Talifero v Asbestos Injuries Compensation Fund Limited as Trustee for the Asbestos Injuries Compensation Fund (No 2)

In the matter of *Talifero v Asbestos Injuries Compensation Fund Limited as Trustee for the Asbestos Injuries Compensation Fund (No 2)*, the appeal concerned an application for leave to amend a summons. The dispute involved the respondent, the Asbestos Injuries Compensation Fund Limited (the Trustee), seeking to amend its summons to enable it to obtain judicial advice under section 55 of the *James Hardie Former Subsidiaries (Winding Up and Administration) Act 2005* (NSW). The appeal was heard by Beazley P and Sackville AJA, with Emmett AJA providing a separate judgment.

The primary legal issues before the court were whether to grant the Trustee leave to amend its summons to seek judicial advice regarding its obligations, and whether to grant a stay of proceedings pending an application for special leave to appeal to the High Court. The court was required to consider whether exceptional circumstances existed to warrant a stay, particularly in light of the nature of the order sought and the absence of evidence demonstrating a need to preserve the subject matter of a potential appeal.

The court reasoned that granting leave to amend the summons was appropriate to facilitate the judicial advice process under section 55 of the Act. This would allow the court to provide directions on the Trustee's obligations. Regarding the stay, the court found that exceptional circumstances were not established. The order sought did not create new rights or obligations, and there was no evidence that a stay was necessary to preserve the subject matter of any potential appeal to the High Court. Consequently, the court granted leave to amend the summons and directed that it be filed within seven days. The court also made an order, in lieu of the primary judge's order, that the Trustee be advised it was obliged to pay the whole of Amaca Pty Ltd's liability under a judgment in favour of the appellant, including interest and costs. The appellant's costs of the appeal were ordered to be paid by the respondent on an indemnity basis.