Australia, July 3 -- New South Wales Land and Environment Court issued text of the following judgement on June 3:

1. This judgment concerns two Notices of Motion:

1) A Notice of Motion filed on 6 May 2025 by the plaintiff Mr David Kelsall seeking verified discovery from all three defendants (the Discovery Motion).

2) An Amended Notice of Motion filed on 20 May 2025 by Mr Andersen solicitor seeking orders that Mr Kelsall's pleadings against his client be set aside or dismissed or struck out or limited, on the bases identified in the Amended Notice of Motion (the Dismissal Motion).

2. I will deal first with Mr Andersen's Motion.

3. Mr Kelsall alleges that he suffers from silicosis and from primary lung cancer with metastatic spread to the liver. A report dated 8 May 2025 puts Mr Kelsall's life expectancy at "6 to 12 months subject to ongoing assessments and response to planned therapies".

Background: Plaintiff's Allegations

4. By a Further Second Amended Statement of Claim filed on 29 April 2025 Mr Kelsall seeks provisional damages for primary lung cancer with metastatic spread to the liver, silicosis and rheumatoid arthritis. The First Defendant is Downer EDI Mining Pty Ltd (Downer). The Second Defendant is Daracon Engineering Pty Ltd (Daracon). The Third Defendant is Tarrawonga Coal Pty Ltd (Tarrawonga Coal).

5. Mr Kelsall pleads as follows:

1) Downer occupied, managed and operated the Boggabri Coal Mine (the Boggabri Mine).

2) Tarrawonga Coal occupied, managed and operated the Tarrawonga Coal Mine (the Tarrawonga Mine).

3) From 2006 to 2008 Mr Kelsall was employed by Woodlands Pastoral Contracting Pty Ltd (Woodlands) as a farm hand and water cart driver.

4) During the period of employment by Woodlands Mr Kelsall worked as a water truck driver at the Boggabri Mine for a couple of months and worked as the driver of a tip truck on the construction of a residential subdivision called Mornington Heights in Gunnedah.

5) During Mr Kelsall's employment with Woodlands, while working at the Boggabri Mine and at Mornington Heights, he was exposed to and inhaled silica dust and mixed dust.

6) During Mr Kelsall's employment with Woodlands, while he was working at the Boggabri Mine and at Mornington Heights, Daracon directed, supervised and controlled his work, and Mr Kelsall reported to Daracon.

7) From a date in mid-2008 to a date in August 2009 and from a date in April 2010 to a date in November 2010, Mr Kelsall was employed by Daromin Engineering Pty Ltd (Daromin) to work at the Boggabri Mine, where he was exposed to and inhaled silica dust, coal dust and mixed dust.

8) From late August 2009 to April 2010, and again from November 2010 to 2022, Mr Kelsall was employed by Daracon in various roles, including at the Boggabri Mine and the Tarrawonga Mine.

9) In this work, Mr Kelsall was exposed to and inhaled silica dust, coal dust and mixed dust.

10) During employment with both Daracon and Daromin, Mr Kelsall also worked at ten nominated sites (these are pleaded in par 6B of the Further Second Amended Statement of Claim), largely in the field of construction (the Ten Sites).

11) During all of Mr Kelsall's periods of employment by Daromin, his work was directed, supervised and controlled by Daracon, and Mr Kelsall reported to Daracon.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1971fa763969c8e57a127131)

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