Anderson v Ingram Shearing Pty Ltd and Third Parties [2001] NSWCC 188

Compensation Court of New South Wales

CITATION : Anderson v Ingram Shearing Pty Ltd and Third Parties [2001] NSWCC 188 John Frederick Anderson v PARTIES : Ingram Shearnig Pty Ltd and Third Parties MATTER NUMBER(S) : 39088 of 2000 JUDGMENT OF: Neilson J at 1 CATCHWORDS: :- third party contribution LEGISLATION CITED: CASES CITED: DATES OF HEARING: 13/11/01 EX TEMPORE JUDGMENT DATE : 11/13/2001

FOR APPLICANT: FOR RESPONDENT: LEGAL REPRESENTATIVES: Ms J S Champan instructed by McCulloch & Buggy appeared for the respondent. Mr P L Perry instructed by Graham Goldberg Partners appeared for the 7th and 9th third parties.

JUDGMENT: 1. The worker, Mr John Frederick Anderson of Young was a shearer. He commenced proceeding in this Court by application for determination which passed under the seal of the Court on 17 May 2000. It would appear that the application for determination was received prior to that time as a wages schedule passed under the seal of the Court on 9 May 2000. 2. On 7 August 2000, Messrs McCulloch & Buggy filed an answer. The filing of the answer put the matter in the Court's pending list and the venue requested was Sydney, although the applicant lived at Young and clearly did not shear sheep in Sydney. The matter first came on for hearing before his Honour Judge Duck on 9 February 2001. His Honour marked the matter "not reached". However, his Honour made an order granting leave to the respondent to issue third party notices to those employers who employed the applicant prior to 29 November 1999. 3. Under the Compensation Court Rules Pt 17 r 1, third party notices are to be filed within 28 days of service of the initiating process upon the employer. That is, they are to be filed at the same time as an answer ought be filed under Pt 11 r 3. Third party notices ought have been filed on 7 August 2000, they were not. However, Judge Duck granted leave to the respondent to file third party notices on 9 February 2001 and that order is authorised by Pt 1 r 6(2). 4. The matter, as a "not reached" matter, was given priority and was listed before me in Sydney on 11 April 2001. At the time that the matter was listed for hearing before me, no appearances or answers had been filed in the third party proceedings. Nevertheless, I proceeded to hear and determine the applicant's claim against the respondent, but I was quite cognisant of the fact of the outstanding third party notices. I proceeded to hear and determine the applicant's claim against the respondent bearing in mind my powers under Pt 17. Pt 17 r 5(1) is in the following terms: The Court may direct what part the third party shall take in the hearing of the proceedings and generally the extent to which the usual procedures of hearing shall be modified because of the joinder of the third party. Of more moment is Pt 17 r 6, which has a heading "Separate Hearings" . The rule is as follows: