Amaca Pty Ltd v Mathwin

CITATION:	Amaca Pty Ltd v Mathwin [2005] NSWCA 364
HEARING DATE(S):	20 October 2005
JUDGMENT DATE:	25 October 2005
JUDGMENT OF:	Giles JA at 1; McColl JA at 2; Gzell J at 21
DECISION:	Leave to appeal dismissed with costs.

CATCHWORDS:	APPEAL - leave to appeal - arguable error of law - no substantial injustice
LEGISLATION CITED:	Dust Diseases Tribunal Act 1989 Dust Diseases Tribunal Rules Supreme Court Rules 1970
CASES CITED:	Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621 House v The King [1936] HCA 40; (1936) 55 CLR 499 Mathwin v Amaca Pty Ltd [2004] NSWDDT 49 Morgan v Johnson (1998) 44 NSWLR 578 NSW Insurance Ministerial Corp v Reeve (1993) 42 NSWLR 100
PARTIES:	Amaca Pty Ltd (Claimant) Stephen Paul Mathwin (as Legal personal representative of the Estate of the Late John Mathwin) (Opponent)
FILE NUMBER(S):	CA 40053/05
COUNSEL:	E G H Cox (Claimant) A J Leslie QC (Opponent)
SOLICITORS:	Holman Webb (Claimant) Turner Freeman Lawyers (Opponent)

LOWER COURT JURISDICTION:	Dust Diseases Tribunal
LOWER COURT FILE NUMBER(S):	DDT 123/04
LOWER COURT JUDICIAL OFFICER:	Curtis J

CA 40053/05
DDT 123/04

GILES JA
McCOLL JA
GZELL J

Tuesday, 25 October 2005

AMACA PTY LTD v Stephen Paul MATHWIN (as legal personal representative of the Estate of the Late John Mathwin)

Judgment

1 GILES JA: I agree with McColl JA.

2 McCOLL JA: This application for leave to appeal was heard on 20 October 2005. The Court dismissed the application with costs. These are the reasons for that decision.

Statement of the case

3 On 21 April 2004 John Mathwin (the “deceased”) commenced proceedings in the Dust Diseases Tribunal against Amaca Pty Ltd, the claimant, seeking to recover damages for injuries caused by the disease of mesothelioma he claimed he contracted as a result of inhaling asbestos fibres from products manufactured by the claimant. The deceased gave evidence in the proceedings in Adelaide on 17 June 2004. He died on 18 June 2004.

4 On a date which the evidence does not disclose, but which was prior to 27 October 2004, Stephen Mathwin, the deceased’s legal personal representative was substituted as the plaintiff in the proceedings: SCR Pt 8 r 10(2) which applied to the Tribunal (Dust Diseases Tribunal Rules, cl 2(1) as then in force).

5 The parties attempted to settled the matter. On 4 June 2004, the deceased made an offer of $530,000 plus costs of $40,000. On 9 June 2004 the claimant served an offer of compromise pursuant to SCR Pt 22 in the sum of $170,000 plus costs. The offer was expressed to be open for 28 days: SCR Pt 22 r 3(3). On 18 June 2004, the deceased’s solicitors made a verbal offer to settle the matter for $450,000, presumably inclusive of costs. On 27 October 2004, after he was substituted as the plaintiff, the opponent made a further offer of $260,000 plus costs of $46,000. On 1 November 2004 the claimant made…