(re Lloyd) Amaca Pty Limited v The National Institute of Dramatic Art; (re Lloyd) Amaca Pty Limited v Telstra Corporation Limited [2012] NSWDDT 1

Dust Diseases Tribunal New South Wales Medium Neutral Citation: (re Lloyd) Amaca Pty Limited v The National Institute of Dramatic Art; (re Lloyd) Amaca Pty Limited v Telstra Corporation Limited [2012] NSWDDT 1 Hearing dates: 22 May 2012 Decision date: 29 May 2012 Before: Kearns J Decision: Catchwords: Dust Diseases, Claims Resolution Process, urgent case removed from CRP, whether Divisions 4 and 5 of Part 4 should apply, whether statement of claim should be struck out Legislation Cited: Dust Diseases Tribunal Regulation 2007 Cases Cited: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Category: Interlocutory applications Parties: Gao Xiao-Fang (as legal personal representative of the Estate of the Late Andrew Evan Lloyd), Plaintiff Amaca Pty Limited, Defendant/Cross Claimant CC1 and CC2 The National Institute of Dramatic Art, Cross Defendant CC1 Telstra Corporation Limited, Cross Defendant CC2 Representation: Mr S Tzouganatos appeared for the plaintiff Ms W Strathdee appeared for the defendant/cross claimant Mr M Vesper appeared for the cross defendant CC1 Mr T Rowles appeared for the cross defendant CC2 File Number(s): DDT105/2011; DDT105/2011/CC1; DDT105/2011/CC2

Judgment

Background 1From about the age of 10, until about the age of 23, Mr Lloyd, on occasions, was present when members of his family were constructing residences. He assisted in the construction. He also assisted in the maintenance of the first of the residences. These things occurred from 1962 to 1975. His presence and his assistance during construction and maintenance exposed him to asbestos product of Hardies. As a result, he contracted mesothelioma. He brought proceedings in the Dust Diseases Tribunal against Amaca (responsible for the liabilities of Hardies) seeking damages for his injury. Mr Lloyd died in August 2011 and the proceedings have been continued by his widow. 2Amaca has cross-claimed against NIDA and Telstra. 3When he was about 22 or 23 years of age, Mr Lloyd did some part time work at NIDA. Amaca alleges that he was there exposed to asbestos and that that exposure caused or contributed to his mesothelioma and it seeks contribution from NIDA accordingly. 4When he was about 21 years of age, Mr Lloyd did some work for Overseas Telecommunications Commission (OTC). Amaca alleges he was there exposed to asbestos which caused or contributed to his mesothelioma and it seeks contribution from Telstra accordingly. Telstra is responsible for the liabilities of OTC. 5On 5 August 2011, Mr Lloyd applied to have his proceedings removed from the claims resolution process (CRP). The application was on the basis that his claim was urgent by reason of his deteriorating health. O'Meally P made that order. 6Another order made was that the plaintiff's evidence be taken on 15 August 2011. Regrettably he died that day and his evidence could not be taken. O'Meally P deferred consideration as to whether Divisions 4 and 5 of Part 4 of the Dust Diseases Tribunal Regulation 2007 (Regulation) should apply. That was deferred until after the plaintiff had given his evidence.