Horgan v Master Cabinets (WA) Pty Ltd [No 2]

[2025] WASC 298

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   HORGAN -v- MASTER CABINETS (WA) PTY LTD [No 2] [2025] WASC 298

CORAM:   STRK J

HEARD:   30 JULY 2025

DELIVERED          :   30 JULY 2025

FILE NO/S:   CIV 1866 of 2023

BETWEEN:   DAVID STUART HORGAN

Plaintiff

AND

MASTER CABINETS (WA) PTY LTD

First Defendant

MILLENNIUM GRANITES PTY LIMITED

Second Defendant

AAI LIMITED (TRADING AS GIO)

Third Defendant

INSURANCE AUSTRALIA LIMITED (TRADING AS CGU INSURANCE)

Fourth Defendant

ALLIANZ AUSTRALIA INSURANCE LIMITED

Fifth Defendant

INSURANCE COMMISSION OF WESTERN AUSTRALIA

Sixth Defendant

FILE NO/S:   CIV 1867 of 2023

BETWEEN:   DAVID STUART HORGAN

Plaintiff

AND

CARSILSTONE PTY LIMITED

First Defendant

CAESARSTONE AUSTRALIA PTY LIMITED

Second Defendant

HALIFAX VOGEL GROUP PTY LIMITED

Third Defendant

SMARTSTONE AUSTRALIA PTY LTD

Fourth Defendant

WK MARBLE AND GRANITE PTY LTD

Fifth Defendant

LAMINEX GROUP PTY LIMITED

Sixth Defendant

J.H. WILBERFORCE PTY LTD

Seventh Defendant

COSENTINO AUSTRALIA PTY LIMITED

Eighth Defendant

Catchwords:

Practice and procedure - Applications to extend validity of writs - Applications turn on own facts

Legislation:

Rules of the Supreme Court 1971 (WA) O 7 r 1(2)

Result:

Applications granted

Category:    B

Representation:

CIV 1866 of 2023

Counsel:

Plaintiff	:	TJ McGinley
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance

Solicitors:

Plaintiff	:	Maurice Blackburn Lawyers
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance

CIV 1867 of 2023

Counsel:

Plaintiff	:	TJ McGinley
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance
Eighth Defendant	:	No appearance

Solicitors:

Plaintiff	:	Maurice Blackburn Lawyers
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance
Eighth Defendant	:	No appearance

Case(s) referred to in decision(s):

Griffiths v Kerkemeyer [1977] HCA 45

Horgan v Master Cabinets (WA) Pty Ltd [2024] WASC 272

Lawless v MacKendrick [No 2] [2008] WASC 15

T-D Joint Venture Pty Ltd (in liq) v SGH Energy Corporate Pty Ltd [2016] WASC 102

STRK J:

(This judgment was delivered extemporaneously on 30 July 2025 and has been edited to include complete references and so as to correct infelicities of language.)

1. David Stuart Horgan commenced two separate proceedings by writs of summons filed on 3 August 2023. In both proceedings Mr Horgan as plaintiff prosecutes claims for damages for personal injuries, loss and damage sustained as a consequence of his exposure to and inhalation of crystalline silica. The proceedings are known as CIV 1866 of 2023 and CIV 1867 of 2023, respectively. The first is prosecuted by the plaintiff against his former employers, and if that employing entity was a company that has since been deregistered it is prosecuted against the employer's insurer. The second is prosecuted against the manufacturers and suppliers of artificial stone products containing crystalline silica.

2. In each proceeding the plaintiff applied by ex parte motion filed on 23 July 2024 to extend the validity of the writs of summons. By the applications, the plaintiff sought that the validity of each writ be extended for service for a period of 12 months, to 3 August 2025. The applications were heard, and the requested extensions were granted on 29 July 2024: Horgan v Master Cabinets (WA) Pty Ltd [2024] WASC 272.

3. In each proceeding the plaintiff by ex parte motion filed on 22 July 2025 again applies to extend the validity of the writs of summons for service. By the applications, the plaintiff seeks a further period of 12 months beginning on 3 August 2025, and for the costs of the applications to be in the cause of the respective proceeding. I deal with both applications in these reasons, which are to be read with my earlier reasons delivered on 29 July 2024.

4. The applications were supported by affidavits sworn on 22 July 2025 by Timothy John McGinley, a solicitor employed by Maurice Blackburn Lawyers, to which Mr McGinley attached a document marked TJM 1. Mr McGinley has care and conduct of both proceedings on behalf of the plaintiff. The affidavits of Mr McGinley read in support of each application were again in many respects identical.

5. Both applications were again made ex parte, and counsel confirmed that the applications were made without notice to the defendants named in each proceeding.

Background

1. At [6] to [32] of my earlier reasons the background to the applications was described, which included an overview of the plaintiff's claims in each proceeding against the various defendants;[1] an overview of the evidence then before the court concerning the plaintiff's diagnosis (as deposed to by Mr McGinley in the affidavit he made in support of the earlier applications);[2] and an overview of Mr McGinley's evidence concerning the history of each proceeding as at July 2024.[3]

The plaintiff's diagnosis - update

[1] As to CIV 1866 of 2023, see Horgan v Master Cabinets (WA) Pty Ltd [6] - [12]; as to CIV 1867 of 2023, see Horgan v Master Cabinets (WA) Pty Ltd [13] - [20].

[2] See Horgan v Master Cabinets (WA) Pty Ltd [21] - [27].

[3] See Horgan v Master Cabinets (WA) Pty Ltd [28] - [32].

1. In his affidavits made on 22 July 2025 in support of the latest applications, Mr McGinley described the status of the plaintiff's injury in identical terms by reference to a report dated 18 July 2025 received from the plaintiff's treating respiratory physician, Professor Fraser Brims.[4] In that report, Professor Brims describes his experience and qualifications, recording that he is the Director of the Sir Charles Gairdner Hospital Occupational Lung Disease clinic; that he has 13 years' experience caring for more than 2,000 individuals exposed to asbestos in Western Australia; and that he had published multiple research papers regarding the epidemiology of asbestos‑related lung disease and was a member of the National Dust Diseases Taskforce.

   [4] As to CIV 1866 of 2023, see the affidavit of TJ McGinley sworn 22 July 2025, par 5; and as to CIV 1867 of 2023, see the affidavit of TJ McGinley sworn 22 July 2025, par 6.

2. Among other things, Professor Brims recorded in his report that:

   (a)he most recently spoke with the plaintiff on 11 December 2024, at which time the plaintiff stated that he was 'all good' with no respiratory concerns or complaints, and that the plaintiff had had no further silica exposure since his diagnosis;

   (b)he had reviewed the plaintiff's CT scans from 2020, 2022 and December 2024 and opined that his review of them and findings were consistent with simple silicosis;

   (c)based on the information available to him, his opinion is that the plaintiff has silicosis, and given the time since first exposure and the radiological appearance, it would be classified as chronic simple silicosis;

   (d)based on the lack of reported symptoms, normal lung function and cardiopulmonary function tests, the plaintiff's impairment (using the AMA Guides to Permanent Impairment due to respiratory disorders, table 5 ‑ 12) is estimated to be class 1 ‑ 0 (zero)%;

   (e)in his opinion, the plaintiff's history of exposure to respirable silica dust while working in the stonemasonry industry in Western Australia caused, and/or materially contributed to the development of his lung disease; and

   (f)he had been asked to provide his opinion as to the plaintiff's likely prognosis because of lung disease and to comment on the likelihood of it progressing in the future, in response to which he noted as follows:

   The natural history of silicosis is very variable. [The plaintiff] has stopped smoking and ceased further silica exposure around 4-5 years ago, which is critical.

   To date, there has been no radiological or physiological progression of disease and [the plaintiff] remains asymptomatic. Given that there is no further exposure to silica occurring, it is plausible that there may be no progression of disease or impairment in the future.

   However, even after cessation of exposure, simple silicosis can still progress, but the rate of progression is generally lower than if exposure has continued. Contemporary data following artificial stone exposure are sparse, however, there is no reason to believe that the nature of the silicosis is different from artificial stone exposure compared to other forms of silica exposure.

   Factors that may influence progression include severity of disease at time of diagnosis, total (cumulative) exposure history, individual factors such as age, tobacco smoke exposure, and genetics.

   Symptoms and disease progression may progress over years, but removing further silica exposure is the main intervention shown to slow or arrest rapid progression. (footnotes omitted)

3. Mr McGinley also deposed that he is instructed that the plaintiff is due to be reviewed by Professor Brims again in December 2025.

The status of the proceeding - update

1. In the most recent affidavits made by Mr McGinley, he describes again the history of the proceedings, and notes that the writs were filed among other things, so as to preserve the plaintiff's entitlement to claim damages, considering the limitation period imposed by the provisions of the Limitation Act 2005 (WA).[5]

   [5] As to CIV 1866 of 2023, see the affidavit of TJ McGinley sworn 22 July 2025, par 9; and as to CIV 1867 of 2023, see the affidavit of TJ McGinley sworn 22 July 2025, par 10.

2. As to the current status of the proceedings, Mr McGinley deposed that to date neither writ nor any of the court documents filed had been served on the defendants therein named, and that the plaintiff had so far refrained from attending to service to allow medical monitoring of his disease of silicosis, to determine if his disease of is likely to progress in the future.[6]

   [6] As to CIV 1866 of 2023, see the affidavit of TJ McGinley sworn 22 July 2025, pars 11 - 12; and as to CIV 1867 of 2023, see the affidavit of TJ McGinley sworn 22 July 2025, pars 12 - 13.

3. Mr McGinley repeated in his latest affidavits the observation that whether the plaintiff's disease progresses will have a significant impact on each proceeding and the plaintiff's claims for the following heads of damages:

   (a)general damages for future pain and suffering (non‑economic loss);

   (b)damages for future out-of-pocket expenses, including medical, hospital, and pharmaceutical expenses, as well as the cost of future commercial care and domestic assistance;

   (c)damages for future need for gratuitous care and domestic assistance from members of his household (described by Mr McGinley as 'Griffiths v Kerkemeyer [1977] HCA 45 type damages'); and

   (d)damages for future loss of earning capacity, if his disease were to progress to a stage where it prevented him from working.

4. The evidence of Mr McGinley as to why the plaintiff seeks a further extension of the validity of each writ was as follows:[7]

   The Plaintiff therefore seeks to allow as much time as possible to pass, since his initial diagnosis of silicosis, to determine whether there is any evidence of progression of his disease, which could significantly impact his claim for damages.

   [7] As to CIV 1866 of 2023, see the affidavit of TJ McGinley sworn 22 July 2025, par 14; and as to CIV 1867 of 2023, see the affidavit of TJ McGinley sworn 22 July 2025, par 15.

5. In his earlier affidavits Mr McGinley had noted that there had been a legislative change.[8] In his latest affidavits he deposed to his belief that the Workers Compensation Injury Management Bill 2023 (WA), had caused legislative changes which came into effect on 1 July 2024 which included amendments to s 56 the Limitation Act which affects claims for silica‑related diseases, such as silicosis; and that the plaintiff is now seeking advice from counsel regarding whether these legislative changes affect his entitlements.[9]

   [8] See Horgan v Master Cabinets (WA) Pty Ltd [32].

   [9] As to CIV 1866 of 2023, see the affidavit of TJ McGinley sworn 22 July 2025, pars 15 - 16; and as to CIV 1867 of 2023, see the affidavit of TJ McGinley sworn 22 July 2025, pars 16 - 17.

Applicable principles

1. In my earlier reasons at [33] to [43], I set out the principles to be applied when determining an application to extend the validity of a writ for service under O 7 r 1(2) of the Rules of the Supreme Court 1971 (WA). I had regard to and apply the same in the determination of the applications now pressed.

Disposition

1. On balance, I am satisfied that the interests of justice require that the validity of the writs be extended for six months.

2. In so concluding, I weigh the following matters in the balance.

3. The applications were made and have been listed for hearing on a date before the expiry of the writs of summons, on the basis that the relevant limitation period may have expired. Counsel submitted that the proceedings are either a Category 1 case (where the application for extension is made at a time when the writ is still valid and before the relevant period of limitation has expired), or a Category 2 case (where the application for extension is made at a time when the writ is still valid but the relevant period of limitation has expired).[10] Unfortunately, as occurred at the last hearing, counsel acknowledged that the proper categorisation of each application was subject to the amendments made to the Limitation Act on 1 July 2024,[11] but was not in a position to fully address the impact of the legislative amendments on the plaintiff's claim, referencing in particular s 56(4)(c) of the amended Limitation Act.

   [10] T-D Joint Venture Pty Ltd (in liq) v SGH Energy Corporate Pty Ltd [2016] WASC 102 [8], discussed in Horgan v Master Cabinets (WA) Pty Ltd [42].

   [11] In this regard, I note that s 56 of the Limitation Act was amended by s 657 of the Workers Compensation and Injury Management Act 2023 (WA).

4. While Mr McGinley deposed that the plaintiff is now seeking the advice regarding whether the legislative changes affect the plaintiff's entitlements,[12] he did not proffer an explanation in his affidavits why that advice was not obtained in the time that passed since the writs were extended in July 2024, in circumstances where the Civil Liability Amendment (Provisional Damages for Dust Diseases) Act 2024 (WA) was enacted in July 2024 and the substantive provisions came into operation on 1 December 2024.[13] In the course of the hearing, Mr McGinley informed the court that while advice had been sought, determinative advice had not yet been received and further investigations were required.

   [12] As to CIV 1866 of 2023, see the affidavit of TJ McGinley sworn 22 July 2025, pars 13 ‑ 14; and as to CIV 1867 of 2023, see the affidavit of TJ McGinley sworn 22 July 2025, pars 16 ‑ 17.

   [13] Civil Liability Amendment (Provisional Damages for Dust Diseases) Act, s 2(1)(d); Civil Liability Amendment (Provisional Damages for Dust Diseases) Act 2024 Commencement Proclamation 2024.

5. In the circumstances, the plaintiff has not had the benefit of important advice, and I am satisfied that there would be potential prejudice to the plaintiff if the validity of the writs were not extended.

6. I also weigh in the balance that the plaintiff has delayed in serving the writs and has made a conscious decision to withhold service.

7. The plaintiff has done so in circumstances where he remains under the care of Professor Brims, and he is due to be reviewed again in December 2025. He seeks additional time so as to determine whether there is any evidence of progression of his disease, which he is concerned could significantly impact his claim for damages. I accept that waiting upon further test results is a proper explanation for delay in service of the writs, while also noting that whether the concern as to impact on the plaintiff's claim for damages is properly founded requires the plaintiff to have the benefit of advice as to the impact of the legislative changes described above.

8. As to the prejudice to the defendants if the applications were granted, as I noted in my earlier reasons, it has, of course, long been recognised that the mere fact of delay can be a cause of prejudice to a party to litigation.[14] It remains the case that for the defendants to these proceedings, this is exacerbated by the nature of the alleged disease and that the plaintiff alleges exposure to silica dust as early as 1999 in the proceeding known as CIV 1866 of 2023, and as early as 2010 in the proceeding known as CIV 1867 of 2023. Of course, there can be no criticism of the plaintiff with respect to the effluxion of time between the alleged exposures and diagnosis, and I am not otherwise aware of there being any other particular substantial prejudice to the defendants if the validity of the writs of summons were extended.

   [14] Horgan v Master Cabinets (WA) Pty Ltd [51], referencing the observation made by Newnes J in Lawless v MacKendrick [No 2] [2008] WASC 15 [32].

9. Again, I note that the defendants were not put on notice of either application, which in the circumstances was not required. These were not applications made to extend the validity of a writ when there had been ineffective service of a stale writ, or where the plaintiff also sought an order forgiving or curing an irregularity pursuant to O 2 r 1 of the Rules of the Supreme Court. I also remain cognisant that if the defendants in the end take issue with the orders made ex parte, after service and the filing of an appearance, relief may be sought pursuant to O 58 r 23 of the Rules of the Supreme Court to set aside the ex parte orders extending the validity of the writs.

10. Weighing these matters in the balance, I consider it appropriate to exercise the court's wide discretion to order an extension of the validity of the writs for service under O 7 r 1(2) of the Rules of the Supreme Court, satisfied that it is what the interests of justice require in the particular circumstances of the case.[15] However, the interests of justice only require an extension of sufficient time to allow the plaintiff to take legal advice as to the legislative changes, with the benefit a review by Professor Brims in December 2025.

    [15] Lawless v MacKendrick [No 2] [17].

Conclusion and orders

1. In all of the circumstances, I am satisfied that the discretion to extend the period of the validity of the writs for service ought be exercised to further justice being done. It is appropriate and just that pursuant to O 7 r 1(2) of the Rules of the Supreme Court, the validity of the writs filed on 3 August 2023 be extended for a period of six months beginning on 3 August 2025, particularly in light of the plaintiff's intention to obtain further medical evaluation in December 2025 and legal advice, and the proposed future conduct of the proceedings as described by counsel. It is also appropriate that the costs of the applications again be in the cause.

2. I again note that O 7 r 1(3) of the Rules of the Supreme Court provides that before a writ, the validity of which has been extended under this rule, is served, it must be marked with an official stamp showing the period for which the validity of the writ has been extended. Upon the extraction of orders, the plaintiff ought to liaise with Central Office to obtain writs marked with an official stamp as required by sub‑rule (3).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CR

Associate to the Hon Justice Strk

30 JULY 2025