Daracon Engineering Pty Ltd v Kelsall

[2025] NSWCA 189

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Daracon Engineering Pty Ltd v Kelsall [2025] NSWCA 189

Hearing dates:

11 August 2025

Date of orders:

11 August 2025

Decision date:

15 August 2025

Before:

Ward P; Leeming JA; Stern JA

Decision:

1.   Allow the admission of additional evidence as sought by the applicant’s Notice of Motion dated 10 July 2025 on the issue of leave and, if it arises, the re-exercise of discretion.

2.   Refuse leave to appeal.

3.   Daracon Engineering Pty Ltd to pay the costs of the first respondent of the application for leave to appeal on the indemnity basis.

Catchwords:

PROCEDURE – application to amend – amendments advanced new claim against existing defendant – existing claims sued defendant as employer – new claims sued defendant as occupier or controller – defendant appointed new solicitors to appear in response to new claims – new solicitors claimed trial of new claims could not be conducted fairly – Dust Diseases Tribunal granted leave to amend – whether injustice warranting grant of leave in matter of practice and procedure made out – no updating evidence about readiness of defendant – in fact, no hearing date as yet allocated, three months after ruling – no suggestion that hearing date would be allocated so as to give rise to injustice - no basis for grant of leave

PROCEDURE – parties – circumstances in which same defendant may be represented by more than one legal practitioner – such representation only to occur in exceptional cases – steps to be taken to prevent prejudice to other parties

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 57(1)(a), 58(2)(a), 58(2)(b)(i), 58(2)(b)(ii), 58(2)(b)(iii), 58(2)(b)(v), 58(2)(b)(vi), 58(2)(b)(vii), 59, 60, 63(2), 63(3)(b), 64

Corporations Rules 1999 (NSW)

Dust Diseases Tribunal Act 1989 (NSW), ss 25B, 32(1), 32(4)

Evidence Act 1995 (NSW), s 136

Uniform Civil Procedure Rules 2005 (NSW), rr 1.5, 6.24, 51.44(2), Sch 1

Cases Cited:

Amaca Pty Ltd (under NSW administered winding up) v Raines; Seltsam Pty Ltd v Raines [2018] NSWCA 216

Amaca Pty Ltd (Under NSW Administered Winding Up) v Roseanne Cleary (as Legal Personal Representative of Estate of Late Fortunato (aka Frank) Gatt) [2022] NSWCA 151

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Avant Insurance Ltd v Darshn [2022] FCAFC 48

Bettergrow Pty Ltd v NSW Electricity Networks Operations Pty Ltd as trustee for NSW Electricity Networks Operations Trust t/as TransGrid [2017] NSWSC 658

Browne v Dunn (1893) 6 R 67 (HL)

Buses and 4WD Hire Pty Ltd v Oz Snow Adventures Pty Ltd [2016] NSWSC 1017

Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118

Choy v Tiaro Coal Ltd (In Liq) (2018) 98 NSWLR 493; [2018] NSWCA 205

Day v SAS Trustee Corporation [2021] NSWCA 71

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088

Elphick v Westfield Shopping Centre Management Company Pty Ltd [2011] NSWCA 356; (2011) 216 IR 41

Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122

Hassan v Sydney Local Health District (No 2) [2021] NSWCA 122

House v The King (1936) 55 CLR 499; [1936] HCA 40

In the matter of the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318

Kelsall v Downer EDI Mining Pty Ltd & Ors [2025] NSWDDT 2

Mercantile Mutual Insurance (NSW Workers Compensation) Ltd v Murray [2004] NSWCA 151; (2004) 13 ANZ Ins Cas 61-612

Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209

Mt Owen Pty Ltd v Parkes [2023] NSWCA 77; (2023) 324 IR 34

O’Malley v BlueScope Steel (AIS) Ltd [2024] NSWDDT 8

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208

Spotlight Pty Ltd v Maintek Roofing Pty Ltd [2017] NSWSC 165

Tindle v Ansett Transport Industries (1990) 21 NSWLR 492

Van Eeden v Henry (2005) 62 NSWLR 301; [2005] NSWCA 14

Wang v Meng [2022] NSWCA 215

Whisprun v Dixon [2003] HCA 48; (2003) 77 ALJR 1498

Wong v Silkfield Pty Ltd (1999) 199 CLR 255; [1999] HCA 48

Texts Cited:

A V Dicey, A Treatise on the Rules for the Selection of the Parties to an Action (William Maxwell & Son, 1870)

F Calvert, A Treatise Upon the Law Respecting Parties to Suits in Equity (2nd ed, 1847, W Benning)

Category:

Principal judgment

Parties:

Daracon Engineering Pty Ltd (Applicant)
David James Kelsall (First Respondent)
Downer EDI Mining Pty Ltd (Second Respondent, submitting)
Workers Compensation Nominal Insurer (Third Respondent, submitting)
Coal Mines Insurance Pty Ltd (Fourth Respondent)
Tarrawonga Coal Pty Ltd (Fifth Respondent, submitting)
Boggabri Coal Pty Ltd (Sixth Respondent, submitting)

Representation:

Counsel:
M Allars SC and M Cobb-Clark (Applicant)
S Robertson SC and S Tzouganatos (First Respondent)
T Rowles (Fourth Respondent)

Solicitors:
HWL Ebsworth Lawyers (Applicant)
vbr Lawyers (First Respondent)
Meridian Lawyers (Second Respondent)
Rankin Ellison Lawyers (Third Respondent)
Sparke Helmore Lawyers (Fourth Respondent)
McCabes Lawyers (Fifth Respondent)
Wotton + Kearney Lawyers (Sixth Respondent)

File Number(s):

2025/00250144

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Dust Diseases Tribunal

Citation:

[2025] NSWDDT 2

Date of Decision:

03 June 2025

Before:

Russell SC DCJ

File Number(s):

2023/00451985

JUDGMENT

1. THE COURT: Daracon Engineering Pty Ltd (Daracon) seeks leave to appeal from an interlocutory decision of the Dust Diseases Tribunal: Kelsall v Downer EDI Mining Pty Ltd & Ors [2025] NSWDDT 2. Before Russell SC DCJ (the primary judge) was an Amended Notice of Motion by Daracon, filed on 20 May 2025, seeking orders that a Further Amended Statement of Claim (the April pleading) filed by the plaintiff, Mr David James Kelsall, who is the only active respondent to this appeal, be set aside, dismissed or struck out or limited in part (the Motion). His Honour dismissed the Motion but also granted leave nunc pro tunc to Mr Kelsall to amend his pleading in the form which had been filed.

2. Leave to appeal from the interlocutory decision is required by reason of s 32(4) of the Dust Diseases Tribunal Act 1989 (NSW). Should leave be granted and the appeal allowed, Daracon seeks orders that the decision granting leave be set aside and that instead this Court should “set aside” the new paragraphs of the Further Amended Statement of Claim which allege that Daracon is liable as occupier or controller (as opposed to employer). In substance, Daracon contended that the proceedings against it should be dismissed to that extent.

3. The application for leave to appeal was heard concurrently with argument on the appeal.

4. At the conclusion of the hearing, the Court made the following orders:

1.   Allow the admission of additional evidence as sought by the applicant’s Notice of Motion dated 10 July 2025 on the issue of leave and, if it arises, the re-exercise of discretion.

2.   Refuse leave to appeal.

3.   Daracon Engineering Pty Ltd to pay the costs of the first respondent of the application for leave to appeal on the indemnity basis.

5. These are our reasons for making those orders.

Overview of background

6. Mr Kelsall commenced proceedings on 13 December 2023 and an Amended Statement of Claim was filed on 19 December 2024. Mr Kelsall advanced claims against Downer EDI Mining Pty Ltd (Downer EDI), Daracon and Tarrawonga Coal Pty Ltd arising out of his exposure to and inhalation of silica dust, coal dust and mixed dust (dust exposure) at various locations including the Boggabri Mine, Mornington Heights in Gunnedah, and the Tarrawonga Coal Mine. He alleged that all of the defendants owed duties of care to act reasonably to obviate or minimise foreseeable risk of injury. He suffers from lung disease, primary lung cancer with metastatic spread to the liver, silicosis and rheumatoid arthritis. He alleges that these conditions were caused by the dust exposure which itself was caused by the negligence and breach of statutory duties of the defendants and the breach of contract by Daracon. Apparently, defences have been filed and particulars requested and provided but none of these documents was put before the Court.

7. Sadly, Mr Kelsall has a poor prognosis. According to a report dated 8 May 2025 from Dr Andrew Jensen, Mr Kelsall’s treating oncologist, Mr Kelsall’s life expectancy was at that date estimated to be to six to twelve months, subject to ongoing assessments and response to planned therapies. That estimate has now been updated in a refresher report served (consistently with orders of the primary judge on 3 June 2025) in July 2025. Mr Robertson SC, senior counsel for Mr Kelsall, informed the Court from the bar table (without objection from Ms Allars SC, senior counsel for Daracon, though it was noted that there was no evidence as to this) that Mr Kelsall’s updated life expectancy is 9 to 12 months from July 2025.

8. By order of 14 April 2025, Mr Kelsall was granted leave to file and serve a Second Amended Statement of Claim by 24 April 2025. The order placed no limitation upon the matters that might be included in the amended pleading (nor was the leave limited to the form of any draft). The order was made at a directions hearing on 14 April 2025 in response to concerns raised by Daracon at that directions hearing as to the need for Mr Kelsall to amend his Statement of Claim to make it clear that he alleges exposure to dust at both coal mines and non-coal mines. It appears that the basis of these concerns was to enable Daracon to determine that different insurers were on risk for, respectively, coal mine and non-coal mine liability; and Daracon flagged an intention to seek to have separate legal representatives instructed to deal with the latter. Reflecting a misapprehension as to the “parties” to the proceedings discussed further below, Mr Terrence Rowles (counsel then appearing for Daracon) submitted that the question was whether Mr Kelsall could rely upon the Statement of Claim “in respect of the liability of the non-coal mining insurance [sic]”. It was also submitted by counsel for Downer EDI that particulars of employment provided by Mr Kelsall had gone beyond the pleaded periods and places of dust exposure and that in these circumstances the Statement of Claim needed amendment.

9. On 24 April 2025, Mr Kelsall filed an Amended Statement of Claim. (Minor further amendments were made to this in the April pleading but nothing turns on them and they may be passed over.) The matters particularly complained of in the Motion were new paragraphs 5A to 5C and 6C. These alleged a further period of employment, between around 2006 until 2008, when Mr Kelsall was employed by Woodlands Pastoral Contracting Pty Ltd (Woodlands), during which employment “[the] Plaintiff worked as a water truck driver at the Boggabri Mine, during which he was exposed to and inhaled silica dust, coal dust and mixed dust” ([5A]). It also alleged that, while working for Woodlands, Mr Kelsall drove a tip truck on a residential subdivision at Mornington Heights in Gunnedah, where he was exposed to dust ([5B]). Mr Kelsall alleged that at all times while working at the Boggabri Mine and at Mornington Heights as Woodlands’ employee, “his work was directed, supervised, [and] controlled [by], and he reported to, Daracon” ([5C]). The new pleading also alleged that at the times from mid-2008 to around August 2009, and between April and November 2010 when he was employed by Daromin Engineering Pty Ltd (Daromin), “his work was directed, supervised [and] controlled [by], and he reported to, Darcon” ([6C]). Finally, it was alleged that there were ten other sites, in addition to Boggabri Mine and Tarrawonga Coal Mine, at which the plaintiff worked during his employments with Daracon and Daromin ([6B]).

10. The changes were thus threefold:

1. An allegation that, within the original period from 2008-2022, there were two relatively short periods during which he was employed by Daromin but was directed, supervised and controlled by, and reported to, Daracon.

2. An allegation that in a period between 2006-2008 (before the original period) he worked for Woodlands but was controlled directed, supervised and controlled by, and reported to, Daracon.

3. An allegation that there were ten additional sites at which he worked while employed by Daracon or Daromin.

11. As Mr Kelsall submitted at the time, he could have advanced those claims by way of separate proceedings, and sought to have the proceedings consolidated, as there was no limitation period or other impediment to him so doing.

12. Daracon filed affidavits of its solicitor, Mr David Andersen, affirmed 1 May 2025 and 19 May 2025, in support of the Motion. Mr Andersen explained that he was instructed by Daracon on 29 April 2025 and spoke broadly of the work that he anticipated would be required, or had been done to date, to prepare for a hearing of the claims in the new pleading. In his affidavit of 1 May 2025, when Mr Andersen had only been instructed for a couple of days and, on his affidavit evidence, had yet to review or become familiar even with the procedural history, he estimated that Daracon would require at least 6 months to be ready for a hearing. Mr Andersen did not return to that estimate in his later affidavit. (In passing, Mr Andersen must have had some familiarity with at least part of the procedural history of the proceedings since he had previously been instructed by another, now former, party – Santos Ltd.)

13. Daracon also relied upon written submissions dated 23 May 2025, which totalled 14 single-spaced pages, in which Daracon drew specific attention to ss 56-60 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) and submitted as follows:

1. It would not be just, quick and cheap for the purposes of s 56 of the Civil Procedure Act to excuse, by the grant of leave nunc pro tunc, the fact that leave was not given to plead (what it called) the Occupier Liability Claim, particularly in circumstances where Mr Kelsall had had multiple opportunities over three years to raise that claim.

2. If forced to meet the Occupier Liability Claim on short notice, Daracon would be put at risk of not receiving a “just determination” for the purposes of s 57(1)(a) of the Civil Procedure Act.

3. Mr Kelsall had had control over the progress of the proceeding. He had not been timely in seeking leave to plead the Occupier Liability Claim and his lack of expedition had not arisen from circumstances beyond his control, these being matters relevant under s 58(2)(b)(ii), (iii) and (v) of the Civil Procedure Act.

4. The Occupier Liability Claim raised complex causation issues and required Daracon to investigate matters approximately 15 – 20 years old, concerning multiple work sites. The degree of difficulty and complexity involved tended against a grant of leave, having regard to s 58(2)(b)(i) of the Civil Procedure Act.

5. Daracon would not be able adequately to meet the Occupier Liability Claim on short notice, such that a grant of leave would cause it a high degree of injustice, which militated against such a grant having to 58(2)(b)(vi) of the Civil Procedure Act.

6. Mr Kelsall had not explained why the Occupier Liability Claim was not previously raised, being an “other matter” relevant to the exercise of discretion under s 58(2)(b)(vii) of the Civil Procedure Act.

14. Detailed submissions were made in respect of each of ss 56-60.

15. The Motion was heard by the primary judge on 25 May 2025. At that hearing Daracon was represented by no fewer than three legal representatives: Mr Rowles in respect of any injury as a coal miner in a coal mine in New South Wales, Mr John Tryon in relation to any allegation of exposure during employment not in or about a coal mine in New South Wales, and Mr Andersen in respect of Mr Kelsall’s alleged dust exposure for which Daracon was said to be responsible but not arising out of employment by Daracon. We shall return to this below.

16. The primary judge sought time during the hearing to read Mr Andersen’s written submissions. In oral submissions Mr Andersen contended that the amended pleading was filed without leave when regard was had to the “intent and scope and purpose” of the direction of 14 April 2025. He submitted, in these circumstances, by detailed reference to ss 56, 57, 58, 63 and 64 of the Civil Procedure Act and the various sub-paragraphs thereof and Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (Aon) that the proper procedural course was for Mr Kelsall to seek leave. He said that the “whole point” was “that the defendant must have an opportunity – a proper opportunity to investigate [the new claims] and form a view [to] engage in intelligent settlement negotiations”.

17. The primary judge reserved and, on 3 June 2025, granted leave nunc pro tunc to Mr Kelsall to amend his pleadings in accordance with the extant Further Amended Statement of Claim which had been filed on 29 April 2025. His Honour also dismissed the Motion, reserving costs.

18. In the reasons for judgment, the primary judge agreed with Daracon that Mr Kelsall had not been granted leave to amend his pleadings so as to incorporate the Occupier Liability Claim, but considered that leave should be granted nunc pro tunc, to allow Mr Kelsall to rely on the further Second Amended Statement of Claim so as to add that new cause of action. It is convenient to reproduce the reasons for this conclusion below (to which emphasis has been added):

[26] Having regard to the fact that this case has not been set down for trial, and because in my view Mr Andersen can be given a sufficient opportunity to properly represent Daracon (OL), I will treat the failure to comply with the amendment provisions as an irregularity which does not invalidate the proceedings – s 63(2) of the [Civil Procedure Act].

[27]    In my view I should exercise my powers to allow amendments and make orders dealing with the proceedings generally, to regularise the latest version of Mr Kelsall’s pleadings filed on 29 April 2025. True it is that Mr Kelsall’s solicitors stated that they would make no formal application to bring Daracon (OL) into the proceedings, but Mr Tzouganatos took the Falstaffian position that discretion was the better part of valour, and made such an application orally on the hearing of the Dismissal Motion

[28] The power to amend documents generally is to be found in s 64 of the [Civil Procedure Act]. Section 58 of the [Civil Procedure Act] requires the court to follow the “dictates of justice”. Having regard to the stage that the proceedings have reached, and because Mr Andersen can be given sufficient time to properly prepare any defence of Daracon (OL), I propose to make an order nunc pro tunc under s 63(3)(b) and s 64 of the [Civil Procedure Act] for Mr Kelsall to have leave to amend in accordance with the pleading already filed on 29 April 2025.

[29]    The effect of this will be to leave Mr Andersen and his client Daracon (OL) in the proceedings. Mr Andersen has raised complaint on several occasions, and in his affidavits, that having been brought into the proceedings relatively late, and given that there will need to be an expedited hearing having regard to the terminal prognosis of Mr Kelsall, he would not have sufficient time to prepare the case for Daracon (OL). I note that Mr Andersen has achieved a considerable amount of progress already, even though he has only had a short time. The matter will have to be case managed, and the Tribunal will monitor preparation for the hearing, including giving consideration to any indulgence to be granted to Mr Andersen so that he can properly represent his client.

[30]    The affidavit by Mr Kelsall dated 22 April 2025 is a very detailed document, and at the very least Daracon (OL) should soon be in a position to participate in the taking of the plaintiff’s evidence. While it may be the case that there was a prior statement of Mr Kelsall which is in some respects inconsistent with the affidavit, and while there may have been earlier pleadings and particulars which are inconsistent with that affidavit, that is very much a forensic problem to be faced by Mr Tzouganatos. Such prior inconsistent statements will presumably provide fertile ground for cross examination of Mr Kelsall concerning his employment and general industrial history.

[31]    Daracon (WCNI) is in the same position as Mr Andersen’s client having only recently come into the matter. However, Daracon (CMI) has been in the matter for a considerable period of time, and presumably has done some of the work necessary to prepare the case for hearing on behalf of Daracon (WCNI) and Daracon (OL). Similarly, the first and third defendants have been in the case all along, and they too must have taken some steps to prepare their cases. All of this material should be made available to the legal representatives for Daracon (WCMI) and Daracon (OL).

The status of the April pleading

19. The parties’ agreed position in this Court was that the primary judge was correct to find that the April 2025 amendments were not authorised by an earlier grant of leave. There is accordingly no occasion to consider whether the unqualified grant of leave was impliedly limited in a way which precluded the amendments.

20. Proceeding on the common ground that the amendments was not authorised by leave, it was an irregularity within the meaning of s 63 of the Civil Procedure Act, and, subject to the power in s 63(3) to make orders, the fact the Further Amended Statement of Claim filed in April 2025 went beyond the grant of leave did “not invalidate the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings”: s 63(2).

21. It is convenient to mention this because the principal proposed ground of appeal turns on the consideration given by the primary judge to the “real issues” in the proceedings. Ms Allars SC was adamant that binding authority held that those issues did not extend to the issues introduced by the April pleading – even though it was on the strength of those issues that the unqualified appearance filed by Daracon was withdrawn and Mr Andersen, appearing for Daracon for claims against Daracon other than arising out of Mr Kelsall’s employment, was permitted to intervene and indeed to take the lead in seeking the amendments to be struck out. We deal with this contention below.

22. After argument occupying most of the day, the primary judge by a reserved judgment granted leave nunc pro tunc for the amendment. As noted at the outset, it is from that order that an application for leave to appeal is brought.

Parties

23. Enough has been said to indicate that: (a) there have been some unusual procedural decisions concerning parties in this litigation and (b) the prejudice to which Daracon pointed to in this appeal arose largely from the decision to appoint new solicitors, in late April or early May 2025, to respond to the “new” claims made against Daracon as occupier or controller. As will be seen below, the steps taken in the Dust Diseases Tribunal led to further procedural difficulties in this Court, and the question of parties was the subject of relatively extensive oral submissions. In those circumstances, a more detailed examination of the position is warranted.

24. Questions of parties to an action once occupied text books, notably A V Dicey, A Treatise on the Rules for the Selection of the Parties to an Action (William Maxwell & Son, 1870). The principle applied by chancery was that all persons materially interested in the subject-matter of the suit ought generally to be made parties to it either as plaintiffs or defendants so as to settle the controversy by binding those interested to the final decree: see F Calvert, A Treatise Upon the Law Respecting Parties to Suits in Equity (2nd ed, 1847, W Benning) at 2-3, cited in Wong v Silkfield Pty Ltd (1999) 199 CLR 255; [1999] HCA 48 at [13]. That principle now applies generally to civil litigation, and is reflected in r 6.24 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), which applies in the Dust Diseases Tribunal (see r 1.5 and Sch 1). Critical aspects of this appeal reflect the converse proposition, because hitherto the litigation seems to have proceeded on the basis that different insurers, who are not parties but who are materially interested in the litigation, have an entitlement separately to appear.

25. The position is not novel. Fifteen years ago, Young JA concluded his reasons in Elphick v Westfield Shopping Centre Management Company Pty Ltd [2011] NSWCA 356 at [11]; (2011) 216 IR 41 with the statement:

I have spent a little time dealing with this matter because it seemed to me from reading the transcript before the District Court and from hearing counsel, that it now appears to be assumed that where different insurers are involved, that there is a right for each to have its own counsel and solicitors appear in the name of the nominal party. This myth should be exploded.

26. See also Van Eeden v Henry (2005) 62 NSWLR 301; [2005] NSWCA 14 at [39] where Spigelman CJ said that double representation was “not a practice which this Court should encourage”. More recently, N Adams J in Spotlight Pty Ltd v Maintek Roofing Pty Ltd [2017] NSWSC 165 (Spotlight) at [25] referred to what was said by this Court in Tindle v Ansett Transport Industries (1990) 21 NSWLR 492 at 500 that to permit separate representation in the circumstances of that case presented a real risk of serious injustice, and to the comments made by Adamson J (as her Honour then was) in Buses and 4WD Hire Pty Ltd v Oz Snow Adventures Pty Ltd [2016] NSWSC 1017 at [28]:

Where there are two counsel appearing for a party, who are separately instructed, there is the potential for the party to be putting propositions which are inconsistent. This, in turn, has a substantial potential to create confusion, increased cost and prejudice to the administration of justice and, accordingly, is only warranted when the interests of justice require it. The authorities cited are redolent with references to the deleterious consequences of allowing separate representation such that the present application must be approached with a high degree of caution.

27. In Spotlight, N Adams J stated that “allowing separate representation should be rare and done only to avoid injustice”: at [28].

28. Much of the difficulty giving rise to this interlocutory appeal stems from the perception that, without more, a defendant is entitled to appear in multiple limited “capacities” by separate solicitors and counsel merely because two or more insurers have issued policies responding to different claims against that defendant. That is not the law, although that is not to deny that there may be occasions where such a course is warranted.

Factual background with attention to the multiple representation of Daracon

29. The multiple representation of Daracon came about without regard to those principles. It is desirable to explain how that occurred.

30. The plaintiff sued Daracon as the second defendant. By Mr Kelsall’s original Statement of Claim filed on 13 December 2023, Daracon was alleged to have been his employer at all material times, including between 2008 and 2022 when he worked at the Boggabri Mine and the Tarrawonga Coal Mine. Sparke Helmore filed a notice of appearance for Daracon. Daracon’s defence was not included in the white folders. However, it seems likely that any admission to the allegation that Daracon was Mr Kelsall’s employer was qualified, because Mr Kelsall’s Amended Statement of Claim filed on 19 December 2024 alleged in paragraph 6 that “[f]rom a date in about late August 2009 to a date in about April 2010, and again from a date in November 2010 to a date in 2022” he was employed by Daracon, and by new paragraph 6A alleged that in the period from about mid-2008 until August 2009, and from around April 2010 to around November 2010, he was employed by Daromin in and around Boggabri Mine where he was exposed to and inhaled silica dust, coal dust and mixed dust. Daromin was not joined. This amendment was not said to give rise to any difficulty. Pausing there, it is difficult to avoid the conclusion that those acting for Daracon must have been aware of the claim that there were times in 2008 and 2009 when Mr Kelsall said he was exposed to dust whilst working in the Boggabri Mine but was not an employee of Daracon.

31. As already noted, further amendments to the pleading were made by Mr Kelsall in April 2025, the substance of which is summarised above.

32. The matter came before the primary judge in the Dust Diseases Tribunal on Monday 28 April 2025. By then, the plaintiff had served a lengthy affidavit, and it was proposed that his oral evidence be taken on 1 May 2025. At that stage, Mr Andersen appeared for the second cross-defendant (Santos Ltd) and Mr Rowles appeared for Daracon. There was also an appearance by Ms McKenzie, solicitor. She announced her appearance as “amicus curiae for Workers Compensation Nominal Insurer, which is potentially representing the non-coal mine insurance period of Daracon”. The primary judge clarified that the appearance was “amicus for the Workers Compensation Nominal Insurer in the interests of Daracon as an employer for non-coal mine employment”. It is plain from what happened thereafter that the appearance was not that of an amicus, but was partisan, but nothing turns on this.

33. Mr Rowles flagged that he would be seeking separate representation for Daracon, and said that the allegation in paragraph 6C caused a difficulty, “because that is an allegation to which neither my policy [nor] Ms McKenzie’s policy responds to [sic]”.

34. Ms McKenzie elaborated the position as follows:

I would like to inform the Court that at 5 o’clock on Thursday afternoon, I informed Daracon directly of the issues that are presented with the further amended statement of claim. I liaised with their chief financial officer over the course of the weekend. They are aware that they need separate representation or that their public liability insurer needs to be represented in these proceedings. Obviously they are not here today. They did not give me any indication that they would be here today, but they are aware of the issue.

35. That statement was not completely correct. Daracon was before the Court, as it had been from the outset of the litigation, being represented by counsel retained by its solicitor on the record who had filed an unqualified appearance – albeit that he was flagging an intention to apply to subject that appearance to conditions.

36. Counsel for Mr Kelsall responded, relevantly, as follows:

… I would have thought that Daracon needs to make a decision as to who is on the record for the company. Because it might be that it wishes to proceed in a different way or it wishes to deal with its various insurers in a different way, so that one possibility is it files an appearance for itself and then it cross-claims against its insurers. I do not know, but I am just flagging the issue that Daracon probably needs to be heard in relation to how this is going to apply moving forward. If that means, your Honour, that we cannot take the plaintiff’s evidence on Thursday, I can see the rationale. I can see that Daracon needs to be here. So that is all I really wanted to add.

HIS HONOUR: Yes. it is going to be an unholy mess if we take the plaintiff’s evidence on Thursday. I imagine he is not well. But then a party comes along later on and says, “Well I didn’t have the chance to be heard and I’m being blamed in part for this man’s diseases”.

37. Counsel added that he had spent hours in conference with the plaintiff over Easter and “did not form the impression that he was in imminent danger”, despite his lung cancer having metastasised to his liver.

38. On that basis the scheduled hearing of the plaintiff’s evidence three days later was vacated.

39. It will be seen that argument proceeded on the basis that Mr Rowles did not act for his client Daracon in all respects, but only for his client insofar as it was said to be liable for coal-mine related damage. But at that stage, there was an unqualified appearance by Daracon by his instructing solicitor, accompanied by a flagged application to purport to qualify that appearance.

40. The matter returned to the Dust Diseases Tribunal on 2 May 2025. There was a dispute about discovery. It seems that the cross-claim against Santos Ltd was resolved. There were appearances by Mr Rowles, Mr Tryon and Mr Andersen. Mr Rowles appeared “for Daracon in the interests of Coal Mines Insurance … who are the insurers in respect of anything that occurred to the plaintiff whilst employed as a coal miner in or about a coal mine in New South Wales”. Mr Tryon appeared “for Daracon in the interests of the Workers Compensation Nominal Insurer”. Mr Andersen appeared once more, but this time for Daracon “in its capacity other than [as] the plaintiff’s employer”. There followed this exchange:

HIS HONOUR: … Can we say you appear in the capacity as a public liability insurer; is that the best way to put it?

MR ANDERSEN: That would be another way, or as an occupier’s liability allegation.

HIS HONOUR: All right. Well, that is probably even better. Daracon in its capacity for occupier’s liability.

41. It is with respect far from clear that “Daracon in its capacity for occupier’s liability” is a better description. Parts of the Amended Statement of Claim no doubt sought to find Daracon liable on the basis that it was the occupier of various of Mr Kelsall’s workplaces. However, it will also be seen that by his amendments Mr Kelsall sued Daracon for periods of time when his legal employer was another company, but he worked under the control and direction of Daracon, in other words, as it is sometimes put, when Daracon was the “host employer” (see for example Mt Owen Pty Ltd v Parkes [2023] NSWCA 77; (2023) 324 IR 34).

42. The difficulties caused by Daracon’s multiple appearances immediately manifested:

HIS HONOUR: Mr Andersen appears for Daracon both as D2 and as cross-claimant one on cross-claim two, no?

MR ANDERSEN: I have not filed a cross-claim, your Honour. I came into this –

HIS HONOUR: But there is a Daracon cross-claim.

MR ROWLES: Yes. That is my cross-claim in, and –

HIS HONOUR: I am sorry, yes. … let me go back. On cross-claim two, the cross-claimant Daracon Engineering is a cross-claim simply brought by Coal Mines Insurance.

Mr ROWLES: That is correct, your Honour.

HIS HONOUR: I follow. So Mr Tryon as the non-coal mining insurer, you do not appear for Daracon on cross-claim two, is that right?

Mr Tryon: No. I do not, your Honour.

43. After discussion of the issues of discovery, there was the following exchange:

HIS HONOUR: All right. So Mr Tryon has very properly raised the question of a separate representation order. My instinctive reaction is there has to be separate representation of Daracon split three ways. Mr Rowles, you are on the record, but you would want your involvement confined to CMI?

MR ROWLES: I am your Honour. Will be.

44. Proposed orders were supplied to his Honour. Counsel for Mr Kelsall was asked whether he had any problems and he said that he foresaw problems with discovery but did not oppose it “so long as it did not mean a duplication or a tripling of the defendant’s ability to, for example, have the plaintiff examined, or serve expert evidence, or ask questions on common issues or quantum issues”. He observed that the starting point was that Daracon was represented by Sparke Helmore by a notice of appearance, and said that this was relevant to the arguments to be raised by Mr Andersen, because “[w]e are not dealing with a situation where Daracon is a new party to the case”. He said that the document appeared to show that “the plaintiff was transferred between Daracon Engineering and Daromin at the whim or at the will of the HR Manager of Daracon”. He concluded:

… so long, your Honour, as we are not having to deal with three sets of lawyers for Daracon, each having separate medical and expert evidence on the same issues, then I do not foresee any difficulty, but I am aware your Honour that traditional the law has discouraged this kind of separate representation”.

45. Those difficulties were left for case management. The orders supplied by Mr Rowles were made. They were as follows:

1.   That Rankin Ellison be granted leave to separately appear in the interests of the Workers Compensation Nominal Insurer to defend the plaintiff’s claim arising from his alleged exposure to silica dust, coal dust and mixed dust whilst employed by the second defendant, Daracon Engineering Pty Ltd, in work not being work in and about a coal mine in NSW.

2.   Note Sparke Helmore represent the second defendant, Daracon Engineering Pty Ltd, in respect of the plaintiff’s claim arising from his alleged exposure to silica dust, coal dust and mixed dust whilst employed by the second defendant, Daracon Engineering Pty Ltd, in and about a NSW coal mine only.

3.   That HWL Ebsworth be granted leave to separately appear in the interests of Daracon Engineering Pty Ltd to defend the plaintiff’s claim arising from his alleged exposure to silica dust, coal dust and mixed dust in work not being work in the course of the plaintiff’s employment by Daracon Engineering Pty Ltd.

46. The matter returned to Court on 23 May 2025, when the primary judge heard submissions on the Motion, the outcome of which gives rise to this application for leave to appeal.

The multiple appearances of Daracon in the Dust Diseases Tribunal

47. To reiterate, Mr Kelsall sued Daracon as the second defendant. After the April pleading, it was clear that Daracon was sued for negligence causing the same damage, but in different capacities: as his legal employer, as the host employer and occupier of sites where he worked. Further, because working in coal mines is subject to special regulation, a different insurance policy responded to Mr Kelsall’s allegations based on work in a New South Wales coal mine as opposed to work not in a New South Wales coal mine.

48. The orders were made without strenuous opposition, and reflect an approach previously adopted by the Dust Diseases Tribunal constituted by the primary judge, and coincidentally involving the same solicitor. In the ex tempore decision of O’Malley v BlueScope Steel (AIS) Ltd [2024] NSWDDT 8, and without reference to the authorities collected above concerning the exceptional nature of such an order, it was said at [25]:

I pause to remark that while Mr Andersen presently acts for one party, BlueScope, if he remains on the record for all of BlueScope, he will have two clients, being BlueScope as a self-insurer and CMI as the insurer for BlueScope on the Wongawilli Colliery. I do not read the word “client” as a party to the litigation. The reality is that any solicitor appearing for a defendant in proceedings in this Tribunal is almost always instructed by an insurer, and the insurer is the client to whom duties are owed.

49. True it is that most defendants in the Dust Diseases Tribunal are insured. However, the orthodox view is that the named party will be the solicitor’s client in those circumstances, although the insurer may also be the solicitor’s client. That was the view expressed by this Court, after a review of authority, in Mercantile Mutual Insurance (NSW Workers Compensation) Ltd v Murray [2004] NSWCA 151; (2004) 13 ANZ Ins Cas 61-612 at [50], and was applied by a Full Court of the Federal Court in Avant Insurance Ltd v Darshn [2022] FCAFC 48 at [45]-[46]. For the purposes of litigation, where a solicitor has as his or her clients both a named party and an insurer, it is likely that the relevant duties will be those owed to the named party, including the duties owed under ss 56 and 57 of the Civil Procedure Act, as opposed to the insurer which may be funding that party’s defence, even if the insurer has given complete indemnity and has taken over the defence (the position is quite different if the insurer is joined).

50. But to return to the orders made without strenuous opposition on 2 May 2025, those orders give rise to a series of practical questions, as were anticipated by Adamson J in the passage reproduced above.

51. In advance of trial, how do any of the solicitors each purporting to appear for Daracon take steps to assure themselves that their client has discharged its obligations to give discovery? How does an admission by Daracon in one capacity not bind Daracon in another capacity? Is each firm of solicitors permitted to retain its own medical experts? Is the plaintiff liable to be medically examined three times over? May each firm issue subpoenas? Do the answers to the previous three questions depend merely on whether there is a reasonably held difference of opinion between two or more of the three legal teams appearing for Daracon? If these questions are regarded as being determined simply by the commercial interests of various insurers, is it really suggested that the same party in one capacity can cross-claim against itself for statutory contribution or indeed a complete indemnity?

49. Turning to the trial, is Daracon permitted to cross-examine by three counsel? If so, are there limitations upon the subject-matters of such cross-examination? May counsel return to topics already addressed by earlier cross-examination conducted by counsel appearing for the same client? Is only one counsel permitted to cross-examine on credit? Or quantum? If the plaintiff succeeds in his claim against Daracon in one capacity obtaining a substantial judgment, but fails in his claim against it in another capacity, does Daracon become a judgment debtor in its first capacity, but obtain a judgment in its favour in its second capacity? How are issues of a general nature, for the purposes of s 25B of the Dust Diseases Tribunal Act, to be framed in such a case?

50. There are apt to be other procedural difficulties. Simple agreements as to the admissibility of evidence, or limiting orders under s 136 of the Evidence Act 1995 (NSW), or agreements that enough has been done to satisfy the rule in Browne v Dunn (1893) 6 R 67 (HL), or agreed positions on minor questions of fact, may become triply complicated.

51. And then there are costs. It is palpably clear that a party which is represented by more than one firm retaining more than one counsel will incur more costs. Suppose the plaintiff obtains a substantial judgment against the defendant as employer, but fails against the defendant as occupier – do costs follow the event such that the plaintiff is entitled to a favourable costs order against Daracon in one of its capacities, but is at risk of an adverse costs order merely by reason of the fact that Daracon has chosen and has been permitted to retain two sets of lawyers? Suppose the plaintiff fails. If Daracon is entitled to retain three sets of lawyers, is Mr Kelsall at risk of being liable to more than one set of costs?

52. The ordinary position was stated by Stevenson J in Bettergrow Pty Ltd v NSW Electricity Networks Operations Pty Ltd as trustee for NSW Electricity Networks Operations Trust t/as TransGrid [2017] NSWSC 658 at [15]-[16]:

It is common ground before me that, generally speaking, the notion that one party can be represented by two sets of legal representatives in the one proceeding is regarded as being contrary to the proper practice of the court: Elphick v Westfield Shopping Centre Management Company Pty Ltd [2011] NSWCA 356.

It is easy to see why. Numerous practical and likely unforeseeable difficulties may well arise if one party is represented by two sets of legal representatives. Such difficulties could arise in relation to the question of which counsel cross-examines which witness and in what order, and in relation to the question of orders of addresses and subject matters of addresses. Obviously to permit one party to be represented by two sets of legal representatives would also increase the cost of proceedings.

56. In exceptional cases, the ordinary rule that a party is represented by a single firm may be departed from. What seems to be the position in the present litigation is that as a matter of course, the same party has obtained leave to appear multiply in the same litigation by reference to the identity of the insurer which may be liable for particular claims alleged by the plaintiff.

57. The foregoing matters do not, subject to what is said below, directly arise on this application for leave to appeal. However, they should not pass unnoticed, and litigation should not proceed on the basis that the multiple representation which has been ordered in the present case is available as of right or is desirable.

58. Further, the time to address prejudice is at the time the orders are made, not when it arises. It is highly desirable, if orders are made permitting a party to be multiply represented, for it to be clear to all litigants and their lawyers whether there is any additional risk as to costs of the plaintiff and whether any overlap of steps taken pre-trial or during the trial is to be permitted. At the conclusion of the hearing in this Court, counsel for Coal Mines Insurance Ltd intervened, in part to stress that the practitioners and judges were experienced and sympathetic to the needs of plaintiffs in cases such as this. So much may be accepted, but it is no substitute for conditions being imposed at the time when, in unusual or exceptional circumstances, leave is granted for a defendant to appear by more than one set of legal representatives.

The appearances in this Court

59. These considerations came to the forefront when Daracon sought leave to appeal. Its summons seeking leave to appeal described the applicant, consistently with the qualified appearance granted by the Dust Diseases Tribunal, as “Daracon Engineering Pty Ltd, for the first respondent’s alleged exposure to silica dust, coal dust and mixed dust in work not being work in the course of the plaintiff’s employment by Daracon Engineering Pty Ltd”. The third and fourth respondents were, on the face of the summons, parties which had not been joined below. They were styled as “Workers Compensation Nominal Insurer, for the first respondent’s alleged exposure to silica dust, coal dust and mixed dust in work in the course of the plaintiff’s employment by Daracon Engineering Pty Ltd in work not being work in and about a coal mine in New South Wales” and “Coal Mines Insurance Pty Ltd, for the first respondent’s alleged exposure to silica dust, coal dust and mixed dust in work in the course of the plaintiff’s employment by Daracon Engineering Pty Ltd, in and about a New South Wales coal mine only”.

60. It is easy to see why the drafter of the summons took that course. Presumably, it was to avoid the problem of Daracon in its capacity as employer being the respondent to an appeal brought by Daracon in its capacity as a non-employer. If what counsel for Mr Kelsall told the Dust Diseases Tribunal is right, then Mr Kelsall worked in Boggabri Mine in 2009, for part of the time with Daracon as his legal employer, for part of the time with Daromin as his legal employer, but at all times subject to the direction and control of Daracon. Daracon’s differing position as legal or host employer may affect its insurance and the ways in which it may be found liable. But it is very difficult to see how Daracon in its capacity as non-employer can appeal from a decision adverse to it, joining itself in its capacity as employer. If there is a dispute between the insurers, either on appeal or at first instance, the appropriate course may be for the insurers to be joined and separately represented.

61. After these considerations were raised by the Court, we understood Ms Allars SC ultimately to concede that neither of those insurers should have been joined, and that Daracon (in all capacities) would be bound by the outcome in this Court by virtue of its being the moving party. That concession was properly made.

The additional evidence

62. Daracon sought leave to rely on the questions of leave and any re-exercise of discretion upon evidence additional to that relied upon at first instance. This comprised an email of 4 June 2025 to Mr Andersen from Mr Kelsall’s solicitor attaching a “Dropbox” link. The documents available via the link were not before the court, but the index to those documents was. It showed that the documents amounted to some 13,602 pages of material, which (from the descriptions) appears to be all correspondence, formal documents, evidence, material produced on subpoena and discovery in the proceedings up until that date. Given that Daracon was a party to the proceedings from its inception, we would infer that Daracon is likely already to have been familiar with all, or at least most, of this material, even though Mr Andersen who had only recently been instructed to deal with one aspect of the claims advanced in the April pleading probably was not. (As it happens, as adverted to above, Mr Andersen had previously appeared for a cross-defendant, Santos Ltd, in the same proceedings between 14 November 2024 and 29 April 2025, but we put this to one side.)

63. As Mr Robertson SC did not oppose leave being granted to rely upon the material for the limited purposes sought, leave was granted.

The refusal of leave to appeal

64. The principles guiding the exercise of the Court’s discretion to grant leave to appeal are well established. Generally, the applicant must demonstrate that there is an issue of principle, a question of public importance or a clear injustice which is more than merely arguable: see Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15] and the authorities to which reference is there made.

65. It is equally well established that the Court is reluctant to grant leave to appeal in relation to matters of practice and procedure: see In the matter of the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318 at 323. Daracon submitted, however, that despite the ordinary appellate restraint concerning review of decisions of practice and procedure, “the drastic impact of the amendments on Daracon’s ability to properly defend itself in the urgent hearing necessitate this Court’s intervention”.

66. We start with the question of injustice. Daracon advanced detailed submissions, both in writing and orally, that leave to appeal should be granted as otherwise there would be injustice to Daracon given the compressed period that it would have to prepare for a hearing. Ms Allars SC contended that the question of injustice should be approached by reference to the observation of the primary judge in giving a ruling on directions on 3 June 2025 that, having regard to the evidence then available as to Mr Kelsall’s life expectancy the parties should not be progressing towards a hearing as late as September 2025.

67. The question of injustice should not be approached on that basis. Both the starting point and the end point of that timeframe are wrong.

68. For one thing, Daracon was not a party newly joined to the proceedings. It had been the second defendant from the outset in December 2023. True it is, that in respect of new claims against it based on its being an occupier and controller, as opposed to an employer, it had chosen to retain new solicitors. But insofar as Daracon sought to rely on prejudice occasioned by the inability of the new solicitors to defend this aspect of the claim against Daracon, it was necessary for it to explain why the new solicitors had been retained, and why it had not been possible for the existing solicitors to act for it. This did not occur.

69. Secondly, and more importantly, there is no reason to assess injustice on the basis that the trial will necessarily be heard by or before September 2025. On 3 June 2025 the primary judge made it plain that his views as to the likely timing of the hearing of Mr Kelsall’s claims were based upon the evidence then before him but that Dr Jensen would provide an updated opinion about prognosis after Mr Kelsall had undergone chemotherapy. His Honour made it clear that he considered that he needed to give all defendants ample opportunity to get ready for hearing, and that once everyone was ready, he would impose dates. He then made orders for discovery, further particulars, further evidence from Dr Jensen and further expert evidence, and stood the matter over for directions on 22 July 2025. There was nothing to suggest that Daracon has been unable to comply, or has not complied, with the orders binding on it. It was common ground that the matter is listed for further directions on 18 August 2025 when it is anticipated that matter will be listed for hearing.

70. Daracon did not seek to rely upon any material beyond Mr Andersen’s affidavits from 1 and 19 May 2025 and the email of 4 June 2025 and its attached index in support of its contentions either that it would suffer injustice if leave were not granted or that, if leave were granted and error identified, this Court should re-exercise its discretion and strike out the paragraphs in the Further Amended Statement of Claim complained of. That is to say, Daracon did not place before this Court any evidence which sought to establish that Daracon could not now be ready for a hearing of all of Mr Kelsall’s claims against it within Mr Kelsall’s period of life expectancy or even by September 2025 as was originally proposed by the primary judge on 3 June 2025. Mr Andersen’s estimate in his affidavit of 1 May 2025 that, without having read into the file, he expected that it would take at least six months for Daracon to prepare for hearing fell well short of establishing injustice. Indeed, the absence of any evidence from Daracon that Mr Andersen cannot now prepare for a hearing within a reasonable period of time tells strongly against the contention of injustice. It equally tells strongly against the interests of justice being served by striking out the paragraphs of the pleading complained of, which is the relief sought by Daracon in its proposed amended notice of appeal.

71. Why should a dying plaintiff be precluded from suing on all of the breaches he complains were committed by Daracon, his former employer for many years, because for some of that period other entities were his legal employer, and Daracon has chosen to retain different solicitors to defend those aspects of Mr Kelsall’s claim? Even if it be accepted that three months ago the new solicitors faced difficulties in preparing the case, more than three months later they have supplied no evidence that they will be unable to defend a claim which, to this day, has not yet been given a hearing date and will not be given a hearing date without further hearing from those solicitors.

72. For those reasons, we were not satisfied that there would be any injustice to Daracon if leave to appeal were refused. There is no material before us which supports a conclusion that Daracon could not be fully prepared for trial on such date as is determined next week. The primary judge has given a clear indication that the parties will be given a fair opportunity to prepare for the hearing, and there is no reason to doubt that that is exactly what will occur.

73. We were also not satisfied that this application for leave to appeal raised any question of principle. Rather, the three grounds of appeal amount to little more than a criticism of the manner in which the primary judge exercised his discretion on a matter of practice and procedure. The applicable principles of law are in no doubt. The only issues raised were whether they were properly applied.

The absence of merit in the proposed grounds of appeal

74. We were also not satisfied that any of the grounds of appeal had any real merit.

75. The three proposed grounds, as elaborated orally, are as follows:

1. The Dust Diseases Tribunal failed to apply s 58 of the Civil Procedure Act.

2. The Dust Diseases Tribunal failed to consider Daracon’s submissions.

3. The Dust Diseases Tribunal failed to give adequate reasons.

76. Before addressing these grounds in more detail, it should be emphasised that, under s 32(1) of the Dust Diseases Tribunal Act, appeals to this Court from decisions of the Dust Diseases Tribunal may only be made by a person dissatisfied “in point of law or on a question as to the admission or rejection of evidence”. Properly construed, s 32(1) does not require a party to identify an explicit or implicit decision made by the Dust Diseases Tribunal on a question of law; rather, it is sufficient that a party is dissatisfied in point of law with a decision of the tribunal: see Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [149] and Amaca Pty Ltd (under NSW administered winding up) v Raines; Seltsam Pty Ltd v Raines [2018] NSWCA 216 at [12]-[17]. It may be accepted that proposed grounds 2 and 3 may involve a point of law, but proposed ground 1, which was by far the most prominent ground sought to be developed is much more removed from any point of law, unless it be said (as it was said) that there was a failure to have regard to a mandatory relevant consideration. The difficulty with that submission is that the reasons of the primary judge clearly did have regard to the considerations made mandatory by the Civil Procedure Act.

(a) Ground 1: Failure to apply s 58 of the Civil Procedure Act

77. In exercising his power to grant leave under s 63(3) of the Civil Procedure Act, Daracon submitted that the primary judge failed to have regard to ss 56 and 57 of the Civil Procedure Act, neither of which was explicitly mentioned in his Honour’s reasons. This was said to constitute a House v The King failure (referring to House v The King (1936) 55 CLR 499; [1936] HCA 40) to have regard to mandatory considerations, noting that s 58(2)(a) of the Civil Procedure Act provides that the court “must have regard to the provisions of sections 56 and 57” when determining the dictates of justice in a particular case.

78. In response, Mr Kelsall denied that the primary judge overlooked ss 56 and 57 and submitted that the “whole of the primary judge’s reasons on the question of whether leave to amend should be granted were directed to those basal matters”. Mr Kelsall rejected the proposition that the primary judge was bound to refer specifically to ss 56 and 57, or to deploy the language of those sections, noting that in Choy v Tiaro Coal Ltd (In Liq) (2018) 98 NSWLR 493; [2018] NSWCA 205 (Choy) at [64] it was said (emphasis added):

However, it is, with respect, clear that the entirety of the reasoning, directed as it was to the efficient conduct of the proceeding, the criticisms of delay on the part of the liquidators and questions of prejudice to the applicants, implicitly reflected the overriding purpose in the rules and the particular instantiations of that purpose in these rules. Delay by the respondent and the explanation for it, prejudice to the applicants (whether demonstrated or presumptive) and knowledge by the applicants all feed directly into whether the discretionary exercise of power to set aside service will facilitate the just, quick and cheap resolution of the real issues in the proceedings. There was no requirement upon the primary judge expressly to mention either the purpose or the sections of the Civil Procedure Act which mandate giving effect to it.

79. Daracon responded by denying that Choy was applicable, for two reasons. First, Daracon said that the primary judge there did expressly have regard to s 56, which is not the case here. Secondly, Daracon submitted that the finding in Choy that the primary judge’s reasons “implicitly reflected the overriding purpose in the rules and the particular instantiations of that purpose in these rules” did not apply here.

80. Neither criticism of Mr Kelsall’s reliance on Choy is persuasive. It is true that the primary judge in the Choy litigation did have regard to s 56 of the Civil Procedure Act, but only “in the course of evaluating the competing constructions of the [Corporations Rules 1999 (NSW)]”. It was said in Choy that the “force of the applicant’s submission was that in the dispositive exercise of discretion, no express mention was made of [ss 56-59 of the Civil Procedure Act]”. It is an unduly narrow reading of the reasons at [64] to treat them as applying so long as some non-dispositive reference is made to s 56, but not otherwise. In any event, the primary judge did expressly refer to s 58 and did so specifically in dealing with the question of leave to amend. As noted above, that section refers to ss 56 and 57. Moreover, as previously mentioned, both parties expressly referred to ss 56-58 in their written and oral submissions. It can reasonably be assumed that the primary judge was familiar with, and considered, those particular sections.

81. Secondly, it is clear that the primary judge’s dispositive reasoning, read fairly, is implicitly concerned with the requirements of ss 56 and 57, and for that matter, as relevant, s 58.

82. In its written submissions in reply and in oral address, Daracon submitted that the Dust Diseases Tribunal failed to have regard to a number of other matters which could be considered under s 58(2)(b). These included:

1. The degree of difficulty and complexity involved in Daracon responding to the Occupier Liability Claim (see s 58(2)(b)(i)).

2. Mr Kelsall’s dilatoriness in bringing several interlocutory applications (see s 58(2)(b)(ii)).

3. Mr Kelsall’s failure to make use of earlier opportunities to seek leave to amend his pleadings to incorporate the Occupier Liability Claim (see s 58(2)(b)(v)).

83. At times in oral address Daracon appeared to submit that it was necessary for the primary judge to give specific and express attention to each subparagraph of s 58(2)(b). That is not so. Paragraph (b), as opposed to paragraph (a), does not include mandatory relevant considerations. As much is plain from the different language of “must” and “may”. No attempt was made to explain why, notwithstanding the permissive nature of this language, s 58(2)(b) should be construed as imposing mandatory considerations.

84. Finally, we do not accept Daracon’s submission that the “real issues” for the purposes of ss 56-58 of the Civil Procedure Act were those arising on the pleading before the amendments in the Further Amended Statement of Claim. First, although it was held that the amendment did not comply with the grant of leave, that was a mere irregularity; indeed, the fact that the amended pleading gave rise to additional issues was the basis for the grant of leave for Daracon to appear by three sets of lawyers. Secondly, the “real issues” may extend beyond the pleadings, as the High Court noted in Aon at [71]; see also Wang v Meng [2022] NSWCA 215. There is a deal to be said that the real issues in this case are to be expressed more generally: whether Daracon, in any capacity in which it was subject to a duty of care in respect of Mr Kelsall, breached that duty thereby exposing him to dust. However, it is not necessary to express a concluded view on that point.

85. Had there been a grant of leave, this ground would not have been made out.

(b) Ground 2: Failure to consider Daracon’s submissions

86. Daracon sought to engage the principle in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 (Dranichnikov), that the failure to respond to a substantial and clearly articulated argument can amount to a constructive failure to exercise jurisdiction and/or a denial of procedural fairness. Daracon referred to its “detailed written and oral submissions, supported by Mr Andersen’s evidence”, as to why the factors in s 58 did not justify a grant of leave to replead nunc pro tunc. It submitted that the primary judge was obliged but failed to consider and deal with those submissions. In relation to its submissions concerning s 58(2)(b), in particular, Daracon emphasised that there is nothing in the primary judgment which suggests that the primary judge considered the factors in s 58(2)(b) to be irrelevant.

87. Mr Kelsall denied that any Dranichnikov error was established. He referred to Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209 at [15], where it was observed that, in order to establish errors of this sort, “[t]he failure to address an issue must be of such significance as to warrant a conclusion that the decision-maker has failed to complete the exercise of its power by reason of having failed to engage with an issue of importance to the matter being resolved”.

88. Mr Kelsall also referred to Whisprun v Dixon [2003] HCA 48 at [62]; (2003) 77 ALJR 1498, where the joint judgment observed:

… A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.

89. In reply, Daracon reiterates its submission that there was nothing in the primary judgment which indicated that the primary judge considered the matters raised by Daracon to be irrelevant to the exercise of his discretion.

90. Daracon’s submissions in relation to s 58 were clearly articulated and sufficiently material. They needed to be sufficiently addressed. But, as a matter of substance, they were addressed.

91. This Court’s decision in Day v SAS Trustee Corporation [2021] NSWCA 71 is of some assistance. Meagher JA (with whom Payne and White JJA agreed) observed at [37] (citations omitted, emphasis added):

a constructive failure to exercise jurisdiction (or a purported exercise, in the sense that there is an appearance of an exercise of jurisdiction) as alleged by the appellant is not a mere failure to consider evidence or to address an argument or submission, which may be contingent or otherwise insignificant, but a failure to understand and determine a case or claim. The ultimate question is whether a failure to consider and address certain issues or arguments involved a failure to address central or critical elements of the case or claim … It will be insufficient for the appellant to show that his ‘three key issues’ were not stated and determined discretely. What he must show is that they raised ‘substantial’ (in the sense of clearly material) arguments or questions which the primary judge in substance failed to address in determining the appellant’s claim …

92. The primary judge was not required to isolate and determine individually each particular submission put by Daracon in relation to the exercise of the discretion under s 58. His Honour was required to address the substance of the arguments put or the questions raised by Daracon. The substance of the argument put by Daracon was that the dictates of justice, properly determined in accordance with s 58 (and related provisions), were such that leave to replead should be refused. That argument was dealt with. His Honour referred to s 58 and clearly considered that the dictates of justice favoured a grant of leave. He referred to the stage the proceedings had reached and the fact that, in his evaluative view, Mr Andersen could be given sufficient time to properly prepare any defence of Daracon. This view was elaborated on in the subsequent paragraphs.

93. We do not accept Daracon’s submission that there is nothing in the primary judgment which suggests that the primary judge considered its argument in relation to the factors in s 58(2)(b). As noted above, the primary judge was of the view that Mr Andersen had sufficient time to prepare Daracon’s case and explained, inter alia, that “Mr Andersen has achieved a considerable amount of progress already, even though he has only had a short time”. In circumstances where his Honour’s earlier reasons referred specifically to s 58, and where Daracon’s submissions concerning s 58(2)(b)(i) were directed to the fact that Mr Andersen would not be able to prepare given the complexity of the issues, it is quite clear that his Honour dealt with the substance of Daracon’s submissions on s 58(2)(b)(i).

94. For these reasons, no Dranichnikov error would have been made out if leave had been granted.

(c) Ground 3: Failure to give adequate reasons

95. Daracon complained that the primary judge did not accept Mr Andersen’s unchallenged evidence that he would not be able to prepare Daracon’s case to accommodate an expedited hearing having regard to Mr Kelsall’s terminal prognosis. Daracon submitted that the primary judge failed to explain why that evidence was not accepted, having simply stated (at [29]) that “Mr Andersen has achieved a considerable amount of progress already, even though he has only had a short time”. Presumably, this inference was drawn from the affidavits and other material which Mr Andersen was able to collate and produce in such a relatively short time. His Honour was impressed by the facts that Mr Andersen was able:

1. within approximately two days of being retained by Daracon regarding the Occupier Liability Claim, to produce the detailed affidavit dated 1 May 2025, together with its lengthy annexures;

2. to advise and obtain instructions and prepare the Notice of Motion dated 5 May 2025, together with his affidavit of that same date;

3. to advise and obtain instructions to file the amended Notice of Motion on 20 May 2025;

4. to prepare and file his affidavit affirmed 19 May 2025 and obtain the affidavit from Ms Goodsell;

5. to prepare detailed written submissions dated 23 May 2025 in support of the Amended Notice of Motion; and

6. competently to present Daracon’s position at the hearing on 23 May 2025 on both the notices of motion heard that day.

96. Daracon’s position appeared to be that the primary judge was obliged to accept Mr Andersen’s unchallenged evidence or, alternatively, explain why it did not accept and act upon that evidence. That position sits uncomfortably with this Court’s decision in Amaca Pty Ltd (Under NSW Administered Winding Up) v Roseanne Cleary (as Legal Personal Representative of Estate of Late Fortunato (aka Frank) Gatt) [2022] NSWCA 151 (Amaca), a decision which, as it happens, was also on an appeal brought under s 32(1) of the Dust Diseases Tribunal Act, and where it was said by Beech-Jones JA (Brereton and Mitchelmore JJA agreeing) at [36]-[38]:

[36]    Nothing in Ghosh purports to lay down a rule of law that in all cases, or even “ordinarily”, evidence which is not the subject of cross-examination must be accepted. Such a proposition was expressly rejected by Brereton JA in Ghosh at [71]. Further, the passage from the judgment of Gibbs J, as his Honour then was, in Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362; [1975] HCA 27 (“Precision Plastics”) set out in Ghosh at [70] does not support that proposition either. In Precision Plastics Gibbs J upheld a finding of this Court that a damages award by a jury was unreasonably low. In the quoted passage, his Honour was comparing the undisputed evidence of the injured plaintiff as to her future intention to work with the amount that was awarded. His Honour did not purport to state that the jury would have erred in law had they rejected the plaintiff’s evidence on that topic. …

[37]    Ghosh was an appeal from the NSW Civil and Administrative Tribunal and, as such, was restricted to a question of law (at [12]). The error of law identified in Ghosh was the failure of the Tribunal in that case to give “any significance to the circumstance that the witnesses favourable to [the appellant] were not cross-examined” and instead “regarded … the circumstance that they were not called as adverse to their acceptance” (at [72]). The primary judge made neither error in this case. …

[38]    During oral argument, Senior Counsel for Amaca, Mr Hooke, embraced the proposition that, in the absence of cross-examination, the primary judge was obliged to accept the expert medical opinion unless there was some “glaring or obvious” defect. However, there is no support in the authorities for the proposition that any such obligation was imposed on the primary judge as a matter of law. In the end result, all the complaints made by Amaca only amount to complaints about the basis for the finding of fact that Mr Gatt had asbestosis or the content of the reasons for that finding. … In relation to the latter, this being an appeal restricted to an error or point of law, it is sufficient that the reasons “[reveal] the ground for, although not the detailed reasoning in support of, [the] finding of fact” (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 282 per McHugh JA; “Soulemezis”). Her Honour complied with that obligation.

97. In Amaca at [37], the Court appeared to treat Brereton JA as having identified two distinct legal errors in Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122 (Ghosh): (1) a failure to attach significance to the fact that a witness was not called for cross-examination; and (2) treating the fact that a witness was not called as militating against the acceptance of their evidence. An alternative reading of Ghosh is that only one legal error was found, involving both (1) and (2) above. If that reading is accepted, no legal error is disclosed in the present case, since there is no indication that the primary judge regarded the fact that Mr Andersen was not cross-examined as a consideration militating against accepting his evidence.

98. In any event, this ground of appeal was not framed on the above basis. It was framed in terms of a failure to give adequate reasons for rejecting Mr Andersen’s evidence.

99. A lower standard generally applies to the adequacy of reasons for an interlocutory decision or a decision on practice and procedure. As was said in Hassan v Sydney Local Health District (No 2) [2021] NSWCA 122 at [16]:

There is no necessity for as busy a court as the New South Wales Court of Appeal to refer in its interlocutory decisions to all evidence relied upon or submissions made in such circumstances: cf. Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [44] . Just as neither the need nor the appearance of justice require that reasons be given for every decision by a judicial tribunal, as McHugh JA (as his Honour then was) observed in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 (Soulemezis), so too not every argument raised will need to be addressed in the context of a decision on practice and procedure, such as that of Gleeson JA, or a decision reviewing such a decision, such as was made in the review judgment. That is especially so where the submissions made are misconceived or repetitive or overly discursive.

100. The reasons of the primary judge reproduced above sufficiently explain why he did not act upon all Mr Andersen’s evidence (contrary to the import of Daracon’s submissions on the appeal, his Honour did not reject that evidence). They included that “Mr Andersen can be given sufficient time to properly prepare any defence of Daracon” (at [28]), “he has achieved a considerable amount of progress already, even though he has only had a short time” (at [29]), the Dust Diseases Tribunal would consider “any indulgence to be granted to Mr Andersen so that he can properly represent his client” (at [29]) and that additional materials could “be made available to the legal representatives for … [Daracon]” (at [31]).

101. If leave were granted, this ground would not be made out.

Re-exercise of the discretion and costs

102. It is convenient to address both these aspects collectively.

103. At the conclusion of oral argument, Mr Kelsall sought an order that Daracon pay the costs of the application for leave on an indemnity basis because, putting to one side the weakness of both the proposed grounds of appeal and the case for a grant of leave, in any event were leave to be granted and error found, the result of the re-exercise of discretion sought by Daracon was, on the evidence, inevitably the same. Daracon made brief submissions opposing such an order.

104. The principal reason we made an order for indemnity costs is that Mr Kelsall’s submission was sound. It will be recalled that the only reason put forward on behalf of Daracon in its capacity as non-employer was the impossibility of having a final hearing on the new issues consistently in the contemplated time frame. Based on what Mr Andersen said was only a superficial involvement in the case (for he said he would need three days to get on top of the material), Mr Andersen gave evidence that there could not be a hearing in less than six months. Although that unelaborated opinion was neither objected to nor cross-examined upon, the primary judge was rightly sceptical of it.

105. But things have moved on. It is now more than three months later. Orders have been made readying the matter for hearing, including for discovery. There was a directions hearing last month and another next week at which a revised hearing date is to be allocated. Yet nothing has been filed on behalf of Daracon updating the position, so that the re-exercise of discretion which Daracon seeks is to be determined on the material which was before the primary judge (supplemented only by the index to the file which was supplied to Mr Andersen more than three months ago).

106. As we have observed, there is nothing to suggest that Daracon (in all of its capacities) has not complied with those orders.

107. There is also nothing to suggest that when the hearing date is allocated next week, it will be done in a way which will result in an unfair trial to Daracon in any of its capacities.

108. Those considerations are fatal to the prospects of success in this Court. Daracon sought, in the event that there were a grant of leave and the exercise of discretion by the primary judge vitiated, for this Court to re-exercise that discretion. That was appropriate in a case such as this, which is urgent, and where the issue was procedural, and which evidently did not require reconsideration by a judge at first instance. That re-exercise of discretion would take place in August, more than three months after the amendments were made. But Daracon provided no further updating evidence giving any basis for why the amendments making allegations against Daracon other than as an employer could not be dealt with. As Mr Kelsall submitted, the outcome is inevitable, and should have been foreseen by those preparing this appeal.

109. Caution is to be exercised before departing from the ordinary exercise of discretion as to costs. Nonetheless, the present is a case where an order for indemnity costs should be made, to signal a proceeding which sufficiently departed from the standards expected by this Court by litigants represented by legal practitioners such as to constitute a “relevant delinquency” as it was put by the High Court in Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [44].

110. There is one further matter that should be mentioned, although it does not form part of the reasons for the special costs order. The White Folders supplied to the Court included a draft notice of appeal with 13 proposed grounds. The folder was paginated, and the draft notice occupied pages 33-38. However, during the hearing, it became obvious that Daracon’s solicitors had supplied an updated draft notice of appeal to the other parties, which contained only three grounds. The latter was an improvement on the former. It too was numbered pages 33-38, but the last page was blank. But the revised notice was not physically updated in the white folders (contrary to the obligation in UCPR r 51.44(2) to cause any necessary additional documents to be added) leading to the members of the court having prepared for the appeal on a wrong basis, and their being at cross-purposes with Ms Allars SC until each showed the other the draft notice of appeal from which they were working.

111. Our inquiries after the event have revealed that the new document was supplied by email to the Registrar on 6 August 2025, a week before the hearing. The four documents attached to that email were described as “certified copies of the documents required by paragraph 27 of Practice Note SC CA 01”. The submissions were identical to those already filed. Nothing was said in the email that the draft notice of appeal was materially different, or that pages 33-38 of the three copies of the White Folders which would shortly be distributed to the members of the Court constituted to hear the application needed to be replaced. If replacement pages are to be supplied to the White Folders for a leave hearing or a concurrent hearing, then the party should expressly advise the relevant court officer, or (if the composition of the Court is known) the staff of the relevant judge, of that fact, lest the situation encountered in the hearing of this application recur.

Conclusion

112. These are our reasons for refusing leave to appeal. As will be plain from what has been said concerning costs, if we had granted leave we would not have granted the relief sought even if appellable error had been made out.

**********

Decision last updated: 15 August 2025