O'Malley v BlueScope Steel (AIS) Ltd

[2024] NSWDDT 8

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:

O’Malley v BlueScope Steel (AIS) Ltd [2024] NSWDDT 8

Hearing dates:

28 June 2024

Date of orders:

28 June 2024

Decision date:

28 June 2024

Before:

Russell SC DCJ

Decision:

Ex tempore reasons given in court

(1) Order that Sparke Helmore be granted leave to separately appear in the interests of Coal Mines Insurance, to defend the plaintiff's claim arising from his alleged exposure to respirable coal and/or respirable silica dust whilst employed by the First Defendant, Bluescope Steel (AIS) Pty Ltd, at the Wongawilli Colliery.

(2) Costs reserved left to the discretion of the trial judge to be appointed to hear and determine the proceedings.

Catchwords:

PROCEDURAL – application for separate representation – solicitor has a conflict of interest – consideration of adverse consequences of separate representation – order made

Legislation Cited:

Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 (NSW) r11

Category:

Procedural rulings

Parties:

Robert O’Malley (Plaintiff)
Bluescope Steel (AIS) Pty Ltd (First Defendant)

Representation:

Counsel:
A Giurtalis (Plaintiff)
D Andersen (solicitor) (First Defendant)

Solicitors:
Maurice Blackburn (Plaintiff)
HWL Ebsworth (First Defendant)

File Number(s):

DDT 2023/201924

Judgment

1. In this matter the plaintiff sues by an amended statement of claim dated 2 October 2023. He alleges that between 1954 and 1964 he was employed by the first defendant BlueScope Steel at the Port Kembla Steelworks. He alleges that between 1964 and 1976 he was employed by the first defendant at the Wongawilli Colliery. He alleges that between 1976 and 1989 he was employed by the second defendant at the Huntley Colliery. He alleges that between 1990 and 1994 he was employed by the fourth defendant ARA Electrical as an electrical fitter, and that several days per fortnight he was required in the course of that employment to go to the Port Kembla Steelworks.

2. The amended statement of claim pleads that as a result of exposure to asbestos, silica and coal dusts the plaintiff suffers from mixed‑dust fibrosis. That is a divisible condition.

3. The allegation of breach of duty of care is made against the defendants as employers and, where relevant, as occupiers of the sites where the plaintiff carried out duties.

4. There is a cross‑claim filed on 7 June 2023 by which BlueScope seeks contribution from Amaca and Wallaby Grip Ltd in relation to the first period of employment at the Port Kembla Steelworks.

5. By an amended notice of motion dated 12 June 2024, BlueScope seeks this order:

“That Sparke Helmore be granted leave to separately appear in the interests of Coal Mines Insurance to defend the plaintiff's claim arising from his alleged exposure to respirable coal and/or respirable silica dust whilst employed by the first defendant, BlueScope Steel (AIS) Pty Ltd at the Wongawilli Colliery.”

6. The amended notice of motion also seeks this order:

“Costs left to the discretion of the trial judge to be appointed to hear and determine the proceedings.”

7. The reason for the application for a separate representation order appears very plainly from the first affidavit of Mr Andersen, DX1. In para 4 of that affidavit, he says:

“BlueScope is self‑insured for its alleged liability arising from the asbestos exposure. BlueScope is insured by Coal Mines Insurance, CMI, for its alleged liability for the rock dust exposure.”

8. Mr Andersen goes on to say in para 5:

“In my opinion, there is an irreconcilable conflict in that as the solicitor for BlueScope as a litigating party, I owe duties to BlueScope, but I also owe corresponding duties to CMI. BlueScope's interests are to minimise any potential liability arising from the asbestos exposure, whereas CMI's interests are to minimise any potential liability arising from the rock dust exposure. Each of BlueScope and CMI are entitled to my best exertions to pursue their opposing interests. I cannot serve both interests.”

9. Mr Andersen's affidavit points out that Sparke Helmore already act for CMI and have filed an appearance for the second defendant, CMI being the insurer in respect of the Elcom Colliery. In para 7 of the affidavit, Mr Andersen says:

“Sparke Helmore and CMI support an application permitting Sparke Helmore to separately appear in the interests of Coal Mines Insurance as BlueScope's insurer for the rock dust exposure at the Wongawilli Colliery.”

10. The plaintiff opposes the order for separate representation. In the affidavit of E Mawson, 14 June 2024 (PX1), Ms Mawson, a solicitor, says that Mr O'Malley is 84 years of age and is in ailing health. To her observation in the last 12 months, his condition has deteriorated.

11. In para 30 of that affidavit, Ms Mawson raises several considerations relevant to whether an order should be made for separate representation. The first consideration is that she is concerned that separate representation may result in the plaintiff being required to respond to further requests for particulars. I think that is a valid concern.

12. Nevertheless, it is clear from DX3, Mr Andersen's affidavit of 27 June 2024, that Sparke Helmore, on behalf of the second defendant, have already administered an extensive request for particulars to the plaintiff's solicitors, and there has been a response to that request. In part, that response refers to a detailed statutory declaration of the plaintiff setting out fine detail in relation to his exposure to dust at the second defendant's colliery.

13. While I can foresee that there will be another request for particulars, either that request will come from Mr Andersen, if he is forced to remain on the record for BlueScope in the interests of Wongawilli Colliery, or it will come from Sparke Helmore if I grant separate representation. The plaintiff will be in a position to answer the request no matter who it comes from.

14. The second concern raised by Ms Mawson is this: that the plaintiff may be required to attend further medical examinations on behalf of Coal Mines Insurance. That may be so. I am not aware of the extent of any dispute about medical matters except as disclosed in the reports annexed to Mr Andersen's second affidavit, DX2.

15. Sparke Helmore have already arranged a medical examination for the plaintiff, and any mixed‑dust fibrosis that he suffers through exposure at the Elcom Colliery will be the very same disease that he suffers if he was exposed to coal and silica dust at the Wongawilli Colliery. There may or may not be another medical examination, and there may be a valid reason for the plaintiff to decline to go to a further medical examination at the behest of Sparke Helmore, if they have already had medical matters adequately investigated.

16. The third concern of Ms Mawson is that the plaintiff will be forced to correspond with an additional firm of solicitors. As it turns out, that will not be the case. Sparke Helmore are already on the record for the second defendant, and thus there will not be yet another firm of solicitors engaged in the matter, and whether or not correspondence comes from Mr Andersen, if he continues to represent BlueScope in relation to Wongawilli, or whether it comes from Sparke Helmore, there will have to be a certain amount of correspondence dealt with one way or the other by the plaintiff.

17. The next concern of Ms Mawson is that the involvement of Sparke Helmore on behalf of CMI in the interest of Wongawilli Colliery will result in increased legal costs and disbursements to the plaintiff. That may be so, but there are two answers to that concern:

1. If the plaintiff wins his case, then those costs will be covered by a costs order.

2. The second answer is that the second order in the amended notice of motion asks for costs of separate representation to be dealt with by the trial judge. If there is an order for separate representation, and it results in some duplication of effort or some unnecessary incurring of costs, the trial judge will be in the perfect position to craft an order to meet such matters.

18. Other matters raised in opposition to the application for separate representation come from the submissions of Mr Giurtalis. Mr Giurtalis submits that if there is discovery on behalf of BlueScope required, will Mr Andersen be providing it on part of the steelworks, but then who will provide discovery on the part of BlueScope in relation to Wongawilli? The answer to that is whichever solicitor appears in the interests of BlueScope in relation to the Wongawilli claim.

19. Mr Giurtalis does raise a point about interrogatories. His submission was there will be no safety net to prevent inconsistent answers to interrogatories by different solicitors answering interrogatories for the one party, BlueScope. I think that that concern is not well founded. Interrogatories administered to BlueScope in relation to the steelworks will be answered by Mr Andersen. The interrogatories that deal with the Wongawilli Colliery will be answered by whatever solicitor is instructed to appear ultimately for BlueScope in the interests of Wongawilli Colliery. After today, there will be clarity as to who appears in which interest for BlueScope, and it may well be that separate interrogatories should be administered to BlueScope in respect of the steelworks, which can be directed to Mr Andersen, and if there is separate representation, separate interrogatories can be directed to the separate representative in relation to Wongawilli.

20. Mr Giurtalis raises an issue about costs. He posits the theoretical position: what if the plaintiff succeeds against BlueScope in relation to the steelworks exposure but fails in relation to the Wongawilli Colliery? On the face of it, that does present a dilemma because the plaintiff would obtain a judgment, which would normally result in costs following the event. However, under s 98 of the Civil Procedure Act, the broad powers of any court include a power to order costs on separate issues. Even if Mr Anderson were to remain on the record for both arms of BlueScope, if I can describe the steelworks and Wongawilli in that way, if the plaintiffs failed in relation to Wongawilli, there could be an application made that only part of the plaintiff's costs be ordered against BlueScope, or that the plaintiff be ordered to pay BlueScope's costs in relation to its successful defence of that part of the claim, being the separate issue for Wongawilli Colliery.

21. The next submission of Mr Giurtalis was that Sparke Helmore, if it comes on the record for BlueScope in respect of Wongawilli, will have a conflict of interest because it is already acting for the second defendant. With respect, I fail to see why there would be a conflict of interest. CMI is the insurer with the statutory monopoly on coal mines insurance in this State. If Sparke Helmore comes onto the record for Wongawilli, then it will defend that part of the claim in relation to these ten years of exposure, and it will remain on the record to defend the 13 years of exposure at the Huntley Colliery. I can see no room for conflict on the part of Sparke Helmore in so acting, and as I have said, Sparke Helmore has indicated that they are willing to accept appointment as a separate representative in the interests of CMI for Wongawilli.

22. The next submission of Mr Giurtalis was that the fact that there may be different damages regimes against BlueScope for the steelworks exposure as opposed to the coal mines exposure means that there could be a differential assessment of damages, but there would ultimately only be one single verdict against BlueScope. That is going to arise as a very interesting issue in this case, whether or not Mr Andersen appears for both arms of BlueScope or only for one. I frankly confess that the answer to that dilemma is not immediately apparent to me, but it is something that can be sorted out by the trial judge.

23. The next submission of Mr Giurtalis was that this application should have been made by Sparke Helmore or by CMI. I do not accept that submission as Mr Andersen is making the submission in his own interests, perceiving that he has a conflict of interest, and he has put on evidence to show that Sparke Helmore and CMI do support the application for separate representation.

24. Mr Andersen's conflict is, to my mind, a real and serious one. The Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 (NSW) provide as follows in r 11:

“11.1.   A solicitor and a law practice must avoid conflicts between duties owed to two or more current clients.”

25. I pause to remark that while Mr Andersen presently acts for one party, BlueScope, if he remains on the record for all of BlueScope, he will have two clients, being BlueScope as a self‑insurer and CMI as the insurer for BlueScope on the Wongawilli Colliery. I do not read the word "client" as a party to litigation. The reality is that any solicitor appearing for a defendant in proceedings in this Tribunal is almost always instructed by an insurer, and the insurer is the client to whom duties are owed.

26. Rule 11.2 reads as follows:

“If a solicitor or a law practice seeks to act for two or more clients in the same or related matters where the client's interests are adverse, and there is a conflict or potential conflict of the duties to act in the best interests of each client, the solicitor or law practice must not act, except where permitted by r 11.3 and 11.4.

27. Having recited those rules, they do no more than advance a proposition put forward 2,000 years ago: “No man can serve two masters for either he will hate the one and love the other, or else he will hold to the one and despise the other”.

28. I find that it is appropriate to make the order for separate representation in these proceedings in the form set out in the amended notice of motion. It may add to the cost and time and expense in the proceedings, but that can be covered by an appropriate costs order. If the plaintiff wins on all of the causes of action put forward, that issue will not even arise because the plaintiff will obtain a costs order to follow the event.

29. My orders are as follows:

1. Order 2, as per amended notice of motion filed 12 June 2024;

2. Order 4, as per amended notice of motion filed on 12 June 2024.

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Decision last updated: 02 July 2024