New South Wales
Court of Appeal
CITATION: Dasreef Pty Limited v Hawchar [2010] NSWCA 154 HEARING DATE(S): 5 March 2010
JUDGMENT DATE:
6 July 2010JUDGMENT OF: Allsop P at 1; Basten JA at 100; Campbell JA at 101 DECISION: 1. Allow the appeal in part.
2. Set aside orders 5, 6 and 7 made by the Dust Diseases Tribunal on 15 July 2009 and contained in the form of orders signed by the Registrar of the Dust Diseases Tribunal on 25 September 2009.
3. Remit the question of costs to the Dust Diseases Tribunal for reconsideration.
4. The parties file submissions of no more than two pages on costs of the appeal within 14 days.CATCHWORDS: APPEAL– statutory appeal – Dust Diseases Tribunal Act 1989 (NSW) s 32 – right of appeal to Supreme Court on point of law - EVIDENCE – admissibility – expert opinion – whether witness had relevant expertise to measure dust concentration of work environment – qualification as to the difficulty of precise measurement did not destroy validity of opinion - EVIDENCE – weight or sufficiency – uncontradicted evidence – legitimacy of drawing conclusion that evidence of uncalled witness would not have been of assistance to that party’s case - DUST DISEASES TRIBUNAL – legitimacy of judge drawing on experience and position in specialised court - COSTS – indemnity costs – offers of compromise – offers more favourable than judgment obtained – whether exceptional case and necessary for avoidance of substantial injustice - COSTS – assessment – capped costs LEGISLATION CITED: Administrative Decisions Tribunal Act 1997 (NSW) s 119(1A)(c)
Civil Procedure Act 2005 (NSW) s 60
Dust Diseases Tribunal Act 1989 (NSW) ss 11A, 32
Dust Diseases Tribunal Regulations 2007
Occupational Health and Safety Act 2000 (NSW)
Supreme Court Act 1970 (NSW) ss 75A, 101(2)(c)
Uniform Civil Procedure Rules, r 42.40 (1)
Workers Compensation Act 1987 (NSW)
Workers' Compensation (Dust Diseases) Act 1942 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)CATEGORY: Principal judgment CASES CITED: Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 259 ALR 616
ICI Australia Operations Pty Ltd v Workcover Authority of New South Wales [2004] NSWCA 55; 60 NSWLR 18
JLT Scaffolding (International) Pty Ltd (In Liq) v Silva (Court of Appeal, 30 March 1994, unreported)
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705
McGuirk v University of New South Wales [2010] NSWCA 1
Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844
Perry v R (1990) 49 A Crim R 243
Ramsay v Watson [1961] HCA 65; 108 CLR 642
Rhoden v Wingate [2002] NSWCA 165
Strinic v Singh [2009] NSWCA 15; 74 NSWLR 419
Trade Practices Comission v Arnotts Limited (No 5) (1990) 21 FCR 324
Tyco Australia Pty Ltd v Optus Networks Pty Ltd [2004] NSWCA 333
Wallaby Grip (BAE) Pty Ltd v Macleay Area Health Service (1998) 17 NSWCCR 335
Wheeler v Somerfield [1966] 2 QB 94
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- AGLC
- Dasreef Pty Ltd v Hawchar [2010] NSWCA 154
- Case
- [2010] NSWCA 154
- Decision Date
CaseChat Overview and Summary
Dasreef Pty Ltd appealed to the Supreme Court of New South Wales, Court of Appeal, against decisions of the Dust Diseases Tribunal concerning the admissibility and weight of expert evidence, and the assessment of costs. The dispute involved a claim for damages for a dust-related disease, where the applicant, Mr Hawchar, relied on expert evidence regarding dust concentrations in his work environment. The respondent, Dasreef Pty Ltd, challenged the qualifications of the applicant's expert and the sufficiency of the evidence presented.
The primary legal issues before the Court of Appeal were whether the Dust Diseases Tribunal erred in admitting the expert evidence concerning dust concentration measurements, despite the expert's qualifications as to the inherent difficulties in precise measurement. Further, the Court considered whether the Tribunal was entitled to draw adverse inferences from the respondent's failure to call a particular witness, and whether the Tribunal, as a specialised court, could properly draw on its own experience and position. Finally, the Court examined the respondent's entitlement to indemnity costs based on an offer of compromise.
The Court of Appeal held that the expert's qualification regarding the difficulty of precise measurement did not render their opinion inadmissible or without weight. The Tribunal was entitled to accept the evidence and give it such weight as it saw fit. The Court also found that the Tribunal was justified in drawing a conclusion that the evidence of an uncalled witness would not have assisted the respondent's case, particularly in the context of a specialised tribunal with accumulated experience. However, the Court determined that the orders for indemnity costs made by the Tribunal were not justified on the facts, as the circumstances did not meet the threshold for an exceptional case necessary to avoid substantial injustice.
Consequently, the appeal was allowed in part. The orders of the Dust Diseases Tribunal concerning costs were set aside, and the question of costs was remitted to the Tribunal for reconsideration. The parties were directed to file submissions on the costs of the appeal.
The primary legal issues before the Court of Appeal were whether the Dust Diseases Tribunal erred in admitting the expert evidence concerning dust concentration measurements, despite the expert's qualifications as to the inherent difficulties in precise measurement. Further, the Court considered whether the Tribunal was entitled to draw adverse inferences from the respondent's failure to call a particular witness, and whether the Tribunal, as a specialised court, could properly draw on its own experience and position. Finally, the Court examined the respondent's entitlement to indemnity costs based on an offer of compromise.
The Court of Appeal held that the expert's qualification regarding the difficulty of precise measurement did not render their opinion inadmissible or without weight. The Tribunal was entitled to accept the evidence and give it such weight as it saw fit. The Court also found that the Tribunal was justified in drawing a conclusion that the evidence of an uncalled witness would not have assisted the respondent's case, particularly in the context of a specialised tribunal with accumulated experience. However, the Court determined that the orders for indemnity costs made by the Tribunal were not justified on the facts, as the circumstances did not meet the threshold for an exceptional case necessary to avoid substantial injustice.
Consequently, the appeal was allowed in part. The orders of the Dust Diseases Tribunal concerning costs were set aside, and the question of costs was remitted to the Tribunal for reconsideration. The parties were directed to file submissions on the costs of the appeal.
Orders
Orders of the court
1. Allow the appeal in part.
2. Set aside orders 5, 6 and 7 made by the Dust Diseases Tribunal on 15 July 2009 and contained in the form of orders signed by the Registrar of the Dust Diseases Tribunal on 25 September 2009.
3. Remit the question of costs to the Dust Diseases Tribunal for reconsideration.
4. The parties file submissions of no more than two pages on costs of the appeal within 14 days.
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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