(re: Heuving)) Cumberland Newspapers v Seltsam Pty Limited and Ors [2005] NSWDDT 56

Dust Diseases Tribunal of New South Wales

CITATION : (re: Heuving)) Cumberland Newspapers v Seltsam Pty Limited and Ors [2005] NSWDDT 56

(re: Hendrik Heuving) Cumberland Newspapers Division of Nationwide News Pty Limited PARTIES : Seltsam Pty Limited Wallaby Grip (BAE) Pty Limited (in liquidation)

MATTER NUMBER(S) : DDT346 of 2003/1

JUDGMENT OF: Duck J

CATCHWORDS: Miscellaneous Matters :- Costs - Indemnity costs

DATES OF HEARING: 21 October 2005

EX TEMPORE JUDGMENT DATE : 10/21/2005

FOR CROSS CLAIMANT: Mr M F Holmes QC instructed by Moroney Betts LEGAL REPRESENTATIVES: FOR CROSS DEFENDANT: Mr I C Sinnadurai of Makinson and D'Apice

JUDGMENT:

2 Dust Diseases Tribunal of New South Wales Matter No DDT346 of 2003/1 (Re: Hendrik Heuving) (Settled 14/11/2003) C.C.: Cumberland Newspapers Division of Nationwide News Pty Limited v C.D.: Seltsam Pty Limited and C.D.: Wallaby Grip (BAE) Pty Limited (in liquidation) 21 October 2005

RULING DUCK J 1. The Tribunal has before it two motions filed by a cross-defendant seeking review of an order by the Registrar which in effect held that the outstanding proceedings, namely cross-claims in each matter should remain subject to the directions of the Tribunal and not be dealt with pursuant to the new scheme set up by amendments to the Dust Diseases Tribunal Act passed this year. Late yesterday the applicant in each case notified the respondents that it did not wish to pursue the motion in either matter. The applicant was content for the motion to be dismissed and that an order be made that the applicant should pay the respondent's costs. In the circumstances the respondent seeks an order for indemnity costs on the footing that the motions have been a complete waste of time. 2. On the one hand the fact that the applicant gave up without firing a shot in anger may suggest that indeed the motions were a complete waste of time. On the other hand we have not had the argument which would demonstrate that fact. If it were apparent that the motions were a waste of time then an indemnity costs order might reasonably follow. Short of having the argument it is hard to draw that conclusion. The respondent in each case is clearly entitled to an order for party and party costs and I propose to make that order. I am not satisfied that there are grounds to make an order for indemnity costs. 3. I do propose to add a rider for the assessor of costs that I have the view that it was reasonable to retain senior counsel on the basis that he have one brief in respect of the two matters. The assessment of costs will be a matter for the assessor. 4. The orders then are that in each case the motion is dismissed. The applicant is to pay the respondent's costs. For the benefit of the costs assessor I note that it is the view of the Tribunal for what it is worth that it is reasonable for those costs to include counsel's fees for senior counsel on the basis of a single brief fee for the two matters, that is in the matter of Heuving, this matter and also the matter of Moorhead 205/03/01, I decline to order indemnity costs. 5. In the matter of Heuving I amend the order so that it is to this effect. The applicant to pay the costs of Cumberland Newspapers, a division of Nationwide News Pty Limited. And in the matter of Moorhead, applicant to pay State Rail's costs. Mr M F Holmes QC instructed by Moroney Betts appeared for the cross-claimant Mr I C Sinnadurai of Makinson and D'Apice appeared for the first cross-defendant