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WorkCover Queensland v Klinger Limited (No 1)[2021] QDC 55

WorkCover Queensland v Klinger Limited (No 1)[2021] QDC 55

DISTRICT COURT OF QUEENSLAND

CITATION:

WorkCover Queensland v Klinger Limited (No 1) [2021] QDC 55

PARTIES:

WORKCOVER QUEENSLAND

(plaintiff)

v

KLINGER LIMITED

(ACN 008 679 838)

(defendant)

FILE NO:

D692/2019

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

8 April 2021

DELIVERED AT:

Brisbane

HEARING DATE:

26 February 2021

JUDGE:

Jarro DCJ

ORDER:

  1. The proceedings be tried consecutively or in partial consecutive sequence with each other.
  2. I will hear from the parties further as to the form of the order, consequential directions and costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – PARTIES – GENERALLY – where claimants received damages from the plaintiff for workplace injuries – where the plaintiff instituted proceedings for indemnification of the damages from the defendant – where the plaintiff instituted separate proceedings against the defendant for damages paid to two different claimants – where an application was brought to hear the proceedings consecutively or in partial consecutive sequence with each other – whether orders should be made to have the proceedings heard together

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld)

Workers’ Compensation and Rehabilitation Act 2003 (Qld)

CASES:

Wan & Anor v Merlot Gordon & Ors [2019] QSC 142, applied

Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699, applied

COUNSEL:

K Holyoak for the plaintiff

M Grant-Taylor QC with A Giurtalis for the defendant

SOLICITORS:

BT Lawyers for the plaintiff

Baker McKenzie Lawyers for the defendant

Introduction

  1. [1]
    The plaintiff has applied to join two existing proceedings or to have the two proceedings be heard in consecutive or partial consecutive sequence pursuant to r 79 of the UCPR.  The application is opposed. 
  2. [2]
    Rule 79 of the UCPR allows the court discretion to order that two or more proceedings be heard together or in a particular sequence.  In Wan & Anor v Merlot Gordon & Ors [2019] QSC 142, Crow J has usefully encapsulated the matters which ought to be considered in exercising the broad and unfettered discretion of r 79.  His Honour stated:

[20] Rule 79 of the UCPR provides:

‘The court may order that 2 or more proceedings be heard together or in a particular sequence.’

[21] In Bishop v Bridgelands Securities[1] Wilcox J said:

‘The basic principle, as it seems to me, is that the Court should take whatever course seems to be most conducive to a just resolution of the disputes between the parties, but having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation. Considerations of costs and delay may often support the grant of leave under subr (b); but, in my opinion, leave ought not to be granted unless the Court is affirmatively satisfied that joinder is unlikely to result in unfairness to any party.’

[22] In Ghose v CX Reinsurance Company Ltd & Ors[2] Austin J said:

‘[27]  Although his Lordship speaks of consolidation, in my view the same principles apply where the application is for a joint hearing. His Lordship's observations make it clear that the Court's essential task is to work out pragmatically whether the most efficient course consistent with the requirements of fairness would be consolidation, a joint hearing, immediately sequential hearings, entirely separate hearings, or something else (such as determination of separate questions prior to or after the hearing of the remainder of the proceedings). A pragmatic approach requires close attention to the nature of the claims in each set of proceedings and the likely course of the litigation if the proceedings are consolidated or jointly heard, compared with the course of litigation if the proceedings remain separate. A pragmatic approach involves the Court bringing to bear its experience in the conduct of hearings and case management, taking into account such matters as the potential savings of time and expense of one outcome compared with the other, and also the basic imperative that every litigant is entitled to a fair opportunity to present his or her case to the Court. I was referred to s 56(1) of the Civil Procedure Act 2005 (NSW), but in my view the articulation of the overriding objective of facilitating the just, quick and cheap resolution of the real dispute between the parties simply confirms the approach to be taken to such matters as consolidation or joint hearing of proceedings.’

[23] In Humphries v Newport Quays Stage 2A Pty Ltd[3] Besanko J said:

‘11.  There is no dispute that the eight proceedings engage O 29 r 5(a). The critical question then is whether it is appropriate that the proceedings be tried together. In determining this question, the relevant factors are as follows:

  1. Are the proceedings broadly of a similar nature?
  1. Are there issues of fact and law common to each proceeding?
  1. Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings?
  1. Has there been an alternative proposal put forward that there be a test case and have the parties agreed to abide the outcome, or, at least, the determination of common issues of fact and law?
  1. Is there a prospect of multiple appeals with substantial delays if the proceedings are not tried at the same time?
  1. Will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately?
  1. Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence?
  1. Is one proceeding further advanced in terms of preparation for trial than the others?
  1. Are there parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time?”

[24] It is plain that r 79 of the UCPR confers a broad and unfettered discretion upon a court to order two or more proceedings to be heard together.  Convenience to the parties and the court, the desirability of avoiding a multiplicity of actions, and a saving of time and expense are all important matters when considering such an unfettered discretion. ...”

  1. [3]
    In the present instance, there are two proceedings currently on foot involving the plaintiff and the defendant.  The plaintiff has commenced a proceeding (D692/2019) against the defendant by a claim and statement of claim filed 27 February 2019 (“the Jones proceeding”).  The plaintiff has also commenced a separate proceeding (D1342/19) against the defendant as well as four other defendants by claim and statement of claim filed 17 April 2019 (“the Simpson proceeding”).  Regarding the Simpson proceeding, the claims against the four other defendants are no longer pressed, the result of which now leaves only the plaintiff and the defendant in each proceeding. 
  2. [4]
    In both proceedings, the plaintiff seeks recovery from the defendant under s 207B(8) of the Workers’ Compensation and Rehabilitation Act 2003 (“the WCRA”).  That provision states: 

“(8) If a person who has received compensation has not recovered, or taken proceedings to recover, damages for the injury from another person, other than the worker’s employer –

  1. (a)
    The insurer is entitled to be indemnified for the amount of compensation by the other person to the extent of that person’s liability for the damages, so far as the amount of damages payable for the injury by that person extends; and
  1. (b)
    To that end, the insurer is subrogated to the rights of the person from the injury.”
  1. [5]
    The defendant is said to be negligent by exposing Mr Jones (deceased) and Mr Simpson (deceased) to the defendant’s products. Allegations of negligence necessitate consideration of the scope of the duty of care owed by the defendant to each of the deceased, breaches of this duty of care, the damages suffered by the deceased and a causative link between the breaches and the damage. The plaintiff, pursuant to its rights of subrogation under s 207B(8)(b), is essentially in the position of Messrs Jones and Simpson (now deceased).

Jones Proceeding

  1. [6]
    In the Jones proceeding, the plaintiff relevantly alleges the following:
    1. (a)
      Mr Jones passed away on 27 July 2018 from the disease mesothelioma. 
    2. (b)
      Mr Jones was employed by Nestle Limited at Gympie as a maintenance fitter from 1961 to 1998. 
    3. (c)
      During that employment, Mr Jones worked with a product known as “Klingerit” which was manufactured, supplied and distributed by the defendant.  Klingerit contained asbestos.
    4. (d)
      As a consequence of inhaling asbestos fibre liberated by working with Klingerit, Mr Jones developed malignant mesothelioma. 
    5. (e)
      Mr Jones’s inhalation of the asbestos dust and fibre, and development of mesothelioma, was caused by the defendant’s breach of duty of care owed to Mr Jones “to take reasonable care to avoid exposing persons such as [Mr Jones] to the risk of foreseeable injury arising from the supply, sale and subsequent use of Klingerit”. 
    6. (f)
      The plaintiff accepted Mr Jones’ worker’s compensation application consequent upon his developing mesothelioma and paid compensation. 
    7. (g)
      Pursuant to s 207B(8) of the WCRA, the plaintiff is entitled to be indemnified by the defendant for the entirety of the amount of compensation paid.
  2. [7]
    In response to the statement of claim, the defendant has pleaded a number of matters including as follows:
    1. (a)
      The defendant conducted the business of manufacture, supply and distribution of products containing asbestos within Australia, including Klingerit.
    2. (b)
      The only form of asbestos products were products containing chrysotile asbestos.
    3. (c)
      At no time was the state of scientific and medical knowledge, and the dissemination of that scientific and medical knowledge, such that inhaling asbestos as a consequence of the intended and/or reasonably foreseeable use of the defendant’s products was injurious to health, a matter known to the defendant or which ought to have been known to the defendant.
    4. (d)
      If (which is denied) the defendant knew, or ought to have known, that inhaling asbestos was injurious to health, such knowledge was confined to knowledge that inhaling asbestos other than chrysotile asbestos was injurious to health and did not extend to knowledge that inhaling chrysotile asbestos was injurious to health.
    5. (e)
      It did not know or ought to have known that inhalation of even trivial quantities of chrysotile asbestos could cause mesothelioma because at no material time was the state of scientific or medical knowledge, and the dissemination of that scientific and medical knowledge, such that the fact that inhalation of even trivial quantities of chrysotile asbestos could cause mesothelioma, a matter known to the defendant or which ought to have been known to the defendant.
    6. (f)
      If (which is denied) at any material time the defendant knew, or ought to have known that inhalation of even trivial quantities of asbestos could cause mesothelioma, such knowledge was confined to knowledge that inhaling even trivial quantities of asbestos other than chrysotile asbestos could cause mesothelioma and did not extend to knowledge that inhaling even trivial quantities of chrysotile asbestos could cause mesothelioma.
    7. (g)
      The only purpose intended by the defendant by which Klingerit was manufactured, supplied and distributed was for use as a gasket.
    8. (h)
      At no material time was the state of scientific and medical knowledge, and the dissemination of that scientific and medical knowledge, such that the fact that end users of Klingerit would work upon the Klingerit in ways to cause asbestos dust and fibre to be released into the atmosphere, a matter known to the defendant or which ought to have been known to the defendant.
    9. (i)
      If Mr Jones, in the course of his employment, made use of Klingerit as a packing material, Klingerit was not intended by the defendant for use as a packing material.
    10. (j)
      Any use of Klingerit as a packing material was not intended by the defendant and was not reasonably foreseeable by the defendant.
    11. (k)
      Klingerit did not become friable in the course, or as a result, of its proper and intended use.
    12. (l)
      The composition of Klingerit was such that the liberation of inhalable asbestos fibres from the product was not possible in the course, or as a result, of working upon the Klingerit in ways which were intended and/or reasonably foreseeable.
    13. (m)
      If (which is denied) it was possible for inhalable asbestos fibres to be liberated from the Klingerit product in the manner alleged by the plaintiff, the same neither caused nor materially contributed to Mr Jones developing mesothelioma.  
    14. (n)
      If (which is not admitted) Mr Jones developed malignant mesothelioma, the same was not a consequence of inhaling asbestos fibres emanating from the Klingerit product.
    15. (o)
      If it was possible for inhalable asbestos fibres to be liberated from the Klingerit in the manner alleged by the plaintiff, the same neither caused nor materially contributed to the development of mesothelioma.
    16. (p)
      From in or about the year 1982, the defendant issued appropriate warnings such that, if heeded and acted upon, those warnings would have protected users of Klingerit against any known and/or relevant risk to health.
    17. (q)
      Any amount of compensation would have been reduced on account of Mr Jones’s contributory negligence.
  3. [8]
    Procedurally in the Jones proceeding, an order was made on 12 September 2019 for all written statements from all witnesses the plaintiff intends to call at trial to be served by 12 December 2019.  Leave has not been granted for any such further witnesses to be relied upon in the Jones proceeding and no such order has been made.[4]  It is anticipated that the plaintiff will lead evidence from Mr Jones (now deceased),[5] Mr Alex Vary and Mr Neil Cassidy.  The plaintiff intends to lead evidence from three experts, namely Mr Michael Kottek (Occupational Physician), Professor Klebe (Associate Professor of Pathology) and Professor Leigh (Epidemiologist and Occupational Physician).[6] 
  4. [9]
    The defendant is likely to rely upon the expert opinions of Professor Fox (Physician), Mr Alan Rogers (Occupational Hygienist) and Dr Moolgavkar (Epidemiologist and Biostatistician).

Simpson Proceeding

  1. [10]
    In the Simpson proceeding, the plaintiff relevantly alleges the following:
    1. (a)
      Mr Simpson passed away on 14 June 2020 from the disease mesothelioma.
    2. (b)
      Mr Simpson was employed as follows:
      1. (i)By the former Queensland Commissioner for Railways and Queensland Rail at Ipswich and Redbank as an apprentice engine fitter and engine fitter from 1956 to 1 November 1963.
      2. (ii)By the State Government of Queensland at the Princess Alexandra Hospital as a fitter and turner from 1963 to 1967.
      3. (iii)By Queensland Health at various hospitals throughout Queensland as an equipment inspector from 1970 to 1977.
      4. (iv)By Queensland Health at the Baillie Henderson Hospital at Toowoomba as an engineer from 1977 to 1996.
    3. (c)
      During his employment by Queensland Health at the Baillie Henderson Hospital, Mr Simpson worked with and around a product known as “Klingerit” which was manufactured, supplied and distributed by the defendant which contained asbestos. 
    4. (d)
      As a consequence of inhaling asbestos fibre liberated by working with and around Klingerit, Mr Simpson developed malignant mesothelioma.
    5. (e)
      Mr Simpson’s inhalation of the asbestos dust and fibre, and development of mesothelioma, was caused by the defendant’s breach of duty of care owed to Mr Simpson “to take reasonable care to avoid exposing persons such as [Mr Simpson] to the risk of foreseeable injury arising from the supply, sale and subsequent use of Klingerit.”
    6. (f)
      The plaintiff accepted Mr Simpson’s worker’s compensation application consequent upon his developing mesothelioma and paid compensation.
    7. (g)
      Pursuant to s 207B(8) of the WCRA, the plaintiff is entitled to be indemnified by the defendant for the compensation paid.
  2. [11]
    In response, the defendant has pleaded a number of identical issues raised in the Jones proceeding, including:
    1. (a)
      The defendant conducted the business of manufacture, supply and distribution of products containing asbestos within Australia, including Klingerit.
    2. (b)
      The only form of asbestos products were products containing chrysotile asbestos.
    3. (c)
      At no time was the state of scientific and medical knowledge, and the dissemination of that scientific and medical knowledge, such that inhaling asbestos as a consequence of the intended and/or reasonably foreseeable use of the defendant’s products was injurious to health, a matter known to the defendant or which ought to have been known to the defendant.
    4. (d)
      If (which is denied) the defendant knew, or ought to have known, that inhaling asbestos was injurious to health, such knowledge was confined to knowledge that inhaling asbestos other than chrysotile asbestos was injurious to health and did not extend to knowledge that inhaling chrysotile asbestos was injurious to health.
    5. (e)
      It did not know or ought to have known that inhalation of even trivial quantities of chrysotile asbestos could cause mesothelioma because at no material time was the state of scientific or medical knowledge, and the dissemination of that scientific and medical knowledge, such that the fact that inhalation of even trivial quantities of chrysotile asbestos could cause mesothelioma, a matter known to the defendant or which ought to have been known to the defendant.
    6. (f)
      If (which is denied) at any material time the defendant knew, or ought to have known that inhalation of even trivial quantities of asbestos could cause mesothelioma, such knowledge was confined to knowledge that inhaling even trivial quantities of asbestos other than chrysotile asbestos could cause mesothelioma and did not extend to knowledge that inhaling even trivial quantities of chrysotile asbestos could cause mesothelioma.
    7. (g)
      The only purpose intended by the defendant by which Klingerit was manufactured, supplied and distributed was for use as a gasket.
    8. (h)
      At no material time was the state of scientific and medical knowledge, and the dissemination of that scientific and medical knowledge, such that the fact that end users of Klingerit would work upon the Klingerit in ways to cause asbestos dust and fibre to be released into the atmosphere, a matter known to the defendant or which ought to have been known to the defendant.
    9. (i)
      If Mr Simpson, in the course of his employment, made use of Klingerit as a packing material, Klingerit was not intended by the defendant for use as a packing material.
    10. (j)
      Any use of Klingerit as a packing material was not intended by the defendant and was not reasonably foreseeable by the defendant.
    11. (k)
      Klingerit did not become friable in the course, or as a result, of its proper and intended use.
    12. (l)
      The composition of Klingerit was such that the liberation of inhalable asbestos fibres from the product was not possible in the course, or as a result, of working upon the Klingerit in ways which were intended and/or reasonably foreseeable.
    13. (m)
      If (which is denied) it was possible for inhalable asbestos fibres to be liberated from the Klingerit product in the manner alleged by the plaintiff, the same neither caused nor materially contributed to Mr Simpson developing mesothelioma.  
    14. (n)
      If (which is not admitted) Mr Simpson developed malignant mesothelioma, the same was not a consequence of inhaling asbestos fibres emanating from the Klingerit product.
    15. (o)
      If it was possible for inhalable asbestos fibres to be liberated from the Klingerit in the manner alleged by the plaintiff, the same neither caused nor materially contributed to the development of mesothelioma.
    16. (p)
      From in or about the year 1982, the defendant issued appropriate warnings such that, if heeded and acted upon, those warnings would have protected users of Klingerit against any known and/or relevant risk to health.
    17. (q)
      Any amount of compensation would have been reduced on account of Mr Simpson’s contributory negligence.
  3. [12]
    The defendant is unaware as to the lay witnesses intended to be called by the plaintiff in the Simpson proceeding.  It has been further highlighted by the defendant that no expert evidence has been served in the Simpson proceeding.  According to the plaintiff, however, given there is apparently recent/new disclosure by the defendant, the expert opinions are yet to be finalised, despite the defendant contending that the plaintiff is prevented from leading expert evidence given pleadings have long since closed, disclosure has already been completed[7] and therefore the opportunity has long passed and no leave has been granted for any further evidence to be served in the Simpson proceeding.

What is the pragmatic approach to be taken?

  1. [13]
    It is with these matters in mind that I will consider what Crow J noted as the nine Humphries factors.

Humphries No. 1 – Are these procedures broadly of a similar nature?

  1. [14]
    I am satisfied that the Jones and Simpson proceedings are, if not identical, broadly of a similar nature because each dispute involves only two parties pursuant to a statutory cause of action arising from the WCRA.  This is not a straightforward personal injuries action where the factual nuances command separate and distinct trials.  Moreover, the proceedings involve a determination of the right of indemnity under s 207B(8) of the WCRA and are of a broadly similar nature because, if not apparent already but will be explored below, there is a substantial commonality in issues of law and fact.   

Humphries No. 2 – Are there issues of fact and law common to each proceeding?

  1. [15]
    It is to be expected that there will be factual nuances particular to each proceeding but overall there are common issues which call for the application of r 79.  I accept there are factual matters unique to each proceeding.  For example, the actual facts, circumstances, periods, extent, duration, nature and character of any alleged inhalation of asbestos by each of the deceased individuals during their working lives.  I also accept that one issue not material in the Jones proceeding, but relevant to the Simpson proceeding, involves a consideration of amphibole asbestos and tremolite asbestos.[8]  The plaintiff will separately have to prove the alleged damage (necessarily different and unique) by each of the deceased workers and the alleged liability from the perspectives of foreseeability and causation.  Whilst these matters have some bearing, it does not necessarily militate a finding that there are insufficient issues of fact and law relevant to each proceeding.  Rather there is sufficient commonality because the real issues in dispute favour the granting the present application.  For example, broadly considered, the features common to each proceeding include whether:
    1. (a)
      the tasks carried out by the deceased workers in relation to Klingerit and the manner in which those tasks were carried out resulted in inhalable asbestos dust and fibre;
    2. (b)
      the specific tasks alleged to have been carried out by each deceased worker in relation to Klingerit were consistent with industry standards and/or best practice at the time;
    3. (c)
      the specific tasks alleged to have been carried out by each deceased worker in relation to Klingerit and the manner in which those tasks were carried out were consistent with a reasonably foreseeable use of that product at the relevant time;
    4. (d)
      each deceased worker inhaled asbestos dust and fibre at levels above trivial as a result of the specific tasks alleged to have been carried out in relation to Klingerit and the manner in which those tasks were carried out;
    5. (e)
      any inhalation by either deceased worker of asbestos dust and fibre as a result of their specific tasks alleged to have been carried out in relation to Klingerit and the manner in which those tasks were carried out was in breach of applicable occupational hygiene standards at the relevant time;
    6. (f)
      the products identified as Klingerit contained any form of asbestos other than chrysotile asbestos; and
    7. (g)
      the deceased workers developed malignant mesothelioma.
  2. [16]
    I accept, as it was submitted on behalf of the plaintiff, that many of these issues involve a determination by reference to the same body of background historical data and material and opinion evidence.  For instance, the liberation of inhalable asbestos fibre from Klingerit, the composition of Klingerit including whether it contained asbestos other than chrysotile asbestos, the toxicity or otherwise of chrysotile asbestos and its causative influence on the inducement of mesothelioma and what reasonably foreseeable uses of Klingerit there were. 
  3. [17]
    Additionally, the product in question, being Klingerit, is the same.  The use to which it was put, such as packing material and as gaskets between flanges on pipe seams, is the same.  The injury of mesothelioma is the same.  The plaintiff’s experts are intended to be the same.[9]  The lay evidence to be called by the plaintiff in both proceedings will address similar issues such as the way in which the industry used the Klingerit and its intended and reasonably foreseeable use. 
  4. [18]
    All these matters demonstrate a not insignificant number of commonalities which outweigh the unique nuances of each proceeding.   

Humphries No. 3 – Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings?

  1. [19]
    It is not unsurprising that the lay witnesses in one proceeding will be entirely different to the lay witnesses in the other proceeding, at least in the plaintiff’s case. 
  2. [20]
    It is likely however and subject to further interlocutory applications, that both the plaintiff and the defendant are likely to have a common pool of expert witnesses.  In the Simpson proceeding, as noted the plaintiff intends to call expert witnesses Associate Professor Klebe, Professor Leigh and Mr Cottek.  The plaintiff anticipates that the first expert will provide evidence in respect of the deceased worker’s mesothelioma and its cause.  The second expert is to be called in respect of the risks known to health when inhaling asbestos including developing mesothelioma.  The final expert is intended to give evidence about Klingerit and its ability to omit dust, its known dangers, the risks it posed, its foreseeable uses and the preventative measures that might have been taken.
  3. [21]
    Putting aside for the moment the issue of leave to rely upon expert opinion in accordance with the rules, Associate Professor Klebe and Professor Leigh have given reports in the Jones proceeding. 
  4. [22]
    In similar vein, it is expected that the defendant will call expert evidence from an occupational hygienist, epidemiologist and respiratory physician.  In the Jones proceeding, experts include Alan Jones (Occupational Hygiene Consultant), Dr Suresh Moolgavkr (Epidemiologist) and Professor Richard Fox (Consultant in Clinical Haematology and Medical Oncology).  The Jones proceeding places more weight on the expert evidence as opposed to the lay witnesses whose evidence will, no doubt be different from, but perhaps in some respects will assist with, the same type of factual issues for determination. These may include the levels of the dust, its inhalation, the nature of the tasks and other such issues.  However, this evidence, as the applicant has submitted, can be dealt with sequentially in a trial heard together or in sequence.

Humphries No. 4Are there alternative proposals?

  1. [23]
    This application is one of a number which have been filed since the institution of these proceedings.  There will no doubt be more in the future.  The parties are unable to agree with proposals offered by the other, and, on the large part require determination from the court.  The dispute between the parties may be characterised as litigious.  Case management will encourage the timely resolution of each matter.  I am confident that, with the assistance of appropriate court case management, there can be a determination of common issues of fact and law, such that each proceeding can be dealt with sequentially in a trial heard together or in sequence.
  2. [24]
    I am against the submission raised by the respondent that the proceedings could be more appropriately managed by hearing and determining the Jones proceeding first, before further case management occurs in the Simpson proceeding.  To the extent that any findings are made in the Jones proceeding which assist in the Simpson proceeding, the parties can then revisit their positions, whether by way of admissions or otherwise, to limit the issues in dispute in the Simpson proceeding before further resources are committed to that proceeding.  It was submitted that such an approach would provide a more efficient use of the parties’ and the court’s resources rather than the commitment of all of the necessary resources for two trials to be heard at the same time.  However, more compellingly for me, it is possible the same experts will be involved in each of the matters, subject to leave being granted to adduce expert evidence for the plaintiff in the Simpson proceeding, and there are issues of fact and law common to each proceeding.  I take the view that the proceedings are at a roughly similar state of preparedness.  It would be more efficient and expeditious for each proceeding to be dealt with sequentially in a trial heard together or in sequence.

Humphries No. 5 – Is there a prospect of multiple appeals with substantial delays if the proceedings are not tried at the same time?

  1. [25]
    It is submitted by the applicant that there is a prospect of multiple appeals if the proceedings are not tried at the same time, particularly in relation to some of the common issues. For example, the foreseeability of Klingerit uses, which is bound up very much, inter alia, with the allegations concerning the type of packaging and the use to which the Klingerit was to be put and its chrysotile asbestos content.  On the other hand, the respondent contended that if the proceedings are tried at the same time, with evidence shared between the proceedings, any appeal which arises will inevitably involve multiple appeals dealing with each of the separate proceedings.  In contrast, if the proceedings are tried separately, at different times, any appeal which arises from the first trial may ultimately determine and narrow a potential issue in the future second trial.
  1. [26]
    If the proceedings are appropriately case managed such that there is, for example, agreed common issues (for matters such as the extent to which the defendant knew or ought to have known that its products, including Klingerit, contained asbestos other than chrysotile asbestos, as well as the scientific and medical knowledge at the relevant time) then I consider the prospect of multiple appeals minimised but should result in a significant saving of time if each proceeding is to be dealt with sequentially in a trial heard together or in sequence.  If the matters were not tried at the same time, there will inevitably be a prospect of multiple appeals requiring appellant court intervention resulting in further time and cost at the expense of the parties.

Humphries No. 6 – Will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately?

  1. [27]
    As intimated, I consider there will be a significant saving of time if the proceedings are tried at the same time.  The applicant on the one hand estimates 15 – 20 days are required for each proceeding; the respondent estimates five days for each trial.  As for the applicant’s estimate, I am not as pessimistic; yet as for the respondent’s estimate, I am not as optimistic.   
  2. [28]
    If the proceedings are heard together, or in sequence with common issues being heard together, then I consider the estimate will be somewhere in the region of ten days in total.  This will result in savings to the parties as well as the court and avoid the need for the court to separately consider issues which are common to both proceedings.  Further, it avoids the need to have to arrange two separate occasions for the attendance of the same or similar experts.  I accept that at the hearing of the Jones proceeding for example, each expert witness will be required to give evidence which is founded on the separate facts established in that proceeding.  However, there are also common issues arising from both proceedings.  If the expert evidence is to be truncated or combined on common issues, then that is to be encouraged and there is no reason to consider that there will not be substantial saving of time to each party and the court.

Humphries No. 7 - Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence?

  1. [29]
    I am of the view that this matter can be case managed appropriately so that by having consecutive or partial-consecutive sequence with each other, difficulties of trial management can be avoided when these matters are ready for trial.  I envisage there can be cross-admissibility of evidence with court supervision, to facilitate in the just and expeditious resolution of the issues in dispute.  The time devoted to the case management will efficiently assist in the resolution of disputes between the parties. As Crow J recognised in Wan, there may be some difficulties in terms of trial management and complexity of procedural issues if the trials are heard together, however they can be managed.

Humphries No. 8 - Is one proceeding further advanced in terms of preparation for trial than the other?

  1. [30]
    In my view both proceedings are on a similar level in terms of preparation for trial.  I disagree with the respondent’s submission that both proceedings are ready for trial.  I agree with the respondent’s submission that leave has not been granted for any further evidence to be served and no such order has been sought. The issue of leave can, if necessary, be ventilated at a future date.  So too, can matters concerning disclosure.  In fact in this regard, I note that on 5 May 2021, there will be an application in the Jones proceeding about alleged incomplete disclosure.  I anticipate that similar disclosure issues are likely to arise in this proceeding which will require management by this Court.  In my view, there are a number of steps necessary before the proceedings can be listed for trial.  Case management will surely assist.  In any event, I take the view that one proceeding is no further advanced than the other sufficient to warrant against allowing the present application. 

Humphries No. 9 - Are there parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time?

  1. [31]
    As indicated earlier, there are two parties in each matters.  I can see no inconvenience to other parties if the proceedings are being tried at the same time.  Notices of discontinuance have been filed in the Simpson proceeding.  Absent any compelling reason, there is unlikely to be any potential future involvement from these defendants in the Simpson proceeding.  I am of the view that no parties will be inconvenienced if all of the proceedings are tried at the same time.

Conclusion

  1. [32]
    It is recognised there are factual nuances relevant to each proceeding.  The proceedings were each of a different category of worker and each had different histories of potential exposure to asbestos over their working careers, irrespective of their involvement with the defendant.  The nature and extent of that exposure to asbestos varies significantly between the two deceased workers.  However, there are common threads in each proceeding which weighs in favour of allowing the application to the extent that the proceedings be heard consecutively or in partial consecutive sequence with each other.  I envisage that will leave the proceedings to be essentially determined in consecutive sequence with a cross-over of the potential expert opinion to be relied upon relevant to each and both claims.[10]  Overall, I consider the approach to be adopted in allowing the application will lead to a just resolution of the disputes between the parties and a fair opportunity for all to present their case to court.  It is therefore appropriate that the proceedings be tried consecutively or in partial consecutive sequence with each other as this seems to me to be the most conducive to a just resolution of the issues in dispute. 
  2. [33]
    I will hear from the parties further as to the form of the order, consequential directions and costs. 

Footnotes

[1](1990) 25 FCR 311, 314

[2][2010] NSWSC 110 [27]

[3][2009] FCA 699 at [11]

[4]Order of Dearden DCJ 12 September 2019.

[5]To be admitted under the relevant provisions of the Evidence Act 1977 regarding deceased statements. 

[6]Although there seems to be an issue as to whether the plaintiff is permitted to lead evidence from expert Mr Kottek.  It is likely that leave will be sought, which will be the potential subject of a further interlocutory application.   

[7]It is apparent that further interlocutory hearings will be necessary including at least an application to determine whether or not either party is correct in their submission of the plaintiff’s ability to rely upon expert opinion.

[8]Court Document 54 of BD1342/19 at, for example, 1(c)(i). 

[9]The experts may not be the same as an argument has arisen whether any experts are permitted in the Simpson proceeding.

[10]Certainly insofar as it relates to the defendant’s experts.  Presently the plaintiff has experts for the Jones proceeding but there is a dispute about the Simpson proceeding. 

Close

Editorial Notes

  • Published Case Name:

    WorkCover Queensland v Klinger Limited (No 1)

  • Shortened Case Name:

    WorkCover Queensland v Klinger Limited (No 1)

  • MNC:

    [2021] QDC 55

  • Court:

    QDC

  • Judge(s):

    Jarro DCJ

  • Date:

    08 Apr 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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