Winch v Amaca Pty Limited (discontinued 22.09.2011) and The Trustees of The Sydney Grammar School [2011] NSWDDT 8

Dust Diseases Tribunal New South Wales Medium Neutral Citation: Winch v Amaca Pty Limited (discontinued 22.09.2011) and The Trustees of The Sydney Grammar School [2011] NSWDDT 8 Hearing dates: 22 September 2011 Decision date: 07 October 2011 Before: Kearns J Decision: I dismiss the second defendant's motion filed on 13 September 2011. I order the second defendant to pay the plaintiff's costs. Catchwords: Dust Diseases Tribunal; notice of motion; claim for nervous shock; whether within the jurisdiction of the Tribunal; whether within the claims resolution process; whether Form 1 particulars should be struck out on the basis that nervous shock is not an asbestos-related condition Legislation Cited: Dust Diseases Tribunal Act 1989; Compensation to Relatives Act 1987; Dust Diseases Tribunal Regulation 2001, 2005 Cases Cited: Mangion v James Hardie & Co Pty Limited (1990) 20 NSWLR 100; Laminex (Australia)Pty Ltd (t/as Laminex Industries) v Coutts [2006] NSWCA 186; Seltsam Pty Ltd v Energy Australia [1999] NSWCA 89 Category: Procedural and other rulings Parties: Jessie Winch (Plaintiff) Amaca Pty Limited (First Defendant) (Discontinued 22 September 2011) The Trustees of Sydney Grammar School (Second Defendant) Representation: Mr Semmler QC instructed by Turner Freeman appeared for the plaintiff Mr T G R Parker SC instructed by Toomey Pegg Lawyers appeared for the second defendant File Number(s): DDT71/2010

Judgment

Introduction 1Mr Winch contracted mesothelioma and died as a result. The plaintiff is his daughter. As a result of his illness and death, the plaintiff suffered nervous shock. Mr Winch's illness and death and the plaintiff's nervous shock were caused by the negligence of the second defendant. Some or all of these facts may be contentious, but they may be taken to be established for the purposes of the application before me. That application is that the proceedings be dismissed for want of jurisdiction or that directions be given for the further conduct of the proceedings on the basis that the claims resolution process (CRP) does not apply to the proceedings.