Colombin v TransAdelaide [2001] NSWDDT 13

Dust Diseases Tribunal of New South Wales

CITATION : Colombin v TransAdelaide [2001] NSWDDT 13 Bruno Colombin PARTIES : TransAdelaid Commonwealth of Australia MATTER NUMBER(S) : 326 of 2000 JUDGMENT OF: Armitage J at 1 CATCHWORDS: Miscellaneous Matters :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 16 February 2001 EX TEMPORE JUDGMENT DATE : 02/16/2001

FOR PLAINTIFF: Mr MJ Joseph S.C. instructed by Alex Stuart & Associates LEGAL REPRESENTATIVES: FOR DEFENDANT: Mr Grant instructed by Moray & Agnew for the first defendant. Mr C R Hoeben S.C. instructed by Church & Grace fir the second defendant.

JUDGMENT: 1. This is a notice of motion by the first defendant, TransAdelaide, seeking orders relevantly that the Statement of Claim as against the first defendant be dismissed pursuant to Pt 13 r 5 and that the plaintiff or the second defendant be ordered to pay the costs of the first defendant. The matter is not without difficulty as legal questions of some complexity are involved, but all the parties seek that I give an ex tempore judgment on the motion because the plaintiff suffers from mesothelioma, which I gather it is common ground is a life-threatening condition from which the plaintiff may shortly die. 2. It is necessary in order to understand the motion firstly to refer to the Statement of Claim. Although leave has not been given in accordance with the Supreme Court rules to rely on it, the parties have agreed that the Statement of Claim which I should consider is the further amended Statement of Claim filed on 4 January 2001. It alleges firstly that the first defendant, TransAdelaide, is a body corporate pursuant to statute, the successor in title to the Department of Railways (South Australia) and entitled to sue and be sued by its corporate name and style and it goes on to assert that the second defendant is sued pursuant to statute, referring no doubt to the Judiciary Act 1903 (C'wealth). 3. It asserts that between 1956 and 1964 the Department of Railways employed the plaintiff as a fitter pursuant to the South Australian Railways Act 1936 (SA). It then asserts that the plaintiff was exposed to while in the employment of the Department and inhaled asbestos dust and fibre and that in this period the plaintiff worked at premises located at Peterborough, being a non-metropolitan area within the meaning of that term in Sch 1 of the Railways (Transfer Agreement) 1975 (SA) and/or the Railways Agreement (South Australia) Act 1975 (Commonwealth). It then asserts that the plaintiff's work at Peterborough was in connection with the operation of non-metropolitan railways or in association with those railways is defined by Sch 1 of the Railways (Transfer Agreement) Act 1975 (SA) and/or the Railways Agreement (South Australia) Act 1975 (C'Wealth). 4. It goes on to assert that the plaintiff as a result of his exposure and inhalation of asbestos suffered injury, loss and damage and that this was caused by the negligence of the Department of Railways (SA). Further or in the alternative it alleges that liability for such negligence was transferred from the Department of Railways (SA) and accepted by the second defendant pursuant to s 8 of the Railways Agreement (South Australia) Act 1975 (C'Wealth) and/or s 8 of the Railways (Transfer Agreement) Act 1975 (SA). 5. The argument of the first defendant, TransAdelaide, is that the last alternative assertion in the statement of claim in par 9 thereof is as a matter of law the only one available to the plaintiff, so that summary dismissal of the Statement of Claim as against the first defendant, TransAdelaide, is appropriate under Pt 13 r 5 of the Supreme Court Rules, which of course provides relevantly: (1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings - (a) no reasonable cause of action is disclosed: the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings. 6. It falls to me therefore to determine whether any reasonable cause of action is disclosed by plaintiff's further amended Statement of Claim insofar as it relates to the first defendant, TransAdelaide. I was not referred to any authorities on Pt 13 r 5, but it is I think uncontroversial that, as Ritchie's Supreme Court Practice notes at page 2325 in par [13.0.1] at the commencement of Pt 13, a party will not be denied a trial unless the absence of a cause of action or defence is clearly demonstrated (General Steel Industries Inc v Commissioner for Railways (NSW) 112 CLR 125) and that once it is apparent that there is a real question to be determined, the Court will not deal with the matter summarily (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91). 7. It seems to me that I must determine that the plaintiff has no arguable case against the first defendant, assuming for purposes of the strike out motion only that the factual assertions in the Statement of Claim are true, as I am required to by authority, before the strike out motion, insofar as it relies on SCR Pt 13 r 5, may succeed. 8. The motion relies alternatively on Pt 15 r 26 which reads relevantly: (1) where a pleading - (a) discloses no reasonable cause of action or defence or any other case appropriate to the nature of the pleading: the Court may at any stage of the proceedings, on terms, order that the whole or any part of the pleading be struck out. 9. Again I was referred to no authority by counsel as to the proper approach to this provision, but again, as seems to me to be uncontroversial, the notes in Ritchie's Supreme Court Practice are appropriate guidance in par [15.26.1A] on pages 2372-3. General Steel is again referred to along with other authorities in support of the proposition that: Ordinarily the power to strike out pleadings as disclosing no reasonable cause of action should be exercised only in plain and obvious cases. 10. A number of other authorities, notably Dey, are cited for the further proposition that: The power to strike out should not be exercised in cases where there is a real issue to be tried, whether it is one of fact or law [emphasis added]. 11. These statements, supported as they seem to me to be by authority, seem again to be an indication that I should not accede to the motion if I think that the plaintiff has an arguable case against the first defendant, even if it may not ultimately be likely to succeed. 12. In order to understand Mr Grant's submissions for the first defendant it is necessary to go to the legislative scheme which he kindly outlined for me. First, the South Australian Railways Commissioners Act 1936 provides in s 6 that: (1) For the purpose of carrying this Act into execution, there shall be a Commissioner by the name of `the South Australian Railways Commissioner'. (2) The Commissioner shall be a body corporate and shall have perpetual succession and a common seal, and shall be capable in law of suing and being sued, and shall have power to take, purchase, sell, lease and hold lands, tenements and hereditaments, common goods, chattels, and other properly, for any of the purposes of this Act, subject to the restrictions contained in this Act. 13. The second statute is the State Transport Authority Act 1974 (SA) which provides in s 5 relevantly that: (1) There shall be an authority entitled `The State Transport Authority'. (2) The authority - (a) shall be a body corporate with perpetual succession and a common seal; (b) shall be capable of suing and of being sued; (c) shall be capable of holding, dealing with, and disposing of real and personal property; (d) shall be capable of acquiring or incurring any other rights or liabilities; (e) shall hold all its property for or on behalf of the Crown; (f) shall have the powers, duties, functions that authorities conferred, imposed or prescribed by or under this Act. 14. The next statute is the South Australian Railways Commissioners Act Amendment Act 1975 (SA) which provides relevantly in s 6: Sections 6 to 11 (inclusive) of the principal Act [effectively defined in s 1(2) as the South Australian Railways Commissioners Act 1936 - 1974] are repealed and the following section is enacted and inserted in their place:- 6(1) The body corporate known as `The South Australian Railways Commissioner' and in existence under the South Australian Railways Commissioner's Act 1936-1974, immediately before the commencement of the South Australian Railways Commissioner's Act Amendment Act 1975 is hereby dissolved. (2) All real and personal property, rights, powers, duties and liabilities of the Commissioner are hereby transferred to and vested in the authority [emphasis added]. 15. The next statute is the Passenger Transport Act 1994 which provides relevantly in sch 4 cl 1 that: (1) The following Acts are repealed: ......... (b) The State Transport Authority Act 1974. Sch 2 cl 1 provides relevantly: