Keith Henry Evans v Queanbeyan City Council - [2009] NSWDDT 22

Dust Diseases Tribunal

of New South Wales

CITATION: Keith Henry Evans v Queanbeyan City Council [2009] NSWDDT 22

PARTIES: Keith Henry Evans (Applicant on the Motion)
Amaca Pty Ltd (Respondent to the Motion)

MATTER NUMBER(S): 199 of 2009

JUDGMENT OF: Curtis J at 1

CATCHWORDS: DUST DISEASES TRIBUNAL - Proceedings :- Abuse of process – Application to join putative defendant where, due to the elapse of time, no useful evidence is available upon which to conduct a fair trial against that defendant.

LEGISLATION CITED: Civil Procedure Act of 2005 s56 & s58
Uniform Civil Procedure Rules 2005 r13.4 & r14.28

CASES CITED: Batistatos v RTA (2006) 226 CLR 256
Parsons v Martin (1984) 5 FCR 235
Hunter v Chief Constable of the West Midlands Police [1982] AC 529

DATES OF HEARING: 11 September 2009

DATE OF JUDGMENT:
18 September 2009

LEGAL REPRESENTATIVES:
Mr G F Little SC instructed by Denniston & Day appeared for the Applicant on the Motion.
Mr G M Watson SC instructed by DLA Phillips Fox appeared for the Respondent to the Motion.

JUDGMENT:

Dust Diseases Tribunal of New South Wales

Matter Number 199 of 2009

Keith Henry Evans

Queanbeyan City Council

18 September 2009

RULING

CURTIS J

The claims for relief

1. Mr Keith Henry Evans, a retired 83 year old carpenter, asserts that he has contracted asbestos related pleural disease and lung cancer as a result of working with asbestos cement building products between 1942 and 1990. By Statement of Claim filed in the Tribunal on 21 July 2009 he sues Queanbeyan City Council, his employer between 1975 and 1990. Queanbeyan City Council has issued a cross-claim against Amaca Pty Limited (‘Amaca’), formerly James Hardie and Coy Pty Limited, asserting that the building products used by Mr Evans between 1975 and 1990 were manufactured by Amaca.

2. Because Mr Evans is dying, the hearing of his claim has been expedited. His evidence was taken at his home in Queanbeyan on 28 August 2009. Before Mr Evans was sworn, his counsel, Mr Foord, sought leave to amend the statement of claim so as to join Amaca as a defendant liable for the consequences of Mr Evans’ asbestos exposure during the whole of the period 1942 to 1990. R19.1 of the Uniform Civil Procedure Rules 2005 provides that a plaintiff may not, without leave of the court, amend a statement of claim after 28 days have elapsed from the date on which it was filed. Mr Foord had not yet drawn the amended statement of claim, and his application was deferred.

3. For reasons of convenience, it was agreed that evidence relevant to the proposed amendment should be led from Mr Evans, and the application for leave deferred.

4. The application is now before me. I understand that, in so far as the amendment joins Amaca as a defendant in respect of the period 1975 to 1990, it is not opposed.

5. In relation to the period 1942 to 1975, Amaca opposes the amendment upon the…

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.

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Details

Case: [2009] NSWDDT 22
Decision Date: 18 September 2009

CaseChat Overview and Summary

The case of Keith Henry Evans v Queanbeyan City Council involved a claim by Evans against the council for dust disease compensation. The dispute centred around Evans' alleged exposure to asbestos dust in the course of his employment, leading to a debilitating health condition. The case was heard in the Dust Diseases Tribunal of New South Wales. Evans sought to join a putative defendant, a company believed to be responsible for the exposure, but this application was contested by the council.

The central legal issue before the court was whether it was appropriate to join the putative defendant in the proceedings, given the significant delay in bringing the application and the resultant unavailability of useful evidence. The tribunal had to consider whether the passage of time and the inability to obtain relevant evidence would prejudice the putative defendant's right to a fair trial. Additionally, the tribunal needed to assess if the delay was justifiable and whether the putative defendant could still be held accountable under the circumstances.

In reaching its decision, the tribunal emphasised the importance of fairness in legal proceedings. It held that the significant delay in bringing the putative defendant into the litigation rendered it unjust to proceed with the application. The tribunal found that the absence of available evidence meant that a fair trial could not be assured, thus upholding the council's opposition to the joinder. The tribunal concluded that it was in the interests of justice to deny the application to join the putative defendant.

Orders