Torok v Allianz Australia Insurance Ltd (No. 2) [2023] NSWDDT 5

Dust Diseases Tribunal New South Wales Medium Neutral Citation: Torok v Allianz Australia Insurance Ltd (No. 2) [2023] NSWDDT 5 Hearing dates: 17 May 2023 Date of orders: 17 May 2023 Decision date: 17 May 2023 Before: Russell SC DCJ Decision: Ex tempore reasons given in court Catchwords: EVIDENCE – admissibility – Dust Diseases Board industrial histories – statements of workers at Cockatoo Island in relation to asbestos exposure – whether inadmissible as hearsay – evidence admissible as business records under s 69 of the Evidence Act Legislation Cited: Evidence Act 1995 (NSW), s 69 Category: Procedural rulings Parties: Attila Torok (Plaintiff) Allianz Australia Insurance Ltd Representation: Counsel: F McLeod SC (Plaintiff) D Toomey SC (Defendant)

Solicitors: Segelov Taylor (Plaintiff) Rankin Ellison (Defendant) File Number(s): DDT 2022/212443

EX TEMPORE REVISED JUDGMENT 1. Part of the tender relating to the affidavit of Mr Gardner consists of two lever arch folders of what are described as Dust Board industrial histories, volume 1 and volume 2. Within the two folders are 66 industrial histories relating to claims for workers compensation for a dust disease made by workers from the Cockatoo Island Dockyard. 2. Those statements by workers are clearly hearsay. The plaintiff relies upon the exception in s 69 of the Evidence Act. That section applies, according to subs (1), if the document is or forms part of the records belonging to or kept by a person, body or organisation, in the course of or for the purpose of the business, or at any time was or formed part of such a record. 3. These industrial histories were clearly taken by what was then the Dust Diseases Board for the purpose of considering applications for compensation and they most certainly formed part of the records of that business, having been created and kept by that business. Each document contains a representation made or recorded in the document in the course of or for the purposes of the Dust Diseases Board. That is a requirement under s 69(1)(b). 4. Section 69(2) of the Act provides that the hearsay rule does not apply to the document so far as it contains the representation if the representation was made by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact. These statements are taken from workers at Cockatoo Island who said they were exposed to asbestos and who suffered from an asbestos related disease. They would have personal knowledge of their exposure to dust at Cockatoo Island, therefore s 69(2) is satisfied. 5. Section 69(3) provides that subs (2) does not apply if the representation was prepared or obtained for the purpose of conducting or for, or in contemplation of, or in connection with an Australian or overseas proceeding, or was made in connection with an investigation relating or leading to a criminal proceeding. 6. Applications for compensation to the Dust Diseases Board are administrative applications to a body which has the power to grant compensation to a person, or refuse compensation. The industrial histories are therefore not taken for the purpose of conducting any Australian Court proceeding. 7. The submission by senior counsel for the defendant is that these are documents prepared or obtained in contemplation of an Australian proceeding. There is a statutory right to appeal against a refusal of compensation which nowadays is dealt with in the District Court. 8. The industrial history is clearly taken for the purpose of the worker applying for compensation and at that stage there is no Australian proceeding in contemplation. True it is there is a right to appeal against an administrative decision, but in my view these documents are not created in contemplation of proceedings which are theoretical in the extreme at the time the industrial history is taken. 9. For those reasons, I propose to admit in their entirety volumes 1 and 2 of exhibit RG 1 to the affidavit of Mr Gardner.