Harper v Wallaby Grip Ltd

[2001] NSWDDT 24

Dust Diseases Tribunal

of New South Wales

CITATION:	Harper v Wallaby Grip Ltd & Ors [2001] NSWDDT 24
PARTIES:	Raymond Edward Harper Wallaby Grip Ltd Wallaby Grip (BAE) Pty Ltd ACI Operations Pty Ltd Santos Limited
MATTER NUMBER(S):	107 of 2001
JUDGMENT OF:	O'Meally J at 1
CATCHWORDS:	Proceedings :- Apprehension of Bias
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	19 June 2001
EX TEMPORE JUDGMENT DATE :	06/19/2001
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr P C See instructed by Alex Stuart & Associates FOR DEFENDANT Mr T J Morahan instructed by Middletons Moore & Bevins appeared for the first and second defendants Mr Lim of Phillips Fox appeared for the third defendant Mr A W Blanch of Hickson Wisewoulds appeared for the fourth defendant

JUDGMENT:

1. The Dust Diseases Tribunal of New South Wales was created to deal expeditiously with the cases of plaintiffs who suffer dust diseases. This was because, when the cases were heard in the Supreme Court and the District Court, many plaintiffs died before their cases were heard. The Tribunal has adopted procedures to fulfil the wish of the Parliament that cases be dealt with expeditiously.

2. Certain categories of cases are treated as urgent. Included amongst these are cases of mesothelioma and carcinoma. In respect of mesothelioma experience demonstrates that the great bulk of patients die within 12 months of diagnosis. This is the case notwithstanding the usual optimistic prognoses doctors give in respect of the people who suffer this horrible and dreadful disease. Because all cases of mesothelioma are treated as urgent the Tribunal hears them at the first available opportunity.

3. On 28 May last I listed this case for hearing on 9 and 10 July next before Acting Judge Little in Christies Beach in the State of South Australia.

4. There are four acting judges on the Tribunal who are called upon when judicial resources are insufficient to deal with the cases that come before it. No permanent judge of the Tribunal is available to hear this case in the week commencing 9 July 2001. Accordingly, Acting Judge Little was assigned to hear the case. Orders under s 13(7) of the Dust Diseases Tribunal Act and that Acting Judge Little hear the case were made on 28 May 2001, in the presence of representatives of each of the parties. Last evening I was informed that the first and second defendants, that is Wallaby Grip Ltd and Wallaby Grip (BAE) Pty Ltd sought an order that a judge other than Acting Judge Little hear the case.

5. The issues to be determined in the case are within narrow compass and are simple ones. The defendants require the plaintiff to prove he was exposed to asbestos and they require also that he prove those matters relevant to the quantum of damages. There is no dispute that he is suffering mesothelioma, nor is there a dispute that at all relevant times exposure to asbestos constituted a risk of foreseeable injury in respect of which means were available to obviate or minimise the risk. On the assumption that the plaintiff proves exposure then the defendants will be jointly and severally liable to the plaintiff. This is because mesothelioma is an injury which is one and indivisible.

6. No basis has been demonstrated in the affidavit placed before me, nor in anything that has been said by counsel which could constitute a reasonable apprehension or perception of bias. Moreover, it should be said, this application is rather late in terms of the speed with which the Tribunal moves. The case was, as has been observed, fixed for hearing on 28 May 2001. One can appreciate concerns which possibly may arise when acting judges are assigned to hear cases, but the work of the Tribunal in many respects is like that of the Fire Brigade; fires break out and then all fire engines are required to extinguish them. So, in the Tribunal, there are times when there is a lull in the work and ordinary cases then are dealt with, but when urgent cases need to be heard they are heard, whether that involves sitting during the day time or the night time or on weekends or public holidays and anywhere in the country where a plaintiff whose case is properly before the Tribunal, resides. When there are more cases than permanent judges acting judges are called upon. Acting judges were appointed to meet this situation.

7. The application should be refused. I say this after Acting Judge Little also heard submissions and declined to disqualify himself. It was arranged that he hear an application to disqualify himself in order to avoid any embarrassment which might have followed any order made by me. His association with the first and second defendants, in my view, was not such that a reasonable apprehension of bias could exist. As counsel he once appeared for either or both of them and he has appeared for at least one defendant who was sued with either or both of them. The only issues he will be required to determine in the present case are whether the plaintiff was exposed to asbestos and, if so, what is to be the measure of the plaintiff’s damages. I reiterate that no ground has been demonstrated upon which the application should succeed. Accordingly, the application, made orally, is dismissed.

8. The first and second defendants are to pay the plaintiff’s costs of this application.

Mr P C See instructed by Alex Stuart & Associates appeared for the plaintiff

Mr T J Morahan instructed by Middletons Moore & Bevins appeared for the first and second defendants

Mr Lim of Phillips Fox appeared for the third defendant

Mr A W Blanch of Hickson Wisewoulds appeared for the fourth defendant