Daracon Engineering Pty Ltd v Kelsall

[2025] NSWCA 153

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Daracon Engineering Pty Ltd v Kelsall [2025] NSWCA 153

Hearing dates:

14 July 2025

Date of orders:

14 July 2025

Decision date:

14 July 2025

Before:

Price AJA

Decision:

(1)   Motion for expedition granted.

(2)   Costs of the motion to be costs in the cause.

(3)   Refer the proceedings to the Court of Appeal Registrar at 2:30 PM today to set a timetable and hearing date before 29 August 2025.

(4)   Direct the Court of Appeal Registrar to abridge time for the filing and service of any required documents, by any party, to enable the hearing to occur on or before 29 August 2025.

Catchwords:

CIVIL PROCEDURE – application for expedition of summons seeking leave to appeal – where first respondent has limited life expectancy – loss of claim for future economic loss – expedition granted

Legislation Cited:

Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 2(a)(ii)

Cases Cited:

Elders Rural Finance Ltd v Smith (1995) 38 NSWLR 395

Hannaford v Cactus Imaging Pty Ltd [2008] NSWCA 260; (2008) 176 IR 426

Unilever plc v Chefaro Proprietaries Ltd [1995] 1 All ER 587

Julia Farr Services Incorporated v Hayes [2003] NSWCA 1

Category:

Procedural rulings

Parties:

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

Representation:

Counsel:
M Cobb-Clark (Applicant)
S Tzouganatos and V Boutas (First Respondent)

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

File Number(s):

2025/250144

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Dust Diseases Tribunal of New South Wales

Date of Decision:

03 June 2025

Before:

Russell DCJ

EX TEMPORE JUDGMENT

1. PRICE AJA: By notice of motion filed on 8 July 2025, the applicant, Daracon Engineering Pty Ltd, seeks the expedition of its pending application for leave to appeal from an interlocutory decision made on 3 June 2025 by Russell DCJ in the Dust Diseases Tribunal of New South Wales (“the Tribunal”). The first respondent, David James Kelsall, who is about 70 years old, has commenced proceedings in the Tribunal alleging that he suffers from silicosis, primary lung cancer with metastatic spread and rheumatoid arthritis.

2. The decision of Russell DCJ in the Tribunal involved the first respondent being granted leave to amend his pleadings in accordance with a second amended statement of claim filed on 29 April 2025. None of the six respondents in the proceedings opposed the application for expedition. However, the fourth respondent did not consent to the application.

3. The applicant’s complaint in the summons seeking leave to appeal is that various allegations advanced by the first respondent in its second amended statement of claim, characterised as the “occupier’s liability allegations”, should be struck out on the basis that there is no evidence to justify those amendments. The proceedings in the Tribunal cannot proceed until the appeal is determined. At present, the appeal has not been set down for hearing.

4. It is not necessary for the purposes of this judgment to set out in detail the background to the proceedings in the Tribunal except as to mention that the first respondent’s life expectancy from his diagnosis of stage 4 metastatic lung cancer is opined by the medical experts’ in their reports annexed to the affidavits filed by the applicant’s and first respondent’s legal representatives, to be “limited” and unlikely to exceed “six to nine months”.

5. It is plain from the materials before me that the first respondent’s prognosis makes the matter urgent as there is a likelihood his life expectancy may not exceed October 2025.

6. The general principles to be applied when determining whether to grant expedition of the hearing of an appeal were set out in Elders Rural Finance Ltd v Smith (1995) 38 NSWLR 395 (“Elders”): See also, Hannaford v Cactus Imaging Pty Ltd [2008] NSWCA 260; (2008) 176 IR 426 at [12] (McColl JA).

7. This Court in Elders at 400-401 (Kirby P, Priestley and Clarke JJA), referring to the guidance provided by the English Court of Appeal in Unilever plc v Chefaro Proprietaries Ltd [1995] 1 All ER 587 at 591 (Sir Thomas Bingham MR), conveniently set out the following circumstances where an expedited hearing may be appropriate:

“(1) a party may lose its livelihood, business or home or suffer irreparable loss or extraordinary hardship;

(2) the appeal will become futile;

(3) the resolution of numerous cases, turning on the outcome of a case under appeal, will be unreasonably delayed, or the orderly management of class or multi-party litigation in a lower court will be disrupted;

(4) widespread divergences of practice are likely to continue, with the prospect of multiple appeals until the correct practice is laid down;

(5) there would be serious detriment to good public administration or to the interests of members of the public not concerned in the instant appeal.”

8. In the applicant’s written submissions, it is submitted that the first respondent will suffer irreparable loss or extraordinary hardship if the hearing is not expedited on the basis that if he dies before the hearing in the Tribunal his claim for future economic loss will not survive him: Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(a)(ii); Julia Farr Services Incorporated v Hayes [2003] NSWCA 1 at [5] (Hodgson JA).

9. In my view, I am satisfied on the basis of the first respondent’s prognosis that this matter requires expedition to avoid Mr Kelsall suffering an irreparable loss by being deprived of his claim for future economic loss.

10. Accordingly, I make the following orders:

1. Motion for expedition granted.

2. Costs of the motion to be costs in the cause.

3. Refer the proceedings to the Court of Appeal Registrar at 2:30 PM today to set a timetable and hearing date before 29 August 2025.

4. Direct the Court of Appeal Registrar to abridge time for the filing and service of any required documents, by any party, to enable the hearing to occur on or before 29 August 2025.

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Decision last updated: 14 July 2025