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
[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
AGLC
Daracon Engineering Pty Ltd v Kelsall [2025] NSWCA 189
Case
[2025] NSWCA 189
Decision Date
CaseChat Overview and Summary
The applicant, Daracon Engineering Pty Ltd, sought leave to appeal a decision of the Dust Diseases Tribunal which had granted the respondent, Mr Kelsall, leave to amend his statement of claim. The original claims against Daracon were based on its alleged status as an employer. The proposed amendments sought to advance new claims against Daracon in its capacity as an occupier or controller of premises. Daracon had appointed new solicitors to respond to these new claims, who argued that a fair trial of the amended claims could not be conducted.
The primary legal issue before the Court of Appeal was whether the Dust Diseases Tribunal had erred in granting leave to amend the statement of claim, particularly in light of the prejudice claimed by Daracon. This involved considering the circumstances in which a party might be represented by more than one legal practitioner and the potential for injustice arising from such a situation. The Court also had to determine whether the Tribunal had exercised its discretion appropriately in allowing the amendments.
The Court of Appeal allowed the admission of additional evidence concerning the issue of leave and the re-exercise of discretion. It found that no injustice warranting the grant of leave had been made out. The Court noted that there was no evidence of the defendant's readiness for trial in relation to the new claims, and importantly, no hearing date had yet been allocated, nor was there any suggestion that a future allocation would give rise to injustice. Consequently, the Court concluded there was no basis for the grant of leave to amend.
The Court of Appeal refused leave to appeal the decision of the Dust Diseases Tribunal. Daracon Engineering Pty Ltd was ordered to pay the costs of the first respondent of the application for leave to appeal on an indemnity basis.
Orders
Orders of the court
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.