Seltsam Pty Ltd & Anor v EnergyAustralia & Ors [1999] NSWCA 89

New South Wales Court of Appeal CITATION : Seltsam Pty Ltd & Anor v EnergyAustralia & Ors [1999] NSWCA 89 FILE NUMBER(S) : CA 40607/98 HEARING DATE(S) : 25 March 1999 JUDGMENT DATE : 12 April 1999

PARTIES : Seltsam Pty Ltd & Anor EnergyAustralia & Ors JUDGMENT OF : Priestley JA at 1; Giles JA at 2; Fitzgerald JA at 55

LOWER COURT JURISDICTION : Dust Diseases Tribunal LOWER COURT FILE NUMBER(S) : DDT 2/97 LOWER COURT JUDICIAL OFFICER : O'Meally J

Appellant - J D Hislop QC & G P F Rundle First Respondent - M F Holmes QC COUNSEL : & D Robinson Third & Fourth Respondents (Submitting) - N E Chen Appellants - Toomey Pegg Drevikovsky SOLICITORS : First Respondent - Goldrick Farrell Mullan Third & Fourth Respondents - Phillips Fox CATCHWORDS : DUST DISEASES TRIBUNAL - jurisdiction - cross-claim filed by defendant against third parties after judgment for plaintiff - filed pursuant to grant of extension of time under rules - whether "included in" the proceedings within s11(4) of the Dust Disease Tribunal Act. DECISION : (1) Grant leave to appeal from the decision of Maguire J given on 16 July 1998; (2)(a)(By majority) Dismiss the appeal; (b) Claimants/appellants pay the costs of the first opponent/respondent.

30 THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40607/98 DDT 2/97

PRIESTLEY JA GILES JA FITZGERALD JA

Monday 12 April 1999

SELTSAM PTY LTD & ANOR v ENERGYAUSTRALIA & ORS

JUDGMENT

1 PRIESTLEY JA: I agree with Giles JA.

2 GILES JA: The claimants apply for leave to appeal from a decision given by Maguire J, sitting as the Dust Diseases Tribunal ("the Tribunal"), on 16 July 1998, in which his Honour dismissed their applications to strike out a cross-claim against them filed by the first opponent in proceedings in the Tribunal ("the proceedings"). At issue was and is the jurisdiction of the Tribunal to entertain a cross-claim filed by a defendant after judgment in favour of the plaintiff.