NEW SOUTH WALES COURT OF APPEAL
CITATION: DYNO WESFARMERS LTD v KNUCKEY & ORS; DYNO WESFARMERS LTD v DYER [2003] NSWCA 375
FILE NUMBER(S):
40379/2003
40380/2003
HEARING DATE(S): 28 November 2003
JUDGMENT DATE: 17/12/2003
PARTIES:
DYNO WESFARMERS LTD v Margaret KNUCKEY & Ors
DYNO WESFARMERS LTD v Jacqueline DYER
JUDGMENT OF: Mason P Handley JA Young CJ in Eq
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): SC 20315/96, 20744/97
LOWER COURT JUDICIAL OFFICER: Mathews AJ
COUNSEL:
Appellant: N Cotman SC/ R Parsons
Respondent (Knuckey): M Joseph SC/ M Leeming
Respondent (Dyer): A Katzman SC/ M Cahill
SOLICITORS:
Appellant: Gadens
Respondent (Knuckey): Slater & Gordon
Respondent (Dyer): Ken Hooper & Assoc
CATCHWORDS:
Private industrial law - choice of law - fatal accident in Papua New Guinea - whether necessary for Papua New Guinea statute to be pleaded in proceedings in Supreme Court of New South Wales - effect of failure by either party to plead statute of foreign lex causae - rule in Weldon v Neal - whether Pt 20 r4 of Supreme Court Rules applies to local proceedings involving foreign limitation provision (ND)
LEGISLATION CITED:
Supreme Court Rules (NSW) Part 15 r10 and Part 20 r4
Compensation to Relatives Act 1897 (NSW)
Mining (Safety) Act 1980 (PNG)
Wrongs (Miscellaneous Provisions) Act (PNG)
DECISION:
Appeal dismissed with costs
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40379/2003
CA 40380/2003MASON P
HANDLEY JA
YOUNG CJ in EqWednesday 17 December 2003
DYNO WESFARMERS LTD v MARGARET KNUCKEY & Ors
DYNO WESFARMERS LTD v JACQUELINE DYER
Two men were killed in a mine explosion in Papua New Guinea in 1994. Within three years, dependants’ proceedings were brought by their widows in the Supreme Court of New South Wales against the negligent employer. The proceedings were pleaded as if the Compensation to Relatives Act 1897 (NSW) were the applicable statute. Formal admissions as to employment and breach were made and the proceedings were set down for assessment of damages on the basis that, subject to proof of dependency and loss, there should be a verdict for the plaintiff in each matter.
Following Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 (Zhang) the plaintiffs sought leave to amend to plead reliance upon the Wrongs (Miscellaneous Provisions) Act (PNG), a statute derived from Lord Campbell’s Act (UK) that was identical in substance to the New South Wales counterpart. This application was made after the 3 year time period for bringing proceedings under the Papua New Guinea statute. Mathews AJ held that it was unnecessary for the plaintiffs to amend their respective statements of claim.
In subsequent damages assessment proceedings the defendant never raised a limitation defence. The existence and terms of the Papua New Guinea statute were admitted. Judgments for substantial damages were awarded to each widow.
On appeal,
HELD:
The final judgments rested securely upon facts proved or admitted, including the “fact” that the lex causae (ie Papua New Guinea…
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- AGLC
- Dyno Wesfarmers Ltd v Knuckey [2003] NSWCA 375
- Case
- [2003] NSWCA 375
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether it was necessary for the Papua New Guinean statute governing the fatal accident to be specifically pleaded in the proceedings before the Supreme Court of New South Wales. Relatedly, the court considered the effect of a failure by either party to plead the statute of the foreign *lex causae*, and whether the rule in *Weldon v Neal* or Part 20 Rule 4 of the Supreme Court Rules applied to local proceedings involving a foreign limitation provision.
The court reasoned that the failure to plead the foreign statute did not prevent its application, particularly where the substantive law of Papua New Guinea was engaged. The court affirmed that the *lex causae* governs the substantive rights and liabilities, and while procedural rules of the forum apply, the substantive law of the place where the cause of action arose should be applied. The court found that the failure to plead the foreign statute did not preclude its consideration, and that the relevant rules of court did not mandate such pleading in these circumstances.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal 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
Established by: YOUNG CJ
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