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…