Judd v Amaca Pty Ltd

[2002] NSWDDT 25

Dust Diseases Tribunal

of New South Wales

CITATION:	Judd v Amaca Pty Ltd [2002] NSWDDT 25 revised - 11/02/2003
PARTIES:	David Clarence Judd Amaca Pty Ltd
MATTER NUMBER(S):	341of 2002
JUDGMENT OF:	O'Meally P at 1
CATCHWORDS:	:- Dust Diseases Tribunal Act s 25B application for leave to reargue or relitigate issue previously decided no new evidence manner of conduct of earlier proceedings other relevant matters leave refused Dust Diseases Tribunal Act s 25B constitutional validity comity section valid
LEGISLATION CITED:	Dust Diseases Tribunal Act 1989 s 25B
CASES CITED:	McDonald v State Rail Authority of New South Wales & Ors (1998) 16 NSW CCR 695; Pizzini v Workers Compensation (Dust Diseases) Board, Duck, J 23 December 1994 (unreported); Boyle v Workers Compensation (Dust Diseases) Board, O'Toole, J, 28 July 1997 (unreported); Cavanaugh v Workers Compensation (Dust Diseases) Board (1998) 16 NSW CCR 626; Proudman v Workers Compensation (Dust Diseases) Board, Geraghty, J, 20 May 1999 (unreported); Scates v Workers Compensation (Dust Diseases) Board, Bishop, J, 20 August 1999 (unreported); McDonough v Stevedoring Industry Finance Committee and Anor (2000) 20 NSW CCR 385
DATES OF HEARING:	24/12/2002
EX TEMPORE JUDGMENT DATE :	12/24/2002
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr J L SHARPE instructed by Turner Freeman FOR DEFENDANT: Mr G M WATSON SC instructed by Phillips Fox

JUDGMENT:

3

Dust Diseases Tribunal of New South Wales

Matter No 341 of 2002

David Clarence Judd

v

AMACA Pty Limited (formerly James Hardie & Coy Pty Limited)

24 December 2002

O'MEALLY P

RULING

1. This is an application by Amaca Pty Ltd under s 25B of the Dust Diseases Tribunal Act (the Act) for leave to relitigate or reargue an issue previously determined by the Tribunal.

2. On 29 August 2002 David Clarence Judd (the plaintiff) issued a statement of claim in which he claimed damages from Amaca Pty Limited, alleging that as a result of exposure to asbestos manufactured by its predecessor, James Hardie & Coy Pty Limited, he has contracted carcinoma. The defendant does not dispute that the plaintiff has carcinoma. It is accepted by both parties that the plaintiff does not have clinical or radiological evidence of asbestosis. The plaintiff will allege that he was exposed to a sufficient quantity of asbestos dust and fibre as might cause asbestosis and, relying on s 25B of the Act and in compliance with the rules, filed a notice. Amongst other things, he relies upon an issue previously determined before the Tribunal in McDonald v State Rail Authority of New South Wales & Ors (1998) 16 NSW CCR 695.

3. S 25B of the Act is in these terms:

(1) Issues of a general nature determined in proceedings before the Tribunal (including proceedings on an appeal from the Tribunal) may not be relitigated or reargued in other proceedings before the Tribunal without the leave of the Tribunal, whether or not the proceedings are between the same parties.
(2) In deciding whether to grant leave for the purposes of subsection (1), the Tribunal is to have regard to:
(a) the availability of new evidence (whether or not previously available), and
(b) the manner in which the other proceedings referred to in that subsection were conducted, and
(c) such other matters as the Tribunal considers to be relevant.
(3) The rules may provide that subsection (1) does not apply in specified kinds of proceedings or in specified circumstances or (without limitation) in relation to specified kinds of issues.

(4) This section does not affect any other law relating to matters of which judicial notice can be taken or about which proof is not required.

4. The late Mr McDonald commenced an action in the Tribunal claiming damages from the State Rail Authority of New South Wales, Queensland Alumina Limited and Alumil Pty Limited. Soon after his evidence was taken he died. Subsequently, his widow continued the action for the benefit of his estate against those defendants and also against James Hardie & Coy Pty Limited, the predecessor of the present defendant, and two other corporations. Mrs McDonald came to an accommodation with all defendants save James Hardie & Coy Pty Limited. The substantial question in her case was whether lung cancer might be caused or materially contributed to by asbestos exposure in the absence of asbestosis. That issue was resolved in her favour. Par 72 of the reasons for judgment, delivered by me, is in these terms:
The issue resolved in the plaintiff's favour specifically stated is: carcinoma of the lung may be attributed to asbestos exposure in the absence of asbestosis where the exposure was sufficient to have caused asbestosis.
5. The notice filed by the plaintiff in reliance on s 25B refers to that issue. It raises also a number of other matters, the greater number of which are either irrelevant to the present case, or narratives of evidence or recitation of concessions made in other cases. The only matter properly raised by the plaintiff is the finding in McDonald's case which I have quoted.

6. The defendant has moved for leave to reargue the issue decided in McDonald. Additionally, it sought that “the whole of the s 25B notice be struck out”.

7. So far as the notice filed in reliance on s 25B is concerned I have made clear my view that the only issue properly raised by the plaintiff is that recited in Par 72 of McDonald. One basis upon which the defendant seeks to reargue that issue, at least so far as I am able to understand it, is that the section operates unfairly to litigants not a party to the first proceedings. It will be remembered that the only litigant who persevered with a defence in McDonald's case was, in effect, the present defendant.

8. It has placed before me other arguments to the effect that medical evidence suggests there are different degrees of asbestosis and also, as I understood the argument, suggesting that there are different levels of exposure which cause asbestosis in different groups of exposed people, and disputes concerning confirmation of asbestosis by histological means.

9. The issue in McDonald was determined upon the basis that there was no evidence of asbestosis at either clinical or sub-clinical levels, nor demonstrated objectively either by radiological means or lung function testing. McDonald was a case in which there was no evidence of asbestosis. I am not able, for present purposes, to see the significance of different degrees of asbestosis, or of asbestosis in different groups of exposed people, or of disputes on the confirmation of asbestosis by histological means.

10. In determining whether to grant leave, I am required by s 25B (2) of the Act to consider the availability of new evidence, the manner in which the proceedings in McDonald were conducted, and such other matters as I consider to be relevant to.

New evidence
11. I have had placed before me copies of two papers relating to the effects of smoking and asbestos exposure in cases of lung cancer and a particular study on cancer. Of the two papers one is by Liddell, the other is by Liddell and Armstrong. Placed before me, also, is a report bearing date 8 November 2001 by Mr Rogers, of Alan Rogers OH & S Pty Ltd, commissioned by the Dust Diseases Board. In that report Mr Rogers referred to a paper published in the Annals of Occupational Hygiene Vol 44 No 8 pp 565 - 601, 2000 entitled The Quantitative Risks of Mesothelioma and Lung Cancer in Relation to Asbestos Exposure. The authors of that paper are Hodgson and Darnton.

12. Senior Counsel for the defendant has been invited to take me to such parts of the report and the papers in which new evidence is presented. I am unable to agree that new evidence is presented or referred to in any part of the reports or papers to which my attention has been directed by counsel. Rather, they re-consider data which have previously been considered. In some respects they relate to matters not covered by the issue determined in McDonald and are irrelevant to this case. The report of Mr Rogers contains reference to no new research. It contains nothing new. It is a review of literature, much of which was placed before me by James Hardie & Coy Pty Limited in McDonald and considered in that case.

13. With all respect to Senior Counsel for the defendant it seems to me that to re-litigate or reargue the issue decided in McDonald on the suggestion there is new evidence would be futile. The issue decided in McDonald has been decided the same way in several cases in the Compensation Court on appeals from the Dust Diseases Board; see, eg. Pizzini v Workers Compensation (Dust Diseases) Board, Duck, J 23 December 1994 (unreported); Boyle v Workers Compensation (Dust Diseases) Board, O’Toole, J, 28 July 1997 (unreported); Cavanaugh v Workers Compensation (Dust Diseases) Board (1998) 16 NSWCCR 626; Proudman v Workers Compensation (Dust Diseases) Board, Geraghty, J, 20 May 1999 (unreported); Scates v Workers Compensation (Dust Diseases) Board, Bishop, J, 20 August 1999 (unreported), and there are others. The judges who decided these cases are well accustomed to evaluating and assessing complex medical and scientific evidence and determining disputed questions of fact and opinion.

14. The report of Mr Rogers which, as noted, was commissioned by the Dust Diseases Board, was circulated widely, including to judges of the Tribunal. One might speculate why it was circulated to the judges. Be that as it may, the Tribunal and judges of the Compensation Court have reached and maintained a view contrary to that of Mr Rogers and contrary to the position taken by the Board. In the absence of new evidence it is unlikely that the position again contended for will prevail.

Manner of conduct of other proceedings

15. There is nothing about the manner in which the proceedings in McDonald were conducted which causes me to conclude that anything other than a full examination of the issue involved was undertaken. Able and experienced counsel represented James Hardie and Coy Pty Ltd. Not only was all the relevant evidence placed before me, but the arguments of counsel were complete, able and helpful. In the end, however, I found against James Hardie & Coy Pty Ltd on the connection between carcinoma and asbestos exposure in the absence of asbestosis. Courts are frequently called upon to decide disputed questions and a disputed question was decided in that case. I can, however, see nothing in the material which has been placed before me today, nor in the manner in which McDonald's case was conducted, which would lead to a different view or would justify granting the leave sought.

Other relevant maters

16. There is another matter upon which counsel for the plaintiff relies. That is the delay in making the application for leave to relitigate or reargue the issue.

17. It is relevant to recite that the case came before me in accordance with the practices of the Tribunal on 9 September 2002. Orders concerning the preparation of the case for trial were then made by consent. The case came before the Acting Registrar on two occasions thereafter, and on 11 November 2002 it was again before me when a further order was made. On 2 December 2002 my colleague, Johns, J, in my absence, fixed the case for hearing before me for five days commencing on 13 January 2003. One of the orders made on 9 September last was that experts' reports, save for the defendant’s economic loss report, were to be served by 25 October 2002. When the matter was before me on 11 November last, seemingly, that order had not been complied with and an extension of time was granted to both parties to serve reports by 20 November 2002.

18. It is apparent that a number of reports which should have been served were not served within the time required by the order, and at some future time a determination will need to be made whether such reports may go into evidence.

19. The fact that the plaintiff''s action was listed for hearing commencing on 13 January 2003, that is during vacation, is an indication Johns, J thought the case to be one of some urgency. It is the case that the Tribunal treats all cases of lung cancer and mesothelioma as urgent. Experience demonstrates that the condition of people suffering lung cancer or mesothelioma can change with little or no warning.

20. I have before me on this application the report of Mr Alexander Rosalion, a cardio thoracic surgeon, which bears date 15 November 2002. In the body of his report, at p 7, Mr Rosalion says of the plaintiff:

If he does not respond to chemotherapy his prognosis could be as short as three months and even with a very good response, his prognosis would certainly be significantly less than twelve months. He is also at great risk at any time of succumbing to intercurrent illness, in particular infection, as he has very little pulmonary reserve and infiltrates in his lung. It is thus likely that his prognosis would be extremely poor.
Later in his report in answer to a specific question Mr Rosalion said:
......[O]verall I felt Mr Judd's prognosis was likely to be in the order of three months, but could be shorter if he were [to] develop an intercurrent infection or could be a little longer if he had a dramatic response to chemotherapy.
Experience also demonstrates that doctors usually are optimistic in giving prognoses in cases of carcinoma and mesothelioma. There is ample justification for Johns, J’s treating the case as an urgent one.
21. It is obvious that there is an unexplained failure to comply with the orders of 9 September and 11 November 2002. There has been a delay in the application to relitigate the issue decided in McDonald . The delay has not been explained.

22. McDonald occupied something in the order of five weeks’ hearing time and involved extended sitting hours. To require the plaintiff, with Christmas and New Year holidays intervening, to marshal evidence on this issue and have it available for presentation in the week commencing 13 January 2003 would impose an unacceptable burden upon him and place him in a position of prejudice.

23. Accordingly, the defendant’s application is refused.

24. It is appropriate to observe that in McDonald there was a concession that 25 fibre ml years was the exposure necessary to cause asbestosis. What exposure is sufficient to cause asbestosis was not an issue decided. It will therefore be necessary for the plaintiff to prove at the hearing what exposure is capable of causing asbestosis

Constitutional validity of s 25B
25. It is perhaps convenient to recite also that the defendant wishes to argue that s 25B of the Act is invalid as being beyond the legislative competence of the Parliament of New South Wales.

26. I have been informed by Senior Counsel for the defendant that notice has been given under the Judiciary Act and that notice was given on 20 December 2002 to all Attorneys General except the Attorneys for Tasmania and the Northern Territory to whom notice was given on 23 December 2002, that is yesterday. Not surprisingly, because of the lateness of the notice, no response has been received. However, I think it not inappropriate to note that the question of the constitutional validity of s 25B of the Dust Diseases Tribunal Act was considered by Johns, J in McDonough v Stevedoring Industry Finance Committee and Anor (2000) 20 NSW CCR 385. Notice of that case was given to the Attorneys of the States and Territories. Only the Attorney General for New South Wales made representations and they were in writing.

27. Johns, J held that s 25B was a within the legislative powers of the Parliament of New South Wales and he determined that the section was valid. Reasons of comity would cause me to follow his decision and, if I may so, I believe his decision to be correct. If there is to be a further challenge to s 25B I think it is sufficient that the point be taken and the challenge may be made in another place. Of course, if they wish, the Attorneys may intervene in these proceedings.

Costs

28. The plaintiff has succeeded on the defendant’s application to reargue the issue determined in McDonald . The plaintiff has substantially failed on the question of the s 25B notice as I think the plaintiff was bound to fail. I would think the plaintiff would never have been permitted to rely upon other than Par 33 of his notice, and I am doubtful whether the appropriate course was to seek such a ruling in advance. However, it was argued, and I think something in the order of two and one half per cent of the Court's time today was taken in considering the s 25B notice. Accordingly, the plaintiff should have costs, but only to the extent of ninety seven and one half per cent of those relating to the application as shall be agreed or assessed.

29. The order therefore is:

Application to relitigate or reargue issue recited in Par 72 of McDonald v State Rail Authority of New South Wales (1998) 16 NSW CCR 695 is refused. The defendant is to pay the plaintiff's costs as agreed or assessed but only to the extent of ninety seven and one half per cent thereof.