Kuypers v Ashton Coal Operations Pty Ltd & Anor (No 3) [2015] NSWSC 1126

Supreme Court New South Wales

Medium Neutral Citation: Kuypers v Ashton Coal Operations Pty Ltd & Anor (No 3) [2015] NSWSC 1126 Hearing dates: 4, 5 August (Evidence on Commission); 7, 10 August 2015 Date of orders: 10 August 2015 Decision date: 10 August 2015 Jurisdiction: Common Law Before: Campbell J Decision: I admit the document under the provisions of s 64 Evidence Act 1995 Catchwords: PROCEDURE – civil – reliance on statement made by witness to New South Wales Trade and Investment Mine Safety Unit Legislation Cited: Evidence Act 1995 (NSW); Water Act 1912 (NSW); Work Health and Safety Act 2011 (NSW) Category: Procedural and other rulings Parties: Benjamin Kuypers (Plaintiff) Ashton Coal Operations (First defendant) Silver City Drilling (NSW) Pty Ltd (Second defendant) Representation: Counsel: B. Dooley SC with M. Perry (Plaintiff); R.A. Cavanagh SC with Ms D.J. Dinkha (First defendant); A.R. Harris QC with I.D. Roberts SC and S.L.C. Flett (Second defendant)

Solicitors: Taylor & Scott Lawyers (Plaintiff); Curwoods Lawyers (First defendant); Lee Legal Group (Second defendant) File Number(s): 2012/393861

revised extempore judgment 1. Mr David Thomson, a driller who had an involvement in the drilling at Ashton Coal Mine that led to the accident the subject of this case, is currently giving evidence before me. Mr Thomson's role is one of the matters in issue in the case. It is asserted that by virtue of him having an involvement as a class 4 licence-holder under the Water Act 1912 (NSW) and Regulations, he had assumed certain responsibility which may be relevant to the question of any liability of the first defendant, the mine operator. At the commencement of his cross‑examination Mr Cavanagh SC has tendered his statement dated 22 January 2013 provided to the New South Wales Trade and Investment Mine Safety Unit under the compulsion of s 155 Work Health and Safety Act 2011 (NSW). 2. Mr Harris QC has objected to the statement on two grounds. First, it has not been shown to be relevant to any fact in issue in the case; and secondly, that the statement was not previously served in accordance with practice directions made for parties to provide evidential statements of the witnesses they intended to call. Mr Cavanagh relies upon the provisions of s 64 Evidence Act 1995 (NSW) and propounds the statement as an exception to the hearsay rule. Mr Harris did not really take issue with the argument that the statement fell into the category covered by s 64. His objection was not based upon hearsay. 3. Given, putting it in general terms, that Mr Thomson's role and involvement is a fact in issue in the case, and doubtless that question can be divided into many parts, I think that the contents of the statement are relevant to determining issues I have to decide in this case concerning the nature and content of any duty owed by the first defendant and the question of whether it breached any such duty. 4. Turning to the second question of whether there is any, I suppose, unfairness involved in this process, given that this statement was not served by the first defendant in accordance with the directions (I did not understand Mr Cavanagh to take issue with that part of what Mr Harris said), it seems to me that Mr Thomson has been called in the plaintiff's case and that the plaintiff did serve an evidential statement. 5. The contents of the statement of 22 January 2013 are, on my reading of them, broadly consistent with the contents of the statement that was served by the plaintiff. In certain respects it may descend into more detail but so far as I can tell nothing about any of that amplification contained in the statement is inconsistent, as I have said, with what has been served. And I am aware from my involvement in the case that all parties have had access to all of this material that has been produced by the Mine Safety Unit. As I remarked earlier today, that's not to say that all parties are aware of what will be relied upon by each other party, but in my judgment there's nothing in this statement which ought take the second defendant by surprise even if it is somewhat surprised by its tender at this point. 6. I do not think there is any unfairness in the tender of the document and I propose to admit it under the provisions of s 64 Evidence Act 1995.