Turner v Ansett Australia Limited - [2007] NSWDDT 26

Dust Diseases Tribunal

of New South Wales

CITATION: Turner v Ansett Australia Limited [2007] NSWDDT 26

PARTIES: Joanne Turner
Ansett Australia Limited

MATTER NUMBER(S): 428 of 2001

JUDGMENT OF: Kearns J

CATCHWORDS: Dust Diseases Tribunal :- Proceedings for damages
Plaintiff claimed negligent exposure to fumes
chemicals and dust while employed by Airline A during 9 year period
Airline A admitted employment
Both parties later learnt plaintiff worked for Airline E for first 3 year period
Application to amend statement of claim to join Airline E and application to amended defence to deny employment for first 3 year period
Whether amendment to join Airline E operates from date of joinder or from commencement of proceedings
Amendment to statement of claim operates as substitution of defendant's name rather than joinder of new defendant
Amendments operated from commencement of proceedings

LEGISLATION CITED: Workers Compensation Act 1987
Corporations Act 2001
Workers Compensation (Dust Diseases) Act 1942
Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Dust Diseases Tribunal Act 1989
Supreme Court Rules 1970

CASES CITED: Sullivan v Van der Broek [1999] NSWSC 1177;
Fernance v Nominal Defendant (1989) 17 NSWLR 710;
Bridge Shipping Pty Limited v Grand Shipping SA (1991) 173 CLR 231;
Australia & New Zealand Banking Group Ltd v Larcos (1987) 13 NSWLR 286;
Lloyd Steel Co (Aust) Pty Ltd & Anor v Jade Shipping SA & Anor (1985) 1 NSWLR 212;
Greater Lithgow City Council v Wolfenden [2007] NSWCA 180;
Amaca Pty Limited v Cremer (2006) 4 DDCR 42

DATES OF HEARING: 06/08/2007

DATE OF JUDGMENT:
27 August 2007

LEGAL REPRESENTATIVES:
Mr J McIntyre SC, instructed by Turner Freeman, appeared for the plaintiff
Mr D Miller, instructed by Moray & Agnew, appeared for the defendant
Mr C S Leahy SC, instructed by Curwoods Lawyers, appeared with leave for Eastwest Airlines Limited

JUDGMENT:

KEARNS J

The applications
1. There are two interlocutory matters to be determined.

2. The first is one by the defendant for leave to amend its defence.

3. The second is one by the plaintiff to amend her statement of claim, the effect of which would be to join another party to the proceedings.

The background to the applications
4. On 23 November 2001, the plaintiff commenced proceedings against Ansett Australia Limited (Ansett). She alleged that over the period from about 1990 to about 1998, she was negligently exposed by Ansett to fumes, chemicals and dust as a result of which she contracted illness for which she sues in the Tribunal.

5. The essence of the plaintiff’s case is that over that period she was employed by Ansett and Ansett breached its duty of care to her.

6. On 9 September 2003, Ansett filed a defence. It is significant to note that in that defence, Ansett admitted that it employed the plaintiff over the period in respect of which she sued.

7. In late November 2005, Mr Taylor-Jones, a solicitor with Moray & Agnew, the solicitors for Ansett, became aware, as a result…

Grounds of appeal

[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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Details

Case: [2007] NSWDDT 26
Decision Date: 27 August 2007

CaseChat Overview and Summary

In the matter of Turner v Ansett Australia Limited, the plaintiff, Ms. Turner, sought damages for negligent exposure to harmful fumes, chemicals, and dust during her employment with Airline A. Initially, both parties were under the impression that Ms. Turner had been employed solely by Airline A for nine years. However, it was later discovered that she had worked for another airline, Airline E, for the first three years of her employment. Consequently, an application was made to amend the statement of claim to include Airline E as a defendant and to modify the defence to reflect the corrected timeline of employment. The central legal issue before the court was whether the amendments to join Airline E would apply retroactively from the commencement of the proceedings or only from the date of joinder.

The court held that the amendments to the statement of claim, which substituted the name of Airline E for Airline A, constituted a substitution of the defendant rather than the addition of a new party. As such, the court determined that these amendments operated from the beginning of the proceedings, not from the date of their introduction. This interpretation was based on the understanding that the essence of the claim against the defendant remained unchanged, only the identity of the defendant had been corrected. Consequently, the amendments were deemed effective from the inception of the proceedings.

The court granted leave to Ms. Turner to amend her statement of claim as requested, allowing Airline E to be properly included as a defendant. The court also permitted the parties to apply for costs associated with the amendment process. The decision underscores the importance of accurately identifying all relevant parties in legal proceedings and the court's willingness to correct such errors to ensure justice is served.

Orders

Orders of the court

68. (a) Pursuant to s.64 of the Civil Procedure Act 2005, I grant leave to the plaintiff to amend her statement of claim in accordance with the Amended Statement of Claim annexed to the Notice of Motion dated 30 November 2006.

(b) I give liberty to the parties to apply as to costs.

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Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Turner v Ansett Australia Limited [2007] NSWDDT 26
PARTIES:	Joanne Turner Ansett Australia Limited
MATTER NUMBER(S):	428 of 2001
JUDGMENT OF:	Kearns J
CATCHWORDS:	Dust Diseases Tribunal :- Proceedings for damages Plaintiff claimed negligent exposure to fumes chemicals and dust while employed by Airline A during 9 year period Airline A admitted employment Both parties later learnt plaintiff worked for Airline E for first 3 year period Application to amend statement of claim to join Airline E and application to amended defence to deny employment for first 3 year period Whether amendment to join Airline E operates from date of joinder or from commencement of proceedings Amendment to statement of claim operates as substitution of defendant's name rather than joinder of new defendant Amendments operated from commencement of proceedings
LEGISLATION CITED:	Workers Compensation Act 1987 Corporations Act 2001 Workers Compensation (Dust Diseases) Act 1942 Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Dust Diseases Tribunal Act 1989 Supreme Court Rules 1970
CASES CITED:	Sullivan v Van der Broek [1999] NSWSC 1177; Fernance v Nominal Defendant (1989) 17 NSWLR 710; Bridge Shipping Pty Limited v Grand Shipping SA (1991) 173 CLR 231; Australia & New Zealand Banking Group Ltd v Larcos (1987) 13 NSWLR 286; Lloyd Steel Co (Aust) Pty Ltd & Anor v Jade Shipping SA & Anor (1985) 1 NSWLR 212; Greater Lithgow City Council v Wolfenden [2007] NSWCA 180; Amaca Pty Limited v Cremer (2006) 4 DDCR 42
DATES OF HEARING:	06/08/2007
DATE OF JUDGMENT:	27 August 2007
LEGAL REPRESENTATIVES:	Mr J McIntyre SC, instructed by Turner Freeman, appeared for the plaintiff Mr D Miller, instructed by Moray & Agnew, appeared for the defendant Mr C S Leahy SC, instructed by Curwoods Lawyers, appeared with leave for Eastwest Airlines Limited