Napier v Resi Corporation

[2005] NSWDDT 12

Reported Decision (2005) 2 DDCR 444

Dust Diseases Tribunal

of New South Wales

CITATION:	Napier v Resi Corporation & Ors [2005] NSWDDT 12
PARTIES:	Leith Mellis Nickson Napier Resi Corporation Wallaby Grip Ltd Wallaby Grip (NSW) Pty Ltd Wallaby Grip (BAE) Pty Ltd
MATTER NUMBER(S):	486 of 2002
JUDGMENT OF:	O'Meally P at 1
CATCHWORDS:	:- Applicaiton for adjournment plaintiff with ARPD suffering slight disability risk of another dust related condition application to place case in not ready list while condition monitored applications refused
LEGISLATION CITED:	Dust Diseases Tribunal Act, 1989, s 11A
CASES CITED:	BHP Billiton Limited v Shultz [2004] HCA 61 (7 December 2004); (2004) DDCR 78; (2004) 79 ALJR 348; Knopke v Amaca Pty Ltd [2003] NSWDDT 23; Sydney City Council v Ke-Su Investments Pty Ltd & Ors (1985) 1 NSWLR 246; Matheson v Matheson [1952] VLR 27; Meggitt Overseas Ltd & Ors v Grdovic (1998) 16 NSWCCR 373; Reg v Catagas [1978] 1 WWR 282; Malec v J C Hutton (1990) 168 CLR 485
DATES OF HEARING:	1 April 2005
EX TEMPORE JUDGMENT DATE:	04/01/2005
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr A L McSpedden instructed by Turner Freeman. FOR FIRST DEFENDANT: Mr D Anderson (solicitor) Church & Grace. FOR SECOND, THIRD & FOURTH DEFENDANTS: Mr D J Russell, SC instructed by Middletons Lawyers

JUDGMENT:

1. This is a return of a notice of motion seeking orders that the trial of the plaintiff's action which has been appointed for 11 May 2005 in Adelaide be vacated and that the case be placed in the not ready list.

2. Proceedings were commenced by the filing of a statement of claim on 10 December 2002. On various occasions since then, the case has been before the Tribunal and on 1 December 2003 final interlocutory orders were made governing its preparation. On 3 May 2004 it was again in the interlocutory list for directions. On that occasion the plaintiff sought that it be adjourned on two bases. The first one was that the High Court of Australia had granted special leave to appeal and was yet to be determine BHP Billiton Limited v Schultz [2004] HCA 61 (7 December 2004); (2004) 2 DDCR 78; (2004) 79 ALJR 348. The second one was that because the plaintiff's disability was slight he preferred not to have his case brought on for hearing, but to wait and see how his condition developed.

3. It is conceded by each defendant that the plaintiff suffers from asbestos related pleural disease (ARPD). It is well known that people who suffer one asbestos disease are at risk of developing other asbestos diseases, in particular asbestos induced carcinoma and malignant mesothelioma.

4. When the matter was before this Court on 3 May 2004 and when it was again before it on 23 August 2004, it was told that the High Court of Australia would be asked to rule whether s 11A of the Dust Diseases Tribunal Act, 1989 was procedural or substantive. Section 11A authorises the Tribunal to award provisional damages. Pursuant to that section, damages are assessed on the assumption that a person who suffers from one dust related condition will not develop another. It applies only in cases where there is proved or admitted to be a chance that at some definite or indefinite time in the future, the person suffering from the dust related condition in respect of which proceedings are brought will, as a result or partly as a result of the breach of duty giving rise to the cause of action, develop another dust related condition. If another dust related condition develops, the person may return and obtain further damages.

5. The Tribunal itself has expressed the view that s 11A is substantive in nature and not procedural because it relates to the entitlement to damages, not the manner of their assessment; (see Knopke v Amaca Pty Ltd [2003] NSWDDT 23 [18]). The High Court of Australia in Schultz did not give a final decision on the nature of s 11A, though judgments contain obiter to the effect that s 11A is indeed substantive.

6. The plaintiff’s statement of claim seeks an award of provisional damages. The relevance of that in this case is that the negligence in respect of which the plaintiff sues occurred wholly within the state of South Australia. If s 11A is substantive in nature provisional damages will not be available to him.

7. It has been noted that the plaintiff's ARPD is not productive of a great deal of disability. The risk that those who suffer one asbestos disease might develop another has also been noted.

8. The plaintiff now seeks that the hearing date be vacated and his case be stood over to the not ready list so that his condition may be monitored. He would apply to have his case removed from the not ready list and listed for hearing in the event that there was a change in his condition. The question for my consideration is whether, in those circumstances, the interests of justice require that I give effect to the plaintiff's request to adjourn the hearing appointed for 12 May next and to place his case in the not ready list.

9. As a matter of general principle, cases brought in a court should proceed to hearing and conclusion. The obligation of courts to hear cases has been referred to in a number of reported decisions and if it be desirable reference might be made to some of them.

10. In Sydney City Council v Ke-Su Investments Pty Ltd and Ors (1985) 1 NSWLR 246 the Court of Appeal was asked to adjourn the case by consent on the basis that a change in the law was contemplated. At 257 Mahoney JA said:

This Court has the power, and in my opinion the duty, to ensure that proceedings before it are disposed of in due course. In determining when an appeal is to be heard, it will of course pay appropriate regard to the wishes of the parties and will normally give effect to them. But it is not bound to do so. The public interest in the due administration of justice takes account of but is not limited to their wishes. There is, in my opinion, a public interest in the determination of this appeal. The application should be refused.
In his reasons, McHugh JA referred at 258 to the decision of the Supreme Court of Victoria in Matheson v Matheson [1952] VLR 27 and quoted from the remarks of Herring CJ at 30.
... In the ordinary course of events cases are adjourned from day to day and sometimes it is necessary to put them over for longer periods or to the next sittings of the Court in a particular place. But the indefinite adjournment of proceedings may amount to much more than a mere postponement; it may amount to a refusal to hear and determine the particular application before the Court, and in these circumstances the adjournment may become a mere disguise for a refusal to exercise a jurisdiction committed to the Court.

McHugh JA observed that as a general rule an adjournment for an indefinite period is not in accordance with a Court's duty to hear and determine proceedings.

11. In Meggitt Overseas Ltd & Ors v Grdovic (1998) 16 NSWCCR 373 the Court of Appeal considered an appeal from a decision of this Court against the order of a judge adjourning a case on the basis that legislation which would affect that case was to be considered by the Parliament. Mason P said at 387 par [45]:

If a court were to exercise a discretion to adjourn pending litigation by reference to the substantive benefits foreshadowed by proposed legislation, it would inevitably be drawn into the type of considerations referred to in the passage I have just quoted. A court of law cannot choose to favour one class of litigants over another without lawful authority.

12. The passage “just quoted” by the President of the Court of Appeal was taken from the decision of the Court of Appeal in Manitoba in Reg v Catagas [1978] 1 WWR 282 at 287 where the Chief Justice said:

But in all these instances the prosecutorial discretion is exercised in relation to a specific case. It is the particular facts of a given case that call that discretion into play, but that is a far different thing from the granting of a blanket dispensation in favour of a particular group or race. Today the dispensing power may be exercised in favour of Indians. Tomorrow it may be exercised in favour of Protestants and the next day in favour of Jews. Our laws cannot be so treated. The Crown may not by executive action dispense with laws. The matter is as simple as that and nearly three centuries of legal and constitutional history stand as the foundation for that principle.

13. It is true, as Mr McSpedden has emphasised more than once, that those cases involved considerations of proposed amending legislation. Nevertheless, the principle remains that courts have an obligation to hear cases and finally determine them. There may be circumstances in which it is appropriate to stand a case over to the not ready list where a plaintiff's condition has not crystallised or a final diagnosis has not been made. Those are not the circumstances of this case. The plaintiff's condition has been diagnosed. It is asserted by his representatives and admitted by the defendants that he has ARPD. All parties agree that his disability as a consequence of ARPD is slight. Assuming that the decision of the Tribunal that s 11A is substantive and not procedural is correct, the law nevertheless allows damages to be awarded, taking into account the risk that the plaintiff may develop another dust related condition (see Malec v JC Hutton (1990) 168 CLR 485). In the event that the case proceeds on 11 May 2005 he plaintiff will receive justice according to law.

14. In considering the justice of the case, the Court is required to consider the situation of all parties and to do justice to all parties, not just to one. In my view, the interests of justice require that the plaintiff’s case proceed to hearing on 12 May next. Moreover, there are good reasons why the case should be brought on. The plaintiff suffers from unrelated co-morbidities of a serious nature. Relevantly, he suffers from Waldenstrom's macroglobulinaemia which is, if progressive, a fatal condition. The reports of Dr Antic and Professor Fox, which are before me, confirm that the plaintiff suffers from that condition and that it is fatal if progressive. Though the plaintiff is in remission, it is possible that at any time the disease could relapse and progress. I would have thought that in all the circumstances it is as much in the plaintiff's interest that his case be brought on for hearing on 12 May 2005 as it is in the defendants.

15. As noted earlier, orders have been made requiring things to be done which would have the case ready for hearing on 12 May 2005. I think it should also be recited that an application that the case stand over to the not ready list was made on the same ground on 7 March last and was refused.

16. The Notice of Motion filed 30 March 2005 is dismissed. The plaintiff will pay the defendant's costs as agreed or assessed.

17. Leave to plaintiff within 14 days to serve a report assessing the risk of the plaintiff developing any other dust related condition.

18. Leave to defendants on or before 6 May 2005 to serve a report in reply if so advised. Costs consequent upon this order reserved.

19. Issues and listings conference appointed for 11am, 8 April 2005.

Mr A L McSpedden instructed by Turner Freeman Appeared for the Plaintiff

Mr D Anderson (solicitor) Church & Grace Appeared for the first defendant

Mr D J Russell, SC instructed by Middletons Lawyers Appeared for the second, third and fourth defendants