Keogh v CPB Contractors Pty Ltd & Ors

[2024] NSWDDT 3

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:	Keogh v CPB Contractors Pty Ltd & Ors [2024] NSWDDT 3
Hearing dates:	8 April 2024
Date of orders:	8 April 2024
Decision date:	08 April 2024
Before:	Judge Russell SC
Decision:	Ex tempore reasons given in court
Catchwords:	PROCEDURAL – trial – evidence-in-chief – objection to plaintiff’s evidence-in-chief being given by affidavit – usual and long-standing Tribunal practice of allowing unwell plaintiff to give evidence-in-chief by affidavit – plaintiff with significant emotional and psychiatric issues – unfair burden to require plaintiff to give oral evidence-in-chief – defendants can appropriately cross-examine plaintiff
Cases Cited:	Thomas v SMP (International) Pty Ltd [2010] NSWSC 822
Category:	Procedural rulings
Parties:	Craig Andrew Keogh (Plaintiff) CPB Contractors Pty Ltd (First Defendant) Campbell Mining Services Pty Ltd (Second Defendant) Downer EDI Mining Pty Ltd (Third Defendant) Downer Mining Regional (NSW) Pty Ltd (Fifth Defendant)
Representation:	Counsel: S Tzouganatos/V Boutas (Plaintiff) D Talintyre (First Defendant re Poitrel Mine) I Griscti (First Defendant re Moorvale Mine) D Talintyre (Second Defendant) D Talintyre (Third Defendant re Blackwater Mine) G Rundle (Third Defendant re Boggabri Mine) T Rowles (Fifth Defendant) Solicitors: Shine Laywers (Plaintiff) BT Lawyers (First Defendant re Poitrel Mine) Mills Oakley (First Defendant re Moorvale Mine) BT Lawyers (Second Defendant) BT Lawyers (Third Defendant re Blackwater Mine) Wotton & Kearney (Third Defendant re Boggabri Mine) Sparke Helmore (Fifth Defendant)
File Number(s):	DDT 2021/45484

EX TEMPORE REVISED Judgment

1. At this point in the hearing counsel for the plaintiff wishes to read or tender affidavits by the plaintiff which go to issues of exposure to dust and which also go to issues of quantum of damages. Mr Talintyre has objected to the plaintiff's evidence in chief being given by means of affidavit, pointing to r 31.1 of the Uniform Civil Procedure Rules and taking me to a decision of Pembroke J in Thomas v SMP (International) Pty Ltd [2010] NSWSC 822. Pembroke J spoke of the limitations of affidavit evidence, particularly where there are issues of fact involving oral representations and conversations. I take it that his Honour was hearing a commercial type of case. Of course, there could be very valid reasons why other issues should not be covered by affidavit but should be covered by oral evidence only.

2. In this Tribunal, since 1989, when it was established, a practice has grown up of allowing a plaintiff to give evidence in chief by way of affidavit. That practice has largely come about in cases involving asbestos-related diseases and in cases particularly where a sufferer from such a disease is terminally ill, or of advanced years, or both. In this case we have a plaintiff who is relatively young but a plaintiff who has significant emotional and psychiatric issues, at least so far as I can discern from the opening of the case.

3. In my view, it would be an unfair burden on this plaintiff to require him to give oral evidence of his work at the various mines and his exposure at the various mines when, as I understand the plaintiff's case, he is a person who is, can I say, fragile psychiatrically. I am of the view that if I allow the plaintiff's evidence to be given by affidavit, given the detail in the two affidavits, which I have pre-read, and given the opportunity which each defendant has had to take instructions on the detailed matters covered by the two affidavits, I would not be doing any injustice to a defendant, and that each defendant would be able to appropriately cross examine upon the evidence in chief contained in the affidavits. I propose to follow the usual and almost invariable practice in this Tribunal of allowing a plaintiff who is unwell to give evidence in chief by affidavit. I therefore reject the submission by Mr Talintyre that I should require the plaintiff to give his evidence in chief orally.

4. I will then deal with each affidavit in turn and see if there are any objections to the affidavits. I will say as part of this judgment that I have indicated to Mr Talintyre that he is free to renew this objection to evidence in chief being given by affidavit in relation to the three lay witnesses. In relation to those three witnesses, I can see, at present, no real reason why they could not give their evidence orally rather than by affidavit. They, so far as I am aware, are not unwell, and could give evidence orally in the usual fashion. That is simply a preliminary view; I say I have not read their affidavits yet and I will hear submissions in due course about that second issue.

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