Wearne v Allied Mills Pty Ltd [2007] NSWDDT 32

Dust Diseases Tribunal of New South Wales

CITATION : Wearne v Allied Mills Pty Ltd [2007] NSWDDT 32

PARTIES : Carlene Wearne (As Legal Personal Representative of the Estate of the late Gregory John Wearne) (Plaintiff) Allied Mills Pty Ltd (Defendant)

MATTER NUMBER(S) : 7238 of 2007

JUDGMENT OF: O'Meally P

CATCHWORDS: Dust Diseases Tribunal :-

LEGISLATION CITED: Dust Diseases Tribunal Regulation 2007 Compensation to Relatives Act 1897

DATES OF HEARING: 18 December 2007

DATE OF JUDGMENT: 18 December 2007

EX TEMPORE JUDGMENT DATE : 18 December 2007

Mr A J Gardiman of Turner Freeman appeared for the Plaintiff LEGAL REPRESENTATIVES: Mr M R Cash of Mallesons Stephen Jaques appeared for the Defendant Miss C M Wearne of Middletons Lawyers appeared for the Cross-Defendant

JUDGMENT:

RULING O'MEALLY P 1. On 30 August 2007 this claim was removed from the Claims Resolution Process pursuant to cl 22(1)(a) of the Dust Diseases Tribunal Regulation 2007. An order was made then that the plaintiff's evidence be taken at 9.30 am on 31 August 2007. Mr Wearne died on 31 August 2007 before his evidence was taken.

2. At the time the application was made on 30 August 2007, Miss Strathdee appeared amicus curiae for the defendant. As a consequence of the restricted nature of her appearance I ordered that a copy of the order removing the claim from the Claims Resolution Process be served upon the defendant by facsimile transmission. On 3 September 2007 the defendant filed an appearance. On 22 October 2007 orders were made giving leave to file an amended statement of claim substituting Mr Wearne's legal personal representative as plaintiff. Certain other orders were made on the same date. On neither 30 August 2007 nor 22 October 2007 did I make orders, nor consider whether it was appropriate to make orders, under cl 22(7) of the Regulation. Such orders could not have been made on 30 August 2007 because there was no defendant before me.