BOVIS LEND LEASE PTY LTD v TACON [2003] NSWCA 79

New South Wales Court of Appeal

CITATION : BOVIS LEND LEASE PTY LTD v TACON [2003] NSWCA 79 HEARING DATE(S) : 9 April 2003 JUDGMENT DATE : 9 April 2003

JUDGMENT OF : Mason P at 1; Giles JA at 24; Ipp JA at 25 DECISION : Appeal allowed.

PARTIES : BOVIS LEND LEASE PTY LTD v Donald James TACON FILE NUMBER(S) : CA 40278/03 COUNSEL : Claimant: R S Stitt QC/ A C Scotting Opponent: D Letcher QC SOLICITORS : Claimant: Moray & Agnew Opponent: Turner Freeman, Parramatta

LOWER COURT Dust Diseases Tribunal JURISDICTION : LOWER COURT DDT 112/03 FILE NUMBER(S) : LOWER COURT Judge Maguire QC JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40278/03

MASON P GILES JA IPP JA

Wednesday 9 April 2003 BOVIS LEND LEASE PTY LTD v DONALD JAMES TACON JUDGMENT 1 MASON P: The opponent, Mr Tacon, worked for the claimant between 1960 and 1987. After that he worked in his own business. He has given evidence to the effect that he was exposed to asbestos in the course of his employment with the claimant. 2 In October 2002 the opponent was diagnosed with cancer of the prostate. On 8 December 2002 he was injured in a motor cycle accident. On 11 March 2003 mesothelioma was diagnosed. On 31 March 2003 the opponent instructed his solicitors to commence proceedings in the Dust Diseases Tribunal against the claimant. These were commenced on 1 April and the statement of claim was served that day. 3 The matter came on for directions in accordance with the usual practice of that Tribunal on Wednesday 2 April. At that stage there was communication between the solicitors to the effect that the life prognosis of the opponent was one to two weeks. 4 In light of this information arrangements were made for the opponent's evidence to be taken at his bedside on Thursday 3 April. The matter was stood over to Monday 7 April for directions. 5 The claimant is a company that has had experience of dust diseases and in particular mesothelioma litigation. The claimant's solicitor knew that the matter was urgent but did not believe until some time on Monday 7 April that the plaintiff was going to seek a hearing date to commence that day. Judge Maguire QC, who had heard the opponent's evidence, fixed the hearing to start at 1 pm on Monday 7 April. It did not start then but there were further applications for directions during the day. Late in the day the hearing was fixed to commence on 10 April and it is that order that is the subject of these appellate proceedings. 6 The alleged tortious injury occurred in the Australian Capital Territory. Under the conflict of law rules applicable, unless the matter proceeds to judgment before the death of the opponent, general damages would not be recoverable. Ultimately, on 7 April an undertaking was given to the effect that the claimant waived its rights in that regard. 7 A significant aspect of the opponent's claim was for economic loss and that claim was particularised in a report from Furtzer Crestani Services dated 7 April 2003. It was served late in the afternoon of that day. The economic loss case is structured around loss stemming from the premature cessation of the business that the opponent has conducted in his own right in recent years. 8 The claimant has retained an experienced accountant from Horwath Services Limited to prepare a report in response. At 6.30 pm on 8 April Horwath Services supplied the claimant's solicitor with a list of information and documentation required to enable preparation of the response. At 6.50 pm that evening a request for that information and those documents was forwarded. 9 My recollection of the evidence is that that material is not yet to hand but is expected to be available tomorrow. The evidence is that the claimant's accountant would take approximately a week to prepare a report in response assuming she gets the source material. That latter statement has been challenged on the basis that these are accountants used to dealing with this sort of issue and in this particular context. 10 Judge Maguire's reasons for fixing the hearing for tomorrow were given around 4 pm on 7 April. He recounted the facts. He observed that an undertaking had been given which guaranteed the survival of the opponent's entitlement to general damages. Nothing was said about any other economic loss that would accrue to the opponent or the opponent's estate and I am not persuaded that that matter was raised as a ground. It certainly does not appear to have been taken into account as a ground for his Honour's decision. 11 What his Honour did mention and take into account as a relevant factor was the opponent's wish to have his case determined before he died. His Honour described that circumstance as "part of the human condition with which this Tribunal is only too familiar". 12 The evidence that has been put before us indicates that his Honour Maguire had been informed of a good deal of information about the difficulties the claimant would be placed in if the matter were forced on for hearing this week. Some of this related to medical issues still being explored including the issue of whether the opponent is suffering from mesothelioma as distinct from a secondary cancer stemming from the prostate cancer. 13 It is not easy to get a clear view or to be persuaded as to whether there was error in relation to all of the medical issues that were up in the air. The Dust Diseases Tribunal, legal practitioners before it and the medical practitioners who give evidence before it are used to dealing with matters very promptly. It is conceivable that his Honour had in mind that the problems as they presented themselves on 7 April from a medical point of view would be capable of being ironed out if not by the commencement of the trial on 10 April at least before it came to completion. There is evidence to be given on behalf of the opponent, although its detail has not been disclosed at this point of time. 14 His Honour's reasons do not really analyse the impact upon the claimant of the matter being fixed for hearing as rapidly as occurred. The dispositive reason stated by his Honour was in para 10, part of which reads:- "It is my view that if the defendant cannot be ready to present its case on Thursday of this week then that problem is one of its own creation in that nothing was done on any of these issues between 11 am on Thursday and some time this morning. Four days were lost in circumstances where the case is of compelling urgency. I therefore fix the trial to resume at 10 am on Thursday 10 April 2003." 15 This wording indicates that his Honour assumed or accepted that the claimant was or at least might be in difficulty in defending itself in the proceedings. The reason why his Honour did not give that matter any weight appears to be that his Honour concluded that the claimant had only itself to blame in the particular context of these proceedings. 16 This is an application for leave to appeal in a matter of practice and procedure involving a Tribunal experienced in a culture with which this Court has not direct involvement and experience on its own part. There are strong reasons for appellate restraint. The relevant principles are stated in GSA Industries Pty Limited v NT Gas Limited (1990) 24 NSWLR 710 at 712 - 713. It is clear, however, that this Court has the jurisdiction and the duty to exercise it in a proper case. 17 I am persuaded that the order his Honour made cannot stand upon the reasons that his Honour gave. It is sufficient to base that conclusion upon the situation with regard to the economic loss material. As I have indicated, the particulars and the report containing the opponent's evidence were only made available at the close of play on Monday of this week. The claimant has not been able, despite what on the evidence has been its best endeavours, to be armed with a responsive report. 18 The matter that troubled me is the question whether this was not a case where the trial should be permitted to resume on the basis that problems would or might iron themselves out. Undoubtedly this Court would have a discretion not to interfere on the basis that the matter could be looked at at the end of the day to see whether a miscarriage had occurred. But such an observation cannot be converted into a blanket universal restraint from interfering with a decision of this nature. The claimant's rights to a fair trial have to be placed in the balance and given very significant weight. Indeed, in one sense the right to a fair trial cannot be overridden; although what is fair has to be seen in the context and this is an unusual context. 19 His Honour the primary judge has given weight to what he described as the opponent's interest in knowing his position before the unfortunate end of his life, but that matter cannot be elevated to the exclusion of a proper balancing of the rights of the claimant to test and defend its position, to be able to conduct the trial, and to enter into settlement negotiations and the like in a proper way. 20 Given the reason expressed by his Honour and his Honour's evident intent to start the case, with the possibility from what we have been told that it might actually finish tomorrow as regards evidence I am persuaded that (notwithstanding the appropriate restraint that must be exercised in matters such as this) the interests of justice require this Court to intervene. 21 I therefore would set aside the order fixing the resumed hearing date for 10 April. 22 There was discussion with counsel earlier this afternoon about what might be a suitable outcome if the Court came to re-exercise the discretion. Fortunately, the parties have agreed that the interests of justice will be adequately protected if in the light of the reasons of this Court the order is set aside and the matter is directed to be put back in his Honour's list on Monday next for further directions. It would then be up to his Honour to do what is appropriate in all of the circumstances having regard to the position as it then presents itself to his Honour. 23 For those reasons I propose the following orders: (1) Grant leave to appeal. (2) Subject to the filing of a notice of appeal uphold the appeal. (3) Set aside the order of Judge Maguire QC made on 7 April 2003 that the trial of the proceedings in the Dust Diseases Tribunal resume at 10 am on 10 April 2003. (4) Stand the matter into Judge Maguire's list at 10 am on Monday 14 April for directions with liberty to apply to his Honour generally. (5) Respondent to pay the appellant's costs and to have a certificate under the Suitors Fund Act if qualified. 24 GILES JA: I agree. 25 IPP JA: I agree. 26 MASON P: Those are the orders of the Court. **********