DOUGLAS J HOLLAND PTY LIMITED v HOLLAND SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL PRIESTLEY JA and CLARKE AJA 17 June 1997 [1997] NSWCA 92 Priestley JA and Clarke AJA. On 27 November 1996 judgment was delivered by this Court allowing two appeals from a decision of the Dust Diseases Tribunal and ordering a new trial. Arthur Norman Holland, the plaintiff at first instance and the respondent in this Court (we will call him the plaintiff) has now filed a Notice of Motion seeking an order that the new trial be limited to damages or, in the alternative, be limited to the issue whether the plaintiff suffers from asbestosis. The grounds on which the application is based are, in summary: — 1. As to the appeal by Douglas J Holland Pty Limited (the first defendant):a) the first defendant conceded that: i) ii) the plaintiff was employed by it between August 1971 and 7 May 1987; the plaintiff was exposed to asbestos material in the course of his employment during that period; b) although the first defendant denied it had breached its duty of care to the plaintiff that issue was found in the plaintiff's favour at first instance and this Court had upheld that finding; c) the first defendant also abandoned its attack on the assessment of damage. Its sole challenge was to the judge's finding that the plaintiff suffered from asbestosis. 2. As to the appeal by the Commonwealth of Australia (the second defendant): a) b) the second defendant admitted the plaintiff was employed by it and on the appeal abandoned its challenges to the finding of breach of duty and the assessment of damages; the second defendant contended only that the trial judge's finding that the plaintiff had asbestosis was wrong. It followed, according to the plaintiff, that it would be unjust and needlessly expensive to require that the plaintiff be put to proof on all those issues which the defendants had abandoned or failed successfully to challenge on appeal. When the application came on for hearing before the Court as presently constituted it was suggested the parties should file written submissions which might then be considered by the three judges who heard the appeal, who might be able to decide the application without putting the parties to the expense of further hearing or submissions. This course was suggested as a desirable possibility but not a certainty. The Court said that it would JOBNAME: No Job Name PAGE: 2 SESS: 1 OUTPUT: Mon Feb 25 18:24:41 2008 /reports/caseml]/case/urj/9708263 UNREPORTED JUDGMENTS subsequently notify the parties of the course intended to be taken, either by way of disposition of the motion or setting down for oral argument. Written submissions were subsequently filed in which the arguments are fully set out. It has not been practical to refer them to the three original judges. We are aware that the new trial is set down for hearing very shortly. We think it appropriate to deal ourselves with the application on the basis of the written submissions. The plaintiff's first submission was that it was open to the Court to vary orders which had been made but not entered on the formal record and that, for the reasons explained above, the dictates of justice required that the orders be varied. We will assume that it is open to the Court to vary the order made and confine our observations to the question whether the order should be varied. Before referring to the positions taken by the defendants we should point out that there are obvious difficulties in the making of an order by this Court limiting the issues in the manner sought by the plaintiff. In the first place it would be inappropriate to limit the new trial to the issue of damagesfor the simple reason that the critical issue remaining for determination is that of causation. In other words the Tribunal will need to consider whether the defendants" breaches of duty caused any damage and, if so, what is the nature and extent of that damage. Secondly, an order limiting the re-trial to the issue whether the plaintiff suffers from asbestosis would, or might, mean that if the defendants were successful on that issue the outstanding question whether the plaintiff suffered breach-induced damage and its extent would not be catered for. For these reasons we do not think this Court ought to fetter the conduct by the Tribunal of the new trial. However that does not mean that the Tribunal is bound to require the plaintiff to start all over again. A number of issues have either been conceded by the defendants or found against them. There would seem to us to be no reason why the Tribunal could not, in its discretion, order that the relevant defendant should be required to abide by a concession, or concessions, already made. The Tribunal is invested with wide ranging powers enabling it to conduct the hearing in such a manner as to limit the area in dispute to matters truly in issue (see Dust Diseases Tribunal Act s 23; Dust Diseases Tribunal Rules R 2 (incorporating Supreme Court Rules Part 1 r 12). The present case is a singularly appropriate one for the exercise of those powers. Of course these powers should always be exercised so as not to interfere with the substantive rights of the parties in connection with matters truly in issue and caution must be exercised. That having been said the Tribunal is muchbetter placed than is this Court to determine the appropriate procedures to be followed. JOBNAME: No Job Name PAGE: 3 SESS: 1 OUTPUT: Mon Feb 25 18:24:41 2008 /reports/caseml]/case/urj/9708263 URJDOUGLAS J HOLLAND PTY LIMITED v HOLLAND (Priestley JA and Clarke AJA) 3 Although we would not make an order limiting the range of the new trial we ought to bring to the attention of the Tribunal the submissions of the defendants as to the remaining issues. The first defendant stated that: 8. The only remaining issues are: (a) medical diagnosis; (b) the origin or cause and nature of any medical condition; (c) and if liability is otherwise established, what damages in relation to the particulars of claim would flow The second defendant, which opposed a new trial limited to damages, stated: . As to order 2 in the Notice of Motion the Second Respondent consents to the new trial being limited on the question of liability to the issues of whether the First Respondent suffers asbestosis and if so, what are the damages which the First Respondent is entitled to recover from the Second Respondent. . If the new trial is to be conducted on the basis outlined in 4 above then the Second Respondent will consent to the tendering into evidence transcript of the evidence given by the First Respondent about and concerning his service in the Royal Australian Navy (T pages 1 to 15J, and 33N to 38H being his evidence in chief as it relates to the Second Respondent), and the whole of the cross examination of the First Respondent. . By reason of the above concession by the Second Respondent and subject to the submissions by the Appellant, it is submitted that it is not necessary for the Court to make any orders in this application. In the light of these statements and the express (and implied) concessions which underlie them the Tribunal will undoubtedly be able to fashion a procedure for the expeditious determination of the re-trial and it is better that it do so without being restricted by an order of this Court. Finally we observe that all questions of costs, save for the costs of this application, should remain in the discretion of the Tribunal. We make no order for the costs of this application which are to be borne by each of the parties. Orders accordingly.