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

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.
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.
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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Daracon Engineering Pty Ltd v Kelsall

Details

AGLC: Daracon Engineering Pty Ltd v Kelsall [2025] NSWCA 153
Case: [2025] NSWCA 153
Decision Date: 14 July 2025

CaseChat Overview and Summary

Daracon Engineering Pty Ltd sought expedition of a summons seeking leave to appeal against a decision of the District Court of New South Wales. The first respondent, Mr Kelsall, had a limited life expectancy, which was a critical factor in the application. The primary dispute concerned the potential loss of Mr Kelsall's claim for future economic loss if the appeal were not heard expeditiously. The application for expedition was heard by Price AJA in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the circumstances of the first respondent's limited life expectancy warranted the expedition of the summons seeking leave to appeal. This involved considering the impact of the respondent's prognosis on the ability to pursue his claim for future economic loss and whether this constituted a sufficient reason to depart from the usual order of court proceedings.

Price AJA granted the motion for expedition. The reasoning centred on the principle that justice requires timely resolution of disputes, particularly where a party's ability to pursue their claim is threatened by their declining health and limited life expectancy. The court recognised that delaying the hearing could render the appeal nugatory and prejudice Mr Kelsall's ability to recover future economic losses. Consequently, the court ordered that the motion for expedition be granted, with costs to be costs in the cause. The proceedings were referred to the Court of Appeal Registrar to set a timetable and hearing date before 29 August 2025, with directions to abridge time for filing and service of documents to facilitate this expedited hearing.

Orders

Orders of the court

(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.

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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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