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. The proceedings came on for hearing at short notice before Armitage CCJ in the Tribunal. In late November 1997 his Honour delivered judgment, finding for the Respondent in the sum of $155,000.00. The claim by the deceased had been opposed by the Appellant upon a number of grounds but, in particular, upon the grounds that there was no liability in tort by the Appellant to the Respondent or, alternatively, that there was no tortious liability in the Appellant which could be put in suit in this country. Those particular defences were rejected by Armitage CCJ who held that it was open to the Respondent to bring proceedings in this State in respect of the cause of action which he had pleaded. 2 UNREPORTED JUDGMENTS Shortly after Armitage CCJ delivered judgment the deceased died. However, before that occurred, a Notice of Appeal had been lodged by the Appellant and a stay of execution on the judgment was ordered. Of more recent times there was brought against the present Appellant and its holding company in the Tribunal a not dissimilar proceeding in respect of mesothelioma which had been sustained in New Zealand by a Mr Putt. That proceeding was heard and determined by O'Meally CCJ who, as had Armitage CCJ, rejected defences similar to those which had been raised at first instance in these proceedings. The present Appellant and its holding company appealed against the judgment delivered by O'Meally CCJ, that appeal being heard by a court constituted by Sheller, Beazley and Stein JJA, judgment being delivered on 27 May 1998. Their Honours took the view that there was no liability in the present Appellant or its holding company which could be put in suit in this State and, accordingly, upheld the appeal and set aside the verdict and judgment which had been found by Judge O'Meally in favour of the late Mr Putt. I have been informed that, on 7 August 1998, an application to the High Court for special leave to appeal from the judgment of the Court of Appeal has been dismissed by the High Court. The result of what I have recorded would tend to indicate that the appeal which has been brought in these proceedings by the Appellant will, in the normal course, be upheld, the verdict found by Armitage CCJ in favour of the deceased being set aside. The problem which has arisen is that the deceased's wife, through the solicitors on the record for the deceased, has made it clear to the solicitors for the Appellant that she will not seek a grant of probate or administration in this State. It is for that reason that the present application has been brought. It occurred to me, during the course of the weekend, after I had been spoken to by the Registrar, that the practice which had been recently adopted by the Judges of Appeal might be given effect to by requiring the appointment of an administrator ad litem. However, as a result of my researches during the course of the weekend, it appears to me that it would be unlikely in the extreme that a grant ad litem would be made. The matter was considered by Lush J in the Supreme Court of Victoria in Re Aylmore Deceased ([1971] VR 375). In the course of his Honour's judgment he expressed the view that a grant of letters of administration may not be made if there are no assets within the jurisdiction. In the present case, as is apparent, the only asset of the deceased within the jurisdiction is the present obligation of the Appellant under the judgment which has been delivered by Armitage CCJ and the purpose of the appeal is, of course, to get rid of that asset. In some cases, in the past (see, for example, Re Rowe [1964] VR 201; cp In the Estate of McGrown [1947] VLR 113; In the Estate of Phillips [1947] VLR 379; In the Estate of O'Connor [1950] VLR 343), there have been made grants ad litem to persons such as the Public Trustee but it seems to me that in the present case, it would not be appropriate to make such a grant since one of the purposes sought to be served by the making of a grant of administration ad litem is, in addition to providing a defendant or respondent, to provide a person who can in fact administer the relevant estate so as, if need be, to meet any orders for costs or the like which may be made in proceedings. In the circumstances, it seems to me that this is an appropriate case for not adopting the practice to which I have earlier referred. Nor does it seem appropriate to me or, indeed, open to the Court, merely to appoint the deceased's URJ JAMES HARDIE AND COY PTY LTD v CARLEY (Powell JA) 3 widow to represent the estate of the deceased for the purposes of the appeal. I say this since Pt8 r16(1)(b) of the Supreme Court Rules provides that, in a case such as this, such an order may be made only with the consent of the person whom it is proposed to appoint to represent the estate for the purposes of the proceedings. In the circumstances it seems to me appropriate to exercise the power conferred on the Court in Pt8 r16(1)(a) (cp Western Australia v Southern Equities Corporation Ltd (In Liq) Federal Court (French J) 3 September 1997 (unreported) and cases there referred to). I accordingly, 1. ORDER that the appeal continue in the absence of any person representing the estate of the deceased, Robert Charles Carley. 2. ORDER that costs of the motion be costs in the appeal. 3. DIRECT that, once these reasons have been engrossed, and made available to the solicitors for the Appellant, a copy be delivered by them to the solicitors still on the record for the deceased, Mr Carley, so that they may, if they think it appropriate, forward those reasons on to the deceased's widow. Counsel for the appellant: TG R Parker Solicitors for the appellant: Allen Allen & Hemsley No appearance for the respondent