Reported Decision: 66 NSWLR 400
Court of Appeal
CITATION: AMACA PTY LTD v CREMER & ORS [2006] NSWCA 164 HEARING DATE(S): 13 October 2005
JUDGMENT DATE:
28 June 2006JUDGMENT OF: McColl JA at 1; Basten JA at 104; Brereton J at 132 DECISION: 1. Appeal allowed; 2. Set aside the judgment in favour of the first respondent as against the appellant; 3. In lieu thereof, give judgment for the first respondent against the appellant in the sum of $29,363.25; 4. Set aside the orders as to costs made on 13 May 2004 and 21 December 2004 and in lieu thereof order; (1) Respondents to pay the appellant’s costs of the hearing on 10 May 2004 on a party-party basis; (2) Appellant, second, third and fourth respondents to pay the first respondent’s costs of the proceedings in the Tribunal and, in the case of the second, third and fourth respondents, on an indemnity basis from 14 May 2004; 5. Respondents to pay the appellant’s costs of the appeal; 6. Grant to each respondent a certificate under the Suitors’ Fund Act 1951 if otherwise entitled CATCHWORDS: Dust Diseases - Dust diseases legislation - Dust Diseases Tribunal - Damages for non-economic loss after plaintiff’s death - Plaintiff dies after instituting proceedings in Dust Diseases Tribunal – Estate joins additional defendant after plaintiff’s death – Whether damages for non-economic loss are recoverable against defendant added by amendment after plaintiff’s death - Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 2(2)(d) — Dust Diseases Tribunal Act 1989 (NSW), s 12B LEGISLATION CITED: Administration and Probate Act 1958 (Vic), s29(2A)
Administration and Probate (Dust Diseases) Act 2000 (Vic)
Dust Diseases Tribunal Act 1989 (NSW), ss 10, 11, 11A, 12, 12A, 12B, 12C, 12D, 17, 23, 25, 25A, 25B, 32
Dust Diseases Tribunal Rules, r 2
Interpretation Act 1987, s33
Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 2
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5
Limitation Act 1969, s 26
Supreme Court Act 1970, s 75A
Supreme Court Rules 1970 (NSW), Pt 8, rr 2, 8, 10, 11(3), Pt 20, r 1, r 4
Uniform Civil Procedure Rules 2005 (NSW), rr 6.24, 6.28
Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 (NSW), Sched 2 and 3, cl 8CASES CITED: Amaca Pty Ltd v CSR Ltd (2001) 51 NSWLR 476
Baldry v Jackson [1976] 2 NSWLR 415
Baxter v Obacelo Pty Ltd (2001) 205 CLR 635
BHP Billiton Limited v Schultz (2004) 221 CLR 400
Blake v Norris (1990) 20 NSWLR 300
Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213
Bull v Attorney-General (NSW) (1913) 17 CLR 370
Cheny v Spooner (1929) 41 CLR 532
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Clarence v Electricty Commission of New South Wales (1990) 20 NSWLR 1
Cremer v Seltsam Pty Limited & Ors (No. 1) (2004) 1 DDCR 478
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234
Fernance v Nominal Defendant…
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- AGLC
- Amaca Pty Ltd v Cremer [2006] NSWCA 164
- Case
- [2006] NSWCA 164
- Decision Date
CaseChat Overview and Summary
Amaca Pty Ltd v Cremer concerned an appeal to the New South Wales Court of Appeal regarding the recoverability of damages for non-economic loss in a dust diseases claim after the plaintiff's death. The original plaintiff instituted proceedings in the Dust Diseases Tribunal. Following the plaintiff's death, his estate joined Amaca Pty Ltd as an additional defendant. The central dispute revolved around whether the estate could recover damages for non-economic loss against Amaca, which was added as a defendant after the plaintiff's passing.
The primary legal issue before the Court of Appeal was the interpretation and application of section 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) in the context of proceedings in the Dust Diseases Tribunal. Specifically, the court had to determine whether damages for non-economic loss, which are generally not recoverable by a deceased person's estate under that section, could be recovered against a defendant who was added to the proceedings after the plaintiff's death, despite the limitations imposed by the Act.
The Court of Appeal, with McColl JA, Basten JA, and Brereton J presiding, reasoned that section 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) expressly excluded the recovery of damages for non-economic loss by the estate of a deceased person. The court held that this exclusion applied regardless of whether the defendant was a party to the proceedings at the time of the plaintiff's death or was joined subsequently. Therefore, the estate was not entitled to recover damages for non-economic loss against Amaca Pty Ltd. The appeal was allowed, the judgment in favour of the first respondent (the estate) against the appellant (Amaca Pty Ltd) was set aside, and judgment was entered for the first respondent against the appellant in a reduced sum, reflecting only economic loss. Orders regarding costs were also varied.
The primary legal issue before the Court of Appeal was the interpretation and application of section 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) in the context of proceedings in the Dust Diseases Tribunal. Specifically, the court had to determine whether damages for non-economic loss, which are generally not recoverable by a deceased person's estate under that section, could be recovered against a defendant who was added to the proceedings after the plaintiff's death, despite the limitations imposed by the Act.
The Court of Appeal, with McColl JA, Basten JA, and Brereton J presiding, reasoned that section 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) expressly excluded the recovery of damages for non-economic loss by the estate of a deceased person. The court held that this exclusion applied regardless of whether the defendant was a party to the proceedings at the time of the plaintiff's death or was joined subsequently. Therefore, the estate was not entitled to recover damages for non-economic loss against Amaca Pty Ltd. The appeal was allowed, the judgment in favour of the first respondent (the estate) against the appellant (Amaca Pty Ltd) was set aside, and judgment was entered for the first respondent against the appellant in a reduced sum, reflecting only economic loss. Orders regarding costs were also varied.
Orders
Orders of the court
1. Appeal allowed; 2. Set aside the judgment in favour of the first respondent as against the appellant; 3. In lieu thereof, give judgment for the first respondent against the appellant in the sum of $29,363.25; 4. Set aside the orders as to costs made on 13 May 2004 and 21 December 2004 and in lieu thereof order; (1) Respondents to pay the appellant's costs of the hearing on 10 May 2004 on a party-party basis; (2) Appellant, second, third and fourth respondents to pay the first respondent's costs of the proceedings in the Tribunal and, in the case of the second, third and fourth respondents, on an indemnity basis from 14 May 2004; 5. Respondents to pay the appellant's costs of the appeal; 6. Grant to each respondent a certificate under the Suitors' Fund Act 1951 if otherwise entitled
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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