Dasreef Pty Ltd v Hawchar

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.