Comcare v Patrick Operations Pty Ltd & Anor - [2006] NSWCA 151

NEW SOUTH WALES COURT OF APPEAL

CITATION: Comcare v Patrick Operations Pty Ltd & Anor [2006] NSWCA 151

FILE NUMBER(S):
40668/05

HEARING DATE(S): 25 May 2006

DECISION DATE: 06/09/2006

PARTIES:
Comcare - Appellant
Patrick Operations Pty Ltd - First Respondent
Anshun Pty Ltd (formerly Patrick Stevedoring Co (Victoria) Pty Ltd) - Second Respondent

JUDGMENT OF: Giles JA Ipp JA Tobias JA

LOWER COURT JURISDICTION: Dust Diseases Tribunal

LOWER COURT FILE NUMBER(S): DDT 102/03

LOWER COURT JUDICIAL OFFICER: Walker J

COUNSEL:
A J Sullivan QC & A C Scotting - Appellant
I G Harrison SC & J A de Greenlaw - Respondents

SOLICITORS:
Blake Dawson Waldron - Appellant
McCulloch & Buggy - Respondents

CATCHWORDS:
Costs - discontinuance of appeal - appellant to pay costs unless order otherwise - application for order otherwise - no reason shown for order otherwise - no question of principle.

LEGISLATION CITED:

DECISION:
Notice of motion filed on 19 May 2006 dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40668/05
DDT 102/2003/1
GILES JA
IPP JA
TOBIAS JA
Wednesday 6 September 2006

COMCARE v PATRICK OPERATIONS PTY LTD & ANOR

Judgment

GILES JA: This appeal was discontinued shortly before the appointed hearing. Under the UCP Rules r 42.19(2), the appellant had to pay the respondents’ costs unless the Court ordered otherwise. The appellant applied by notice of motion for an order that it and the respondents pay their respective own costs.
Mr Jack Singh brought proceedings in the Dust Diseases Tribunal (“the Tribunal”) against the Stevedoring Industry Finance Committee (“SIFC”), the successor to the liabilities of the Australian Stevedoring Industry Authority which had had responsibility for the regulation and control of the performance of stevedoring operations. He alleged negligence causing lung disease from inhalation of asbestos dust and fibre. The appellant is now the successor to the liabilities of SIFC.
SIFC cross-claimed against the respondents, which had been Mr Singh’s employers for most but not all of the time of his exposure to asbestos, claiming indemnity or contribution pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946.
Mr Singh’s claim against SIFC was settled, and consent judgment against SIFC was entered for $200,000. Walker J heard the cross-claim. He found that the settlement was reasonable, and that the respondents should contribute 75 per cent of the judgment sum.
The respondents appealed on the grounds -
“1.That Judge Walker erred by failing to apportion damage between the respondents and the appellant for the relevant exposure periods in respect of the plaintiff’s condition of asbestosis which was divisible.
2.That Judge Walker erred by relying on expert opinion, which was not in evidence, to equate the aetiology of asbestos related pleural disease and asbestosis, and thereby find that the plaintiff’s earlier exposure to asbestos was more causative of his condition.”
No evidence was put before us explaining why the appeal was discontinued. Counsel for the appellant put what he correctly described as “a very brief argument in that…

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 Comcare v Patrick Operations Pty Ltd & Anor

Details

AGLC: Comcare v Patrick Operations Pty Ltd [2006] NSWCA 151
Case: [2006] NSWCA 151
Decision Date: 6 September 2006

CaseChat Overview and Summary

The appeal concerned the costs consequences of a discontinuance of an appeal. Comcare, the appellant, had filed a notice of motion to discontinue its appeal against Patrick Operations Pty Ltd and another respondent. The primary issue before the Court of Appeal of New South Wales was whether Comcare should be ordered to pay the costs of the respondents, notwithstanding the discontinuance.

The Court was required to determine whether there were any grounds to depart from the usual rule that an appellant who discontinues an appeal is liable for the costs of the respondent. Specifically, the Court considered whether any "reason shown" existed to justify an order otherwise, and whether the discontinuance involved a "question of principle" that might warrant a different costs outcome.

The Court of Appeal, comprising Giles JA, Ipp JA, and Tobias JA, found no reason to depart from the general rule. The Court noted that the notice of motion for discontinuance was filed on 19 May 2006. In the absence of any compelling reason or a question of principle being demonstrated by the appellant, the Court dismissed the notice of motion.

Consequently, the Court ordered that Comcare pay the costs of the respondents.

Orders

Orders of the court

Notice of motion filed on 19 May 2006 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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