WALLABY GRIP (BAE) PTY LTD (IN LIQ) v ERARING ENERGY [2004] NSWCA 269

Reported Decision : 60 NSWLR 701

New South Wales Court of Appeal

CITATION : WALLABY GRIP (BAE) PTY LTD (IN LIQ) v ERARING ENERGY [2004] NSWCA 269 HEARING DATE(S) : 26 July 2004 JUDGMENT DATE : 12 August 2004

JUDGMENT OF : Mason P at 1; Sheller JA at 39; Ipp JA at 40 DECISION : Appeal upheld.

CATCHWORDS : Dust Diseases Tribunal Act 1989, s12A - Limitation Act 1969, s26 - Law Reform (Miscellaneous Provisions) Act 1946, s5(1)(c) - cross-claim for statutory contribution -- whether s26 of the Limitation Act applicable to claim for contribution in Tribunal - whether s12A of the Dust Diseases Tribunal Act applies to cross-claims for contribution such that no limitation period is applicable. (D) PARTIES : WALLABY GRIP (BAE) PTY LTD (IN LIQ) ERARING ENERGY (formerly sued as PACIFIC POWER) FILE NUMBER(S) : CA 40285/04 COUNSEL : Appellant: D J Russell SC Respondent: S G Campbell SC/ S M Kettle SOLICITORS : Appellant: Acuiti Legal Respondent: Goldrick Farrell Mullan

LOWER COURT Dust Diseases Tribunal JURISDICTION : LOWER COURT DDT 109/0/1 FILE NUMBER(S) : LOWER COURT Walker J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40285/04

MASON P SHELLER JA IPP JA

Thursday 12 August 2004

WALLABY GRIP (BAE) PTY LTD (In liquidation) v ERARING ENERGY (formerly sued as PACIFIC POWER)

BACKGROUND In May 2000 the plaintiff sued his former employer Eraring Energy in the Dust Diseases Tribunal claiming damages for asbestosis and asbestos-related pleural disease. The plaintiff's claim was settled by consent judgement for $102,500 entered on 6 November 2000. On 4 December 2000 the employer filed a cross-claim against four cross-defendants, leave to file having been granted on 6 November 2000. On 22 December 2003 the employer filed an amended cross-claim joining the appellant as a fifth cross-defendant, further leave having been granted on 22 September 2003.