(Re Mourikis) Comcare v Patrick Operations Pty Ltd [2010] NSWDDT 6

Dust Diseases Tribunal of New South Wales

CITATION : (Re Mourikis) Comcare v Patrick Operations Pty Ltd [2010] NSWDDT 6

PARTIES : Comcare (Cross-Claimant) Patrick Operations Pty Ltd (Cross-Defendant)

MATTER NUMBER(S) : 365/09/1

JUDGMENT OF: O'Meally P

CATCHWORDS: DUST DISEASES TRIBUNAL :- claim removed from Claims Resolution Process - mediation - whether provisions on apportionment should apply subject to modification

LEGISLATION CITED: Dust Diseases Tribunal Regulation 2007 Dust Diseases Tribunal (Standard Presumptions - Apportionment) Order 2007

DATES OF HEARING: 30 March 2010

DATE OF JUDGMENT: 30 March 2010

EX TEMPORE JUDGMENT DATE : 30 March 2010

J Bird of Blake Dawson appeared for the Cross-Claimant LEGAL REPRESENTATIVES: J A D deGreenlaw instructed by McCulloch & Buggy appeared for the Cross-Defendant

JUDGMENT:

RULING O'MEALLY P 1. On 14 December 2009, Christos Mourikis issued a statement of claim seeking damages from Comcare. He alleged that in the course of his employment as a stevedore, he was exposed to asbestos dust and fibre, and as a consequence contracted malignant mesothelioma of the pleura. His claim has been settled.

2. On 19 February 2010, Comcare issued a cross-claim against Patrick Operations Pty Ltd (Patricks), seeking contribution or indemnity saying that Patricks is a person who, if sued by the plaintiff, would have been liable to him.

3. The plaintiff's claim and the defendant's cross-claim became subject to the Dust Diseases Tribunal Regulation 2007 (the Regulation). On 29 March 2010, the plaintiff's claim was removed from the Claims Resolution Process (CRP) established by the Regulation. It was removed pursuant to cl 22(1)(a) of the Regulation on the ground of urgency. At that time, mediation was ordered and as, a consequence of that mediation, agreement has been reached between the plaintiff and the defendant. Consideration of the application of Div 5 of the Regulation, which relates to contribution, was deferred.