Kelsall v Downer EDI Mining Pty Ltd

[2025] NSWDDT 2

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:

Kelsall v Downer EDI Mining Pty Ltd & Ors [2025] NSWDDT 2

Hearing dates:

23 May 2025

Date of orders:

3 June 2025

Decision date:

03 June 2025

Before:

Judge Russell SC

Decision:

See pars [33] and [66] below

Catchwords:

DUST DISEASES – notice of motion for dismissal – amended pleadings went beyond the bounds of order for amendment – order must be understood in the context in which it was made – failure to comply with a requirement of the Civil Procedure Act 2005 (NSW) – an irregularity – proceedings not invalidated

DUST DISEASES – notice of motion for discovery – only documents relating to a matter in issue are discoverable – examination of the pleadings to ascertain matters in issue – interests of justice – scope of discovery can be limited – cost and delay is to be considered – no evidence as to cost concerning discovery – documents relate to matters in issue

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 58, 61, 63, 64

Uniform Civil Procedure Rules 2005 (NSW), rr 14.28, 21.1, 21.2, 21.4. 21.8, 35.3

Dust Diseases Tribunal Rules 2019 (NSW), r 4

Cases Cited:

Alexander v Fitzpatrick [1981] Qd R 359

Birmingham v London [1913] 3 KB 850

Commonwealth Bank of Australia v Goater [2016] NWSC 710 

Hunter New England Local Health District v Munters Pty Ltd [2018] NSWSC 788

Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341

Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264

Percy v General Motors-Holden’s Pty Ltd [1975] 1 NSWLR 289

Category:

Procedural rulings

Parties:

David James Kelsall (Plaintiff)
Downer EDI Mining Pty Ltd (First Defendant)
Daracon Pty Ltd (Second Defendant)
Tarrawonga Coal Pty Ltd (Third Defendant)

Representation:

Counsel:
S Tzouganatos and V Boutas (Plaintiff)
J Sharpe (First Defendant)
T Rowles (Second Defendant – in the interests of Coal Mines Insurance Ltd for liability as employer in a NSW coal mine)
J Tryon (Second Defendant – in the interests of Workers Compensation Nominal Insurer for liability as a non-coal mine employer)
D Andersen solicitor (Second Defendant – for liability other than as an employer)
K McMeniman solicitor (Third Defendant)

Solicitors:
Vbr Lawyers (Plaintiff)
Meridian Lawyers (First Defendant)
Sparke Helmore (Second Defendant – in the interests of Coal Mines Insurance Ltd for liability as employer in a NSW coal mine)
Rankin Ellison (Second Defendant – in the interests of Workers Compensation Nominal Insurer for liability as a non-coal mine employer)
HWL Ebsworth (Second Defendant – for liability other than as an employer)
McCabes Lawyers (Third Defendant)

File Number(s):

2023/00451985

JUDGMENT

Introduction

1. This judgment concerns two Notices of Motion:

1. A Notice of Motion filed on 6 May 2025 by the plaintiff Mr David Kelsall seeking verified discovery from all three defendants (the Discovery Motion).

2. An Amended Notice of Motion filed on 20 May 2025 by Mr Andersen solicitor seeking orders that Mr Kelsall’s pleadings against his client be set aside or dismissed or struck out or limited, on the bases identified in the Amended Notice of Motion (the Dismissal Motion).

2. I will deal first with Mr Andersen’s Motion.

3. Mr Kelsall alleges that he suffers from silicosis and from primary lung cancer with metastatic spread to the liver. A report dated 8 May 2025 puts Mr Kelsall’s life expectancy at “6 to 12 months subject to ongoing assessments and response to planned therapies”.

Background: Plaintiff’s Allegations

4. By a Further Second Amended Statement of Claim filed on 29 April 2025 Mr Kelsall seeks provisional damages for primary lung cancer with metastatic spread to the liver, silicosis and rheumatoid arthritis. The First Defendant is Downer EDI Mining Pty Ltd (Downer). The Second Defendant is Daracon Engineering Pty Ltd (Daracon). The Third Defendant is Tarrawonga Coal Pty Ltd (Tarrawonga Coal).

5. Mr Kelsall pleads as follows:

1. Downer occupied, managed and operated the Boggabri Coal Mine (the Boggabri Mine).

2. Tarrawonga Coal occupied, managed and operated the Tarrawonga Coal Mine (the Tarrawonga Mine).

3. From 2006 to 2008 Mr Kelsall was employed by Woodlands Pastoral Contracting Pty Ltd (Woodlands) as a farm hand and water cart driver.

4. During the period of employment by Woodlands Mr Kelsall worked as a water truck driver at the Boggabri Mine for a couple of months and worked as the driver of a tip truck on the construction of a residential subdivision called Mornington Heights in Gunnedah.

5. During Mr Kelsall’s employment with Woodlands, while working at the Boggabri Mine and at Mornington Heights, he was exposed to and inhaled silica dust and mixed dust.

6. During Mr Kelsall’s employment with Woodlands, while he was working at the Boggabri Mine and at Mornington Heights, Daracon directed, supervised and controlled his work, and Mr Kelsall reported to Daracon.

7. From a date in mid-2008 to a date in August 2009 and from a date in April 2010 to a date in November 2010, Mr Kelsall was employed by Daromin Engineering Pty Ltd (Daromin) to work at the Boggabri Mine, where he was exposed to and inhaled silica dust, coal dust and mixed dust.

8. From late August 2009 to April 2010, and again from November 2010 to 2022, Mr Kelsall was employed by Daracon in various roles, including at the Boggabri Mine and the Tarrawonga Mine.

9. In this work, Mr Kelsall was exposed to and inhaled silica dust, coal dust and mixed dust.

10. During employment with both Daracon and Daromin, Mr Kelsall also worked at ten nominated sites (these are pleaded in par 6B of the Further Second Amended Statement of Claim), largely in the field of construction (the Ten Sites).

11. During all of Mr Kelsall’s periods of employment by Daromin, his work was directed, supervised and controlled by Daracon, and Mr Kelsall reported to Daracon.

6. Mr Kelsall pleads that:

1. The three defendants owed him a duty of care.

2. The defendants knew or ought to have known that if Mr Kelsall was exposed to and inhaled dust including coal dust, silica dust and mixed dust, there was a real risk that he could contract lung diseases including silicosis and lung cancer.

3. As a consequence of dust exposure during Mr Kelsall’s employment by Daracon, Daromin and Woodlands, including at the Boggabri Mine and the Tarrawonga Mine, and also at the Ten Sites, Mr Kelsall has contracted lung diseases, including lung cancer with metastatic spread to the liver, silicosis and rheumatoid arthritis.

4. The cause of those diseases was the negligence of the defendants, as well as breaches of the contractual and statutory duties as pleaded in par 11 of the Further Second Amended Statement of Claim.

Representation of Daracon

7. Mr Rowles of Counsel instructed by Sparke Helmore appears for Coal Mines Insurance Limited (CMI) as the insurer covering employment in New South Wales coal mines. I will refer to the interests represented by Mr Rowles as “Daracon (CMI)”.

8. Mr Tryon of Counsel instructed by Rankin Ellison appears for the Workers Compensation Nominal Insurer (WCNI), being the insurer of Daracon in relation to its liability as an employer at sites in New South Wales other than coal mines. I will refer to the interests represented by Mr Tryon as “Daracon (WCNI)”.

9. Mr Andersen solicitor of HWL Ebsworth appears for Daracon, according to the Appearance filed on 5 May 2025, “limited to the plaintiff’s alleged exposure to silica dust, coal dust and mixed dust in work not being work in the course of the plaintiff’s employment by Daracon Engineering Pty Ltd”. Mr Andersen described this, in a shorthand way, as an occupier’s liability claim. I will adopt the same shorthand and refer to the interests represented by Mr Andersen as “Daracon (OL)”.

The Dismissal Motion

Orders Sought

10. Daracon (OL) seeks orders which would effectively remove the claim against it from Mr Kelsall’s pleadings. Mr Andersen relies upon:

1. Section 63(3)(a) of the Civil Procedure Act 2005 (NSW) (the CPA) seeking to set aside the claim against Daracon (OL).

2. Section 61(3)(a) of the CPA seeking a dismissal of that part of the proceedings against Daracon (OL).

3. Section 61(3)(b) of the CPA seeking an order striking out or limiting the claim against Daracon (OL).

4. Section 61(3)(d) of the CPA seeking an order striking out the claim against Daracon (OL).

5. Rule 14.28(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) seeking to strike out the claim against Daracon (OL) as an abuse of process.

Background

11. By the first iterations of his pleading, Mr Kelsall sued Daracon in its capacity as his employer. The defence of the claim was taken up by Daracon (CMI), but only in relation to the employment of Mr Kelsall by Daracon in coal mines in NSW. From the start of the case, Mr Kelsall had also alleged that he was employed by Daracon in locations other than coal mines. There is no evidence to explain why Daracon did not engage its workers compensation insurer (WCNI) to defend this aspect of the claim against Daracon.

12. The matter came before the Tribunal on 14 April 2025 when this lacuna in the representation of Daracon, and in the Defence filed by CMI on behalf of Daracon, was ventilated. On that occasion complaint was made by several of the defendants that the employment history put forward by Mr Kelsall had changed from time to time, and there were discrepancies between his pleadings, a statement made by Mr Kelsall and served upon the defendants, and particulars provided from time to time. In order to enable each defendant to know the case it had to meet, I made an order on 14 April 2025 for an affidavit to be filed by the plaintiff.

13. Mr Tzouganatos, counsel for Mr Kelsall, on that occasion also indicated that the affidavit of the plaintiff would be followed by an amended pleading, to make clear to each defendant the case to be run against it. The relevant orders made on 14 April 2025 were as follows:

1. Order plaintiff to file and serve an affidavit by the plaintiff by 22 April 2025.

2. Order plaintiff to file and serve a Second Amended Statement of Claim by 24 April 2025.

14. Up to this point there had been no claim pleaded against Daracon (OL). The case against Daracon had been in relation to employment by Daracon in coal mines and employment by Daracon at locations other than coal mines. The order for the filing and serving of an amended pleading was not an order made in a vacuum, but an order made to reflect these matters raised with the Tribunal on 14 April 2025.

New Claim Pleaded against Daracon (OL)

15. Mr Andersen complains, quite rightly in my view, that the filing of the amended pleading (first on 24 April 2025, with a minor amendment in a later iteration on 29 April 2025) went beyond the bounds of the basis for the proposed amendment.

16. Mr Tzouganatos was very frank in his submissions as to how this occurred. He informed the Tribunal that until preparation of the plaintiff’s affidavit, the plaintiff had not given instructions that when he worked for other entities (Woodlands and Daromin), his work was directed and supervised by Daracon. This allegation, not raised by earlier pleadings, and not raised before the Tribunal on 14 April 2025, found its way into the amended pleading filed on 24 April 2025.

17. New paragraph 5A referred to the plaintiff being employed from 2006 to 2008 by Woodlands, during which time Mr Kelsall worked as a water truck driver at the Boggabri Mine. New paragraph 5B alleged that in 2008 Mr Kelsall worked while employed by Woodlands at a residential subdivision at Mornington Heights in Gunnedah. It was pleaded that at both locations Mr Kelsall was exposed to dust. New paragraph 5C pleaded that during Mr Kelsall’s employment with Woodlands, while he was working at the Boggabri Mine and at Mornington Heights, “his work was directed, supervised, controlled, and he reported to, Daracon”.

18. Paragraph 6A of the 24 April 2025 version of the Statement of Claim was not a new amendment. It alleged that from 2008 to 2009, and then from April to November 2010 Mr Kelsall was employed by Daromin at various locations that included Boggabri Mine, where he was exposed to dust.

19. New paragraph 6B set out Ten Sites (other than coal mines) where Mr Kelsall was employed by Daracon and Daromin. New paragraph 6C pleaded that during employment by Daromin, at various locations, “his work was directed, supervised, controlled, and he reported to, Daracon”.

20. It can be seen that these new paragraphs in the pleading filed on 24 April 2025 made claims for the first time against Daracon (OL). As previously recited, those claims were not the subject of a submission to the Tribunal, when an order was made for amendment of Mr Kelsall’s pleading.

21. Mr Andersen wrote to the solicitors for Mr Kelsall pointing these matters out. He was met with a blunt response, which was that Mr Kelsall was entitled to so amend, because of the broad terms of the order for amendment.

Consideration

22. In my view, any order for amendment is based either upon evidence or upon submissions or both. The words of an order cannot be read in ignorance of the application which is made for amendment. I accept the submission of Mr Andersen that, subject to matters discussed immediately below, the new claims against Daracon (OL) should not have been pleaded, as they are outside the bounds of the order for amendment made on 14 April 2025, when that order is understood in the context in which it was made.

23. Mr Tzouganatos submitted that if orders for strike out or dismissal were made in relation to the Daracon (OL) claim, then the plaintiff would be forced to put on a formal application for leave to amend, and would most likely obtain such leave. In the alternative, Mr Tzouganatos submitted that if the Daracon (OL) claims were struck out, Mr Kelsall would be entitled to file a second Statement of Claim, limited to pleading the Daracon (OL) claims. An application would then be made to have the two matters heard together, or more likely, consolidated.

24. Section 63 of the CPA provides as follows:

“63 Directions with respect to procedural irregularities

(cf Act No 52 1970, section 81; Act No 9 1973, section 159; Act No 11 1970, section 75A)

(1) This section applies to proceedings in connection with which there is, by reason of anything done or omitted to be done, a failure to comply with any requirement of this Act or of rules of court, whether in respect of time, place, manner, form or content or in any other respect.

(2) Such a failure--

(a) is to be treated as an irregularity, and

(b) subject to subsection (3), does not invalidate the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings.

(3) The court may do either or both of the following in respect of proceedings the subject of a failure referred to in subsection (1)--

(a) it may, by order, set aside the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings, either wholly or in part,

(b) it may exercise its powers to allow amendments and to make orders dealing with the proceedings generally.

(4) The court may not take action of the kind referred to in subsection (3) (a) on the application of any party unless the application is made within a reasonable time and, in any case, before the party takes any fresh step in the proceedings after becoming aware of the failure.”

25. I find that the addition of the Daracon (OL) claims in the further pleadings filed on 24 April 2025 and 29 April 2025 is an instance of a failure to comply with a requirement of the CPA or the rules of court. No application was made on 14 April 2025 to amend to add a claim (which would be completely new) against Daracon (OL).

26. Having regard to the fact that this case has not been set down for trial, and because in my view Mr Andersen can be given a sufficient opportunity to properly represent Daracon (OL), I will treat the failure to comply with the amendment provisions as an irregularity which does not invalidate the proceedings – s 63(2) of the CPA.

27. In my view I should exercise my powers to allow amendments and make orders dealing with the proceedings generally, to regularise the latest version of Mr Kelsall’s pleadings filed on 29 April 2025. True it is that Mr Kelsall’s solicitors stated that they would make no formal application to bring Daracon (OL) into the proceedings, but Mr Tzouganatos took the Falstaffian position that discretion was the better part of valour, and made such an application orally on the hearing of the Dismissal Motion

28. The power to amend documents generally is to be found in s 64 of the CPA. Section 58 of the CPA requires the court to follow the “dictates of justice”. Having regard to the stage that the proceedings have reached, and because Mr Andersen can be given sufficient time to properly prepare any defence of Daracon (OL), I propose to make an order nunc pro tunc under s 63(3)(b) and s 64 of the CPA for Mr Kelsall to have leave to amend in accordance with the pleading already filed on 29 April 2025.

29. The effect of this will be to leave Mr Andersen and his client Daracon (OL) in the proceedings. Mr Andersen has raised complaint on several occasions, and in his affidavits, that having been brought into the proceedings relatively late, and given that there will need to be an expedited hearing having regard to the terminal prognosis of Mr Kelsall, he would not have sufficient time to prepare the case for Daracon (OL). I note that Mr Andersen has achieved a considerable amount of progress already, even though he has only had a short time. The matter will have to be case managed, and the Tribunal will monitor preparation for the hearing, including giving consideration to any indulgence to be granted to Mr Andersen so that he can properly represent his client.

30. The affidavit by Mr Kelsall dated 22 April 2025 is a very detailed document, and at the very least Daracon (OL) should soon be in a position to participate in the taking of the plaintiff’s evidence. While it may be the case that there was a prior statement of Mr Kelsall which is in some respects inconsistent with the affidavit, and while there may have been earlier pleadings and particulars which are inconsistent with that affidavit, that is very much a forensic problem to be faced by Mr Tzouganatos. Such prior inconsistent statements will presumably provide fertile ground for cross examination of Mr Kelsall concerning his employment and general industrial history.

31. Daracon (WCNI) is in the same position as Mr Andersen’s client having only recently come into the matter. However, Daracon (CMI) has been in the matter for a considerable period of time, and presumably has done some of the work necessary to prepare the case for hearing on behalf of Daracon (WCNI) and Daracon (OL). Similarly, the first and third defendants have been in the case all along, and they too must have taken some steps to prepare their cases. All of this material should be made available to the legal representatives for Daracon (WCMI) and Daracon (OL).

32. While there was discussion about the costs of the Dismissal Motion, I propose to make an order that such costs be reserved. As a preliminary observation, I say that given that Mr Andersen’s submissions have been accepted, he would have a strong argument for costs in favour of Daracon (OL).

Orders on the Dismissal Motion

33. The orders on the Dismissal Motion are:

1. Grant leave nunc pro tunc to the plaintiff to amend his pleading in accordance with the Further Second Amended Statement filed on 29 April 2025.

2. Reserve the costs of the Amended Notice of Motion filed on 20 May 2025.

3. Otherwise dismiss the Amended Notice of Motion filed on 20 May 2025.

The Discovery Motion

Discovery Provisions

34. Discovery of documents in the Dust Diseases Tribunal is governed by r 4 of the Dust Diseases Tribunal Rules 2019 (NSW) (DDT Rules). Rule 4 provides that Part 21 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) applies in the Tribunal, subject to adaptations specified in r 4 of the DDT Rules.

34. Where reference is made below to the terms of a rule in the UCPR, that rule will be reproduced incorporating the adaptations required by r 4 of the DDT Rules.

35. Rule 21.1 of the UCPR deals with definitions for the purposes of Div 1 of Part 21, which concerns discovery and inspection of documents. Rule 21.1(2) provides as follows:

“(2) For the purposes of this Division, a document or matter is to be taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence.”

37. Rule 21.2 of the UCPR provides as follows:

“(1) The court may order that party B must give discovery to party A of—

(a) documents within a class or classes specified in the order, or

(b) one or more samples (selected in such manner as the court may specify) of documents within such a class.

(2) A class of documents must not be specified in more general terms than the court considers to be justified in the circumstances.

(3) Subject to subrule (2), a class of documents may be specified—

(a) by relevance to one or more facts in issue, or

(b) by description of the nature of the documents and the period within which they were brought into existence, or

(c) in such other manner as the court considers appropriate in the circumstances.

(4) An order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue.”

38. The basis for an order for discovery, is that discovery is necessary in the interests of a fair trial: Percy v General Motors-Holden’s Pty Ltd [1975] 1 NSWLR 289.

39. It can be seen that r 21.2(3)(a) requires the court to take into account the definition of “relevant to a fact in issue” contained in r 21.1(2).

40. Rule 21.3 of the UCPR, as amended by r 4 of the DDT Rules, is as follows:

“(1) Party B must comply with an order for discovery by serving on party A a list of documents that deals with all of the documents (other than excluded documents) referred to in the order.

(2) The list of documents—

(a) must be divided into two parts—

(i) Part 1 relating to documents in the possession of party B, and

(ii) Part 2 relating to documents that are not, but that at any time have been, in the possession of party B, and

(b) must include a brief description (by reference to nature and date or period) of each document or group of documents and, in the case of a group, the number of documents in that group, and

(c) must specify, against the description of each document or group in Part 2 of the list of documents, the person (if any) who party B believes to be in possession of the document or group of documents, and

(d) must identify any document that is claimed to be a privileged document, and specify the circumstances under which the privilege is claimed to arise.

(3) Party B must comply with the requirements of subrule (1)—

(a) within 28 days after an order for discovery is made, or

(b) within such other period (whether more or less than 28 days) as the order may specify.”

41. Rule 21.4 of the UCPR, as amended by r 4 of the DDT Rules, is as follows:

“(1) The list of documents must be accompanied by—

(a) a supporting affidavit, and

(b) if party B has a solicitor, by a solicitor’s certificate of advice.

Note—

See rule 35.3 as to who may make such an affidavit.

(2) The affidavit referred to in subrule (1)(a) must state that the deponent—

(a) has made reasonable inquiries as to the documents referred to in the order, and

(b) believes that there are no documents (other than excluded documents) falling within any of the classes specified in the order that are, or that at any time have been, in the possession of party B (other than those referred to in Part 1 or 2 of the list of documents), and

(c) believes that the documents in Part 1 of the list of documents are within the possession of party B, and

(d) believes that the documents in Part 2 of the list of documents are within the possession of the persons (if any) respectively specified in that Part, and

(e) as to any document in Part 2 of the list of documents in respect of which no such person is specified, has no belief as to whose possession the document is in,

and must state, in respect of any document that is claimed to be a privileged document, the facts relied on as establishing the existence of the privilege.

(3) The solicitor’s certificate of advice referred to in subrule (1)(b) must state that the solicitor—

(a) has advised party B as to the obligations arising under an order for discovery (and if party B is a corporation, which officers of party B have been so advised), and

(b) is not aware of any documents within any of the classes specified in the order (other than excluded documents) that are, or that within the last 6 months before the commencement of the proceedings have been, in the possession of party B (other than those referred to in Part 1 or 2 of the list of documents).”

42. The persons who may make an affidavit are set out in UCPR r 35.3. In the case of a corporation, the affidavit must be made “by a member or officer of the corporation”.

43. An affidavit verifying a list of documents is conclusive and must be accepted by the parties seeking discovery as being sufficient and true: Birmingham v London [1913] 3 KB 850 at 855. Generally, cross-examination on the affidavit verifying is not permitted.

44. In addition to the affidavit verifying the list, there must be a solicitor’s certificate of advice which states the matters required by r 21.4(3).

45. Finally, because proceedings in the Tribunal are personal injury claims, the Tribunal must take into account r 21.8 of the UCPR. As modified by r 4 of the DDT Rules, r 21.8 is as follows:

“In any proceedings on a common law claim—

(a) for damages arising out of the death of, or bodily injury to, any person, or

(b) for contribution in respect of damages so arising,

an order for discovery may not be made in relation to any document unless the order is necessary to ensure that the outstanding issues in dispute are properly tried.”

Discovery Principles

46. In Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341 Menzies J said (at p 345):

“I now turn to the pleadings to determine what are the matters at issue between the parties, because discovery is a procedure directed towards obtaining a proper examination and determination of these issues – not towards assisting a party on a fishing expedition. Only a document which relates in some way to a matter in issue is discoverable, but it is sufficient if it would, or would lead to a train of enquiry which would, either advance a party’s own case or damage that of his adversary.”

47. The relevant legal principles were summarised by Bellew J in Hunter New England Local Health District v Munters Pty Ltd [2018] NSWSC 788 at [19] as follows:

“(1)   Discovery cannot be ordered other than in respect of documents that are relevant to a fact in issue. It is therefore necessary to demonstrate a connection between the class of documents of which discovery is sought, and a fact or facts in issue. Where a class is specified in some manner other than by relevance to a fact in issue, it must be apparent that the class so described will capture only documents that are so relevant: Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326 at [22];

(2)   The facts in issue will be primarily identified by an examination of the pleadings: Schlam v WA Trustee Executor & Agency Co Ltd [1964] WAR 178; Mulley v Manifold (1959) 103 CLR 341; [1959] HCA 23;

(3)   For the purposes of discovery, a document need not be admissible, and need not be directly probative of the existence of the fact in issue, to be relevant. It follows that in a general sense, the test for discovery under the rule is relatively wide: Hutchinson v Glover (1875) 1 QBD 138;

(4)    The relevance of a document to a fact in issue is to be determined by its capacity to rationally affect the assessment of the probability of the existence of the contentious fact: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 52 LJQB 181;

(5)   Discovery will be ordered only where it is reasonably required for the fair disposition of the proceedings, and where its legitimate purposes include to obtain evidence and to avoid surprise: In the matter of Felan’s Fisheries Pty Ltd [2017] NSWSC 1262;

(6)   Discovery involves an “inroad”, in the interests of justice, upon the right of the individual to keep his own documents to himself: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46, citing Harman v Home Department State Secretary [1983] 1 AC 280; [1982] 2 WLR 338;

(7) The discretion conferred by r 21.2 must be exercised having regard to the provisions of ss 56-60 of the Civil Procedure Act 2005 (NSW). In this regard, case management principles become relevant, although they are not necessarily determinative: Expense Reduction Analysts Group Pty Ltd (supra);

(8)   Although proper compliance with a party’s obligations of discovery is an important and necessary part of modern litigation, the court necessarily has the capacity under the rules to limit discovery, or control the process of giving discovery, so that it does not become unduly onerous: Con Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1200;

(9)   There is no entitlement to “chain of enquiry” discovery. If the process of discovery is abusive, or compliance with an order too onerous, the court can (and should) control it: Palavi v Radio 2UE Sydney Pty Limited [2011] NSWCA 264.”

48. Other cases refer to the following principles:

1. The scope of discovery may be limited, to avoid the potential for discovery to give rise to oppressive and disproportionate costs and to impede the “overriding purpose” in the CPA s 56: Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264.

2. Courts should be alert to the cost, and associated delay and complexity, associated with extensive discovery: Commonwealth Bank of Australia v Goater [2016] NWSC 710 at [31]-[34].

3. The court may relieve a party from giving discovery where the extent of discovery would be oppressive: Alexander v Fitzpatrick [1981] Qd R 359.

Discovery Sought from Downer

49. Annexure “A” sets out the classes of documents which Mr Kelsall says should be discovered by Downer. The first five classes, broadly speaking, concern the knowledge and means of knowledge of Downer in relation to the risk of exposure to silica, coal and mixed dust, and the precautions and measures which could have been taken to reduce or minimise the risk of injury. Paragraph 5 of Annexure “A” seeks a list of the publications, journals, articles, reports and similar documents held by Downer relating to the risks posed by dust and the availability of preventative measures.

50. Paragraph 9 of the Further Second Amended Statement of Claim filed on 29 April 2025 pleads as follows:

“At all material times the Defendants knew or ought to have known that if the Plaintiff was exposed to and inhaled dust including coal dust, silica dust and mixed dusts that there was a real risk that he could contract lung diseases including silicosis and lung cancer as a consequence thereof.”

51. The Defence filed by Downer does not admit par 9. This was reiterated at the hearing of the Discovery Motion by Mr Sharpe, counsel for Downer. This means that facts in issue on the pleadings include whether Downer knew or ought to have known of the risks of dust, and the means of guarding against those risks.    

52. Since these classes of documents go to facts put in issue by Downer, Mr Kelsall is entitled to a discovery order for those five classes of documents.

53. Paragraph 6 of Annexure “A” seeks documents in relation to the inspection and maintenance of mechanical equipment at the Boggabri Mine operated by workers including the plaintiff. One of the particulars of negligence alleged is a failure to provide exhaust equipment or adequate ventilation in areas where Mr Kelsall worked. Another particular of negligence is failure to ensure that the seals of cabins prevented dust entering the machinery operated by Mr Kelsall. Downer denies negligence. Thus the state of repair and maintenance of the machinery operated by Mr Kelsall is a pleaded fact in issue. Mr Kelsall is entitled to a discovery order for the documents in par 6 of Annexure “A”.

54. However, the class of documents is too broad. It must be limited to the maintenance of mechanical equipment operated by the plaintiff.

55. Paragraphs 7 and 8 of Annexure “A” seek documents relating to dust monitoring or dust surveys conducted at the Boggabri Mine. The solicitors for Downer list nine pages of the documents which Downer has in these classes – see DX 1. The existence of dust monitoring and surveys is also relevant to Downer’s knowledge of the risks of exposure to dust. Mr Kelsall is entitled to a discovery order for all of the documents described in pars 7 and 8 of Annexure “A”.

56. Paragraph 9 of the Annexures “A” and “C” seeks documents relating to the plaintiff’s presence at and work upon the Boggabri Mine. This matter is not admitted by Downer, which goes further and denies that Downer owed Mr Kelsall a duty of care as pleaded. The solicitor for Downer has listed some documents in this class – see DX 1. Mr Kelsall is entitled to a discovery order for all of the documents described in par 9 of Annexure “A”.

57. Paragraph 10 of Annexure “A” seeks documents relating to the engagement, appointment, occupation, management and operation by Downer of the Boggabri Mine. This is an allegation made in par 5 of Mr Kelsall’s pleading, which is not admitted by Downer. The solicitor for Downer has listed some but not all of documents in this class – see DX1. Mr Kelsall is entitled to a discovery order for all of the documents described in par 10 of Annexure “A”.

58. For the reason explained by Mr Tzouganatos in par 10 of MFI 1, the end date for each class of document should be 31 December 2016, not 31 December 2014.

59. Mr Sharpe, counsel for Downer, submitted that Downer was a public company and a large organisation. The most basic ASIC search shows that Downer is not a public company. Mr Sharpe submitted that extensive investigations would have to be carried out to ascertain whether Downer had documents in classes 1-5 of Annexure “A”. There was no evidence of the extent of the enquiries that would have to be made. Nor was there any evidence concerning the cost of those enquiries.

60. Mr Sharpe also submitted that rather than seeking discovery, the plaintiff could serve a Notice to Admit Facts, or a Notice to Produce, or administer Interrogatories. There is no compulsion to make admissions on a Notice to Admit Facts, although failure to make appropriate admissions may have cost consequences. There would be little difference in time and expense involved in complying with a Notice to Produce, as opposed to complying with discovery. Finally, and perhaps to take a cynical view, the art of answering Interrogatories is to give away as little information as possible. By contrast, any party ordered to provide discovery has to “put its cards on the table”, to use the phrase adopted by Mr Tzouganatos in his oral submissions. The documents which are in the possession and control of Downer are known only to Downer and are not known to Mr Kelsall or his advisors. In my view discovery is necessary “to ensure that the outstanding issues in dispute are properly tried” – r 21.8 of the UCPR as modified by r 4 of the DDT Rules.

Discovery Sought from Daracon

61. Annexure “B” to the Discovery Motion sets out the classes of documents which Mr Kelsall says should be discovered by Daracon. The first five paragraphs are in very similar terms to those in pars 1-5 of Annexure “A”. In its Defence (filed for CMI) Daracon does not admit any of the matters in the pleadings concerning knowledge or means of knowledge. Mr Kelsall is entitled to a discovery order for all of the documents described in pars 1-5 of Annexure “B”.

62. The reasoning above in relation to Downer also applies to pars 6-9 of Annexure “B”. These classes of documents all relate to facts in issue on the pleadings. Mr Kelsall is entitled to a discovery order for all the documents described in pars 6-9 of Annexure “B”.

Discovery Sought from Tarrawonga Coal

63. Annexure “C” sets out the classes of documents which Mr Kelsall says should be discovered by Tarrawonga Coal. Paragraphs 1-5 are in cognate terms to pars 1-5 of Annexure “A”. On these topics Tarrawonga Coal does not admit the allegations in Mr Kelsall’s pleading. Mr Kelsall is entitled to a discovery order for all of the documents described in pars 1-5 of Annexure “C”.

64. With one variation, Tarrawonga Coal concedes that Mr Kelsall is entitled to discovery of classes 6-9 in Annexure “C” – see MFI 2. Tarrawonga Coal proposes that par 6 of Annexure “C” be confined to water trucks operated by Mr Kelsall, rather than all equipment operated by all workers. This limitation is appropriate, as Mr Kelsall says in his affidavit that his work at the Tarrawonga Mine only ever involved driving the water cart. Mr Kelsall is entitled to a discovery order for all of the documents described in pars 6-9 of MFI 2.

65. The list of agreed classes in MFI 2 does not mention par 10 of Annexure “C”. While in its Defence filed on 2 May 2025 Tarrawonga Coal admits that it was the operator of the Tarrawonga Mine, it does not admit the additional allegations made by Mr Kelsall that Tarrawonga Coal occupied and managed the Tarrawonga Mine. These allegations are thus facts in issue. Mr Kelsall is entitled to a discovery order for all of the documents described in par 10 of Annexure “C”.

Orders on the Discovery Motion

66. With the various changes discussed above, I make the following orders on the Discovery Motion:

1. Order the First Defendant to provide verified discovery of the following classes of documents:

1. Documents relating to the knowledge and means of knowledge of Downer EDI Mining Pty Limited (and its officers, employees and agents) prior to 31 December 2016, of the risk of injury from exposure to silica, coal and mixed dust.

2. Documents relating to the knowledge and means of knowledge of Downer EDI Mining Pty Limited (and its officers, employees and agents) prior to 31 December 2016, of the risk of injury from exposure to silica, coal and mixed dust to workers employed in coal mines including the Boggabri Coal Mine in New South Wales.

3. Documents relating to the availability prior to 31 December 2016 of precautions and measures to reduce or minimise the risk of injury from the inhalation of silica, coal and mixed dust.

4. Documents relating to the availability prior to 31 December 2016 of precautions and measures to reduce or minimise the risk of injury from the inhalation of silica, coal and mixed dust to workers employed in coal mines including the Boggabri Coal Mine in New South Wales.

5. Documents relating to the existence and content prior to 31 December 2016 of libraries maintained and operated by Downer EDI Mining Pty Limited including all publications, books, journals, catalogues, articles, memoranda and reports relating to:

1. The risk of injury from the inhalation of silica, coal and mixed dust;

2. The risk of injury to workers employed in coal mines including the Boggabri Coal Mine in New South Wales from the inhalation of silica, coal and mixed dust;

3. The availability of measures to minimise or eliminate the generation and accumulation of silica, coal and mixed dust at the Boggabri Coal Mine in New South Wales.

6. Documents relating to the inspection and maintenance of mechanical equipment operated by the plaintiff at the Boggabri Coal Mine in New South Wales in the period 1 September 2008 to 31 December 2016.

7. Documents relating to the performance of and results from monitoring and testing of the atmosphere at the Boggabri Coal Mine in New South Wales generally and inside machines including trucks, diggers and dozers at the Boggabri Coal Mine, for silica, coal and mixed dust.

6. Documents including the results of any dust survey(s), relating to the presence and extent of dust including silica, coal and mixed dust, at the Boggabri Coal Mine generally and inside the machines including trucks, diggers and dozers at the Boggabri Coal Mine.

7. Documents relating to the plaintiff’s presence at and work upon the Boggabri Coal Mine.

8. Documents relating to the engagement, appointment, occupation, management and operation by Downer EDI Mining Pty Limited of the Boggabri Coal Mine in the period prior to 31 December 2016.

2. Order the Second Defendant to provide verified discovery of the following classes of documents:

1. Documents relating to the knowledge and means of knowledge of Daracon Engineering Pty Ltd (and its officers, employees and agents) prior to 31 December 2021, of the risk of injury from exposure to silica, coal and mixed dust.

2. Documents relating to the knowledge and means of knowledge of Daracon Engineering Pty Ltd (and its officers, employees and agents) prior to 31 December 2021, of the risk of injury from exposure to silica, coal and mixed dust to workers employed on civil works and in coal mines including the Boggabri Coal Mine and the Tarrawonga Coal Mine in New South Wales.

3. Documents relating to the availability prior to 31 December 2021 of precautions and measures to reduce or minimise the risk of injury from the inhalation of silica, coal and mixed dust.

4. Documents relating to the availability prior to 31 December 2021 of precautions and measures to reduce or minimise the risk of injury from the inhalation of silica, coal and mixed dust to workers employed on civil works and in coal mines including the Boggabri Coal Mine and the Tarrawonga Coal Mine in New South Wales.

5. Documents relating to the existence and content prior to 31 December 2021 of libraries maintained and operated by Daracon Engineering Pty Ltd including all publications, books, journals, catalogues, articles, memoranda and reports relating to:

1. The risk of injury from the inhalation of silica, coal and mixed dust;

2. The risk of injury to workers employed on civil works and in coal mines including the Boggabri Coal Mine and the Tarrawonga Coal Mine in New South Wales from the inhalation of silica, coal and mixed dust;

3. The availability of measures to minimise or eliminate the generation and accumulation of silica, coal and mixed dust during civil works and at the Boggabri Coal Mine and the Tarrawonga Coal Mine in New South Wales.

6. Documents relating to the inspection and maintenance of mechanical equipment operated by the plaintiff in the period 1 September 2008 to 31 December 2021.

7. Documents relating to the performance of and results from monitoring and testing of the atmosphere at civil works upon which the plaintiff was employed and at the Boggabri Coal Mine and the Tarrawonga Coal Mine in New South Wales generally and inside machines including trucks, diggers and dozers, for silica, coal and mixed dust.

8. Documents including the results of any dust survey(s), relating to the presence and extent of dust including silica, coal and mixed dust, in the atmosphere at civil works upon which the plaintiff was employed and at the Boggabri Coal Mine and the Tarrawonga Coal Mine in New South Wales generally and inside machines including trucks, diggers and dozers, for silica, coal and mixed dust.

9. The plaintiff’s employment and personnel records.

3. Order the Third Defendant to provide verified discovery of the following classes of documents:

1. Documents relating to the knowledge and means of knowledge of Tarrawonga Coal Pty Ltd (and its officers, employees and agents) prior to 31 December 2021, of the risk of injury from exposure to silica, coal and mixed dust.

2. Documents relating to the knowledge and means of knowledge of Tarrawonga Coal Pty Ltd (and its officers, employees and agents) prior to 31 December 2021, of the risk of injury from exposure to silica, coal and mixed dust to workers employed in coal mines including the Tarrawonga Coal Mine in New South Wales.

3. Documents relating to the availability prior to 31 December 2021 of precautions and measures to reduce or minimise the risk of injury from the inhalation of silica, coal and mixed dust.

4. Documents relating to the availability prior to 31 December 2021 of precautions and measures to reduce or minimise the risk of injury from the inhalation of silica, coal and mixed dust to workers employed in coal mines including the Tarrawonga Coal Mine in New South Wales.

5. Documents relating to the existence and content prior to 31 December 2021 of libraries maintained and operated by Tarrawonga Coal Pty Ltd including all publications, books, journals, catalogues, articles, memoranda and reports relating to:

1. The risk of injury from the inhalation of silica, coal and mixed dust;

2. The risk of injury to workers employed in coal mines including the Tarrawonga Coal Mine in New South Wales from the inhalation of silica, coal and mixed dust;

3. The availability of measures to minimise or eliminate the generation and accumulation of silica, coal and mixed dust at the Tarrawonga Coal Mine in New South Wales.

6. Documents relating to the inspection and maintenance of water trucks operated by the plaintiff at the Tarrawonga Coal Mine in New South Wales in the period 1 May 2019 to 31 December 2021.

7. Documents relating to the performance of and results from monitoring and testing of the atmosphere at the Tarrawonga Coal Mine in New South Wales generally and inside machines including trucks, diggers and dozers at the Tarrawonga Coal Mine, for silica, coal and mixed dust.

8. Documents including the results of any dust survey(s), relating to the presence and extent of dust including silica, coal and mixed dust, at the Tarrawonga Coal Mine generally and inside the machines including trucks, diggers and dozers at the Tarrawonga Coal Mine.

9. Documents relating to the plaintiff’s presence at and work upon the Tarrawonga Coal Mine.

10. Documents relating to the engagement, appointment, occupation, management and operation by Tarrawonga Coal Pty Ltd of the Tarrawonga Coal Mine in the period prior to 31 December 2021.

4. Reserve the costs of the Notice of Motion filed on 6 May 2025.

5. I will hear the parties in relation to the length of time required to comply with discovery orders, and as to the further directions necessary to list this matter for hearing, noting that the plaintiff alleges a significant claim for future loss of earnings.

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Decision last updated: 03 June 2025