CSR Ltd v Della Maddalena [2006] HCA 1

HIGH COURT OF AUSTRALIA

GLEESON CJ,

KIRBY, HAYNE, CALLINAN AND HEYDON JJ

CSR LTD & ANOR APPELLANTS

AND

ARTURO DELLA MADDALENA RESPONDENT

CSR Ltd v Della Maddalena [2006] HCA 1

2 February 2006

P36/2005

ORDER

1. Appeal allowed.

2. Set aside paragraphs 2 and 3 of the orders of the Full Court of the Supreme Court of Western Australia made on 13 October 2004 and, in their place, order that:

1. the judgment and orders of the District Court of Western Australia made on 17 December 2002 be set aside; and 2. there be a new trial of the action.

On appeal from the Supreme Court of Western Australia

Representation:

B W Walker QC with J G Mengler for the appellants (instructed by Jackson McDonald)

B F Quinn with P D Nicholas for the respondent (instructed by Slater & Gordon)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

CSR Ltd v Della Maddalena

Practice and procedure – Appeal – Credibility of witness – Whether intermediate appellate court entitled to substitute its own findings as to credibility for that of trial judge – Whether court erred in ordering retrial limited to assessment of damages.

Courts – Appeal – Procedural fairness – Expert witnesses – Court expressed preference for evidence of particular expert witnesses – Whether court's reference to such expert witnesses as "well known to the court" constituted a breach of procedural fairness – Whether matter should be remitted for rehearing.

Words and phrases – "procedural fairness", "retrial".

Supreme Court Act 1935 (WA), s 58(1)(a).

1. GLEESON CJ. I agree with the orders proposed by Kirby J. For the reasons explained by Kirby J, the Full Court of the Supreme Court of Western Australia was justified, in accordance with the principles re-affirmed by this Court in Fox v Percy[1], in reversing the decision of the primary judge on the principal issue in the appeal. The remark about the Full Court's high regard for some of the expert witnesses in the case was capable of being misunderstood, but in the end it is not a matter to which I would attach importance. I also agree that the disposition of the case by the Full Court was inappropriate in that there should be a retrial. 2. KIRBY J. This is an appeal from a judgment of the Full Court of the Supreme Court of Western Australia[2]. By that judgment, the Full Court unanimously[3] ordered that a judgment of the District Court of Western Australia (O'Sullivan DCJ)[4] against Mr Arturo Della Maddalena (the respondent) and in favour of his former employers, CSR Ltd and Midalco Pty Ltd (the appellants), be set aside. 3. In place of the judgment at trial, the Full Court concluded that the respondent "suffered a psychiatric injury caused by his exposure to asbestos while in the employ of at least one of the [appellants] at Wittenoom and that his injury was caused by the [appellants'] negligence"[5]. Because of an unresolved conflict as to the respective liabilities of the former employers[6], the Full Court ordered that the proceedings be remitted to the trial judge for determination in accordance with the Full Court's judgment. This required that the trial judge determine the liability of the first appellant, CSR Ltd, having regard to the denial in its defence that it owned, occupied or managed the mine and mill at Wittenoom where the subject exposure to asbestos was alleged to have occurred. Subject to the resolution of that question, the Full Court determined that the primary judge should assess the damages to which the respondent was entitled[7]. 4. The starting points for an understanding of the foregoing conclusions, reached by the Full Court, must be stated at the outset of these reasons. Only by appreciating them may the conclusion reached, and the orders made, by the Full Court be understood. The starting points involve what are substantially uncontested propositions, respectively of fact and law.