JAMES HARDIE AND COY PTY LTD v CARLEY [1998] NSWCA 112

JAMES HARDIE AND COY PTY LTD v CARLEY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

POWELL JA 19 October 1998, 19 October 1998

[1998] NSWCA 112

Practice and Procedure — Deceased party — Pending appeal — Absence from jurisdiction of representative of estate of deceased — Order for appeal to proceed in absence of representative of estate of deceased.

Wills Probate and Administration - Pending appeal from Dust Diseases Tribunal — Deceased party — Whether appropriate to make grant of administration ad litem

Powell JA In pursuance of the Notice of Motion filed on 9 October 1998 the Appellant moves for an order:

1. That under Pt8 r16(1)(a) of the Supreme Court Rules, the matter proceed without a representative of Robert Charles Carley, deceased.

In addition, although the Appellant in its Notice of Motion did not seek an order for costs, its solicitors, on Thursday last, advised the solicitors still on the record for the Respondent that on the return of the Notice of Motion, the Appellant would seek an order that the costs of the motion be costs in the proceedings instead of the order previously sought, namely, that there be no order as to costs.

The circumstances which have given rise to the Notice of Motion are a little unusual and should be recorded, particularly in the light of the practice recently adopted by the Judges of the Court of Appeal to the effect that, in the ordinary course, appeals involving the estates of deceased parties ought not to proceed in the absence of a person having either a grant of probate or letters of administration.

The proceedings at first instance commenced with the filing in the Dust Diseases Tribunal ("the Tribunal") in November last year of a Statement of Claim in which the deceased, Mr Carley, sought as against the Appellant damages in relation to the condition of mesothelioma which he sustained while working, in the premises of Whakatane Board Mills in New Zealand, in which premises there had been asbestos fibres supplied by the Appellant. The claim upon which the deceased founded his entitlement to damages was that the asbestos had been supplied without there being an adequate warning, either, to him in person, or, to his employer, of the dangers of working in and near asbestos fibres.