(Re: Lawrence) BHP Billiton Ltd v Amaca Pty Ltd [2003] NSWDDT 17

Dust Diseases Tribunal of New South Wales

CITATION : (Re: Lawrence) BHP Billiton Ltd v Amaca Pty Ltd [2003] NSWDDT 17 PARTIES : BHP Billiton Ltd Amaca Pty Ltd MATTER NUMBER(S) : 23 of 2003 CC 1 JUDGMENT OF: O'Meally P at 1 CATCHWORDS: :- LEGISLATION CITED: S 63, Evidence Act 1995 CASES CITED: DATES OF HEARING: 05/09/03 EX TEMPORE JUDGMENT DATE : 09/05/2003

FOR CROSS CLAIMANT: Mr D K Jordan instructed by Piper Alderman. LEGAL REPRESENTATIVES: FOR CROSS DEFENDANT: Ms W Strathdee instructed by Phillips Fox.

JUDGMENT: *

1. Mr Jordan has tendered a statement said to have been made by the plaintiff on 12 September 2002. He seeks to make the tender pursuant to s 63 of the Evidence Act 1995. S 63 provides: (1) This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to: (a) The evidence of representation that is given by a person who, saw, heard or otherwise perceived the representation being made; or (b) A document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation. 2. I have been informed that BHP will rely upon the statement to prove that the plaintiff's exposure to asbestos emanating from JHCs products did not occur or was less than sworn to by the plaintiff at and after the time BHP received actual notice of the dangers of asbestos. 3. Objection has been taken by counsel for JHC to the admission of the statement. Before the statement may be admitted it must be established that the plaintiff is unavailable to give evidence. 4. Unavailability of persons is dealt with in the dictionary contained in the schedule to the Act. Relevantly it provides: 4(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: (a) ... (b) ... (c) ... (d) ... (e) … (f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success. (2) In all other cases the person is taken to be available to give evidence about the fact. 5. The plaintiff gave evidence before me in the courthouse at Whyalla in South Australia on 6 August 2003. His evidence, and all other evidence in his action is now evidence in the cross claims. He was cross-examined by counsel for BHP and by counsel for JHC. 6. In my view it cannot be said that the plaintiff is not available to give evidence. One might ask how it can be said that a person who has given evidence is unavailable to give evidence. The fact is the plaintiff did give evidence and was cross-examined. One might also ask how it can be said that BHP has taken all reasonable steps to compel the plaintiff to give evidence but without success. It has taken no steps. It will be remembered that the plaintiff is seriously ill and unable to travel. If evidence is to be taken from him again, of necessity it must be taken in Whyalla. It would be taken at BHP's expense whatever the outcome of this cross claim. 7. If it be the case that BHP had actual knowledge of the dangers of asbestos at a time when the plaintiff's exposure was less than at a stage when it did not, I do not know that necessarily would affect the outcome of this cross-claim. Consideration must be given to the question whether BHP ought and could have made inquiries about the dangers of asbestos. 8. I think the appropriate course is to have the statement marked for identification so that if this ruling is to be tested elsewhere those giving consideration to it will be able to examine the statement. I have not read it. 9. I reject the tender. The statement of the plaintiff bearing date 12 September 2002 has been marked 1 for identification.