O'Connor v D M Plumbing Pty Ltd [2009] NSWDDT 15

Dust Diseases Tribunal of New South Wales

CITATION : O'Connor v D M Plumbing Pty Ltd [2009] NSWDDT 15

PARTIES : Arthur O'Connor (Plaintiff) D M Plumbing Pty Ltd (Defendant)

MATTER NUMBER(S) : 8347 of 2008

JUDGMENT OF: O'Meally P

CATCHWORDS: DUST DISEASES TRIBUNAL :- application to remove claim from claims resolution process - failure by defendant to file reply - reply filed three days after application to remove - no substantial prejudice or substantial delay - claim not removed

LEGISLATION CITED: Dust Diseases Tribunal Regulation 2007

DATES OF HEARING: 1 June 2009

DATE OF JUDGMENT: 1 June 2009

EX TEMPORE JUDGMENT DATE : 1 June 2009

A Giurtalis instructed by Rmb Compensation appeared for the Plaintiff LEGAL REPRESENTATIVES: J A de Greenlaw instructed by McCulloch & Buggy appeared for the Defendant

JUDGMENT:

RULING O'MEALLY P

1. This is an application by Arthur O'Connor seeking an order pursuant to cl 22(1)(c) of the Dust Diseases Tribunal Regulation 2007 (the Regulation). So far as relevant cl 22 provides: 22 Removal of certain claims from claims resolution process (1) A claim is removed from (and is therefore not subject to) the claims resolution process if: (a) … (b) … (c) the Tribunal determines on application by a party (the applicant) that the claim should be removed from the claims resolution process because another party to the claim has failed to comply with a requirement of the claims resolution process and that failure has resulted in substantial prejudice to the applicant or substantial delay. 2. The plaintiff's statement of claim was filed in the registry on 4 December 2008. On 5 March 2009 the plaintiff served Form 1 particulars as required by cl 24 of the Regulation. By reason of cl 26 it then became the defendant's obligation to file its reply on or before 21 April 2009. This application was filed on 19 May 2009, and three days later, on 22 May 2009, the defendant complied with its obligation under cl 26 and filed its reply.