified of and requested to remedy the failure. The proceedings should therefore be removed from the Claims Resolution Process under cl 20(1)(c).

Court Disposition

Plaintiff's motion granted; proceedings removed from the Claims Resolution Process and listed for directions; costs reserved.

Orders

  • ['These proceedings are removed from the Claims Resolution Process pursuant to cl 20(1)(c) of the Dust Diseases Tribunal Regulation 2019 (NSW).' 'The proceedings are listed for directions before me at 2.00pm on 20 November 2020.' 'Costs reserved.']