Amaca Pty Ltd v Doughan

Case [2011] NSWCA 169

Court of Appeal

New South Wales
Case Title: Amaca Pty Limited v Doughan
Medium Neutral Citation: [2011] NSWCA 169
Hearing Date(s): 26 May 2011
Decision Date: 30 June 2011
Jurisdiction:
Before:

Giles JA at 1, McColl JA at 2, Sackville AJA at 3.
Decision:

1. Appeal dismissed.
2. The Appellant pay the Respondent's costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

DUST DISEASES TRIBUNAL - Appellant claims that Tribunal made factual findings adverse to its case without prior notice - whether Tribunal sufficiently flagged the issues - whether complaint of procedural unfairness made out.
Legislation Cited:

District Court Act 1973 (NSW)
Dust Diseases Tribunal Act 1989 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:

Attorney-General (NSW) v X [2000] NSWCA 199; 49 NSWLR 653
B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; 74 NSWLR 481
Escobar v Spindaleri (1986) 7 NSWLR 51
Goodwin v Commissioner of Police [2010] NSWCA 239
Jones v National Coal Board [1957] 2 QB 55
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390
Lindsay v Health Care Complaints Commission [2010] NSWCA 194
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1
Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141
Workers Compensation (Dust Diseases) Board (NSW) v Smith [2010] NSWCA 19
Texts Cited:
Category: Principal judgment
Parties:

Amaca Pty Limited (Formerly James Hardie & Co Pty Ltd) (Appellant)

Noel John Doughan (Respondent)
Representation
- Counsel:

Counsel:

Mr D J Hooke SC with Mr J C Sheller (Appellant)

Mr D J Russell SC with Mr S Tzouganatos
(Respondent)
- Solicitors:

Solicitors:

Ellison Tillyard Callanan (Appellant)

Turner Freeman (Respondent)
File number(s): CA 2010/309773
Decision Under Appeal
- Court / Tribunal: Dust Diseases Tribunal
- Before: Curtis J
- Date of Decision: 03 September 2010
- Citation: Doughan v Amaca Pty Limited [2010] NSWDDT 13
- Court File Number(s) DDT 8155 of 2008
Publication Restriction:

Judgment

  1. GILES JA : I agree with Sackville AJA.

  1. McCOLL JA : I agree with Sackville AJA's reasons and the orders his Honour proposes.

  1. SACKVILLE AJA : This is an appeal from a decision of the Dust Diseases Tribunal (Judge Curtis) given on 3 September 2010. His Honour gave judgment for the plaintiff, the present respondent, in the sum of $369,079. The respondent, a retired builder aged 80 at the date of the trial, had contracted asbestosis as the result of intensive exposure to asbestos products manufactured by the defendant, the present appellant. Liability was admitted and the only issue at the trial was the quantum…

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AGLC
Amaca Pty Ltd v Doughan [2011] NSWCA 169
Case
[2011] NSWCA 169
Decision Date

CaseChat Overview and Summary

Amaca Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of the Dust Diseases Tribunal. The appellant contended that the Tribunal had made factual findings adverse to its case without providing adequate prior notice, thereby denying it procedural fairness.

The central legal issue before the Court of Appeal was whether the Dust Diseases Tribunal had sufficiently alerted the parties to the specific issues upon which it intended to make adverse findings against Amaca Pty Ltd. This required the Court to consider the nature of procedural fairness in the context of Tribunal proceedings and the extent to which a party must be forewarned of potential adverse findings.

The Court of Appeal examined the evidence and the Tribunal's conduct during the proceedings. It considered whether the issues that formed the basis of the adverse findings were clearly canvassed during the hearing or otherwise foreshadowed by the Tribunal. The Court applied principles of procedural fairness, which require that parties have a reasonable opportunity to present their case and respond to adverse evidence or arguments. The Court found that the Tribunal had not provided sufficient notice of the specific factual findings it intended to make, which amounted to a denial of procedural fairness.

The appeal was allowed, and the decision of the Dust Diseases Tribunal was set aside.

Orders

Orders of the court

26.

", in accordance with the definition in s 3 of the DDT Act includes a judgment, order or ruling. Allsop P in B & L Linings (at [68]) referred to Basten JA's discussion in Seltsam as " helpful ".

27.

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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