Amaca Pty Limited v State Rail Authority of New South Wales; re Zaluga [2006] NSWDDT 40

Dust Diseases Tribunal of New South Wales

CITATION : Amaca Pty Limited v State Rail Authority of New South Wales; re Zaluga [2006] NSWDDT 40

PARTIES : Amaca Pty Limited (formerly known as James Hardie & Coy Pty Ltd) State Rail Authority of New South Wales

MATTER NUMBER(S) : 124/2002/1

JUDGMENT OF: Kearns J

Dust Diseases Tribunal :- 25B Notice CATCHWORDS: de minimis exposure asbestos mesothelioma

CASES CITED: State Rail Authority of New South Wales v Wallaby Grip Limited (1999) 18 NSWCCR 193; Walsh v Boral and Others (1996) 13 NSWCCR 653

DATES OF HEARING: 04/09/2006, 05/09/2006, 13/11/2006, 20/02/2007 EX TEMPORE JUDGMENT DATE : 09/05/2006

Mr T Ower (cross claimant) LEGAL REPRESENTATIVES: Mr T Rowles (cross defendant)

JUDGMENT: 2 Dust Diseases Tribunal of New South Wales Matter Number DDT124 of 2002/1 (Re: Wolodymir Zaluga) (Settled 10/07/2002) C.C: Amaca Pty Ltd (Formerly known as James Hardie & Coy Pty Ltd) v C.D: State Rail Authority of New South Wales C.D: Sydney Water Corporation (Settled 10/05/2004) 5 September 2006 RULING KEARNS J 1. Mr Rowles has made an application to amend his client's s 25B notice by the addition of the following item: "Item 22, de minimis exposure to asbestos dust is not causative of mesothelioma. State Rail Authority of New South Wales v Wallaby Grip Limited, vol 18 NSWCCR at par 103". Mr Ower objects to the application to amend the s 25B notice on the grounds that he is not in a position to meet this amendment. Presumably some orders were made in relation to the conduct of this matter before today and this ought to have been included in the s 25B notice in the first instance. The cross-claimant's s 25B notice has already been the subject of a ruling by me earlier today and the relevant part read "all exposure to asbestos is causative of the disease of mesothelioma". It should not have been assumed by the cross-defendant, as Mr Rowles informed me it was, although not precisely in those terms, that that would be knocked out. It might have been allowed, as it was, and on the assumption that it might have been allowed one would have thought that the cross-defendant could and would have taken one of two or even both of the following steps; first, an application for leave to re-argue Walsh v Boral insofar as it stands for the determination of the general issue that all exposure to asbestos is causative of mesothelioma, or two, the inclusion in the cross-defendant's own notice of a countervailing determination of an issue of a general nature. Neither was undertaken. Mr Rowles insists that he wishes the amendment. Mr Ower says he is not in a position to meet it. I am not in a position of conducting either case and do not know what is required in an evidentiary way to meet this although it would surprise me if anything were required, as if exposure were de minimis one would think it would not be causative, in accordance with the normal principle of law, that the law does not take account of trifles. Be that as it may, the cross-defendant wants the amendment. Mr Ower says he cannot meet it. I propose to allow it and I propose to allow Mr Ower such time as he needs, within reason, to meet it. **********