Wallace v Caesarstone Australia Pty Ltd [2025] QSC 219

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - CASE MANAGEMENT - where the first plaintiff sued for damages for personal injuries suffered as a result of his work with engineered stone - where the second plaintiff is the wife of the first plaintiff - where the second plaintiff sues for loss of consortium - where directions were made by the deputy registrar for the preparation of the case - where those directions included the defendants nominating independent medical examination (IME) panels to the plaintiff - where the defendants neglected to nominate the IME panels - where they failed to do so for some eighteen months - where one of the defendants provided a report of an occupational hygienist - where the plaintiffs responded to that report with a report - where the plaintiffs served a request for trial date - where the defendants refused to sign the request for trial date - where the defendants nominated IME panels - where the defendants complained about the lateness of the report provided by the plaintiffs - whether the defendants' signatures on the request for trial date ought to be dispensed with

Allianz Insurance Ltd v Mashaghati [2018] 1 Qd R 429; [2017] QCA 127, cited

Bona v Jeffries & Anor [2021] QSC 84, followed

Butler v Crowley & Greenhalgh [2000] QSC 120, followed

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 465, r 467, r 468, r 469, r 429G, r 429H, r 429I

H L Blattman KC for the first, second, third, sixth, seventh, and eighth defendants

S Falvey (sol) for the ninth, tenth, and eleventh defendants

Holman Webb Lawyers for the first, second, third, sixth, seventh, and eighth defendants

McInnes Wilson for the ninth and eleventh defendants

McInnes Wilson acting as Town Agent for Rankin Ellison Lawyers for the tenth defendant

• [1] This is an application by the plaintiffs for an order to dispense with the signatures of the defendants on a request for trial date.[1] The plaintiffs also seek a further order that the trial of the proceeding be expedited,[2] further directions to facilitate the expeditious disposal of the proceedings,[3] and costs.
• [2] The application was resisted by all eleven defendants. Some defendants seek orders in the alternative requiring, among other things, that the matter be placed on the Supervised Case List, that the plaintiffs nominate medical practitioners to examine the first plaintiff from panels to be provided by the defendants, and the disclosure of further expert evidence.

• [3] The plaintiffs brought a claim for damages arising from personal injury allegedly suffered by the first plaintiff. This is one of many cases which may be called "engineered stone cases". They are cases where tradesmen who have worked with engineered stone have allegedly contracted a lung disease in the course of their employment. Several of these cases are being managed by Freeburn J on the Supervised Case List.
• [4] Between July 2006 and December 2018, the first plaintiff was employed as a stonemason by the ninth and tenth defendants and two now-deregistered entities at various times. Those now-deregistered entities are represented by Workcover Queensland, the eleventh defendant. It is useful to refer to that group of defendants as the "employer defendants".
• [5] While employed, the first plaintiff's duties, he alleges, included the fabrication of engineered stone, which is alleged to have exposed him to silica dust. The remaining defendants, being the first through to the eighth defendants, are companies involved in the manufacture and production of stone products and are alleged to have supplied the engineered stone with which the first plaintiff worked throughout his employment. It is useful to refer to that group of defendants as the "supplier defendants".
• [6] In October 2018, the first plaintiff was diagnosed with silicosis, a terminal and debilitating lung disease caused by inhaling silica dust. It is the plaintiffs' claim that the first plaintiff's exposure to silica dust during his employment as a stonemason caused his injury.
• [7] The second plaintiff is the first plaintiff's wife. She brings a claim for damages for loss of her husband's consortium, arising from his terminal prognosis.

• [8] The proceedings were commenced by way of claim and statement of claim filed on 7 December 2023. On the same day, a report of Dr Robert Edwards, a thoracic physician, was exhibited to an affidavit filed by the plaintiffs' solicitors. As the Personal Injuries Proceedings Act 2002 did not apply to the claim, none of the pre-litigation steps required by that Act needed to be completed, and they were not.
• [9] On 20 December 2023, a consent order was made by the Deputy Registrar. Relevantly, this order required that:

(i) the defendants submit to the plaintiffs, any panels of medical and allied health practitioners from which the defendants' request the plaintiffs make selections of practitioners by whom the first plaintiff is prepared to be examined, provided that:

(aa) each panel contain the names of not less than 3 practitioners;

(ab) no such request be unreasonable or unnecessarily repetitious;

(i) the plaintiffs serve on the defendants a copy of any medical report upon which they intend, or may intend, to rely at trial;

(ii) the plaintiffs serve on the defendants a copy of any liability or other expert report upon which they intend, or may intend, to rely on at trial;

(i) the defendants serve upon the plaintiffs a copy of any medical report upon which they intend, or may intend, to rely at trial;

(ii) the defendants serve on the plaintiffs a copy of any liability or other expert report upon which they intend, or may intend, to rely on at trial;"

• [10] The defendants did not comply with the order requiring them to submit a panel of medical and health practitioners to the plaintiffs on or before 5 February 2024. As will become apparent, no panels were provided to the plaintiffs until 8 August 2025, some 18 months later.
• [11] On 22 February 2024, a notice of intention to defend and a defence were filed by the fourth defendant. Over the following month, each of the remaining supplier defendants and the tenth defendant filed notices of intention to defend and defences to the claim. The plaintiffs sought further and better particulars from several of the defendants, which were provided.
• [12] On 2 April 2024, the plaintiffs served the defendants with an expert report by a psychiatrist, Dr David Storor.
• [13] On 8 April 2024, the plaintiffs filed their reply to the defences of the supplier defendants and the tenth defendant. Accordingly, pleadings had closed with respect to each of the claims against the supplier defendants and the tenth defendant.[4]
• [14] Lists of documents were filed by all but the first and seventh defendants between 15 April 2024 and 28 June 2024. During this period, the plaintiffs were served with statements of expert and economic evidence by the second, fourth, fifth, sixth, and eighth defendants.
• [15] On 16 April 2024, after serving their own list of documents on the defendants, the plaintiffs informed the defendants that they reserved their right to provide supplementary liability evidence, pending the defendants having fully complied with their disclosure obligations. The plaintiffs served their statement of loss and damage the following day.
• [16] A mediation took place between the parties on 8 May 2024. A mediator's certificate filed on 22 May 2024 confirmed that the parties were unable to resolve the dispute.
• [17] On 9 August 2024, the solicitors for the ninth and eleventh defendants disclosed a report by Mr Martin Jennings, an occupational hygienist, dated 6 May 2020. The report explains the risks of exposure to silica dust, and the steps that can be taken to manage such risks. It does not appear to have been prepared specifically for the purpose of these proceedings.
• [18] The remaining notices of intention to defend and defences were filed by the ninth and eleventh defendants on 22 August 2024, with a reply filed by the plaintiffs on 4 September 2024. This signified the close of pleadings for the claims against the remaining defendants.

• [27] Rule 5 of the UCPR provides as follows:

"5 Philosophy - overriding obligations of parties and court

(1) The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.

(2) Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.

(3) In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.

(4) The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.

The court may dismiss a proceeding or impose a sanction as to costs, if, in breach of the implied undertaking, a plaintiff fails to proceed as required by these rules or an order of the court."

• [28] Many cases have held that r 5 provides an overarching philosophy against which practice decisions are made and assessed.[5]
• [29] Rule 467 provides for the service of a request for trial date:

(1) A party who is ready for trial may prepare and sign a request for trial date in the approved form.

(2) The party who prepared the request for trial date must serve copies of the request on each other party and, if the party served is ready for trial, that party must sign the request and return it to the party who prepared it.

(3) The party who prepared the request for trial date must file as soon as practicable a copy of the request signed by all parties, other than a party whose signature has been dispensed with by the court.

(4) For this rule, a party is ready for trial if -

(a) any order or requirement by notice under chapter 7, part 2, division 2 for the making of disclosure by or to the party or for the inspection of documents by or to the party has been complied with; and

(b) any order requiring particulars to be given by or to the party has been complied with; and

(c) any interrogatories delivered by or to the party have been answered under chapter 7, part 2, division 2, subdivision 2; and

(d) as far as the party is concerned, all necessary steps in the proceeding (including steps to obtain disclosure or inspection of documents, admissions, particulars and answers to interrogatories) are complete; and

(e) all the party's necessary witnesses will be available for the trial; and

(f) as far as the party is concerned, the proceeding is in all respects ready for trial; and

(g) if in the proceeding there is a claim for damages for personal injury or death - chapter 14, part 2 has been complied with."

• [30] Rule 468 provides for a trial to be expedited:

(1) The court may expedite the trial of a proceeding.

(2) To expedite the trial of a proceeding, the court may do all or any of the following -

(a) order the proceeding to be given priority in the allocation of a trial date, including by certifying for speedy trial;

(b) make an order about any of the following -

(i) setting a trial date;

(ii) subject to these rules, specifying the mode of trial;

(c) give a direction the court could give under chapter 10, part 1."

• [31] Rule 469 provides a remedy whereby the Court may dispense with a party's signature when a party who is served with a request for trial date does not sign and return the document:

"469 Dispensing with signature on request for trial date

On the application of a party who has signed a request for trial date, the court may dispense with the signature of another party who has been served with the request under rule 467(2) and has not signed and returned it within 21 day after service."

• [32] Rule 470 places restrictions on the taking of steps once a request for trial date has been filed:

"470 Leave required for steps after trial date requested or set

(1) This rule applies in relation to a proceeding if -

(a) a request for trial date has been filed; or

(b) a trial date has been set without a request for trial date having been filed.

(2) A party may do the following only with the court's leave -

(a) amend a pleading;

(b) request particulars;

(c) make an application in the proceeding."

• [33] As is common in personal injuries cases generally, and engineered stone cases in particular, expert evidence is relied upon. Rules 429G, 429H and 429I regulate expert evidence. They provide:

(1) Subject to subrule (5), the expert may give evidence-in-chief in the proceeding only by a report.

(2) The report may be tendered as evidence in the proceeding only if -

(a) the report has been disclosed under this part; or

(b) the court gives leave.

(3) Subject to a direction given under division 2, any party to the proceeding may tender the report as evidence in the proceeding, but only if the party produces the expert for cross-examination, if required.

(4) Unless the court orders otherwise, the report may be admitted in evidence in the proceeding only if the report confirms the expert has read, and agrees to be bound by, the code of conduct.

(5) The expert may give oral evidence-in-chief in the proceeding only if the court gives leave.

(6) Also, unless the court orders otherwise, the expert may give oral evidence in the proceeding only if the court is satisfied the expert has acknowledged, whether in a report prepared in relation to the proceeding or otherwise in relation to the proceeding, that the expert has read, and agrees to be bound by, the code of conduct.

(1) A report prepared by the expert must be addressed to the court and signed by the expert.

(2) The report must include the following information -

(a) the expert's qualifications;

(b) all material facts, whether written or oral, on which the report is based;

(c) the expert's reasons for each opinion expressed in the report;

(d) references to any literature or other material relied on by the expert to prepare the report;

(e) for any inspection, examination or experiment conducted, initiated, or relied on by the expert to prepare the report -

(i) a description of what was done; and

(ii) whether the inspection, examination or experiment was done by the expert or under the expert's supervision; and

(iii) the name and qualifications of any other person involved; and

(iv) the result;

(f) if there is a range of opinion on matters dealt with in the report - a summary of the range of opinion, and the reasons why the expert adopted a particular opinion;

(g) if the expert believes the report may be incomplete or inaccurate without a qualification - the qualification;

(h) a summary of the conclusions reached by the expert;

(i) a statement about whether access to any readily ascertainable additional facts would assist the expert in reaching a more reliable conclusion.

(3) If the expert believes an opinion expressed in the report is not a concluded opinion, the report must state, where the opinion is expressed, the reason for the expert's belief.

_Examples of reasons why an expert may believe an opinion is not a concluded opinion - _

(a) the expert has read, and agrees to be bound by, the code of conduct; and

(b) the factual matters stated in the report are, as far as the expert knows, true; and

(c) the expert has made all inquiries considered appropriate; and

(d) the opinions stated in the report are genuinely held by the expert; and

(e) the report contains reference to all matters the expert considers significant; and

(f) the expert understands the expert's duty to the court and has complied with the duty.

A party intending to rely on a report prepared by the expert must, unless the court orders otherwise, disclose the report as soon as practicable and, in any case -

(a) if the party is a plaintiff - within 90 days after the close of pleadings; or

(b) if the party is a defendant - within 120 days after the close of pleadings; or

(c) if the party is neither a plaintiff nor a defendant - within 90 days after the close of pleadings for the party."

• [34] The plaintiffs submit that they are ready for trial. The defendants submit that the plaintiffs will update their medical evidence and financial evidence before trial, with the inference being that the plaintiffs are not, contrary to their assertions, ready for trial. Updating reports and financial material is common practice in personal injuries claims. It is often completed after trial dates are allocated. The plaintiffs are, relevantly, ready for trial.
• [35] The defendants seek directions in these terms:

"1. The parties comply with the following directions:

(a) on or before 4:00pm on 22 August 2025, the plaintiffs inform the First, Second, Third, Fifth, Sixth, Seventh and Eighth Defendants (the Supplier Defendants), of their selection from the panels provided by the Supplier Defendants on 8 August 2025 of those practitioners by whom the first plaintiff is prepared to be examined;

(b) on or before 30 August 2025:

(i) the plaintiffs serve any updated list of documents;

(ii) the defendants serve any updated list of documents;

(c) on or before 30 October 2025:

(i) the plaintiffs serve on the defendants a copy of any medical report upon which they intend, or may intend, to rely at trial;

(ii) the plaintiffs serve on the defendants a copy of any liability or other expert report upon which they intend, or may intend, to rely on at trial;

(d) the first plaintiff attend an appointment (to be arranged by the Supplier Defendants) with a psychiatrist, occupational therapist and thoracic/respiratory physician selected from the panels provided by the Supplier Defendants for the purpose of being examined and the preparation of a medico-legal report on the following terms:

(i) the plaintiff is to be examined no later than 31 December 2025;

(ii) the costs of the examination and report are the responsibility of the Supplier Defendants;

(iii) the Supplier Defendants pay the reasonable expenses of the plaintiff in attending the appointment; and

(iv) the report is to be disclosed to the plaintiff within 7 days of receipt by the Supplier Defendants;

(e) by 4.00 pm on 30 September 2025, the plaintiffs are to file and serve, in affidavit form, any lay evidence on which they intend to rely at trial;

(f) by 4.00 pm on 30 September 2025, the plaintiffs are to serve any expert evidence directed to liability on which they intend to rely at trial;

(g) by 4.00 pm on 31 October 2025, each of the defendants are to file and serve, in affidavit form, any lay evidence on which they intend to rely at trial;

(h) by 4.00 pm on 31 October 2025, each of the defendants are to serve any expert evidence directed to liability on which they intend to rely at trial."[6]

• [36] The plaintiffs have complied with the rules of civil procedure, except in relation to the delivery of a report of the occupational hygienist, Mr Jennings. I will refer back to that issue shortly.
• [37] As the plaintiffs have complied with the rules (subject to the matter I have already mentioned) and served their request for trial date, they may seek the exercise of the Court's discretion in their favour to dispense with the signatures of the defendants on the request for trial date. Therefore, concentration should be had upon the defendants' case in resistance of the order.
• [38] Mark Vincent Victorsen is the partner of the firm Holman Webb Laywers, who has conduct of the matter on behalf of the first and seventh defendants, Caesarstone Australia Pty Ltd and Caesarstone Limited. He swore an affidavit. He is authorised to provide the affidavit on behalf of each of the second, third, sixth and eighth defendants as well as his own clients.
• [39] Mr Victorsen explains that engineered stone claims have proliferated over the last nine years and that Holman Webb are involved in about 78 other such cases. He explains that disclosure was difficult in the present case because of the number of documents, their location overseas, and the fact that many were not written in English.
• [40] None of that explains why the supplier defendants did not submit IME panels to the plaintiffs' solicitors by 5 February 2024 as required by the order of the Deputy Registrar, made on 20 December 2023.
• [41] Mr Victorsen explains the circumstances of the plaintiffs' delivery of Mr Jennings' report. He says in his affidavit:

"14. Despite the Orders requiring the Plaintiffs to file their liability evidence by 29 April 2024, they did not do so. On 19 May 2025, vbr Lawyers served a liability report of Mr Martin Jennings, Occupational Hygienist, dated 16 May 2025, comprising 248 pages. The Plaintiffs do not state when Mr Jennings was briefed or why such evidence was not obtained prior to mediation. Caesarstone needs to obtain expert liability evidence in response.

1. Caesarstone has engaged Occupational Hygienist, Alan Rogers, to provide an expert liability report in the matter of Downes v WorkCover Queensland & Ors (9797/23) (Downes). Caesarstone intends to engage Mr Rogers to prepare an expert liability report in each of the matters currently managed on the Supervised Case List by Freeburn J, and also intends to engage Mr Rogers to prepare an expert liability report in the present matter in response to that of Mr Jennings filed by the Plaintiffs.
2. Mr Rogers has advised that he is available to provide an expert report in the matter of Downes by 27 August 2025. Given the volume of reports that will be required from Mr Rogers, Caesarstone expects that it will be in a position to serve an expert report from Mr Rogers by 31 October 2025."

• [42] What is evident from those paragraphs in Mr Victorsen's affidavit is:

(a) the defendants' occupational hygienist, Mr Rogers, has not been briefed as yet;

(b) he will be;

(c) he is an expert that is available to the defendants; and

(d) an expert report of Mr Rogers can be filed and served by 31 October 2025.

• [43] As to their failure to deliver the IME panels, Mr Victorsen says this:

"17. The Supplier Defendants did not submit IME panels to vbr Lawyers by 5 February 2024, as required by the Order. Unfortunately, the matter did not settle at the mediation stage, and the conduct of the litigation for Caesarstone was thereafter heavily focused on the issue of disclosure, and responding to the Plaintiff's complaints in that regard."

• [44] I find that explanation very unconvincing. There is no correspondence before me sent in 2024 explaining why the nomination of the panels cannot be achieved. There is no reason given as to why ongoing efforts as to disclosure would prevent nomination of IME panels. There is no reason suggested as to why the parties' participation in a mediation should hinder the nomination of the IME panels.
• [45] Mr Victorsen records in his affidavit that the IME panels were provided on 8 August 2025. He then goes on to explain that there are other engineered stone cases on the Supervised Case List and none of them have yet been allocated trial dates. He points out that various matters on the List were filed prior to the current matter and he explains that there are various steps that need to be taken from his clients' point of view, including obtaining various expert reports.
• [46] Ms Blattman KC appeared for the first, second, third, sixth, seventh, and eighth defendants and was the only advocate who made submissions on behalf of any defendant.
• [47] Her submissions can be fairly summarised as follows:

(a) the matter is not ready for trial;

(b) expert evidence is still required by the defendants to defend the proceedings;

(c) advice on evidence needs to be obtained;

(d) the plaintiffs have only recently filed and served the report of Mr Jennings.

(e) the first plaintiff's life expectancy is some 34 and a half years, such there is no relative urgency to other matters before the courts; and

(f) it would be unfair to give this case priority over other engineered stone cases.

• [48] It is, in my view, somewhat disingenuous for the defendants to submit that there is no "relative urgency to other matters before the courts" because it is estimated that the first plaintiff's condition will take 34 and a half years to kill him. The plaintiffs obviously have a desire to obtain a damages award quickly so that money can be utilised towards the treatment and comfort of the first plaintiff during his lifetime.
• [49] The reference to the "relative urgency" to other engineered stone cases is, in my view, irrelevant; as is the notion of it being unfair to "give [this case] priority" over the other engineered stone matters. During argument this exchange occurred:

"HIS HONOUR: You're relying upon the state of play in relation to all these other silica matters. You're saying none of those have got trial dates. Why is Mr Wallace concerned about that? He's a citizen, he comes to Court, he has complied with the rules, why does he have to worry about all of these other matters? What's that got to do with anything?

MS BLATTMAN: Well, because, your Honour, there's these other matters that have managed in a consistent way with a view that they be prioritised according to both readiness and need. And here comes a matter that in my solicitor's estimate could take 20 days of court time. Meanwhile, Justice Freeburn is trying to manage a dust list, basically, and this matter is no more deserving in priority than any of those other matters.

HIS HONOUR: I don't understand. He's a citizen, he's got rights, he might be right, wrong, or otherwise in relation to his case. He brings it. When he brings it, you don't apply to have it listed before Justice Freeburn, you just drift on. He prosecutes his claim and now, what, over eighteen months later, you say; 'hang on, any case management in relation to him now has to be linked to a whole stack of other cases.' I just don't see how that can be a relevant consideration.

MS BLATTMAN: Well, another way of looking at it, and with respect, the view we would submit is that there is another stack of cases that are submitting to a particular mode of case management which has been set up by the Court, and that this particular case is no different from them and should be managed consistently. And that this is - and I don't mean this in a pejorative sense at all - would, without reason, put him ahead of all these other matters.

HIS HONOUR: Well, no, you're not ready, they're ready."

• [50] I repeat my comments made during submissions.
• [51] If the plaintiffs have conducted their case consistently with the philosophy of r 5 of the UCPR and they are ready to proceed to trial then there is no reason to deny them a trial merely because other similar cases are not ready for hearing
• [52] The other complaints made by the defendants ring hollow. No steps were taken to deliver the IME panels until a request for trial date was served and the application was filed and listed for hearing. That default persisted from 5 February 2024 to 8 August 2025, some 18 months. The complaint about Mr Jennings' report was only made on the eve of the hearing of the application and, as explained, even by the time of the hearing of the application, no action had actually been taken to retain Mr Rogers to prepare a report on the current matter.
• [53] There is no reason on the material to think that there will be any difficulty with responding to Mr Jennings' report. As Mr Victorsen has explained, Mr Rogers is preparing many reports for Holman Webb's clients and a report on the current matter can be prepared by 31 October 2025. Any prejudice in that respect can be overcome by giving leave to deliver that report by 31 October 2025, notwithstanding an order dispensing with the request for trial date.
• [54] What the defendants now also submit is that after 18 months of neglecting to seek medical examinations that process should now commence.
• [55] Rule 470 provides that with leave, the defendants can make application in the proceedings once the signatures on the request for trial date have been dispensed with. They may need to seek orders to achieve independent medical examinations of the first plaintiff. The fact that they are in that position is a product of their own neglect. There are, and ought to be, consequences for not applying with the Rules and orders.[7]
• [56] The appropriate course is to dispense with the signatures on the request for trial date and place the matter on the Supervised Case List. No orders ought to be made now under r 468. Justice Freeburn can supervise any application which the defendants may get leave to make and can make any other directions necessary for the trial.

• [57] At the hearing, I indicated that I would receive written submissions on costs. I will make orders facilitating that process.

• [58] I make the following orders:
  1. The signature of each defendant on the Request for Trial Date is dispensed with.
  2. The defendants have leave to deliver a report by Occupational Hygienist, Alan Rogers, by 4.00 pm on 31 October 2025.
  3. The proceedings are placed on the Supervised Case List.
  4. The plaintiffs file and serve written submissions on the question of the costs of the application by 4 pm on 12 September 2025.
  5. The defendants file and serve written submissions on the question of the costs of the application by 4 pm on 19 September 2025.
  6. Any party may file and serve, by 4 pm on 26 September 2025, a notice of intention to make oral submissions on costs.
  7. In the event that no notice is filed, the question of costs will be determined on any written submissions received without further oral argument.

[1] Uniform Civil Procedure Rules 1999 ("UCPR"), r 469.

[4] Uniform Civil Procedure Rules 1999, r 169(a).

[5] Butler v Crowley & Greenhalgh [2000] QSC 120 at [1]- [3].

[6] Further proposed draft orders were sought regarding costs and the parties having liberty to apply.

[7] Bona v Jeffries & Anor [2021] QSC 84 at [31]; and see generally Allianz Insurance Ltd v Mashaghati [2017] QCA 127; [2018] 1 Qd R 429 at [55].