STATE OF NEW SOUTH WALES v JAMES HARDIE & COY PTY LTD [2000] NSWCA 2

New South Wales Court of Appeal

CITATION : STATE OF NEW SOUTH WALES v JAMES HARDIE & COY PTY LTD [2000] NSWCA 2 FILE NUMBER(S) : CA 40562/98 HEARING DATE(S) : 2 February 2000 JUDGMENT DATE : 2 February 2000

State of New South Wales - Appellant PARTIES : James Hardie & Coy Pty Ltd - Respondent

JUDGMENT OF : Sheller JA; Beazley JA; Fitzgerald JA

LOWER COURT JURISDICTION : Dust Diseases Tribunal LOWER COURT DDT 199/96 FILE NUMBER(S) : LOWER COURT Judge Maguire QC JUDICIAL OFFICER :

J M Ireland QC - Appellant COUNSEL : B W Walker SC/G M Watson - Respondent

SOLICITORS : I V Knight - Crown Solicitor - Appellant Allen Allen & Hemsley - Respondent

DECISION : (1) Appeal allowed; (2) Direct the respondent cross-claimant to re-plead on or before 23 February 2000 ; (3) Remit the proceedings to the Dust Diseases Tribunal; (4) The respondent to pay the appellant's costs of the appeal.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40562/98 DDT 199/96

SHELLER JA BEAZLEY JA FITZGERALD JA

Wednesday, 2 February 2000

STATE OF NEW SOUTH WALES v JAMES HARDIE & COY PTY LTD JUDGMENT

1 SHELLER JA: This is an appeal brought by leave granted on 12 April 1999 from a judgment of his Honour, Judge Maguire QC, sitting in the Dust Diseases Tribunal of New South Wales. 2 The decision was given on 28 June 1998. On that occasion his Honour dismissed a notice of motion by which the appellant sought an order that a cross-claim brought in proceedings in that Tribunal be struck out. 3 During the course of argument this morning, it became apparent, and counsel for the respondent cross-claimant fairly conceded, that the cross- claim as pleaded did not adequately state the case that the cross-claimant wished to propound at trial. 4 That being so, it seemed to the Court not appropriate to proceed on pleadings which clearly called for amendment. In those circumstances, it seems appropriate to the Court that the following orders should be made: (1) Appeal allowed; (2) Direct the respondent cross-claimant to re-plead on or before 23 February 2000; (3) Remit the proceedings to the Dust Diseases Tribunal; (4) The respondent to pay the appellant's costs of the appeal.