Hawchar v Dasreef Pty Ltd (ruling) [2008] NSWDDT 31

Dust Diseases Tribunal of New South Wales

CITATION : Hawchar v Dasreef Pty Ltd (ruling) [2008] NSWDDT 31

PARTIES : Nawaf Hawchar (Plaintiff) Dasreef Pty Ltd (Defendant)

MATTER NUMBER(S) : 7323 of 2007

JUDGMENT OF: O'Meally P

CATCHWORDS: DUST DISEASES TRIBUNAL :- Application to take evidence outside New South Wales - whether balance of cost and convenience in proceedings so requires

LEGISLATION CITED: Dust Diseases Tribunal Act 1989

DATES OF HEARING: 28 October 2008

DATE OF JUDGMENT: 28 October 2008

EX TEMPORE JUDGMENT DATE : 28 October 2008

A J Bartley, SC with F Toscano instructed by Keddies appeared for the plaintiff LEGAL REPRESENTATIVES: T G R Parker, SC with D T Miller instructed by Moray & Agnew appeared for the defendant

JUDGMENT:

RULING O'MEALLY P 1. Nawaf Hawchar is claiming damages from Dasreef Pty Limited. His case is part heard before Curtis J. He alleges that as a result of exposure to silica dust he has contracted silicosis. He alleges also that that silicosis caused or made a material contribution to scleroderma. The fact of his suffering silicosis is not in dispute. It is contentious that his silicosis caused or made a material contribution to scleroderma.

2. The plaintiff wishes to take evidence from Professor Douglas Henderson who, until recently, held the chair of pathology at Flinders University in Adelaide, South Australia. Professor Henderson remains a resident of South Australia but by reason of professional commitments, it is difficult for him to travel to Sydney.

3. Section 13(7) of the Dust Diseases Tribunal Act 1989 provides: If the President is of the opinion that the balance of cost and convenience in the proceedings so requires, the President may direct that the hearing of the proceedings, or part of the proceedings, take place outside New South Wales. 4. It is the case that from time to time the Tribunal sits outside New South Wales to hear cases where plaintiffs reside outside this state. That occurs when there is a number of cases or, to use the words of the statute, the balance of cost and convenience requires. Mr Bartley of Senior Counsel has informed me that much of the opinion of Professor Henderson is based upon a review of the literature and as a consequence, or I assume as a consequence, the defendant will challenge the qualification of Professor Henderson to give evidence of the type contained within his reports. His first report, a copy of which has been provided to me, contains reference to thirty-eight papers. I have been informed that it will be necessary during the course of Professor Henderson's evidence, whether on the voir dire or in chief, to identify the literature or parts of it and no doubt also he would be cross-examined on it. This will involve the identification and exchange of literature. During the course of Professor Henderson's evidence it is likely that parts of papers, particularly diagrams, will pass between counsel and witness.