Daracon Engineering Pty Ltd v Kelsall

Case [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…

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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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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