Stepic v Sydney Water Corporation Ltd and Ors [2005] NSWDDT 55

Dust Diseases Tribunal of New South Wales

CITATION : Stepic v Sydney Water Corporation Ltd and Ors [2005] NSWDDT 55

Nikola Stepic (Plaintiff) Sydney Water Corporation Limited (First Defendant) PARTIES : Christopher John Plummer, Denis William Edwards and Michael Joseph David Kissane trading as Walker Kissane and Plummer (Second Defendant) Francis D M Curran (Third Defendant)

MATTER NUMBER(S) : 464/02

JUDGMENT OF: O'Meally P at 1

CATCHWORDS: :- Dust Diseases Tribunal - Uniform Civil Procedure Rules Pt 28 r 2 - application for separate trial of issue - application granted

Workers Compensation Act 1987 LEGISLATION CITED: Contracts Review Act 1980

DATES OF HEARING: 17 October 2005

EX TEMPORE JUDGMENT DATE : 10/17/2005

Mr D R J Toomey instructed by McLaughlin & Riordan Solicitors appeared for the Plaintiff Ms L P McFee instructed by Sparke Helmore appeared for the First Defendant LEGAL REPRESENTATIVES: Ms C Wood (solicitor) of Yeldham & Associates appeared for the Second Defendant No appearance by or on behalf of the Third Defendant

JUDGMENT:

RULING O'MEALLY P 1. On 20 November 2002 Nikola Stepic filed a statement of claim in the Dust Diseases Tribunal naming Sydney Water Corporation as defendant alleging that "between July 1968 and December 1969 and between February 1972 and 1975" he was negligently exposed to and inhaled silica dust as a result of which he contracted silicosis and progressive massive fibrosis. He claimed damages as a consequence of the negligence particularised in the statement of claim. On 21 February 2003 Sydney Water Corporation filed a defence to the proceedings. The employment of the plaintiff was admitted, but otherwise allegations were either not admitted or denied. 2. Relevantly to this application par 11 of the defence said: Further, or in the alternative, in answer to the whole of the Plaintiff's claim, the Defendant pleads that these proceedings are not maintainable against the Defendant by reason of the operation of the deed of release executed by the plaintiff on 16 June 2000. 3. On 16 June 2000 the plaintiff, as an applicant in the Compensation Court of New South Wales was awarded the sum of $30,000 in part by way of commutation and in part by way of redemption. A copy of the application for determination is not before me and thus I am unaware whether the provisions of Division 9 of Part 3 of the Workers Compensation Act 1987 applied. In any event, the short minutes initialled by the judge before whom the application was made, recited a plethora of injuries covering everything that could possibly blight a person in the course of a long and fragile life, save perhaps for alopecia and ingrown toenails, as injuries in respect of which the first defendant's liability as employer was to be extinguished. 4. I have been told that no evidence, medical or lay, covering all the injuries recited was placed before her Honour in the Compensation Court. It was not uncommon at the time, as part of a settlement, for a worker to agree to execute a deed, releasing an employer from liability for employment injury howsoever arising, included in which was a multiplicity of "injuries" which had not occurred. Hence, an extensive litany of physical injuries and pathological conditions was recited in the belief that an employer's actual and potential liability to a worker would be terminated by order of the Compensation Court. The practice of including injuries which had not occurred or injuries in respect of which no medical evidence was presented to a judge in the Compensation Court was one which a number of its judges deprecated and refused to sanction. 5. On 10 March 2003, following the filing of the then only defendant's defence in the Tribunal, the plaintiff issued an amended statement of claim in which he also sued the solicitors who acted and counsel who appeared for him in the Compensation Court proceedings alleging they were negligent in advising him. 6. The solicitors in the workers compensation proceedings neither consent to nor oppose the orders sought on this application, but the solicitors for counsel in those proceedings, I have been informed by Mr Toomey of counsel for the plaintiff, consent to the orders sought. Counsel in the Compensation Court proceedings was not represented on this application, but Mr Toomey has spoken with counsel's solicitors who asked that their consent be announced. 7. It is relevant also to note that on 17 December 2003 the plaintiff commenced proceedings in the Equity Division of the Supreme Court of New South Wales seeking that the deed, which was executed by the plaintiff on 16 June 2000 and in which also there is a recitation of the "injuries" nominated in the short minutes in the Compensation Court, be set aside because of mistake. Alternatively, the plaintiff invokes the provisions of the Contracts Review Act 1980 saying that insofar as the deed prevents the plaintiff from exercising his common law rights against the defendant in respect of silicosis (surprisingly, not progressive massive fibrosis as well) the deed was unjust and "should be amended so as not to prevent him ( sic, his) pursuing those common law rights". 8. On 6 October 2005 the plaintiff filed a notice of motion in the Tribunal seeking, amongst other things, an order: Pursuant to Pt 28 r 2 of the Uniform Civil Procedure Rules 2005, that there be a separate trial of the issue as to whether a Deed of Release referred to in par 11 of the first defendant's Statement of Defence filed on the 21 st February 2003, properly construed, operates as a bar to the plaintiff's proceedings. 9. The first defendant resists the making of the order saying the proceedings in the Supreme Court should first be determined and that the maintenance of proceedings here is an abuse of process. It is unnecessary, in my view, to consider whether the proceedings are an abuse of process because the orders sought in the Tribunal are different from those sought in the Supreme Court. In my view it would be sensible and would contain costs if the question sought by the plaintiff to be tried were to be tried separately here. 10. Accordingly, I make orders 1, 2 and 5 sought by the notice of motion filed 6 October 2005. 11. By consent, I make orders 1 to 5 as in short minutes of order filed in court 17 October 2005. I appoint 12 December 2005 as the day for the separate determination of the issue whether the Deed of Release referred to in par 11 of the first defendant's statement of defence filed on 21 February 2003, properly construed, operates as a bar to the plaintiff's proceedings.