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. 7. Mr Calabrese's affidavit also annexes a radiological report which recites that Mr Kerek does indeed suffer from cancer which has metastasised. Without reciting the detail of the report it is plain that his prognosis is not good. 8. This application is made pursuant to r 5.3 of the Uniform Civil Procedure Rules. Relevantly it provides: (1) If it appears to the court that: (a) the applicant may be entitled to make a claim for relief from the court against a person (the prospective respondent) but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective respondent, and (b) the prospective respondent may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and (c) inspection of such a document would assist the applicant to make the decision concerned, the court may order that the prospective respondent must give discovery to the applicant of all documents that are or have been in the person's possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief. 9. It has been noted the only matter now in issue between the applicant and Amaca is the costs of this application. I have thought anxiously whether Mr Kerek is entitled to an order for costs and my mind has vacillated on that question. Mr Prentice, who appears for Amaca, says that it is and has always been open to Mr Kerek to commence proceedings and that his solicitors, having taken instructions from him could, with propriety, have issued a statement of claim and filed the necessary certificate concerning prospects of success. I have been informed from the Bar table that Mr Kerek was a smoker. The connection between asbestos exposure and lung cancer in the absence of asbestosis is controversial. The radiological report does not address the question whether Mr Kerek does have fibrosis in the parenchyma of his lungs, that is to say it does not address the question whether he suffers from asbestosis. He does, however, have pleural plaques. Pleural plaques are, as is well known, an indicator of exposure to asbestos. If Mr Kerek is to succeed it will be necessary for him to establish either that he had exposure to asbestos sufficient to cause asbestosis (McDonald v James Hardie & Co Pty Ltd (1998) 16 NSWCCR 695) or his exposure to asbestos taken in connection with his smoking constituted a Relative Risk of 2 (Judd v Amaca Pty Ltd (No 2) (2003) 25 NSWCCR 488). It is unnecessary now to consider the nature and consequences of Relative Risks. 10. The operative phrase in r 5.3(1)(c) for present purposes appears to me to be "would assist the applicant to make the decision…." 11. The employment records, I am told, indicate not only the period during which Mr Kerek was employed but also the areas in which he was employed within the Camellia factory. The period and place of his employment would provide material evidence upon which the intensity of exposure to asbestos might be judged. In due course it will be necessary for a thoracic physician to give an opinion whether the applicant's exposure, bearing in mind he is a smoker, was sufficient to make a material contribution to his lung cancer. 12. The material in the records now produced is of such a character that it "would assist the applicant to make the decision" to proceed and in those circumstances I think the applicant is entitled to an order for costs. 13. I am obliged to Mr Gardiman and Mr Prentice for their submissions. 14. The documents have been produced, an order is therefore unnecessary, but the applicant is entitled to his costs. Mr A J Gardiman of Turner Freeman appeared for the Applicant Mr N B Prentice of Ellison Tillyard Callanan appeared for the Respondent 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.