(re Brassil) Comcare v Amaca Pty Limited [2016] NSWDDT 1

Dust Diseases Tribunal New South Wales Medium Neutral Citation: (re Brassil) Comcare v Amaca Pty Limited [2016] NSWDDT 1 Hearing dates: 5 April 2016 Date of orders: 11 April 2016 Decision date: 11 April 2016 Before: Kearns J Decision: For reasons given, I direct Comcare to provide further answers to requests 4.b. and 4.d. so numbered in the letter of 10 March 2016 from Sparke Helmore to Mills Oakley Lawyers being Annexure E to the affidavit of Nimisha Welgama affirmed on 22 March 2016. Category: Procedural and other rulings Parties: Comcare (plaintiff) Amaca Pty Limited (defendant) Representation: Counsel: Mr J Sharpe, instructed by Sparke Helmore, appeared for the plaintiff Mr T G R Parker SC, instructed by Mills Oakley Lawyers, appeared for the defendant File Number(s): DDT 351/2014

RULING 1. Mr Brassil was employed by the Commonwealth Department of Housing at Concord Hospital from 1972 to 1997. During part of that period he was exposed to asbestos in the course of his work. Mr Brassil contracted mesothelioma from his exposure to asbestos. He sued Comcare, responsible for the liabilities of his employer. On 15 October 2012, judgment was entered in his favour. 2. Comcare now seeks indemnity or contribution from Amaca in respect of its liability to Mr Brassil. This is on the basis that the asbestos to which he was exposed, or part of it, was asbestos manufactured and supplied by James Hardie & Coy Pty Ltd, for whose liabilities Amaca is responsible. 3. Comcare filed the statement of claim on 14 October 2014. There has been an exchange of correspondence relating to particulars. 4. Usefully the letter of 10 March 2016 from Comcare's solicitors supplying particulars (Annexure E to the affidavit of Nimisha Welgama affirmed on 22 March 2016) sets out the requests made on behalf of Amaca. 5. The last item of that letter, item 6, is no longer in issue. One matter not covered by that letter is the period over which Mr Brassil has alleged to have been exposed to asbestos. It is now confined to the period from 1972 to 31 December 1989. 6. Amaca asserts that Comcare has not provided to it adequate particulars to which it claims to be entitled and which it has sought. Amaca accordingly seeks an order that Comcare supply the particulars that have been sought. 7. I was directed by both parties to some law in relation to particulars. Mr Sharpe who appeared for Comcare directed me to a decision of Curtis J Laurie v Amaca Pty Ltd [2006] 4 DDCR 308. Like Curtis J I find most useful the statement of principle by Hunt J in Sims v Wran (1984) 1 NSWLR 317 at 321 to 322 where Hunt J said: There is often a fine line between giving particulars of the case which a party proposes to make and disclosing the evidence by which that case is to be proved. It all depends upon what is necessary to guard the other party against surprise. If the other party cannot otherwise be so guarded, it may sometimes be necessary for a party to disclose his evidence, or at least a broad outline of it. The starting point is what is necessary to guard the other party against surprise… 1. I turn to the particulars sought and the responses.