Dawson v Phillip Morris Ltd

[2003] NSWDDT 13

Dust Diseases Tribunal

of New South Wales

CITATION:	Dawson and Ors v Phillip Morris Ltd [2003] NSWDDT 13
PARTIES:	Christopher Mark Dawson, Armando John Gardiman, Peter Richard Tyson, Terence Lewis Goldberg and Thady Arnold Andrew Blundell, Stephen Penning, Les Feher, Gauis William Whiffin, Tanya Segelov, Theodora Ahilas, Gerard Anthony McMahon, Judith Joan Horobin and Ezekiel Trumper all trading as Turner Freeman Phillip Morris Limited
MATTER NUMBER(S):	149 of 2002/1
JUDGMENT OF:	O'Meally P at 1
CATCHWORDS:	:- Dust Diseases Tribunal cross claims subpoena to produce defences not filed issues not identified subpoena set aside
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	05/08/2003
EX TEMPORE JUDGMENT DATE :	08/05/2003
LEGAL REPRESENTATIVES:	FOR APPLICANT: Mr D G Letcher, QC instructed by Turner Freeman. FOR RESPONDENT: Mr J J Fernon instructed by Allens Arthur Robinson.

JUDGMENT:

1. This is an application brought by motion on notice seeking an order that a subpoena issued by the first cross-defendant, Phillip Morris Ltd (Phillip Morris), be set aside.

2. On 2 May 2002 one Richard Maxwell Shaw (the plaintiff) commenced proceedings against Goodsmith Industries Pty Ltd and the Roads and Traffic Authority alleging that in the course of his employment by each, over successive periods of time, he was exposed to silica dust and as a consequence developed silicosis and silica induced carcinoma of the lung. Other injuries and consequential disabilities were also alleged.

3. The proceedings came on for hearing before Maguire J on 25 July 2002 at the plaintiff’s home. I am unaware whether oral evidence was taken from the plaintiff, but placed before his Honour were two medical reports and the affidavit of the plaintiff, sworn on 21 July 2002. In par 25 and par 26 of his affidavit the plaintiff recited a history of smoking which commenced in 1954 when he was about 16 years of age. Brands of tobacco, which he smoked, were identified.

4. On 25 July 2002 the proceedings were settled. Verdicts and judgment were entered for the plaintiff against each defendant in different amounts. Before judgment was entered his Honour gave leave to each defendant to issue cross-claims against British American Tobacco Ltd and Phillip Morris within ninety days. On 23 October 2002 my colleague, Johns J, extended for a further ninety days the period within which cross-claims might be issued.

5. On 21 January 2003 the first defendant issued a cross-claim against Phillip Morris and against British American Tobacco Australia Ltd. On 23 June 2003 a consent order was made extending to 7 July 2003 the time within which any amended cross-claim was to be filed. An amended cross-claim was filed on 4 July 2003. No defence has been filed by either cross-defendant, either to the cross-claim or the amended cross-claim.

6. On 12 June 2003 the first cross-defendant, Phillip Morris, issued a subpoena directed to the partners of Messrs Turner Freeman, the solicitors who acted for the plaintiff, seeking the production of a whole range of documents and of radiological and histopathology material. On the face of it, it appears to me that much of the material sought is properly the subject of a claim for legal professional privilege which the applicants to this motion raise. Much of it also, it seems on the face of the schedule to the subpoena, cannot be said to be relevant. The reason for this, of course, is that no one, certainly not myself, is aware of the issues to be determined in the cross-claim; nor can these issues be identified until such time as defences have been filed. Much of the material, one would expect, is in the possession of people other than the plaintiff’s solicitors.

7. At this stage I think it sufficient to say that the subpoena should be set aside because it is impossible at the present time to determine whether any of the material sought is relevant. It is unnecessary, therefore, now to determine whether material sought is immune from production by reason of legal professional privilege.

8. The subpoena is set aside. The first cross-defendant, respondent to the motion, should pay the applicants’ costs as agreed or assessed.

9. In respect of the compilation, assembly and search for documents I think it appropriate that those costs be reserved.

Mr D G Letcher, QC instructed by Turner Freeman appeared for the applicant

Mr J J Fernon instructed by Allens Arthur Robinson appeared for the respondent