Adam Warner v Liddell Coal Operations Pty Limited; Lauren Warner v Liddell Coal Operations Pty Limited [2023] NSWDC 653

District Court New South Wales

Medium Neutral Citation: Adam Warner v Liddell Coal Operations Pty Limited; Lauren Warner v Liddell Coal Operations Pty Limited [2023] NSWDC 653 Hearing dates: 4 December 2023 Date of orders: 4 December 2023 Decision date: 04 December 2023 Jurisdiction: Civil Before: Neilson DCJ Decision: See par [14]. Catchwords: Practice and procedure – Discontinuance – Costs – Where Statute inhibits costs orders against claimants. Legislation Cited: Civil Procedure Act 2005 Evidence Act 1995 Workers Compensation Act 1926 Workers Compensation Act 1987 Cases Cited: Nil. Texts Cited: Nil. Category: Principal judgment Parties: Plaintiff (2022/00154407) - Adam Warner Plaintiff (2022/00154416) – Lauren Warner Defendant (both) – Liddell Coal Operations Pty Limited Representation: Counsel: Plaintiffs – Loukas, B. Defendant – Rowles, T.

Solicitors: Plaintiffs – Brydens Lawyers. Defendant – Sparke Helmore Lawyers. File Number(s): 2022/00154407 & 2022/00154416 Publication restriction: Nil.

Judgment 1. HIS HONOUR: There are listed before me today, two matters for hearing. The first matter is brought by Adam Warner against Liddell Coal Operations Pty Ltd. The second matter is brought by Lauren Warner against the same defendant. As I understand it, Mr Adam Warner and Ms Lauren Warner are either married, or living together as man and wife. 2. Each makes the same allegation of injury in the initiating process. The allegation is that between March 2018 and November 2020, each of the plaintiffs was subjected to bullying, harassment, ostracism, "workplace mobbing" (whatever that might be), and unfair management tactics leading to a psychological or psychiatric injury. Each plaintiff claims continuing payments of weekly workers compensation payable to those who are injured in or about a coal mine for either total incapacity, partial incapacity or partial incapacity deemed to be total, pursuant to section 11(2) of the Workers Compensation Act 1926, as its operation is preserved for those work in or about a coal mine under the Workers Compensation Act 1987, Schedule 6, Part 18. 3. Each matter has run together. Each matter has been before the Court on at least 20 occasions. The vast majority of those appearances were before the Assistant Registrar, who was making orders to try to get the matter ready for hearing, trying to make orders concerning conciliation, and ruling on the production of documents on subpoena and giving access thereto. 4. The matter first came before me on 28 February 2022, after having been referred to me by the Assistant Registrar for granting access to documents on subpoena. I adjourned it to another date before the Registrar again. The matter then was transferred out of the Newcastle list, and into the Sydney Mining List, where it came before me for call over on 7 November 2022. On that occasion, I stood the matter back into the Newcastle list and placed it before the Registrar on 9 December 2022. 5. On 9 December 2022, Registrar McTegg, not the usual Registrar dealing with the Coal Miner's Workers Compensation List, listed the matter for hearing for three days in Newcastle, commencing on 13 June 2023, but there was no sittings at that time. Eventually, the order was amended so that the matter was listed for three days commencing on 19 June 2023 in Newcastle. It came on for hearing before me at Newcastle on 19 June, when at the request of the parties, I stood it over to 20 June 2023. 6. At 10am on 20 June 2023, I stood the matter over to Chambers at a convenient time in the week commencing 26 June 2023. However, I made another order at 4pm, listing the matters for hearing for five days commencing on 4 December 2023 here in Sydney. It is a result of that order, that the matters come before me today. In the meantime, there were a number of developments. 7. Messrs Turner Freeman ceased to act on behalf of each of the plaintiffs. I am told from the Bar table that there was a falling out between the plaintiffs and the lawyers then retained by them, including counsel who had been briefed by the solicitors. On 9 November 2023, Andriana Hagipantelis of Messrs Brydens, wrote to the defendant's solicitor confirming that they were filing a notice of change in solicitor. However, they had not yet received sealed copies of those documents. 8. Erroneously, the new solicitor for the plaintiff referred to filing a notice of appearance, but the proper document to serve is a notice of change of solicitor. In any event, the email addressed to the defendant's solicitor, Ms Palamara, goes on to say this: "The plaintiffs will be ready to proceed to hearing on 4 December." 1. Now, on 4 December, the plaintiffs say they are not ready, and that they never wished to have their case litigated in the Coal Miner's Special Statutory Compensation List. I am told by counsel for the plaintiffs that they believed that their proceedings were in the civil jurisdiction of this Court. They commenced proceedings in the civil jurisdiction of this Court on 6 November 2023, but the Statements of Claim were only served upon the defendant on 30 November 2023. 2. The plaintiffs are not ready, and they do not wish to proceed in this List. The only problem is that they have a right to pursue their workers compensation rights that cannot be bargained away. There is nothing that would prevent them, if I grant them leave to discontinue the proceedings today, from recommencing proceedings tomorrow. Considering the complete lack of preparation of the plaintiffs' case in this List, is hard to see that the preparation of their cases in the civil jurisdiction will be any more expeditious. 3. In the meantime, the defendant has been put to great expense and, for example, has arranged for a large number of witnesses to be available to give evidence this week, to the disruption of the management of the coal mine where the plaintiffs say they sustained their psychiatric injuries. I must bear in mind what I am told by counsel for the plaintiffs, that they are not ready to proceed, and that they do not wish to proceed in this List. I have to accept that, despite the fact that on 9 November 2023, Andriana Hagipantelis said that the plaintiffs would be ready to proceed here today on 4 December 2023. 4. Notices of discontinuance were sent by email to my Associate, but they were not in the correct form. Notices of motion were also sent to my Associate, unsealed and unsigned, no doubt in the expectation that should the defendant not consent to the discontinuance, it might be necessary for the plaintiffs to file the notices of motion. However, I can consider the motions ore tenus. 5. I must not order costs against the plaintiffs, unless the defendant establishes on a civil standard, bearing in mind the provisions of section 140 of the Evidence Act 1995, that the applications that were made to the Court were frivolous, vexatious, without proper justification or fraudulent. The defendant quite properly does not seek to adduce evidence on those issues at this time, probably bearing in mind the fact that they have to defend the common law proceedings which have been commenced. 6. I therefore make the following orders: 1. I grant leave to each of the plaintiffs to discontinue proceedings pursuant to the Civil Procedure Act 2005, section 14. 2. I dispense with their requirements of UCPR part 12 requiring the filing of any notice of discontinuance. 3. I grant liberty to the defendant to apply for costs against each plaintiff in the event of either: 1. plaintiff recommencing proceedings in this List, or 2. plaintiff not prosecuting or prosecuting unsuccessfully proceedings in the civil jurisdiction of this Court. 1. Any other orders sought, Mr Rowles? 2. ROWLES: I don't think so, your Honour. I will just get some instructions. The defendant is satisfied with those orders. 3. HIS HONOUR: Do you understand those orders, Mr Loukas? 4. LOUKAS: Yes, your Honour. I do. Thank you.