Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
17/06/05
JUDGMENT DATE:
1 September 2005
JUDGMENT OF:
Mason P at 1; Ipp JA at 18; Basten JA at 144
DECISION:
(1) Appeal upheld (2) Set aside the judgment and verdict granted by Walker J (3) Case to be remitted to the Dust Diseases Tribunal to be heard afresh by a different judge (4) Respondent to pay the costs of the appeal (5) The judge hearing the new trial should determine the costs of the trial before Walker J (6) As regards the costs of the appeal the respondent to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled.
CATCHWORDS:
PROCEDURAL FAIRNESS - Judge, without stating notice of his intention to do so, determining the case on a basis different to that put forward by the parties throughout the trial - Whether necessary to lead evidence to show that appellant would have conducted its case differently - DAMAGES - Personal injury - Plaintiff with a pre-existing condition - Whether plaintiff's pr-existing condition was a contributing factor to his or her injury - Watts v Rake (1960) 180 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164 apply subject to the principles expressed in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 - APPEAL - Decision of Dust Diseases Tribunal - Jurisdiction of appellate court - s 32(1) of the Dust Diseases Tribunal Act 1989 (NSW) - Existence of an error "in point of law" - Lack of procedural fairness - Finding of fact in the absence of evidence - Whether appellate court should make order as to constitution of the tribunal upon a re-hearing. D
[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.
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AGLC
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
Case
[2005] NSWCA 208
Decision Date
CaseChat Overview and Summary
Seltsam Pty Ltd appealed to the New South Wales Court of Appeal against a decision of the Dust Diseases Tribunal. The dispute concerned a claim for damages for personal injury, where the plaintiff had a pre-existing condition.
The primary legal issues before the Court of Appeal were whether the judge of the Dust Diseases Tribunal had denied the appellant procedural fairness by determining the case on a basis not advanced by the parties, and whether the appellate court had jurisdiction to entertain such an appeal under section 32(1) of the Dust Diseases Tribunal Act 1989 (NSW) on the ground of an error in point of law, specifically a finding of fact made in the absence of evidence. The court also considered the principles governing the assessment of damages for personal injury where a plaintiff has a pre-existing condition, referencing established High Court authorities.
The Court of Appeal found that the judge had indeed erred by making findings of fact and reaching a conclusion on a basis that had not been put to the parties, thereby denying the appellant procedural fairness. The court held that this constituted an error in point of law, giving it jurisdiction to hear the appeal. The court applied the principles from *Watts v Rake*, *Purkess v Crittenden*, and *Malec v JC Hutton Pty Ltd* regarding the assessment of damages in cases involving pre-existing conditions, but found that the primary error lay in the procedural unfairness.
Consequently, the Court of Appeal upheld the appeal, set aside the judgment and verdict of the Dust Diseases Tribunal, and ordered that the case be remitted to the Tribunal to be heard afresh by a different judge. The respondent was ordered to pay the costs of the appeal, with the judge hearing the new trial to determine the costs of the original trial.
Orders
Orders of the court
(1) Appeal upheld (2) Set aside the judgment and verdict granted by Walker J (3) Case to be remitted to the Dust Diseases Tribunal to be heard afresh by a different judge (4) Respondent to pay the costs of the appeal (5) The judge hearing the new trial should determine the costs of the trial before Walker J (6) As regards the costs of the appeal the respondent to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled.