Kerek v Amaca Pty Ltd [2007] NSWDDT 35

Dust Diseases Tribunal of New South Wales

CITATION : Kerek v Amaca Pty Ltd [2007] NSWDDT 35

PARTIES : Frank (AKA Franc) Kerek (Plaintiff) amaca Pty Ltd (Defendant)

MATTER NUMBER(S) : X007 of 2007

JUDGMENT OF: O'Meally P

CATCHWORDS: Dust Diseases Tribunal :- Request to employer to produce employment records - Employer fails to produce records - Pre-trial summons seeking records - Records produced at court - Applicant awarded costs.

LEGISLATION CITED: Uniform Civil Proceedure Rules, Rule 5.3

CASES CITED: McDonald v James Hardie & Co Pty Ltd (1998) 16 NSWCCR 695; Judd v Amaca Pty Ltd (No 2) (2003) 25 NSWCCR 488

DATES OF HEARING: 21 December 2007

DATE OF JUDGMENT: 21 December 2007

EX TEMPORE JUDGMENT DATE : 21 December 2007

Mr A J Gardiman of Turner Freeman appeared for the Applicant LEGAL REPRESENTATIVES: Mr N B Prentice of Ellison Tillyard Callnan appeared for the Respondant

JUDGMENT:

RULING O'MEALLY P 1. This is the return of a summons issued by Frank Kerek seeking an order for preliminary discovery. Mr Kerek was employed by James Hardie & Coy Pty Ltd now Amaca Pty Ltd (Amaca). Yesterday 20 December 2007 the applicant issued a summons seeking that Amaca produce: All documents relating to the applicant's employment with the respondent at its factory at Camellia in the State of New South Wales. 2. Mr Prentice appears for Amaca and has documents to produce. The order is now unnecessary, but Mr Kerek seeks an order for costs.

3. Filed in support of the application is an affidavit by Joseph Calabrese, sworn 20 December 2007. Paragraph 3 of the affidavit is: The applicant was born on 1 December 1941 and is currently seventy-six years of age. The applicant instructs me that he worked for the respondent at its Camellia factory some time in the early to mid 1960s for a period of about two or three years. 4. Plainly, the applicant could not be seventy-six years of age if he were born in December 1941. The material which Mr Prentice has produced relates to a Frank Kerek born on 29 November 1939, and is not disputed it relates to the applicant. 5. Before the summons was issued Mr Calabrese telephoned the respondent on 18 December 2007 and spoke to one Kay Campbell requesting employment records of Mr Kerek. He was informed that one Nerida Grimley would deal with his request when she returned the day following. Mr Calabrese contacted Ms Grimley on 19 December 2007. The conversation is deposed to in par 7 of Mr Calabrese's affidavit and is recited as follows: Mr Calabrese said: Nerida, Mr Kerek suffers from lung cancer. I really need to receive a copy of any employment records from you as his prognosis is uncertain. She said: Joe, we don't have any obligation to provide them to you though in the past we have, but we are currently 8 months behind in an IT program and I need to prioritise resources. You should just start he [sic] claim. Mr Calabrese said: Providing the records now can only help you. Why can't you? She said: I am sorry, I don't have the resources. Mr Calabrese said: For how long is this going to be the case so I can tell my colleagues here at Turner Freeman? She said: For at least six months. 6. The application for preliminary discovery was then filed.