Harwood v BHP Billiton Limited

[2011] SADC 117

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil: Application)

HARWOOD v BHP BILLITON LIMITED

[2011] SADC 117

Judgment of His Honour Judge Jennings

29 July 2011

PROCEDURE

INTERLOCUTORY PROCEEDINGS

Application by the defendant that an examiner be appointed urgently to take evidence of the plaintiff pursuant to District Court Rules 119 and 184 and Practice Direction 4.5.6.    Plaintiff's life expectancy 18 months from January 2011.  Pleadings not completed. 

Application dismissed.

HARWOOD v BHP BILLITON LIMITED
[2011] SADC 117

1. This is an asbestos case. The plaintiff, Mr Harwood, is suffering from mesothelioma. The action was commenced in the Dust Diseases Tribunal of New South Wales. Orders were made by Hoban J of the Supreme Court of New South Wales on 6 June 2011 cross-vesting the proceedings from the Dust Diseases Tribunal of New South Wales to South Australia. The defendant, BHP Billiton Limited, the applicant in this matter, sought two orders. First, that the matter be treated as urgent. That was not contested. The second was that an examiner be appointed to take the evidence of the plaintiff “as soon as practicable” pursuant to Rules 119 and 184 and Practice Direction 4.5.6 (which facilitates evidence being taken “urgently”). That application was supported by an affidavit from Mr Hay dated 13 July 2011.

2. At the outset of the hearing Mr Parker, counsel for the defendant, advised that aspects of the draft Minutes of Order which had been prepared on behalf of the plaintiff, were in dispute. Following the end of the hearing the parties agreed on the following short Minutes of Order:

   1.      That the plaintiff be exempt from compliance with Rule 33(2).

   2.      That the matter be classified as ‘‘urgent” for the purpose of practice direction 4.5.

   3.      The plaintiff to file and serve a Second Statement of Claim by 2 August 2011.

   4.      The defendant to file and serve a Defence by 9 August 2011.

   5.      The defendant to arrange any medical assessment to occur before 23 August 2011.

   6.      The plaintiff to give Section 8(3) and Section 8(4) notifications and Rule 159 notifications for any lay witnesses proposed to be called by 13 September 2011.

   7.      The plaintiff to provide a formulated claim to the defendant by 6 September 2011.

   8.      The plaintiff to serve all primary medical and expert reports by 13 September 2011.

   9.      The defendant to give Section 8(3) and Section 8(4) notifications, Rule 159 notifications for any lay witness proposed to be called and all medical and expert reports by 25 October 2011.

   10.    Matter listed for a Court Settlement Conference in early November 2011.

   11.    The plaintiff and defendant to file and serve a List of Documents within 7 days of the settlement conference.

   12.    The parties be granted leave to issue subpoenas.

   13.    Matter be listed for further directions in late November 2011 to obtain a hearing date.

   14.    Costs in the cause.

   15.    Liberty to apply.

3. In his affidavit Mr Hay attested that Dr David McEvoy (Respiratory and Sleep Physician) had provided a report dated 18 April 2011 in which he gave the plaintiff an estimated life expectancy of 18 months from January 2011. He said that in his experience in cases of mesothelioma the condition of a plaintiff can deteriorate suddenly and in several such cases in this Court plaintiffs have given oral evidence de bene esse but died before the matter reached a hearing.

4. It is apparent from the content and annexures to Mr Hay’s affidavit that the plaintiff is not able to fly.

5. Mr Parker pointed out that the Court and counsel are at some point in time going to have to go to Coffs Harbour to take the evidence of the plaintiff and other lay witnesses. This he said would necessitate a separate hearing. That being so, he submitted it would be prudent that the plaintiff’s evidence be taken early. He said whilst there was nothing to suggest the plaintiff’s health is suddenly or rapidly deteriorating at the moment, there is always a potential for that to happen as evidenced by aspects of Mr Hay’s affidavit. If that happened the plaintiff’s critical evidence would be lost. He said that would prejudice the defendant and have the potential of prejudicing the Court. Mr Parker submitted that the balance of convenience favoured the plaintiff’s evidence be taken de bene esse.

6. Ms O’Connor, counsel for the plaintiff, was concerned that the defendant was seeking an urgent hearing in Coffs Harbour for the taking of the plaintiff’s evidence when the plaintiff has not seen the defendant’s Defence. To take the plaintiff’s evidence in those circumstances, she submitted, would be prejudicial to the plaintiff. That concern was met by Mr Parker agreeing during the course of the hearing that pleadings should be filed before the taking of the plaintiff’s evidence.[1]

   [1] tr p 13

7. Ms O’Connor submitted that the matter should be run in the normal way. She pointed out the medical evidence is that from the date of diagnosis, ie January of 2011, the plaintiff had 18 months to live. She said that he was “very well at the moment compared with many other people with mesothelioma”[2]. She invited the Court to consider the possibility of including in its orders an obligation on the plaintiff’s solicitors to inform the defendant and the Court should the plaintiff’s condition deteriorate. I think such an order is appropriate and I order accordingly.

   [2] tr p 7

8. In the circumstances there was no basis for bringing the application for directions on at this time and it is therefore dismissed.

9. I reserve the question of costs.