Apostolopoulos v Hatzisarantinos and Ors trading as Omonia Constructions (No. 3)
[2009] NSWDDT 6
•26 March 2009
Dust Diseases Tribunal
of New South Wales
CITATION: Apostolopoulos v Hatzisarantinos and Ors trading as Omonia Constructions (No. 3) [2009] NSWDDT 6 PARTIES: Kosta Apostolopoulos (Respondent Plaintiff)
Stelios Hatzisarantinos, James Katakouzinos and James Katsianis t/as Omonia Constructions (Applicant First Defendant)MATTER NUMBER(S): 185 of 2004 JUDGMENT OF: O'Meally P CATCHWORDS: DUST DISEASES TRIBUNAL :- Dust Diseases Tribunal Act section 25B - application to relitigate issue of a general nature determined in earlier proceedings - previously determined that PMF an indivisable injury - whether new evidence available that PMF is a divisable injury - whether conduct of earlier proceedings warrants granting of leave - other relevant matters - delay in bringing application - restructure of plaintiff's case - additional costs and delay - rejection of offers of settlement - leave to relitigate refused LEGISLATION CITED: Dust Diseases Tribunal Act 1989
Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998
Limitation Act 1969
Legal Profession Act 2004
Civil Procedure Act 2005CASES CITED: Harris v Auqal Pty Ltd and Commercial Minerals Ltd DDT 30/1991, 27 September 1996 (unreported)
Commercial Minerals Ltd v Harris (1999) 18 NSWCCR 11; [1999] NSWCA 94
Sydney Water Corporation v Abramovic (2007) 5 DDCR 520; [2007] NSWCA 248
Dingle v Associated Newspapers Ltd & Ors [1961] 2 QB 162
Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] 1 QB 405
March v E & M H Stramare Pty Ltd (1991) 171 CLR 503DATES OF HEARING: 24 March 2009, 25 March 2009, 26 March 2009
DATE OF JUDGMENT:
26 March 2009EX TEMPORE JUDGMENT DATE: 26 March 2009 LEGAL REPRESENTATIVES: A J Katzmann, SC with S Tzouganatos instructed by Turner Freeman appeared for the Respondent Plaintiff
J L Sharpe instructed by Thompson Cooper Lawyers appeared for the Applicant First Defendent
JUDGMENT:
RULING
O’MEALLY P
1. By notice of motion filed on 2 June 2008 Stelios Hatzisarantinos, James Katakouzinos and James Katsianis, the first defendant, who trade as Omonia Constructions (Omonia), seek the following order under s 25B(1) of the Dust Diseases Tribunal Act 1989 (the Act):
1. … the First Defendant be allowed to relitigate and reargue the Determination of the Dust Diseases Tribunal in the matter of Harris –v- Commercial Minerals Ltd DDT30/91 delivered by Johns J on 27th September 1996 in relation to whether
a. Progressive Massive Fibrosis develops from silicosisb. Progressive Massive Fibrosis is one and indivisible
2. Other orders were sought in the notice of motion. Some were abandoned and the remainder were dealt with on 10 November last. It is unnecessary to refer to them here.
of the Act so far as is relevant provides:
(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) …
(2) In deciding whether to grant leave for the purposes of subsection (1), the Tribunal is to have regard to:
(a) the availability of new evidence (whether or not previously available), and(b) the manner in which the other proceedings referred to in that subsection were conducted, and
(c) such other matters as the Tribunal considers to be relevant.
(3) The rules may provide that subsection (1) does not apply in specified kinds of proceedings or in specified circumstances or (without limitation) in relation to specified kinds of issues.
was inserted by Act 130 of 1998 and operates from 1 December 1998. By reason of sch 1 cl 12(2) of the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998, s 25B applies to issues determined before its commencement. Subsection (1A) was inserted by Act 22 of 2005 and operates from 1 July 2005. It is not relevant to this application. No rules of the type contemplated by sub s (3) have been made.
The present case
5. Before considering the matters required by s 25B it is appropriate to say something about this case.
6. The plaintiff, Kosta Apostolopoulos, commenced proceedings in the Tribunal by filing a statement of claim on 2 June 2004. He claimed damages from five defendants, alleging that in the course of his employment by a number of employers he was exposed to silica dust when working as a jackhammer operator. He alleges that, as a result, he contracted silicosis and progressive massive fibrosis. Two employers no longer exist and insurers have been sued in their place.
7. Delay since the filing of the statement of claim has had a number of causes. One is that the plaintiff resides in Greece, another is that the second defendant was pursuing an appeal in Sydney Water Corporation v Abramovic (now reported in (2007) 5 DDCR 520; [2007] NSW CA 248), which was to consider issues relevant to this case, and another was that an application had been made for leave to appeal against my ruling of 10 November 2008. That application was later withdrawn and this motion was then relisted for hearing.
8. Having filed his statement of claim in June 2004, on 4 February 2005 the plaintiff filed a s 25B notice which complied with r 9 of the Dust Diseases Tribunal Rules. That notice was as follows:
- 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 DDT30/91 delivered by Johns J at Sydney on 27 September 1995 [sic] .
9. Because the first defendant had not filed its defence, the plaintiff filed a notice of motion on 13 July 2005 seeking a default judgment against Omonia. On 26 September 2005, however, Omonia did file its defence. That defence put in issue that the plaintiff was suffering progressive massive fibrosis (PMF) and pleaded also that silicosis was a divisible injury. No challenge was made in its defence to the notice filed by the plaintiff pursuant to s 25B, nor would it have been appropriate to do so. At a directions hearing on 21 November 2005 the plaintiff’s notice of motion for a default judgment was dismissed, but Omonia was ordered to pay the plaintiff’s costs.
10. Because the plaintiff was in Greece, the plaintiff was ordered to serve a medical report before 16 December 2005 addressing the question whether he was fit to travel to Sydney for medical examination.
11. On 6 March 2006 an issues and listings conference was appointed for 11 May 2006. The plaintiff was ordered to serve an affidavit and each party to serve witness statements and experts’ reports on or before 1 May 2006. On 9 May 2006, with the agreement of all parties, the issues and listings conference was vacated. Further orders relating to the service of affidavits and witness statements were made by my colleague Duck J on 26 June 2006.
12. On 1 July 2006 Professor Fox examined the plaintiff in Athens on behalf of all defendants. His report of 11 July 2006 was served on the plaintiff on 10 August 2006. In that report he expressed a view about the extent of the plaintiff’s disability and how much of it was due to PMF and how much was due to silicosis.
13. On 17 August 2006 the plaintiff’s solicitors advised the defendants that they were not in a position to serve the plaintiff’s affidavit and requested that a further issues and listings conference be postponed. That request was acceded to. On 22 August 2006 an issues and listings conference was again appointed, this time for 17 October 2006, and on 31 August 2006 the plaintiff’s solicitors served the plaintiff’s affidavit.
14. After the issues and listings conference of 17 October 2006 the case was stood over for further directions on 13 November 2006. It was then that a request was made to delay the hearing of the matter because the second defendant was pursuing the appeal in Abramovic in the Court of Appeal.
15. The next relevant date is 19 March 2007. At a directions hearing on that day the plaintiff’s solicitor informed the Tribunal that by reason of illness the plaintiff was unable to travel to Australia. However, at a subsequent directions hearing on 30 April 2007 the Tribunal was advised that the plaintiff was fit to travel to Australia. After further orders were made for service of experts’ reports, the plaintiff’s action was listed for hearing in Sydney on 3, 4, 5 and 6 September 2007.
16. On 13 August 2007 the plaintiff’s solicitors served reports from Dr Soulimiotis, his treating doctor, and from the Hellenic Republic District Health System, to effect that the plaintiff was unable to travel by ’plane for long distances. The plaintiff’s solicitors advised that they intended to make application under s 13(7) of the Act, seeking orders that the plaintiff’s evidence be taken in Greece. That notice of motion was listed for hearing on 20 August 2007.
17. When that application came before me, I was not satisfied on the evidence then presented that the plaintiff’s condition would render him permanently unfit to travel to Australia. The matter was adjourned to enable further evidence to be presented. On 20 August 2007 the hearing dates appointed for September were vacated and the motion to take evidence outside New South Wales was relisted for 27 August 2007.
18. On 27 August and 5 November 2007 the application was again stood over so that further evidence, in particular evidence of lung function tests, could be obtained. These were relevant to consider in determining the fitness of the plaintiff to travel by air.
19. On 30 January 2008 the plaintiff’s application under s 13(7) of the Act was heard. An order was then made that the plaintiff’s evidence, that of his wife and of Dr Soulimiotis be taken outside New South Wales, in Athens, on 12, 13, and 14 May 2008.
20. On 11 March 2008 the fourth defendant, QBE Insurance (Australia) Ltd, standing in the shoes of one Bill Zaharakis trading as “Kassandra Excavations”, also filed a notice pursuant to s 25B, in which, amongst others, it expressed its intention to rely upon the decision of Johns J in Hollins that progressive massive fibrosis is an indivisible condition. I refer to the case as Hollins, even though at the time that decision was made on 27 September 1996, the plaintiff was in fact one Harris, the legal personal representative of Mr Hollins who had died well before that date.
21. There were seven directions hearings between 30 January and 2 May 2008, and on 6 May 2008 counsel for the plaintiff left Sydney for Greece. In the meantime, however, on 20 March 2008, the solicitors for the first defendant had written to Professor Douglas Henderson, Professor of Pathology at Flinders University in South Australia, seeking his views on the questions whether pathologically PMF is any different from silicosis, in the way that mesothelioma and lung cancer are different from asbestosis, and whether PMF is a divisible or indivisible condition with respect to causation.
22. The fact that Professor Henderson’s opinion had been sought was not communicated to the plaintiff’s solicitors, nor to the Tribunal, at any stage before the case was listed to take evidence at the Australian Embassy in Athens. The request to Professor Henderson thus was made more than three years after the filing and service of the plaintiff’s s 25B notice and after the listing in Athens was appointed. Between the filing of the plaintiff’s s 25B notice and Omonia’s first application to relitigate the issue, the case was, quite unusually, listed before a judge or registrar something in the order of 30 times.
23. The first defendant’s representative was asked at directions hearings between January and May of 2008 whether it intended to seek to relitigate the question decided in Hollins, that is whether PMF was an indivisible injury. The first indications that it intended to do so were an announcement at the Australian Embassy in Athens on 12 May 2008 and the service of a notice of motion filed in the Registry on 8 May 2008. The report of Professor Henderson was served on the plaintiff’s solicitors in Sydney on 7 May 2008, but by then the plaintiff’s representatives were in transit to Athens.
24. On 2 June 2008, after evidence had been taken in Athens, the notice of motion filed on 8 May 2008 was dismissed because of a defect in form. However, a further application was filed on the same day, that is, 2 June 2008, asserting neither Johns J nor the Court of Appeal had decided an issue of a general nature and, in the alternative, seeking leave to relitigate the issue.
25. On 10 November 2008 I ruled that both Johns J and the Court of Appeal had determined an issue of a general nature. It was against that ruling that Omonia filed an application for leave to appeal, which it later withdrew.
26. I am now to consider whether leave should be granted to relitigate or reargue the question whether PMF is an indivisible injury.
The case in which the issue was determined
27. It is appropriate, at this stage, to consider the case determined by Johns J in Hollins.
28. Mr Hollins’ statement of claim alleged that he suffered silicosis as a result of exposure to silica in the course of his employment by a number of employers. It did not allege he suffered PMF. There was, however, evidence before his Honour that the plaintiff suffered not only silicosis, but PMF also. Evidence was given by Dr Gianoutsos, a thoracic physician, by Dr Joseph, also a thoracic physician, regrettably now dead, and reports of those doctors and of Dr Gardiner, a thoracic physician, were tendered. The oral evidence, and the report of Dr Gardiner, considered the nature and effect of both silicosis and PMF. No objection was taken to the evidence of PMF and the case was conducted on the basis that Mr Hollins had two separate conditions.
29. His Honour entered a joint judgment against the three defendants and made orders extending time under the Limitation Act 1969 (the Limitation Act). At that time s 12A had not been inserted into the Act. The Limitation Act then applied to cases of this type brought in the Tribunal. There was an appeal against his Honour’s decision. The appeal considered whether it was competent for his Honour to enter judgment jointly against all defendants, and whether time should have been extended under the Limitation Act. The Court of Appeal set aside the orders extending the limitation period and set aside the judgment “entered against all three defendants”.
30. From the decision of the Court of Appeal there was an appeal to the High Court of Australia. That appeal dealt only with questions arising under the Limitation Act. The appeal was successful and the High Court of Australia ordered that the matter be returned to the Tribunal to be determined on the evidence given in the trial which concluded with the judgment of his Honour on 27 September 1996.
31. The first of the three defendants did not participate in the appeal against his Honour’s first decision, nor in the High Court of Australia. Neither did it participate in the second hearing, which resulted in his Honour’s judgment of 27 September 1996.
32. On that occasion his Honour entered several judgments in respect of Mr Hollins’ silicosis but a joint judgment in respect of his PMF. His Honour discussed the nature of silicosis and PMF. His reasons explain his conclusion that silicosis was a divisible injury and that PMF was an indivisible one. At p 16 of his judgment, which appears at p 278 of the affidavit of Belinda Jennise Amos of 10 March 2009 filed in this application, Johns J said this:
- Silicosis as I have already indicated, does not necessarily lead to PMF. Silicosis effects [sic] the whole of the lung. The deposit of the silicotic nodules occur [sic] over a wide area. PMF is a single mass which occurs more readily in the upper and mid zones of the lung. It seems to me that all of the particles inhaled have acted cumulatively and the natural inference is that had it not been for the cumulative effect the plaintiff would not have developed PMF. The factors which caused the development of PMF in this man’s case in my view has [sic] been the extent of the silica dust exposure which, as I have found, has been caused by all of the defendants. The greater the silicosis the greater likelihood of PMF. The most probable cause on Dr Josephs view of the PMF was the continued exposure after the initial diagnosis.
33. At p 17 of his judgment, which appears at p 282 of the affidavit, he said:
And in the following paragraph on the same page:
Moreover the medical evidence in my view establishes that the PMF is distinct from the silicosis and is the consequence, as I have already indicated, of all exposure until 1982.
On the page following he said:
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. In any event if I am in error in the conclusions I have drawn and this is a case in which the latter employment particularly with the third defendant brought to fruit the form of current hardships, those symptoms which had previously been no more than potential, it would seem to me that the bringing to fruition what had been no more than a potential, had devastating effects upon the plaintiff’s pulmonary condition.
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 fairly be 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.
34. It will be apparent that the words used by his Honour echo expressions of opinion, contained in cases determined upon appeal, in which questions of the consequences of divisible and indivisible injury have been considered. Some of the material echoed appears at p 12 in the judgment in the appeal against his Honour’s first decision delivered by Handley JA and in the cases referred to in that judgment.
35. There are, of course, forensic advantages to a plaintiff who is able to prove an indivisible injury. It is not necessary for such a plaintiff to sue all whose negligent conduct has made a material contribution to the injury. It is sufficient to identify one. The judgment of Devlin LJ in Dingle v Associated Newspapers Ltd & Ors [1961] 2 QB 162 at 188-189 recites the principle and that of Mustill J in Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] 1 QB 405 at 440 provides examples.
Section 25B(2)(a): Is new evidence available
36. The first matter to be considered under s 25B is whether new evidence is available.
37. Annexed to the affidavit of Courtenay Brooke Lyons sworn on 2 June 2008 is a copy of the report of Professor Henderson which bears date 6 May 2008. In that report Professor Henderson recites the questions he was invited to address:
- 1. Pathologically, is PMF any different from silicosis in the way that mesothelioma and/or lung cancer are different from asbestosis?
2. Based upon my opinion in relation to Q1, do I consider PMF to be a “divisible” or “indivisible” condition in respect to causation?
38. There follows a discussion of the nature and development of silicosis and PMF. As it seems to me, it is generally agreed by thoracic physicians, and by Professor Henderson, that silicosis produces nodules in the parenchyma of the lung as a response to the deposit of silica particles. PMF occurs when those nodules coalesce into a mass. As its name suggests, the mass progresses even after inhalation of silica ceases.
39. Professor Henderson gave the answer to the questions asked of him at p 5 of his report. He said:
Therefore, my response to Q1 is in the negative, and in response to Q2 I consider PMF to be a “divisible” - i.e., a non singular - condition in respect to causation, in contrast to the singularity of mesothelioma or lung cancer as a consequence of asbestos exposure.
40. Annexed to the same affidavit is a report of Dr A B X Breslin, who is, or was at the time of writing his report, a clinical associate professor and a consultant thoracic physician. At p 4 of his report of 9 May 2008 he wrote:
I am of the view that silicosis and progressive massive fibrosis are one and the same disorder representing ends of a spectrum with simple silicosis being an earlier part of the process and progressive massive fibrosis the later part of the process. They are not separate disorders. In addition, the cause is the total silica exposure that has occurred over the course of the individual’s occupation. All the periods of silica exposure contribute to the development of the disease process and no period in this man can be considered to be non-representative in the etiology. Progressive massive fibrosis may develop even after cessation of exposure to silica.
41. At p 256 of the affidavit of Ms Amos is annexed a report of Professor David McKenzie whose letterhead describes him as a respiratory and sleep physician. At p 259 under the heading, “Conclusions”, Professor McKenzie wrote:
Thus, progressive massive fibrosis is clearly divisible into all these smaller nodules which have been drawn together to produce the large mass.
42. He had earlier expressed views similar in nature to those expressed by Professor Henderson, and by Professor Breslin who agreed with Professor Henderson.
43. Johns J in Hollins held that PMF was an indivisible injury. His finding was confirmed on appeal in a judgment given on 13 April 1999.
44. In my ruling of 10 November 2008 I quoted the relevant parts of the decision of Johns J in the second Hollins case and the second appeal. It is unnecessary to recite them further. The evidence supported the finding that PMF was an indivisible injury.
45. Ms Katzmann of senior counsel who appears for the plaintiff, says that the evidence sought to be adduced is not new. She has referred me to an edition of the Shorter Oxford Dictionary in which there are, amongst other, the following definitions of new:
1. Not existing before; now made, or brought into existence, for the first time. b. Of a novel kind. 2. Not previously known; now known for the first time b. Strange, unfamiliar.
46. Ms Katzmann says that the evidence to which I have referred and contained in the affidavits on this application is not new, but is the same as the evidence before Johns J in Hollins. It is the case that there is a coincidence of evidence in relation to the presence of silicotic nodules and the manner in which they coalesce to form a large mass. That evidence, I think it can be fairly said, is not new; neither is it controversial.
47. In Ms Katzmann’s submission the doctors who were qualified for this application by the first defendant were asked the wrong question. It is important always in dealing with legal questions and scientific questions, whether they be medical or otherwise, to bear in mind that though lawyers on the one hand, and doctors and scientists on the other, use the same words, they often mean different things by them. This is particularly so in considering questions related to causation (see e.g., Mason CJ in March v E & M H Stramare Pty Ltd (1991) 171 CLR 503 at 509). That however, it seems to me, is a phenomenon irrelevant to the matter I am now required to consider. Consideration of that phenomenon is one appropriate to consider if leave is given to relitigate the question determined by Johns J.
48. The matter the Tribunal is required to consider is whether new evidence is available. New evidence is not the same as fresh evidence. Fresh evidence is evidence which was not discoverable by the exercise of reasonable diligence at the time of the trial and which, if believed, would be a determining factor in its outcome. The distinction is made plain by the words in parenthesis following the phrase, the availability of new evidence, in s 25(2)(b)(a), i.e., whether or not previously available.
49. New evidence does not, as was submitted to me, mean evidence which did not exist at the time of the determination, nor, in my view, is it only evidence that was discovered after the issue was first determined, nor evidence based upon new research or a new scientific hypothesis.
50. In my view, new evidence in s 25B means evidence not previously given. Evidence concerning the nature of PMF contained in the reports to which I have referred, that is those of Professor Henderson and of Associate Professors Breslin and McKenzie, does constitute new evidence.
Section 25B(2)(b): The manner in which the other proceedings were conducted
51. The next matter for consideration is the manner in which the proceedings before Johns J were conducted.
52. Mr Sharpe has pointed out that Mr Hollins alleged only that he suffered silicosis, although in the particulars filed in compliance with Pt 33 r 8A of the then rules he alleged gross silicosis also. The presence of PMF emerged from a report of Dr Gardiner.
53. It sometimes happens in the Tribunal that the pleadings do not accurately recite the issues it is called upon to resolve. The nature of the cases it determines often requires an urgent and flexible approach. Sometimes the evidence of a plaintiff will be taken and cross-examination will occur even before a defendant has filed either an appearance or a defence. The experience of the Tribunal and of those who conduct litigation before the Tribunal ensures that issues are determined upon their merits with appropriate regard to procedural fairness.
54. Before Johns J, there was cross-examination of Dr Joseph and Dr Gianoutsos on the nature of both silicosis and PMF. However, Mr Sharpe has submitted that because the indivisible nature of PMF was not fully litigated before Johns J, it is appropriate to invoke s 25(2)(b) of the Act and grant leave.
55. Mr Sharpe submitted, as he submitted on 10 November 2008, that it is a material consideration that no evidence was adduced before Johns J from a pathologist. I then expressed the view, which I reaffirm, that it is not only a pathologist who may give evidence on questions involving diseases of the lung. Patently, diseases of the lung are matters within the expertise of thoracic physicians. Dr Joseph was an eminent thoracic physician who frequently gave evidence before the Tribunal and I am familiar with his research into and the contribution he made to the development of the science of thoracic medicine over the years. It would, however, be inappropriate for me to consider that on this application. Dr Gianoutsos is similarly well regarded. That is not to say that Professor Henderson and Associate Professors Breslin and McKenzie are not. The fact is they are, and the first two of these three frequently give evidence before the Tribunal.
56. Mr Sharpe says it is significant that at the time Hollins was first decided at first instance, and at the time of the first appeal to the Court of Appeal, and at the time of the appeal to the High Court of Australia, s 25B had not been inserted into the Act. He says it is thus fair to assume that the question of the divisible or indivisible nature of PMF was not one to which the minds of those conducting the litigation was addressed. Section 25B was not enacted on 4 November 1998 when the Court of Appeal reserved its judgment in the second appeal, but it had commenced by the time it delivered judgment on 13 April 1999. It has happened before that the Court of Appeal did not refer to an amendment to dust legislation made between its reserving a judgment and delivering it. It was open to the Court of Appeal to refer to s 25B, but it did not. Nevertheless, the indivisible nature of PMF was something addressed and resolved by Johns J and by the Court of Appeal. The fact that s 25B applies to issues of a general nature determined before its enactment militates against Mr Sharpe’s argument.
57. Ms Katzmann SC, for the plaintiff, has observed, as is the fact, that those on both sides of the record before Johns J were experienced and competent solicitors and counsel. The evidence was appropriately considered and the question was, she says, appropriately addressed when the matter was returned to Johns J by order of the High Court of Australia.
58. Mr Sharpe has submitted that it is significant that the question of several as distinct from joint judgments was not raised before Johns J until the second hearing before him. He submits that Johns J was not required to determine an issue of a general nature. Nevertheless, that is exactly what he did. That was the subject of the second appeal. The appeal failed. The transcript of evidence before Johns J shows that the nature of PMF was examined and that counsel were aware of the significance of a determination that it was an indivisible injury. The first appeal was against the joint judgment entered against three defendants. The appeal succeeded because Mr Hollins suffered silicosis, a divisible injury. He also suffered, PMF, an indivisible injury, as Johns J found at the second hearing and the Court of Appeal confirmed on the second appeal.
59. Mr Sharpe said that the evidence in Hollins was limited to the facts of that case, and of course it would be. Although sometimes counsel fail to take objections to irrelevant evidence, that did not happen in the case before Johns J. The evidence concerned the nature of both silicosis and PMF.
60. I am not persuaded that the manner in which the trial was conducted before Johns J warrants the granting of leave. The issue was fairly raised in evidence, examined by counsel and considered at first instance and on appeal.
Section 25B(2)(c): Other relevant matters
61. The final question to be considered arises under s 25(2)(c), that is, such other matters as the Tribunal considers to be relevant.
62. In this regard it is appropriate to have regard to the events occurring between the filing of the statement of claim and the filing of the application for leave to relitigate the issue.
63. Senior counsel for the plaintiff has submitted that the following matters are relevant.
64. The first defendant filed its motion more than three years after the plaintiff had filed his s 25B notice and filed it after the fourth defendant also had filed a similar notice. The first defendant contemplated making an application at least as early as 20 March 2008, the date upon which a letter was addressed to Professor Henderson requesting his opinion, but it failed to advise it had done so.
65. At successive directions hearings between then and the Tribunal’s sitting in Athens, no indication was given that the first defendant intended to seek leave to relitigate the issue. Presumably, there had been discussions about it, for direct questions were asked by me and through me of Mr Cooper, the solicitor for the first defendant, who appeared at those directions hearings.
66. On 2 May 2008, I asked Mr Cooper whether it was his intention to seek to reargue the issue of the indivisible nature of PMF. Mr Cooper said that the first defendant had no instructions to raise that matter. When Mr Sharpe for the first defendant was reminded of that, he responded that it would have been inappropriate for Mr Cooper to say otherwise because of provisions of the Legal Profession Act 2004 which impose obligations upon a solicitor to certify that only true issues are to be disputed before a court.
67. I do not know that seeking instructions to reargue a matter previously determined by the Tribunal is a matter covered by the Legal Profession Act. No doubt, the making of an application would require evidence to support it, but an answer could equally well have been given by Mr Cooper which indicated that if his client obtained such evidence from a qualified person, the first defendant would then seek to relitigate the issue.
68. The first notice, defective in form, though here nothing turns on that defect, was filed after a number of those involved in the case had left for Greece. The plaintiff’s treating specialist Dr Soulimiotis is resident in Greece. He had not been qualified to express an opinion on the divisibility or indivisibility of PMF. The plaintiff says that if leave is granted, the doctor would need to be qualified on that issue. I do not agree. It is possible for doctors present in Australia, including those whose names have been mentioned, to express a view upon the nature of the disease. It is not necessary that the plaintiff be examined to qualify a specialist to express a scientific view on the nature of a disease. The issue must be one of a general nature, not of a particular nature before s 25B can apply.
69. At the directions hearings at which the question was raised, that is whether the first defendant would apply to relitigate the issue, no indication was given that it would. If my memory serves me, I indicated that if such an application were made, the time at which it was made would be a factor determining its outcome.
70. It has been put by the first defendant that the relevance of the PMF/silicosis issue became apparent or relevant only upon the service of the report of Dr Gianoutsos of 29 April 2008. This is a report which was served after an order had been made specifying an earlier date by which reports were to have been served. The first defendant has said that the issue arose only when the plaintiff indicated that he might seek to call further evidence on the extent of his PMF.
71. Having regard to that submission, I am a little puzzled why it was that Professor Henderson’s opinion was sought in March, that is before the report of Dr Gianoutsos of 29 April 2008 was served.
72. In an affidavit of 28 August 2008 Mr Gardiman, a partner of Turner Freeman who act for the plaintiff, deposed to his experience in the Tribunal. There is no doubt that he is very experienced in the jurisdiction. Mr Gardiman said in par 10 that, so far as he was aware, no party had ever challenged the Hollins finding before the Tribunal and, to the best of his knowledge, representatives of parties on both sides of the record have accepted the finding. It is indeed the case that until Omonia’s application to relitigate, no one has disputed it.
73. In my view, the antiquity of the finding is not a relevant consideration. The section itself contemplates the existence of new evidence.
74. There are, however, significant factors occasioned by the delay and the failure of the first defendant to apply before evidence was taken in Athens. I think they are best gleaned from the affidavits of Mr Taylor of 12 May 2008 and 31 October 2008. Mr Taylor is the solicitor who has conduct of the plaintiff’s case.
75. Annexed to Mr Taylor’s affidavit of 12 May 2008 is a letter addressed to the solicitors for the first defendant. It bears date 8 May 2008 and was signed by Mr Gardiman. Relevantly, it says:
- Pursuant to section 25B of the Act, on 4 February 2005, the plaintiff notified your clients (and each defendant) that he relied upon the finding in Harris that PMF was indivisible. The fourth defendant did likewise on 11 March 2008.
The raising of this matter at this stage in the proceedings is highly prejudicial to the plaintiff and indeed may result in the hearing in Athens being aborted. The plaintiff has litigated his claim on the basis that the damage flowing from his condition of PMF is one and indivisible and that any defendant who is found to have made a material contribution to this condition was liable for the whole of that damage. There being no application pursuant to section 25B (1) of the Act, the plaintiff made forensic decisions about the joinder (or non joinder) of parties, obtaining medical and other expert evidence and the making and rejection of settlement offers including offers of compromise. Further, the plaintiff’s ability to call evidence in Athens from Dr George Soulimniotis, (the plaintiff’s treating respiratory specialist) is severely compromised, because the doctor has not been qualified to express an opinion with respect to this issue. This creates substantial prejudice to the plaintiff in his ability to properly and efficiently conduct his proceedings.
76. In Mr Taylor’s affidavit of 12 May 2008, a chronology of relevant events is set out, together with a summary of the plaintiff’s allegations and the steps the plaintiff would have taken had the application come to his notice before departure for Greece. It is appropriate that they be set out in full, even though some have already been recited. Mr Taylor said:
[sic], 28 April 2008, 2 May 2008. The matter has been before the court on other dates including most recently 6 May 2008.
“We are not presently instructed to do so”.
77. In an affidavit of 31 October 2008 Mr Taylor said in paragraph 11:
- On the basis that the plaintiff’s section 25B notice was on foot and unchallenged (and supported by the fourth defendant’s 25B notice) for more than three years, the plaintiff adopted a course of action in relation to his litigation and made decisions with regard to the identity of the parties to be joined the proceedings, the utility of expanding further costs in searching for worker’s compensation insurers, the putting and rejecting of offer’s of settlement, and the requesting of medical and experts’ reports.
Had the matter been conducted on the basis that there was a dispute about whether PMF was indivisible the plaintiff’s litigation strategy would have been different.
78. In response to that, it is put by the first defendant that it is still open to the plaintiff to join other defendants if he is able to locate them. It is suggested that it would be unreal to believe that the plaintiff’s solicitors, competent and experienced as they are in the jurisdiction, would not have sought to locate all potential defendants. If that realistically were to occur, further costs, which in this case are probably already in excess of the value of the claim, would be incurred. It could be necessary that the Tribunal return to Greece to take further evidence from the plaintiff and for the plaintiff to submit himself to further cross-examination by the existing and additional defendants.
79. It was said before the case was listed for the taking of evidence in Athens that if this matter were to be the subject of a leave application, it would be necessary for the plaintiff to take other steps, including steps, the nature of which has been referred to in correspondence and in affidavits. The plaintiff’s written submissions and Mr Taylor’s second affidavit record that offers of settlement were made and rejected at issues and listings conferences on the basis that there was no challenge to the Hollins findings.
80. It was urged upon me by senior counsel for the plaintiff that imperatives contained in s 56(1) and (2), s 57 and s 58 of the Civil Procedure Act 2005 (the CP Act) operate to prevent the granting of leave under s 25B of the Act. As it appears to me, those sections of the CP Act are declaratory, and courts have always been required to apply, as appropriate, those imperatives as dictated by the circumstances of any particular case.
81. Considerations required by the CP Act, the delay in filing the application, the need to restructure the plaintiff’s case and the additional costs and delay which would follow each militates against the granting of leave.
82. The delay of more than three years after the filing of the plaintiff’s 25B notice, the rejection of offers of settlement, the lack of any indication prior to the departure of the Tribunal and lawyers for Greece, and the fact that the case would have been conducted in a different manner had the application been made earlier, do not justify the granting of leave.
83. The order therefore is that the notice of motion filed by the first defendant on 2 June 2008 is dismissed.
84. The first defendant will pay the plaintiff’s costs of this application as agreed or assessed.
85. For directions 9 April 2009.
A J Katzmann SC with S Tzouganatos instructed by Turner Freeman appeared for the Respondent Plaintiff
J L Sharpe instructed by Thompson Cooper Lawyers appeared for the Applicant First Defendant
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