State of New South Wales v Howard Smith Limited (Re Neil Murphy) [2019] NSWDDT 3

Dust Diseases Tribunal New South Wales Medium Neutral Citation: State of New South Wales v Howard Smith Limited (Re Neil Murphy) [2019] NSWDDT 3 Hearing dates: 21 March 2019 Date of orders: 25 March 2019 Decision date: 25 March 2019 Before: Russell SC DCJ Decision: (1) Order that Svitzer Towage Holdings Pty Limited be added as a seventh cross-defendant to the first cross-claim. (2) Order that the cross-claimant file and serve an amended first cross-claim by 1 April 2019. (3) Grant leave to the cross-claimant to file by 1 April 2019 a Notice of Discontinuance in relation to its claim against the fifth cross-defendant. (4) Order the cross-claimant to pay the costs of the fifth cross-defendant and of Svitzer Towage Holdings Pty Limited of the Notice of Motion filed on 29 January 2019. (5) Order the cross-claimant to pay 50% of the balance of the fifth cross-defendant's costs of the first cross-claim. Catchwords: CONTRIBUTION – cross-claimant sued incorrect cross-defendant – leave granted to discontinue – costs – both cross-claimant and cross-defendant labouring under same mistaken belief about identity of employer - power to otherwise order – Rules 12.1, 42.19 Uniform Civil Procedure Rules 2005

CONTRIBUTION – additional of cross-defendant – not appropriate to substitute added cross-defendant for cross-defendant wrongly sued - Rules 6.23, 6.24, 6.29 Uniform Civil Procedure Rules 2005 Legislation Cited: Dust Diseases Tribunal Regulation 2013 Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Fordyce v Fordham [2006] NSWCA 274; (2006) 62 NSWLR 67 Category: Procedural and other rulings Parties: State of New South Wales (Cross-Claimant) Howard Smith Limited (Fifth Cross-Defendant) Svitzer Towage Holdings Pty Ltd (Prospective Seventh Cross-Defendant) Representation: Counsel: J Sharpe (Cross-Claimant) G J Parker SC (Fifth Cross-Defendant) B Cussen solicitor (Prospective Seventh Cross-Defendant)