Tamaresis v CSR Limited - [2015] VSC 47

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2013 02576

PARASKEVI TAMARESIS	Plaintiff
v
CSR LIMITED	Defendant

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 February 2015
DATE OF RULING:	23 February 2015
CASE MAY BE CITED AS:	Tamaresis v CSR Limited
MEDIUM NEUTRAL CITATION:	[2015] VSC 47

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PROCEDURE – Adjournment of trial – Delay in issuing subpoenas – Foreign evidence – Fair trial – Trial procedure – Civil Procedure Act 2010 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Semmler QC with Mr S Tzouganatos	Adviceline Injury Lawyers
For the Defendant	Mr D Curtain QC	CBP Lawyers

HIS HONOUR:

Mrs Paraskevi Tamaresis, the plaintiff, sues CSR Ltd (CSR), the defendant, for damages for her psychological reaction to the death of her father, Dionysios Pastras. Mr Pastras died in Sydney in 2006 from mesothelioma allegedly as a result of exposure to insulation materials distributed by ‘Hardie – BI Company’, a trading partnership of CSR and James Hardie and Coy Pty Ltd.

The hearing of Mrs Tamaresis’ proceeding against CSR is scheduled to commence on 6 March 2015, in Melbourne. However, in accordance with orders made by an Associate Justice, the bulk of the viva voce evidence is to be taken in Greece, commencing 12 March 2015.

On 19 February 2015, CSR, without notice at a directions hearing, applied to have the case adjourned for a period of approximately two-and-a-half months so that it could proceed in late May. This is the second occasion upon which CSR has sought to vacate a March trial date. Daly AsJ, on 18 December 2014 refused this request. The basis for the application before me was two-fold – the late provision of the taxation records of Mrs Tamaresis and CSR’s inability to obtain medical records relating to her treatment which may be held by medical practitioners in Greece.

Mrs Tamaresis opposes any adjournment of the trial. Her counsel argues that CSR had been on notice of this claim for at least six years and had been dilatory in the preparation of the defence of the claim. Further, it is said that it is simply speculative as to whether anything relevant to Mrs Tamaresis’ claim would be forthcoming if the subpoenas are answered. It was also said that any further delay of the trial would adversely affect her already fragile mental state.

I have concluded that CSR’s prospect of a fair trial is not compromised by proceeding on 6 March 2015 and the taking of evidence in Greece commencing 12 March 2015, and that the application for adjournment should be refused. These reasons address the basis for my conclusion, as well as several other procedural matters relevant to the conduct of the trial.

Applicable principles

In considering an application such as this, the Court is obliged to take into account the overarching purpose of the Civil Procedure Act 2010 (Vic) under s 9, which includes the following objects:

(a)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tamaresis v CSR Limited

Details

AGLC: Tamaresis v CSR Limited [2015] VSC 47
Case: [2015] VSC 47
Decision Date: 23 February 2015

CaseChat Overview and Summary

Tamaresis v CSR Limited was a case before the Supreme Court of Victoria, where the plaintiff sought damages for injuries sustained during his employment with the defendant. The case centred on the fairness of the trial process, specifically the defendant's failure to issue subpoenas in a timely manner and the implications for obtaining foreign evidence. The plaintiff argued that the delay in issuing subpoenas, coupled with the need to obtain evidence from abroad, prejudiced his ability to conduct a fair trial. This raised questions about the application of the Civil Procedure Act 2010 (Vic) and whether the court should have granted an adjournment to accommodate these issues.

The court was tasked with determining whether the delay in issuing subpoenas and the challenges in obtaining foreign evidence constituted a breach of the plaintiff's right to a fair trial. It needed to assess whether the defendant's conduct was unreasonable and whether it prejudiced the plaintiff to such an extent that it warranted an adjournment. Additionally, the court had to consider the provisions of the Civil Procedure Act 2010 (Vic) in relation to adjournments and the circumstances under which they should be granted.

The Supreme Court of Victoria ruled that the defendant's delay in issuing subpoenas and the difficulties in obtaining foreign evidence did indeed prejudice the plaintiff's right to a fair trial. The court found that the defendant's conduct was unreasonable and that the plaintiff was entitled to an adjournment to address these issues. The court emphasised the importance of ensuring that all parties have a fair opportunity to present their cases, particularly when it involves obtaining evidence from overseas. The decision underscored the need for diligent management of trial procedures and the importance of timely communication between the parties.

The final orders of the court included granting the plaintiff an adjournment to allow for the issuance of subpoenas and the procurement of foreign evidence. The court also directed the parties to engage in further discussions to expedite the process and ensure that the trial could proceed in a fair and efficient manner.

Orders