Sliwinski v W Tolson & Company Pty Limited

[2022] NSWDDT 7

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:

Sliwinski v W Tolson & Company Pty Limited and Ors [2022] NSWDDT 7

Hearing dates:

18 November 2022

Date of orders:

7 December 2022

Decision date:

07 December 2022

Before:

Strathdee, J

Decision:

(1)   I make an order in accordance with prayer 1 of the Notice of Motion filed 2 October 2022.

(2)   Costs of the Motion are reserved.

(3)   Listed for further directions before me on 30 January 2023.

Catchwords:

PROCEDURE – DUST DISEASES – amendment to Statement of Claim – amendment to join another defendant after the Claims Resolution Process has concluded – prejudice to current parties – delay occasioned by amendment – costs of any amendment

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Dust Diseases Tribunal Regulation 2019 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural rulings

Parties:

George Stan Sliwinski (Plaintiff)
W Tolson & Company Pty Limited [ACN: 004 114 961] (First Defendant)
Amaca Pty Limited (formerly known as James Hardie & Coy Pty Limited) (Second Defendant)
Workers Compensation Default Insurance Fund Manager (Third Defendant)

Representation:

Counsel:
Mr S Tzouganatos appeared for the Plaintiff
Mr J Sheller SC appeared for the First Defendant

Solicitors:
Mr J Walsh, Maurice Blackburn Lawyers (Plaintiff)
Mr C Gotis-Graham, Mills Oakley Lawyers (First Defendant)

File Number(s):

2021/344107

Judgment

1. By Notice of Motion filed in the Dust Diseases Tribunal of New South Wales (‘the DDT’) on 5 October 2022, George Sliwinski (‘the plaintiff’) seeks the following orders:

“1. Pursuant to Section 64(1)(b) of the Civil Procedure Act 2005 (NSW) and rule 19.1 of the Uniform Civil Procedure Rules, the Plaintiff have leave to amend the Amended Statement of Claim in accordance with the Second Amended Statement of Claim marked “D” annexed to the affidavit of Raelene Lingam sworn 5 October 2022.”

2. In support of the Motion, the plaintiff reads the affidavit of Ms Raelene Lingam, solicitor, sworn 5 October 2022 (Exhibit 1 on the Notice of Motion).

3. The second defendant, Amaca Pty Ltd (‘Amaca’), opposes the order sought by the plaintiff. It relies on the affidavit of Mr David Cilona, solicitor, sworn 19 October 2022 (Exhibit 2 on the Notice of Motion).

4. It contends that “There has been no adequate lack [sic] of an adequate explanation for the amendments sought given the advanced state of the proceedings”, and “the matter is too far advanced for a fundamental amendment to be made which will have the effect of taking the case back to its inception point”: Affidavit of Mr Cilona [3.2–3.3].

5. The third defendant (who has agreed to indemnify the deregistered first defendant, W Tolson, and the proposed incoming fourth defendant, Chas Cook Electrics, deregistered) does not oppose the orders sought in the Motion.

6. The proceedings do not have a hearing date.

7. The mandates of the Dust Diseases Tribunal Regulation 2019 (NSW) were completed on 5 August 2022, when the mediator’s certificate was issued.

8. Amaca objects to the plaintiff being entitled to rely upon the Further Amended Statement of Claim. These are its reasons:

1. the Further Amended Statement of Claim adds an additional defendant and additional allegations of exposure to asbestos dust and fibre against Amaca — see paragraphs 5–7, 17B, 17C and 27B–27J;

2. why the amendments are sought to be brought, in particular, the basis for the assertion that the information in the Statement of Particulars filed on 3 December 2021 as being “incomplete and incorrect”, is not identified;

3. the suggestion that some different exposure to asbestos dust and fibre is limited to a hearsay statement in paragraph 6 of the Lingam affidavit;

4. the application is made on the basis of a report from Professor Bryant, respiratory physician, obtained by the plaintiff in circumstances where he already has a report from another respiratory physician, Dr Johnson, where the histories between the experts appear to conflict and where Professor Bryant did not examine the plaintiff;

5. because of the operation of the Dust Diseases Tribunal Regulation 2019 (NSW), the conduct of the plaintiff has created a situation in which:

1. the existing defendants are bound by an agreement as to apportionment;

2. the matter is now back before the Tribunal after the completion of the Claims Resolution Process: see clause 40 of the Regulation;

3. the Tribunal cannot take any steps to return the matter to the Claims Resolution Process – there is no provision for the Tribunal to do so and as well the Tribunal was expressly not permitted to refer the matter to mediation or mutual evaluation nor refer any dispute as to apportionment concerning the claim to arbitration: see clause 67(3)(h) of the Regulation;

4. the plaintiff is only permitted to file an affidavit in respect of issues in dispute — clause 67(3)(f) and the manner of the dispute is no longer ascertainable;

5. the operation of the Claims Resolution Process in this matter has been frustrated by the acts or omissions of the plaintiff and those advising him and any costs order (clause 69 of the Regulation) is inadequate for the purposes of remedying that frustration; and

6. there is doubt as to what contribution agreement would apply to any hearing if the Further Amended Statement of Claim was allowed.

9. Thus, Amaca submits that in the circumstances where the actions of the plaintiff have created a scenario where the Claims Resolution Process (‘CRP’) has been unable to operate effectively, the appropriate course is for the plaintiff to make an application to discontinue his present action and initiate a new action against the defendants on the basis of the claim now alleged (or some other version) and then to proceed through the CRP with all the allegations which the plaintiff wishes to make and all the relevant parties present.

Background

10. The plaintiff is 75 years of age. On 3 December 2021 he filed a Statement of Claim seeking damages from the first and second defendants on account of asbestosis and psychological sequalae. On the same day he filed a Form 1 Statement of Particulars which he had executed on 18 November 2021. In this document at page 5, he answered “No” to the question about whether he had exposure to asbestos while working for Chas Cook Electrics (from about 1969/70 to about 1974), and Ernest Electrics (between about 1975 and about 2014).

11. Pursuant to leave granted by his Honour Judge Scotting on 31 January 2022 the plaintiff filed an Amended Statement of Claim wherein the third defendant, the Worker’s Compensation Default Insurance Fund Manager (‘WCDIF’), was joined in relation to the liabilities of the first defendant.

12. The matter proceeded to mediation on 15 June 2022. It was adjourned to 1 August 2022. It did not resolve. The defendants had been unable to reach agreement on apportionment, in accordance with the Contributions Assessment Determination (‘CAD’) of Mr Crimmins dated 8 May 2022.

13. A Clause 40(2) certificate was filed in the DDT on 5 August 2022, indicating that diagnosis, nature and extent of alleged exposure to asbestos dust and fibre emanating from Amaca’s products and quantum, remained as the issues in dispute.

14. On 8 August 2022, despite the CAD, Amaca and WCDIF were able to reach agreement on apportionment (50/50).

15. The plaintiff’s Form 1 Statement of Particulars is not the only document wherein the plaintiff’s history of exposure to asbestos is recorded.

Evidence

16. The Lingam affidavit and the Cilona affidavit set out in detail the chronology of events and various passages from the relevant medical evidence that has been served. I do not propose to repeat the passages from the medical reports here.

Legislation

17. Section 64(1)(b) of the Civil Procedure Act 2005 (NSW) provides that:

“(1) At any stage of proceedings, the court may order--

(a) that any document in the proceedings be amended, or

(b) that leave be granted to a party to amend any document in the proceedings.”

18. Rule 19.1 of the Uniform Civil Procedure Rules 2005 (NSW) provides that:

“19.1 Amending a statement of claim

(1) A plaintiff may, without leave, amend a statement of claim once within 28 days after the date on which it was filed, but, unless the court otherwise orders, may not amend it after a date has been fixed for trial.”

19. Further, clause 67(3)(a) of the Dust Diseases Tribunal Regulation 2019, specifically provides the Tribunal with power to make orders including amendment of the Statement of Claim in circumstances where proceedings have returned to the Tribunal after the conclusion of the CRP.

The Parties’ Submissions

20. In short form, the plaintiff’s exposure history, based on statements in recent medical reports and confirmed by his instructions, has in effect been corrected and completed, but now needs to be plead in the proposed Second Amended Statement of Claim.

21. This is an unsatisfactory state of affairs as this will be the second amendment to the Statement of Claim. One wonders what information was sought from the plaintiff before and after the first amended Statement of Claim was filed. There are gaps in the preparation and subsequent conduct of the proceedings, including up to the failed mediation. However, the plaintiff is an ill and elderly man who I am certain has tried to recall this history as best he can, given the extensive passage of time since the alleged exposures.

22. Subsequent to the service of Associate Professor McKenzie’s report, a proper history was taken from the plaintiff, and that information suggests that he was exposed to asbestos in his work as an electrician with Chas Cook and Ernest Electrics. It seems in fact that he continued to perform the same work, or at least very similar work, as an electrician from the 1960s to 2014, which also suggests that his exposure to asbestos may have continued until at least the mid-1980s.

23. From the Lingham affidavit at [8] the plaintiff has provided further instructions with regard to the information provided in the Form 1 stating that it “is incomplete and incorrect”, and that “he was exposed to asbestos and inhaled asbestos dust including from asbestos cement products manufactured by Amaca, during his employment with Chas. Cook Electrics Pty Limited and Ernest Electrics Pty Limited (until about the mid-1980s when asbestos ceased being an ingredient in asbestos cement building materials).”

24. The plaintiff submits that granting the order sought by the plaintiff, is consistent with the guiding principles in the Civil Procedure Act 2005 (NSW), and the dictates of justice, for the following reasons:

• Firstly, the nature and extent of the plaintiff’s exposure to asbestos has always been and remains in issue. The proposed amendments to the Statement of Claim do not change that fact. If the matter cannot be resolved, the Tribunal will have to make findings about the plaintiff’s exposure to asbestos and whether such exposure is consistent with a diagnosis of asbestosis. Again, nothing in the proposed amendments to the Statement of Claim will alter this state of affairs. If the amendments to the Statement of Claim are not permitted, the real issue in the case will not be properly before the Tribunal.

• Secondly, despite Amaca’s reference to “uncertainty” as to the operation of the CRP and its agreement on apportionment with the third defendant, there is no discernible prejudice, let alone “irreparable prejudice”, to Amaca. There is nothing to stop the defendants from renegotiating their agreement on apportionment. The plaintiff is not and never has been bound by any such agreement. He has always been in a position where he must prove his case against each defendant, including the divisible damage caused by exposure to asbestos emanating from the negligence of each defendant. Another mediation can occur if the parties wish to arrange one. Clause 67(3)(h) precludes the Tribunal from ordering a mediation as defined by the CRP, but not otherwise.

There is no uncertainty about how the case can proceed if the order is granted. Clause 67(2) and (3) make it clear that the Tribunal has the power to case manage the proceedings because they are no longer subject to the CRP. The CRP had been concluded some months before the plaintiff filed his Motion.

This case can proceed without any recourse to the CRP, and in accordance with the orders of the Tribunal. If Amaca wishes to obtain a supplementary report from Associate Professor McKenzie it is at liberty to do so. The plaintiff will not object to this. There is no prejudice to Amaca.

• Thirdly, a hearing date has not been set in this case. No adjournment is necessary. No costs have been thrown away. All of the preparation that the parties have already engaged in, including medical examinations, the issuing of subpoenas, the exchange of particulars and medical/expert reports, has not been wasted. It will have been wasted if the plaintiff discontinues these proceedings and starts new proceedings. The Worker’s Compensation Default Insurer Fund is already a party to the proceedings and, sensibly, does not oppose the orders sought in the Motion.

• Fourthly, the plaintiff does not accept Amaca’s criticism of the difference in his exposure histories. The plaintiff has said that his Form 1 was incorrect and incomplete. It is not apparent what other explanation is required. In any event, Amaca retains its ability to test the plaintiff’s history by cross-examining him at any hearing. Its position is not prejudiced by the Tribunal making the order sought by the plaintiff.

• Fifthly, there is nothing in the Dust Diseases Tribunal Regulation that precludes the Tribunal from making the order. There is nothing in the CRP that binds the plaintiff to the version of the Statement of Claim the process was commenced with or concluded. The Tribunal has the power to case manage these proceedings in the ordinary way.

• Sixthly, there is nothing particularly unusual in the circumstances of this application. One of the problems which commonly arises in cases before the Tribunal, when plaintiffs are attempting to remember work and exposure history spanning decades, is that mistakes will be made. History given at any point in time might be found to be inaccurate and then corrected. This is particularly so when plaintiffs might be subjected to questions about their history from multiple persons. Things will be missed, forgotten and/or subsequently remembered. The difference between the history set out in the Form 1 and that recorded by Associate Professor McKenzie (which history is consistent with the pleading set out in the proposed Further Amended Statement of Claim) is a good example of this well-known phenomenon.

25. Amaca says that any amendments to the Statement of Claim should not be allowed for the following reasons:

• the application has been made nine months after the filing of the Statement of Claim;

• there has already been one amendment to the Statement of Claim;

• the Amended Statement of Claim was a document relied upon by the parties for the purposes of obtaining expert evidence and the production of a Reply and the matter proceeding through the mandatory CRP which process is now exhausted;

• there is no explanation from the plaintiff as to why he proposes to give a different account of his exposure to asbestos dust and fibre in circumstances where he has already sworn to all aspects of that exposure;

• there does not appear to be any scope to return the matter through the CRP;

• the addition of the party creates uncertainty as to the effect of the binding agreement in place between the existing defendants as to apportionment and the contributions assessment determination;

• the basis upon which the amendment is being made includes the obtaining of a further report from a second respiratory physician in the proceedings on behalf of the plaintiff in circumstances where that doctor, Professor Bryant, does not appear to have consulted with the plaintiff;

• what steps should take place in respect of these proceedings going forward is unclear, the status of the agreement as to the parties regarding the issues in the proceedings is unclear;

• the status of the expert evidence already obtained in these proceedings is unclear. It is fairly obvious that Associate Professor McKenzie will have to prepare a further report or a replacement report on the hypotheses as to the plaintiff’s exposure to asbestos dust and fibre;

• While leave would ordinarily be granted to have a matter determined in accordance with the real issues in the proceedings, this would not be in circumstances where there was irreparable prejudice to the parties i.e. which cannot be cured by an order for costs;

• It is submitted that a reading of Regulations 40 and 67 of the Dust Diseases Tribunal Regulation 2019 makes it clear that there is no opportunity for the Tribunal to return the matter to a further contributions assessment or mediation and the contribution agreement between the active defendants may be sought to be set aside by one party thereby potentially reactivating the binding effect of the original contributions assessment. How that would work in circumstances where there is a further party added in the proceedings is not clear;

• It is submitted that in those circumstances, the proper course is, where the effective operation of the CRP has been frustrated by the actions of the plaintiff which are by no means adequately and directly explained, for the present proceedings to be discontinued on application by the plaintiff if he so chooses. It is a matter for the plaintiff to make such an application if he chooses but the present application should be dismissed because of that irredeemable prejudice which would be caused; and

• It is probable that given that the case will really have to start again with the addition of a party with experts to be re-briefed with a new history, the plaintiff would be paying the costs of the proceedings to date in any event.

Discussion

26. I note that the defendant asserts that the most appropriate course of action is for the plaintiff to discontinue these proceedings and to start again. That submission may or may not be correct, but I cannot order the plaintiff to do so. The plaintiff has declined that invitation from the defendant.

27. Further, there is some merit to the submission that if the plaintiff was so ordered, additional costs would be occasioned, or costs already incurred would be wasted. In saying that, I am mindful of the first defendant’s submission that the amendment sought would create irreparable prejudice to the defendant, that cannot be cured by an order for costs.

28. Nonetheless, in my view to not allow the amendment would not do justice between all the parties, not just the parties to this interlocutory application. To refuse the amendment would create a situation where the matters to be determined by the Tribunal would not be the real issues between all the parties.

29. This would also fall foul of ss 56–59 of the Civil Procedure Act 2005 (NSW), and in particular s 56 which provides:

“S.56 Overriding purpose

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.”

30. The manner in which this matter has been prepared by the solicitor for the plaintiff has caused some difficulties. However, preparation of cases involving historical evidence is always difficult, particularly when dealing with an elderly, sick gentleman whose memory of events occurring some 40 odd years ago is always troublesome.

30. I am also mindful of the defendant’s submissions as to what are the next steps in the proceedings. I do not have the power to order a further CAD or a Mediation. That in itself is troublesome. However, I note that the defendants were able to come to an agreement as to a variation of the apportionment provided by the Contributions Assessor, and I am ever hopeful that the same sensible approach can be adopted at this point of the proceedings.

31. Further, the third defendant has already indicated that it will take over the proceedings for the liability of the proposed new defendant, which is very helpful for the proceedings moving forward.

32. I note with regard to the question of costs that may or may not be expended, may be the subject of a costs order by the Tribunal. The scope for a costs order for those expenses that may, although I expect will, be occasioned by the amendment have not yet been incurred. I cannot make any order for any party to pay future costs, and as such that would be a question for the trial judge. Without binding the trial judge, it would appear that with regard to the costs associated with this motion, they ought be paid by the plaintiff. To that end I will place a copy of this judgment on the Tribunal file.

33. In terms of the next steps to be taken, I will case manage this matter through whatever procedural steps need to be taken and will list the matter before me for directions.

ORDERS

35. I make the following orders:

1. I make an order in accordance with prayer 1 of the Notice of Motion filed 2 October 2022.

2. Costs of the Motion are reserved.

3. Listed for further directions before me on 30 January 2023.

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Decision last updated: 07 December 2022