James v Seltsam Pty Ltd - [2017] VSC 506

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
DUST DISEASES LIST

S CI 2015 05145

DAVID JAMES	Plaintiff
v
SELTSAM PTY LTD	First Defendant
AMACA PTY LTD	Second Defendant

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JUDGE:	Zammit J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 August 2017
DATE OF RULING:	30 August 2017
CASE MAY BE CITED AS:	James v Seltsam Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2017] VSC 506

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PRACTICE AND PROCEDURE – Application by defendant for an order requiring submission of plaintiff’s explanted lung for testing – Consideration of applicable powers of the Court – Production of a thing – Civil Procedure Act 2010 (Vic) ss 9, 47 and 55 – Supreme Court (General Civil Procedure) Rules 2015 (Vic) o 33, r 34.01, 37.01 and 40.12 – De Simone v Legal Services Board, unreported, Supreme Court of Victoria (30 January 2015) – Doodeward v Spence (1908) 6 CLR 406 – Hanks v Johnston (No 3) [2016] VSC 629 – Pecar v National Australia Trustees Ltd, unreported, Supreme Court of NSW (27 November 1996) – Roche v Douglas (2000) 22 WAR 331 – S v Minister for Health [2008] WASC 262 – Stace v Commonwealth (1989) 51 SASR – Application granted on basis of r 37.01 – Explanted lung is ‘property’ for the limited purposes of r 37.01 – Alternate bases under r 34.01 and s 47 of the Civil Procedure Act 2010 (Vic) – The production and testing of the lung is conducive to the effective and complete determination of the issue.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B. Quinn QC and Mr J. Gordon	Slater and Gordon
For the First Defendant	Dr S. Keeling	Colin Biggers & Paisley
For the Second Defendant	Mr S. Smith	Mills Oakley

HER HONOUR:

Introduction

The plaintiff, David James, alleges to have been negligently exposed to asbestos dust and fibre by reason of the defendants’ conduct, which resulted in the plaintiff suffering from asbestosis.[1] The proceeding has settled as between the plaintiff and the second defendant, Amaca Pty Ltd (‘Amaca’), and remains on foot between the plaintiff and the first defendant, Seltsam Pty Ltd (‘Seltsam’).
[1]The plaintiff issued a writ on 30 September 2015 and subsequently a statement of claim on 12 May 2016.

By summons dated 10 August 2017, Seltsam seeks the following orders:

1. The plaintiff provide the lung tissue from his excised lung to Seltsam’s solicitors for the purposes of an asbestos fibre count to be performed by Microanalysis Australia.

2. The trial listed to commence 23 August 2017 be vacated and the proceeding be fixed for trial on a date not before 22 November 2017.

3. The plaintiff pay Seltsam’s costs.

In the statement of claim dated 10 April 2016, in relation to Seltsam, the plaintiff alleges that he inhaled asbestos fibre at the Wunderlich factory in Sunshine between approximately 1966 and 1967, and 1970 and 1972.[2] The plaintiff claims that as a result of his employment with Seltsam he suffers from…

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 James v Seltsam Pty Ltd

Details

AGLC: James v Seltsam Pty Ltd [2017] VSC 506
Case: [2017] VSC 506
Decision Date: 30 August 2017

CaseChat Overview and Summary

In the matter of James v Seltsam Pty Ltd, the defendant company sought an order requiring the plaintiff to submit his explanted lung for testing. The plaintiff had undergone surgery to remove the lung as a result of alleged asbestos exposure linked to the defendant's products. The case was heard in the Supreme Court of Victoria, which was required to determine whether it had the power to compel the plaintiff to produce his lung for testing.

The court had to decide whether it had the authority to order the production of the plaintiff's explanted lung for testing under the Civil Procedure Act 2010 (Vic) and the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The court also considered whether the testing of the lung would be conducive to the effective and complete determination of the issues in the case. This involved interpreting relevant provisions of the Civil Procedure Act 2010 (Vic) and the Supreme Court (General Civil Procedure) Rules 2015 (Vic), as well as relevant case law.

The court found that the explanted lung was 'property' for the purposes of rule 37.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), which permits the production of property. The court also found that the testing of the lung was conducive to the effective and complete determination of the issues in the case, as it would provide crucial evidence regarding the plaintiff's asbestos exposure and the defendant's liability. The court therefore granted the defendant's application for an order requiring the plaintiff to submit his explanted lung for testing.

The court's final order was that the plaintiff must submit his explanted lung for testing as ordered by the defendant. The court also made orders regarding the costs of the application, including the defendant's costs of the application to be paid by the plaintiff.

Orders