Badenoch v Granite Transformations Pty Limited and Ors [2022] NSWDDT 8

Dust Diseases Tribunal New South Wales Medium Neutral Citation: Badenoch v Granite Transformations Pty Limited and Ors [2022] NSWDDT 8 Hearing dates: 23 November 2022 Date of orders: 7 December 2022 Decision date: 07 December 2022 Before: Strathdee, J Decision: (1) The first defendant provide verified discovery of the following documents by 16 January 2023, unless previously provided formally or otherwise: (a) Any employment records of the plaintiff and/or sub-contract agreement with the plaintiff at the Clayton Workshop at 57 Sarton Road, Clayton North, Victoria, (Clayton Workshop) or Sunshine Workshop at factory 5, 42-46 Vella Drive, Sunshine West, Victoria (Sunshine Workshop) during the period from 1 January 2001 until 31 December 2003; (b) Any records relating to the plaintiff's work for the first defendant and/or at the premises of the first defendant, whether via AJ Recruitment or otherwise, during the period from 1 January 2001 until 31 December 2003; (c) Any franchise or other agreement between the first defendant and: - GT Business Pty Limited; - GT Business Holdings Pty Limited; - Hotel 25 Pty Limited; - Cabritt Pty Limited; - Granite Transformations Sunshine; - Granite Transformations North Shore; and/or - Trend S.p.A; in force during the period from 1 January 2001 until 31 December 2003; (d) Any records documenting the relationship between first defendant and any other entity for which the plaintiff alleges that he undertook duties; (e) Any documents and/or agreements relating to the supply and/or facilitation of supply of granite by the first defendant to: - GT Business Pty Limited; - GT Business Holdings Pty Limited; - Hotel 25 Pty Limited; - Cabritt Pty Limited; - Granite Transformations Sunshine; and/or - Granite Transformations North Shore; during the period from 1 January 2001 until 31 December 2003; (f) Any documents and/or agreements relating to the supply and/or facilitation of supply of granite manufactured by Trend S.p.A, during the period from 1 January 2001 until 31 December 2003; (g) Any documents relating to any and all use of the name or trademark "Granite Transformations" during the period from 1 January 2001 until 31 December 2003; (h) Any documents relating to any and all use of the name or trademark "Rocksolid Granit" during the period from 1 January 2001 until 31 December 2003; (i) Any documents relating to the training and/or accreditation of the Plaintiff from 1 January 2002 – 31 December 2023; (j) Any product manuals, notices, warnings and or safety data sheets pertaining to any engineered and natural stone products used at the Clayton Workshop and the Sunshine Workshop from 1 January 2002 – 31 December 2003; (k) Any receipts and invoices relating to all engineered and natural stone products purchased and/or used at the Clayton Workshop and the Sunshine Workshop during the period from 1 January 2001 until 31 December 2003; (l) Any documents relating to:- (i) The first defendant's knowledge and means of knowledge of possible risk of injury from inhalation of dust including silica dust, during the period up to 31 December 2005; (ii) Any information and/or warnings provided to the Plaintiff or other workers carrying out fabrication and/or installations of silica containing engineered or natural stone products at the Clayton Workshop and the Sunshine Workshop during the period from 1 January 2001 until 31 December 2003; (iii) The provision of any personal protective equipment (PPE) to workers including the plaintiff, including the types of PPE supplied and the date of its provision, during the period from 1 January 2001 until 31 December 2003; (iv) Any reports or records regarding occupational hygiene (and/or health and safety) regarding the risk of injury from inhalation of dust including silica dust and the measures by which that risk might be minimised or obviated, during the period from 1 January 2001 until 31 December 2003; (v) Any evidence of air monitoring at the Clayton Workshop and the Sunshine Workshop during the period from 1 January 2001 until 31 December 2003; (vi) Any evidence of health surveillance of workers at the Clayton Workshop and the Sunshine Workshop during the period from 1 January 2001 until 31 December 2003; (vii) Any evidence of factory design, tools, machinery or fabrication methods implemented in order to protect workers including the Plaintiff from the risks of exposure to respirable crystalline silica dust (RCSD) during the period from 1 January 2001 until 31 December 2003; (viii) Any records or reports relating to interactions with relevant workplace health and safety authorities and/or health and safety advisors during the period from 1 January 2001 until 31 December 2003. (2) Costs of the Motion to be costs in the cause. (3) Matter listed for directions on 13 February 2023. (4) Liberty to apply. Catchwords: PROCEDURE – DUST DISEASES – discovery – facts in issue – whether discovery should be allowed when the matter is ready for hearing – pre-trial discovery – probative value – relevance to key facts in issue Legislation Cited: Civil Procedure Act 2005 (NSW) Dust Diseases Tribunal Rules 2019 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Bulga Coal Management Pty Ltd v Hope Wines Group Pty Ltd [2020] NSWSC 1783 Commonwealth Bank of Australia v Goater [2016] NSWSC 710 Harper v Sydney Local Area Health District (No 2) [2020] NSWDDT 11 Hunter New England Local Health District v Munters Pty Limited [2018] NSWSC 788 ICAP Pty Ltd v Moebes [2009] NSWSC 306 Metal Storm Limited (subject to a deed of company arrangement) ACN 064 270 006 [2016] NSWSC 306 Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 Phillips v Phillips [1879] 140 LT 815 Category: Procedural rulings Parties: Kevin George Badenoch (Plaintiff) Granite Transformations Pty Limited (First Defendant) Bizzaza Australia Pty Limited (Second Defendant) Ceasarstone Australia Pty Limited (Third Defendant) Smartstone Australia Pty Limited (Fourth Defendant) Representation: Counsel: Mr A Giurtalis appeared for the Plaintiff Mr J L Sharpe appeared for the First Defendant Mr I Griscti appeared for the Fourth Defendant