Talifero v Asbestos Injuries Compensation Fund Limited as Trustee for the Asbestos Injuries Compensation Fund

The case of *Talifero v Asbestos Injuries Compensation Fund Limited as Trustee for the Asbestos Injuries Compensation Fund* concerned an application by the Trustee for judicial advice regarding the interpretation of a scheme established to compensate victims of asbestos-related diseases. The scheme was constituted by the *James Hardie Former Subsidiaries (Winding Up and Administration) Act 2005* (NSW), a Trust Deed, and a Final Funding Agreement. The dispute arose from a claim by a mesothelioma victim who had been exposed to asbestos both in Australia and overseas, but sought damages against a "liable entity" solely based on Australian exposure.

The primary legal issues before the court were whether the Trustee was justified under the scheme in paying only the proportion of the damages award attributable to Australian exposure, or if the Trustee was obliged to pay the entire damages award to the victim's estate. A related question was whether the definition of "payable liability" within the scheme's instruments was satisfied when a victim's claim related exclusively to asbestos exposure within Australia. The court also considered whether an appeal, purportedly lodged as of right by a non-party, required leave and whether it was appropriate to substitute different advice on an appeal from judicial advice given under section 55 of the Winding Up Act.

The Court of Appeal allowed the appeal, setting aside the primary judge's judicial advice. The reasoning involved a determination that the Trustee was obliged to pay the whole of the damages award, as the definition of "payable liability" was satisfied even if the claim related solely to Australian exposure. The Court found that the Trustee's interpretation of the scheme was too narrow. The orders made directed the Estate to seek leave to appeal, granted that leave, and allowed the appeal, setting aside the primary judge's advice. The parties were then directed to file agreed short minutes of additional orders to give effect to the judgment, with provisions for disagreement.