AMACA PTY LTD v EVANS & ANOR

Civil Procedure Act 2005 (NSW), LEGISLATION CITED: Dust Diseases Tribunal Act 1989 (NSW) Supreme Court Act 1970 (NSW)

CASES CITED: Batistatos v Roads & Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292

Amaca Pty Limited - Applicant/Appellant PARTIES: Keith Henry Evans - First Respondent Queanbeyan City Council - Second Respondent

D J Russell SC - Applicant COUNSEL: G F Little SC and A Guirtalis - 1st Respondent T L Sharpe and P Kerr - 2nd Respondent

DLA Phillips Fox - Applicant SOLICITORS: Denniston & Day - 1st Respondent Thompson Cooper Lawyers - 2nd Respondent

LOWER COURT JURISDICTION: Dust Diseases Tribunal of New South Wales

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40369/09

BASTEN JA HANDLEY AJA SACKVILLE AJA

Thursday 4 March 2010 AMACA PTY LIMITED v KEITH HENRY EVANS & ANOR CATCHWORDS

COURT OF APPEAL - leave to appeal - application to Dust Diseases Tribunal for leave to amend by adding new defendant - claim based on alleged asbestos exposure from 1942 to 1990 - discretionary considerations - no question of principle. DUST DISEASES TRIBUNAL - leave to amend by adding new defendant - part of claim very stale - prejudice to proposed defendant - no question of principle. ORDERS

1. Summons for leave to appeal dismissed.
2. Applicant to pay the costs of the respondent Mr Evans.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40369/09

BASTEN JA HANDLEY AJA SACKVILLE AJA

Thursday 4 March 2010 AMACA PTY LIMITED v KEITH HENRY EVANS & ANOR Judgment 1 BASTEN JA: Mr Keith Evans, the respondent in the proceedings in this Court, worked as a carpenter from 1942 until his retirement in 1990. He suffers from lung cancer. On 21 July 2009 he commenced proceedings against his former employer for the period between 1975 and 1990, the Queanbeyan City Council ("the Council"). He asserted that his lung cancer (and a condition known as asbestos-related pleural disease) had resulted from his exposure to asbestos whilst working as a carpenter for the Council. (It is convenient to refer to him as "the plaintiff".) 2 The proceedings were brought in the Dust Diseases Tribunal of New South Wales ("the Tribunal") pursuant to s 11 of the Dust Diseases Tribunal Act 1989 (NSW) ("the Tribunal Act"). The plaintiff alleged that the Council had been negligent in permitting his exposure to asbestos dust and fibre in the course of his employment. 3 The applicant, Amaca Pty Ltd ("Amaca"), was the manufacturer and distributor of a number of products used in building construction, under the name James Hardie & Coy Pty Ltd. By a cross-claim, which was not before this Court, the Council joined Amaca seeking, no doubt, contribution or indemnity. Subsequently, by way of an amended statement of claim filed on 2 September 2009, the plaintiff sought to bring proceedings against Amaca, alleging that his conditions were caused by exposure to asbestos dust and fibres during his employment as a carpenter, not merely during his period of employment with the Council, but from 1942 until 1990. The claim asserted loss and damage as a result of the negligence of Amaca pursuant to numerous particulars which appear to have been relied upon as applying indiscriminately throughout the period of some 48 years. 4 Amaca resisted the joinder application. However, by orders made on 18 September 2009, the Tribunal granted leave to the plaintiff to file the amended statement of claim which leave included the addition of Amaca as the second defendant in the proceedings. 5 By a summons dated 2 October 2009 Amaca sought leave to appeal against the Tribunal's decision. The application was expedited and the application for leave and the appeal were listed for hearing before this Court on 16 November 2009. At the completion of the hearing, the Court ordered that the application for leave to appeal be dismissed and reserved its reasons. 6 The Court did not make an order in relation to the costs of the application for leave to appeal. There being no submission to the contrary, the costs in this Court should follow the event and an order made to that effect.

Nature of issue on appeal 7 As outlined above, the Tribunal dealt with the matter by ruling on the plaintiff's application to amend the statement of claim. This was explained by Amaca in its summary of argument in this Court: "Amaca argued that the amendment should be refused because the proceedings would inevitably be stayed. This was so because the events sued upon go back 67 years and are so old that there is bound to be prejudice; that Amaca has no reasonable prospect of discovering material relevant to its defence; and to permit the proceedings to continue would constitute an abuse of process." 8 To say that the proceedings would "inevitably be stayed" may have suggested a burden of persuasion greater than that which Amaca in fact accepted. Rather, it appears that Amaca took upon itself the burden of demonstrating that, if the amendments sought were made, it would be entitled to a stay of the proceedings. That was a procedural point of some significance. It had not been necessary for the plaintiff to proceed by way of an amendment to its existing proceedings. Pursuant to the Tribunal Act, there was no limitation period in respect of proceedings brought before the Tribunal in relation to dust-related conditions: s 12A. It would have been open to the plaintiff (and would still have been open to the plaintiff at the time of the hearing in this Court) to commence fresh proceedings against Amaca. Accordingly, Amaca needed to demonstrate that any proceedings brought against it now would be an abuse of process, regardless of the form in which they were brought. 9 The matter proceeded before the Tribunal as if it had been an application by Amaca for summary dismissal of a claim on the basis that the proceedings were "an abuse of the process of" the Tribunal, pursuant to the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"), r 13.4(1)(c). The application had two significant aspects, which it is convenient to note in identifying the relevant issues. 10 The first aspect was an assumption that the plaintiff's case against Amaca was not unarguable, but rather that Amaca would have difficulty in resisting the claim, at least for the period from 1942 until 1975. Accepting that the plaintiff's claim was arguable, Amaca was likely to be prejudiced because it no longer had records of its production and distribution of asbestos-based building products prior to 1975. 11 The second significant aspect was that Amaca sought to make out its case on the basis that the claim against it, taken as a whole, would need to be stayed. It did not, for example, seek to set aside only so much of the claim as related to the period prior to 1975. That was so, despite its acceptance that thereafter it had records and could not demonstrate the necessary level of prejudice in relation to the period from 1975 to 1990. In the result, counsel was forced to submit that the whole of the claim would constitute an abuse of process, even though it was apparently capable of division into separate periods, prejudice being relied upon only in relation to the earlier period: CA Tcpt, 16/11/09, p 39. 12 Once the issue was identified as whether Amaca could reasonably be expected to defend a claim arising from its conduct before 1975, a further question arose, namely whether Amaca could identify "a decision of the Tribunal in point of law or on a question as to the admission or rejection of evidence" which could form the subject matter of an appeal to this Court: Tribunal Act, s 32(1). No complaint was made as to the admission or rejection of evidence and accordingly the second limb of that provision was not in play. It was, therefore, necessary for Amaca to identify a relevant decision of the Tribunal in point of law with which it was dissatisfied.

Identification of error in point of law 13 Although the nature of the statutory appeal required the identification of a decision of the Tribunal in point of law, which might be said to be erroneous, the notice of appeal eschewed that course. Apart from a general statement that the primary judge had erred "in granting leave" for the amendment of the statement of claim (accepted in submissions as not being the primary issue), the grounds identified in the notice of appeal proposed to be brought pursuant to leave were as follows: "The primary judge erred in law: (a) by misconstruing, or misapplying, Batistatos v Roads & Traffic Authority …; (b) by reversing the onus of establishing an entitlement to relief; (c) by imposing a burden upon the appellant inconsistent with legal requirements; (d) by denying the appellant procedural fairness." 14 The first issue raised could constitute a decision by the Tribunal in point of law, as the Tribunal unquestionably assayed the task of determining the relevant legal principles to be applied. It referred to ss 56 and 58 of the Civil Procedure Act 2005 (NSW), rr 13.4 and 14.28 of the UCPR and the so-called "implied powers to prevent an abuse of process". 15 Section 56 of the Civil Procedure Act provides that the overriding purpose of the Act and rules is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Nothing turned directly on the operation of that section. 16 Section 58 of the Civil Procedure Act requires that, in making any order or direction "for the management of proceedings" the court must seek to act in accordance with the "dictates of justice", a phrase given content by sub-s 58(2). Again, nothing was said to turn directly on the reference to this provision. 17 As noted above, this was properly treated as a case involving the striking out of a claim, rather than a pleading; r 13.4, rather than r 14.28 was therefore directly in point. The implied powers were not said to add anything to the grounds of relief available under the rules. 18 It was common ground that assistance was to be obtained from the analysis undertaken by the High Court in Batistatos v Roads & Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256. There the High Court considered the operation of the term "abuse of the process of the court", in circumstances where a claim had been made in late 1994, in relation to serious injuries sustained in an accident in 1965. Because the applicant suffered from serious disabilities, in which circumstances the usual limitation period did not run against him, he was in a similar position to that of the plaintiff in the present proceedings, there being no applicable limitation period. After noting that oppressive conduct was not necessary, the joint judgment in Batistatos continued at [69]: "Rather, as in the circumstances of the present case, attention must be directed to the burdensome effect upon the defendants of the situation that has arisen by lapse of time. The Court of Appeal held that this was so serious that a fair trial was not possible. The result was that to permit the plaintiff's case to proceed would clearly inflict unnecessary injustice upon the defendants." 19 Although there were passages in the judgment of the Tribunal which seemed to misapprehend aspects of the reasoning in Batistatos, these were not relevant to the complaint that his Honour did not identify the relevant test in respect of unfairness to the defendant in the face of a long lapse of time. With respect to this issue, Amaca's claim was not that his Honour failed to identify correctly the legal principle to be applied, but rather that his application in the circumstances before him, was erroneous. 20 The grounds identified at (b) and (c) above, involved either a misapplication of the legal principles, or a reversal of the onus of establishing an entitlement to relief. Although, in written submissions, Amaca appeared to support the view that no burden was imposed on it, because the case was one in which the plaintiff was seeking an amendment, counsel conceded in the course of oral argument that those grounds were not pursued: Tcpt, 16/11/09, pp 2-3. 21 In relation to the fourth ground, at (d), the notice of appeal did not condescend to detail as to the denial of procedural fairness. Brief submissions were made in writing, but counsel declined to elaborate upon them in the course of oral argument, while not abandoning them: at Tcpt, p 3 (5)-(12). Nor did he seek to demonstrate how they fell within the scope of the statutory appeal. 22 It is possible that a question of procedural unfairness may arise from a decision of the Tribunal in point of law, as for example where the Tribunal misdirected itself in refusing an adjournment application: cf HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292 at [130]. It is less likely to arise in circumstances, such as the present case, where there is said to be some mismatch between the matters the complaining party addressed and those considered by the Tribunal. It is not the function of this Court to identify such an error where an applicant for relief fails to do so, in circumstances where the supervisory jurisdiction of this Court under s 69 of the Supreme Court Act 1970 (NSW) has not been invoked. The attempt to rely upon ground (d) should be rejected. 23 The real issue in the case was fairly identified in the exchange between Handley AJA and senior counsel for Amaca, his Honour putting: "The case is not stayed because the plaintiff is going to fail, the case is stayed because the plaintiff is going to unfairly succeed.": Tcpt, 16/11/09, p 3 (10).

Agreeing with that statement of the manner in which Amaca ran its case below, counsel stated: "There was no submission to Judge Curtis that the plaintiff must necessarily fail. The submission made was that this was so long ago and the trail had gone so cold that a fair trial couldn't be held. His Honour having recited it then failed to deal with it." 24 In identifying passages in the judgment which were said to reveal such an error, Amaca referred to the statement that the defendant must demonstrate "that the case is so clearly untenable that it cannot possibly succeed", citing Batistatos: Tribunal, at [25]. It was not said that that statement was erroneous in its terms, but rather that it was not the basis of the application before the Tribunal. The correct issue was identified at the opening of the section of the judgment headed "Discussion" and it could not reasonably be suggested that his Honour was not conscious of it when making his determination. Nevertheless, Amaca says he was distracted from the real issue, as was demonstrated by his consideration of the case which the plaintiff sought, or might seek, to make. 25 It is necessary to understand the process by which his Honour reasoned to a conclusion, refusing to dismiss the proceedings. After referring to the key claims, his Honour noted that the plaintiff was a smoker for most of his adult life, further noting that his smoking history was "sufficient explanation for the onset of lung cancer": at [37]. The reasons continued, stating that the plaintiff could only make out a case of material contribution to the disease, resulting from "asbestos fibre liberated from the products of James Hardie & Coy", on the basis of expert evidence. After referring to the fact that the plaintiff also had asbestos-related pleural disease, his Honour continued: "[39] Mr Evans has described those markings on asbestos sheets that identified the sheets as James Hardie and Coy products. I see no unfairness in permitting him to rely upon these observations to advance a case that any exposure to these products materially contributed to his diseases if that contention is supported by expert evidence. [40] What is not possible upon the evidence to hand, is the advancement of a case that quantifies Mr Evans' exposure to asbestos fibre without regard to the chances that some part of his exposure was to asbestos fibre released from materials that were not manufactured by James Hardie and Coy." 26 In his conclusions, the primary judge stated at [45]: "Upon the present evidence Mr Evans may not advance a case that, in the absence of exposure to products manufactured by Hardies' competitors, his exposure to Hardies' products was sufficient to materially contribute to the development of lung cancer." 27 The words "may not" were potentially ambiguous: they might have constituted a prohibition, or, alternatively, a prediction. It is clear in the circumstances that they constituted a prediction, reflecting the remarks at [39] and [40], set out above. The prediction was, in effect, a recognition that the plaintiff might not obtain expert evidence which would allow him to succeed on the basis of any exposure, even if relatively small, to asbestos from James Hardie products. His Honour's conclusion in this respect was to be found at [46]: "The inability of Amaca to obtain evidence relating to the proportion of asbestos materials used by Mr Evans and manufactured by James Hardie and Coy is irrelevant if the plaintiff's expert evidence is to the effect that any exposure to asbestos in his work materially contributed to his lung cancer and/or that Mr Evans's pleural disease is indivisible." 28 Amaca contended that this reasoning was directed to the strength of the plaintiff's case. It was not: it was directed to the question whether it mattered that Amaca would not be able to establish, for example, that it had not sold its product to a particular business, for which the plaintiff had worked, in a relevant period. Although the full factual circumstances envisaged were not spelt out, they appear to have included an available inference that at least some part of the asbestos was likely to have been supplied by James Hardie and that such an inference would be sufficient to allow the plaintiff to succeed, even on the assumption that most of the asbestos to which he had been exposed came from a competitor of James Hardie. 29 On the assumption that the Tribunal had addressed the correct question, it was not open to Amaca to contend that the reasoning set out above involved an error of law, let alone a decision in point of law. Nor did Amaca assay such a task. It follows that no basis for a challenge against a decision of the Tribunal in point of law had been demonstrated and it was therefore appropriate to refuse leave to appeal.

Challenge to whole of claim 30 Although it has been convenient to consider the substance of Amaca's case, that case also involved a curious feature, already noted, namely that Amaca had not, before the Tribunal, sought to distinguish between the periods covered by the statement of claim. Because it conceded that it had sufficient records to allow it to run a defence in relation to the period post-1975, to the extent that the claim related to that period, there was no basis for striking it out except that the claim also related to the earlier period pre-1975. As Amaca did not apply to sever the earlier part of the claim, which would presumably, if successful, have prompted an application to amend, the resolution of the motion depended upon convincing the Tribunal that the good should be struck out with the bad. There was no error in point of law in deciding not to take that course. 31 On one view, that would provide a sufficient reason in itself to refuse leave to appeal. However, it is clear that his Honour dealt with the matter on the basis of the strength or otherwise of the challenge with respect to the pre-1975 period. A challenge against his Honour's determination made on that basis would fail for the reasons given above. It is not necessary in the circumstance to rely on the narrower procedural ground. 32 For these reasons, and consistently with the reasons given by Handley AJA, I supported the orders made on 16 November 2009.

Costs 33 In dismissing the application for leave, the Court made no order as to costs. No reason was suggested as to why the applicant, if unsuccessful, should not pay the plaintiff's costs of the proceedings in this Court. 34 The second respondent, the Queanbeyan City Council, had cross-claimed against Amaca with respect to its exposure to liability, namely during the post-1975 period. It had no legal interest in the liability of Amaca for the earlier period. Although it was properly joined as a respondent to the proceedings, and supported the plaintiff, the issues joined arose between Amaca and the plaintiff. There is no reason why Amaca should pay the second respondent's costs in this Court. 35 Accordingly, the Court should now make the following additional order: Order the applicant to pay Mr Evans' costs of the proceedings in this Court. 36 HANDLEY AJA: On 21 July 2009 Mr Keith Evans, a retired 83 year old carpenter, commenced proceedings in the Dust Diseases Tribunal against Queanbeyan City Council, his employer between 1975 and 1990, claiming to have contracted pleural disease and lung cancer as a result of his exposure to asbestos dust and fibres in his employment. 37 On 18 August the Council filed a cross claim against Amaca Pty Ltd seeking contribution based on the plaintiff's asbestos exposure from Amaca's products between 1975 and 1990. 38 On 2 September the plaintiff filed a notice of motion seeking leave to amend his statement of claim to join Amaca as a second defendant. 39 The amendments sought alleged that the plaintiff had been exposed at work to asbestos dust and fibre from Amaca's products not only between 1975 and 1990, but also in various employments between 1942 and 1975. 40 Amaca opposed the application which was heard by Curtis J on 11 September and granted on 18 September. 41 On 6 October Amaca filed a summons for leave to appeal which was expedited. The parties were fully heard on that application on 16 November so that the Court would be in a position to finally dispose of the matter. At the end of the argument the Court dismissed the application for leave to appeal and announced that reasons would be given later. 42 The proceedings in the Tribunal, which had not been stayed, were listed for mention on 30 November. It was expected that the trial would then be fixed for a date early in December. In the meantime the plaintiff, as a precaution, had issued a statement of claim against Amaca as sole defendant. 43 Even if the Court had allowed Amaca's appeal the plaintiff would have been in a position to proceed on his new statement of claim and the Tribunal could have been asked to bring the new action to trial with the action against the Council. 44 Curtis J held (para [14]) that upon the evidence before him Amaca had no reasonable prospect of discovering any material relevant to the claims made by the plaintiff against it in respect of the period 1942 to 1975. 45 The legal basis for Amaca's opposition to the plaintiff's application for leave to amend was Batistatos v RTA [2006] HCA 27; 226 CLR 256 where the majority held that a court, in the exercise of its inherent or implied powers, could stay proceedings for abuse of process where, because of the lapse of time, evidence was not available to the defendant, and a fair trial was not possible. 46 There is another category of abuse of process where the plaintiff's case cannot possibly succeed, but this was not invoked in Batistatos, and was not relevant in the present case. 47 The Judge allowed the amendment because the plaintiff might be able to present a case against Amaca for the earlier period on either of two bases which would not involve the prejudice he had earlier identified. 48 Amaca adopted an all or nothing approach to the plaintiff's application, and asked the Judge to refuse leave. The Judge was not asked to refuse leave for amendments for the years prior to 1975 or for any part of those earlier years, although the prejudice Amaca relied upon was confined to the earlier years. 49 Amaca persisted with this approach in this Court, and prayer 3 of its draft notice of appeal sought dismissal of the plaintiff's application for leave to amend. 50 The plaintiff's application, and Amaca's challenge, must be viewed in the context of s 12A(1) of the Dust Diseases Tribunal Act (the Act) which enables proceedings to be brought before the Tribunal in relation to dust-related conditions "at any time." 51 The right of appeal to this Court conferred by s 32(1) of the Act is limited to a party "who is dissatisfied with the decision of the Tribunal in point of law." 52 There is no right of appeal against findings of fact and none against a discretionary decision unless it involves "a decision in point of law". 53 Mr Russell SC, Senior Counsel for the applicant, was unable to identify with any precision a decision of Curtis J in point of law which was arguably erroneous that could vitiate his decision. 54 Discretionary considerations strongly favoured the refusal of leave. 55 In all probability the trial was only a few weeks away, Amaca as a cross defendant was already a party to the proceedings, the plaintiff had issued another statement of claim, and there was no challenge to the amendment for the years 1975 to 1990. 56 If this Court had granted leave and set aside the decision of Curtis J for error of law, it could neither have dismissed the plaintiff's application, nor allowed it in part. It would have been bound to remit it to Curtis J to be heard and determined according to law. 57 The application was for an interlocutory order, and the parties would have been entitled to adduce further evidence on the rehearing. 58 Further evidence relating to the period 1942 -- 1975 may have come to light in the meantime, and the plaintiff would have already filed, or been about to file, the evidence in support of the grounds identified by the Judge (para [46]) which led him to grant the amendment. 59 In all probability the motion would have been reheard, shortly before the trial, on vastly different evidence, as an expensive dress rehearsal for the trial against Amaca. 60 On 16 November 2009 for these reasons the Court dismissed the application for leave. That order is now confirmed, and the applicant is ordered to pay Mr Evans' costs of the proceedings in this Court. 61 The majority have not made an order for costs in favour of the Queanbeyan Council. Since the Council has not been heard on this question it is entitled to apply, as its own risk as to costs, by notice of motion filed within 14 days of the publication of these reasons. This time limit cannot be extended: UCPR Pt 36 rr 16(3A), (3C). Any notice of motion should be made returnable before the Registrar for directions. 62 ORDERS:

1. Summons for leave to appeal dismissed. 2. Applicant to pay the costs of the respondent Mr Evans. 63 SACKVILLE AJA: I agree with the reasons given by Handley AJA for dismissing the application for leave to appeal and with the additional reasons given by Basten JA for supporting that order. I agree with Basten JA that the costs order should be made in the form he proposes. **********

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