Hawchar v Dasreef Pty Ltd (ruling)

[2008] NSWDDT 31

Dust Diseases Tribunal

of New South Wales

CITATION:	Hawchar v Dasreef Pty Ltd (ruling) [2008] NSWDDT 31
PARTIES:	Nawaf Hawchar (Plaintiff) Dasreef Pty Ltd (Defendant)
MATTER NUMBER(S):	7323 of 2007
JUDGMENT OF:	O'Meally P
CATCHWORDS:	DUST DISEASES TRIBUNAL :- Application to take evidence outside New South Wales - whether balance of cost and convenience in proceedings so requires
LEGISLATION CITED:	Dust Diseases Tribunal Act 1989
DATES OF HEARING:	28 October 2008
DATE OF JUDGMENT:	28 October 2008
EX TEMPORE JUDGMENT DATE:	28 October 2008
LEGAL REPRESENTATIVES:	A J Bartley, SC with F Toscano instructed by Keddies appeared for the plaintiff T G R Parker, SC with D T Miller instructed by Moray & Agnew appeared for the defendant

JUDGMENT:

RULING

O'MEALLY P

1. Nawaf Hawchar is claiming damages from Dasreef Pty Limited. His case is part heard before Curtis J. He alleges that as a result of exposure to silica dust he has contracted silicosis. He alleges also that that silicosis caused or made a material contribution to scleroderma. The fact of his suffering silicosis is not in dispute. It is contentious that his silicosis caused or made a material contribution to scleroderma.

2. The plaintiff wishes to take evidence from Professor Douglas Henderson who, until recently, held the chair of pathology at Flinders University in Adelaide, South Australia. Professor Henderson remains a resident of South Australia but by reason of professional commitments, it is difficult for him to travel to Sydney.

of the Dust Diseases Tribunal Act1989 provides:

If the President is of the opinion that the balance of cost and convenience in the proceedings so requires, the President may direct that the hearing of the proceedings, or part of the proceedings, take place outside New South Wales.

4. It is the case that from time to time the Tribunal sits outside New South Wales to hear cases where plaintiffs reside outside this state. That occurs when there is a number of cases or, to use the words of the statute, the balance of cost and convenience requires. Mr Bartley of Senior Counsel has informed me that much of the opinion of Professor Henderson is based upon a review of the literature and as a consequence, or I assume as a consequence, the defendant will challenge the qualification of Professor Henderson to give evidence of the type contained within his reports. His first report, a copy of which has been provided to me, contains reference to thirty-eight papers. I have been informed that it will be necessary during the course of Professor Henderson's evidence, whether on the voir dire or in chief, to identify the literature or parts of it and no doubt also he would be cross-examined on it. This will involve the identification and exchange of literature. During the course of Professor Henderson’s evidence it is likely that parts of papers, particularly diagrams, will pass between counsel and witness.

5. The Tribunal does have facilities for the reception of evidence by videolink. Mr Bartley informs me that in the circumstances of this case, bearing in mind the course that the evidence of Professor Henderson is likely to take and the reference to papers published in learned journals and examination and cross-examination upon them, it will be inconvenient to receive his evidence by videolink. Mr Parker of Senior Counsel for the Defendant does not oppose the making of an order authorising the evidence of Professor Henderson to be taken outside of New South Wales. In the light of what I have been informed I am of the opinion that the balance of cost and convenience in these proceedings requires that the evidence of Professor Henderson be taken outside the state.

6. Pursuant to s 13(7) of the Dust Diseases Tribunal Act I direct that part of the proceedings take place outside New South Wales and in the state of South Australia.

7. I assume that Judge Curtis' staff or the registry will make appropriate arrangements for obtaining a location at which the evidence can be taken and for its recording and subsequent transcription.

A J Bartley SC with F Toscano instructed by Keddies appeared for the Plaintiff

T G R Parker SC with D T Miller instructed by Moray & Agnew appeared for the Defendant