Amaca Pty. Limited v Banton - [2007] NSWCA 336

NEW SOUTH WALES COURT OF APPEAL

CITATION: Amaca Pty. Limited v. Banton [2007] NSWCA 336

FILE NUMBER(S):
40798/07

HEARING DATE(S): 20 November 2007

EX TEMPORE DATE: 20 November 2007

PARTIES:
Amaca Pty. Limited - claimant
Bernard D. Banton - opponent

JUDGMENT OF: Hodgson JA Santow JA Tobias JA

LOWER COURT JURISDICTION: Dust Diseases Tribunal

LOWER COURT FILE NUMBER(S): DDT7225/07

LOWER COURT JUDICIAL OFFICER: O'Meally P

LOWER COURT DATE OF DECISION: 15 November 2007

COUNSEL:
Mr. D.L. Williams SC with Mr. J.C. Sheller for claimant
Mr. J.T. Rush QC with Mr. B.F. Quinn for opponent

SOLICITORS:
Ellison Tillyard Callanan, Sydney for claimant
Turner Freeman, Parramatta for opponent

CATCHWORDS:
DAMAGES
DUST DISEASES - Provisional damages and further damages under s.11A of the Dust Diseases Tribunal Act 1989 and rule 5 of the Dust Diseases Tribunal Rules - Whether exemplary damages may be sought as further damages.

LEGISLATION CITED:
Dust Diseases Tribunal Act (NSW) S.11A
Dust Diseases Tribunal Rules, r.5

CASES CITED:
Amaca Pty. Limited v. Cremer [2006] NSWCA 164, 66 NSWLR 400
Chen v. Karandonis [2002] NSWCA 412

DECISION:
Application for leave to appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40798/07
DDT 7255/07
HODGSON JA
SANTOW JA
TOBIAS JA
Tuesday 20 November 2007

AMACA PTY. LIMITED V. BANTON

Judgment
On Application for Leave to Appeal

HODGSON JA: On 15 November 2007, O’Meally P dealt with a Notice of Motion brought by the claimant which sought an order that the opponent’s claim for exemplary and aggravated damages be struck out, and an order for the listing for separate determination whether the opponent was entitled to claim exemplary and aggravated damages. His orders were that this Notice of Motion be dismissed and that the claimant pay the opponent’s costs of the Notice of Motion.
The claimant seeks leave to appeal from those orders, but in relation to exemplary damages only. The orders concern a case, the hearing of which is to commence tomorrow, brought by the opponent who is now gravely ill. It is therefore important that the court gives its decision promptly.
Although the Notice of Motion sought the determination of a separate question, the primary judge did not make such an order but merely dismissed the Notice of Motion. In my opinion the claimant has not made out a case for leave to be granted to appeal from that order, and I will propose that the application for leave to appeal be dismissed. However, there are respects in which I do not agree with all the primary judge’s reasons, and I think it appropriate to set these out briefly in the reasons I give. However, because these are difficult and complex issues, I do not intend what I say to preclude further consideration of these questions by the Court of Appeal if an appeal should be brought after the conclusion of the case.
The case concerns the construction and effect of s.11A of the Dust Diseases Tribunal Act 1989 and rule…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Amaca Pty. Limited v Banton

Details

AGLC: Amaca Pty. Limited v Banton [2007] NSWCA 336
Case: [2007] NSWCA 336
Decision Date: 20 November 2007

CaseChat Overview and Summary

Amaca Pty. Limited appealed to the Court of Appeal of the Supreme Court of New South Wales against a decision of the Dust Diseases Tribunal. The dispute concerned the ability of a plaintiff to seek exemplary damages as part of further damages awarded under section 11A of the *Dust Diseases Tribunal Act 1989* (NSW) and rule 5 of the *Dust Diseases Tribunal Rules*.

The central legal issue before the Court of Appeal was whether exemplary damages could be sought and awarded as "further damages" within the framework established by the *Dust Diseases Tribunal Act* and its Rules, particularly in circumstances where provisional damages had already been awarded.

The Court of Appeal, comprising Hodgson JA, Santow JA, and Tobias JA, considered the nature of exemplary damages and the statutory scheme governing provisional and further damages in dust disease claims. The Court concluded that the legislative intent behind section 11A and rule 5 was to provide for the recovery of further compensation for the progression of a dust-related disease, rather than to introduce or expand the availability of non-compensatory damages like exemplary damages. The Court reasoned that exemplary damages are punitive in nature and distinct from the compensatory purpose of further damages in this context.

The application for leave to appeal was dismissed with costs.

Orders

Orders of the court

Application for leave to appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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