Hudson v Amaca Pty Ltd (No 2)

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:

Hudson v Amaca Pty Ltd (No 2) [2022] NSWDDT 9

Hearing dates:

19 December 2022

Date of orders:

21 December 2022

Decision date:

21 December 2022

Before:

Judge Russell SC

Decision:

(1)   Vacate Order (2) made on 21 November 2022 and in lieu thereof the damages in the claim brought by the plaintiff under Lord Campbell’s Act for the benefit of Joseph Hudson are assessed at $2,362,334 plus the costs of funds management.

(2)   Order the defendant to pay the amount of $2,362,334 into an interest-bearing trust account, to be opened jointly by the solicitor for the plaintiff and the solicitor for the defendant, pending the appointment of a trustee.

Catchwords:

RECONSIDERATION – s13(6) Dust Diseases Tribunal Act 1989 (NSW) – recalculation of damages for loss of services to take proper account of all evidence and submissions at trial

Legislation Cited:

Dust Diseases Tribunal Act 1989 (NSW), s 13(6)

Cases Cited:

CSR Ltd v Bouwhuis [1991] NSWCA 66; (1991) 7 NSWCCR 223

Hudson v Amaca Pty Ltd [2022] NSWDDT 6

Category:

Consequential orders

Parties:

Daphne Maureen Hudson (Plaintiff)
Amaca Pty Limited (Defendant/Cross Claimant)
AV Jennings Properties Limited (Cross Defendant)

Representation:

Counsel:
J McIntyre SC and J Tryon (Plaintiff)
D Priestley SC (Defendant)
E Vail (Solicitor) (Cross Defendant)

Solicitors:
Rogalski Lawyers (Plaintiff)
Holman Webb (Defendant/Cross Claimant)
Sparke Helmore (Cross Defendant)

File Number(s):

DDT 2020/00341701

Judgment

Introduction

1. In this matter I delivered judgment on 21 November 2022: Hudson v Amaca Pty Ltd [2022] NSWDDT 6 (the original judgment). Order (2) was as follows:

“The damages in the claim brought by the plaintiff under Lord Campbell’s Act for the benefit of Joseph Hudson are assessed at $2,678,892 plus the costs of funds management.”

2. Order (3) was as follows:

“Defer entry of final judgment pending ascertainment of the costs of funds management, by agreement or further hearing.”

3. The matter was re-listed before me on 8 December 2022 at the request of the defendant. The defendant sought a reconsideration of Order (2), either on the basis that final judgment had yet to be entered, or if necessary by application under s 13(6) of the Dust Diseases Tribunal Act 1989 (NSW) (the DDT Act).

4. Section 13(6) of the DDT Act provides as follows:

“Whenever appropriate, the Tribunal may reconsider any matter that it has previously dealt with, or rescind or amend any decision that the Tribunal has previously made.”

5. The defendant filed Written Submissions (MFI 8) and the plaintiff filed Written Submissions (MFI 9 and MFI 10).

6. The parties appeared before me on 19 December 2022 and made further oral submissions. Senior counsel for the plaintiff conceded that it was an appropriate case in which to apply s 13(6) of the DDT Act and reconsider the damages assessed under Lord Campbell’s Act for the benefit of Joseph Hudson.

The Issue for Reconsideration

7. The defendant submitted that there was a factual finding in the judgment which did not accord with the evidence in the case, nor with…