Aviga v Boral Resources (Country) Pty Ltd [2024] NSWDDT 5

Dust Diseases Tribunal New South Wales Medium Neutral Citation: Aviga v Boral Resources (Country) Pty Ltd [2024] NSWDDT 5 Hearing dates: 8 April 2024; 18 April 2024 Date of orders: 17 May 2024 Decision date: 17 May 2024 Before: Strathdee J Decision: (1) The Notice of Motion filed 18 April 2024 is dismissed. (2) I reserve the question of costs for the trial judge. (3) The matter is listed for further directions on 3 June 2024 in the Dust Diseases Tribunal general list. Catchwords: DUST DISEASES TIRBUNAL – Parties to the proceedings – nomination of experts allowed or disallowed – interests of justice Legislation Cited: Civil Procedure Act 2005 (NSW) Dust Diseases Tribunal Act 1989 (NSW) Dust Diseases Tribunal Rules 2019 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Davies v State of New South Wales [2013] NSWSC 1277 Category: Procedural rulings Parties: Sonny Esekia Aviga (Plaintiff) Boral Resources (County) Pty Limited (Defendant) Representation: Counsel: Mr D Hooke SC and Mr A Schonnell appeared for the Plaintiff Mr D Toomey SC appeared for the Defendant

Solicitors: Maurice Blackburn (Plaintiff) Moray & Agnew (Defendant) File Number(s): 2023/54319

Judgment

INTRODUCTION 1. By Statement of Claim filed 17 February 2023, Sonny Esekia Aviga ('the plaintiff') seeks damages, interest and costs from Boral Resources (Country) Pty Limited ('the defendant') and an order pursuant to section 11A of the Dust Diseases Tribunal Act 1989 (NSW) with regard to any future condition he may develop as a consequence of his exposure to silica dust whilst working in the Mugga One and Mugga Two Quarries ('the Quarries'), quarrying and processing rock from the Quarries. 2. The matter was listed for directions before me on 8 April 2024, at which point the defendant raised the issue of the medical evidence upon which the plaintiff wished to rely. As the matter was in the general directions list, I directed the defendant to file a Notice of Motion outlining the relief that was sought, and made orders with regard to the service of evidence in support of the Motion. 3. The defendant filed a Notice of Motion ('the Motion') on 18 April 2024, the morning of the hearing this application, some five minutes before I was on the bench. It did not provide any written submissions, despite written submissions being requested. 4. The plaintiff filed and served written submissions in anticipation of the defendant's Motion, and helpfully agreed to accept short service of the Motion, which it received just before I came onto the bench. 5. The Motion seeks the following order: 'Orders pursuant to UCPR 31.20 that the plaintiff be limited in respect of those issues in the case calling for opinion evidence from a respiratory physician or like expert, to the evidence of Dr Jonathon Burdon ('Dr Burdon')'. 1. The defendant read the affidavit of Stephen David Taylor-Jones ('STJ') dated 16 April 2024, which became exhibit 1 on the Motion. The plaintiff read the affidavit of Jonathan Walsh ('JW') dated 10 April 2024, which became exhibit 2 on the Motion.