Woodford v Bluescope Steel (AIS) P/L

[2007] NSWDDT 16

Dust Diseases Tribunal

of New South Wales

CITATION:	Woodford v Bluescope Steel [2007] NSWDDT 16
PARTIES:	Colin Woodford (Plaintiff) Bluescope Steel (AIS) P/L
MATTER NUMBER(S):	6145 of 2006
JUDGMENT OF:	O'Meally P
CATCHWORDS:	Dust Diseases Tribunal :- Notice of Motion Insufficient particulars of costs of care Mediation failed Dust Diseases Tribunal Regulation clauses 29 46(3) and 67 - costs order may be made only after successful party identified
LEGISLATION CITED:	Dust Diseases Tribunal Regulation 2007
DATES OF HEARING:	31 July 2007
DATE OF JUDGMENT:	31 July 2007
EX TEMPORE JUDGMENT DATE:	31 July 2007
LEGAL REPRESENTATIVES:	Mr D J R Toomey instructed by Russell McLelland Brown Lawyers, appeared for the Plaintiff Mr T M Rowles instructed by Sparke Helmore, appeared for the Defendant

JUDGMENT:

RULING

O'MEALLY P

1 On 14 June 2006 Colin Woodford issued a statement of claim against Australian Iron and Steel Pty Ltd alleging that in the course of his employment by the defendant he was exposed to and inhaled asbestos dust and fibre as a consequence of which he has developed asbestos related pleural disease. He alleges that the exposure was negligent and also in breach of the defendant’s statutory duty.

2 In accordance with the provisions of the Dust Diseases Regulation 2005, which was replaced by the Dust Diseases Tribunal Regulation 2007, the plaintiff's claim was referred to a mediator for compulsory mediation.

3 It is appropriate to note that in his statement of claim the plaintiff sought damages for past and future domestic assistance. Such claims were, however, expressed in the vaguest of terms. Paragraph 13 of the statement of claim is:

13. The Plaintiff claims that he has required domestic assistance and will provide particulars of this in due course.

4 Paragraph 14 is:

14. The Plaintiff claims, and the fact is, that he will continue to need domestic assistance in the form of housekeeping, nursing and handyman assistance for the rest of his life, particulars of which will be supplied in due course.

5 When the matter went to mediation the mediation failed because, inter alia, of the plaintiff’s failure to provide particulars of the costs of future care and assistance as required by the regulation.

6 On 12 June 2007 the plaintiff filed, without leave, an amended statement of claim which did two things. First, it substituted Bluescope Steel (AIS) Pty Ltd as defendant in place of Australian Iron and Steel Pty Ltd. It also purported to amend pars 13 and 14 of the statement of claim. Relevantly, par 13 is in these terms:

13. The Plaintiff makes a claim for domestic assistance on a voluntary basis being provided by his wife and other family members for two hours per day since January 2002. The nature of the services provided is gardening, painting, cleaning, washing the cars, pruning, sweeping, weeding, turning sand.

7 Paragraph 14 is in these terms:

14. The Plaintiff claims, and the fact is, that he will continue to need domestic assistance in the form of housekeeping, nursing and handyman assistance for the rest of his life at two hours per day.

8 On 4 June 2007 leave had been given to the plaintiff to file an amended statement of claim within seven days and the case was stood over until 12 June 2007, upon which day a date for hearing was to be fixed. An amended statement of claim was not filed within seven days.

9 When the matter came before me on 12 June 2007, I stood it over until 14 June. On 14 June 2007 the order I made was this:

I order the plaintiff, if so advised, to file a notice of motion and supporting affidavit seeking leave to rely upon an amended statement of claim not later than 16 July 2007. Notice of motion, if filed, for hearing 31 July 2007.

10 An amended statement of claim was filed without leave later in the day on 12 June 2007. Relevantly, it contained the material which I have quoted.

11 It has been conceded by counsel for the plaintiff that the notice of motion filed on 12 July 2007, that is the notice of motion with which I am now dealing, does not relate to the matters which were under consideration on 14 June 2007, and should be dismissed. However, what has exercised the consideration of the parties this morning is the basis upon which the plaintiff should be permitted to pursue his claim for the costs of care and what costs order should be made. Embraced within the latter consideration is the time at which such an order should be made.

12 Relevantly, cl 29 of the Dust Diseases Regulation 2007, the material parts of which were in force by reason of the Dust Diseases Tribunal Regulation 2005, provides as follows:

(1) After serving the party’s statement of particulars or reply on a claim, the party to a claim may only change the facts on which the party relies (whether by way of addition, deletion or correction) if the change is due to: [certain items which are set out and are not relevant to this application] .
(2) ...

(3) ...

(4) ...
(5) This clause does not prevent a party changing the facts on which the party relies but any change that is not authorised by this clause constitutes a contravention of this clause for the purposes of clause 67. (Costs penalties).

13 Clause 67 of the regulation deals with cost penalties and imposes upon the Tribunal an obligation to take into account a failure by a party to proceedings to comply with the provision within which it appears.3

14 Clause 46(3) leaves the Tribunal with power:

to include costs of mediation in an award of costs to a party that is successful before the Tribunal, but the Tribunal may decline to include costs of mediation in an award of costs if it is satisfied that the party in whose favour the award is to be made did not participate in good faith in the mediation.

15 In view of what I have been informed by counsel, and taking into account the concessions made, that is that no particulars were provided by the plaintiff in respect of his Griffiths v Kerkemeyer claim, it appears to me prima facie that that will be a matter to be taken into consideration on the making of any order relating to the costs of the mediation. The question exercising my mind, however, is whether, at this stage of the proceedings, the Tribunal is authorised to make such an order. None has been sought by the notice of motion and as previously noted, the orders sought in the notice of motion were inappropriate.

16 When Clause 46(3) speaks of "an award of costs to the party that is successful before the Tribunal” it seems to me that those words require that the Tribunal first determine the outcome of the proceedings. Only in that way is the Tribunal able to identify a successful party. That has not been done, and whilst, on the face of it, it seems that the plaintiff should bear the costs of the mediation, it may also be that other factors led to the failure of the mediation or its lack of success, which will relieve him of that burden. If there is to be an order for costs made in respect of the unsuccessful mediation it should wait until the proceedings are concluded.

17 The notice of motion filed 12 July 2007 is dismissed.

18 The plaintiff is to pay the defendant's costs of this motion as agreed or assessed.

19 I grant leave to the plaintiff to proceed on the amended statement of claim filed 12 June 2007.

Mr D R J Toomey instructed by Russell McLelland Brown Lawyers appeared for the Plaintiff

Mr T M Rowles instructed by Sparke Helmore appeared for the Defendant