OLIVER v ACN 007 870 484 P/L - [2016] SADC 148

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
OLIVER v ACN 007 870 484 P/L & ORS
[2016] SADC 148
Reasons for Ruling of His Honour Judge Gilchrist
8 December 2016
EVIDENCE
Application to tender evidence given and received in previous Dust Disease Actions concerning the Third Party - Principles guiding the determination of such applications considered - Partial tender allowed.
Evidence Act 1929 s 45B; Dust Diseases Act 2005 s 4, 8(3), referred to.
Stevens v CSR Ltd & Ors [2015] SADC 57; David Jones Ltd v BI (Contracting) P/L [2013] SADC 92; H v Schering Chemicals Ltd [1983] 1 All ER 849; K & S Lake City Freighters P/L v Gordon & Gotch Ltd [1985] HCA 48, considered.

OLIVER v ACN 007 870 484 P/L & ORS
[2016] SADC 148

This is an application by ACN 007 870 484 Pty Ltd and the Myer Emporium Ltd, (collectively referred to as Myer) to tender evidence admitted in earlier dust disease actions against the third party, BI (Contracting) Pty Ltd pursuant to s 8(3) of the Dust Diseases Act 2005.
The evidence comprises of the following:
·The index of an appeal book filed in the New South Wales Court of Appeal in an action between BI, Myer and Mr Ronal Jantzen.
·An affidavit of Mr Sydney Bentley that was tendered in the primary action between Mr Jantzen, Myer and BI in the Dust Diseases Tribunal of New South Wales.
·A medical report for Professor Douglas Henderson, a pathologist that was tendered in that action.
·An affidavit of Mr Ronald Jantzen that was tendered in that action.
·Extracts from the oral evidence of Mr Jantzen that was given in that action.
·The evidence of Mr Peter Snelling that was given orally in an action between Williams and BI and CSR Ltd in the Dust Diseases Tribunal of New South Wales and which was tendered in an action between the Public Trustee of South Australia (Richardson) and Clifton Financial Services Pty Ltd and BI and CSR.
Mr Trim QC, for BI, opposes the tender. In doing so he referred to the decisions of this Court in Stevens v CSR Ltd and Ors[1] and David Jones Ltd v BI (Contracting) Pty Ltd.[2]
[1] [2015] SADC 57.
[2] [2013] SADC 92.
In both cases affidavits were sought to be tendered pursuant to the Evidence Act 1929.
In David Jones Ltd v BI the tender was refused. In Stevens v CSR, only part of the affidavit was tendered.
In Stevens v CSR the Court expressed caution in considering the tender of an affidavit under the Evidence Act. It said:
It seems to me that in determining the issues of evidentiary weight, prejudice and the interests of justice that s 45B requires the Court to consider a careful evaluation of what is contained in the document and what the other evidence adduced in the case reveals. If material contained within the document is uncontroversial or inherently likely or corroborated by other evidence, the Court might readily conclude that it should be received into evidence through s 45B. If, on the other hand, the nature of the material is such that without being tested in cross examination it is of questionable weight or if its veracity could only be validated by further elaboration by the author, or it is controversial or not inherently likely and not corroborated by other evidence the Court might decline to receive the evidence.[3]
[3] At para 23.
Mr Trim QC contended that similar considerations should apply in determining whether to allow the tender of evidentiary material pursuant to s 8(3) of the Dust Diseases Act. He said that no explanation had been given as to why these witnesses were not being called. He questioned the relevance of some of the evidence and questioned its probative value. I understood him to submit that when weighed with the disadvantage that BI would suffer by not being able to test the evidence the Court should exercise its discretion and refuse the tender.
In my view, the decisions in David Jones Ltd v BI and Stevens v CSR are not determinative of the issue before me.
Section 8(3) of the Dust Diseases Act must be read in the context of the Act as a whole.[4] Section 4 of the Act provides that the objective of the Act is:
to ensure that residents of this State who claim rights of action for, or in relation to, dust diseases have access to procedures that are expeditious and unencumbered by unnecessary formalities of an evidentiary or procedural kind.
[4] K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48 at para 4; (1985) 157 CLR 309 per Gibbs CJ.
Looked at in that context it is plain that s 8(3) is intended to facilitate the timely and cost effective disposition of litigation concerning a dust disease matter. Unlike the relevant provisions in the Evidence Act 1929 there is no requirement to explain why the evidence is not being called, nor is there an express requirement for the Court to weigh the evidentiary weight of the evidence with the prejudice its receipt might cause.
That is not to say that in considering an application to tender under s 8(3) the Court will ignore any adverse consequences that may result from the tender. If the evidence sought to be tendered is overtly dubious or irrelevant the Court would not allow its tender. If the evidence was not given orally in the earlier proceedings, was not the subject of any opportunity for cross examination and its tender was opposed, considerations of the type discussed in Stevens v CSR would be relevant.
But if the party against whom the tender was sought cross examined the witness or elected not to do so or if in the case of documentary evidence it did not oppose the tender in the earlier proceedings, provided the evidence is potentially relevant there would have to be some exceptional reason not to allow the tender in the later proceedings.
With these matters in mind I turn to the evidence under consideration here.
The index of the appeal book is uncontroversial.
An affidavit of Mr Bentley is consistent with evidence given in these proceedings that is the subject of cross examination.
The tender of the medical report from Professor Henderson was opposed by counsel for BI in the earlier proceedings. It was only tendered on the basis that the assumptions underpinning the opinions expressed were made out. In his report Professor Henderson expressed opinions about the typical composition of sprayed asbestos insulation that was used between 1963 and 1967. He expressed an opinion that it was extremely hazardous and generated extremely high concentrations of airborne respirable asbestos fibres. Although Professor Henderson referred to some texts in support of his opinions the report contains no other explanation as to how those opinions were reached. On the face of it he does not appear to have conducted any analysis of the typical composition of sprayed asbestos insulation that was used in the mid-1960s, nor does he appear to have measured the concentrations of airborne respirable asbestos fibres produced by sprayed asbestos insulation. It is one thing for an expert to seek to fortify his or her own findings by reference publications by other experts.[5] It is another thing altogether for an expert to simply adopt the findings of another expert. In the latter case the evidence of the expert clearly offends the hearsay rule and the evidence would only be admissible if the findings formed “a corpus of knowledge available in the field.”[6] In either case the opinion would be open to challenge on the basis that the assumed facts did not bear sufficient similarity to the actual facts under consideration. If Myer were able to rely upon the opinions expressed by Professor Henderson without BI being given the opportunity to test the assumptions underpinning the opinions he expressed, which was the basis upon which the report was tendered in the earlier proceedings, BI would be sufficiently prejudiced to enliven the discretion to refuse the tender.
[5] See, for example; H v Schering Chemicals Ltd [1983] 1 All ER 849 at 853-4 per Bingham J.
[6] Heydon: Cross on Evidence 7^th Edition 29150.
Mr Jantzen’s evidence is potentially relevant and was the subject of cross examination in the earlier proceedings.
Mr Snelling’s evidence is potentially relevant. BI elected not to cross examine him in the earlier proceedings.
In my view, with the exception of the report of Professor Henderson, the other evidence sought to be tendered should be admitted in the within proceedings. What weight should be given to it and what findings should be made as a consequence of it are yet to be determined.