Dust Diseases Tribunal New South Wales Medium Neutral Citation: Feetam v Linfoot and Ors [2023] NSWDDT 1 Hearing dates: 17 April 2023 Date of orders: 28 April 2023 Decision date: 28 April 2023 Before: Strathdee, J Decision: (1) The Notice of Motion is dismissed. (2) The applicant/seventh defendant is to pay the respondent/plaintiff's costs of the motion as agreed or assessed. Catchwords: DUST DISEASES TRIBUNAL – permanent stay of proceedings – exceptional circumstances ABUSE OF PROCESS – delay – factors to be considered in determining whether the delay precludes the conduct of a fair trial – sufficiency of evidence – capacity of defendant to give instructions Legislation Cited: Civil Procedure Act 2005 (NSW) Service and Execution of Process Act 1992 (Cth) Supreme Court Rules 1970 (NSW) Cases Cited: ASIC v Australian Investors Forum Pty Ltd [2003] NSWSC 618 Hewish v Wahsgab 1990 Ltd (formerly known as Horwood Bagshaw Ltd) (2003) 25 NSWCCR 437 Jago v District Court of New South Wales (1989) 168 CLR 23 Moubarak by his tutor Coorey v Holt [2019] NSWCA 102 Newcastle City Council v Batistatos; Roads and Traffic Authority of New South Wales v Batistatos [2005] NSWCA 20 Oceanic Sun Line Special Shipping Company Ltd v Fay (1988) 165 CLR 197 Perks v Amaca Pty Ltd [2002] NSWDDT 32 R v Presser [1958] VR 45 The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78 Walton v Gardiner (1993) 177 CLR 378 Williams v South Australia (2004) 1 DDCR 237 Williams v Spautz (1992) 174 CLR 509 Category: Procedural rulings Parties: Bradford Mark Feetam (Plaintiff) Clive and Patricia Linfoot t/as C & P Linfoot (First Defendant) Western NSW Local Health District (Second Defendant) Abigroup Ltd (formerly Abignano Ltd) (Third Defendant) Electricity Assets Ministerial Holding Corporation (Fourth Defendant) Central Coast Council (Fifth Defendant) Bricon Construction Pty Ltd (Sixth Defendant) G.R Binns & S.J. Binns t/as Garsan (Seventh Defendant) Upper Hunter Shire Council (Eighth Defendant) Representation: Counsel: Mr S Tzouganatos appeared for the Plaintiff Solicitors: Mr N Prentice, Rankin Ellison, Lawyers appeared in person for the First & Seventh defendants Ms L Chami, Turks Lawyers (Second Defendant) Mr D Greenhalgh, Bartier Perry (Eighth Defendant - mentioned by Mr Prentice) File Number(s): 2022/167510-002 Judgment 1. By Notice of Motion filed in the Dust Diseases Tribunal of New South Wales ('the DDT') on 9 March 2023, the seventh defendant, G.R. Binns & S.J. Binns t/as Garsan seeks the following orders: '(1) Proceedings against the Seventh Defendant, S J Binns, be permanently stayed pursuant to section 67 of the Civil Procedure Act 2005 (NSW) on the grounds appearing in the Affidavit of Nichols Prentice sworn 9 March 2023. (2) The Plaintiff pay the seventh Defendants costs of this motion. (3) Such other orders as the Court sees fit.' 1. In support of the Motion, the seventh defendant reads the affidavit of Mr Nick Prentice, solicitor, sworn 5 October 2022 which became exhibit A on the Notice of Motion ('the Prentice Affidavit'). 2. The plaintiff read the affidavit of Gerard Anthony McMahon ('the McMahon affidavit') sworn 13 April 2023, which became exhibit 1 on the motion. The plaintiff objects to the orders sought in the motion. Background 1. By way of Statement of Claim filed in the Tribunal on 9 June 2022, the plaintiff alleges that he was exposed to and inhaled dust containing silica during the course of his employment with various employers between 1979 and 2018, and as a consequence thereof has been diagnosed with silica related lung disease, silicosis, progressive massive fibrosis and emphysema. The plaintiff's injuries and diseases are divisible. 2. In June 2021 Icare Dust Diseases Care certified the plaintiff as 100% disabled due to silicosis. 3. The plaintiff alleges that he was employed by Garsan between about April 2002 and about 23 June 2004. Garsan was a partnership between Mr Garry Binns ('Mr Binns') and his wife Mrs Sandra Binns ('Mrs Binns'). Garsan carried on an earthmoving business. 4. Garsan was insured by an employers' indemnity policy during the plaintiff's alleged period of employment. 5. Mr Binns died in 2015. Mrs Binns is 80 years of age. 6. The applicant relies on the Prentice affidavit (exhibit A on the motion) in which it is deposed by Mr Prentice, sworn 9 March 2023 that: 1. Mrs Binns suffers from dementia; 2. Mrs Binns holds no records of any business conducted by her late husband or herself. 3. Mrs Binns believes that she did the bookwork for Garsan and that her husband, Mr Binns, carried on the day-to-day operation of the business. 4. Mrs Binns does not know the names of any employees of the business, its clients nor any jobs it undertook or the workplace conditions at any jobsites. 5. Any business conducted by Mr and Mrs Binns ceased operations before 2005. 6. Despite assistance rendered by the plaintiff's solicitor, he has been unable to locate Mr Paul Binns ('Paul Binns'), one of the late Mr Binns' brothers, who was employed during the period of the plaintiff's alleged employment. 7. Mrs Binns is very upset about being sued and is distressed by the fact that she has no business records and cannot remember anything about the business. 8. Mr Prentice is reluctant to seek to obtain an affidavit from Mrs Binns due to the likelihood that it will cause her further distress and he has doubts about the reliability of any instructions Mrs Binns may give, in particular for the purposes of filing a defence, including as to the making of any denials or admissions. 9. The continuation of proceedings against Mrs Binns would be manifestly unfair. The Applicant/Seventh Defendant's Case 1. The applicant submits that s 67 of the Civil Procedure Act 2005 (NSW) ('CPA') empowers a Court to order a permanent stay of proceedings in a variety of circumstances which may exist and the Court's jurisdiction to prevent an abuse of process may be invoked. 2. The applicant accepts that it bears the onus of proof. 3. The applicant submits that a trial needs to be fair but not necessarily perfect and relies upon the description of whether there can be a trial 'without unfairness or injustice' as articulated by the Supreme Court of Victoria in R v Presser [1958] VR 45 ('Presser'), a criminal case where Smith J said at 46 that an accused: '[46] …needs to be able to plead to the charge and to exercise his right of challenge… he needs to be able to understand the substantial effect of the evidence that may be given against him and he needs to be able to make his defence or answer to the charge.' 1. The applicant submits that a permanent stay should be granted when the interest of the administration of justice so demands: Jago v District Court of New South Wales (1989) 168 CLR 23 at 46 ('Jago'). 2. Further, a permanent stay may be ordered when, but not limited to, cases where: * Continuation of the proceedings would be vexatious or oppressive; * The effect of the proceedings 'is seriously unfairly burdensome, prejudicial or damaging': Jago at 74 (Gaudron J); * Be manifestly unfair to a party; or * Bring the administration of justice into disrepute. 1. The applicant submits that delay is relevant even where a limitation period has been removed by the legislature: Moubarak by his tutor Coorey v Holt [2019] NSWCA 102 ('Moubarak') and, further, that unfairness may arise from the effluxion of time which will be more acute where the trial is exclusively or heavily dependent upon oral evidence and the quality of the witnesses' memories and recollections: Moubarak at [77]. 2. In Moubarak [92] Bell P stated: '[92] I am not aware of any authority which in terms suggests that a fair trial of a civil claim will always be possible notwithstanding the death or absence through incapacity of a defendant, at least where the defendant's oral evidence goes to a critical aspect of liability, as in the present case.' 1. It is the applicant's case that a long lapse of time can apply to the fairness of a civil trial as well as in respect of a criminal trial (see Bryson JA in Newcastle City Council v Batistatos; Roads and Traffic Authority of New South Wales v Batistatos [2005] NSWCA 20 ('Batistatos'). 2. The applicant submits that the absence of likely relevant documents relating to the issues for determination becomes more crucial when the loss or unavailability of oral evidence is considered, but the standard enunciated by the Supreme Court of Victoria in Presser cannot be put aside because it related to a criminal trial. Although the applicant concedes that the minimum requirements test may not be translated directly into a civil context, the applicant submits that it has relevance to a consideration of the circumstances required for a fair trial: ASIC v Australian Investors Forum Pty Ltd [2003] NSWSC 618; Moubarak at [107] and [109]. 3. The applicant submits that applications for a permanent stay are intensely fact dependent and that the fundamental test is whether, in the circumstances, the proceedings would be manifestly unfair to the defendant or would bring the administration of justice into disrepute. To this end, the applicant refers to the judgment of Bell P in Moubarak at [159]: '[159] … on the particular facts of this case, the trial would be taking place in the defendant's involuntary absence and that would, in my opinion, produce manifest unfairness to the defendant and bring the administration of justice into disrepute, notwithstanding that it would result in the unfortunate consequence of the plaintiff not being able to pursue her claim.' 1. The applicant, referring to the judgment of Bell P in Moubarak at [188], invites the Tribunal to call into question whether a fair adjudication of the allegations made against Mrs Binns is possible. 2. The applicant submits that all the factors enunciated by Bell P in Moubarak at [193] apply to Mrs Binns : '[193] There will be other cases which are different and less clear-cut. There will be cases where the defendant is not incapable, but many decades have passed, like Batistatos. There will be cases where there is evidence of actual prejudice, in the loss of documents or the death of witnesses. There will be cases where the plaintiff has the advantage of admissible tendency evidence. There will be cases against defendants which are said to be vicariously liable (whether under a traditional or a novel statutory basis) for the sexual assault of employees or agents; these claims may give rise to different considerations. There will be cases where the alleged perpetrators are long since deceased. Separately from all of the above are cases where there has been delay by the plaintiff which is culpable. The exercise of the discretionary power preserved by s 6A(6) will fall to be worked out case by case.' 1. The applicant further submits that the situation in this case is similar to that referred to by Mitchelmore JA in The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78 ('GLJ') at [120]. The applicant says that the response of the late Mr Binns to the plaintiff's allegations by way of denial or otherwise cannot be obtained and no evaluation of any such response is possible because he is deceased. Further, that any other evidence produced by the plaintiff is unable to be evaluated for credibility, self-interest or factual correctness on the basis of proper instructions cannot be obtained from Mrs Binns. 2. The applicant says that Garsan is unable to provide such instructions because Mrs Binns lacks the capacity to give such instructions or at least on a reliable basis, and that there 'is no other material which sheds any light on his putative response': GLJ at [122]. 3. Mr Prentice conceded his instructions come from the employers' indemnity insurer, which would presumably indemnify Mrs Binns for any liability of the acts and omissions of Garsan. The Respondent/Plaintiff's Case 1. In opposing the orders sought in the Motion, the plaintiff submits that as one of the partners of the business, Mrs Binns was the employer of any persons employed by Garsan, and that although Mrs Binns appears to have dementia such that 'she can't be relied on to accurately remember the details of the family business that her and her husband operated', there is no evidence put before the Tribunal that she does not have legal capacity, nor that any steps have been taken to appoint a tutor or litigation guardian for her. 2. The plaintiff concedes that it is understandable that Mrs Binns would be distressed by the continuation of the plaintiff's proceedings against her, however, the plaintiff submits that: 1. It is not relevant to the determination of the Notice of Motion. 2. The plaintiff has no desire to cause Mrs Binns any further distress. 3. The plaintiff offered to discontinue the proceedings against Mrs Binns in order to join the Workers Compensation Nominal Insurer in her stead, an offer which was refused by Mrs Binns for unknown reasons; and 4. To the extent that Mrs Binns suffers any further distress during the course of this litigation, it is not caused by the plaintiff. 1. A review of the relevant authorities provides helpful guidelines as to an examination of the grounds for and against a permanent stay as follows: 1. The onus of proving that a permanent stay of proceedings should be granted lies squarely on a defendant: Williams v Spautz (1992) 174 CLR 509 ('Spautz') at 529 (Mason CJ, Dawson, Toohey and McHugh JJ); 2. A permanent stay should only be ordered in exceptional circumstances: Jago at 31 (Mason CJ), 76 (Gaudron J); Spautz at 520 (Mason CJ, Dawson, Toohey and McHugh JJ); Walton v Gardiner (1993) 177 CLR 378 ('Walton') at 388 (Mason CJ, Deane and Dawson JJ); 3. A permanent stay should be granted when the interests of the administration of justice so demand: Jago at 30 (Mason CJ), 70 (Gaudron J); Spautz at 520 (Mason CJ, Dawson, Toohey and McHugh JJ); Batistatos at [12] (Gleeson CJ, Gummow, Hayne and Crennan JJ); 4. The categories of cases in which a permanent stay may be ordered are not closed: Jago at 74 (Gaudron J); Batistatos at [9] (Gleeson CJ, Gummow, Hayne and Crennan JJ); 5. One category of case where a permanent stay may be ordered is where proceedings or their continuance would be vexatious or oppressive: Jago at 74 (Gaudron J); Walton at 393 (Mason CJ, Deane and Dawson JJ); 6. The continuation of proceedings may be oppressive if that is their objective effect: Batistatos at [70] (Gleeson CJ, Gummow, Hayne and Crennan JJ); 7. Proceedings may be oppressive where their effect is 'seriously and unfairly burdensome, prejudicial or damaging': Oceanic Sun Line Special Shipping Company Ltd v Fay (1988) 165 CLR 197 at 247 (Deane J) cited in Jago at [74] (Gaudron J); Batistatos at [70] (Gleeson CJ, Gummow, Hayne and Crennan JJ); and 8. Proceedings may be stayed on a permanent basis where their continuation would bring the administration of justice into disrepute amongst right-thinking people: Walton at 393 (Mason CJ, Deane and Dawson JJ); Batistatos at [6] (per Gleeson CJ, Gummow, Hayne and Crennan JJ). 9. A delay between the accrual of the cause of action and the commencement of proceedings may also be a ground upon which a Court may grant a permanent stay in an exceptional case, but only 'where it is demonstrated, on the balance of probabilities, that it will not be possible to obtain a fair trial': Moubarak at [88]. 1. The Tribunal has been confronted with this situation in many cases that come before it, and accepted that there is nothing exceptional or extraordinary in the circumstances so as to warrant a permanent stay. 2. If there was a delay, the fact that Mr Binns is deceased does not mean that it is manifestly unfair for the case to continue, nor that a fair trial is impossible. Mr Binns is a non-existent employer of the plaintiff who, alongside his wife, operated an earthmoving business in whose employ the plaintiff was exposed to dust. 3. For the plaintiff to succeed in its proceedings against Garsan and notwithstanding the absence of Mr Binns and the memory difficulties of Mrs Binns, there is no evidence indicating that it will be impossible to have a fair trial. In this regard, the plaintiff says that: * Proof of employment with Garsan in the period alleged in the Statement of Claim, is capable of being established by records obtained from the Australian Taxation Office which are annexed to the Affidavit of Gerard McMahon sworn 13 April 2023 ('the McMahon affidavit') (exhibit 1 on the motion); and * the plaintiff must prove that during his employment with Garsan as a plant operator in an earthmoving business, he was exposed to dust including silica dust which he inhaled. The plaintiff submits that given the kind of work described by the plaintiff and the nature of the business carried on by Garsan, it is unlikely that this will be a significant issue at trial. 1. A further witness has been located, Paul Binns (the brother of the late Mr Binns), who could give evidence about the allegations made in the Statement of Claim against Garsan. This is referred to in the McMahon affidavit. Given that Mr Prentice has spoken to Paul Binns who was able to verify that he was employed by Garsan, it is hard to see that a fair trial is not possible. It was conceded by the seventh defendant that communication between Mr Prentice and Mrs Binns had been facilitated by her daughter, Lesley, who has a brain injury but has facilitated Mrs Binns to give instructions to Mr Prentice. 2. It was conceded by Mr Prentice that the applicant has not conducted appropriate investigations that could shed light upon relevant matters, including contacting Garsan's former accountants, requesting business records from the Australian Taxation Office or contacting the local council responsible for the Buttonderry Tip. 3. After the seventh defendant's submissions were prepared, and following receipt of Mr McMahon's affidavit, Mr Prentice became aware of the existence of Paul Binns, and has since had the opportunity to speak to him. 4. I accept that the focus must be on the fairness of the trial to Mrs Binns, not whether or not the plaintiff can succeed and make out his case. It is not the evidence itself, rather, the response to the evidence that is served that is important. 5. The plaintiff made submissions that the seventh defendant is asserting two contrary positions — namely, that Mrs Binns has lost the capacity to provide instructions, yet there has been no application to appoint a tutor or a litigation guardian. Further, the Tribunal often takes evidence from witnesses who have incapacitated memories as a result of medical conditions or the passage of time. 6. Mr Tzouganatos submitted that the reason that permanent stay applications have been described by all the authorities as highly exceptional is because their effect is to bar the plaintiff from getting damages and that a Court has to be quite convinced that a fair trial cannot occur. This is particularly so when the diseases pleaded are divisible. 7. Reference has been made to the authorities that relate to applications for a permanent stay to be made in proceedings involving historical sexual abuse. In my view those cases can be distinguished from the present matter. In Moubarak the alleged perpetrator had dementia and in GLJ, the alleged perpetrator was deceased. 8. Those cases can be distinguished from the present matter as here Mr Binns' brother Paul is available as a witness and can potentially give evidence with regard to the plaintiff's allegations, as he was present at Garsan for certain relevant periods of time whilst working in the business. 9. As regards the question of delay, the loss of Mr Gary Binns as a witness was not caused by any actions performed by the plaintiff and to that extent, the question of delay dealt with by the sexual abuse cases is a very different proposition. The seventh defendant conceded this point. 10. I note that the Tribunal routinely deals with cases brought against small employers where, for a range of reasons, business records are not available and witnesses are deceased or otherwise not available. To accede to this application for a permanent stay, which may have the effect of denying the plaintiff some of his damages would not seem to me to be in the interests of justice. 11. Applications for a stay of proceedings are seldom brought in this Tribunal. In Hewish v Wahsgab 1990 Ltd (formerly known as Horwood Bagshaw Ltd) (2003) 25 NSWCCR 437 ('Hewish') and Williams v South Australia (2004) 1 DDCR 237 ('Williams'), both applications related to s 20 of the Service and Execution of Process Act 1992 (Cth). They were forum non conveniens applications effectively cross-vesting applications, which are of little assistance in these proceedings. 12. The Tribunal dealt with an application for a stay of proceedings as an alternative to a strike-out application in Perks v Amaca Pty Ltd [2002] NSWDDT 32 ('Perks'). That application was brought on the basis that the plaintiff's behaviour was such that it amounted to an abuse of process. 13. Although Perks was determined prior to the enactment of the CPA pursuant to which the present application is made, it was conceded that the Tribunal had power to order that the proceeding be stayed or dismissed generally pursuant to part 13.5 of the Supreme Court Rules 1970 (NSW) which (at the time) dealt with summary disposal and is effectively identical to the power contained in s 67 of the CPA. 14. At paragraphs [11]-[26] of his Honour's judgment, Duck J engaged with the authorities on what constituted an abuse of process. His Honour was taken to the majority judgment of the High Court in Walton which his Honour observed referred to the judgment of Gaudron J in Jago at 396 which provided that a Court's power to grant a permanent stay may be exercised if the administration of justice so demands. 15. At [23]-[25] his Honour stated: 'Walton v Gardiner has been applied many times in subsequent decisions in the High Court and in the Court of Appeal. I will refer to a few of them although not at length. In the matter of K W Wentworth v G J Rogers & Anor a decision of Sperling J in the Supreme Court of New South Wales in which judgment was given on 10 September 1996 at p 18 his Honour said: 'The main point in Walton v Gardiner was that the categories of abuse of proceedings are not closed and that the power to grant a permanent stay can be exercised whenever processes are employed in a manner which gives rise to unfairness (at 393); in particular, the jurisdiction is not confined to case where there is either an improper purpose or no possibility of a fair hearing (at 395).' In Rogers v The Queen (1994) 181 CLR 251 the High Court applied the authority of Walton v Gardiner. At p 24 McHugh J quoted with approval from Walton v Gardiner. The authority was cited with approval in John Anthony Wridgway v The Queen in the High Court of Australia (1995) 129 ALR 41; (1995) 69 ALJR 48. At par 20 Toohey J made reference to the authority and then said: 'There are distinct aspects of abuse of process in that proceedings may be stayed if it appears that they have been brought for an improper purpose even though there is no reason to doubt the accused will receive a fair trial. Equally an accused may not receive a fair trial by reason of delay, for instance, though there is no improper purpose in bringing the proceedings. But the power of a superior Court to stay its proceedings on grounds of abuse of process is not confined to those situations. A stay of criminal proceedings gives effect to the view that it would offend the Court's sense of justice if the accused had to stand trial in those circumstances.'' 1. Ultimately, his Honour refused to strike out the plaintiff's proceedings or order a permanent stay in Perks. 2. I accept that applications for permanent stays are intensely fact dependent. 3. The work of this Tribunal regularly involves dealing with proceedings brought against small firms or single-director companies whose managerial staff are either deceased or very elderly with minimal or negligible recollection of events occurring many decades ago. I accept that the loss of the late Mr Binns as a key witness and the loss of business records are both regrettable, however, there is nothing exceptional about the lack of such evidence in this Tribunal and I do not accept that on the current evidence available, the continuation of the trial against the seventh defendant would be manifestly unfair. 4. Bearing in mind that a stay ought only be granted in exceptional circumstances where it is demonstrated on the balance of probabilities that it would not be possible to obtain a fair trial, and that the applicant bears that onus, I am not satisfied that exceptional circumstances exist in this instance. 5. I am of the view that to grant the permanent stay would bring the administration of justice into disrepute amongst right-thinking people. Accordingly, the motion ought be dismissed with costs. ORDERS 1. I make the following orders: 1. The Notice of Motion is dismissed. 2. The applicant/seventh defendant is to pay the respondent/plaintiff's costs of the motion as agreed or assessed. ****** Amendments 02 May 2023 - Paragraph 4: Amended to read "By way of Statement of Claim filed in the Tribunal on 9 June 2022" ... and Paragraph 5: Amended to read "In June 2021". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 May 2023