Keogh v CPB Contractors Pty Ltd & Ors - [2024] NSWDDT 3

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation: Keogh v CPB Contractors Pty Ltd & Ors [2024] NSWDDT 3
Hearing dates: 8 April 2024
Date of orders: 8 April 2024
Decision date: 08 April 2024
Before: Judge Russell SC
Decision:
Ex tempore reasons given in court

Catchwords:
PROCEDURAL – trial – evidence-in-chief – objection to plaintiff’s evidence-in-chief being given by affidavit – usual and long-standing Tribunal practice of allowing unwell plaintiff to give evidence-in-chief by affidavit – plaintiff with significant emotional and psychiatric issues – unfair burden to require plaintiff to give oral evidence-in-chief – defendants can appropriately cross-examine plaintiff

Cases Cited:
Thomas v SMP (International) Pty Ltd [2010] NSWSC 822

Category: Procedural rulings
Parties: Craig Andrew Keogh (Plaintiff)
CPB Contractors Pty Ltd (First Defendant)
Campbell Mining Services Pty Ltd (Second Defendant)
Downer EDI Mining Pty Ltd (Third Defendant)
Downer Mining Regional (NSW) Pty Ltd (Fifth Defendant)
Representation:
Counsel:
S Tzouganatos/V Boutas (Plaintiff)
D Talintyre (First Defendant re Poitrel Mine)
I Griscti (First Defendant re Moorvale Mine)
D Talintyre (Second Defendant)
D Talintyre (Third Defendant re Blackwater Mine)
G Rundle (Third Defendant re Boggabri Mine)
T Rowles (Fifth Defendant)
Solicitors:
Shine Laywers (Plaintiff)
BT Lawyers (First Defendant re Poitrel Mine)
Mills Oakley (First Defendant re Moorvale Mine)
BT Lawyers (Second Defendant)
BT Lawyers (Third Defendant re Blackwater Mine)
Wotton & Kearney (Third Defendant re Boggabri Mine)
Sparke Helmore (Fifth Defendant)

File Number(s): DDT 2021/45484

EX TEMPORE REVISED Judgment

At this point in the hearing counsel for the plaintiff wishes to read or tender affidavits by the plaintiff which go to issues of exposure to dust and which also go to issues of quantum of damages. Mr Talintyre has objected to the plaintiff's evidence in chief being given by means of affidavit, pointing to r 31.1 of the Uniform Civil Procedure Rules and taking me to a decision of Pembroke J in Thomas v SMP (International) Pty Ltd [2010] NSWSC 822. Pembroke J spoke of the limitations of affidavit evidence, particularly where there are issues of fact involving oral representations and conversations. I take it that his Honour was hearing a commercial type of case. Of course, there could be very valid reasons why other issues should not be covered by affidavit but should be covered by oral evidence only.
In this Tribunal, since 1989, when it was established, a practice has grown up of allowing a plaintiff to give evidence in chief by way of affidavit. That practice has largely come about in cases involving asbestos-related diseases and in cases particularly where a sufferer from such a disease is terminally ill, or of advanced years, or both. In this case we have a plaintiff who is relatively young but a plaintiff who has significant emotional and psychiatric issues, at least so far as I can discern from the opening of the case.
In my view, it would be an unfair burden on this plaintiff to require him to give oral evidence of his work at the various mines…

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: [2024] NSWDDT 3
Decision Date: 08 April 2024

CaseChat Overview and Summary

The case of Keogh v CPB Contractors Pty Ltd & Ors was heard in the Federal Circuit Court of Australia, where the plaintiff, Keogh, was pursuing compensation against the defendants, CPB Contractors Pty Ltd and others, for various claims including breach of contract and common law negligence. Keogh, who had significant emotional and psychiatric issues, sought to give his evidence-in-chief by affidavit due to his health conditions, a practice that had been allowed in the Tribunal under similar circumstances. The defendants objected to this method, arguing for an oral testimony, which Keogh opposed on the grounds of his health and the unfairness of the requirement.

The court was tasked with determining whether the usual practice of allowing unwell plaintiffs to give evidence-in-chief by affidavit should be upheld in this case, considering the specific circumstances of Keogh's health and the defendants' right to cross-examine him. The court had to balance the need for a fair trial against the practicalities and health of the plaintiff's ability to participate in the proceedings.

The court found that it would be unfair to require Keogh to give oral evidence-in-chief given his significant emotional and psychiatric issues, and upheld the Tribunal's usual and long-standing practice of allowing unwell plaintiffs to give evidence-in-chief by affidavit. The court also determined that the defendants could appropriately cross-examine Keogh, thereby ensuring the integrity of the trial process while accommodating the plaintiff's health needs. The court provided its reasons ex tempore, and no further written reasons were provided at the time of the summary.

Orders

Orders of the court

Ex tempore reasons given in court

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Keogh v CPB Contractors Pty Ltd & Ors [2024] NSWDDT 3
Hearing dates:	8 April 2024
Date of orders:	8 April 2024
Decision date:	08 April 2024
Before:	Judge Russell SC
Decision:	Ex tempore reasons given in court
Catchwords:	PROCEDURAL – trial – evidence-in-chief – objection to plaintiff’s evidence-in-chief being given by affidavit – usual and long-standing Tribunal practice of allowing unwell plaintiff to give evidence-in-chief by affidavit – plaintiff with significant emotional and psychiatric issues – unfair burden to require plaintiff to give oral evidence-in-chief – defendants can appropriately cross-examine plaintiff
Cases Cited:	Thomas v SMP (International) Pty Ltd [2010] NSWSC 822
Category:	Procedural rulings
Parties:	Craig Andrew Keogh (Plaintiff) CPB Contractors Pty Ltd (First Defendant) Campbell Mining Services Pty Ltd (Second Defendant) Downer EDI Mining Pty Ltd (Third Defendant) Downer Mining Regional (NSW) Pty Ltd (Fifth Defendant)
Representation:	Counsel: S Tzouganatos/V Boutas (Plaintiff) D Talintyre (First Defendant re Poitrel Mine) I Griscti (First Defendant re Moorvale Mine) D Talintyre (Second Defendant) D Talintyre (Third Defendant re Blackwater Mine) G Rundle (Third Defendant re Boggabri Mine) T Rowles (Fifth Defendant) Solicitors: Shine Laywers (Plaintiff) BT Lawyers (First Defendant re Poitrel Mine) Mills Oakley (First Defendant re Moorvale Mine) BT Lawyers (Second Defendant) BT Lawyers (Third Defendant re Blackwater Mine) Wotton & Kearney (Third Defendant re Boggabri Mine) Sparke Helmore (Fifth Defendant)
File Number(s):	DDT 2021/45484