Defence struck out after non-compliance with discovery, interrogatories orders

Mills Oakley Insurance Partner Stuart Eustice discusses the decision in Daniel Smith, Aaliyah Ingram and Thomas Smith by their tutor Eva Coe v NSWL&HC [2019] NSWDDT 4 where the Defendant’s failure to comply with the Court’s Orders about discovery and interrogatories resulted in their defence being struck out. Stuart Eustice


On 22 March 2019 Judge Strathdee of the NSW Dust Diseases Tribunal (DDT) concluded the “defendant has failed in its duty to assist the Court to further the overriding purpose to facilitate the just, quick and resolution of the real issues in the proceedings” [29]. Consequently, her Honour struck out the Defendant’s Defence pursuant to r 22(5)(1)(b) of the UCPR and ordered that the matter proceed as an assessment of damages.

The ruling arises in direct response to the defendant’s failure to comply with the Court’s Orders regarding discovery and interrogatories.

The claim was for common law damages arising from the death of Daniel Ingram (deceased) from mesothelioma. The plaintiffs are the deceased’s dependent children and allege that the deceased was negligently exposed to asbestos dust and fibres between 1975 and 1985 whilst the defendant engaged in construction works of residential homes.

The defendant’s failing were many. It had –

  1. failed to file its reply through the Claims Resolution Process of the DDT;
  2. mediation had been arranged on three occasions and failed because the defendant was unable to obtain instructions from its client;
  3. consented to discovery yet failed to provide same or did so days prior to trial; and
  4. been evasive in its answers to interrogatories.

The defendant consented to orders for provisional discovery by 3 September 2018 including any expert or lay evidence by 10 September 2018. An extension of time for these documents was granted to 5 October 2018. The defendant failed to comply. On 9 October 2018 the plaintiffs filed a motion pursuant to s 61(3)(c) of the Civil Procedure Act 2005 and/or r 12.7 of the Uniform Civil Procedure Rules 2005 (UCPR) that the Defence be struck out. The Notice of Motion was resolved by consent of the parties and self-executing orders entered for the defendant to provide discovery by 2 November 2018, failing which its Defence would be struck out and judgment be entered for the plaintiffs with costs. The defendant provided discovery on 2 November 2018.

The defendant was granted a further extension to file and serve any expert and/or lay evidence by 21 December 2018. The hearing of 18 February 2019 was subsequently vacated on the basis that the defendant had not provided sworn answers to interrogatories, and the Tribunal made orders that the defendant may not rely upon or serve any expert evidence without leave as, at that point in time, it had not done so. Moreover, the defendant provided sworn answers to interrogatories on 22 February 2019 which the plaintiffs submitted were insufficient.

On 21 March 2019, being four days prior to the hearing of the matter, the defendant provided further (unsworn) answers to interrogatories themselves referring to contracts for building work numbering over 200 pages which had not previously been discovered.

The plaintiffs subsequently brought the matter before the Court and sought that the Defence be struck out for the following reasons:

  1. the defendant has unduly delayed the proceedings;
  2. the answers to interrogatories are insufficient, evasive and improperly require the plaintiffs to search through discovered and non-discovered documents;
  3. the plaintiffs have been unable to take advantage of the provisions of the Claims Resolution Process and attend a mediation of the proceeding;
  4. the defendant continued to breach orders of the court despite the numerous consents to adjournments by the plaintiffs; and
  5. the plaintiffs have suffered “great” prejudice as a consequence of the defendant’s delay and failure to comply with Court orders.

The Tribunal accepted the plaintiffs’ submissions and emphasised that the “defendant has failed in its duty to assist the Court to further the overriding purpose to facilitate the just, quick and resolution of the real issues in the proceedings” [29]. Consequently, her Honour struck out the Defence pursuant to r 22(5)(1)(b) of the UCPR and ordered that the matter ought to proceed as an assessment of damages and with costs of and incidental to the strikeout application being borne by the defendant.


Insurance Partner Stuart Eustice has recognised experience in many forms of insurance disputation and advises Australia’s leading insurance companies in all aspects of injury and property liability insurance litigation. He brings particular expertise in defence of personal injury litigation and regularly advises in relation to specialty and complex claims. Stuart is renowned for his easy to follow advice and exceptional client service, aimed at successfully steering complex litigation toward a timely resolution. His clients include national and ASX listed Insurers, private clients and self-insureds. Stuart’s expertise includes: Conducting litigation in all Courts, Alternate dispute resolution, Statutory workcover and public liability injury claims, Statutory and subrogated recovery actions, Defence of OH&S Prosecutions, Professional indemnity claims. Stuart’s Recent projects include: Indemnity dispute for injury claim resulting from minors driving an unregistered motor vehicle on private property; Indemnity dispute regarding liability to a third party for property damage, late notification and dual insurance considerations; Defence of an injury claim arising from failed modifications to a motor vehicle; Submissions and representation on behalf of professionals in response to regulatory inquiries; Numerous Supreme and County Court Litigation matters. Stuart is recognised as a Recommended Lawyer, Insurance, in Legal 500 Asia Pacific; and as a Recommended Lawyer, Product Liability Litigation, in Best Lawyers in Australia. Contact Stuart at or connect via LinkedIn

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