Jones v Hamersley Resources Limited

NEW SOUTH WALES COURT OF APPEAL

CITATION: Jones v Hamersley Resources Limited [2005] NSWCA 371

FILE NUMBER(S):
40935/03

HEARING DATE(S): 28 July 2005

JUDGMENT DATE: 31/10/2005

PARTIES:
Robert JONES (Claimant)
HAMERSLEY RESOURCES LIMITED (Opponent)

JUDGMENT OF: Santow JA Mathews AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 12742/01, DC 12971/01

LOWER COURT JUDICIAL OFFICER: Armitage DCJ

COUNSEL:
K W ANDREWS (Claimant)
G R GRAHAM (Opponent)

SOLICITORS:
Sowden Akerman (Claimant)
Cutler Hughes & Harris (Opponent)

CATCHWORDS:
PROCEDURE - leave to appeal - claimant contends he suffered continued negligence with respect to his employment between 1964 to 1973 resulting in hearing difficulties - whether extent of unavailability of evidence and witnesses regarding factual issues in dispute renders trial unfair were limitation period extended - whether claimant's delay in bringing action, once aware of his rights, adequately explained.

LEGISLATION CITED:
Limitation Act 1969 of NSW s60G(2); s60I

DECISION:
Leave to appeal denied. Claimant to pay opponent's costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40935/03
DC 12742/01
DC 12971/01
SANTOW JA
MATHEWS AJA
31 OCTOBER 2005

Robert JONES v HAMERSLEY RESOURCES LIMITED
(formerly New Broken Hill Consolidated Limited)

Judgment

SANTOW JA:
INTRODUCTION
This leave to appeal and concurrent hearing (CA 40935/03) was heard in conjunction with parallel proceedings in Robertson v The Zinc Corporation Pty Ltd (CA 41021/03). They were argued together by the same counsel. I shall refer to the latter by the shorthand “Robertson appeal” and the former by the shorthand “the Jones appeal”. The claimant in the Robertson appeal is Robert James Robertson while the claimant in the Jones appeal is Robert Jones. These proceedings before this Court are properly the subject of separate judgments as, though they share a common substratum of facts and common issues, they have a number of material differences. These relate to each claimant’s respective employment history in the Broken Hill mines where each worked.
That differing employment history had the potential to produce different answers at trial. In fact, before different primary judges both claimants were unsuccessful. They each sought an extension to the relevant limitation period applicable to their respective actions for noise-induced hearing loss. In each case the finding the subject of the leave to appeal, was that it was not “just and reasonable” to extend the time for bringing an action against the opponent employer pursuant to s60G(2) of the Limitation Act 1969 of NSW (“the Act”).
There was no issue in either case that the relevant claimant passed the threshold requirement in s60I of the Act. Each was accepted as unaware at the relevant date of the connection between the claimed personal injury and the opponent’s alleged act or omission.
Turning now to the Jones appeal, the claimant, Mr Robert Jones, seeks leave to appeal against Armitage DCJ’s denial of an extension of the limitation period to bring an action for noise-induced hearing loss. Mr Jones claims to have suffered that loss in the course of his employment with two successive employers in a mine at Broken Hill. His employment commenced in December 1964 and concluded in 1993. But his claim is only in respect of injuries occurring prior to 30 June 1987, with principal reliance on the period after 1973.
The essential issues on this application for leave to appeal are:
(a)whether the extent of the unavailability of evidence and witnesses regarding factual issues in dispute would render a trial unfair were the limitation period extended, and
(b)whether the claimant’s delay in bringing the action, once he became aware of his rights, was adequately explained.
SALIENT FACTS
The claimant, Mr Jones, commenced employment in December 1964 at a mine in Broken Hill. His original employer from that date until 23 December 1988, with the exception of a period of six months in 1978, was Hamersley Resources Ltd (“Hamersley”). In 1988, Hamersley sold its interest in the mine to the newly created company Pasminco Broken Hill Mine Pty Ltd (“Pasminco”). In December 1988 Pasminco took over operation of the mine and employees of Hamersley were transferred to Pasminco. The claimant was then employed at the mine by Pasminco until 19 February 1993.
His essential claim, according to the Amended Statement of Claim, was that during his employment at the mine by his successive employers, he was required to work and/or be near machinery which was loud and/or excessively noisy. As a result of being exposed to the noise of machinery and equipment, Mr Jones claimed to have suffered injury to the structure of both inner ears. The claim he brought was limited to injuries occurring prior to 30 June 1987. The reasoning behind this was evidently that on 1 July 1987 the Workers Compensation Act 1987 (NSW) came into force. That affected entitlements to claim common law damages prospectively.
The original Notice of Motion seeking an extension of the limitation period, filed in the District Court on 26 November 2001, named Pasminco as defendant. This was by agreement between the parties, as Pasminco had taken over part of the workers’ compensation responsibilities of Hamersley. However, in September 2001, Pasminco was placed in voluntary administration, and by February 2002, the administrator had refused to continue to accept responsibility for any claims made in respect of events which occurred before Pasminco took over operation of the mine. Thus on 10 October 2002, an amended Notice of Motion was filed in the District Court substituting for Pasminco the current opponent/ defendant, Hamersley.
Though the employment covered a span from 1964 to 1993 with the change of employer earlier noted, the claim that was pressed on appeal relied, but faintly, upon the nine-year period from 1964 to 1973. The claim sought to be pursued was essentially from 1973 to an earlier period of 1987, after which there was no contention pressed that the claimant was suffering continued negligence with respect to his employment. It follows therefore that the claim that was essentially pressed was in respect of the fourteen-year period between 1973 to 1987 with the omission of six months.
The claimant during the course of his employment was required to work near machinery and equipment which, according to the claimant, appeared to him to be very loud. He was not aware of any hearing loss before commencing his employment. The primary judge summarised the claimant’s evidence as to the hearing protection provided by the opponent as follows:
(a)No protection was provided when he first started, but in about 1975/1976 he began using cottonwool in his ears.
(b)Cottonwool was provided by his employer, but he was not able to use it all the time because, when working in a new area, he had to tap the roof and listen for a hollow sound.
(c)About 12 months after he started using cottonwool he was supplied by the company with ear plugs, which he wore consistently but which he was regularly required to remove in order to communicate.
(d)He tried wearing ear muffs but found them ineffective when he moved his head.
The claimant’s evidence was that he was not provided with regular hearing tests but did have his hearing tested in May 1973 (found to have a 3.5% loss of function in left ear, nil loss in right ear) and then in November 1987 and December 1987 (found to have a 33% loss in left ear and 31% loss in right ear). The claimant was subsequently compensated for an 18% further hearing loss in left ear and a 31% loss of function in right ear.
The claimant’s evidence was that he first became aware of his hearing difficulties sometime just prior to 1976. Those difficulties subsequently appeared to get worse.
The claimant was retrenched in 1993, along with about 400 others.
The claimant answered an advertisement in the local Broken Hill newspaper and met with lawyers on or about 28 November 1998 at a motel. He saw other men from the mine there.
In the course of the consultation, the claimant was told that as a result of the 1962 Commonwealth Acoustics Laboratory report (known as CAL 19) and also Australian Standard 1269-1976, his employer should have:
(a)Provided him with regular hearing protection,
(b)Tested his hearing every year,
(c)Provided him with the result of those tests,
(d)Personally fitted him with hearing protection which would have allowed him to perform his job and listen for noises, if required,
(e)Rotated him in and out of noisy areas, and
(f)Taken engineering means to reduce the noise levels to which he was exposed.
On 29 November 1998, the claimant signed an authority for Mr Akerman (solicitor) to obtain information.
On 1 February 2000, an affidavit for the purpose of these proceedings was forwarded to the claimant.
On 19 September 2001, Pasminco Australia Ltd (original opponent in these proceedings) and its subsidiaries were placed in administration.
On 21 November 2001, the first Notice of Motion was filed; it was subsequently amended.
On 12 October 2002, the claimant swore an affidavit for the purpose of these proceedings.
The first instance Judgment
The claimant’s challenge is to the primary judge’s finding that it was not just and reasonable to extend the time period; see s60G(2) of the Act.
The primary judge’s finding that s60I of the Act was satisfied, is not in dispute on appeal. The threshold requirements of s60I constitute the basis for any jurisdiction to extend the limitation period. The primary judge found that the claimant had proved at the relevant date (30 June 1993) that he was unaware of the connection between his personal injury and the opponent’s acts or omissions, so that he passed the test of s60I(1)(a); Judgment [12].
However, the claimant had also to pass the threshold requirement of s60I(1)(b) of the Act. It precludes the court making an order extending the limitation period unless satisfied that “the application is made within three years after the plaintiff became aware (or ought to have become aware)” of the three matters listed in s60I(1)(a).
The primary judge in the end reached only a partial conclusion on that issue. He had no difficulty in finding that the actual motion to extend the limitation period was filed within three years of the relevant date provided in s60I. But he finally left open the question whether “the application” was made when the relevant Notice of Motion was filed to extend time, as distinct from when the matter was later heard by the court in any substantive sense. He referred on that issue to the judgment of Hungerford ADCJ in Italo Martini v NBH Limited (Hungerford ADCJ DC 9191/02, 10 July 2003, unreported) suggesting that the application is made when the matter is heard by the court, rather than earlier when the Notice of Motion to extend time was filed. I respectfully disagree. An application to extend time is made when it is initiated by Notice of Motion, as the reference to “application” in s60I(1)(b) makes clear. The contrary interpretation would place litigants hostage to circumstances over which they had no control, dependent as they would be on progress in the court’s list and the forensic diligence of their opponents.
The primary judge in any event considered that he did not have to reach a concluded view on this question. This was because he had concluded, adversely to the claimant, that if the limitation period were extended and the matter proceeded to trial, the opponent would not be able to have a fair trial; Judgment [13]-[14]. So concluding, the trial judge explained why, leading to the conclusion that it was not just and reasonable to extend the time, in terms of s60G(2) of the Act.
Whether just and reasonable to extend the time
The primary judge found that several important factual issues would arise at trial:
(a)whether the machines had become quieter or noisier over the years,
(b)whether signs warning that hearing protection should be used were put up in the early years, and that hearing guards would be properly fitted by the nursing sister,
(c)whether safety films about hearing loss were shown in the first ten years of the claimant’s employment,
(d)when the claimant was first given hearing protection,
(e)when the claimant was first given the opportunity of attending lectures, and
(f)the ability of the opponent at the time to enforce the use of hearing protection.
The primary judge reasoned as follows. In order to address these factual disputes, it would have been at the very least useful if the opponent could call witnesses. The evidence of a Dr Cumpston (chief medical officer for the opponent company) would be vital. Dr Cumpston wrote an article in 1967. However, he was dead, as also were the claimant’s supervisor, Mr Turner, and his foreman, Mr Cosman. It was reasonable to assume that other senior officers from that period are probably dead and if living would be unlikely to recall any relevant details.
The primary judge concluded that it was not just and reasonable under s60G(2) to extend the time period, essentially for two reasons:
(a)There was no adequate explanation for the delay that had taken place since November 1998. No affidavit was sent to the claimant until February 2000 and it was not sworn until 12 October 2002, and
(b)Prejudice to the opponent was aggravated by the fact that in those years the mine was sold, employees were dismissed and a new owner took over.
Appeal Grounds
The draft Notice of Appeal provides for the following grounds:
Ground 1: The primary judge erred in finding that the opponent could not have a fair trial and in therefore dismissing the claimant’s application for an extension of the limitation period.
Ground 2: The primary judge erred in finding that there could not be a fair trial because there was a dispute as to what signs were in the workplace.
Ground 3: The primary judge erred in finding that there could not be a fair trial because there were disputes as to whether a sister was available to fit hearing protection; whether safety films were shown; when the claimant was first given hearing protection or lectures; and because some supervisors would be too old to remember events.
Ground 4: The primary judge erred in finding that the absence of evidence from Dr Cumpston would render a trial unfair.
Ground 5: The primary judge erred in finding that there was no adequate explanation for the delay in serving the claimant’s affidavit.
Ground 6: The primary judge erred in finding that there was prejudice due to the mine being sold and employees being dismissed.
Ground 7: The primary judge erred in finding that the opponent suffered prejudice.
DISPOSITION
It is convenient to begin by identifying the relevant legislation as applicable to the relevant events and the applicable principles.
Section 51(1) of the Act provides for an ultimate bar against any action after 30 years. However, s51(2) does not apply to causes of action relating to an order under subdivision 3 of Division 3 of the Act.
Division 3 addresses personal injury arising before the relevant amendments to the Act in the year 2002. Subdivision 3 provides, under s60F of the Act, for extension of the limitation period in relation to latent injuries; that is to say, where “the plaintiff was unaware of the fact, nature, extent or cause of the injury”. Section 60G(2) of the Act applies to a cause of action arising prior to 1 September 1990, by Schedule 5 thereof entitled “Further Transitional Provisions” and in particular by clause 4 thereof.
Pursuant to s60G(2) of the Act, if the court is satisfied that the applicant satisfies the test in s60I(1), the court may, if it decides it is just and reasonable to do so, order that the limitation period be extended.
The leading High Court case in relation to the discretion to extend limitation periods is Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. That case concerned an application to extend the limitation period to commence an action in tort for medical negligence pursuant to s31(2) Limitation of Actions Act 1974 (Qld). That provision is not precisely equivalent to s60G Limitation Act 1969 (NSW), but both provide for a relatively undirected discretion. Mason P considered s60G to be comparable to the Queensland legislation insofar as both provisions contain “a discretion exercisable according to broad notions of justice between the parties in accordance with the purpose of an enactment authorising an extension of the limitation period”: Jones v Royal Hospital for Women [1998] NSWCA 384. The principles arising from Brisbane South can therefore be taken to be applicable to s60G: see Jones; Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 222-223. However, s60G is to be distinguished from s60E (applicable to s60C and s60D). Section 60E shaped the discretion by providing a list of matters to which the court is to have regard. This is “to the extent they are relevant to the circumstances of the case”.
The judges constituting the majority in Brisbane South (Toohey and Gummow JJ in a joint judgment, Dawson and McHugh JJ) agreed that, since the purpose of limitation periods is to preclude stale claims which the defendant would find it difficult to defend given the effluxion of time, it is prima facie prejudicial to the defendant to allow the commencement of an action outside that period. That is, the defendant suffers presumptive prejudice where an extension of the limitation period is granted. However, the prejudice presumed to occur if leave is granted to proceed out of time is generally insufficient of itself to disentitle a plaintiff to the leave sought (Brisbane South per McHugh J at 555; Salido v Nominal Defendant (1993) 32 NSWLR 524 at 538, regarding s52(4) Motor Accidents Act 1988). There must be “actual” prejudice, referred to more precisely as “actual prejudice of a significant kind”. In the discussion which follows, I shall use the shorthand “significant prejudice” to connote that.
There appears to be a divergence of views as to whether the existence of significant prejudice to the defendant (as opposed to presumptive prejudice) is inevitably decisive against a plaintiff’s application to proceed out of time, so that the application should always be refused.
For Toohey and Gummow JJ, prejudice to the defendant was a factor to be considered in answering the ultimate question of whether "the delay has made the chances of a fair trial unlikely" (at 548, 550). However, McHugh and Dawson JJ appeared to give more weight to significant prejudice to the defendant, treating it as decisive of the question whether the court should exercise its discretion to extend time:
Dawson J held that:
“To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant.”
McHugh J stated that:
“When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice…”
This apparent divergence in the judgements in Brisbane South was discussed by Priestley JA and Sheller JA in Holt v Wynter (2000) 49 NSWLR 128. This was a case which concerned s52(4) Motor Accidents Act 1988, which required “leave of the court” for proceedings to be commenced out of time. Although Priestley JA interpreted the differences between the judgments in Brisbane South otherwise, the interpretation of Sheller JA (at 146-147), with whom Meagher JA, Handley JA and Brownie AJA agreed, reflects the majority view. Sheller JA concluded that:
“the effect of the decision of the High Court in Brisbane South Regional Health Authority is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant.”

However, it is important to emphasise that significant prejudice is to be understood as such prejudice as would make the chances of a fair trial unlikely. As Hodgson JA, with whom Beazley JA and Rolfe AJA agreed, observed in South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 at [33] (a case concerning s60G Limitation Act 1969):
“the true issue on this matter is whether or not the applicant for the extension discharged the onus of satisfying the Court that there would not be such prejudice as would make the chances of an acceptably fair trial unlikely.”
Moreover, for a trial to be fair, it need not be perfect or ideal: Holt v Wynter per Priestley JA at 142; McLean v Sydney Water Corp [2001] NSWCA 122; Gabriel. Further, it is not the case that in the absence of proof of significant prejudice the Court is bound to grant leave to commence proceedings: Parsons v Doukas (2001) 52 NSWLR 162 at 163, 190 (a case concerning s52 Motor Accidents Act). Again, the question remains whether it is just and reasonable to grant leave and this is in turn a question of whether the delay has made the chances of a fair trial unlikely, recognising that it does not have to be perfect or ideal.
I come now to the significance of evidence that might have been forthcoming from Dr Cumpston, as well as clarifying the date of his death. This the parties now agree occurred on 7 May 2001 and not, as previously thought, sometime in the 1970’s.
The opponent asserts that Dr Cumpston was “from the still available documentation … the person who has the significant recorded involvement in the matter of hearing protection”. I shall return to that issue below.
What is agreed are the following agreed dates in relation to Dr Cumpston:
(a)Born 9 November 1914
(b)1958 commences Mary Kathleen as town/mine doctor
(c)1961 (early) moves to Broken Hill
(d)September 1962 to late 1963 studies for master’s degree in Occupational and Aerospace Medicine in Ohio
(e)1966 seconded to Hamersley iron ore mine in Western Australia
(f)1967 returns to Broken Hill. Later moves to Bougainville
(g)April 1973 represents Broken Hill Mine Managers Association at final meeting of Standards Australia Sub-Committee No. 1 (Hearing Conservation) in Adelaide
(h)7 May 2001 dies aged 86 years
In the related Robertson appeal, Ms McDonald solicitor for the Defendant in that case, The Zinc Corporation Pty Ltd, confirmed that documents produced under subpoena reveal that Dr Cumpston was the Chief Medical Officer for The Zinc Corporation Pty Ltd and New Broken Hill Consolidated Limited for a number of years, and in particular in 1968. Her affidavit was in error in the hearsay evidence she gave that Dr Cumpston died in the 1970’s; see para 4 of her affidavit. We now know he died in 2001.
His obituary attached to the further affidavit of Ms McDonald of 28 July 2004 throws further light on his period of involvement at the relevant mine involving the opponent:
“In early 1961 CRA transferred Alan to Broken Hill where he was employed full-time as the occupational health physician for the Zinc Corporation and New Broken Hill Mines, owned and operated by CRA.
With CRA financial support, from September 1962 to late 1963 Alan studied in Columbus Ohio for his Masters Degree in Occupational and Aerospace Medicine. After graduation he returned to Broken Hill where he worked until 1968. In 1966 CRA seconded Alan to establish medical facilities at their Hamersley iron ore mine in Western Australia. He spent approximately one year there before returning to Broken Hill.
After leaving Broken Hill, CRA transferred Alan to their Bougainville copper mine, where he was town doctor and occupational health physician.
On returning to Australia in 1973, at the age of 59, Alan enrolled in a Masters degree course in applied science at the University of New South Wales. After completion of this course he was employed for a short time as NSW Deputy Director of Occupational Health before accepting a position in Western Australia as Director of Occupational Health. He occupied this position until his compulsory retirement in 1979.” [emphasis added]
From the additional information and the obituary, it can be taken as established that Dr Cumpston was employed with the opponent as an occupational health physician at the mine between 1961 and September 1962. So too that he returned to that employment in Broken Hill where he would have worked from approximately the latter part of 1964 to 1968, with a period absent in Western Australia in 1966. Thus his involvement at the opponent’s mine really pre-dated the period principally relied upon by Mr Jones, namely 1973 to 1987, as distinct from his nine years of employment preceding 1973 going back to 1964. It was those nine years (1964 to 1973) that partially overlapped with Dr Cumpston’s period at Broken Hill. Thus his evidence is not of direct application. It may at best point to work practices that pre-dated Mr Jones’ principal claim. In that sense, the primary judge’s mistaken assumption that Dr Cumpston ceased working for The Zinc Corporation and New Broken Consolidated Limited in the early 1970’s (rather than in actuality in 1968), has no particular significance; Judgment at p9. (The primary judge also assumed, as we now know mistakenly, that he died shortly thereafter.)
The primary judge refers to Dr Cumpston’s evidence as being vital in his judgment at p15 given the dearth of witnesses and evidence as to the position in 1967. I quote:
“In order to address these factual disputes, it would obviously be helpful if the respondent were in a position to call witnesses. It is the applicant’s evidence that he was given no hearing protection for ten years. That is a factual dispute going back to 1967. It is the respondent’s submission that Dr Cumpston’s evidence would be vital. In an article, part of exhibit 1, he states that early in 1967 a new shaft was commenced at NBHC and that the shaft sinking crews were all issued with neckband style ear muffs. Following that they were introduced into other sections of the mine and as at the date of the article they were freely available to all exposures to noise levels above 90 DBA. The evidence is that Dr Cumpston is dead, as are the applicant’s supervisor, Mr Turner and his foreman, Mr Cosman. It is reasonable to assume, as Mr Graham submits, that other senior officers from that period would probably be dead and if any were found to be living it is unlikely that they would recall any relevant details.”
I shall deal later with the question of whether there were any witnesses still alive, apart from Dr Cumpston, from the period mainly pressed by the claimant (1973 to 1987). I here deal with what Dr Cumpston in fact said in the article referred to above:
“Early in 1967 a new shaft was commenced at NBHC. The shaft sinking crews were all issued with neckband-style ear muffs, which could be worn with safety hats. The men accepted them and continued to wear them. Following this success ear muffs were introduced into other sections of the mine and ear muffs or ear plugs are now freely available for all exposures to noise levels above 90 dbA, no matter whether the duration of such exposure is too short to be a likely cause of permanent loss of hearing.
The position towards the end of 1967 was as follows.
1.Measurement of the noise produced by many of our operations had proved the existence of noise hazards at ZC-NBHC.
2.Audiometric assessment of hearing had demonstrated that a significant number of employees were suffering from industrial deafness.
3.Investigation had shown that there was little hope that a rock-drilling machine could be developed to operate with a sound pressure level less than 90 dbA.
4.Since the neckband-style ear muffs had been well received it was decided to make both types of hearing protection freely available for all exposures to noise levels above 90 dbA.
The situation concerning noise and industrial deafness was defined, the effectiveness of hearing protection in relation to the various operations was assessed, and the way was prepared for the introduction of a hearing conservation programme. Management decided that the success of such a programme would depend upon education t promote awareness of the need for hearing protection and to resolve any doubts concerning the use of protective equipment.
Through the medium of the Broken Hill Mining Managers’ Association a meeting with the combined mining unions was arranged to achieve full understanding by the unions of the necessity for educating their members, to seek their co-operation in carrying out all aspects of the programme and, in particular, to seek their assistance in persuading their members to attend for audiometry. At the meeting, held in November, 1967, it was stated that the companies intended to present the facts concerning noise, deafness, and hearing conservation, to small groups of employees, allowing plenty of time for discussion and resolution of any doubts concerning the use of protective equipment.
Union approval was received and the hearing conservation programme has now started. The interest already shown by the staff and daily-paid employees indicates that it may be successful. To maintain that interest continued support must be given to all aspects of the programme. If noise measurements reveal sources of intense noise that noise must be reduced if it is demonstrably possible to do so. It must be evident to the employees that everything possible has been done and will be done to control Noise. Also, if they are to play their part in a hearing conservation programme, it is not sufficient merely to provide them with hearing protection. A vigorous long-range and detailed educational programme promoted and fully supported by management and applied at all levels must be maintained to stimulate awareness of the hazard, to promote the use of ear protection, and to encourage voluntary attendance for routine audiometry. Education will be the key factor in deciding whether the hearing conservation programme will be successful.” [emphasis added]
Mr Jones’ evidence in his affidavit of 12 October 2002 was that “No hearing protection was provided when I first started” but that “in about 1975/1976 I commenced using cottonwool in my ears to see if that would quieten the noise in the area where I worked”. It was “approximately twelve months after I commenced using the cottonwool [that] I was provided with ear plugs which I consistently wore after that time, however I was regularly required to remove the ear plugs in order to communicate”.
His evidence goes on that “I did try wearing ear muffs after the ear plugs became available however I found that when I turned my head the ear muff would not be touching the side of my head and therefore would open up and allow further noise in”.
Moreover, he stated that “during the course of my work I was required to listen to the work in order to avoid any dangers”.
Finally, he stated, “I was not provided with regular hearing tests however the Defendant did test my hearing in May 1973, November 1987 and December 1987”.
It will be apparent that that evidence is at odds with the position described by Dr Cumpston earlier quoted, to the effect that toward 1967 neckband-style ear muffs were introduced. This was not only for the shaft sinking crews but in all other sections of the mine and that “ear muffs or ear plugs are now freely available for all exposure to noise levels above 90 dbA” and that “the neckband style ear muffs had been well received”.
First, Mr Jones says to the contrary that not only was no hearing protection provided when he first started at the mine but that around 1977/ 1978 he was provided with ear plugs; he did try wearing ear muffs after the ear plugs became available, though with unsatisfactory result in terms of letting through the noise when he turned his head.
In cross-examination he said that it was some ten years after he started that he first began using cottonwool, that is to say around 1974, and his earlier evidence that it was a year later that he started using ear plugs, that is in 1975; see T, 15/08/03 24.5-.12.
In cross-examination Mr Jones agreed that his recollection of whether ear muffs were freely available in the late 1960’s was affected by the fact that it was “just too long ago”; T, 15/08/03 at 32.1-.37.
I refer to this evidence simply to demonstrate that Dr Cumpston’s availability could well have been material in respect of the period from 1964 to 1973. But that just emphasises the fundamental difficulty in the claimant’s case, were it pressed in relation to that earlier period. It explains why the claimant has pressed his claim much more strongly with respect to the later period. Given that Dr Cumpston was in fact alive until 2001, the loss of his availability only after that reinforces the significant prejudice to the opponent were it open to the claimant to obtain an extension of the limitation period to encompass the period prior to 1974.
However, to the extent the earlier period of employment remains relevant, as the opponent submitted, while Dr Cumpston might not have been the only person involved in noise and hearing loss issues at the mine, or even the most involved, at the very least he was the person who most clearly emerges from the remaining documentation as having had significant involvement in the system of work between 1961 and 1968 (with absence during October 1962 to the latter part of 1964). Moreover, he retained an interest in noise issues at the mine even after that up to 1973. For example, in addition to publishing the 1968 article noted above, Dr Cumpston advised the Broken Hill Mining Managers Association (MMA) on industrial deafness issues, and represented the MMA on numerous occasions at conferences from at least 1967 to 1973 at which he made reports and gave talks on industrial noise and hearing protection (see, for example, Mine Managers’ Association Minutes 1969, 1972, 1973 [Vol 1, Tab 23]; MMA Industrial Accident Prevention Committee Minutes 1967 [Vol 3, np]; Report of Conference 16 Nov 1967 [Vol 3, np]). In April 1973, Dr Cumpston represented the MMA on the committee drawing up the Australian Standard, which was published in 1976. Thus, it was clearly open to the primary judge to find that the opponent would be placed in a position of significant prejudice by reason of the death of Dr Cumpston.
A further ground argued by the claimant is that the evidence established that there were people available who could give evidence as to the system of work, such as other workmen working alongside or near the claimant and supervisors, it being contended that “the evidence established that such workmen and supervisors were available to give evidence”.
On this, the evidence does not bear out this contention. Mr Cosman, the claimant’s foreman in 1968, is now dead; Judgment at [6]. Likewise the claimant’s supervisor, Mr Turner, is also deceased; Judgment [15]-[16].
The primary judge likewise observed that in respect of other foremen, the claimant had conceded that some were dead and the rest “if alive, would be very old”; Judgment [5]-[6].
The claimant in response relies upon an argument with the following steps:
(a)in Brisbane South (supra) Toohey and Gummow JJ (at 547) adopted a passage from Gowans J in Cowie v State Electricity Commission of Victoria [1964] VR 788 to the effect that: “It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice”; see also Kirby J in Brisbane South at 566;
(b)reliance is then placed on an affidavit dated 2 March 2005, sworn by Steven Akerman from the firm of solicitors acting for not only Mr Jones but also Mr Robertson and who has filed an essentially identical affidavit in both proceedings. I interpolate that objection was taken to the admission of that material as fresh evidence. The affidavit was directed to whether, based on transcripts of cross-examinations which post-dated the judgments in Jones (26 September 2003) and Robertson (22 October 2003), there had been admissions in other industrial deafness matters. The claimed admissions were to the effect that the relevant opponent did have statements from relevant witnesses concerning the relevant working conditions; these were nonetheless statements for which privilege was still claimed by the opponent. Thus the claimant contends that this claim of privilege demonstrated the opponent’s failure to satisfy the evidentiary onus referred to in (a) above.
This Court deferred ruling upon the admissibility of that affidavit. It had before it in response also an affidavit of Mr O’Donnell from Cutler Hughes Harris on behalf of the opponent dated 20 June 2005 although that affidavit was filed in the Robertson appeal, Cutler Hughes Harris have acted throughout for both opponents. That latter affidavit took issue with the potential relevance of this material, derived as it was from several other cases referred to at para 5 thereof, namely Pearce v The Zinc Corporation Pty Ltd, 29 February 2000 and 1 and 2 March 2000, Pearce v Hamersley Resources Ltd 18 and 25 June 2004. Reference was also made to Stackpool v NBH Limited and Charnock v Hamersley Resources Ltd 16 June 2004.
The opponent’s objection to the admission of this evidence had two prongs. First, it was alleged that this evidence was not, or was unlikely to be, relevant. Second, it was contended that Mr Akerman was on notice of the relevant material and failed to seek it, well before the decisions in Jones and Robertson. This was said to be by reason of the bills of costs in the possession of, and available to, Mr Akerman for at least twenty-one months prior to the hearing before Rein DCJ in Robertson on 26 October 2003; see attachment to Mr O’Donnell’s affidavit.
Taking first the question of relevance or potential relevance, while the opponent was careful not to waive privilege or purport to indicate what the material in the witness statements, which had been given in the other matters, might say, the proceedings in Pearce and Charnock were for extensions of time in relation to a similar workplace injury which had been unsuccessful. That certainly undermined their potential relevance. As to the third matter, Stackpool v NBH Limited, while those proceedings for extension were successful, they related to an entirely different albeit adjoining mine, managed and owned by a different company, Broken Hill North. Thus on any view Stackpool could not be relevant.
The second prong of the attack relates to the contention that it was only as a result of cross-examination in the matters of Pearce, Stackpool, and Charnock that Mr Akerman “became aware for the first time of the fact that the opponent in these proceedings had available to it statements from numerous persons”, being the statements over which privilege was claimed.
The answer given by Mr O’Donnell in his affidavit of 20 June 2005 was that, for at least twenty-one months prior to 26 October 2003, by virtue of the Bills of Costs in documents obtained at that earlier date on subpoena, Mr Akerman was on notice of this material well before the hearings in Jones and Robertson. The relevant Bill of Costs at page 7 related to the Pearce matter and thus the relevant mine. They are attached to an application for assessment of costs filed in the Common Law Division of this Court. Mr Pearce sought an extension of time to bring proceedings relating to claims for damages for industrial deafness suffered before 30 June 1987. The application refers to a period of employment by The Zinc Corporation Limited between 1950 and 1968 and by New Broken Hill Consolidated Limited between 1968 and 1991, in circumstances where the workers’ compensation liability of both of these companies had been assumed by Pasminco Australia Limited.

At page 30 of the affidavit reference is made to an item numbered 39 under the date 24 January 2000 “reading and considering files obtained by Aspec Holdings in searches of client records for general safety matters and particularly hearing protection – 240 pages – 1 hour 40 minutes”.
It is clear that Aspec Holdings was an investigator appointed by the relevant company. The immediately preceding entry in the Bill of Costs refers to “telephone attendance on Mr Katz of Aspec Holdings regarding his searches of client records …”.
There is a later entry in the same Bill of Costs dated 3 February 2000 “reading and considering further report of Aspec Holdings on interview with former safety officers and supervisors …”
In all the circumstances, I consider that the further material sought to be introduced by the claimant relating to the three matters I have referred to should not be allowed. This is more particularly given the evident prejudice to the opponent from its introduction now rather than at the time of trial, and where its relevance has been put significantly in question.
That leads to the ultimate question of whether the primary judge was in error in declining to extend the limitation period in relation to the later period, in particular after 1973. The position before 1973 is self-evidently such that no extension could be justified under the criteria in s60G.
While it appears that the opponent has available still a limited amount of documentary material, I would accept that the opponent would be at a significant disadvantage in the presentation of evidence at a trial. This is unless it could bring forward relevant supervisors, foremen or managers from the years 1964 to 1987 to attest to the correctness of the documents in fact, and as to the application of the practices referred to in the documents. The claimant himself conceded in evidence that his foreman over the years would now either be dead or very old. Commonsense suggests that the foreman who would now be very old would be unlikely to give cogent evidence on what equipment, practices and procedures were available and in force between 1964 and 1987.
I consider that the primary judge correctly found that the opponent’s ability to call evidence on “important factual issues” had been very significantly compromised by the passage of time. That compromise was exacerbated by the change in attitude which occurred when the Pasminco Group went into administration. The administrators of Pasminco simply declined responsibility for any events which occurred prior to Pasminco coming into existence (about 1988). Moreover, the administration of Pasminco occurred nearly three years after the claimant became aware of his rights and that delay remains unexplained.
Whatever steps Mr Akerman may have taken to obtain documents in other proceedings, the claimant had no explanation for why the swearing of his affidavit took four years. The claimant conceded that everything he swore in the affidavit of October 2002 he knew when he left the meeting in November 1998.
I consider that in all the circumstances the primary judge’s exercise of discretion did not miscarry when he concluded that the delay has significantly prejudiced the opponent to the point where a fair trial would not be possible. It must be remembered that during this time, the Pasminco Group had gone into administration, the mine had been sold and employees dismissed and a new owner had taken over the mine.
I therefore consider that the primary judge gave adequate reasons for the exercise of his discretion and that there was no basis for challenging it as having miscarried in relation to the “just and reasonable” ground.
OVERALL CONCLUSION
I consider that the primary judge’s exercise of discretion was soundly based on evidence and not outside the boundaries of a reasonable exercise of that discretion. Accordingly, I consider that this application should fail and propose the following orders:
(1)Leave to appeal denied.
(2)Claimant to pay opponent’s costs.
MATHEWS AJA: I agree with Santow JA.
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LAST UPDATED: 01/11/2005

[2005] NSWCA 371

31 October 2005