Sultana v Vumbaca

[2010] NSWDDT 17

Dust Diseases Tribunal

of New South Wales

CITATION:	Sultana v Vumbaca [2010] NSWDDT 17
PARTIES:	Antoinette Sultana (Applicant) Aldo Vumbaca (Respondent)
MATTER NUMBER(S):	X006 of 2010
JUDGMENT OF:	O'Meally P
CATCHWORDS:	DUST DISEASES TRIBUNAL :- summons for order to inspect property and take sample of material - identity of manufacturer not known - efforts to identify manufacturer unsuccessful - order for inspection of property and taking samples made
LEGISLATION CITED:	Dust Diseases Tribunal Act 1989 Uniform Civil Proceedure Act 2005 Uniform Civil Proceedure Rules 2005 Justices Act 1921-1975 (S.A.) Evidence Act 1995
CASES CITED:	Plenty v Dillon and Ors (1991) 171 CLR 635 Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231
DATES OF HEARING:	5 December 2010, 8 December 2010
DATE OF JUDGMENT:	8 December 2010
EX TEMPORE JUDGMENT DATE:	8 December 2010
LEGAL REPRESENTATIVES:	S Tzouganatos instructed by Turner Freeman appeared for the Applicant J Dupree instructed by Russo & Partners appeared for the Respondent

JUDGMENT:

RULING

O'MEALLY P

1. This is a summons by Antoinette Sultana seeking orders that she be granted access to premises located at 31B Hezlett Road, Kellyville. She seeks that Mr Warwick Gazzard and a legal practitioner attend the premises for the purpose of inspecting the property, taking samples of asbestos cement sheeting, and taking photographs of the sheeting. Mr Gazzard is qualified to analyse asbestos containing material. The application has been strenuously resisted.

2. On 3 May 2010, the applicant issued a statement of claim naming Amaca Pty Ltd (Amaca) as defendant and alleging that in the course of renovations to the named premises, when she resided there as a child, she was exposed to asbestos dust and fibre as a consequence of which she has contracted malignant mesothelioma. An amended statement of claim was filed on 4 January 2010. It contained no presently relevant addition. Neither Statement of Claim has been served. At the present time it is not known whether James Hardie & Coy Pty Ltd, in whose shoes Amaca now stands, was the manufacturer of the asbestos product used in the course of the renovation. There is, however, a suspicion that it was.

3. Proceedings were commenced in order to obtain the benefit of S 12B of the Dust Diseases Tribunal Act, 1989 if future circumstances warranted it. Inquires made by the applicant’s solicitors so far have not revealed the manufacturer of the asbestos product used on the house. Requests to the respondent, the owner of the premises, to inspect them and take samples have met with refusal.

4. Experience confirms that those who suffer mesothelioma have a limited life expectancy and that their condition may change with little or no warning. There is thus a degree of urgency in this application.

5. The application is based on rr 5.2 and 23.8 of the Uniform Civil Procedure Rules 2005. Rule 23.8 relates to the inspection of property. It authorises the Court to make an order for the inspection of a property, the taking of samples, the making of observation and various other matters which are irrelevant to the present application. So far as is relevant, r 23.8 provides:

(1) For the purpose of enabling the proper determination of any matter in question in any proceedings, the court may make orders for any of the following:

(a) the inspection of any property,

(b) the taking of samples of any property,

(c) the making of any observation of any property,

(d) …,

(e) …

(2) An order under subrule (1) may authorise any person to enter any land, or to do any other thing, for the purpose of getting access to the property.

(3) …

(4) The court is not to make an order under this rule unless it is satisfied that sufficient relief is not available under section 169 of the Evidence Act 1995.

(5) This rule extends to proceedings on an application for an order under Part 5 (Preliminary discovery and inspection).

(6) In this rule, property includes any land and any document or other chattel, whether in the ownership or possession of a party or not.

6. The basis upon which the application is made is that the plaintiff is unable to identify the manufacturer of the asbestos cement sheeting which she alleges was the source of asbestos dust and fibre to which she was exposed unless an inspection is carried out and a sample taken. These, it is hoped, would enable the product to be identified and its composition ascertained. It is hoped they will identify the manufacturer.

7. Applications of this sort are not infrequent, and in 21 years of presiding over cases in the Tribunal, this is the first occasion in which such an application has been resisted, and in my view, unreasonably so.

8. There are several bases upon which the application has been resisted and in my view, none is with merit.

9. The first, if I understand Mr Dupree's submission, is the applicant has not “established a Section 11 claim whereby the Dust Diseases Tribunal has the necessary jurisdiction”. The second is that r 5.2 does not authorise entry onto land and the taking of property. He says, also, neither does r 23.8. He says that the Civil Procedure Act 2005 (the Act) applies only to civil proceedings. Undoubtedly that is correct, but he says there is no civil proceeding to which the Act can apply. The definition of civil proceeding in the Act is wide enough to include an application of the sort now made.

10. As to the submission that the applicant has not established a S 11 claim, it is sufficient to observe that the Tribunal has jurisdiction to entertain actions for damages for injury caused by negligent exposure to asbestos. It is not necessary to engage the Tribunal’s jurisdiction that every necessary fact and circumstance first be established

11. Mr Dupree bases his argument principally on the decision of the High Court of Australia in Plenty v Dillon and Ors (1991) 171 CLR 635. That was a case which concerned the entry of police constables onto the property of a man for the purpose of serving a summons under the Justices Act 1921-1975 (S.A.) upon his daughter. The High Court held that their entry was not permitted and in the circumstances of the case, it constituted a trespass. There is, in the judgments of the Justices, an interesting collection of citations and quoted passages from old cases. None, however, is apposite to the present case which concerns an entirely different factual and legal matrix.

12. I was also referred to Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231. I am unable to see how that case is relevant to this application.

13. Mr Dupree has submitted also, at least as I understand his argument, that application should have been made under ss 167 and 169 of the Evidence Act 1995 and, because none was, the applicant is not entitled to the orders she seeks. In my view, that submission is without merit. Those sections plainly relate to applications inter partes. The current application is for the inspection of property which belongs to a stranger.

14. I have been informed, and it is not in dispute, that the premises owned by the respondent are tenanted, but that the tenant is to vacate the premises on 30 January 2011. The plaintiff, through her counsel, has assented to the inspection taking place after that date. It is thus not necessary that the tenant be served with notice of this application.

15. I intend to make the order granting access for the purpose of inspecting the property and taking a sample from the fibro sheeting. The plaintiff may then be in a position to proceed against the manufacturer of asbestos material used on the premises. The order should also include an indemnity by the plaintiff for any irreparable damage or to make good any damage that might occur in the process; I say again, experience demonstrates that it is highly unlikely that damage will occur.

16. The orders as drafted by counsel are:

1. The plaintiff/applicant, her solicitor and Mr Warwick Gazzard are granted access to the property and house at 31B Hezlett Road, Kellyville, New South Wales no later than 7 February 2011 and no earlier than 30 January 2011 at a mutually convenient time.

2. The access referred to in (1) above is to include:

(a) inspection of the property and house;

(b) taking samples from asbestos cement/fibro sheeting from the property and house;

(c) taking photographs of the property and house.

3. The plaintiff/applicant is to indemnify the respondent in respect of any irreparable damage to the property and house.

4. The respondent is to pay the plaintiff/applicant's costs of and incidental to this summons as agreed or assessed.

5. Liberty to apply.

Mr S Tzouganatos instructed by Turner Freeman appeared for the Applicant

Mr J Dupree instructed by Russo & Partners appeared for the Respondent