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Weber v Wollongong Coal

Weber v Wollongong Coal

Case [2022] NSWDDT 3 17 August 2022

Discovery & Disclosure

Dust Diseases

Civil Litigation & Procedure

Environmental Law

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Dust Diseases Tribunal

New South Wales

Medium Neutral Citation: Weber V Wollongong Coal & Ors [2022] NSWDDT 3
Hearing dates: 21 July 2022
Date of orders: 17 August 2022
Decision date: 17 August 2022
Before: Strathdee J
Decision:
(1) Pursuant to Part 21 of the Uniform Civil Procedure Rules 2005 and Rule 4 of the Dust Diseases Tribunal Rules 2019, the first defendant to provide verified discovery of the classes of documents as set out in Annexure A to the Notice of Motion filed 6 July 2022, but limited to the period 28 February 1996 and 28 February 2019, within 28 days of this date.
(2) Pursuant to Part 21 of the Uniform Civil Procedure Rules 2005 and Rule 4 of the Dust Diseases Tribunal Rules 2019, the third defendant to provide verified discovery of the classes of documents as set out in Annexure C to the Notice of Motion filed 6 July 2022, within 28 days of this date.
(3) Pursuant to Part 21 of the Uniform Civil Procedure Rules 2005 and Rule 4 of the Dust Diseases Tribunal Rules 2019, the fourth defendant to provide verified discovery of the classes of documents as set out in paragraphs 7 to 10 of Annexure D to the Notice of Motion filed 6 July 2022, within 28 days of this date.
(4)   The first, third and fourth defendants are to pay the plaintiff’s costs of the Motion.
(5)   Matter listed part-heard before me for further directions at 10 am on 19 September 2022.
(6)   If the parties seek an alternate costs order, I ask that my Associate be notified within 21 days of this date.

Catchwords:
PROCEDURE – discovery – where all issues in the proceedings are in dispute – use of a subpoena – whether discovery is necessary – whether exceptional circumstances warrant discovery before service of evidence – whether documents sought are relevant in the resolution of the real issues in the proceedings – whether categories are oppressive – order for discovery granted
DUST DISEASES – Dust Diseases Tribunal – discovery – facts in issue in the proceedings

Legislation Cited:
Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW)
Civil Procedure Act 2005 (NSW)
Dust Diseases Tribunal Act 1989 (NSW)
Dust Diseases Tribunal Rules 2019 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Bulga Coal Management Pty Ltd v Hope Wines Group Pty Ltd [2020] NSWSC 1783
Commonwealth Bank of Australia v Goater [2016] NSWSC 710
Hunter New England Local Health District v Munters Pty Limited [2018] NSWSC 788
ICAP Pty Ltd v Moebes [2009] NSWSC 306
Metal Storm Limited (subject to a deed of company arrangement) ACN 064 270 006 [2016] NSWSC 306
Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264

Category: Procedural rulings
Parties: Mark David Weber (Plaintiff)
Wollongong Coal Limited (First Defendant)
WDS (Mining) Pty Ltd (Second Defendant
CAS Mine Services Pty Ltd (Third Defendant)
Coal Mines Insurance Pty Ltd (Fourth Defendant)
QBE Insurance (Australia) Ltd (Fifth Defendant)
Representation:
Counsel:
Mr…

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 Weber v Wollongong Coal

Details

AGLC: Weber v Wollongong Coal [2022] NSWDDT 3
Case: [2022] NSWDDT 3
Decision Date: 17 August 2022

CaseChat Overview and Summary

The plaintiff, Weber, filed an application for discovery against Wollongong Coal and three other defendants, seeking access to certain documents in relation to a dust disease claim. The case was heard by a member of the Dust Diseases Tribunal. The application was brought under Part 21 of the Uniform Civil Procedure Rules 2005 and Rule 4 of the Dust Diseases Tribunal Rules 2019. The defendants opposed the application, arguing that discovery was not necessary due to all issues in the proceedings being in dispute and that the categories of documents sought were oppressive.

The primary legal issue for the court was whether exceptional circumstances warranted discovery before the service of evidence, and if the documents sought were relevant to resolving the real issues in the proceedings. The court considered the nature of the proceedings, the necessity of the documents for the resolution of the case, and whether the categories of documents were oppressive. In assessing these matters, the court took into account the Dust Diseases Tribunal's purpose to provide a fair and efficient process for claimants with dust diseases and the importance of transparency and access to relevant information in achieving just outcomes.

The court found that exceptional circumstances did warrant the granting of discovery before the service of evidence, and the categories of documents were not oppressive. The court also determined that the documents sought were relevant in the resolution of the real issues in the proceedings. As such, the court granted the plaintiff's application for discovery and ordered the defendants to provide verified discovery of the specified classes of documents within 28 days. Additionally, the court ordered the defendants to pay the plaintiff's costs of the motion and scheduled a further directions hearing for 10 am on 19 September 2022. The court also requested notification within 21 days of the date if the parties sought an alternate costs order.

Orders

Orders of the court

(1) Pursuant to Part 21 of the Uniform Civil Procedure Rules 2005 and Rule 4 of the Dust Diseases Tribunal Rules 2019, the first defendant to provide verified discovery of the classes of documents as set out in Annexure A to the Notice of Motion filed 6 July 2022, but limited to the period 28 February 1996 and 28 February 2019, within 28 days of this date.

(2) Pursuant to Part 21 of the Uniform Civil Procedure Rules 2005 and Rule 4 of the Dust Diseases Tribunal Rules 2019, the third defendant to provide verified discovery of the classes of documents as set out in Annexure C to the Notice of Motion filed 6 July 2022, within 28 days of this date.

(3) Pursuant to Part 21 of the Uniform Civil Procedure Rules 2005 and Rule 4 of the Dust Diseases Tribunal Rules 2019, the fourth defendant to provide verified discovery of the classes of documents as set out in paragraphs 7 to 10 of Annexure D to the Notice of Motion filed 6 July 2022, within 28 days of this date.

(4) The first, third and fourth defendants are to pay the plaintiff’s costs of the Motion.

(5) Matter listed part-heard before me for further directions at 10 am on 19 September 2022.

(6) If the parties seek an alternate costs order, I ask that my Associate be notified within 21 days of this date.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Weber v Wollongong Coal [2022] NSWDDT 3

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 15 of 15 shown

Bulga Coal Management Pty Ltd v Hope Wine Group Pty Ltd
[2020] NSWSC 1783 Para 26

…The issue was discussed in Bulga Coal Management Pty Ltd v Hope Wines Group Pty Ltd [2020] NSWSC 1783, a decision of Ward CJ in EQ delivered on 10 December 2021 where her Honour stated as follows at [29]:…
Hunter New England Local Health District v Munters Pty Limited
[2018] NSWSC 788 Para 21

…The relevant applicable legal principals were summarised by Bellew J in Hunter New England Local Health District v Munters Pty Limited [2018] NSWSC 788 at [19]:…
In the matter of Felan's Fisheries Pty Ltd
[2017] NSWSC 1262

…f the proceedings, and where its legitimate purposes include to obtain evidence and to avoid surprise: In the matter of Felan’s Fisheries Pty Ltd [2017] NSWSC 1262; (vi) discovery involves an “inroad”, in the interests of justice, upon the right of the individual to keep his own documents to himself: Expense Reducti…
Commonwealth Bank of Australia v Goater
[2016] NSWSC 710 Para 25

…The principles were further considered in Commonwealth Bank of Australia v Goater [2016] NSWSC 710, a decision of Justice Adamson delivered on 3 June 2016 at [31]:…
In the matter of Metal Storm Limited (subject to a deed of company arrangement) ACN 064 270 006
[2016] NSWSC 306 Para 35

…In Metal Storm Limited (subject to a deed of company arrangement) ACN 064 270 006 [2016] NSWSC 306, Brereton J stated as follows:…
Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd
[2014] NSWSC 1326 Para 22

…st be apparent that the class so described will capture only documents that are so relevant: Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326 at [22]; (ii) the facts in issue will be primarily identified by an examination of the pleadings: Schlam v WA Trustee Executor & Agency Co Ltd [1964] W…
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd
[2013] HCA 46

…own documents to himself: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46, citing Harman v Home Department State Secretary [1983] 1 AC 280; [1982] 2 WLR 338; (vii) the discretion conferred by r 21.2 must be exercised having regard…
Palavi v Radio 2UE Sydney Pty Ltd
[2011] NSWCA 264 Para 24

…In Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264, in a decision delivered on 8 September 2011, President Allsop as he then was made the following observations:…
Con Ange v Fairfax Media Publications Pty Ltd
[2010] NSWSC 1200

…overy, or control the process of giving discovery, so that it does not become unduly onerous: Con Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1200; (ix) there is no entitlement to “chain of enquiry” discovery. If the process of discovery is abusive, or compliance with an order too onerous, the court can (…
ICAP Pty Ltd v Moebes
[2009] NSWSC 306 Para 27

…This is further discussed by her Honour at [81] and [82] where her Honour quotes a decision of Nicholas J in ICAP Pty Ltd v Moebes [2009] NSWSC 306 at [30]:…
Mulley v Manifold
[1959] HCA 23

…y identified by an examination of the pleadings: Schlam v WA Trustee Executor & Agency Co Ltd [1964] WAR 178; Mulley v Manifold (1959) 103 CLR 341; [1959] HCA 23; (iii) for the purposes of discovery, a document need not be admissible, and need not be directly probative of the existence of the fact in issue, to b…
[1983] 1 AC 280
[1983] 1 AC 280

…Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46, citing Harman v Home Department State Secretary [1983] 1 AC 280; [1982] 2 WLR 338; (vii) the discretion conferred by r 21.2 must be exercised having regard to the provisions of ss 56-60 of the Civil Procedure Act 2005 (NS…
[1982] 2 WLR 338
[1982] 2 WLR 338

…trategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46, citing Harman v Home Department State Secretary [1983] 1 AC 280; [1982] 2 WLR 338; (vii) the discretion conferred by r 21.2 must be exercised having regard to the provisions of ss 56-60 of the Civil Procedure Act 2005 (NSW). In this regard…
Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co
(1882) 11 QB 55

…a fact in issue is to be determined by its capacity to rationally affect the assessment of the probability of the existence of the contentiousfact: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 52 LJQB 181; (v) discovery will be ordered only where it is reasonably required for the fair disposition of the proceedings, and where its legitimate p…
Hutchinson v Glover
(1875) 1 QBD 138

…he fact in issue, to be relevant. It follows that in a general sense, the test for discovery under the rule is relatively wide: Hutchinson v Glover (1875) 1 QBD 138; (iv) the relevance of a document to a fact in issue is to be determined by its capacity to rationally affect the assessment of the probability of the…

Legislation cited in this decision · 5

Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW)
1 mention (from Para 1)
Civil Procedure Act 2005 (NSW)
1 mention (from Para 7)
Dust Diseases Tribunal Act 1989 (NSW)
1 mention (from Para 5)
Dust Diseases Tribunal Rules 2019 (NSW)
1 mention (from Para 20)
Uniform Civil Procedure Rules 2005 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Weber V Wollongong Coal & Ors [2022] NSWDDT 3
Hearing dates:	21 July 2022
Date of orders:	17 August 2022
Decision date:	17 August 2022
Before:	Strathdee J
Decision:	(1) Pursuant to Part 21 of the Uniform Civil Procedure Rules 2005 and Rule 4 of the Dust Diseases Tribunal Rules 2019, the first defendant to provide verified discovery of the classes of documents as set out in Annexure A to the Notice of Motion filed 6 July 2022, but limited to the period 28 February 1996 and 28 February 2019, within 28 days of this date. (2) Pursuant to Part 21 of the Uniform Civil Procedure Rules 2005 and Rule 4 of the Dust Diseases Tribunal Rules 2019, the third defendant to provide verified discovery of the classes of documents as set out in Annexure C to the Notice of Motion filed 6 July 2022, within 28 days of this date. (3) Pursuant to Part 21 of the Uniform Civil Procedure Rules 2005 and Rule 4 of the Dust Diseases Tribunal Rules 2019, the fourth defendant to provide verified discovery of the classes of documents as set out in paragraphs 7 to 10 of Annexure D to the Notice of Motion filed 6 July 2022, within 28 days of this date. (4) The first, third and fourth defendants are to pay the plaintiff’s costs of the Motion. (5) Matter listed part-heard before me for further directions at 10 am on 19 September 2022. (6) If the parties seek an alternate costs order, I ask that my Associate be notified within 21 days of this date.
Catchwords:	PROCEDURE – discovery – where all issues in the proceedings are in dispute – use of a subpoena – whether discovery is necessary – whether exceptional circumstances warrant discovery before service of evidence – whether documents sought are relevant in the resolution of the real issues in the proceedings – whether categories are oppressive – order for discovery granted DUST DISEASES – Dust Diseases Tribunal – discovery – facts in issue in the proceedings
Legislation Cited:	Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) Civil Procedure Act 2005 (NSW) Dust Diseases Tribunal Act 1989 (NSW) Dust Diseases Tribunal Rules 2019 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Bulga Coal Management Pty Ltd v Hope Wines Group Pty Ltd [2020] NSWSC 1783 Commonwealth Bank of Australia v Goater [2016] NSWSC 710 Hunter New England Local Health District v Munters Pty Limited [2018] NSWSC 788 ICAP Pty Ltd v Moebes [2009] NSWSC 306 Metal Storm Limited (subject to a deed of company arrangement) ACN 064 270 006 [2016] NSWSC 306 Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264
Category:	Procedural rulings
Parties:	Mark David Weber (Plaintiff) Wollongong Coal Limited (First Defendant) WDS (Mining) Pty Ltd (Second Defendant CAS Mine Services Pty Ltd (Third Defendant) Coal Mines Insurance Pty Ltd (Fourth Defendant) QBE Insurance (Australia) Ltd (Fifth Defendant)
Representation:	Counsel: Mr…