(Re: Woelfl) State Rail Authority of New South Wales v Amaca Pty Ltd & Anor (No 2) [2004] NSWDDT 52

Dust Diseases Tribunal of New South Wales

CITATION : (Re: Woelfl) State Rail Authority of New South Wales v Amaca Pty Ltd & Anor (No 2) [2004] NSWDDT 52 State Rail Authority of New South Wales PARTIES : Amaca Pty Ltd Wallaby Grip Limited MATTER NUMBER(S) : 61/98/01 JUDGMENT OF: Walker J at 1 CATCHWORDS: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 01/07/2004 15,16,17,18 & 19/11/2004 DATE OF JUDGMENT: 12/17/2004

FOR CROSS-CLAIMANT: Mr Holmes, QC instructed by Moroney Betts Solicitors. LEGAL REPRESENTATIVES: FOR FIRST CROSS-DEFENDANT: Mr Watson, SC instructed by Phillips Fox. FOR SECOND CROSS-DEFENDANT: Mr Russell, SC instructed by Acuiti Legal

JUDGMENT:

THE APPLICATIONS

1. The cross claimant moves the Tribunal for findings that: (a) The parties to these proceeding were parties to proceedings DDT 72 of 1996 ( In Re: Rayner) SRA v Wallaby Grip Limited and James Hardie & Coy Pty Ltd) (b) The Dust Diseases Tribunal in Rayners Case held that both 1st and 2nd defendants had actual knowledge of the dangers to health posed by visible clouds of asbestos dust between 4 January 1938 and December 1950 whereas during this period the cross claimant did not have actual knowledge but had constructive knowledge of such dangers. 2. And declarations that: (a) The defendants are estopped from re-agitating the findings of Curtis J on the question of the parties knowledge of the dangers of asbestos at the relevant time. (b) It would be an abuse of process to allow re-agitation of those findings. (c) The cross defendants application for leave pursuant to S 25B (2) of the Dust Diseases Tribunal Act 1989 to relitigate or re argue these issues previously determined be denied. (d) That there is nothing in the enactment of the Transport ( Division of Functions) Act 1950, which renders the Commissioner for Railways the representative of the Crown of NSW, that warrants attributing to the SRA the knowledge of the Crown about the dangers of asbestos. A.ISSUE ESTOPPEL