Salucci v Amaca Pty Ltd [2009] NSWDDT 33

Dust Diseases Tribunal of New South Wales

CITATION : Salucci v Amaca Pty Ltd [2009] NSWDDT 33

PARTIES : Serafina Salucci (Respondent Plaintiff) Amaca Pty Ltd (Applicant Defendant)

MATTER NUMBER(S) : 176 of 2009

JUDGMENT OF: O'Meally P

CATCHWORDS: DUST DISEASES TRIBUNAL :- whether issue of causation raised at mediation - mediator's certificate - Defendant's Reply - whether facts reasonably discoverable by defendant before serving Reply

LEGISLATION CITED: Dust Diseases Tribunal Regulation 2007

CASES CITED: Stavar v Caltex Refineries (NSW) Pty Ltd (2008) 6 DDCR Eaton v Carrier Air Conditioning Pty Ltd (2004) 1 DDCR 716

DATES OF HEARING: 16 December 2009

DATE OF JUDGMENT: 16 December 2009

EX TEMPORE JUDGMENT DATE : 16 December 2009

P C B Semmler QC instructed by Turner Freeman appeared for the Plaintiff LEGAL REPRESENTATIVES: G M Watson SC instructed by DLA Phillips Fox appeared for the Defendant

JUDGMENT:

RULING O'MEALLY P 1. This is a Notice of Motion by Amaca Pty Ltd (Amaca) in proceedings brought against it by Serafina Salucci. For convenience sake I will refer to Amaca, though the applicant on this motion, as the defendant and Mrs Salucci as the plaintiff.

2. The plaintiff claims damages from the defendant alleging that, in the course of home renovations, she was exposed to asbestos which emanated from products manufactured by its predecessor. Her exposure is acknowledged to have been slight. She suffers from malignant mesothelioma. That is not in dispute.

3. Pursuant to the requirements of the Dust Diseases Tribunal Regulation 2007 (the Regulation) the defendant participated in a mediation conducted by Mr J A McIntyre SC. He provided a certificate in which, relevantly, the following appears: The parties have agreed that the following issues exist: - a. Whether the plaintiff was exposed to the defendant's product. b. Damages. The parties were unable to agree on the issue of causation. The plaintiff asserted that the defendant's reply admitted that any breach of duty had caused the relevant damage. The defendant disputed this, asserting that it had reserved the right to file an amended reply after receipt by it of a report from Dr Gardiner, indicating that, since receipt by it of a report from that doctor, causation was a matter in dispute. All facts relevant to these issues remain in dispute. 4. Clause 37 of the Regulation relevantly provides: (2) The mediator is to certify as to what the parties have agreed as the issues in dispute and the facts relevant to those issues and is to file a certificate with the Registrar and provide a copy of the certificate to each of the parties. (3) When a claim that is the subject of a mediator's certificate under this clause is before the Tribunal for determination: (a) the Tribunal must determine the claim on the basis that the issues agreed to be in dispute are the only issues in dispute between the parties and on the basis of the agreed facts, as certified by the mediator, and (b) the parties are not permitted to raise any other issue as an issue in dispute between the parties.