CSR LTD v JAN BOUWHUIS [1991] NSWCA 66

CSR LTD v JAN BOUWHUIS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and PRIESTLEY JJA 19 August 1991, 23 August 1991

[1991] NSWCA 66

APPEAL — fresh evidence mesothelioma — shorter life expectancy — new evidence rejected. Doherty v Liverpool District Hospital, CA, 13 March 1991 followed. PRACTICE — adjournment to allow review by Dust Diseases Tribunal refused INFERIOR COURTS and TRIBUNALS — DDT proper approach to review power. DAMAGES — voluntary home care- gross or nett rates GIO v Planas [1984] 2 NSWLR 677 applied. DAMAGES — use of like cases fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 dise'd

APPEAL — fresh evidence — belated application to offer new evidence in appeal —

plaintiff suffers terminal mesothelioma — contest in Dust Diseases Tribunal concerning his life expectancy — Tribunal estimates 8 months application for

expedition of hearing of appeal — medical evidence tendered — prognosticates life expectancy of days or weeks — tender by appellants of such evidence in appeal held: (by the Court).

The tender of the evidence should be rejected. Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235; Coffs Harbour Hardwoods Trading Pty Limited v Wall and Anor, Court of Appeal, unreported, 24 February 1989; (1989) NSWJB 27; Doherty v Liverpool District Hospital, Court of Appeal, unreported, 13 March 1991; (1991) NSWJB 21 applied. Mullholland v Mitchell (1971) AC 666, 679 (HL) referred to. Observations of Kirby P and Samuels JA on the virtues of judicial silence about binding decisions.

PRACTICE- adjournment - appeal to Court of Appeal belated application for adjournment to permit reconsideration by Dust Diseases Tribunal of fresh medical evidence as to life expectancy - held: The adjournment should be refused having regard, inter alia, to the meaning of s13(6) of the Dust Diseases Tribunal 1989, the full contest at first instance and the terminal condition of the plaintiff. Sydney City Council v Ke-Su Investments Pty Limited (1985) 1 NSWLR 246 (CA) distinguished.