Dust Diseases Tribunal New South Wales Medium Neutral Citation: Topalovic v BlueScope Steel (AIS) Pty Ltd [2024] NSWDDT 7 Hearing dates: 3 June 2024 Date of orders: 11 June 2024 Decision date: 11 June 2024 Before: Scotting J Decision: (1) Pursuant to cl 20(1)(c) of the Dust Diseases Tribunal Regulation 2019, the proceedings are removed from the Claims Resolution Process. (2) I will hear from the parties as to the appropriate directions to be made to bring the matter to mediation as soon as practicable. (3) The plaintiff is to pay the costs of the Notice of Motion and the costs thrown away by the refusal to attend the medical examination with Professor McKenzie on 29 May 2024. (4) I grant liberty to either party to seek a different costs order. Catchwords: DUST DISEASES — refusal to attend medical appointment – removal from CRP - mediation Legislation Cited: Civil Liability Act 2002 Dust Diseases Tribunal Regulation 2019 Category: Procedural rulings Parties: BlueScope Steel (AIS) Pty Ltd (Applicant/Defendant) Momcilo Topalovic (Respondent/Plaintiff) Representation: Counsel: A Giurtalis (Respondent/Plaintiff) Solicitors: HWL Ebsworth Lawyers (Applicant/Defendant) Nikolovski Lawyers (Respondent/Plaintiff) File Number(s): 2023/213804 Publication restriction: None Judgment Introduction 1. The defendant, BlueScope Steel (AIS) Pty Limited (BlueScope), seeks an order that the proceedings be removed from the claims resolution process (CRP) pursuant to cl 20(1)(c) Dust Diseases Tribunal Regulation 2019 (the Regulations), on the basis that the plaintiff has failed to comply with a requirement of the CRP and the failure has resulted in substantial prejudice to BlueScope or substantial delay. 2. BlueScope read an affidavit of David Christopher Andersen affirmed on 29 May 2024. 3. The plaintiff read an affidavit of Chris Nikolovski affirmed on 1 June 2024. 4. For the reasons that follow, I am satisfied that the plaintiff has failed to comply with a requirement of the CRP and that as a result BlueScope will suffer substantial prejudice. Accordingly, the proceedings will be removed from the CRP and be the subject of judicial management with a view to holding a mediation as soon as is reasonably practicable. Background 1. The plaintiff was born on 8 March 1936 and is presently 88 years of age. 2. The plaintiff alleges that he was employed by BlueScope at the Port Kembla Steelworks between 1958 and 1992. 3. On 4 July 2023, the plaintiff filed a Statement of Claim seeking provisional damages for asbestos-related pleural disease (ARPD) and asbestosis. On 22 December 2023, the plaintiff filed and served his Statement of Particulars which commenced time to run on the CRP requirements for a non-malignant claim. 4. On 16 January 2024 BlueScope requested an extension of 20 business days in which to file and serve cross-claims pursuant to cl 25(3)-(4) of the Regulations. 5. On 22 January 2024, the plaintiff consented to BlueScope's request to extend the time for the filing and service of cross-claims by 20 business days. 6. On 26 February 2024 BlueScope sought particulars from the plaintiff in the following terms: BlueScope seeks "the following further particulars and information pursuant to clause 26 of the Dust Diseases Tribunal Regulation 2019 (NSW): (a) Please specify the full name and date of birth of the plaintiff's wife; (b) Please provide particulars of the plaintiff's wife's treating general practitioner(s) over the last five years; (c) Please provide particulars of the person or persons who provide the plaintiff with domestic assistance. Please particularise their date of birth and their employer. (d) Please provide particulars of persons whom it is alleged will provide the future domestic assistance or gratuitous care to the plaintiff. Please provide the date of birth of each such person and their employer. We would appreciate your response within 14 days of the date of this letter and look forward to hearing from you." 1. On 1 March 2024 BlueScope enquired if the plaintiff was well enough to travel to attend a medical examination with Professor David McKenzie in Randwick. 2. On 5 March 2024, the plaintiff responded that he was well enough to travel but required BlueScope to pay for the cost of transporting the plaintiff by a private car to and from the appointment, which was estimated to cost $750. 3. On 7 March 2024 BlueScope advised that it would meet the transport cost and would advise when an appointment with Professor McKenzie had been arranged. 4. On 11 March 2024 BlueScope advised that the medical examination with Professor McKenzie had been arranged for 29 May 2024. 5. On 12 March 2024 BlueScope sought a response to the particulars requested on 26 February 2024. On 25 March 2024 BlueScope sent further correspondence seeking a response to the particulars requested on 26 February 2024. 6. On 27 May 2024, a law clerk employed by the plaintiff's solicitor sent an email to BlueScope's solicitor advising that the plaintiff objected to attending the medical examination with Professor McKenzie because it was scheduled outside of the timeframe set out in clause 29 of the Regulations. 7. On 27 May 2024 BlueScope wrote to the plaintiff setting out that it expected the plaintiff to attend the medical examination, or that it would file a motion in the Tribunal to have the proceedings removed from the CRP. 8. On 28 May 2024, the plaintiff's solicitor advised that the plaintiff could not attend the medical examination by reason of his age and condition, suggesting that if BlueScope still wanted to have the plaintiff examined that it could organise an appointment with a doctor in Wollongong or by audio-visual means. Relevant Clauses of the Regulations 1. Clause 12 of the Regulations provides: 12 Objectives of claims resolution process The objectives of the claims resolution process are as follows-- (a) to foster the early provision of information and particulars concerning claims in respect of asbestos-related conditions, (b) to encourage early settlement of claims, (c) to reduce associated legal and administrative costs. 1. Clause 16 of the Regulations relevantly provides: (1) A claim to which this Part applies is subject to the claims resolution process once the claim is filed. Note: Clause 20 provides for some claims to be removed from the claims resolution process. (2) A claim remains subject to the claims resolution process-- (a) until the claim is settled by mediation or otherwise and the Tribunal makes an order to give effect to the settlement, or (b) if the claim is not settled by the time mediation is concluded--until mediation is concluded and clause 40 has been complied with. (3) The parties to a claim can agree to extend the period for which the claim remains subject to the claims resolution process. 1. Clause 17(1) of the Regulations provides: 17 Effect of claim being subject to claims resolution process (1) While a claim is subject to the claims resolution process-- (a) the parties to the claim must comply with the provisions of this Part, and (b) proceedings in the Tribunal to determine the claim are deferred and the claim is not subject to case management by the Tribunal, and (c) the claim is not subject to the provisions of rules of court, or any direction or order of the Tribunal under a provision of the Act, any other Act or rules of court, as to any steps to be taken in proceedings on the claim or for the referral of the claim for alternative dispute resolution, such as mediation. Note: Clause 20 provides for the removal of certain claims from the claims resolution process. 1. Clause 20(1) of the Regulations provides: (1) A claim is removed from (and is therefore not subject to) the claims resolution process if-- (a) the Tribunal determines, on application by the claimant and on the basis of medical evidence presented for the claimant, that the claim is urgent, or (b) all the parties to the claim agree, following the required information exchange, that the claim should not be the subject of the claims resolution process and notify the registrar accordingly, or Note : For example, the parties may consider that the claim raises novel issues (in the nature of a "test case") that are unlikely to be resolved by the claims resolution process. (c) the Tribunal determines on application by a party (the "applicant" ) that the claim should be removed from the claims resolution process because another party to the claim has failed to comply with a requirement of the claims resolution process and that failure has resulted in substantial prejudice to the applicant or substantial delay, or (d) the Tribunal determines, of its own motion, that the claim should be removed from the claims resolution process because no documents have been filed, and the claim has not otherwise progressed in the claims resolution process, within the previous 12 months. 1. Clause 22 of the Regulations provides: 22 General obligations to update documents and information A party to a claim who is required by a provision of this Part to provide documents or information to another party by way of a statement of particulars or reply must, while the claim is subject to the claims resolution process, update or notify any necessary changes to the documents and information provided (as and when any relevant new or changed documents or information become available). 1. Clause 25(7) of the Regulations provides: An extension of the time for filing and serving a cross-claim extends (for the period of the extension) all subsequent time periods within which anything is required to be done under the claims resolution process in respect of the claim concerned. 1. Clause 26(8) of the Regulations provides: The plaintiff must comply with any reasonable requirement of the defendant for more information concerning the plaintiff's claim (whether made as part of the defendant's reply or subsequently) and must provide that information as soon as practicable and, in any case, no later than 5 business days before the start of mediation. 1. Clause 29 of the Regulations relevantly provides: 29 Medical examinations (1) An original defendant who requires the plaintiff to attend for a medical examination in connection with the plaintiff's claim must notify the plaintiff of that requirement within-- (a) 10 business days for malignant claims involving only one defendant, or (b) 20 business days for malignant claims involving more than one defendant, or (c) 30 business days for non-malignant claims involving only one defendant, or (d) 50 business days for non-malignant claims involving more than one defendant, after service of the plaintiff's statement of particulars on the last of the original defendants. (2) Any medical examination of the plaintiff that an original defendant requires must take place within-- (a) 20 business days for malignant claims involving only one defendant, or (b) 30 business days for malignant claims involving more than one defendant, or (c) 40 business days for non-malignant claims involving only one defendant, or (d) 60 business days for non-malignant claims involving more than one defendant, after service of the plaintiff's statement of particulars on the last of the original defendants. (3) The period within which a medical examination is required to take place under subclause (2) may be varied by agreement between all the parties to the claim. Any variation has no effect on the running of any other time period for the purposes of the claims resolution process. Consideration Failure to respond to particulars sought on 26 February 2024 1. By failing to provide an answer to the particulars first sought on 26 February 2024, the plaintiff has failed to comply with a requirement of the CRP. The particulars sought, set out at [10] above, were capable of being provided within a very short period of time, and I am satisfied that by not being provided for now more than three months, the plaintiff has failed to provide the information "as soon as practicable" in accordance with cl 26(8) of the Regulations. 2. The plaintiff seeks damages under s 15A and s 15B Civil Liability Act 2002 and alleges that he has had the relevant incapacity for an extended period. The particulars sought are essential to BlueScope's understanding of the case it is required to meet and to BlueScope's ability to test the evidence to be relied on by the plaintiff, by taking appropriate steps such as issuing subpoenas. 3. I am satisfied that the plaintiff's failure to respond has resulted in substantial prejudice to its case, which is continuing. Refusal to attend medico-legal appointment with Professor McKenzie 1. The effect of the plaintiff consenting to an extension to the time for filing cross-claims was to extend the timetable in all other respects: cl 25(7) of the Regulations. Accordingly, BlueScope's notification of the medical examination with Professor McKenzie was within time, but the appointment itself was not. The plaintiff could have consented to the examination being held later, without any corresponding impact on the remaining steps to be completed: cl 29(3) of the Regulations. The extension was unlikely to have had any impact on the ability to organise a mediation on or before 30 July 2024. 2. BlueScope could not have done much more to ensure that the plaintiff was physically able to attend a medical examination. It first asked if the plaintiff was well enough to attend and then agreed to pay a substantial amount to provide personal transport to enable the plaintiff to attend. 3. The explanation offered by the plaintiff's solicitor for the change in heart was that there was a change in personnel with carriage of the plaintiff's matter and that the plaintiff was not physically able to attend. There is no evidence that the previous lawyers with carriage of the matter failed to obtain instructions from the plaintiff as to his ability to attend the assessment. There is no evidence that the plaintiff's condition deteriorated in the relevant period and he became unfit to attend the medical examination. Further, the plaintiff's solicitor did not communicate the change in heart until two days before the scheduled appointment. I am satisfied that in all material respects the plaintiff conducted himself as if there was an agreement to attend the medical examination with Professor McKenzie on 29 May 2024. 4. The refusal to attend the medical appointment and the conduct leading to it, are unacceptable. The plaintiff is bound by the conduct of his solicitors. 5. BlueScope is entitled to have the plaintiff examined by a medical expert as part of its case and I am satisfied that it will suffer significant prejudice if it is precluded from doing so. 6. I will hear from the parties as to the appropriate directions to be made to bring the matter to mediation as soon as is practicable. Orders 1. The orders I make are as follows: 1. Pursuant to cl 20(1)(c) of the Dust Diseases Tribunal Regulation 2019, the proceedings are removed from the Claims Resolution Process. 2. I will hear from the parties as to the appropriate directions to be made to bring the matter to mediation as soon as practicable. 3. The plaintiff is to pay the costs of the Notice of Motion and the costs thrown away by the refusal to attend the medical examination with Professor McKenzie on 29 May 2024. 4. I grant liberty to either party to seek a different costs order. ********** 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: 11 June 2024