Wood v Merck Sharp & Dohme (Australia) Pty Ltd - [2000] NSWDDT 8

CITATION: Frederick W Wood v Merck Sharp & Dohme (Australia) Pty Ltd [2000] NSWDDT 8

PARTIES: Frederick W Wood

Merck Sharp & Dohme (Australia) Pty Ltd

TITLE OF COURT: Dust Diseases Tribunal of New South Wales

JURISDICTION: Original

MATTER NO/S: 49 of 1999

DELIVERED ON: 27 June 2000

DELIVERED AT: Sydney

HEARING DATES: 27 June 2000

JUDGMENT OF: O'Meally P

NUMBER OF PARAGRAPHS: 22

CATCHWORDS: Dust Diseases Proceedings - plaintiff residing abroad - application for Security for Costs - Foreign Judgments (Reciprocal Enforcement) Act 1933 (Imp) - Order in Council recognising certain Australian Courts - Dust Diseases Tribunal not named in Order in Council - Dust Diseases Tribunal Act (NSW) s 14(1)- provision for recognition of order or judgment of DDT as judgment of the Supreme Court of NSW - Supreme Court of NSW recognised by Order in Council - judgment of DDT registrable and enforceable in UK

Dust Diseases Proceedings - Plaintiff residing abroad - application for Order for Security for Costs - within discretion of court to make such order - consideration of discretionary factors - Order for Security for Costs refused

REPRESENTATION
PLAINTIFF

Mr D G Letcher, QC instructed by Turner Freeman.

DEFENDANT

Mr G M Watson instructed by Lander & Rogers.

Dust Diseases Tribunal of New South Wales

Matter No 49 of 1999

Frederick W Wood

Merck Sharp & Dohme (Australia) Pty Limited

27 June 2000

JUDGMENT
O'MEALLY P

By Notice of Motion filed 18 January 2000 the defendant, Merck Sharp & Dohme (Australia) Pty Limited, seeks, so far as now relevant, these orders:
(i)       That the plaintiff give security for the costs of the defendant of and incidental to these proceedings in the sum of $25,000.
(ii)      That these proceedings be stayed until security is given.
(iii)     That the plaintiff pay the defendant's costs of and incidental to this motion.
By Statement of Claim filed on 3 May 1999 the plaintiff, Frederick William Wood, sued the defendant alleging that in the course of his employment by the defendant he was exposed to and inhaled dust including methyldopa as a result of which he suffered injury. The plaintiff’s entitlement to damages and its negligence are disputed by the defendant.
The defendant seeks the order pursuant to Pt 53 r 2 of the Supreme Court Rules which have been adopted and apply in the Tribunal. So far as relevant Pt 53 provides:
2 (1) Where, in any proceedings, it appears to the Court on the application of a defendant—
(a) that a plaintiff is ordinarily resident outside the State;
…
the Court may order that plaintiff to give such security as the Court thinks fit for the costs of the defendant of and incidental to the proceedings and that the proceedings be stayed until the security is given.
The evidence before me discloses that the plaintiff is ordinarily resident at 45 Everton Road, Liverpool LS2EH in the United Kingdom and has been resident there since 1 April 1995. The plaintiff was resident and employed in Australia…

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.

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Details

Case: [2000] NSWDDT 8
Decision Date: 27 June 2000

CaseChat Overview and Summary

Frederick W Wood, a plaintiff, sued Merck Sharp & Dohme (Australia) Pty Ltd, the defendant, in the Dust Diseases Tribunal of New South Wales, alleging that during his employment with the defendant, he was exposed to and inhaled dust, including methyldopa, resulting in injury. The defendant denied negligence and entitlement to damages. The defendant sought an order for security for costs, arguing that the plaintiff was ordinarily resident outside the state and had no assets in Australia. The plaintiff, in response, argued that no proper basis existed for such an order and, if necessary, the order should only cover the costs of registering a potential judgment or order for costs in the United Kingdom.

The legal issues before the court were whether the Tribunal had the discretion to order security for costs and, if so, whether the discretionary factors supported making such an order. The court considered the precedent set by MacFarlan J in Demag-Lauchhammer Maschinenbau und Stahlbau GmbH v John Holland (Constructions) Pty Limited (1966) 85 WN 231, which indicated that it was within the court's discretion to order security for costs when a plaintiff was ordinarily resident outside the jurisdiction and had no assets within it. The court also examined the discretionary factors, including the plaintiff's prospects of success, the bona fides of the case, the plaintiff's impecuniosity, and the likelihood of a costs order being made against the plaintiff if they failed.

The court found that the plaintiff had a prima facie reasonable case based on the evidence of medical literature reporting a case of methyldopa-induced asthma in 1979, suggesting that the defendant should have been aware of the risk. However, the court did not find sufficient evidence to conclude that the plaintiff's impecuniosity was due to the defendant's conduct. The court also considered the plaintiff's failure to comply with previous orders and the amount of work done by his solicitors before the application was made. Given these factors and the lack of precedent for such an order in a personal injury case, the court decided not to make the order sought by the defendant. Instead, the defendant was ordered to pay the plaintiff's costs as agreed or assessed, but the court declined to order indemnity costs.

Orders