Wallaby Grip Limited v State Rail Authority of New South Wales; James Hardie & Company Pty Limited v State Rail Authority of New South Wales

Wallaby Grip Limited and James Hardie & Company Pty Limited appealed to the Court of Appeal of New South Wales against orders made by Curtis J in the Dust Diseases Tribunal. The primary dispute concerned claims for contribution between the respondents, the State Rail Authority of New South Wales (SRA), and Ampol Petroleum Limited (Ampol), and the appellants, Wallaby Grip and James Hardie. The SRA had been found liable to the plaintiffs for dust-related diseases, and had brought cross-claims for contribution against Ampol, Wallaby Grip, and James Hardie. Ampol had also brought cross-claims for contribution against Wallaby Grip and James Hardie.

The central legal issues before the Court of Appeal were the effect of findings of causation on claims for contribution under section 5 of the *Law Reform (Miscellaneous Provisions) Act 1946* (NSW), and whether the trial judge had erred in admitting further evidence on the basis that the case would otherwise be decided on a factually incorrect premise. The court also considered the consistency of the method of calculation of damages at trial and the appropriate disposal of the litigation.

The Court of Appeal reasoned that the findings of causation made in the primary judgments against the SRA were determinative of the contribution claims. The court found that the trial judge had erred in admitting further evidence, as the grounds for its admission were not sufficiently established. The court also identified inconsistencies in the calculation of damages. Consequently, the appeals succeeded to the extent that the orders made by Curtis J in relation to Ampol's cross-claims against James Hardie and Wallaby Grip were set aside.

The Court of Appeal ordered that judgment be entered for Ampol against James Hardie and Wallaby Grip in the same amounts as previously ordered in the SRA's cross-claim against those parties. Ampol was granted liberty to make further submissions regarding the calculation of judgment sums, the court's power to dispose of the litigation without remittal to the Dust Diseases Tribunal, and costs. The appeal was adjourned for further orders.