Dust Diseases Tribunal New South Wales Medium Neutral Citation: Marsh v Visy Recycling Australia Pty Ltd [2022] NSWDDT 2 Hearing dates: 23 June 2020 Date of orders: 13 April 2022 Decision date: 13 April 2022 Before: Judge Russell SC Decision: (1) Decline to make the costs orders sought in par 12 of MFI 2. (2) Order that each party pay her or its own costs of the Notice of Motion filed on 19 June 2020 and the Amended Notice of Motion filed on 22 June 2020. Catchwords: COSTS – amendment of pleading – identity of employer and period of employment – costs thrown away by reason of the amendment – costs for notice of motion Legislation Cited: Civil Liability (Claims Against Third Party Insurers) Act 2017 (NSW) Category: Costs Parties: Ariana Marsh as representative of the estate of the late Esmaralda Marsh (Plaintiff) Visy Recycling Australia Pty Ltd (First Defendant) Labourpower Recruitment Services Pty Ltd (Second Defendant) Workers Compensation Nominal Insurer (Third Defendant) Representation: Counsel: A Giurtalis (Plaintiff) J Lagaida solicitor (First Defendant) J Makris solicitor (Second Defendant) S Taylor-Jones solicitor (Third Defendant) Solicitors: Maurice Blackburn (Plaintiff) Lander & Rogers (First Defendant) Kingston Reid (Second Defendant) Moray & Agnew Lawyers (Third Defendant) File Number(s): DDT 2020/181074 Judgment Delay in delivery of this judgment 1. This judgment concerns an Amended Notice of Motion heard by me on 23 June 2020. The plaintiff Ms Esmaralda Marsh died later that same day, before judgment could be delivered. Until this morning there was no-one appointed to represent her estate. Judgment could not be delivered until that occurred. A motion for appointment and substitution was filed on 1 April 2022 and was heard this morning. I have made an order today appointing Ms Ariana Marsh to represent the estate of her late mother Ms Esmaralda Marsh. Background 1. The original plaintiff Ms Esmaralda Marsh (who I will refer to in this judgment as "the plaintiff") alleged that in 2003 and 2004 she worked at the Visy recycling plant and in that employment she was required to sort and sift through waste material which included asbestos building materials such as asbestos cement flat sheeting and asbestos cement corrugated sheeting. Ms Marsh died from pleural mesothelioma, a disease caused by inhalation of asbestos dust and fibre. 2. An Amended Notice of Motion filed on 22 June 2020 came before me for hearing on 23 June 2020. Most of the orders sought on the Motion were made without opposition, leaving a dispute about costs. This judgment concerns that dispute. 3. On 26 June 2019 the plaintiff filed a Statement of Claim against the first defendant Visy Recycling Australia Pty Ltd ("Visy") as the sole defendant. That pleading alleged that the plaintiff was employed by Visy at its recycling plant at St Peters from 2005 to 2006. In the alternative the pleading alleged that Visy was the occupier of the recycling plant where the plaintiff worked. 4. On 15 July 2019 that Statement of Claim was served on Visy. On 16 August 2019 the plaintiff filed a Form 1 Statement of Particulars. 5. On 17 September 2019 the solicitors for Visy wrote to the solicitors for the plaintiff advising that their investigations showed that the plaintiff was not employed by Visy, but had been employed by Labourpower Recruitment Services Pty Ltd ("Labourpower") during the relevant period. 6. On 11 October 2019 the plaintiff provided to Visy a Proposed Amended Statement of Claim. This document was filed on 20 November 2019. The pleading against Visy remained the same i.e. it was the employer of the plaintiff and it was the occupier of the recycling plant. In the alternative the plaintiff alleged that she was employed by the second defendant Labourpower. That Amended Statement of Claim also changed the years of employment to the period between about 2005 and about 2008. On 25 November 2019 that Amended Statement of Claim was served on Labourpower. 7. On 26 November 2019 the solicitors for the plaintiff wrote to the solicitors for Labourpower enclosing an ATO Payment Summary for the financial year ending 30 June 2004 ("2004 ATO Record"). This document stated that the plaintiff had received gross payments of $9,874 and was employed by "The Trustee for Luke Webber Trust & The Trustee for Zac Webber Trust ABN: 71452975056". 8. On 12 December 2019 the plaintiff's solicitors received a letter from the Workers Compensation Nominal Insurer ("WCNI") asking for the plaintiff to produce documents regarding employment. These were provided on 17 January 2020. 9. On 10 February 2020 the plaintiff's solicitors received a letter from Moray & Agnew indicating that they acted for WCNI and that "within the Labourpower Group, the NSW employers of labour hire workers was [sic] Arthur Tzaneros and Luke Raymond Webber t/as The Labourpower Recruitment Services Joint Venture". 10. On 14 February 2020 Visy filed its Reply. The Reply stated that the plaintiff was employed by Labourpower pursuant to an arrangement for the hire of labour at the Visy recycling plant. 11. On 27 February 2020 the plaintiff's solicitors received a letter from Kingston Reid, the solicitors acting for Labourpower, stating that: "In NSW a partnership (being Arthur Tzaneros, Luke Raymond Webber and Zacary Nathan Webber – ABN 30 815 135 117) held a New South Wales workers compensation policy during the relevant period the subject of the claim." 1. Attached to the letter from Kingston Reid was a letter from iCare dated 26 February 2020 recording that a New South Wales workers compensation insurance policy was held by the second defendant from 10 October 2002 to 21 March 2005. There was no mention in that letter of a joint venture. 2. On 14 May 2020 the plaintiff's solicitors wrote to Kingston Reid serving the plaintiff's affidavit sworn on 8 May 2020. The plaintiff deposed that she was employed at the recycling plant "from about 2003 or 2004 onwards". 3. On 19 May 2020 the plaintiff's solicitors wrote to Kingston Reid serving bank statements which recorded the receipt of wages between 18 February 2004 and 26 May 2004. The description against each credit entry was "LABOURPOWER RECR PAY CHEQUE". 4. On 29 May 2020 the solicitors for WCNI sent a letter to the solicitors for the plaintiff stating that WCNI accepted that it was the workers compensation insurer of Labourpower in the 2004 financial year. The letter asserted that a partnership of the Luke Webber Trust and the Zacary Webber Trust was the employer in the 2004 financial year. 5. On 10 June 2020 the solicitors for the plaintiff received a letter from Kingston Reid stating that the ABN identified in the plaintiff's ATO record was the ABN of a joint venture ("the JV Parties") of the following entities. 1. Terry Tzaneros as trustee for the Arthur Tzaneros Discretionary Trust 2. Valette Pty Ltd as trustee for the McClelland Family Trust 3. Luke Raymond Webber as trustee for the Luke Webber Trust 4. Zacary Nathan as trustee for the Zac Webber Trust 5. Labourpower Recruitment Services Pty Ltd as trustee for the Labourpower Trust. 1. The letter also stated that Labourpower was the joint venture manager of the joint venture at that time and that ATO information identified the joint venture (being the five nominated entities) as the relevant employer in the 2004 financial year. 2. Also on 10 June 2020, the solicitors for WCNI sent a letter to the solicitors for the plaintiff stating that WCNI "accepts that it was the employer's indemnity insurer of the JV Parties". 3. On 16 June 2020 the plaintiff's solicitors requested Kingston Reid to nominate the legal entity which employed workers at the Visy recycling plant in New South Wales during the 2004 financial year. The letter also requested a copy of any joint venture agreement. On 18 June 2020 Kingston Reid provided to the plaintiff's solicitors an undated and unsigned copy of a joint venture agreement. The document was silent as to the entity responsible for employing personnel at the Visy recycling plant. 4. On 19 June 2020 the plaintiff filed a Notice of Motion seeking leave to amend the Amended Statement of Claim. The Motion also sought orders for the removal of the matter from the Claims Resolution Process, on the basis of urgency, to enable the Tribunal to take the plaintiff's evidence. 5. On 22 June 2020, in the Dust Diseases List, the matter was stood over for Hearing on 23 June 2020. On 22 June 2020 the plaintiff filed an Amended Notice of Motion which attached a different version of the proposed amended pleading. A typographical error in that version was corrected by another version sent to the Tribunal by email on 23 June 2020 just before the hearing commenced. That final version of the proposed pleading was marked as MFI 3. Submissions for WCNI 1. The solicitors for WCNI provided helpful written submissions dated 22 June 2020 (MFI 2). Those submissions noted that the final version of the amended pleading proposed the joinder of WCNI as a third defendant in its capacity as the insurer of the five entities in the joint venture. The allegation in the proposed amended pleading, in its final form, was that the first defendant Visy was the occupier of the recycling plant and the five joint venture parties were the employers of the plaintiff, pursuant to a labour hire agreement, by which her services were provided to Visy in 2004. As a matter of convenience, leave was sought under the Civil Liability (Claims Against Third Party Insurers) Act 2017 (NSW) ("the 2017 Act") to join WCNI as the third defendant, standing in the shoes of the five joint venture parties. There was no application to join the five parties themselves. This was a convenient course and was not opposed by WCNI. The proposed amended pleading deleted Labourpower as the second defendant. 2. WCNI did not oppose the plaintiff's application for leave to commence proceedings against it under the 2017 Act. Nor did it oppose the plaintiff's application for leave to file and serve a Further Amended Statement of Claim in the final form put forward in MFI 3. 3. WCNI did not oppose the matter being removed from the CRP to take the plaintiff's evidence. 4. In par 12 of the WCNI written submissions (MFI 2), WCNI submitted that the appropriate costs orders were: 1. The plaintiff have no costs of preparation of the factual aspects of the case pertaining to allegations of employment between March 2005 and 2008 as alleged. 2. The plaintiff have no costs associated with the identification of the 2004 employer. 3. The plaintiff have no costs of considering the Contributions Assessment Determination of 20 February 2020 or any "liability aspect" preceding the amendment to the Amended Statement of Claim occasioned by the Amended Notice of Motion. 4. The plaintiff pay the costs of WCNI thrown away as a consequence of responding to the plaintiff's allegations as made in the original proceedings. 1. The submissions of WCNI in relation to costs were set out in pars 39-46 of MFI 2 as follows: "39. The usual order associated with amendment of the proceedings is an order that the amending party pay the costs thrown away as a consequence of the amendment. 40. In the matter to hand, the plaintiff: (a) Provided detailed instructions to her lawyers leading to the preparation of the August 2019 Affidavit in which she deposed to employment by Visy at three different sites and gave specifics of her alleged employment over a 2½ year period at the Facility; (b) Did not take timely steps to sue the 2005 JV Parties when maintaining those allegations despite being advised as to the correct identity of the alleged employer in that period by correspondence in February [thus precluding WCNI from undertaking conduct of the proceedings on behalf of the alleged employer – WCNI not having insured the second defendant]; (c) Has, in the light of evidence produced by Visy annexed to its Reply filed in February 2020, correspondence provided by Moray & Agnew acting for WCNI, and Kingston Reid acting for the second defendant, and an examination of her tax records conceded that she was not employed to work at Visy's Facility between 2005 and 2008 as alleged, or by the second defendant at all; (d) Contrary to the allegations maintained in the proposed Further Amended Statement of Claim annexed to the Amended Notice of Motion of the employment from about 2003 to about May 2004, has located bank statements which show payment by the 2004 JV Parties between February and May 2004 only [such statements showing payment of money consistent with the payments recorded in the 2004 tax records [sic]. (e) Has made a monumental alteration in the allegations as made in the Statement of Claim and amended Statement of Claim and Statement of Particulars, as supported in the detailed deposition in the August 2019 affidavit to now allege work at the Facility for about 3-4 months in 2004 rather than 2½ years from 2005 to 2008; (f) Has abandoned the case against the second defendant; (g) Now maintains proceedings against the interests of the 2004 JV Parties, being a different employer to the 2005 JV Parties properly implicated in the original, now abandoned, allegations. 41. The plaintiff has in the circumstances incurred a substantial amount in costs in preparing a case which has now been abandoned. WCNI submits that it is inappropriate for the plaintiff to have the benefit of a costs order against Visy and/or WCNI in any event in respect of the plaintiff's costs incurred in preparing the case to the extent to which it will not be pursued and should pay the costs thrown away by parties which have prepared a defence to that abandoned case. 42. Had the plaintiff provided correct instructions from the outset, one statement of claim, one statement of particulars, one contributions assessment determination and one affidavit would have been required. As a consequence of the plaintiff's alteration in the case, the work undertaken in her preparation, and the work undertaken in defending, the now abandoned case is wasted. 43. Further, the case against the second defendant was misconceived. At all times the plaintiff had material in her possession identifying that she was employed by the 2004 JV Parties for 3-4 months in 2004, and not by the second defendant or the 2005 JV Parties at all. 44. WCNI has taken steps to deal with the plaintiff's case as put in the Amended Statement of Claim since becoming aware of the pleading in December 2019. Its conduct was clearly appropriate in light of the disease, mesothelioma. It is expected that the plaintiff would ultimately sue it's insured being the 2005 JV Parties and as such incurred costs and disbursements in investigating the allegations. As the plaintiff did not ever take steps to sue a party which it insured (until 22 June 2020) it has not commenced preparation of the quantum claim (and indeed has not seen a copy of any amended statement of particulars). Indeed, as information came to light it advised the plaintiff with a view to progressing the plaintiff's case in an orderly fashion. That endeavour was ignored by the plaintiff who delayed 3 months from being made aware that the 2005 – 2008 allegations were misguided to recast the case, then refused to amend the pleadings, before ultimately, a further month later, finally makes an application to regularise the pleadings. 45. In light of the plaintiff's conduct WCNI's costs have been wasted. 46. WCNI submits that, sava [sic] as to any costs order made in favour of Visy and the second defendant, the costs orders sought in paragraph 12 of this outline are appropriately made." Submissions for Visy 1. The solicitors for Visy noted that the usual order where a plaintiff amends the pleadings would be to order the plaintiff to pay a defendant's costs thrown away by reason of the amendment. However, that order was not sought by the first defendant in the present circumstances. Instead, the solicitors for Visy submitted that the plaintiff's costs should be limited in the same fashion as put forward by WCNI in par 1 of MFI 2. Submissions for Labourpower 1. The solicitors for Labourpower adopted the submissions of WCNI. The solicitors pointed out that the original form of the pleading had alleged employment between 2005 and 2008, and it was not until May 2020 that the plaintiff amended the period of employment to plead that the correct period was between 2003 and 2004. 2. The solicitors for Labourpower further submitted that the plaintiff's own 2004 ATO Record showed that the second defendant was not the employer of the plaintiff when she worked at Visy. However, I do note that the 2004 ATO Record did not list the five joint venture partners, so that a document issued by the plaintiff's true employers was, to say the least, incomplete. The first time that the plaintiff appears to have been informed of the correct identity of the five joint venture partners was the letter of 10 June 2020 from Kingston Reid, referred to above. Consideration of the Submissions 1. The disease of mesothelioma, because it has a long lag time between exposure and illness, presents many challenges for a plaintiff's solicitor. It is not at all unusual for a person who has been a manual worker, with a chequered work history, to be unable to pin-point the particular years when they worked in a short term job, and to identify the particular employer in that job. Complexity increases when a worker has been employed under a labour hire agreement. Often such workers do not have any idea, or any clear idea, of the identity of their employer. Experience shows that when labour hire workers are shown records long after the event, a common reaction is to say "I've never heard of that company" or "I didn't think I was employed by that employer". At the time when the plaintiff worked at the Visy recycling plant, labour hire agreements had come into vogue, with the attendant problems of identifying, decades later, the correct employer and the correct period of employment. 2. In this case, the problems for the plaintiff's solicitors were increased by the fact that the 2004 ATO Record, issued by the plaintiff's employer, incompletely nominated the joint venture parties who, it is now agreed, constituted the plaintiff's employer while she was engaged at Visy under a labour hire arrangement. As counsel for the plaintiff pointed out during submissions, the correct identity of the parties was not disclosed until the letter of 10 June 2020. Prior to that, the solicitors for the first and second defendant, and the solicitors for WCNI, did their best to assist the plaintiff to identify the correct employer. Several versions of the name of the plaintiff's employer while at Visy were put forward. Many of those were incorrect or incomplete – see pars 6, 10, 11, 12, 13, 16 and 20 above. 3. That is not said by way of criticism of the parties or their solicitors. It is a feature of litigation in the Tribunal that insurers, and their lawyers, do their best to assist the plaintiff to identify the correct defendant, the correct insurer and the correct period of employment. In fact, the degree of co-operation between insurers and their lawyers, and the lawyers for a plaintiff, would probably shock parties in other jurisdictions where the adversarial process is strictly followed and parties are put to strict proof, without co-operation from the other side. 4. What has happened in this case is not unique. A plaintiff's solicitor, investigating events which occurred several decades ago, often takes some time, even with the co-operation of workers compensation insurers and their lawyers, to identify the correct period of employment and the correct identity of the employer. True it is that there have been a few false starts in pleading the plaintiff's case, but I do not think that the reason for that can be laid at the feet of the plaintiff for the instructions that she gave from time to time. Nor do I think that the plaintiff's solicitors have been anything less than diligent in attempting to ascertain the facts to enable the plaintiff's claim to be fully and accurately pleaded. 5. The solicitors for Labourpower, while corresponding with the plaintiff's solicitors and attempting to assist in resolution of the matter, did not file an Appearance in the proceedings until Friday 19 June 2020. As previously recited, Labourpower, which was one of the five joint venture parties (although in a different capacity to that in which it was sued as second defendant) did not provide an accurate identification of the five joint venture parties until 10 June 2020. Again, that is not said as a criticism of the second defendant or its solicitors, who have been nothing but helpful. What it does illustrate is that even defendants themselves have difficulty identifying who employed a plaintiff several decades ago pursuant to a labour hire arrangement. 6. Counsel for the plaintiff also pointed out that the third defendant was not yet a party to the proceedings and would not become so until the final amended pleading was filed pursuant to leave granted on 23 June 2020. Certainly WCNI has incurred costs for several months prior to being joined as a party. However, most of those costs would have been incurred anyway, as WCNI chose to instruct solicitors to represent their interest should they be found to be the insurer of the plaintiff's employer once the identity of that employer was established. It must be emphasised that the solicitors for WCNI, and WCNI itself, have also been nothing but helpful to the plaintiff in attempting to clarify a fundamental issue in the case. Conclusion on Costs 1. For the reasons set out above, I do not think that the limitations upon the plaintiff's costs, proposed by WCNI, should be imposed. It may have been different if a defendant had been able to tell the plaintiff at the outset when she was employed at the Visy recycling plant and who employed her. Unfortunately, even the defendants themselves could not clarify that until relatively late in the course of the proceedings. 2. I therefore decline to impose the cost limitations proposed in par 12 of MFI 2. 3. I also decline to make an order, as sought by WCNI, that the plaintiff pay the costs of WCNI thrown away as a consequence of responding to the plaintiff's allegations as made in the original proceedings. I decline to make that order for two reasons. Firstly, I have set out above my view as to the difficulties faced by the plaintiff and her solicitors in ascertaining the identity of the true employer. Secondly, if WCNI incurred costs prior to being joined as a party, those costs were incurred voluntarily, and not because WCNI was being sued. Costs of the Amended Notice of Motion 1. It was not until the Amended Notice of Motion was filed on 22 June 2020 that the appropriate relief was sought by the plaintiff. I say that for two reasons. Firstly, the original Notice of Motion returnable on 22 June 2020 did not seek leave under the 2017 Act. Secondly, it was not until the morning of 23 June 2020 that a proper version of the proposed pleading was put forward, inter alia, making it plain that Visy was not sued as an employer. 2. I do not think that the plaintiff should have any of the costs of the Notice of Motion filed on 19 June 2020 or the Amended Notice of Motion filed on 22 June 2020. Nor do I think that costs of that Motion should be costs in the cause. My view is that each party should bear its own costs of both Motions. 3. The plaintiff came to court seeking three indulgences being: leave under the 2017 Act; leave to amend; and removal from the CRP, many months after the proceedings were commenced. While WCNI, supported by the first and second defendants, has sought cost limitation orders, I have found that I should not impose such limitations. Thus the costs arguments put forward by WCNI and the first and second defendant have failed. In the circumstances it appears to me that the appropriate order is that each party pay her or its own costs. Orders 1. My orders are: 1. Decline to make the costs orders sought in par 12 of MFI 2. 2. Order that each party pay her or its own costs of the Notice of Motion filed on 19 June 2020 and the Amended Notice of Motion filed on 22 June 2020. 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