Dust Diseases Tribunal New South Wales Medium Neutral Citation: Daniel Smith, Aaliyah Ingram and Thomas Smith by their tutor Eva Coe v NSWL&HC [2019] NSWDDT 4 Hearing dates: 21 & 22 March 2019 Date of orders: 22 March 2019 Decision date: 22 March 2019 Before: Strathdee J Decision: (1) Defence to Statement of Claim filed 2 August 2018 is struck out pursuant to s 61(3)(c) of the Civil Procedure Act 2005 and r 12.7 of the Uniform Civil Procedure Rules 2005. (2) Judgment against the defendant on the question of liability and the matter will now proceed as an assessment of damages. (3) The defendant to pay the plaintiffs' costs of and incidental to this strikeout application. Catchwords: CIVIL – interlocutory proceedings – discovery – interrogatories – failure to comply with court orders Legislation Cited: Civil Procedure Act 2005 Compensation to Relatives Act 1897 (NSW) Dust Diseases Tribunal Rules Supreme Court Rules 1970 Uniform Civil Procedure Rules (NSW) 2005 Category: Procedural and other rulings Parties: Daniel Jessie Nathan Smith, Aaliyah Evan Frances Ingram and Thomas Watson Smith by their tutor Eva Coe (Plaintiffs) New South Wales Land and Housing Corporation (Defendant) Representation: Counsel: Mr Parker SC with Ms Moisidis (for the Plaintiffs) Mr Rundle (for the Defendant) Solicitors: Maurice Blackburn Lawyers (for the Plaintiffs) Moray & Agnew (for the Defendant) File Number(s): DDT283 of 2017 Judgment 1. On 21 March 2019 the plaintiffs had this matter listed before me for an application, as I had previously granted the plaintiffs liberty to apply. The plaintiffs yesterday afternoon sought an order for the Defence filed on 2 August 2018 to be struck out and judgment entered in the plaintiffs' favour based on the repeated failures by the defendant to comply with Court orders, including orders to provide verified discovery and answers to interrogatories. 2. Pursuant to r 18.1 of the Uniform Civil Procedure Rules (NSW) 2005 ("CPA"), I dispensed with the need for a motion given that the proceedings are listed for hearing on Monday 25 March 2019 in Cowra. I note that the plaintiffs had previously filed a motion seeking this relief, and had consented previously to that motion not proceeding. 3. The background is that this is a claim for damages pursuant to the Compensation to Relatives Act 1897 (NSW), and arises as a consequence of the death of Daniel Ingram on 28 April 2013, the deceased, from mesothelioma. The proceedings are brought on behalf of the deceased's dependent children, Aaliyah, 16, Thomas, 9 and Daniel, 7 by their legal guardian and the deceased's cousin, Eva Coe. 4. It is alleged that the deceased was negligently exposed to asbestos in two circumstances. The first exposure is alleged to have occurred between 1975 and 1985 whilst the defendant was engaged in the construction of residential homes in Weerona Place, Morilla Street, Wollowra Street, Jindalee Circuit, Victor Street and Logan Street, Cowra using asbestos‑cement building products and by permitting the use of a reserve situated between 5 and 6 Weerona Street, Cowra to store and/or dispose of asbestos‑cement building products. It is alleged that the deceased entered these sites and played with the asbestos products that were on the sites. 5. In the second period of exposure, during which it is alleged that the deceased was negligently exposed to asbestos in about 1984 when, at the direction of the defendant, a handyman undertook repair work to the laundry at 3 Weerona Place, Cowra by removing and replacing asbestos‑cement building products, and by discarding and failing to remove asbestos‑cement building products in and from the back yard of the property. It is alleged that the deceased was present during the repair work and jumped on, walked on the asbestos‑cement building products, and handled, cut and sawed them. 6. The claim proceeded through the Claims Resolution Process ("CRP") despite the defendant having not filed a Reply as required in the CRP. The claim was scheduled for mediation on three separate occasions. The first two mediations were adjourned at the request of the defendant as they were unable to get instructions. The final mediation failed because the defendant was again unable to obtain instructions. 7. A Defence was filed on 2 August 2018. 8. On 6 August 2018 the defendant consented to an order that provisional verified discovery would be provided by 3 September 2018. An order that day was made by his Honour Judge Scotting that the defendant serve any expert or lay evidence it intended to rely upon by 10 September 2018. On 24 September 2018, his Honour Judge Russell granted an extension of the time for the defendant to serve any lay evidence and provide discovery to 5 October 2018. The defendant failed to do so. 9. On 9 October 2018 the plaintiff filed a motion seeking that the Defence be struck out pursuant to s 61(3)(c) of the Civil Procedure Act 2005 ("CPA") and/or r 12.7 of the Uniform Civil Procedure Rules 2005 ("UCPR"). 10. On 15 October 2018 the Notice of Motion was mentioned and adjourned to 29 October 2018 at the defendant's request. On 29 October 2018, the notice of motion was resolved by consent and self‑executing orders were made for the defendant to provide discovery by 2 November 2018, failing which its Defence would be struck out and judgment entered for the plaintiffs together with the costs of the proceedings. On that date, I also granted leave to the defendant to file and serve any expert or lay evidence by 5pm on 23 November 2018. 11. On 2 November 2018 the defendant provided discovery. 12. On 3 December 2018 the matter came back before me for the allocation of a hearing date and it was listed for hearing in Cowra on 18 and 19 February 2019. I granted the defendant a further extension to file and serve any expert reports or lay evidence by 5pm on 21 December 2018. 13. On 14 December 2018 I granted the plaintiffs application to interrogate the defendant, pursuant to r 22.05 of the UCPR. I ordered the date for verified answers to interrogatories be by 28 January 2019, and that the parties participate in a settlement conference by 6 February 2019. 14. On 13 February I vacated the hearing dates of 18 and 19 February on the basis that the defendant had not provided verified answers to interrogatories. I ordered that the verified answers were to be provided by 22 February 2019. I also ordered that the defendant may not rely upon or adduce any expert evidence without the leave of the court, as none had at that date, been served. 15. On 22 February 2019 the defendant provided verified answers to interrogatories. The plaintiffs submit that the answers to the interrogatories were insufficient. 16. On 11 March 2019 I ordered that the defendant provide further answers to interrogatories by 15 March 2019 and noted that as the defendant had not served any expert or lay evidence at that date. I further ordered that the defendant was not permitted to adduce or rely on any such evidence at trial. 17. On 15 March 2019 I fixed the matter for hearing before me on 25 March 2019 in Cowra. 18. On 21 March 2019, two business days before the first hearing date, the defendant provided the plaintiffs with unverified further answers to interrogatories, which refer to annexures comprising contracts for building work in Cowra numbering over 200 pages, not previously discovered. 19. Rule 22.3(2)(b) of the UCPR provides the defendant must answer the substance of each interrogatory without evasion. 20. The plaintiffs today submit that the further answers to interrogatories are insufficient, evasive and improperly require the plaintiffs to search through discovered and non-discovered documents. The Court has the power to order the Defence be struck out for insufficient answers to interrogatories pursuant to r 22.5(1)(b) of the UCPR. 21. The plaintiffs further submit that the defendant has unduly delayed the proceedings to the plaintiffs' detriment due to its persisting and unexplained default of Court orders. 22. Sections 56 to 61 of the CPA provide the framework to give effect to the overriding purpose to facilitate just, quick and cheap resolution of the real issues in the proceedings. A party and his/her or its legal representatives are under a duty to assist the Court to further that overriding purpose. Judges of this Court have the powers to facilitate case management. These are found in s 61(3) of the CPA. Section 61(3) allows the Court to strike out a Defence if a party fails to comply with directions that are given. The powers in s 61 are expressly subject to s 58. Section 58(1) makes it clear that the Court must seek to act in accordance with the dictates of justice which is further defined by s 58(2) which provides at 58(2)(b): '(i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56(3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case.' 1. I have had regard to the requirements contained in ss 56 and 57 of the CPA. 2. The plaintiffs submit that they have been frustrated by the defendant's ongoing, unexplained default of Court orders. The plaintiffs were unable to take advantage of the provisions of the CRP. Despite the compulsory requirement for mediation of the claim under the CRP, the claim was not mediated and as such that the plaintiffs were compelled to request its failure so that the matter could then be brought back to the Dust Diseases Tribunal for case management. 3. The approach discovery applicable in proceedings of the DDT is to be found in pt 23 of the Supreme Court Rules 1970, subject to modifications by the Dust Diseases Tribunal Rules ("DDTR"). Relevantly r 7(3) of the DDTR requires discovery of discoverable documents which have been in the party's possession at any time. 4. The plaintiffs in these proceedings have consented to adjournments of the claim whilst the CRP was running, and consented to extensions to the time for the defendant to comply with the orders of the DDT. The defendant continued to breach the orders of this Court. 5. The plaintiffs are the children of the deceased and have suffered great prejudice as a consequence to the defendant's delay and failure to comply with Court orders. 6. I accept the submissions made by junior and senior counsel for the plaintiff, that some of the answers to interrogatories are incomplete. I also accept that the answers to some of the interrogatories contained in the further statement of answers to interrogatories, which were served on the plaintiff yesterday and handed up in Court today, are so internally inconsistent that they are of little utility. 7. The defendant has failed in its duty to assist the Court to further the overriding purpose to facilitate the just, quick and resolution of the real issues in the proceedings. Pursuant to r 22(5)(1)(b) of the UCPR, the Court has the power to order that the party's defence be struck out if they had been ordered to answer interrogatories and they failed to answer them sufficiently. I am of the view that that is exactly what has happened in these proceedings. 8. In all the circumstances, given the defendant's repeated breach of the orders of this Court, their incomplete answers and incomplete discovery, I propose to strike out the Defence. ORDERS 1. I make the following orders: 1. Defence to Statement of Claim filed 2 August 2018 is struck out pursuant to s 61(3)(c) of the Civil Procedure Act 2005 and r 12.7 of the Uniform Civil Procedure Rules 2005. 2. Judgment against the defendant on the question of liability and the matter will now proceed as an assessment of damages. 3. The defendant to pay the plaintiffs' costs of and incidental to this strikeout application. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 March 2019