Robertson v The Zinc Corporation Pty Ltd

[2005] NSWCA 372

CITATION:	Robertson v The Zinc Corporation Pty Ltd [2005] NSWCA 372
HEARING DATE(S):	28 July 2005
JUDGMENT DATE:	31 October 2005
JUDGMENT OF:	Santow JA at 1; Mathews AJA at 62
DECISION:	Leave to appeal denied. Claimant to pay opponent's costs.

CATCHWORDS:	PROCEDURE - leave to appeal against denial of extension of limitation period to bring an action for noise-induced hearing loss claimant contends he suffered in the course of his employment between 1954 to 1978 - whether the absence of a particular witness was significantly prejudicial to the opponent - whether the primary judge failed to have regard to other available evidence.
LEGISLATION CITED:	Limitation Act 1969 of NSW s60G(2)
CASES CITED:	BHP Steel (AIS) Pty Ltd v Dimitrioski, NSWCA, 7 March 1997 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Cowie v State Electricity Commission of Victoria [1964] VR 788 Holt v Wynter (2000) 49 NSWLR 128 Jones v Royal Hospital for Women [1998] NSWCA 384 McLean v Sydney Water Corp [2001] NSWCA 122 Parsons v Doukas (2001) 52 NSWLR 162 Salido v Nominal Defendant (1993) 32 NSWLR 524 South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 Sydney City Council v Zegarac (1998) 43 NSWLR 195
PARTIES:	Robert James ROBERTSON (Claimant) THE ZINC CORPORATION PTY LTD (Opponent)
FILE NUMBER(S):	CA 41021/03
COUNSEL:	K W ANDREWS (Claimant) G R GRAHAM (Opponent)
SOLICITORS:	Sowden Akerman (Claimant) Cutler Hughes & Harris (Opponent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 12950/01
LOWER COURT JUDICIAL OFFICER:	Rein DCJ

CA 41021/03
DC 12950/01

SANTOW JA
MATHEWS AJA

31 OCTOBER 2005

Robert James ROBERTSON v THE ZINC CORPORATION PTY LTD

Judgment

1 SANTOW JA:

INTRODUCTION
This leave to appeal and concurrent hearing (CA 41021/03) was heard in conjunction with parallel proceedings in Jones v Hamersley Resources Limited (CA 40935/03). They were argued together by the same counsel. I shall refer to the latter by the shorthand “Jones appeal” and the former by the shorthand “the Robertson appeal”. The claimant in the Robertson appeal is Robert James Robertson while the claimant in the Jones appeal is Robert Jones. These proceedings before this Court are properly the subject of separate judgments as, though they share a common substratum of facts and common issues, they have a number of material differences. These relate to each claimant’s respective employment history in the Broken Hill mines where each worked.

2 That differing employment history had the potential to produce different answers at trial. In fact, before different primary judges both claimants were unsuccessful. They each sought an extension to the relevant limitation period applicable to their respective actions for noise-induced hearing loss. In each case the finding the subject of the leave to appeal, was that it was not “just and reasonable” to extend the time for bringing an action against the opponent employer pursuant to s60G(2) of the Limitation Act 1969 of NSW (“the Act”).

3 There was no issue in either case that the relevant claimant passed the threshold requirement in s60I of the Act. Each was accepted as unaware at the relevant date of the connection between the claimed personal injury and the opponent’s alleged act or omission.

4 Turning now to the Robertson appeal, the claimant, Robert Robertson, seeks leave to appeal against Rein DCJ’s denial of an extension of the limitation period to bring an action for noise-induced hearing loss that Mr Robertson claims to have suffered in the course of his employment in the mine of the opponent, The Zinc Corporation Pty Ltd (“Zinc Corporation”).

5 The essential issues on this application for leave to appeal are:

(a) whether the absence of a particular witness, namely Dr Cumpston (chief medical officer of the opponent company), was significantly prejudicial to the opponent, and

(b) whether the primary judge failed to have regard to other available evidence.

SALIENT FACTS

6 The claimant, Robert Robertson, commenced employment in April 1954 at a mine in Broken Hill. His employer from that date until 10 June 1982, was Zinc Corporation. However, Mr Robertson had ceased working actively in any area of the mine where noise was a problem by 1978 (Judgment at [14]). Thus the relevant period of employment for the purposes of his claim was 1954 to 1978, though his employment continued thereafter, as I explain below. Mr Robertson’s essential claim, according to the Amended Statement of Claim, was that during his employment at the mine by the opponent, he was required to work on and/or near machinery which was loud and/or excessively noisy, and that as a result of being exposed to the noise of machinery and equipment he suffered injury, loss and damage, the injury being to the structure of both inner ears.

7 In 1986, Zinc Corporation sold its mine in Broken Hill, and transferred its employees to Hamersley Resources Limited (“Hamersley”). In 1987, the shaft which had belonged to Zinc Corporation was closed. In 1988, Hamersley sold its mine to the newly created company Pasminco Broken Hill Mine Pty Ltd (“Pasminco”), and its employees were transferred to Pasminco.

8 The original Notice of Motion seeking an extension of the limitation period, filed in the District Court on 26 November 2001, named Pasminco as defendant. This was by agreement between Zinc Corporation and Pasminco. However, in September 2001, Pasminco was placed in voluntary administration, and soon after the decision to be named as defendant in the District Court proceedings was reversed. Thus on 25 January 2002, an amended Notice of Motion was filed in the District Court substituting for Pasminco the current opponent/defendant, Zinc Corporation.

9 The claimant’s evidence was that, during the course of his employment, he was required to work on and near an underground mining machine, which appeared to him to be very noisy, and that he was regularly exposed to the noise of explosives being detonated. He was not aware of any hearing loss before commencing his employment. The primary judge summarised the claimant’s evidence as to the hearing protection provided by the opponent as follows:

(a) No hearing protection was provided prior to 1974.

(b) No information about the effects of noise on hearing was provided until a couple of years prior to his retirement, when safety lectures were given.

10 The claimant’s evidence was that he first became aware of his hearing difficulties sometime just before 1972. His evidence was that he was not provided with regular hearing tests but did have his hearing tested in December 1972 and then in August 1983. He received workers’ compensation in 1972, and then again in 1983 for a 31% hearing loss in the left ear and a 28% loss in the right ear.

11 The claim sought to be pursued was essentially in respect of the six-year period from December 1972, when the claimant’s hearing was first tested, to 1978, when the claimant was no longer exposed to noise, though the claimant did not entirely abandon any claim for the period preceding (1954 to 1972). In 1978, the claimant suffered a back injury and was in fact off work thereafter until he retired in 1982.

12 On or about 28 May 2000, the claimant had a consultation with lawyers at which he was told that:

(a) The 1962 Commonwealth Acoustics Laboratory Report (known as CAL 19) required testing of his hearing every year and provision to him of the results,

(b) The Australian Standards Association 1969-1976 included the need for testing and hearing protection, as well as safety lectures,

(c) Unless the opponent company had taken the steps required by CAL 19 and the Standard, the opponent had not established a proper hearing conservation program.

13 The hearing protection standards were in place to the following extent:

(a) 1954-1962: no hearing protection standard in place,

(b) 1962-1976: CAL 19 in place,

(c) 1976 onwards: Australian Standard in place.

THE FIRST INSTANCE JUDGMENT

14 The claimant’s only challenge is to the primary judge’s finding that it was not just and reasonable to extend the time period; see s60G(2) of the Act. The opponent did not challenge the claimant’s argument that he passed the threshold test in s60I. But the opponent submitted that leave should not be granted on three bases: futility, prejudice caused by delay, and inadequate explanation for delay.

Whether just and reasonable to extend the limitation period

15 The primary judge found in favour of the claimant on the issues of futility and explanation, and against the claimant on the issue of prejudice. Argument on the leave application therefore concentrated on prejudice.

16 The primary judge found that several important factual issues, apart from the issue of whether the claimant in fact suffered hearing loss as a result of his employment by the opponent, would arise at trial. These factual issues related to:

(i) The level of knowledge of hearing problems and the steps available to guard against or reduce such problems,

(ii) Whether the safety equipment was capable of counteracting the noise of the machinery and what alternative machinery was available,

(iii) What safety equipment was provided and how it was provided and fitted,

(iv) Whether the attention of the workers was drawn to the problems associated with noise and how to deal with them through safety equipment or otherwise, and

(v) The attitude of the relevant union, which it appears may have opposed the provision of some hearing protection (Judgment, [33]).

17 The primary judge considered the fact that the claimant’s workmates were all dead to be of limited significance. This was so, given that this was a case not based on what other workers saw and observed but on the overall system of work that would not likely be limited to a particular crew (Judgment [31]).

18 However, he concluded that it was not just and reasonable under s60G(2) to extend the time period because the opponent would be placed in a position of significant prejudice by reason of:

(a) The death of Dr Cumpston, Chief Medical Officer for the opponent, who was involved in hearing loss issues at the mine in the 1960s, and

(b) The fact that the passage of time is such that persons whose testimony would or could be relevant are unlikely to be less than 70 years of age (if they are still alive), would long ago have ceased to have any involvement with the mine, and are therefore unlikely to have the necessary degree of recollection that would permit them to provide cogent evidence in support of the opponent’s case.

19 To quote from primary judge:

“Whilst I do not think I can draw the inference that other senior personnel have died from Dr Cumpston’s demise or indeed the demise of workmates of the Applicant, I am persuaded that the Defendant is placed in a position of significant prejudice by reason of Dr Cumpston’s death and the fact that, even if it is assumed in the Applicant’s favour that other senior personnel and witnesses who were involved in aspects of work and health relevant to hearing protection and loss in the 50s and 60s are alive, the passage of time is of such an order that the persons whose testimony would or could be relevant to dealing with these issues are unlikely to be less than 70 years of age, would have long ceased to have any involvement with the mine and, accordingly, are unlikely to have the necessary degree of recollection that would permit them to provide cogent evidence in support of the Respondent’s case.” [Judgment, [34]].

Appeal Grounds

20 The claimant pressed the following appeal grounds:

(a) The primary judge erred in finding that the evidence of Dr Cumpston was essential in order that there be a fair trial of the issues between the parties.

(b) The primary judge erred in finding that the passing away of Dr Cumpston created a prejudice which dictated the rejection of the application.

(c) The primary judge erred in not giving appropriate reasons addressing the evidence tendered during the course of proceedings which showed the evidence which would be available to the opponent at the hearing of any trial.

(d) The primary judge failed to give adequate reasons for dismissing the application.

DISPOSITION

21 It is convenient to begin by identifying the relevant legislation which has potential application to the parties in relation to these events. There was no dispute between the parties as to the broad effect of the legislation.

22 Thus s51(1) of the Act provides for an ultimate bar against any action after 30 years. However, s51(2) does not apply to causes of action relating to an order under subdivision 3 of Division 3 of the Act.

23 Division 3 addresses personal injury arising before the relevant amendments to the Act in the year 2002. Subdivision 3 provides, under s60F of the Act, for extension of limitation period in relation to latent injuries. Section 60G(2) of the Act applies to a cause of action arising prior to 1 September 1990, by Schedule 5 thereof entitled “Further Transitional Provisions” and in particular by clause 4 thereof.

24 Pursuant to s60G(2) of the Act, if the court is satisfied that the applicant satisfies the test in s60I(1), the court may, if it decides it is just and reasonable to do so, order that the limitation period be extended.

25 The leading High Court case in relation to the discretion to extend limitation periods is Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. That case concerned an application to extend the limitation period to commence an action in tort for medical negligence pursuant to s31(2) Limitation of Actions Act 1974 (Qld). That provision is not precisely equivalent to s60G Limitation Act 1969 (NSW), but both provide for a relatively undirected discretion. Mason P considered s60G to be comparable to the Queensland legislation insofar as both provisions contain “a discretion exercisable according to broad notions of justice between the parties in accordance with the purpose of an enactment authorising an extension of the limitation period”: Jones v Royal Hospital for Women [1998] NSWCA 384. The principles arising from Brisbane South can therefore be taken to be applicable to s60G: see Jones; Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 222-223. However, s60G is to be distinguished from s60E (applicable to s60C and s60D). Section 60E shaped the discretion by providing a list of matters to which the court is to have regard. This is “to the extent they are relevant to the circumstances of the case”.

26 The judges constituting the majority in Brisbane South (Toohey and Gummow JJ in a joint judgment, Dawson and McHugh JJ) agreed that, since the purpose of limitation periods is to preclude stale claims which the defendant would find it difficult to defend given the effluxion of time, it is prima facie prejudicial to the defendant to allow the commencement of an action outside that period. That is, the defendant suffers presumptive prejudice where an extension of the limitation period is granted. However, the prejudice presumed to occur if leave is granted to proceed out of time is generally insufficient of itself to disentitle a plaintiff to the leave sought (Brisbane South per McHugh J at 555; Salido v Nominal Defendant (1993) 32 NSWLR 524 at 538, regarding s52(4) Motor Accidents Act 1988). There must be “actual” prejudice, referred to more precisely as “actual prejudice of a significant kind”. In the discussion that follows, I shall use the shorthand “significant prejudice” to connote that.

27 However, there appeared to be a divergence of views as to whether the existence of actual or “significant prejudice” to the defendant (as opposed to presumptive prejudice) is inevitably decisive against a plaintiff's application to proceed out of time, so that the application should always be refused.

28 For Toohey and Gummow JJ, prejudice to the defendant was a factor to be considered in answering the ultimate question of whether "the delay has made the chances of a fair trial unlikely" (at 548, 550). However, McHugh and Dawson JJ appeared to give more weight to actual significant prejudice to the defendant, treating it as decisive of the question whether the court should exercise its discretion to extend time:

Dawson J held that:

“To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant.”

McHugh J stated that:

“When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice…”

29 This apparent divergence in the judgements in Brisbane South was discussed by Priestley JA and Sheller JA in Holt v Wynter (2000) 49 NSWLR 128. This was a case which concerned s52(4) Motor Accidents Act 1988, which required “leave of the court” for proceedings to be commenced out of time. Although Priestley JA interpreted the differences between the judgments in Brisbane South otherwise, the interpretation of Sheller JA (at 146-147), with whom Meagher JA, Handley JA and Brownie AJA agreed, reflects the majority view. Sheller JA concluded that:

“the effect of the decision of the High Court in Brisbane South Regional Health Authority is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant.”

30 However, it is important to emphasise that significant prejudice is to be understood as such prejudice as would make the chances of a fair trial unlikely. As Hodgson JA, with whom Beazley JA and Rolfe AJA agreed, said in South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 at [33] (a case concerning s60G Limitation Act 1969):

“the true issue on this matter is whether or not the applicant for the extension discharged the onus of satisfying the Court that there would not be such prejudice as would make the chances of an acceptably fair trial unlikely.”

31 Moreover, for a trial to be fair, it need not be perfect or ideal: Holt v Wynter per Priestley JA at 142; McLean v Sydney Water Corp [2001] NSWCA 122; Gabriel. Further, it is not the case that in the absence of proof of significant prejudice the Court is bound to grant leave to commence proceedings: Parsons v Doukas (2001) 52 NSWLR 162 at 163, 190 (a case concerning s52 Motor Accidents Act). Again, the question remains whether it is just and reasonable to grant leave and this is in turn a question of whether the delay has made the chances of a fair trial unlikely, recognising that it does not have to be perfect or ideal.

32 It is convenient that I refer at the outset to the significance of evidence that might have been forthcoming from Dr Cumpston, as well as clarifying the date of his death. This the parties now agree occurred on 7 May 2001 and not, as previously thought, sometime in the 1970's.

33 The opponent asserts that Dr Cumpston was “from the still available documentation … the person who has the significant recorded involvement in the matter of hearing protection”. I shall return to that issue below.

34 What is agreed are the following agreed dates in relation to Dr Cumpston:

(a) Born 9 November 1914

(b) 1958 commences Mary Kathleen as town/mine doctor

(c) 1961 (early) moves to Broken Hill

(d) September 1962 to late 1963 studies for master's degree in Occupational and Aerospace Medicine in Ohio

(e) 1966 seconded to Hamersley iron ore mine in Western Australia

(f) 1967 returns to Broken Hill. Later moves to Bougainville

(g) April 1973 represents Broken Hill Mine Managers Association at final meeting of Standards Australia Sub-Committee No. 1 (Hearing Conservation) in Adelaide

(h) 7 May 2001 dies aged 86 years

35 Ms McDonald, solicitor for the opponent, Zinc Corporation, confirms that documents produced under subpoena reveal that Dr Cumpston was the Chief Medical Officer for Zinc Corporation for a number of years, and in particular in 1968. Her affidavit is in error though in the hearsay evidence she gives that Dr Cumpston died in the 1970s; see para 4 of her affidavit. We now know he died in 2001.

36 His obituary attached to the further affidavit of Ms McDonald of 28 July 2004 throws further light on his period of involvement at the relevant mine involving the opponent:

“In early 1961 CRA transferred Alan to Broken Hill where he was employed full-time as the occupational health physician for the Zinc Corporation and New Broken Hill Mines, owned and operated by CRA.

With CRA financial support, from September 1962 to late 1963 Alan studied in Columbus Ohio for his Masters Degree in Occupational and Aerospace Medicine. After graduation he returned to Broken Hill where he worked until 1968. In 1966 CRA seconded Alan to establish medical facilities at their Hamersley iron ore mine in Western Australia. He spent approximately one year there before returning to Broken Hill.

After leaving Broken Hill, CRA transferred Alan to their Bougainville copper mine, where he was town doctor and occupational health physician.

On returning to Australia in 1973, at the age of 59, Alan enrolled in a Masters degree course in applied science at the University of New South Wales. After completion of this course he was employed for a short time as NSW Deputy Director of Occupational Health before accepting a position in Western Australia as Director of Occupational Health. He occupied this position until his compulsory retirement in 1979.” [emphasis added]

37 From the additional information and the obituary, it can be taken as established that Dr Cumpston was employed as an occupational health physician at the mine between 1961 and September 1962 so too that he returned to that employment in Broken Hill where he would have worked from approximately the latter part of 1964 to 1968, with a period absent in Western Australia in 1966. Thus his involvement at the opponent's mine really pre-dated the period principally relied upon by Mr Robertson, namely 1972 to 1978, as distinct from his eighteen years of employment preceding 1972 going back to 1954. Eleven of those eighteen years overlapped with Dr Cumpston's period at Broken Hill. Thus his evidence is not of direct application. It may at best point to work practices that pre-dated Mr Robertson's principal claim. In that sense, the mistaken assumption that Dr Cumpston ceased working for Zinc Corporation and New Broken Consolidated Limited in the early 1970's when in fact he had ceased working for these companies in about 1968, has no particular significance. The primary judge also assumed, as we now know mistakenly, that he died shortly thereafter.

38 The primary judge referred to Dr Cumpston’s evidence in his judgment at [17]. The judge noted that, as Chief Medical Officer for the opponent, Dr Cumpston was involved in hearing loss issues at the mine in the 1960s. The judge referred to an article Dr Cumpston wrote in 1968, in which he wrote of the existence of noise hazards, the fact that a number of employees had industrial deafness and the introduction of a hearing conservation program from the end of 1967, with neckband-style ear muffs issued to workers in early 1967 in new shafts.

39 In this 1968 article, Dr Cumpston wrote:

“Early in 1967 a new shaft was commenced at NBHC. The shaft sinking crews were all issued with neckband-style ear muffs, which could be worn with safety hats. The men accepted them and continued to wear them. Following this success ear muffs were introduced into other sections of the mine and ear muffs or ear plugs are now freely available for all exposures to noise levels above 90 dbA, no matter whether the duration of such exposure is too short to be a likely cause of permanent loss of hearing.

The position towards the end of 1967 was as follows.

1. Measurement of the noise produced by many of our operations had proved the existence of noise hazards at ZC-NBHC.

2. Audiometric assessment of hearing had demonstrated that a significant number of employees were suffering from industrial deafness.

3. Investigation had shown that there was little hope that a rock-drilling machine could be developed to operate with a sound pressure level less than 90 dbA.

4. Since the neckband-style ear muffs had been well received it was decided to make both types of hearing protection freely available for all exposures to noise levels above 90 dbA .

The situation concerning noise and industrial deafness was defined, the effectiveness of hearing protection in relation to the various operations was assessed, and the way was prepared for the introduction of a hearing conservation programme. Management decided that the success of such a programme would depend upon education to promote awareness of the need for hearing protection and to resolve any doubts concerning the use of protective equipment.

Through the medium of the Broken Hill Mining Managers’ Association a meeting with the combined mining unions was arranged to achieve full understanding by the unions of the necessity for educating their members, to seek their co-operation in carrying out all aspects of the programme and, in particular, to seek their assistance in persuading their members to attend for audiometry. At the meeting, held in November, 1967, it was stated that the companies intended to present the facts concerning noise, deafness, and hearing conservation, to small groups of employees, allowing plenty of time for discussion and resolution of any doubts concerning the use of protective equipment.

Union approval was received and the hearing conservation programme has now started. The interest already shown by the staff and daily-paid employees indicates that it may be successful. To maintain that interest continued support must be given to all aspects of the programme. If noise measurements reveal sources of intense noise that noise must be reduced if it is demonstrably possible to do so. It must be evident to the employees that everything possible has been done and will be done to control Noise. Also, if they are to play their part in a hearing conservation programme, it is not sufficient merely to provide them with hearing protection. A vigorous long-range and detailed educational programme promoted and fully supported by management and applied at all levels must be maintained to stimulate awareness of the hazard, to promote the use of ear protection, and to encourage voluntary attendance for routine audiometry. Education will be the key factor in deciding whether the hearing conservation programme will be successful.” [emphasis added]

40 Mr Robertson’s evidence in his affidavit of 30 April 2002 was that apart from the workers’ compensation hearing tests in December 1972 and August 1983, the opponent did not test his hearing. It was not until a couple of years before he retired from the opponent’s employment (in 1982) that he was provided with some hearing protection, and that safety lectures which dealt with the effects of noise on hearing were given. In cross-examination he put the date at some time between 1974 and 1976.

41 It will be apparent that that evidence is at odds with the position described by Dr Cumpston earlier quoted, to the effect that toward 1967 neckband-style ear muffs be introduced not only for the shaft sinking crews but in all other sections of the mine and that “ear muffs or ear plugs are now freely available for all exposure to noise levels above 90 dbA” and that “the neckband style ear muffs had been well received”.

42 I refer to this evidence simply to demonstrate that Dr Cumpston’s availability could well have been material in respect of the period from 1961 to 1972. But that just emphasises the fundamental difficulty in the claimant’s case, were it to apply to that earlier period. It explains why the claimant has pressed his claim much more strongly with respect to the later period (1972-1978). Given that Dr Cumpston was in fact alive until 2001, the loss of his availability only after that reinforces the significant prejudice to the opponent were it open to the claimant to obtain an extension of the limitation period to encompass the period prior to 1972.

43 The claimant submitted that the evidence that could have been given by Dr Cumpston, were he still alive, was not indispensable to the opponent’s case, because other evidence, both documentary and witness evidence, was available.

44 However, to the extent the earlier period of employment remains relevant, as the opponent submitted, while Dr Cumpston might not have been the only person involved in noise and hearing loss issues at the mine, or even the most involved, at the very least he was the person who most clearly emerges from the remaining documentation as having had significant involvement in the system of work between 1961 and 1968 (with absence during October 1962 to the latter part of 1964). Moreover, he retained an interest in noise issues at the mine even after that up to 1973. For example, in addition to publishing the 1968 article noted above, Dr Cumpston advised the Broken Hill Mining Managers Association (MMA) on industrial deafness issues, and represented the MMA on numerous occasions at conferences from at least 1967 to 1973 at which he made reports and gave talks on industrial noise and hearing protection (see, for example, Mine Managers’ Association Minutes 1969, 1972, 1973 [Vol 1, Tab 23]; MMA Industrial Accident Prevention Committee Minutes 1967 [Vol 3, np]; Report of Conference 16 Nov 1967 [Vol 3, np]). In April 1973, Dr Cumpston represented the MMA on the committee drawing up the Australian Standard, which was published in 1976. Thus, it was clearly open to the primary judge to find that the opponent would be placed in a position of significant prejudice by reason of the death of Dr Cumpston.

45 The claimant submitted that the primary judge failed to consider the availability of other witnesses, in particular, two of the claimant’s shift bosses who are still living. However, in the absence of evidence establishing when, in the claimant’s 24 year period of employment with the opponent, these shift bosses worked at the mine, this evidence is of limited assistance. More generally, the primary judge did advert to the possibility of other witnesses being alive and available, but it was open to him to infer as he did that any such witnesses would be too old and the length of time since they were involved with the mine too long, for it to be likely that they could give cogent evidence. The claimant himself conceded that all his workmates (that is, the men who worked underground with him in his crew) were dead. He also gave evidence in cross-examination that most of the senior personnel at the mine would have been close to retirement age, in his estimate between 58 and 60, by the time he left the opponent’s employment in 1982. As the opponent submitted, common sense suggests that if Dr Cumpston and all the claimant’s workmates are dead then the prospect of locating senior personnel still alive (or if alive, able to give cogent evidence) could not be rated very highly.

46 The claimant also submitted that because any trial would be concerned with whether there was a safe system of work, it would not be concerned with the evidence of witnesses as to what they observed. The claimant submitted that other documentation was available in relation to the system of work, that is, documentation as to noise levels in the mine and the steps being taken in hearing protection. However, most of this documentation relates to the late 1970s and 1980s, whereas the claimant ceased working in 1978. Moreover, as the opponent submitted, any trial would turn on the factual issues identified by the primary judge, such as what hearing protection was provided and how it was provided and fitted, what the attitude of the union was, and most critically, when hearing protection was made available. The determination of these factual issues would be reliant upon the evidence of witnesses at trial. The primary judge relevantly cited the decision of Mason P, Handley and Cole JJA in a similar case, BHP Steel (AIS) Pty Ltd v Dimitrioski, NSWCA, 7 March 1997:

“The matters which would require investigation at the trial, based on the opponent's pressed particulars of negligence relate to regularity of testing and the reasonableness thereof, the nature of instruction given regarding hearing protection, the availability of and reasonableness of providing quiet areas, and instruction regarding dangers of exposure to noise. To be required to investigate in 1997 those matters prior to 1982 would be onerous indeed upon BHP. Weighing that with the prima facie position made clear in Brisbane South Regional Health Authority that it is upon the opponent to establish that it is just and reasonable to grant such an extension as an exception to the general provision that statutes of limitation are to be enforced, demonstrates that the onus was not satisfied. It is not a sufficient discharge of the onus simply to show that some records are available.”

47 The claimant further argued that the opponent failed to discharge its evidentiary onus in relation to the “just and reasonable” question by claiming privilege in relation to certain documents. The claimant seeks to rely on an affidavit of Steven Akerman from the firm of solicitors acting for the claimant dated 2 March 2005 (identical to that filed in the Jones appeal, where he is also the solicitor acting). I interpolate that objection was taken to the admission of that material as fresh evidence. The affidavit was directed, as in Jones to whether, based on transcripts of cross-examinations which post-dated the judgments in Robertson (22 October 2003) and Jones (26 September 2003), there had been admissions in other industrial deafness matters. The claimed admissions were to the effect that the relevant opponent had statements from relevant witnesses concerning the relevant working conditions, these were nonetheless statements for which privilege was still claimed by the opponent. Thus the claimant contends that this claim of privilege demonstrated the opponent’s failure to satisfy the evidentiary onus, discussed in Brisbane South. In that case, Toohey and Gummow JJ (at 547) adopted a passage from Gowans J in Cowie v State Electricity Commission of Victoria [1964] VR 788 to the effect that: “It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice”; see also Kirby J in Brisbane South at 566.

48 The Court deferred ruling upon the admissibility of that affidavit and had before it also an affidavit of Mr O’Donnell from Cutler Hughes Harris on behalf of the opponent dated 20 June 2005. That latter affidavit bore upon the potential relevance of this material, derived as it was from several other cases referred to at para 5 thereof, namely Pearce v The Zinc Corporation Pty Ltd 29 February 2000 and 1 and 2 March 2000, Pearce v Hamersley Resources Ltd 18 and 25 June 2004. Reference was also made to Stackpool v NBH Limited 16 June 2004 and Charnock v Hamersley Resources Ltd 16 June 2004.

49 The opponent’s objection to the admission of this evidence had two prongs. First, it was alleged that this evidence was not, or was unlikely to be relevant. Second, it was contended that Mr Akerman was on notice of the relevant material and failed to seek it, well before the decisions in Jones and Robertson. This was said to be by reason of bills of costs in the possession of and available to Mr Akerman for at least twenty-one months prior to the hearing before Rein DCJ in Robertson on 26 October 2003; see attachment to Mr O’Donnell’s affidavit.

50 Taking first the question of relevance or potential relevance, while the opponent was careful not to waive privilege or purport to indicate what the material in the witness statements, which had been given in the other matters, might say, the proceedings in Pearce and Charnock were for extensions of time in relation to similar workplace injury which had been unsuccessful. That certainly undermined their potential relevance. As to the third matter, Stackpool v NBH Limited, while those proceedings for extension were successful, they related to an entirely different albeit adjoining mine, managed and owned by a different company, Broken Hill North. Thus on any view Stackpool could not be relevant.

51 The second prong of the attack relates to the contention that it was only as a result of cross-examination in the matters of Pearce, Stackpool, and Charnock that Mr Akerman “became aware for the first time of the fact that the opponent in these proceedings had available to it statements from numerous persons”, being the statements over which privilege was claimed.

52 The answer given by Mr O’Donnell in his affidavit of 20 June 2005, as I have said, is that, for at least twenty-one months prior to 26 October 2003, by virtue of Bills of Costs in documents obtained at that earlier date on subpoena, Mr Akerman was on notice of this material well before the hearings in Jones and Robertson. The relevant Bill of Costs at page 7 relates to the Pearce matter and thus the relevant mine. They are attached to an application for assessment of costs filed in the Common Law Division of this Court. Mr Pearce sought an extension of time to bring proceedings relating to claims for damages for industrial deafness suffered before 30 June 1987. The application refers to a period of employment by Zinc Corporation between 1950 and 1968 and by New Broken Hill Consolidated Limited between 1968 and 1991, in circumstances where the workers’ compensation liability of both of these companies had been assumed by Pasminco Australia Limited.

53 At page 30 of the affidavit reference is made to an item numbered 39 under the date 24 January 2000 “reading and considering files obtained by Aspec Holdings in searches of client records for general safety matters and particularly hearing protection – 240 pages – 1 hour 40 minutes”.

54 It is clear that Aspec Holdings was an investigator appointed by the relevant company. The immediately preceding entry in the Bill of Costs refers to “telephone attendance on Mr Katz of Aspec Holdings regarding his searches of client records …”.

55 There is a later entry in the same Bill of Costs dated 3 February 2000 “reading and considering further report of Aspec Holdings on interview with former safety officers and supervisors …”

56 In all the circumstances, I consider that the further material sought to be introduced by the claimant relating to the three matters I have referred to should not be allowed. This is more particularly given the evident prejudice to the opponent from its introduction now rather than at the time of trial is self-evident and where its relevance has been put significantly in question.

57 This leads to the question of whether the primary judge was in error in declining to extend the limitation period in relation to the later period in particular after 1972. The position before 1972 is self-evidently such that no extension could be justified under the criteria in s60G.

58 While it appears that the opponent has available a limited amount of documentary material, I would accept that the opponent would be a significant disadvantage in the presentation of evidence at a trial. This is unless it could bring forward relevant supervisors, foremen or managers from the years 1954 to 1978 to attest to the correctness of the documents in fact, and as to the application of the practices referred to in the documents.

59 I consider that the primary judge correctly found that the opponent’s ability to call evidence on the relevant factual issues has been very significantly compromised by the passage of time. It was clearly open to the trial judge to find that the passage of time was such that other persons whose testimony would or could be relevant were unlikely to be less than 70 years of age (if they were still alive), would long ago have ceased to have any involvement with the mine, and were therefore unlikely to have the necessary degree of recollection that would permit them to provide cogent evidence in support of the opponent’s case.

60 I consider that the primary judge gave adequate reasons for the exercise of his discretion and that there was no basis for challenging it as having miscarried in relation to the “just and reasonable” ground.

OVERALL CONCLULSION

61 I consider that the primary judge’s exercise of discretion was soundly based on evidence and not outside the boundaries of a reasonable exercise of that discretion. Accordingly, I consider that this application should fail and propose the following orders:

(1) Leave to appeal denied.

(2) Claimant to pay opponent’s costs.

62 MATHEWS AJA: I agree with Santow JA.

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