Bennett v Workers Compensation Nominal Insurer - [2023] NSWDDT 8

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation: Bennett v Workers Compensation Nominal Insurer and Ors [2023] NSWDDT 8
Hearing dates: 23 October 2023; 10 November 2023; 27 November 2023
Date of orders: 29 November 2023
Decision date: 29 November 2023
Before: Scotting J
Decision:
(1) I grant leave to the defendants to re-litigate the matters set out in [1] to [5] of the plaintiff’s section 25B notice.
(2) The defendants are to pay the plaintiff’s costs of re-litigating the issues, the subject of order 1, irrespective of the outcome of the proceedings and including the costs of the Notice of Motion, on the indemnity basis.
(3) I will list the matter for directions before me in the DDT List on Monday 5 February 2024.

Catchwords:
DUST DISEASES – s25B Notice – re-litigate – availability of new evidence

Legislation Cited:
Dust Diseases Tribunal Act 1989
Workers’ Compensation (Dust Diseases) Act 1942

Cases Cited:
Apostolopoulos v Hatzisarantinos & Others trading as Omonia Constructions (No 3) (2009) 7 DDCR 39
Commercial Minerals Ltd v Harris (1999) 18 NSWCCR 11
Commercial Minerals Pty Ltd v Hollins; Aqual Pty Ltd v Hollins [1993] NSWCA 74
Harris v Commercial Minerals & Ors (1990) DDT 31/90
Harris v Commercial Minerals Ltd (1996) 186 CLR 1
Thompson v Smith’s ShiprepairersLtd [1984] QB 405

Category: Principal judgment
Parties: Craig Bennett (Plaintiff/Respondent)
Workers Compensation Nominal Insurer (First Defendant/Applicant)
McConnell Dowell Constructors (Aust) Pty Ltd (Second Defendant/Applicant)
Transfield Pty Limited (Third Defendant/Applicant)
Lendlease Building Contractors Pty Limited (Fourth Defendant/Applicant)
John Holland Pty Ltd & Thiess Pty Ltd (Fifth Defendant/Applicant)
Representation:
Counsel:
D Toomey SC with A Giurtalis (Plaintiff/Respondent)
G Parker SC with D Talintyre (Defendants/Applicants)
Solicitors:
Maurice Blackburn Lawyers(Plaintiff)
Rankin Ellison Lawyers (First and Second Defendants)
Moray & Agnew (Third, Fourth and Fifth Defendants)

File Number(s): DDT 2022/187037
Publication restriction: None

Judgment

Introduction

The plaintiff seeks damages for silicosis and progressive massive fibrosis (PMF) caused by exposure to respirable crystalline silica (silica) during the course of his employment with the defendants and others as a tunnel worker from 1993 to 2020.
The plaintiff commenced these proceedings on 27 June 2022. The defendants have admitted liability and the matter was listed for hearing as an assessment of damages, to commence on 30 October 2023.
On 27 July 2023 the plaintiff served a notice pursuant to s 25B Dust Diseases Tribunal Act 1989, seeking to rely on the following five matters as having previously been decided by the Tribunal in Harris v Commercial Minerals & Ors (1990) DDT 31/90 (Johns J):

Once contracted PMF will inevitably progress, although the rate of progression varies with the individual.

PMF is distinct from silicosis.

PMF is the direct product of a group of acts all converging to bring about one occurrence of damage.

The condition of PMF is one and indivisible.

The damage caused by PMF is one and indivisible.

By Notice of Motion filed on 13 October 2023 the defendants seek leave to re-litigate these five matters.
Section 25B(2) Dust Diseases…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWDDT 8
Decision Date: 29 November 2023

CaseChat Overview and Summary

Bennett brought an action against the Workers Compensation Nominal Insurer, seeking compensation for a dust-related disease contracted during employment. The dispute centred around the re-litigation of specific matters outlined in Bennett's section 25B notice, particularly whether the defendants should be permitted to revisit previously decided issues in light of potentially new evidence. The case was heard and determined by the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the defendants should be granted leave to re-litigate certain matters previously determined in the section 25B notice, despite those determinations having been made. This required the court to consider the circumstances under which it would be just and equitable to permit such re-litigation, including the availability of new evidence that might materially affect the outcome. The court had to balance the principles of finality and the potential impact of new evidence on the fairness and integrity of the proceedings.

The court granted leave for the defendants to re-litigate the specified matters, concluding that it was just and equitable to do so in light of new evidence that had come to light since the initial determination. The court emphasised that the availability of new evidence that could materially affect the outcome of the proceedings was a significant factor in its decision. Furthermore, the court ordered that the defendants would bear the costs of the re-litigation, including the costs of the notice of motion, on an indemnity basis. The matter was subsequently listed for further directions.

The court's final orders included granting the defendants leave to re-litigate specified matters, directing that the defendants pay the plaintiff's costs on an indemnity basis, and listing the matter for further directions. This decision underscores the court's willingness to accommodate new evidence that could materially affect the outcome of proceedings, provided it is just and equitable to do so.

Orders

Orders of the court

(1) I grant leave to the defendants to re-litigate the matters set out in [1] to [5] of the plaintiff’s section 25B notice.

(2) The defendants are to pay the plaintiff’s costs of re-litigating the issues, the subject of order 1, irrespective of the outcome of the proceedings and including the costs of the Notice of Motion, on the indemnity basis.

(3) I will list the matter for directions before me in the DDT List on Monday 5 February 2024.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Bennett v Workers Compensation Nominal Insurer and Ors [2023] NSWDDT 8
Hearing dates:	23 October 2023; 10 November 2023; 27 November 2023
Date of orders:	29 November 2023
Decision date:	29 November 2023
Before:	Scotting J
Decision:	(1) I grant leave to the defendants to re-litigate the matters set out in [1] to [5] of the plaintiff’s section 25B notice. (2) The defendants are to pay the plaintiff’s costs of re-litigating the issues, the subject of order 1, irrespective of the outcome of the proceedings and including the costs of the Notice of Motion, on the indemnity basis. (3) I will list the matter for directions before me in the DDT List on Monday 5 February 2024.
Catchwords:	DUST DISEASES – s25B Notice – re-litigate – availability of new evidence
Legislation Cited:	Dust Diseases Tribunal Act 1989 Workers’ Compensation (Dust Diseases) Act 1942
Cases Cited:	Apostolopoulos v Hatzisarantinos & Others trading as Omonia Constructions (No 3) (2009) 7 DDCR 39 Commercial Minerals Ltd v Harris (1999) 18 NSWCCR 11 Commercial Minerals Pty Ltd v Hollins; Aqual Pty Ltd v Hollins [1993] NSWCA 74 Harris v Commercial Minerals & Ors (1990) DDT 31/90 Harris v Commercial Minerals Ltd (1996) 186 CLR 1 Thompson v Smith’s ShiprepairersLtd [1984] QB 405
Category:	Principal judgment
Parties:	Craig Bennett (Plaintiff/Respondent) Workers Compensation Nominal Insurer (First Defendant/Applicant) McConnell Dowell Constructors (Aust) Pty Ltd (Second Defendant/Applicant) Transfield Pty Limited (Third Defendant/Applicant) Lendlease Building Contractors Pty Limited (Fourth Defendant/Applicant) John Holland Pty Ltd & Thiess Pty Ltd (Fifth Defendant/Applicant)
Representation:	Counsel: D Toomey SC with A Giurtalis (Plaintiff/Respondent) G Parker SC with D Talintyre (Defendants/Applicants) Solicitors: Maurice Blackburn Lawyers(Plaintiff) Rankin Ellison Lawyers (First and Second Defendants) Moray & Agnew (Third, Fourth and Fifth Defendants)
File Number(s):	DDT 2022/187037
Publication restriction:	None