Gulliver v Insurers Guarantee Fund - NEM General Insurance Association Limited (in liquidation) as Insurer of C A Freestone Pty Limited and Insurers' Guarantee Fund - NEM General Insurance Association Limited (In Liquidation) as Insurer of A McBurney and Co Pty Limited (In liquidation) and NZI Insurance Australia Limited [2005] NSWDDT 47

Dust Diseases Tribunal of New South Wales

CITATION : Gulliver v Insurers Guarantee Fund - NEM General Insurance Association Limited (in liquidation) as Insurer of C A Freestone Pty Limited and Insurers' Guarantee Fund - NEM General Insurance Association Limited (In Liquidation) as Insurer of A McBurney and Co Pty Limited (In liquidation) and NZI Insurance Australia Limited [2005] NSWDDT 47

PARTIES : John Gulliver v Insurers Guarantee Fund - NEM General Insurance Association Limited (in liquidation) as Insurer of C A Freestone Pty Limited and Insurers' Guarantee Fund - NEM General Insurance Association Limited (in liquidation) as Insurer of A McBurney and Co Pty Limited (In liquidation) and NZI Insurance Australia Limited

MATTER NUMBER(S) : 223 of 1993

JUDGMENT OF: Duck J at 1

CATCHWORDS: Miscellaneous Matters :-

Napier v Resi Corporation and Others 2205 NSWDDT 12; CASES CITED: Meggitt Overseas Ltd and Ors v Girdavic 1998 16 NSWCCR373

DATES OF HEARING: 19 September 2005

EX TEMPORE JUDGMENT DATE : 09/19/2005

FOR PLAINTIFF: Mr I Simic Taylor and Scott FOR DEFENDANT LEGAL REPRESENTATIVES: Mr S Murray Hunt and Hunt (First defendant) Mr S Kennedy Turks Legal (Second defendant) Mr D Andersen Church and Grace (Third defendant)

JUDGMENT:

Dust Diseases Tribunal of New South Wales Matter Number DDT223 of 1993 John Gulliver v Insurers Guarantee Fund - NEM General Insurance Association Ltd (In Liquidation) As Insurer of C A Freestone Pty Ltd and Others 19 September 2005 JUDGMENT DUCK J 1. The plaintiff moves the Court for an order granting him leave to discontinue the proceedings. He seeks related orders in effect excusing him from the effects of having to pay the defendant's costs. The proceedings were commenced twelve years ago, that is to say on 26 August 1993. 2. My limited understanding of the plaintiff's condition is that he suffers from very mild symptoms. I am told and I accept that earlier this year an application was made to the President that the hearing of his case be adjourned, which application was refused. In making submissions in support of the present application the plaintiff's solicitor, Mr Simic, made it clear that the probability was that once these proceedings were discontinued the plaintiff would seek to commence some fresh proceedings availing himself of the changes in the law made since he commenced the present case. 3. As was submitted by Mr Andersen for the third defendant the practical effect of what the plaintiff is trying to do is to circumvent the refusal by Judge O'Meally to permit him to have an adjournment. In exchanges between plaintiff's solicitor and the Bench I made it clear that in the prevailing circumstances I did not see that the plaintiff was entitled to any anodyne order as to costs. Mr Simic sought a short adjournment, obtained fresh instructions and ultimately the position has been reached where the plaintiff wishes to discontinue the proceedings and he will accept whatever costs order is made. 4. Where a person has commenced a case and had defendants actively engaged to protect their interests for twelve years if he chooses to discontinue in effect to meet his own convenience, then I think the inevitable consequence of such discontinuance must be that he should pay the cost of the other parties. 5. I therefore grant leave to discontinue and order the plaintiff to pay the defendants' costs. 6. I vacate the hearing date of 11 October 2005. 7. If I may finish these reasons by saying one other thing. I was handed a copy of the judgment in Napier v Resi Corporation and Others 2005 NSW DDT12 a judgment of the Judge O'Meally P. In it he refers to Meggitt Overseas Ltd & Ors v Girdavic 1998 16 NSWCCR 373. At 387 Mason J A makes a remark, the last sentence of which might reasonably be called to mind at present, and that is this: A Court of Law cannot choose to favour one class of litigants over another without lawful authority. 8. I think to approach the matter as the plaintiff would have me approach it would be to contravene that principle. Mr I Simic of Taylor and Scott appeared for the plaintiff Mr S Murray instructed by Hunt and Hunt appeared for the first defendant Mr S Kennedy instructed by P W Turk and Associates appeared for the second defendant Mr D Andersen instructed by Church and Grace appeared for the third defendant