Apostololopoulos v Hatzisarantinos and Ors trading as Omonia Constructions

[2008] NSWDDT 33

Dust Diseases Tribunal

of New South Wales

CITATION:	Apostolopoulos v Hatzisarantinos and Ors trading as Omonia Constructions (No. 2) [2008] NSWDDT 33
PARTIES:	Kosta Apostolopoulos (Respondent Plaintiff) Stelios Hatzistarantinos, James Katakouzinos & James Katsianis trading as Omonia Constructions (Applicant First Defendant)
MATTER NUMBER(S):	185/04
JUDGMENT OF:	O'Meally P
CATCHWORDS:	DUST DISEASES TRIBUNAL :- determination of an issue of a general nature; what constitutes - whether determination of an issue of a general nature made in earlier proceedings
LEGISLATION CITED:	Dust Diseases Tribunal Act 1989 Dust Diseases Tribunal Rules 1990
CASES CITED:	Commercial Minerals v Harris (1999) 18 NSWCCR 11 James Hardie & Co Pty Ltd v Barry (2000) 50 NSWLR 357 Eaton v Carrier Air Conditioning Pty Ltd (DDT 184/03; unreported 3 September 2004) Brambles Australia Ltd v British American Tobacco Australia Services Ltd; Re Mowbray (No 6) (2006) 3 DDCR 495 Eraring Energy v Babcock International Ltd and Ors; Re Murray (2005) 2 DDCR 253
DATES OF HEARING:	10 November 2008
DATE OF JUDGMENT:	10 November 2008
EX TEMPORE JUDGMENT DATE:	10 November 2008
LEGAL REPRESENTATIVES:	G F Little SC with J L Sharpe instructed by Thompson Cooper Lawyers appeared for the Applicant First Defendant A J Katzmann SC with S Tzouganatos instructed by Turner Freeman appeared for the Respondent Plaintiff

JUDGMENT:

3

Dust Diseases Tribunal of New South Wales

185 of 2004

Kosta Apostolopoulos
(Respondent Plaintiff)

v

Stelios Hatzisarantinos, James Katakouzinos & James Katsianis trading as Omonia Constructions
(Applicant First Defendant)

Sydney Water Corporation (Settled 06/05/2008)
(Second Defendant)

John Sirris t/as “J & M Sirris/Excavations”
(Third Defendant)

QBE Insurance (Australia) Limited
(Fourth Defendant)

Mercantile Mutual Insurance Limited
(Fifth Defendant)

Monday 10 November 2008

RULING

O'MEALLY P

1. This notice of motion concerns s 25B of the Dust Diseases Tribunal Act 1989 (the Act).

2. On 2 June 2004 Kosta Apostolopoulos issued a statement of claim seeking damages and alleging injuries as a result of exposure to silica dust in the course of his employment by various employers. The injuries alleged were silicosis and progressive massive fibrosis. His statement of claim also recited alleged consequential disabilities. There has been delay in the conduct of the case. The plaintiff was born in Greece, migrated to Australia where he was exposed to silica. He then returned to Greece. Evidence was taken in Athens in May 2008 and the case is now part heard.

A s 25B Notice filed

3. On 4 February 2005 the plaintiff filed and served a notice pursuant to s 25B of the Act. Section 25B provides:

25B (1) Issues of a general nature determined in proceedings before the Tribunal (including proceedings on an appeal from the Tribunal) may not be relitigated or reargued in other proceedings before the Tribunal without the leave of the Tribunal, whether or not the proceedings are between the same parties.
(1A) If an issue of a general nature already determined in proceedings before the Tribunal (the earlier proceedings ) is the subject of other proceedings before the Tribunal (the later proceedings ) and that issue is determined in the later proceedings on the basis of the determination of the issue in the earlier proceedings, the judgment of the Tribunal in the later proceedings must identify the issue and must identify that it is an issue of a general nature determined as referred to in this section.
(2) In deciding whether to grant leave for the purposes of subsection (1) the Tribunal is to have regard to:

(3) . . .

(4) . . .

Rule 9 of the Dust Diseases Tribunal Rules 1990 requires a party intending to rely on s 25B to file a notice giving full particulars of the issue alleged to have been determined and when, where and by whom it is alleged to have been determined.

4. The notice filed by the plaintiff pursuant to s 25B was in these terms:

TAKE NOTICE that pursuant to Section 25B of the Dust Diseases Tribunal Act 1989, the Plaintiff intends to rely in these proceedings on the determination in the following proceedings of the following issues of a general nature:

1. The damage caused by progressive massive fibrosis is one and indivisible.

Harris v Commercial Minerals & Ors DDT 30/91 delivered by Johns J at Sydney on 27 September 1995.

5. On 2 June 2008, the solicitors for the first defendant filed a notice of motion seeking leave to relitigate the determination in Harris v Commercial Minerals Ltd and, alternatively, seeking a finding or declaration that the determination of Johns J in Harris on 27 September 1996 was not “an issue of a general nature within the meaning of s 25B(1) of the Act”. Further in the alternative, it sought a declaration or finding “that the decision of the Court of Appeal in Commercial Minerals v Harris (1999) 18 NSWCCR 11, in relation to whether a Progressive Massive Fibrosis develops from silicosis

b. Progressive Massive Fibrosis is one and indivisible
was not an issue of a general nature within the meaning of s.25B(1)” of the Act.

What happened in Harris

6. Mr Little of Senior Counsel has submitted that there was no determination of a general nature at first instance in Harris nor on appeal.

7. The litigation in Harris had a protracted course. There was an appeal from the first decision of Johns J to the Court of Appeal, and from its decision there was an appeal to the High Court of Australia. The High Court directed that the matter be remitted to the Tribunal. From the second judgment of Johns J there was a further appeal to the Court of Appeal. The decision on that appeal is that referred to in the first defendant's notice of motion.

8. Before considering what Johns J said in his decision of 27 September 1996, it should be noted that in that case the plaintiff (Hollins) had alleged he suffered both silicosis and progressive massive fibrosis. Three defendants were found jointly and severally liable. Two of the defendants appealed. They succeeded against an order granting an extension of time under the Limitation Act 1969 (the Limitation Act) and, on the basis they were consecutive tort feasors whose separate acts and omissions caused some separate damage, against the single judgment entered by Johns J. The Court ordered that the judgment be set aside, that judgment be entered for the second defendant and that there be a new trial against the first and third defendants. From the decision of the Court of Appeal reversing the order extending time under the Limitation Act, an appeal was heard in the High Court. Before that appeal was heard Mr Hollins died and Donna Therese Harris, the Administratrix of his estate, was substituted. The High Court allowed the appeal and ordered that “[t]he matter be remitted to the Dust Diseases Tribunal to assess the damages to be awarded against the second and third defendants… on the basis of the findings of and evidence before Johns J.”

9. In the second decision of Johns J the remaining two defendants were found severally liable in respect of Hollins’ silicosis, but jointly liable in respect of his progressive massive fibrosis. In his second judgment Johns J said at p 17:

One in my view cannot say that the cause of the PMF is the consequence of any of the individual exposures in the particular employments alone, but rather, is the consequence of exposures with all the defendants. There is little potentiality, in my view, for the development of PMF in the absence of all the exposures.
And at p 18:
Here the torts which succeed each other and produce injury combine to produce a second injury and the requisite concurrence in respect of the second injury has in my view occurred. The PMF condition is therefore the direct product of a group of acts not simultaneous, all converging to bring about one occurrence of damage and in those circumstances it can be fairly said to be indivisible. The PMF therefore was caused by all the defendants. I conclude therefore that in respect to the PMF the condition is one and indivisible and the defendants therefore are jointly and severally liable for it.

10. From that decision there was a further appeal to the Court of Appeal. In its joint judgment (in Commercial Minerals Ltd v Harris (1999) 18 NSWCCR 11) the Court said at 10:

10. Mr Toomey submitted that it was not open to the trial Judge, consistently with his original reasons for judgment, to find that PMF was a separate condition, and not simply part of the worker's silicosis. The finding that PMF was a separate condition, made in the second judgment of the trial Judge, was said to be contrary to the High Court's direction that the worker's damages be assessed “on the basis of the findings and evidence before” the Judge. There is no substance in this submission. In his original reasons the Judge found that the plaintiff suffered from silicosis “complicated by progressive massive fibrosis” which had developed due to “relatively high levels of silica dust exposure”. This was in substance a finding that the worker was suffering from PMF as a separate condition and the medical evidence supports this finding. His Honour had no occasion, in his first judgment, to emphasise the distinction between the two conditions because it was not thought legally necessary to do so, but nevertheless the finding was clearly made.

11. This decision was given before s 32 the Act was amended to restrict appeals from the Tribunal, relevantly, to “point[s] of law” and before s 25B was amended by the insertion of subsection (1A).

12. Mr Little submits that given the nature of inquiry in that case, it was never intended that it would involve the resolution of an issue of a general nature. Further, he says, the evidence was limited to the facts of that case. He says, there was no general inquiry into expert evidence on the subject and, in particular, there was no specialist pathology evidence. Moreover, he says the finding in Harris was not a finding of fact, but a finding of a mixed question of fact and law.

13. It continues to be a practice, and one to be deprecated, that solicitors file notices pursuant to s 25B reciting matters other than issues of a general nature determined by the Tribunal. Often such notices contain recitations of evidence or concessions made in particular cases. An assertion is then made that such concessions or recitations are issues of a general nature determined by the Tribunal. The notice in this case is, however, correct in form.

14. In James Hardie & Co Pty Ltd v Barry (2000) 50 NSWLR 357 Spigelman CJ said at 363 [16]; (2000) 21 CCR 150 at 157 [16]:

In substance, the application of s 25B, subject to a grant of leave, constitutes a presumption of fact with respect to, relevantly, the general issue of causation applicable to these proceedings.

15. In Eaton v Carrier Air Conditioning Pty Ltd (184/2003; unreported 3 September 2004) I said at [10]:

…s 25B applies in respect of, and only in respect of, disputed questions of fact of a general nature which were litigated and determined in proceedings.

16. In Brambles Australia Ltd v British American Tobacco Australia Services Ltd; Re Mowbray (No 6) (2006) 3 DDCR 495 Curtis J said at 501:

18. To my mind that which is necessary to constitute a determination of an issue of a general nature is that the determination be necessary to resolve a contested issue of fact upon which a verdict may turn, that the issue is potentially relevant to the disposition of a whole class of cases, and that a factual presumption in accordance with that determination be sufficient to resolve the same issue if it is contested in the subsequent case in which the section is invoked.
19. If the issue is addressed in the judgment, and a conclusion reached, that conclusion stands as a determination for the purpose of s 25B notwithstanding the fact that the party succeeding on that issue failed or succeeded on some other basis.

17. In Eraring Energy v Babcock International Ltd and Ors; Re Murray (2005) 2 DDCR 253 McIntrye A-J said at 258:

12. Section 25B contemplates determination of issues in litigation before the Tribunal or on appeal from the Tribunal. That litigation must, of course, necessarily involve the presence of parties. In a sense, all determinations of issues will be limited to the parties to the litigation. If those determinations, however, involve general questions, they may attract the operation of s 25B of the Act in later proceedings despite the fact that different parties may be involved. For a determination of an issue to attract the operation of section 25B, the issue itself must be of a general nature and cannot, in my view, be an issue which only involved one or more of the parties in the litigation which gave rise to the determination. It must have, it would seem to me, or potentially have, a more general application.

18. In my view the words of Curtis J in Brambles are not an exhaustive definition of a s 25B determination, but they do affirm, as has been affirmed by the other cases referred to, that the determination must be of a disputed question of fact which is relevant to a class of cases and not specific to an individual case.

Was there a determination of an issue of a general nature
19. Mr Little has also submitted that s 25B does not apply to the finding that progressive massive fibrosis is an indivisible injury because no specialist pathology evidence was before the trial judge. It is implicit, if not explicit from the second decision of Johns J and from the second decision of the Court of Appeal that there was medical evidence before Johns J which supported his finding that Mr Hollins “was suffering PMF as a separate condition…”. It was not and is not the case that only a pathologist may give evidence on the nature of progressive massive fibrosis. Thoracic physicians are qualified to do so. The disorder is a disease affecting the parenchyma of the lungs. Specalist pathology evidence was not and is not necessary.

20. In my view the words of Johns J which I have quoted from his decision of 27 September 1996 and their approval in the Court of Appeal, constitute a determination of a general nature both in the proceedings at first instance and on appeal. Johns J specifically said “PMF… can be fairly said to be indivisible” and “PMF… is one and indivisible…”. That finding was one of a general nature. The finding was one of fact, not of mixed fact and law. The notice filed by the plaintiff was correct not only in form, but also in substance.

21. Being of the view that there has been a determination for the purposes of s 25B of the Act, I will hear the first defendant on its application to re-litigate the matter.

Balance of application postponed
22. Following my ruling Mr Little has asked me to adjourn the balance of his application for a period of 14 days. This is because he wishes to seek leave to have the ruling tested in the Court of Appeal. The question involved is an important one. So far as I am aware there has been no definitive interpretation of s 25B given by the Court of Appeal. The section has been referred on a number of occasions in its application to particular cases, but as to its effect the only decisions are those of the type referred to. Section 25B affects a large number of cases and is frequently invoked. With appropriate deference to the Court of Appeal, in the event that an application for leave is granted, I would give such support, as properly I may, to an application that the appeal be determined with expedition.

23. The plaintiff respondent has sought that I dismiss the defendant's application. I decline to do so. Instead, I will list the application in the instant case and in the following case, Lambros Karteris, for directions on 24 November 2008. Costs will be reserved.

G F Little, SC with J L Sharpe instructed by Thompson Cooper Lawyers appeared for the Applicant First Defendant

A J Katzmann, SC with S Tzouganatos instructed by Turner Freeman appeared for the Respondent Plaintiff