• IE
Choose your location?
  • Global Global
  • Australia
  • France
  • Germany
  • Ireland
  • Italy
  • Poland
  • Qatar
  • Spain
  • UAE
  • UK

DWF successfully defends client on jurisdictional issue in the NSW Dust Diseases Tribunal

02 December 2021

DWF were recently successful in defending an Interlocutory Application brought in the New South Wales Dust Diseases Tribunal.

The nature of the dispute the subject of the Application was quite narrow in focus. The Plaintiff Applicant sought the following orders from the Tribunal:

  1. Order that pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) that the Australian Securities and Investments Commission forthwith reinstate various companies to the Register.
  2. Declare pursuant to s 601AH(3)(c) and (d) of the Corporations Act 2001 (Cth) that  the Dust Diseases Tribunal proceedings were validly commenced and pending as against deregistered companies.

Consequently, the Tribunal was asked to determine whether it had jurisdiction to make those Orders.

Background

The late Mr McDonald allegedly contracted small cell lung cancer and chronic obstructive pulmonary disease as a result of dust exposure during various periods of employment. In seeking damages for his condition, Mr McDonald commenced proceedings against 11 defendants. At the time the Statement of Claim was filed, three of the defendant companies had already been deregistered.

Reinstatement of a Deregistered Company

Section 601AH of the Corporations Act 2001 (Cth) deals with the reinstatement of deregistered companies. The plaintiff submitted that the Tribunal had jurisdiction to make an order under s 601AH(2) of the Corporations Act that ASIC to reinstate the three deregistered defendants.

His Honour Judge Russell SC, in determining the dispute, held:

  • The Tribunal is not a "Court" within the definition of s 58AA of the Corporations Act.
  • The Tribunal had not been given power to exercise any jurisdiction expressly given to the Supreme Court by statute, such as the power conferred by s 601AH(2) of the Corporations Act.
  • Therefore the Tribunal did not have jurisdiction to make the order sought.

McDonald v Denehurst Limited (Deregistered) & Ors [2021] NSWDDT 4

If you require further information or have any queries in relation to this legal update, please contact Damien van Brunschot.

We would like to acknowledge the contribution of David McGrath, Associate, to this article.

Further Reading