Borthwick v Comalco Aluminium Ltd [1999] QSC 437

.5::f;- I=f;J State377 5 ':> . Reporting I J I ?-. ((5/ef-) £:,1 Bureau --------------------------------------- ,', .~, TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION JONES J Writ No 7 of 1996 LORRAINE BORTHWICK and COMALCO ALUMINIUM LIMITED (ACN 009 679 127) CAIRNS .. DATE 13/12/99 JUDGMENT Respondent/Plaintiff Applicant/Defendant 1 . 1111"1", Thl~ Law COllrts. George SInd, Brishalll', Q. ·WOO Tch:pholll': (07) 3247 4360 Fax: (07) J2·0 55JZ . .~ -- 1 of 6 -- 131299 D.1 T24-25/RGC M/T CNSll14/99 (Jones J) HIS HONOUR: This is an application made by the defendant to seek a list of orders centred around the directions for the progress of the hearing and the desirability of the parties undertaking mediation. The plaintiff, who was employed as an office worker by the 10 defendant, claims damages in respect of an injury which she alleges she sustained on 5 February 1993 at her workplace. The plaintiff was exposed to strong fumes which appear to be associated with a fibreglassing operation taking place in the 20 area of the defendant's kaolin plant at ~eipa. As a consequence of being exposed to this fume the plaintiff claims that she suffered chest pain on breathin~ and was rendered chemically sensitive to fumes. 30 The defendant is in a position of having to amend its defence and, because the matter has been entered for trial, it has to seek leave to do so. The defendant has also made a request of the plaintiff for further and better particulars of aspects of its allegations. The plaintiff's response to that was to say 40 that the particulars sought are really contained in a report of Professor Mitchell which had been obtained in any event by the defendant. On the other hand the defendant is entitled to have the claim 50 raised against it properly pleaded and particularised rather than simply being referred to a body of evidence from which the defendant might assume what are the particulars to be relied upon. 60 2 JUDGMENT -- 2 of 6 -- 131299 D.1 T24-25/RGC M/T CNSll14/99 (Jones J) The request for particulars was only delivered on 29 November 1999 and so there was scant time for the plaintiff to comply with it before this application was, in fact, in file. The application was filed on 3 December 1999. The plaintiff is prepared to respond to the request so far as she is advised and do so within seven days from the date hereof. Because of the premature nature of this application I do not propose to order that particulars be supplied but simply to note the response of her lawyers saying that they will be delivered within seven days. The defendant asks that its request for leave to amend the defence be granted, such defence to be delivered on or before 14 J~nuary 2000. That seems to be a reasonable time within which to complete the pleadings. The defendant is also ordered to file and serve a supplementary list of documents by that date. The defendant also seeks that the plaintiff undergo two further medical examinations, one by Professor Mitchell who had previously furnished a report on which the plaintiff now relies, and the second by Dr Carroll. Dr Carroll has previously examined the plaintiff at the request of the defendant some two and a-half years ago and the purpose of this request for further 10 20 30 40 examination is simply to update and to establish whether there 50 have been any changes in the plaintiff's condition. that such an examination is reasonable in all the circumstances. 3 I believe 60 JUDGMENT -- 3 of 6 -- 131299 D.1 T24-25/RGC M/T CNSll14/99 (Jones J) mediator. The plaintiff now resides in Western Australia. The defendant will pay the expenses associated with her travelling to Brisbane to undergo the medical examinations in February 2000. It is appropriate that the mediation follow soon after those medical examinations are undertaken. There may be a difficulty with Professor Charles Mitchell's examination if he requires the plaintiff to undergo any form of testing as to her sensitivity which might in any way affect her health given that she is in an advanced state of pregpancy. The remaining list of orders appear to be incidental to the mediation and there is also the question of costs. On the latter issue most, if not indeed all, of the order which I propose to make are made at the request of the defendant and largely for the defendant's benefit although I concede that mediation is, of course, for the benefit of both parties if indeed it is successful. But in the event that it 10 20 30 is successful, no doubt questions of costs will be discussed 40 then. In the event that it is not, then virtually all of the orders sought in this application are for the benefit of the defendant. In those circumstances it seems to me that the defendant ought to pay the plaintiff's costs of and incidental to this application. My orders will therefore be: (1) that upon the plaintiff undertaking to deliver further 50 and better particulars of its statement of claim within 60 4 JUDGMENT -- 4 of 6 -- 131299 D.1 T24-25/RGC M/T CNS1114/99 (Jones J) seven days from the date hereof that the defendant file and deliver an amended defence on or before 14 January 2000; (2) that the defendant file and serve a supplementary list of documents on or before 14 January 2000; (3) that the plaintiff attend a medico legal examination by Associate Professor Charles Mitchell at the Princess Alexandra Hospital at 8 a.m. on 4 February 2000; (4) that the plaintiff attend a medico legal examination by ; Dr Pat Carroll at Redcliffe Hospital: on Monday 7 February 2000 at 1 p.m.; (5) that the plaintiff and the defendant attend and participate in and act reasonably and genuinely in a mediation to be conducted by a mediator to be agreed upon at a time and place agreed between the parties in the week commencing Monday, 7 February 2000 but after examination by both doctors referred to above; (6) I further order that the trial of this action be stayed pending the filing of the mediator's certificate or other earlier order of this Court; (7) if the mediation has not been completed within three months of this order the parties must provide a report to the registrar setting out the circumstances of the matter; 5 JUDGMENT 10 20 30 40 50 60 -- 5 of 6 -- 131299 D.1 T24-25/RGC M/T CNSll14/99 (Jones J) the registrar setting out the circumstances of the matter; (8) I further order that the mediator be provided with such documents as may be agreed between the parties in particular copies of amended sub-pleadings and/or amended pleadings, medical reports obtained ,by each party and expert reports obtained by each party; (9) I order that the mediators fees be paid by WorkCover Queensland who shall negotiate a fee with the mediator; (10) And I further order that the plaintiJf's costs of and incidental to this application be paid by the defendant. (11) I further order that the defendant pay the plaintiff's reasonable accommodation expenses associated with her attendance at the mediation conference; (12) I order that the parties have liberty to apply. 6 JUDGMENT 10 20 C 30 40 50 60 -- 6 of 6 --